Date: 20021126
Docket: IMM-4733-01
Neutral citation: 2002 FCT 2006
Ottawa, Ontario, November 26, 2002
Before: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MOHAMMAD NAWAZ CHEEMA
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] Mohammad Nawaz Cheema is challenging the decision made by the Refugee Division ("RD"), that the plaintiff is not a Convention refugee.
POINT AT ISSUE
[2] Did the RD err in its assessment of the evidence, as a result of which this Court can intervene?
[3] For the reasons that follow, I answer "no" to that question.
FACTUAL BACKGROUND
[4] The plaintiff is a citizen of Pakistan. He said he had been an active member of the Pakistan People's Party ("PPP") since July 1993. He claimed to have been active in his district as a member of that Party. In 1996, the government of Benazir Bhutto, head of the PPP, was overthrown, and an opposing party, the Pakistan Muslim League ("PML"), took over. Since then, the plaintiff has been harassed by PML members.
[5] In 1999, the PPP organized a demonstration to denounce the "disqualification" declaration issued by the PML government. PML goons arrested and attacked him with other members of the Party at a demonstration on April 20, 1999. The police warned him to leave the country or he would be in danger.
[6] The plaintiff was again arrested on September 22, 1999. He subsequently went into hiding with members of his family. In March 2000, he was twice attacked in his shop.
[7] In April 2000, his brother told him to go into hiding as the police were looking for him. He went to stay with a member of his family, where he remained until June 6, 2000. He left Pakistan on June 6, 2000. After stopping in the United Kingdom and the U.S., he entered Canada on June 8, 2000, and made his refugee status application in Montréal on June 9, 2000.
DECISION AT ISSUE
[8] In its decision the RD found that the plaintiff was not credible. Further, noting certain improbabilities and contradictions, it rejected various documents filed by him in support of his claim.
[9] Finally, the RD found that the plaintiff had not met the burden of proof as to subjective fear and added that there was only a possibility of persecution in this case, which in its view did not suffice to allow the refugee status claim.
ARGUMENTS
Plaintiff
[10] The plaintiff complained that the RD dismissed all the documentary evidence submitted by him, which he said corroborated his story.
[11] The plaintiff argued that the RD made a serious mistake as a result of which this Court should intervene, as the ruling on subjective persecution was wrong, in view of his testimony and his documentary evidence.
Defendant
[12] As the question is simply one of credibility, the RD assessed the evidence correctly and its decision is reasonable. Under the existing precedents, the RD did not have to review all the evidence.
[13] The plaintiff's testimony contradicted his documentary evidence, and that is why the RD had all the necessary latitude to reject the evidence.
ANALYSIS
[14] There are two parts to my analysis: the general assessment of the evidence by the RD and its assessment of the plaintiff's subjective fear.
General assessment of evidence by RD
[15] The plaintiff's main complaint about the RD was that it rejected various pieces of documentary evidence submitted, namely medical certificates, a letter from a lawyer, the arrest warrant and the "IFRM" report.
[16] The assessment of the evidentiary weight of any evidence is a matter for the competent administrative tribunal. This was the ruling by MacKay J. in Tawfik v. Canada (Minister of Employment and Immigration) (1993), 137 F.T.R. 43, para. 10 (T.D.):
Generally the weight to be given to evidence is a matter for the tribunal's proper discretion. Unless that discretion can be said to be unreasonably exercised, this Court will not intervene. (My emphasis.)
[17] This statement of the general rule of deference toward assessments of evidence made by the RD was further clarified in Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 254 (T.D.) (QL).
[18] On the dismissal of the medical reports submitted by the plaintiff, at p. 4 of the RD's decision, I note that the latter referred to the documentary evidence indicating that only government hospitals issued "medico-legal reports". The RD chose to reject the plaintiff's medical certificates as they came from a private clinic which had not complied with the government regulations, and so did not constitute a "medico-legal report".
[19] In view of the RD's special knowledge about the countries of origin of refugee status claimants, this Court is not in a position to substitute its opinion for the latter's judgment. It is therefore impossible for me to conclude that the RD made a material error requiring the Court's intervention.
[20] As to the lawyer's letter, the warrant and IFRM report, the contradictions noted in the plaintiff's testimony by the RD justified its rejecting these documents (see Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1013; Zvonov v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 138, para. 15 (T.D.), (1995) 28 Imm. L.R. (2d) 23, para. 15 (T.D.), and Kalia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1682 (T.D.) (QL)).
Assessment of plaintiff's subjective fear
[21] The RD ruled that, in this case, the plaintiff had not discharged his burden of proving a subjective fear of persecution, but at most had established a possibility. In my opinion, this finding by the RD is not unreasonable as the plaintiff waited until June 2000 before leaving his country, though he was threatened with death in March 2000. This absence of a subjective fear of persecution is a critical barrier to the plaintiff's claim. See Anandasivam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1106, para. 23, where reference is made to Tabet-Zatla v. Canada (Minister of Citizenship and Immigration) (case IMM-6291-98, November 2, 1999):
[I agree] . . . that lack of subjective fear constitutes a critical barrier to a refugee claim which, on its own, justifies non recognition. [My emphasis.]
[22] I therefore consider that the conclusions in the RD's decision were justified by the evidence in the record.
[23] For all these reasons, this application for judicial review is dismissed. Counsel stated that they did not wish to submit any serious question of general importance. No question will be certified.
ORDER
THE COURT ORDERS that:
1. this application for judicial review is dismissed;
2. no question will be certified.
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-4733-01
STYLE OF CAUSE: MOHAMMAD NAWAZ CHEEMA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 9, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATED: November 26, 2002
APPEARANCES:
Eveline Fiset FOR THE PLAINTIFF
Thi My Dung Tran FOR THE DEFENDANT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec
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