Date: 20130318
Docket: IMM-7121-12
Citation: 2013 FC 280
Ottawa, Ontario, March 18, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
|
|
SHAH,
MUTAHIR
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The Applicant, Mr. Mutahir Shah, is a citizen of Pakistan and was a successful businessman in that country. He came to Canada in 2010, claiming protection because of his alleged fear of the Taliban who, he claims,
extorted and attacked him. In a decision dated June 28, 2012, a panel of
the Immigration and Refugee Board, Refugee Protection Division (the Board)
determined that he was neither a Convention refugee pursuant to s. 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) nor a person in
need of protection pursuant to s. 97(1) of IRPA. The Board’s
decision is premised on a global credibility finding that “the claimant is
lacking in credibility generally and that this lack of credibility extends to
all of the claimant’s relevant testimony”.
[2]
The Applicant seeks to overturn the decision.
[3]
The only issue for determination is whether the decision
that the Applicant lacked credibility was reasonable. For the reasons that
follow, I conclude that there are no errors in the decision that warrant the
Court’s intervention; “the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Alleged errors in decision
[4]
The Applicant takes issue with a number of the
inconsistencies mentioned by the Board in its decision and the inferences that
were drawn from these alleged inconsistencies. Specifically, the Applicant
argues that the inconsistencies were minor and, in some cases, were made in
error.
[5]
I agree with the Applicant that, if the Board misstates
evidence material to an analysis of credibility, the decision may be
unreasonable (see, for example, Owusu-Ansah v Canada (Minister of Employment
and Immigration) (1989), 8 Imm LR (2d) 106 at 113, 98 NR 312 (FCA)).
However, it is generally open to the Board to draw negative inferences
regarding a claimant’s credibility on the basis of inconsistencies in the
claimant’s evidence at different stages of the refugee determination process;
this includes evidence given at port of entry, the claimant’s Personal
Information Form (PIF) and testimony at the hearing (Eustace v Canada
(Minister of Citizenship and Immigration), 2005 FC 1553 at paras 6, 10,
[2005] FCJ No 1929; Zaloshnja v Canada (Minister of Citizenship and
Immigration), 2003 FCT 206 at para 6, [2003] FCJ No 272).
[6]
The Board’s credibility finding was based on many
inconsistencies identified in the Applicant’s evidence. These inconsistencies
dealt with issues material to the Applicant’s claim, relating to the
Applicant’s persecution by the Taliban and precautions he took in his fear of
the Taliban. Many of these inconsistencies might, on their own, be considered
minor. However, cumulatively, they point to a story that is simply not true. In
my view, it was open to the Board to consider these inconsistencies
cumulatively and form a global, adverse credibility finding.
[7]
The Applicant asserts that the Board should not have drawn
a negative inference from the fact that the Applicant initially could not
remember when the incident at the gas station took place. I disagree. According
to the Applicant, the Taliban approached a security guard at a gas station
asking about the Applicant. This was an event that was significant to the
Applicant’s claim – according to his PIF, he took his children out of school at
this time because of his fear. Given the significance of this event, the fact
that the Applicant had difficulty remembering when it occurred could be a
reasonable basis for the Board to evaluate credibility.
[8]
Further, it was reasonable for the Board to draw a negative
inference from inconsistencies in the Applicant’s testimony regarding when he
took his children out of school. According to his PIF, the Applicant took his
children out of school around April 2009 after he had been told that “someone
had inquired about [the Applicant]”. During his oral testimony, the Applicant
stated that he pulled the children from school after he had been shot several
months later. These events are significant to the Applicant’s account of
persecution and demonstrate great fear on the part of the Applicant. It was
open to the Board to draw a negative inference regarding his credibility.
[9]
The Applicant also argues that the Board’s finding that the
Applicant had lived in Karachi was made in error. I agree that there are some
transcript references to brief stays in Karachi as he moved his family to that
city. However, when read in its entirety, the Applicant’s testimony on this
question was far from clear. Even if the Board erred on this point, this
finding did not play a material role in the Board’s decision.
[10]
Other alleged errors the Applicant advanced are either
immaterial to the overall finding or are not errors but, rather, are
alternative interpretations of the evidence before the Board.
Corroborating Documents
[11]
The Applicant objects to the Board’s treatment of certain
of the evidence before it.
(a) Medical
Evidence from Dr. Block and Dr. Stall
[12]
The Applicant presented two medical reports – one from Dr.
Block, a medical doctor, and one from Dr. Stall, a psychiatrist.
[13]
It the role of the Board to evaluate medical reports and
assign weight to them.
[14]
Dr. Block’s physician report, dated August 3, 2011,
contains a recitation of the Applicant’s account of events and the doctor’s
observations of the Applicant’s scars and dental injuries. Dr. Block concluded
that, “Mr. Shah bears physical scars consistent with his history of gunshot
wounds and physical assault”.
[15]
Dr. Block’s opinion that the scars were consistent with the
Applicant’s history does not necessarily corroborate that the Applicant
received injuries as he claims. The Board’s unwillingness to place weight on
this report was not unreasonable, taking into account the Board’s misgivings
about the Applicant’s testimony, the fact that much of the report repeats the
Applicant’s account of events and the possibility that these injuries were
incurred in other ways..
[16]
The Board also had before it the psychiatric report prepared
by Dr. Stall, dated April 29, 2011. As noted by the Board, psychological
evidence is not a “cure-all” for the deficiencies in a claimant’s testimony
(see, for example, Arizaj v Canada (Minister of Citizenship and Immigration),
2008 FC 774 at para 26, [2008] FCJ No 978). Dr. Stall’s opinion is based only
on an assessment interview. No objective testing was performed. There is no
evidence that the psychiatric conditions noted in the report originated from
persecution as described by the Applicant. Further, the report appears to be
entirely based on the Applicant’s own statements, and the Applicant was not
credible.
(b) Medical
Note from Pakistan
[17]
The Board’s treatment of an illegible Pakistani medical
note was also reasonable. An examination of this document supports the Board’s
conclusion that it is generally illegible. The first line may read, as the
Applicant asserts, “wound…leg”, and the date is clearly August 16, 2009.
However, this does not establish the cause of the injuries or details about the
incident with of any degree of specificity. Further, counsel for the Applicant
did not explain what the medical note said at the hearing, when the Board
member and the interpreter explained that they could not read it. The Board’s
treatment of this document is reasonable.
(c) Brother’s
Letter
[18]
The Board concluded that a letter from the Applicant’s
brother should receive little weight since it was unclear when it received and
there was no way to know where the letter originated. Although there is a stamp
on the letter which could be some sort of “security feature” it is impossible
to read it or the writing around it.
[19]
It is open to the Board to assign greater or lesser weight
to evidence based on its source and any existing corroboration (Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067
at paras 31-33, 74 Imm LR (3d) 306 [Ferguson]). All of this evidence
appears to be hearsay – a description of telephone calls or information about
the experiences of the Applicant’s family, likely obtained from the Applicant
and his niece. Therefore, the Board’s analysis of the letter is reasonable.
(d) FIR
[20]
The Board rejected a translation of a First Information
Report (FIR), on the basis that no original of the document was produced and no
reasonable explanation was provided by the Applicant for his failure to obtain
the original prior to the hearing.
[21]
As noted in Ferguson, above, the Board is entitled
to take into account the source of the evidence when assigning weight to it. It
was open to the Board to assign no weight to the FIR, given that its
genuineness is questionable based on the lack of supporting documentation.
Under these circumstances, the Board was under no obligation to consider
corroborating aspects of the document.
Applicant’s Mental State and Lack of Sophistication
[22]
Lastly, the Applicant argues that the Board failed to have
regard to the mental state of the Applicant and his lack of sophistication. I
do not agree.
[23]
The Board acknowledged the mental state of the Applicant
and considered his ability to testify. In this context, the Board cited the
opinion of Dr. Stall, who observed that the Applicant “responded to questions
in a logical, coherent manner” and “[t]here was no evidence of a disorder of
thought form or content”.
[24]
I am satisfied that the Board had regard to the personal
situation and characteristics of the Applicant. There is no reviewable error.
Conclusion
[25]
The decision, as a whole, falls within the within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
[26]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith
A. Snider”
Email this Content