Date: 20090929
Docket: IMM-453-09
Citation: 2009 FC 977
Ottawa, Ontario, September 29, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
FATIMA MUHAMMAD (a.k.a.: RAJA
ALI MUHAMMAD),
RAJA FATIMA (a.k.a.: KANIZ FATIMA),
MAKKI AMNA (a.k.a.: AMNA MAKKI)
MAKKI MAMOONA (a.k.a. MAMOONA MAKKI) and
SHERAZ MUHAMMAD (a.k.a.: MUHAMMAD OMER)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of a decision of
the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board,
dated January 8, 2009, in which the Applicants were found not to be Convention
refugees nor persons in need of protection.
[2]
It
was Fatima Muhammad’s (a.k.a. Raja Ali Muhammad), the principal male applicant
(the “male applicant”), claim that, as a result of his marriage to Raja Fatima (a.k.a.
Kaniz Fatima), the principal female applicant (the “female applicant”), a Shia
Muslim, as well as his later conversion to Shi’ism, he and his family suffered persecution
in their country of citizenship, Pakistan, at the hands of the members of Sipah-e-Sahab
(“SSP”) and his own Sunni family.
[3]
The
RPD, however, found a number of discrepancies in the allegations made by the male
and the female applicants and the evidence presented in support of these
allegations. The Tribunal, therefore, found the applicants’ story of
persecution in Pakistan to be a fabrication and rejected their refugee claim
on that basis.
[4]
The
issues this Court must determine are the following:
- Did the Board
commit a factual error which rendered the refusal of the applicants’
refugee claim unreasonable?
- Did the Board err
in assessing the applicants’ credibility by rendering a decision while
disregarding evidence before it?
[5]
The
Panel writes in his Reasons that the female applicant testified that her
brother is of the same religion as her and that he is Sunni. The Panel found
this to be fatal to the claim, as the female applicant is Sunni and there is no
reliable evidence that she converted. The female applicant pointed to her initial
affidavit, in which she attested to the fact that it is her recollection that
at that part of the hearing, the Member did not ask her whether her brother was
Shia, but rather whether her cousin was Shia. Accordingly, she answered that he
is Sunni, referring to her cousin. Upon reviewing the transcript of the hearing,
at pages 427 and 428 of the Tribunal Record, the Member did in fact ask her
about her cousin, not about her brother. The female applicant answered that her
cousin is the same religion as her because that is the truth – they are both
Muslim. When the Member asked the female applicant if her cousin is Shia she
answered that he is not, because that is the truth – he is Sunni. The female applicant
explained to the Member that in their society some people are Sunni and some
are Shia, but that does not mean that they are of a different religion. According
to the applicants, it is apparent on the face of the record that the Panel
committed a serious error of fact, which went to the heart of his decision. The
Panel himself writes that this answer, with respect to her brother being Sunni,
was fatal to the claim. Upon reviewing this portion of the transcript, it is
evident that the female applicant’s answers were direct, consistent and
truthful, and it is in fact the Panel who misunderstood or misinterpreted the female
applicant’s answers. The applicants submit that this application should be
allowed on this basis alone, as this error fatally undermines the validity of
the Panel’s decision.
[6]
The
applicants further submit that the Panel erred in assessing the applicants’
credibility by rendering a decision while disregarding evidence. In addition to
the fact that the Panel ignored crucial evidence in the form of letters which
spoke about the applicants’ Shia affiliation, the applicants argue that the
Panel also fails to mention the fact that Mr. Sib De Hassan testified in
support of the applicants’ claim. During his testimony, Mr. Hassan stated that
the male applicant had in fact converted to Shi’ism and that the applicants had
been forced to leave Pakistan because of the
persecution that they suffered at the hands of his family.
[7]
The
applicants further submit that despite this lengthy and detailed oral evidence,
the Panel writes that there was no reliable evidence that the male applicant
converted. The Panel fails to even mention this testimony, which addressed this
precise issue. It is open to the Panel to consider the evidence and ignore that
which is not relevant, but the Panel must also consider and note the evidence
which is relevant to its findings. It is evident that this was not done in the
present case. Rather, the Panel simply ignored this evidence, which was
critical to the applicants’ claim for protection. This is a glaring omission
from the Reasons which also warrants this Court’s intervention.
[8]
The
respondent contends that since credibility findings are factual findings, a
very high deference has always been given by the Court to the RPD’s findings in
this regard. In the past, the standard of review for such findings was patent
unreasonableness. Although the Supreme Court of Canada’s decision
in Dunsmuir v. New Brunswick, 2008 SSC 9 has now
eliminated the patent unreasonableness standard of review, significant
deference must still be afforded to such factual findings. In Dunsmuir, above,
the Supreme Court emphasized that significant deference must still be accorded
to the decision-maker if reasonableness is the applicable standard.
[9]
While
the applicants argue that the RPD erred in assessing their credibility, it is,
however, the respondent’s position that the Tribunal’s credibility findings
fall within a range of possible and acceptable outcomes. The respondent makes
the following arguments with respect to RPD’s credibility findings disputed by
the applicants.
[10]
The
RPD made a negative inference from the male applicant’s failure to mention his
denomination as Shia’ Muslim in his Personal Information Form (the “PIF”). The
Tribunal noted that the male applicant’s wife had answered the same question by
stating that she was Shia. The respondent submits that this omission is
certainly not a determinative factor in this case especially given the male applicant’s
statements in the PIF narrative. However, this was one of many omissions and
discrepancies noted by the Tribunal that cast doubts on the applicants’
credibility.
[11]
Even
though the male applicant had allegedly converted to Shi’ism and endured
persecution and although he acknowledged that there were theological
differences between the Sunni and Shia sects, he seemed unable to distinguish
between the faiths of the mosques he was attending in Canada. The
negative credibility inference made by the RPD in this regard is certainly
within the range of possible and acceptable outcomes.
[12]
During
the hearing, the male applicant was asked whether he had a certificate issued
by the person who had converted him to the Shia faith. He said that he did not.
The Response to the Information Request by the Research Directorate of the
Immigration and Refugee Board indicated that usually conversion from the Sunni
sect to Shi’ism is made official by obtaining a letter from a senior cleric of
the said sect confirming the conversion and that this was not difficult to
obtain. The applicants argue that because the name of the human rights activist
in Lahore who had
provided the Research Directorate with this information is not known and given
that based on the information provided the certificates are “usually”
available, the RPD erred in drawing a negative inference from their failure to
produce such certificate. In response, the respondent submits that the applicants
had confirmed before the RPD that the male applicant’s conversion had taken
place before a religious leader. The applicants had the onus of satisfying why
the religious leader who had witnessed the conversion could not provide them
with a certificate. The applicants failed to do so. As the Transcript of the
hearing indicates, the male applicant’s responses to the Tribunal’s concerns on
this issue were vague and not on point.
[13]
With
respect to the argument that the Tribunal made a reviewable error by stating
that the female applicant’s brother was Sunni, the respondent submits that
firstly, as stated in the Reasons, this was one of the issues that was also
fatal to the claim. Therefore, even without the RPD’s assessment of the female
applicant’s testimony regarding her family’s faith, the refugee claim would
have failed. Secondly, as the transcript of the hearing reveals, the Tribunal
was concerned with the female applicant’s statements that both she and her
cousin belonged to the same sect and that her cousin was a Sunni. Therefore,
although the RPD has erroneously referred, in its Reasons, to the female applicant’s
brother instead of her cousin, the fact remains that she had confirmed before
the Tribunal and she and her cousin belonged to the Sunni sect and that was one
of the factors that undermined the credibility of the applicants’ story
regarding their persecution in Pakistan.
[14]
In
the reasons for the decision the Member states:
“ Next, Kaniz was asked whether her
brother was Shia and she replied, “No he is Sunni.” I find that this answer is
fatal to the claim. This entire basis of the claim is that Kaniz is Shia and
that Raja Ali’s problems are the result of his marriage and subsequent
conversion. As Kaniz is Sunni and I have no reliable evidence that Raja Ali
converted, I find that the family fabricated a story upon which to base a
Convention refugee claim.”
[15]
In
his conclusion, the member writes:
“Fatima Muhammad (a.k.a. Raja Ali
Muhammad) and Raja Fatima (a.k.a. Kaniz Fatima) lied to the panel by
representing themselves as Shia Muslims when they are in fact Sunni Muslims, by
Ms. Kaniz Fatima’s testimony. As such their claims fail.”
[16]
I
am of the view that the member made an error of fact in interpreting the
testimony. He concluded that Fatima Muhammad and Raja Fatima had lied to the
panel by representing themselves as Shia Muslims when they are in fact Sunni
Muslims, and held that their claim must fail because of this. This finding by
the Panel is not supported by the evidence and for this reason alone the
decision should be set aside.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the decision of the
Refugee Protection Division, dated January 8, 2009 is set aside for all
purposes. The matter is referred back for re-determination before a different Panel.
No question of general importance has been submitted by the parties and none
will be certified.
“Louis
S. Tannenbaum”
AUTHORITIES CONSULTED BY THE COURT
1. Valtchev v. Canada (M.C.I.), [2001] F.C.J.
No. 1131
2. Leung v. Canada (M.E.I.), (1994) 81
F.T.R. 303
3. Jeyaraj v. Canada (M.C.I.), 2009 FC 88
4. Gomez-Bedoya
v. Canada (M.C.I.), 2007 FC 505
5. Woolaston v. Canada (M.M.I.), [1973] S.C.R.
102
6. Mohacsi v. Canada (M.C.I.), [2003]
F.C.J. No. 586
7. J.O. v. Canada (M.C.I.), 2004 FC
1189; [2004] F.C.J. No. 1426
8. Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9
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