Docket: IMM-3281-13
Citation:
2014 FC 681
Ottawa, Ontario, July 11, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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LATIF AHMAD ANWAR
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of Pasquale Fiorino, a member of the Refugee Protection Division
of the Immigration and Refugee Protection Board [the Board], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. The Board dismissed the Applicant’s claim for refugee
protection, concluding that he was not a convention refugee or person in need
of protection under sections 96 and 97 of the Act.
I.
Issues
[2]
The issues in the present application are as
follows:
A.
Did the Board breach its duty of procedural
fairness to the Applicant?
B.
Was the Board’s decision unreasonable with
respect to its finding that the Applicant is not Ahmadi?
II.
Background
[3]
The Applicant is a citizen of Pakistan. He claims to be a member of the Ahmadiyya religion. Ahmadiyya is an Islamic religious
movement.
[4]
In his Personal Information Form [PIF]
narrative, the Applicant alleges several ways in which he was persecuted as an
Ahmadi in Pakistan. In 1974, the Pakistan government declared Ahmadis to be
non-muslims. In 1984, the government prohibited most Ahmadi religious
practices.
[5]
The Applicant alleges several instances of
personalized persecution. In 1953, there were persistent anti-Ahmadi riots in
the neighbourhood where the Applicant lived. The Applicant and his family did
not leave their house during these riots.
[6]
After the riots ended, local extremists began to
harass the Applicant and his family. The Applicant’s father was threatened. The
Applicant began practicing his religion in secret.
[7]
From 1966 onward, the Applicant lived in Karachi. He became a teacher. His colleagues were aware of his religion but he did not
reveal it to anyone in his neighbourhood. He encouraged his children not to
reveal their religion to anyone. Other than a few negative comments about
Ahmadis, this arrangement caused no problems for the Applicant until 2011.
[8]
In October, 2011, the Applicant was accused by a
neighbour of being Ahmadi. His neighbours began to verbally abuse him.
[9]
In December, 2011, a man knocked on the
Applicant’s door and asked him to open it. The Applicant refused, as he did not
recognize the man’s voice. The man told the Applicant that he would “be back to deal with him” and that the Applicant could
not escape.
[10]
In January and February, 2012, garbage was
dumped in front of the Applicant’s home and anti-Ahmadi graffiti appeared on
the walls of his home. In February, 2012, the Applicant received two
threatening phone calls. In these calls he was threatened with death unless he
recanted his Ahmadi beliefs. He could not identify the caller and did not
contact the police, because he believed they would not act on his concerns. In
fact, he believed that the police would cause him trouble because of his faith.
The Applicant’s health condition deteriorated as a result of these problems.
[11]
Later in February, 2012, the Applicant overheard
some children outside his home state that he would be “cut
up piece by piece like a goat”. Based on this, he assumed that adults in
his neighbourhood were making similar comments.
[12]
The Applicant became fearful for his safety and
decided to leave Pakistan. He resigned his teaching job. The Applicant states
that this was a difficult decision as he was paid well and enjoyed his job.
[13]
The Applicant left Pakistan on March 6, 2012,
and made a claim for refugee protection in Canada.
[14]
The Board issued a thirteen paragraph decision
in which the determinative issue was credibility. The substance of the Board’s
decision was as follows:
…I find it implausible that the claimant was
able to work as an educator in public educational institutions for nearly fifty
years, even being awarded the position of principal, and, with his co-workers
being aware of his Ahmadi faith, he did not suffer any form of discrimination
or persecution in any of the educational institutions where he was employed. He
was employed as an educator for fifty years, without suffering any form of
persecution, and a month after his retirement he comes to Canada and claims refugee protection. I find it implausible that, as a member of the Ahmadi faith,
he did not suffer any threats or discrimination during his fifty years as an
educator, especially since the claimant acknowledged that his co-workers were
aware of his faith. I find, on a balance of probabilities, that the claimant
has produced insufficient evidence to demonstrate that he is a member of the
Ahmadi faith…Given this credibility finding, I give no evidentiary weight to
the documentation submitted which alleges that the claimant was a member of the
Ahmadi faith in Pakistan.
III.
Standard of Review
[15]
The standard of review for procedural fairness
is correctness (Lai v Canada (Minister of Citizenship and Immigration),
2005 FCA 125, at para 51) and is reasonableness with respect to the finding
that the Applicant is not Ahmadi (Dunsmuir v New Brunswick, 2008 SCC 9,
at paras 47, 51).
IV.
Analysis
A.
Did the Board breach its duty of procedural
fairness to the Applicant?
[16]
The Applicant argues that he was not given
notice that the Applicant’s religious identity was an issue before the Board.
Given that this issue was determinative, the Board erred (Kane v Board of
Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at 1114).
[17]
While compelling arguments were made by
Applicant’s counsel on this front, I do not find that there was a breach of
procedural fairness. The Applicant was on notice that credibility was an issue,
and was represented by counsel. His religious identity was decided on the basis
of credibility. There is nothing in the Board’s decision to suggest that the
thrust of the Board’s questioning was exclusively focussed on a distinct aspect
of credibility unrelated to his religious identity. The Applicant has not
brought a transcript of the hearing into evidence pursuant to Rule 317 of the Federal
Courts Rules, SOR/98-106. Without this evidence, I am not satisfied that
there was a breach of procedural fairness.
B.
Was the Board’s decision with respect to its
finding that the Applicant is not Ahmadi?
[18]
The Applicant notes that the substance of the
Board’s decision was a single-paragraph conclusion that the Applicant was not
Ahmadi because it was implausible that he could work for fifty years without
suffering religious persecution. The Applicant argues that this reasoning was
insufficient and ignored the Applicant’s evidence.
[19]
The Applicant also argues that the Board erred
by ignoring evidence of the Applicant’s religious identity (Ahmed v Canada (Minister of Citizenship and Immigration), IMM-8166, June 6, 2011 [Ahmed]).
This evidence includes twenty donation receipts to Ahmadi organizations in Pakistan and Canada dating back to 2006, the Applicant’s Ahmadi Identification Card, and Ahmadi
badges owned by the Applicant for his participation in Ahmadi conventions in Canada, England, the United States, and Italy from 2005 to 2011.
[20]
Moreover, the Board failed to consider the
Applicant’s certification as a member of the Ahmadiyya Movement in Islam, which
confirms that the Applicant is Ahmadi.
[21]
The sole basis for the Board’s negative
credibility finding was an implausibility finding: the Board found that it was
implausible that the Applicant did not face prior persecution. Based on this,
the Board did not examine the evidence of the Applicant or the country
condition information.
[22]
While it may seem implausible that the Applicant
did not face persecution during his career as a teacher, implausibility
findings are subject to special requirements on the reasonableness standard. In
the context of this application, the Board’s exclusive reliance on this
implausibility finding is unreasonable. As
Justice Simon Noël decided in Ansar v Canada (Minister of Citizenship and
Immigration), 2011 FC 1152:
17 Initially, an important distinction must be
made between the RPD's credibility findings and its conclusion that the threat
posed by Mr. Choudhry was "implausible". The panel must be mindful of
the use of this term and its implications. Implausibility findings must only be
made "in the clearest of cases" (Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7, [2001] F.C.J. No.
1131). The panel's inferences must be reasonable and its reasons set out in
clear and unmistakable terms (R.K.L. v Canada (Minister of Citizenship and
Immigration), 2003 FCT 116 at para 9, [2003] F.C.J. No. 162). As Justice
Richard Mosley explains in Santos v. Canada (Minister of Citizenship
& Immigration), 2004 FC 937 (F.C.) at para 15, [2004] F.C.J. No. 1149
(F.C.):
[P]lausibility findings involve a
distinct reasoning process from findings of credibility and can be influenced
by cultural assumptions or misunderstandings. Therefore, implausibility
determinations must be based on clear evidence, as well as a clear
rationalization process supporting the Board's inferences, and should refer to
relevant evidence which could potentially refute such conclusions.
[23]
In this case, the Board acknowledges that he did
not examine any of the Applicant’s supporting evidence that could refute his
plausibility finding. Likewise, he did not cite any documentary evidence which
supports his plausibility finding. His analysis as a whole effectively
constituted a single paragraph. The reasons, together with the evidence on
record, do not demonstrate that determining this application on the basis of
this plausibility finding demonstrates justification or transparency within the
decision-making process.
[24]
Finally, while it is not determinative of this
application, I agree with the Applicant that Ahmed supports his claim.
Contrary to the Respondent’s argument, the board in Ahmed ignored all
evidence which would support the fact that the applicant was Ahmadi, not just
his passport declaration of faith:
…the Board erred in concluding that he had
failed to provide documents to corroborate his religious identity. In finding
that there was no “credible documentation from Pakistan attesting to the
Applicant’s identity as an Ahmadi”, the Board overlooked the Applicant’s
passport which lists his religion as Ahmadi. While the letter from the
“Management Office of the Bahashti cemetery” may not have been evidence of
persecution of the Applicant, it certainly is directed at his identity as
Ahmadi. The Applicant also produced copies of receipts for donations made in
years going back to 1987. Moreover, the Applicant tendered a document attesting
to the prominent position that he holds as a leader amongst elders in Canada. In the face of this evidence, the Board’s conclusion that the Applicant had not
tendered evidence to establish that he was of Ahmadi faith is perverse and
unreasonable.
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