Date: 20070209
Docket: IMM-1646-06
Citation: 2007 FC 152
Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FAISAL JAVED KHATANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board) is dismissed because of
the deference owed by this Court to credibility findings made by the Board.
Despite the able submissions of counsel for Mr. Khatana, I have not been
persuaded that the Board’s credibility findings were patently unreasonable.
[2] By
way of background, Mr. Faisal Javed Khatana is a citizen of Pakistan who is a
Sunni Muslim. He claims that he is targeted by Sunni Muslims, “Sunni Muslim
fanatics” from the Sipah-e-Sahaba of Pakistan (SSP) and the Imam at the local
Sunni mosque in Lahore, Pakistan as a result of his close association with the
Ahmadi community and his friendship with a person named Nasir Ahmed of the
Ahmadi faith. Mr. Khatana claims that the agents of persecution believed that
he converted from the Sunni Muslim religion to the Ahmadi Muslim religion.
THE DECISION OF THE BOARD
[3] The
Board did not find Mr. Khatana’s claim to be credible as a result of the
following stated concerns:
1. The Board found that Mr. Khatana’s oral and written evidence
contradicted his claim that he had been in hiding as of January 30, 2005. At
the hearing, Mr. Khatana could not provide an explanation for the discrepancy
in his evidence about his employment during the time he was allegedly in
hiding.
2. The Board did not believe Mr. Khatana’s claim that he was
perceived as having converted to the Ahmadi Muslim religion given his frequent
attendance at Sunni mosques.
3. The Board did not find it to be plausible that Mr. Khatana
would still be attacked after he and his wife stopped socializing with Nasir
and his wife after the first attack in July of 2004.
4. The Board found an important omission in both Mr. Khatana’s
original and amended Personal Information Form (PIF) in that in his PIF, he
stated that after the third time he was attacked “some Ahmadis” visited him.
Orally, he testified that one of the Ahmadis who visited him was Nasir.
5. The Board found another significant omission from Mr.
Khatana’s original and amended PIF. Mr. Khatana testified orally that in
December of 2004, he was confronted by the Imam from his neighborhood Sunni
mosque who accused him of being a non-believer and of giving donations to the
Ahmadi religious headquarters. The Imam threatened Mr. Khatana. The
Board found that this was important information that should have been contained
in Mr. Khatana’s PIF.
6. The Board stated that it was inconsistent for Mr. Khatana to
remain in his home after the December 2004 threat from his Imam. Mr. Khatana
testified that he did not leave his home until January 30, 2005 and that, until
then, he continued to work in Lahore.
7. The Board took note of a report provided by Dr. J. Pilowsky.
The Board held that although Mr. Khatana may have suffered from a major
depressive episode, moderate to severe, and symptoms of post-traumatic stress
disorder as discussed by Dr. Pilowsky, those conditions were not the result of
persecution. The Board found that although it was understandable that Mr. Khatana
was distraught over the death of his wife, she had died of a heart attack and
the Board did not find her death to be related to Mr. Khatana’s PIF narrative
or testimony.
8. The Board gave no weight to an affidavit provided by a
professional acquaintance of Mr. Khatana, Mr. Mahmood Falak, who left Pakistan
in 1999 and who now lives in Canada. The deponent recounted information told
to him by his father-in-law. The Board gave this affidavit no weight because
its content was inconsistent with Mr. Khatana’s oral testimony.
9. The Board had credibility concerns with the medical reports
provided for Mr. Khatana because the date of one report could not be
confirmed; the report was obtained by Mr. Khatana’s brother who was able
to obtain his birth certificate without the need to show any identification
documents; and the medical reports were sent from a city far from where Mr.
Khatana’s brother lives.
THE APPLICABLE STANDARD OF
REVIEW
[4] It
is settled law that the Board’s credibility findings are findings of fact that
should be given great deference by a reviewing court. On judicial review, this
Court may only interfere with such findings if they are patently unreasonable.
A credibility finding is patently unreasonable if it has no basis in the
evidence (see: Canada (Director of Investigation and Research,
Competition Act) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56). In Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour),
[2003] 1 S.C.R. 539 Justice Binnie explained at paragraph 164 that:
However, applying the
more deferential patent unreasonableness standard, a judge should intervene if
persuaded that there is no room for reasonable disagreement as to the decision
maker's failure to comply with the legislative intent. In a sense, like the
correctness standard, the patently unreasonable standard admits only one
answer. A correctness approach means that there is only one proper answer. A
patently unreasonable one means that there could have been many appropriate
answers, but not the one reached by the decision maker.
APPLICATION OF THIS STANDARD
OF REVIEW TO THE DECISION
[5] Mr.
Khatana takes issue with the following credibility findings.
[6] He
submits that the Board erred by misconstruing or ignoring evidence when it
determined that there was a discrepancy with regard to his employment history.
Mr. Khatana also submits that the details of his employment history were
consistently corroborated during oral testimony and that, additionally, the
Board failed to specifically question him on this matter which was, in any
event, peripheral to his claim.
[7] In
my view, as explained below, it was not patently unreasonable for the Board to
find a discrepancy between Mr. Khatana’s original and amended PIF and his oral
testimony with respect to his employment history. Further, his work history is
not peripheral because it relates to when he went into hiding. This is
important to his claim that he is afraid of being persecuted by members of the
SSP and Sunni Muslim extremists.
[8] In
Mr. Khatana’s original PIF and in his “Schedule 1 Background Information form”,
he stated that from January 1985 to April of 2004 he was self-employed in Lahore.
Then, he went into hiding in Sialkot, Pakistan. In his amended PIF, Mr. Khatana
stated that he was self-employed in Lahore until January 30, 2005. Thereafter,
he was unemployed but hiding in Sialkot. During his oral testimony, he stated
that while he was in Sialkot he was working in construction.
[9] Contrary
to Mr. Khatana’s argument that these inconsistencies were not put to him, I
find that during the hearing, the Board expressly dealt with the discrepancies
with respect to his whereabouts and his employment history. (See: page 232
line 5 to page 234 line 49 of the certified tribunal record.)
[10] Mr.
Khatana also argues that the Board erred by importing Canadian standards into
its finding that it was implausible he was perceived to have converted to the
Ahmadi Muslim religion. Mr. Khatana testified as follows in response to a
question from his counsel:
COUNSEL: So,
is it common for people to have Ahmedi friends?
CLAIMANT: I,
of course, obviously there are all kinds of people from all religions who live
together, and people have friends with Ahmedis, and Ahmedis have friends
with Sunnis, which is a common practice. But the problem is my case was
that they believed that I was a convert. [underlining added]
[11] Further,
Mr. Khatana testified that he had only one Ahmadi friend, Nasir, that his
friendship with Nasir lasted, at most, three months, and that Mr. Khatana
attended Sunni mosques frequently up to, and even after, the attacks upon him
began.
[12] Given
the totality of the evidence, in my view it was not patently unreasonable for
the Board to conclude that Sunni Muslims would not perceive Mr. Khatana to be
an Ahmadi Muslim convert. Nor did the Board import Canadian norms in order to
reach this understanding of human behavior.
[13] With
respect to the adverse inference drawn from Mr. Khatana’s failure to mention
that Nasir was one of the Ahmadis who visited him after the third attack, in
his PIF Mr. Khatana stated that after the attack “some Ahmadis” visited him. In
contrast, at the hearing, Mr. Khatana testified that it was Nasir, Nasir’s
brother-in-law and a friend of Nasir who came to visit him. However, Nasir was
Mr. Khatana’s only Ahmadi friend and was the stated cause of Mr. Khatana’s
troubles. Thus, the Board found that Mr. Khatana should have mentioned in his
PIF that Nasir visited him, as opposed to stating merely that “some Ahmadis”
did. Based on this omission, the Board did not believe that Nasir visited Mr.
Khatana after the third attack. While I might not have drawn this inference, given
the importance of Nasir’s role in Mr. Khatana’s continuing persecution, this
was not a patently unreasonable inference.
[14] As
to the next PIF omission, the Board relied upon the failure to mention the
confrontation and the threat from the Imam. In his PIF, Mr. Khatana stated:
I thought that if I stop seeing [Nasir]
may be I will be out of all these religious problems but it never happened
because in December 2004 the local Imam (religious leader) of our area’s main
mosque, has also joined hands with these extremists and they are out to finish
me. That was the most difficult time for me in my own country.
[15] His
oral testimony about the incident with the Imam was a significant matter
because the Imam accused him of converting and of giving money to the Ahmadi
religious headquarters. This confrontation also goes to the heart of Mr.
Khatana’s fear of being targeted by “Sunni Muslim fanatics”. As a result, it
was not patently unreasonable for the Board to find that failing to provide any
information as to the direct threat from the Imam was a serious omission.
[16] Further,
Mr. Khatana submits that the Board erred when it dismissed his wife’s
death as having nothing to do with his claim, when it dismissed the affidavit
of Mr. Mahmood Falak and when it dismissed the medical reports obtained by Mr.
Khatana’s brother.
[17] With
respect to the first concern, in my view the Board’s conclusion that his wife’s
death had nothing to do with his claim was not material to its ultimate
conclusion. The credibility findings that I have dealt with above were
sufficient to support the Board’s finding that Mr. Khatana failed to
adduce sufficient credible and trustworthy evidence to establish his claim.
[18] As
for the affidavit of Mr. Falak, in it he made clear that he had no personal
knowledge of what occurred in Pakistan with respect to Mr. Khatana. He only
knew what was recounted to him by his father-in-law. In the affidavit, Mr.
Falak stated:
6. Sometime
in 2004 – I can’t recall the date – my father in law contacted me and told me
that Mr. Khatana’s business was closed and he could not contact him at home
either. My father in law was worried about him.
7. A
short while late, my father in law contacted me and told me that he had some
more information and apparently Mr. Khatana and his family were being
targeted by Sunni extremists. My father in law mentioned that there had been
attacks on Mr. Khatana and attacks on his property and as a result Mr. Khatana
had run away somewhere.
[19] Given
that Mr. Khatana testified before the Board that he left Lahore for Sialkot in
January of 2005, and his evidence in his amended PIF that he went into hiding
in Sialkot on January 1, 2005 it was not patently unreasonable for the Board to
give no weight to Mr. Falak’s affidavit that implied Mr. Khatana went into
hiding sometime in 2004, or earlier.
[20] With
respect to the medical reports, I agree that the Board may have
misunderstood Mr. Khatana’s testimony as to how his brother obtained a
copy of Mr. Khatana’s birth certificate. Again, however, I am satisfied that
any errors were not material to the Board’s decision.
A FINAL ISSUE OF PROCEDURAL
FAIRNESS
[21] It
is settled law that no pragmatic and functional analysis is required to
determine the appropriate standard of review of an asserted breach of
procedural fairness. Rather, the Court must examine the specific circumstances
of the case and determine whether the tribunal in question adhered to the
principles of procedural fairness.
[22] Mr.
Khatana submits that the Board erred by refusing to hear his explanation as to
why there were problems with his original PIF, and further submits that the
Board’s excessive interruptions discouraged Mr. Khatana and his counsel from
adducing evidence on this point.
[23] I
agree that the Board did intervene to a large extent, after its own examination
of Mr. Khatana, during his counsel’s direct examination. One could
speculate, and it would only be speculation, that the Board’s adherence to
Guideline 7 (particularly in cases such as this where no refugee protection
officer is present during the hearing) has from time to time induced the Board
to "descend into the arena" to
actively question a claimant, even while he or she is being examined by his or
her own counsel. If so, this is an unfortunate development. At all times,
members of the Board must remember their role as an impartial decision-maker.
They must also remember how difficult it is for counsel to object to a Board
member’s conduct without fear of provoking or angering the Board member.
[24] In
the present case, it would have been preferable for the Board member to have
made fewer interventions while counsel was examining her client. However,
having reviewed the transcript I am not satisfied that the Board’s interventions
were such as to constitute a breach of procedural fairness. Ultimately,
counsel was given the opportunity to adduce the evidence she wished.
[25] For
all of these reasons, the application for judicial review will be dismissed.
Counsel posed no question for certification and I agree that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is
dismissed.
“Eleanor R. Dawson”
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