Date:
20130927
Docket:
IMM-9590-12
Citation:
2013 FC 992
Ottawa, Ontario,
September 27, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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TAJARAF HUSSAIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, of a decision that the applicant
was not a Convention refugee or a protected person.
Background
[2]
Mr.
Hussain was born in 1977 in Pakistan. He is a farmer with a grade eight
education. He is a Sunni Muslim but formed close associations with the Ahmadi
community. In early 2010, people in his area started boycotting him socially for
that reason, and then in March 2010 he began receiving threatening phone calls
from the local Taliban and some other Sunni fanatics. He reported this to the
police but they did nothing.
[3]
On
May 20, 2010, a mob of Sunni fanatics attacked his house, beat him up, and
looted the house. He was warned not to associate with Ahmadis otherwise he
would be killed. He reported this to the police as well but again they did
nothing. On June 26, 2010, he was attacked by Sunni fanatics on the way home
from work. He was injured and sought medical aid at a local clinic. He reported
this too to the police but they still did nothing. From July to August 2010 he
went into hiding at an Ahmadi friend’s house. Then he thought perhaps the
fanatics had forgotten about him and went back to his own area, but the
threatening phone calls from the Taliban started up again. Fearing that he
would be killed, he applied for a visitor visa to Canada. He did not fear to
leave his pregnant wife and his daughter behind, because the Taliban do not
attack women and children.
[4]
On
September 15, 2010, while he waited for the visa, the Taliban telephoned and
said that they would cut off his head when they caught him on the road. He left
Pakistan on September 24, 2010. His wife continues to receive threatening
phone calls from the Taliban. She gave birth to their second child, a son, a
week after he left Pakistan.
Impugned
decision
[5]
The
Refugee Protection Division [RPD] found on August 23, 2012, that Mr. Hussain
was not a Convention refugee. In the reasons for decision, the RPD panel member
noted that the determinative issues were credibility and whether there was an
objective basis for the fear of persecution.
[6]
The
panel member observed that testimony given under oath is presumed to be true
unless there is a valid reason to doubt its truthfulness. It also observed that
a panel should be satisfied that a story is probably, and not just possibly,
true. The member then noted that although the claimant was represented by
counsel, and the Personal Information Form [PIF] instructs claimants to provide
documentary evidence to establish their claims, he provided no persuasive
documentation of his association with an Ahmadi group in Pakistan. He did not have receipts for the donations he claimed to have made to this group.
The one affidavit he supplied was written by a cousin of his friend (and
therefore an interested person), not by the group in Pakistan, and did not
indicate that the writer was an Ahmadi or held any position entitling him to
speak for Ahmadis. Post-hearing evidence was also provided by the Ahmadi group
in Canada, not the one in Pakistan. Without documentary evidence, the RPD was
not persuaded that the claimant was involved with the Ahmadi group in Pakistan and therefore did not believe that he was targeted on that basis.
[7]
There
was little or no persuasive documentary evidence to show that the claimant’s
wife and children had been targeted since his departure, although he claimed
that threats to harm them were issued while he was still in Pakistan. He provided no persuasive documentary evidence to back his claim that Sunni
Muslim fanatics and the Taliban do not target women and children. His
explanation for coming out of hiding after two months, that he thought he had
been forgotten, was not reasonable, and indicated a lack of subjective fear of
persecution.
[8]
The
medical report provided did not indicate how he had sustained injuries. The RPD
found that on a balance of probabilities the injuries were a result of common
criminality.
[9]
Based
on the totality of the evidence, the RPD found that the claimant was not a
credible witness in areas central and material to his claim. Since it had found
that he lacked a subjective fear of persecution and since his claimed fear of
persecution had no objective basis, there was less than a mere possibility that
he would be persecuted if returned to Pakistan. Equally, he did not face a risk
to his life or a risk of cruel and unusual treatment or punishment or a danger
of being tortured.
Issues
[10]
The
applicant proposes the following four issues:
a. Did
the RPD make an unreasonable finding of fact in finding that the post-hearing
documentary evidence was from the Ahmadi group in Canada as opposed to the one
in Pakistan?
b. Did the
RPD make an unreasonable finding of fact in finding that the applicant failed
to provide receipts for the donations he made to the Ahmadi community in Pakistan?
c. Did
the RPD make an unreasonable finding of fact in finding that the affidavit
which the applicant provided did not indicate that the writer was a member of
the Ahmadi community?
d. Did
the RPD err in law by failing to give any weight to the affidavit submitted by
the applicant because it was written by his friend’s cousin?
[11]
I
will summarise these as one issue: did the RPD make unreasonable findings of
fact and of mixed fact and law?
Standard of
review
[12]
It
was agreed by the parties that the standard of review for challenging findings
of fact and mixed fact and law is one of reasonableness. See generally for
instance Hussaini v Canada (MCI), 2012 FC 239 at paras 11-14:
11 The
Supreme Court of Canada has held in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
that there are only two standards of review: correctness for questions of law
and reasonableness involving questions of mixed fact and law and fact. The
Supreme Court has also held that where the standard of review has been
previously determined, a standard of review analysis need not be repeated: Dunsmuir at para 62.
12 Credibility
findings are fact based. They are to be reviewed on a reasonableness standard
and are entitled to a high degree of deference: Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR 315 (FCA) at para 4.
13 Recently
the Supreme Court of Canada has affirmed that a review of the adequacy of
reasons must be done in the analysis of whether the decision as a whole, both
the reasons and the result, is reasonable: Newfoundland
& Labrador Nurses Union v Newfoundland & Labrador (Treasury panel),
2011 SCC 62, 208 ACWS (3d) 435 at para 22.
14 Accordingly,
the appropriate standard of review of whether the Officer's reasons with
respect to credibility were adequate is reasonableness. Similarly, the
appropriate standard
of review of the Officer's reasons with respect to the question of
Convention refugee
status is also reasonableness.
Analysis
[13]
The
applicant argues that the RPD has made numerous findings of fact related to the
applicant’s credibility and the RPD’s conclusion that the applicant failed to
establish evidence of his involvement in the Ahmadi community in Pakistan. He argues these findings were capriciously made and would either individually or
cumulatively give rise to a reviewable error. I agree with this submission that
errors have occurred stemming from the misapprehension of the evidence such
that the decision must be set aside.
[14]
Principally,
the error relates to an admitted misapprehension of important documents as not
originating from the financial secretary of the Ahmadi Mosque in Pakistan. The RPD rejected these documents, believing that they originated from Toronto, and this resulted in significant adverse credibility findings against the
applicant.
[15]
The
RPD’s failure to properly identify the source of these documents and the
adverse consequences are described at paragraph 14 of its reasons, as follows
The post-hearing documentary evidence [a letter
bearing the Mosque’s letterhead] provided is from the Ahmadi group in Canada. That document also fails to mention anything about the claimant’s involvement with
the Ahmadi group in Pakistan. Without persuasive documentary evidence, the
Panel is not persuaded to believe that the claimant was involved with the Ahmadi
group in Pakistan and as a result the panel disbelieves that he was targeted
by the Taliban group and the Sunni Moslem fanatics in Pakistan as alleged.
[Emphasis added]
[16]
It
is clear that the RPD relied heavily upon the supposed absence of documentary
evidence from Pakistan supporting the applicant’s involvement with the Ahmadi
group. The applicant’s apparent failure to establish that foundation led to the
disbelief that he was being targeted, a point which was an essential causative
fact underpinning his narrative.
[17]
In
addition, the RPD erred in law in failing to give any weight to an unsworn affidavit
submitted by the applicant. The RPD’s explanation is as follows at paragraph 13
of its reasons:
The panel does not give any weight to the affidavit
from his friend’s cousin since it is from a person having an interest in the
outcome of the claimant’s refugee claim. The claimant was instructed in
question 31 in his PIF to produce documentary evidence to establish his claim.
At the hearing he was represented by counsel and, as such, the panel expected
to see documentary evidence from the Pakistani Ahmadi group to establish his
involvement with the group.
[18]
The
RPD on this second occasion did not recognize that the “friend of the cousin”
was the same financial secretary at the Mosque who had provided the evidence on
financial contributions and the applicant’s close relation to the Ahmadi
community. As a result, the RPD once again misstated that the applicant had
failed to provide corroborating evidence of his religious practices in Pakistan from someone residing there who could speak to this issue. There were other issues
raised by the applicant with respect to the RPD’s reasoning in paragraph 13 set
out above, but it is unnecessary to consider them given the complete
misapprehension concerning the affidavit’s origin.
[19]
For
these reasons, the RPD’s credibility assessment denying the applicant’s claims
of religious persecution was unreasonable and as it was central to its
decision, I will allow the application for judicial review.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted.
“Peter Annis”
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