Date: 20020819
Docket: IMM-4425-01
Neutral citation: 2002 FCT 885
Vancouver, British Columbia, Monday the 19th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MOHAMMAD SHAHZAD NAJMI, ITRAT NAJMI,
ALI NAJMI, HAMZA NAJMI, and KIRAN NAJMI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mohammad Shahzad Najmi, the principal applicant, is a 38-year-old citizen of Pakistan, the applicant Itrat Najmi is his spouse, and their three minor children are the applicants Ali, Hamza and Kiran Najmi. They bring this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which decided that they were not Convention refugees.
THE ISSUES BEFORE THE CRDD
[2] The CRDD identified the issues before it to be:
1. Identity of the applicants as nationals of Pakistan and associated residency in Pakistan.
2. Credibility.
3. Well-founded fear of persecution
ANALYSIS
(a) Identity and residency
[3] The CRDD found that Mr. and Mrs. Najmi may have been born in Pakistan on the basis of Mr. Najmi driver's licence and the fact that they spoke Urdu and Pakistani Punjabi. The panel gave no weight to the birth certificates of their children tendered in evidence before the CRDD because they were undated and signed by the medical officer of a hospital cardiology department. The CRDD made no comment, adverse or otherwise, about Mr. Najmi's birth certificate. The reasons of the CRDD are silent as to the weight, if any, given to Mrs. Najmi's birth certificate and silent as to any reason to doubt its authenticity. Reasons ought to have been given for doubting the authenticity of Mr. and Mrs. Najmi's birth certificates if their provenance was in doubt.
[4] The CRDD also found that there was no reliable evidence to place Mr. Najmi and his wife and children in Pakistan after 1997.
[5] In so finding, the CRDD made no reference to a letter from the Margalla Town Welfare Society [tribunal record page 62] which confirmed that Mr. Najmi worked as a social worker in Margalla and also confirmed that in 1999 he had been a prominent figure in a dispute as to whether or not a mosque was to be built in the town.
[6] While the CRDD is not required to refer to each item of evidence before it which is contrary to its finding, the more important the evidence that is not specifically mentioned and analyzed in its reasons, the more willing a court is to infer from the absence of reference to the evidence that the CRDD's finding was made without regard to the evidence. This is particularly so when the CRDD refers in detail to some evidence supporting its finding, but does not refer to evidence which contradicts the finding. See: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.) at paragraphs 16 and 17.
[7] In the present case, the correspondence from the Welfare Society corroborated both Mr. Najmi's presence in Pakistan and his involvement in the dispute over whether a particular mosque should be built. It was that involvement which was alleged by Mr. Najmi to have given rise to his well-founded fear of persecution. In that circumstance, I find the Welfare Society's letter to have been so central to Mr. Najmi's claim that I infer from the CRDD's failure to mention it in its reasons that the finding that there was no reliable evidence to place Mr. Najmi and his family in Pakistan after 1997 was made without regard to the evidence.
[8] The drawing of this inference is made easier by the fact that in reaching its conclusion as to residence, the CRDD relied not on direct evidence, but rather on its finding that it was incredible that no one told the claimants that school documents would be needed before the CRDD, and its finding that Mr. Najmi's explanation for not renewing his driver's licence was implausible. Mr. Najmi's explanation was said by the CRDD to be that after 1997 "he was driving cars for the PML and, therefore, a current licence was not required". In fact, the transcript reveals that Mr. Najmi testified that in Pakistan many people drive without licences and that because he did not own a car and so only drove occasionally, he drove without documentation and did not renew his driver's licence. Therefore, one of the inferences relied upon by the CRDD was not supported by the evidence.
[9] For these reasons, I find that the CRDD's conclusions about Mr. Najmi's nationality and residence after 1997 were made without regard to the evidence.
(b) Credibility
[10] The CRDD wrote as follows with respect to credibility:
CREDIBILITY
Credibility was an issue at the beginning of the hearing and it remained so at the conclusion. The panel took into consideration the education of the claimant, cultural norms and the fact that evidence was heard through an interpreter. The following examples illustrate the negative credibility findings.
Membership and profile in the PML:
The claimant alleged that he resided in the district of Islamabad, the capitol of Pakistan. He alleged that he formally joined the PML youth wing in 1996. In oral testimony he said that he was a member of the executive of the PML Youth Wing. When asked why this information was omitted from his narrative, he said that it was not a high-ranking position, it was an ordinary position. The panel finds that an executive member of a political organization is a significant political position and it is not plausible that the claimant would not note his executive position in his narrative, if indeed he were part of the executive. The panel therefore finds, on a balance of probabilities, that the claimant exaggerated his profile in the PML.
The claimant alleged that he voted in the National Assembly (NA) elections in 1997 in Pakistan. He knew that Nawaz Sharif was the leader of the PML and that Benazir Bhutto was the leader of the Pakistan People's Party (PPP). However, when questioned about his own constituency, his knowledge was abysmal for an alleged politically active member of the PML, who was highly connected politically, so to speak. It is abysmal considering that he supported the PML since 1986. He did not know the correct designation of his own constituency. He did not correctly name the PML opposition candidate for his constituency. What is most alarming is the fact that this basic information is common documentary evidence that is entered routinely in all Pakistani refugee claims. In addition, the claimant alleged that he drove cars for MNAs from the PML party during his stay in Karachi from December 1999 to April 2000.
When the above paragraphs are taken into consideration, the panel finds that the basis of the claim is entirely undermined. As a result, the claim must fail.
[11] Thus, the CRDD relied upon what it found to be an exaggeration of Mr. Najmi's profile in the PML and his lack of political knowledge to undermine his credibility.
[12] With respect to his involvement in the PML Youth Wing, Mr. Najmi's evidence was as follows:
· He had been a supporter of the PML since 1986 and a member since 1996.
· He was the general secretary of his unit, so appointed since March, 1996.
· The unit consisted of approximately 4,000 to 4,800 members.
· Being general secretary was not a high-ranking post. It was a very ordinary post.
· There were three other members of his unit besides himself, and their positions were president, vice-president and information secretary.
· As general secretary he used to get together with others and put posters on walls in schools and at colleges.
· Other than the four executive members, there were volunteers.
· With a companion from the Youth Wing, he spoke with the capital development authority who agreed to stop the mosque's building application. This authority agreed because the Youth Wing had been supportive of the authority for a long time.
[13] In my view, this evidence, and indeed the whole of the evidence before the CRDD, does not support the CRDD's conclusion that Mr. Najmi exaggerated his profile in the PML. Mr. Najmi stated that his position was not high-ranking or extraordinary, which is why he did not mention in his Personal Information Form ("PIF") that he held an executive position. The CRDD improperly drew a negative inference from this omission from Mr. Najmi's PIF, and also expected him to have the political expertise of a more senior party member. There was no basis in the evidence for its finding that this position was a "significant political position".
[14] As for his lack of political expertise or knowledge, the Minister concedes that the CRDD erred in its finding that Mr. Najmi could not identify the name of the PML candidate in his riding, and also concedes that the CRDD further erred in stating that Mr. Najmi testified that he was driving cars for members of the National Assembly in Karachi in 1999 and 2000.
[15] Those two errors, combined with the CRDD's misapplied expectation of political expertise, are significant because, as set out above, the CRDD states beneath these incorrect findings that "[w]hen the above two paragraphs are taken into consideration, the panel finds that the basis of the claim is entirely undermined. As a result, the claim must fail".
[16] The conclusion that the basis of the claim was so undermined was therefore not supported by cogent reasons which were in turn supported by the evidence. In so concluding, the CRDD committed a reviewable error.
(c) Well-founded fear of persecution
[17] The CRDD wrote as follows:
The claimant arrived in Canada after the military coup led by General Parvez Musharraf took place on October 12, 1999. Since the coup, the documentary evidence does not refer to the political violence that was pervasive during the regimes of PPP leader Benazir Bhutto and PML leader Nawaz Sharif. The PML goons are no longer targeting the PPP. The PPP goons are no longer targeting the PML. There is no reliable evidence that the SSP are targeting members of political parties or fellow Sunnis.
The panel carefully reviewed the documentary evidence. The panel finds that the documentary evidence does not objectively support the claimant's story.
[18] With respect to the basis for Mr. Najmi's claim to status as a Convention refugee, his evidence was that because of his membership in the PML Youth Wing he was involved in attempts to seek government intervention to stop the construction of a mosque in his neighbourhood by a rival Sunni sect, the Sipah-e-Sahaba. The efforts of Mr. Najmi and others resulted in a halt to the mosque's construction. However, after the military took over Pakistan in October 1999, the construction of the mosque resumed, and Mr. Najmi and his family were threatened by the Sipah-e-Sahaba, an extremist group, for his previous opposition. His fear was a result of his personal and outspoken opposition to the Sipah-e-Sahaba and not his political involvement per se.
[19] When asked why he fears the Sipah-e-Sahaba should he return to Pakistan, Mr. Najmi stated:
RCO Now, your fears of Sipah-e-Sahaba come from this building of the mosque in this town. It is quite possible that the mosque has now been built?
MALE CLAIMANT Perhaps.
RCO So why do you fear them now should you return to Pakistan?
MALE CLAIMANT Because they gave me a warning and they also attacked me, that, "We will not leave you and your children alive. Because among Sunnis you are the only person who has raised voice against us and if you start this thing (inaudible) Pakistan, it will become a problem for us."
RCO They will find you anywhere in Pakistan?
MALE CLAIMANT Yes, of course.
RCO Even though you tried to stop them from building a mosque, but it's quite possible that the mosque is now built?
MALE CLAIMANT Even then they will not spare me.
[20] He further testified that:
COUNSEL Okay. This is my last question, I guess, to clarify. Are you afraid to return - are you afraid of the Sipah-e-Sahaba because you were a member of the Pakistan Muslim League, or because of your opposition to the mosque?
MALE CLAIMANT The reason is that we raise our voice against them. That is the reason.
COUNSEL Because you raised your voice against them.
MALE CLAIMANT Yes.
COUNSEL So that would be because of your opposition to the mosque.
MALE CLAIMANT Yes.
COUNSEL Okay, thank you. I have no further questions.
[21] The CRDD in its reasons wrote that it was "very clear" to the panel that Mr. Najmi alleged that because of his membership in the PML Youth Wing and his associated political connections he was able to contribute to stopping construction of the mosque. The panel then concluded: "When all of the above is taken into consideration, the panel finds that the claimant's evidence is not credible or trustworthy. The panel, therefore, does not believe that the claimant was involved in any political party let alone the PML."
[22] I accept the submission advanced on Mr. Najmi's behalf that when analysing the documentary evidence the CRDD misconstrued the basis of his fear as being because of his membership in the PML, and then erroneously concluded that such fear was not well-founded because the documentary evidence before the CRDD failed to establish that the Sipah-e-Sahaba were targeting members of political parties or fellow Sunnis. Mr. Najmi's testimony was express that his fear is based upon his personal outspokenness against the construction of the mosque.
CONCLUSION
[23] I am satisfied that for these reasons the decision of the CRDD should be set aside and the matter remitted for redetermination before a differently constituted panel.
[24] Counsel posed no question for certification and no question is certified.
ORDER
[25] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the CRDD is set aside. The matter is remitted for redetermination before a differently constituted panel.
2. No question is certified.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4425-01
STYLE OF CAUSE: Mohammad Shahzad Najmi and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 19, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 19, 2002
APPEARANCES:
Mr. Daniel Kingwell FOR THE APPLICANTS
Ms. Rhonda Marquis FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Daniel Kingwell FOR THE APPLICANTS
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content