Docket: IMM-7579-13
Citation:
2015 FC 349
Ottawa, Ontario, March 19, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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MALIK WAHEED
AHMAD
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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
I.
Introduction
[1]
This is the judicial review of a decision of the
Refugee Protection Division [RPD] wherein it was held that the Applicant was
neither a Convention refugee nor a person in need of protection. The RPD held
that credibility was the determinative issue.
II.
Background
[2]
The Applicant is a citizen of Pakistan who fears
returning there because he has been persecuted for being of the Ahmadi faith.
Ahmadis consider the Ahmadiyyah sect to be a branch of Islam; however,
Ahmadis are considered from some perspectives to be non-Muslims. The
Applicant’s parents were raised as Ahmadis but due to violence against Ahmadis,
they recanted their faith and raised their children as Sunni. After the
Applicant’s father died, the Applicant resumed contact with his extended family
who had stayed true to the Ahmadi faith. He then began his religious journey
back to the faith.
[3]
In 2007, he travelled to Canada for two months
to visit his daughter (a child from his first marriage) and while there, he
befriended a neighbour, an Ahmadi, who took him to the local mosque. This led
eventually to his conversion at a public ceremony during which he signed an
allegiance document known as a Ba’ait. His second wife and children of that
marriage participated by telephone.
[4]
His daughter in Canada, with whom he was living,
remained steadfastly opposed to the Ahmadi faith and his conversion was hidden
from her until he returned to Pakistan.
[5]
The Applicant’s claim was based on the
consequences of his being “outed” as an Ahmadi by his Canadian resident
daughter and his ex-wife. The consequences included threats, the decline of his
business, the public shunning of the Applicant and his family, assault on the
Applicant and his son and the eventual kidnapping of the Applicant and his son
– both released upon payment of a ransom. Whereupon he travelled to Canada in
July 2012 and filed his refugee claim.
[6]
The RPD, having declared credibility as the
determinative issue, stated that it was apparent throughout the hearing that
there were numerous contradictions, inconsistencies and implausibilities in the
Applicant’s testimony and documentary evidence. The RPD found the
inconsistencies to be central to the claim and held that the Applicant had not
provided reasonable explanations to address these concerns.
[7]
Central to the RPD’s ultimate conclusion is, in
effect, a finding that the Applicant is not Ahmadi (see Decision, paragraph
21).
III.
Analysis
[8]
The standard of review of credibility
determinations has been held to be reasonableness (Uygur v Canada
(Citizenship and Immigration), 2013 FC 752). The decision at issue was a
mix of true credibility findings (believability/untruthfulness) and
implausibility findings. This Court has afforded great deference to credibility
findings but has held that implausibility findings are subject to greater
scrutiny and require greater explanation.
[9]
Central to the legitimacy issue is the
documentary evidence. The Applicant filed an Ahmadi Certificate and an
affidavit from a lawyer specializing in this area confirming that the
Certificate is prima facie proof that the bearer is Ahmadi and detailing
the extensive procedures and rigorous criteria that must be satisfied before a
Certificate will be issued.
[10]
The Applicant also provided donation receipts,
an ID card and a document from the Ahmadiyya Movement in Islam attesting to his
membership.
[11]
At the request of the RPD to adduce
corroborating documentary evidence to substantiate that he had converted in
2007, the Applicant submitted the Ba’ait, a copy of the allegiance document and
post-hearing submissions. This type of document had not been nor needed to be
provided to the RPD in the past in cases where the person was accepted as
Ahmadi.
[12]
In rejecting the claim, the RPD made a number of
findings:
•
his explanation of not knowing the location of
the mosque was unreasonable;
•
the initial documents of membership were
insufficient and unreliable to support that he was a devout or practising
Ahmadi;
•
some of his testimony about actions related to
his faith was unreliable;
•
the lateness of filing his Ba’ait undermined his
credibility and no weight was to be given to an affidavit from the neighbour
because it was signed after the PIF and the neighbour was out of the country at
the time of the hearing;
•
the Applicant would say or do anything to remain
in the country;
•
his evidence of practising his faith in 2006 was
contradictory;
•
he was vague about his practice upon return to
Pakistan;
•
his passport listed his faith as “Islam” not
“Ahmadi”; and
•
because he hid his faith from his daughter, he
was willing and capable of hiding other matters.
[13]
While the Court would normally accord
considerable deference to the RPD’s credibility/implausibility findings,
deference is not a blank cheque. The RPD still must explain the reasons for not
accepting evidence, explain the basis of its implausibility findings, and
address the critical evidence.
[14]
The Court is familiar with the persecution of
Ahmadi Muslims in Pakistan and recently sent back for re-determination RPD
credibility findings. In Anwar v Canada (Citizenship and Immigration), 2014
FC 681 [Anwar], Justice Manson stated at paragraph 22:
[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.
[15]
The implausibility findings in this case are
similar to those in Anwar in that:
•
the RPD rejected as implausible the Applicant’s
description of how his conversion became public knowledge but did not explain
why the description was implausible;
•
the RPD rejected the Applicant’s explanation for
not changing his passport to reflect his faith as “Ahmadi” and left it as
“Islam”. Given that Ahmadis view themselves as Muslim, although the Pakistan
government does not, and given that persecution of Ahmadis is well known in
Pakistan, it was unreasonable to reject the explanation without explaining why
the Applicant’s position was implausible; and
•
the RPD rejected the Applicant’s explanation of
how he kept his conversion hidden from his daughter without explaining why the
explanation was implausible.
[16]
In my view, the most critical error was in
handling the corroborating evidence requested by the RPD. There is no
explanation why the Ba’ait document, entirely consistent with all the other
documentary evidence, was rejected and held to be a mark of lack of
credibility. At no time does the RPD suggest that the documents, and this
critical document in particular, is false, fraudulent, a forgery or in any way
not valid.
[17]
In the face of valid documents attesting to the
Applicant’s Ahmadi faith, the RPD offers no reasonable basis for its overall
conclusion that he is not Ahmadi. It fails to address this central evidence
which aside from being unreasonable is a legal error.
IV.
Conclusion
[18]
For these reasons, this judicial review will be
granted, the decision will be quashed and the matter referred back to the RPD
for a new determination by another member.
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