Date: 20001122
Docket: IMM-5639-99
BETWEEN:
KHAN ASAD ULLAH
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Khan Asad Ullah (the "Applicant") is a citizen of Pakistan and a member of the Shia Muslim minority. He sought admission into Canada as a Convention refugee. Following a hearing before the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), a decision was rendered by Mr. Raza Naqvi on September 21, 1999. The Board determined that the Applicant is not a Convention refugee. The Applicant now seeks judicial review of that finding and an Order quashing the decision of the Board.
[2] The Board found that the Applicant was not a Convention refugee and in its reasons, made negative findings as to the credibility of the Applicant. These negative credibility findings were primarily focussed upon the Applicant's knowledge of the principle doctrines of the Shia religion, including his familiarity with biographical details of the main figures associated with that religion. The Board found that the Applicant was not a practising Shia.
[3] Furthermore, the Board found that the Applicant never had any problems at the hands of the Sapah-e-Sahaba of Pakistan (S.S.P.) or that he was ever arrested by the police. The Board doubted the veracity of the identity card held by the Applicant, as well as a doctor's report dated July 31, 1999. In short, the Board found that since the Applicant's evidence was not credible with respect to the material portions of his claim, he had failed to establish that he held a well-founded fear of persecution on the basis of his religion, or any of the other Convention grounds.
[4] The Applicant raises a number of issues on this application. He says that the Board erred in law by ignoring or misinterpreting the evidence before it. Second, he says that the finding that the supporting documents had been created merely for the purpose of bolstering the Applicant's Convention refugee claim was patently unreasonable on the basis of the evidence adduced, and should not be given any weight. The Applicant also says that the Board's finding as to his lack of knowledge of the Shia religion was unduly strict and unreasonable, and that the Applicant was tested on too high a standard.
[5] Alternatively, the Applicant argues that if any one of these grounds in itself does not amount to an error of law, then the cumulative effect of these errors effectively amounts to an error of law.
[6] According to the transcript of the hearing conducted before the Board, the main issues to be considered were the credibility of the Applicant, details of his knowledge of his religion and religious practice, and the incidents of alleged persecution in his country on the basis of religion.1
[7] The secondary issue to be considered at the hearing of the Convention refugee claim was the Applicant's involvement with the Pakistan's People Party (P.P.P.) and whether this supported a claim for Convention refugee status.
[8] I will first address the arguments raised concerning the Board's finding as to the failure of the Applicant to show that he held a well-founded fear of persecution on the basis of religion.
[9] The Board examined the Applicant as to his knowledge of his religion, including knowledge of leading figures associated with that religion. The Board concluded that the Applicant demonstrated insufficient knowledge of his religion to demonstrate that his status as a Shia Muslim supports a well-founded fear of persecution on the basis of religion. A person seeking admission into Canada as a Convention refugee must establish that he has a well-founded fear of persecution on one of the enumerated grounds; see Seifu v. Immigration Appeal Board, [1983] F.C.J. No. 34, (A-277-822, dated January 12, 1983) wherein Pratte J.A. stated:
| ... [I]n order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. |
| What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility. |
[10] It is established that findings of credibility are within the jurisdiction of the Board; see: Giron v. Minister of Employment and Immigration, [1992] 143 N.R. 238 (F.C.A.) and Aguebor v. Minister of Employment and Immigration [1993] F.C.J. No. 732. The circumstances in which a court can intervene in relation to such findings are limited. However, judicial intervention is warranted when those findings have been made on an improper basis.
[11] In the present case, it appears that the Board applied too high a standard to the Plaintiff's knowledge of his religion; see: Flores v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 565. Although the presiding member put on record the fact that he has a specialized knowledge of the Shi'ite religion, without comment from the Applicant, I have the impression that the Board erroneously expected the answers of the Applicant to questions about his religion to be equivalent to the Board's own knowledge of that religion. Indeed, at one point the Board advised the Applicant, during the Applicant's examination, that "this is not a trial court".2 This comment suggests that the Board erroneously assessed the Applicant's evidence at a higher standard than was appropriate, in the proceedings before the Board.
[12] Second, I note that the Board made a sweeping conclusion with respect to the failure of the Applicant in establishing a well-founded fear of persecution on political grounds. The secondary issue was raised by the Applicant at his hearing. The Board said as follows:
| As the panel has determined that the claimant's evidence is not credible concerning the material portions of his claim, it finds that the claimant has not established that he has a well-founded fear of persecution based on his religion, or any of the other Convention grounds.3 |
[13] The Applicant had raised political opinion as a secondary ground for seeking Convention refugee status. The Board did not address that issue specifically in its reasons. Apparently, it did not assess the evidence presented by the Applicant which could have supported his claim of a well-found fear of persecution on the basis of political opinion.
[14] For these reasons, I am of the opinion that this Application for Judicial Review should be granted. The matter will be remitted to the Immigration and Refugee Board, Convention Refugee Determination Division for re-hearing before a differently constituted panel.
[15] Counsel advised that there is no question for certification arising from the present application for judicial review.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
November 22, 2000
__________________
1Tribunal Record, page 162.
2Tribunal Record, page 167.
3Tribunal Record, page 10.
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