Date: 20000630
Docket: IMM-3276-99
BETWEEN:
AZHAR MUHAMMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Let the attached reasons for order which are an edited version of those delivered orally from the bench at Toronto, Ontario on Thursday, June 22, 2000, be filed to comply with section 51 of the Federal Court Act.
OTTAWA, Ontario.
June 30, 2000.
Judge
Date: 20000622
Docket: IMM-3276-99
BETWEEN:
AZHAR MUHAMMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Edited version of those delivered orally
from the bench, on Thursday, June 22, 2000)
REED, J.:
[1] These reasons relate to a judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board, determining that the applicant was not a convention refugee.
[2] The applicant argues that the Board totally ignored the psychologist's evidence that the applicant "suffers from quite pronounced cognitive difficulties"; that he "cannot recall bus routes and often gets off at the wrong stop ...; has difficulties recalling what day of the week it is, ... and finds he cannot focus on passive conversation."
[3] The Board did not totally ignore the psychologist's report. It referred to the fact that a description therein, as to the alleged beating the applicant had received, contradicted his viva voce evidence at the hearing. The Board also referred to the filing of an amended psychologist's report in which the applicant was then described as having been kidnapped, not beaten.
[4] More importantly, however, I am not persuaded that there was an error in not expressly referring to the statements in the psychologist's report that are quoted above. In addition to those statements, the report also states that the applicant "is more alert when asked to respond to a question, but loses track of what others are saying if he is not required to participate." The environment of the hearing is such that the applicant was an active participant, answering questions that his counsel and the board asked him. Also, if the applicant's evidence is believed, he was certainly participating in the political activities in Pakistan on which his claim for refugee status is based; he was not a passive observer.
[5] Also, another paragraph of the report states that there was "no indication of any formal personality or thought disorder", and "I foresee no problems in Mr. Azhar testifying on his own behalf."
[6] In such circumstances, there was no error by the Board in not referring to the four lines of the six page report referred to by the applicant's counsel.
[7] Also, the Board explained that there were some aspects of the applicant's evidence that it could accept he might not be able to recall correctly. It was with respect to central and obviously easy to remember matters that it was not able to accept that he would be unable to recall them correctly:
| Furthermore, the claimant testified orally that, as far as PS 79 was concerned, he campaigned for the PPP's candidate"a certain Nasir Ali. However, he also said the he did not know who the PML and MQM candidates were for that particular riding, notwithstanding his allegation that he campaigned vigorously for this riding as well. |
| However, the claimant contradicted himself when he continued to testify at the second sitting on March 11, 1999. The claimant was now saying that Naeem Hasni contested the Provincial Assembly seat in riding PS 79, not in riding PS 80 as he had testified to at the previous sitting, and that Nasir Ali ran for the Provincial Assembly sear in riding PS 80, not in riding PS79 as he had earlier stated. The panel could have overlooked this seeming confusion as to which candidate ran for which riding during these particular elections; however, as will be shown in the following section, the claimant showed a significant lack of knowledge about the candidates who were supposed to be central to the elections for which he allegedly actively campaigned. |
| The claimant changed his testimony and stated that the PML actually fielded a candidate"a certain El-haaj Muhammad Raffee"opposite the PPP and MQM candidates in the PS 79 riding. He further contradicted himself by stating that the MQM's candidate was a certain Hasan Ullah Khan, not Kanwar Khalid as he had previously stated . The panel finds it reasonable to expect the claimant to have remembered these names when he first testified on December 21, 1998, particularly since, according to his oral testimony on March 11, 1999, the MQM candidate (Hasan Ullah Khan) won the elections for this particular riding. |
| The claimant [sic] also finds it curious that, while the claimant could not, at the December 21, 1998 sitting, remember the names of the PML and PPP candidates who ran against the PPP's Nasir Ali, he recalled those names very vividly during his March 11, 1999 viva voce testimony. Again, the panel finds it reasonable to expect the claimant to have recalled these names when he first testified, particularly since one of PPP's political opponent"Mohammad Qureshi, the MQM's candidate"emerged victorious in the polls. |
| The panel did not receive a reasonable explanation as to why everything was clearer in the claimant's mind on March 11, 1999"three months after he first testified. The panel finds that, after providing the panel with erroneous information about the February 1997 provincial elections during the first sitting, the claimant gathered information about the February elections in Pakistan and memorized them in preparation for the second sitting. The panel notes that this information is partly contained in the RCO's disclosure package and is accessible through the internet, including the PPP's own web-page. The panel finds that the claimant was purposely misleading the panel with regard to his whereabouts and activities during the material times in question. ... [Footnote omitted.] |
[8] The applicant argues that the Board failed to accurately characterize the evidence, ignored objective evidence, misconstrued the evidence, and did not properly evaluate the documentary evidence describing the situation in Pakistan. While the Board did not accept the applicant's story, it was quite cognizant of the violence that is part of the political scene in Pakistan. Its decision reads in part:
| On the other hand, the panel recognizes that the political landscape in Pakistan is marked with inter-party violence, intrigue, and sabotage which includes murder, kidnapping, and the destruction of properties. In this regard, the evidence of Dr. Lawrence Ziring corroborates what the panel already knows, by way of its specialized knowledge about conditions in Pakistan. However, the panel finds insufficient reliable and credible documentary evidence that PPP members are innocent victims of the ruling party's, or the MQM's persecutory acts. Documentary evidence shows that all major parties in Pakistan are engaged in a vicious cycle of revenge. |
| The panel further finds that the claimant does not possess a high-political profile that might give rise to a serious possibility or a reasonable chance that he would be persecuted, for Convention reasons, if he were to return to Pakistan today. As stated earlier, the panel has determined that the claimant did not experience the problems in Pakistan to which he testified. In fact, the panel even doubts very strongly that the claimant was even in Pakistan during the material times in question. ... |
[9] It is well to keep in mind the role of this Court on a judicial review application. The Court does not substitute its decision for that of the Board, the hearing is not a new hearing. The Court's role, when it is alleged that there has been misconstruction of the evidence, erroneous finding of fact, or the ignoring of evidence, is set out in section 18.1(4)(d) of the Federal Court Act. The Court's role is to ascertain whether the Board's decision was "based ... on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it."
[10] Applying that test, as I must, I cannot conclude that there is any error in the Board's decision that would justify setting it aside.
[11] The application is therefore dismissed.
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