Federal Court Decisions

Date: 20050615

Docket: IMM-1970-04

Citation: 2005 FC 857

Ottawa, Ontario, this 15th day of June, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

SYED NOUMAN ALI &

MARIUM HASAN ZAIDI

Applicants

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]    This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 29, 2004, wherein the Board determined that the applicants were not Convention refugees or persons in need of protection.

[2]    The applicants requested that the decision of the Board be quashed and sent back to a differently constituted panel for redetermination.

Background

[3]    The applicant, Syed Nouman Ali (the "male applicant") and his wife, Marium Hasan Zaidi (the "female applicant"), are citizens of Pakistan. They both fear persecution in Pakistan on grounds of their religious practices. The male applicant is a Sunni and his wife is a Shia Muslim. They met at the school that the male applicant was teaching at in December 1999 and they eloped in February 2001. The male applicant's father-in-law, a prominent Shia and an influential executive member of the Tehreek-e-Jafaria, was opposed to the marriage. The father-in-law had a fatwa issued, denouncing them both and threatening to kill them both. They began to receive threats at home and at work.

[4]    They claim that it was difficult for them to leave the house together without having to look over their shoulders. They say that they were relatively protected from the Shia persecutors as they lived in a Sunni dominated neighbourhood, although the constant teasing and taunting began to take a toll on their lives. Occasionally Shia militants would drive by their house and throw stones. They called the police several times and were told that they had brought their problems onto themselves.

[5]    After the female applicant became pregnant, things became worse; she no longer left the house. The male applicant also claimed that Shia processions even targeted the school he worked at, often breaking windows. There were also derogatory slurs written on the school walls. The school called the police, but they were not interested in helping.

[6]    The applicants said that they feared that their unborn child would have to go through the same things they were going through and therefore decided to leave for Canada. They did not apply for passports, but instead hired an agent to avoid having the militants alerted to the fact that they were planning to leave. They arrived in Canada on April 25, 2003 and had their documents taken from them by the agent. They claimed refugee status five days later after consulting a lawyer. They claim to have had no knowledge that they could claim refugee status and therefore did not do it at the airport at their arrival. Their son was born prematurely, shortly after their arrival.

Reasons of the Board

[7]    The Board member found that the applicants "had not fulfilled the requirements of Rule 7 of the IRPA, which requires they provide documents to support the material aspects of their claim or a reasonable explanation for why those documents are not available". As a result, he found that the claim failed pursuant to both sections 96 and 97 of IRPA.

[8]    The Board conducted an analysis of all pieces of documentary evidence before him and concluded that not one of them placed the applicant and his wife in Pakistan after February 2001, the time the applicants submitted they were subjected to persecution for their religious affiliations.

[9]    The applicants presented birth certificates which the Board found were either both forgeries or at least one of them was, and further found that the applicants had knowingly submitted fraudulent documents. Both certificates were issued on August 3, 1999, although the applicants did not meet until December of 1999. When the applicants were asked how both documents could be issued on the same day, and from the same place even though the applicants did not know each other, the male applicant said it was fate. Further, even though the certificates were issued on that date, he had not picked his copy up until 2001. His wife claimed that she had her brother arrange for her copy and therefore she did not remember the exact date it was obtained.

[10]                        The Board also indicated that it was highly implausible that the applicants had no financial records of the male applicant's transfer of land and no bank deposit. The Board commented that the applicants had made no effort to obtain any of these documents even after arrival, although the male applicant was able to obtain his national identity card. The Board continued by saying "the fact no effort was made to obtain documents that would place him in Pakistan at times material to his claim and the fact that the claimants submitted a document they knew was false are the reasons why I reject counsel's application for adjournment so that additional documents, particularly around the sale of the land might be procured."

[11]                        The Board continued its analysis with the male applicant's driver's license. The Board pointed to the renewal of the driver's license which, if accepted, would only place the male applicant in Pakistan in 2001. The Board did not accept that the renewal even took place, stating that the stamps that should have been affixed at the time of the renewal, were not present. The Board also concluded that the receipt which the male applicant was purporting indicated the license was renewed in 2001, could have belonged to anyone given that it had no date on it. The Board concluded with "without making a negative credibility assessment based on the difficulties I have with the driver's license, I still give the driver's license insufficient weight to place the claimants in Pakistan at the times material to their claim, that is up to April 2003."

[12]                        Two other pieces of documentary evidence were submitted by the male applicant on behalf of his employer, one dated May 28, 1997 and the other March 1, 2003. The letter dated in 1997 clearly indicated his monthly salary and his conditions of employment. The Board accepted this one as genuine. The letter dated in 2003 would be the only piece of evidence that would place the applicant in Pakistan. The Board stated "I am asked to accept that the school paid him in cash. I am asked to accept that a well-educated computer teacher would not have a bank account in Pakistan, and that this individual would have no financial records from Pakistan. I quite frankly find this to be implausible. . . .and so I give the second letter insufficient weight to establish on its own that the claimant was in Pakistan at the time which he claims,"

Issues

[13]                        The issues are as follows:

1.          Was it patently unreasonable for the Board to find that the applicants had not proven their identity?

2.          Did the Board member breach any rules of natural justice by not allowing the

applicants to tell their story?

Applicant's Submissions

[14]                        The applicants submitted that the Board made an unreasonable finding of fact when it concluded that the male applicant's driver's license was out of date. The Board concluded that there was a lack of a renewal stamp, which meant that the applicants had not been in Pakistan at the time they alleged.

[15]                        The Board spoke of a receipt which was with the driver's license and commented on the lack of a stamp during the claimed renewal in 2001. The Board commented that it was curious that the stamps had been affixed when the male applicant applied for his license the first time, but had not been for the renewal. The Board concluded by saying "the missing stamps cause me to find, on a balance of probabilities, the license was not renewed in 2001 as claimed."

[16]                        The Board also commented that the receipt for the renewal was lacking a date. When confronted with the fact that there was no area on the receipt which indicated that a date should be affixed, the Board agreed but continued by saying "even so the reality is that it could belong to anyone's receipt simply affixed to this driver's license." The Board finally stated "without making a negative credibility assessment based on difficulties I have with the driver's license, I still give the driver's license insufficient weight to place the claimants in Pakistan at the times material to their claim, that is up to April 2003."

[17]                        The applicants also submitted that there was a denial of procedural justice when the Board failed to make further inquiries about the documentation that had been submitted by the applicants to support their claim. The applicants more specifically submitted that the Board erred in not allowing the applicants the full opportunity to explain the so-called discrepancies and/or implausibilities. The Board should have verified the documents by contacting the issuing agencies to verify their authencity.

[18]                        The applicants further submitted that the Board erred in concluding that the letters of employment presented by the applicants were fabricated. These letters placed the applicants in Pakistan at the critical time the events took place. The Board simply dismissed the letters because it felt that it was implausible that a teacher would be paid in cash. The applicants gave a plausible explanation, which the Board chose to ignore; employees who were making more than 10,000 rupees were paid by cheque, whereas employees who made less than that, were paid in cash (the applicant made 8,000 rupees).

Respondent's Submissions

[19]                        The respondent submitted that the applicants had failed to raise a serious issue indicating that the Board's findings that insufficient credible and trustworthy evidence was presented by the applicants, was patently unreasonable. In the present case, the Board provided numerous reasons why it found that the applicants' evidence was implausible; for example, the birth certificate that was issued on the same day at the same place before the applicants had met each other. The Board is in a position to find an applicant's evidence lacking when the applicant fails to submit supporting evidence that could have been obtained.

[20]                        The respondent also submitted that the applicants have not raised a serious issue regarding the Board's assessment of the documents they did submit.

Relevant Statutory Provisions

[21]                        Sections 96, 97 and 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") state:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. 106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer.