Date: 20050502
Docket: IMM-3324-04
Citation: 2005 FC 602
BETWEEN:
ABDUL JABAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] Mr. Jabar was denied refugee status and protection by the Refugee Protection Division of the Immigration and Refugee Board (the Panel) principally on the grounds of lack of credibility and implausibility. Mr. Jabar has sought judicial review of the Panel's decision.
[2] The Applicant says that the Panel erred in four critical areas:
a) it failed to confront the Applicant about his failure to claim refugee status while in transit through the United Kingdom;
b) it took an unreasonable position with respect to alleged delay in claiming status in Canada;
c) it misstated evidence upon which it found both lack of credibility and lack of plausibility;
d) it failed to conduct a reasonable assessment of both the subjective and objective elements of the Applicant's fear of persecution.
FACTS
[3] The Applicant is a Shia Muslim and was a 38 year old citizen of Pakistan. He claimed that he comes from a well-known, influential and devout Shia family in his area of Pakistan.
[4] He says that he was very active in local the Shia community and was nominated as General Secretary of his Imam Bargah in April 2001. In that capacity, he was responsible for such matters as administration, arranging Muharram activities, Majlis, and fund raising. He was also well known in his local and nearby communities.
[5] The Applicant alleges that, as a result of his profile and activities, he became a target for the Sipah-e-Sahaba (SS).
[6] For purposes of his refugee application, he claimed the following incidents are the basis for his fear of persecution:
- in June 2001, he was assaulted by four members of the SS. He reported the attack to police who refused to file an incident report;
- in November 2001, he was attacked and beaten by the SS. While he remained in hospital, his brother reported the attack to police who again refused to register his case;
- in March 2002, he was attacked by SS members who threatened to kill him if he did not stop his activities;
- again in August 2002, SS members attacked the Applicant's home, while he was away, killed his brother and warned the Applicant's wife that her husband was on their hit list.
[7] After his brother's murder, the police took no action. The Applicant moved to Lahore, left Pakistan for Canada (via London) on February 14, 2003.
[8] This was not the first effort by the Applicant to enter Canada. In 1996, he had been falsely accused of involvement in the kidnapping of a Sunni woman. With the help of an agent he fled to the USA and travelled to the Canadian border where he declared his intention to seek refugee status. He was told to return 3 days later. In the intervening period he was caught by the American INS. Pending "clearance" from INS, he returned to New York where he was informed that the people responsible for the kidnapping had been caught. He returned to Pakistan.
[9] On his next effort to enter Canada he transited to the UK for a day. He arrived in Canada on a Friday (February 14, 2003), presented himself to Canadian immigration for refugee purposes on the Monday. (He had been advised by his agent not to claim for refugee protection at the airport). Told to return 3 days later, he made his refugee claim on Thursday, February 20, 2003.
[10] The Panel held that credibility was the key issue. In dealing with the issue of subjective fear, the Panel drew an adverse inference from his failure to file for refugee protection while transiting the UK. It also drew an adverse inference from the delay in filing in Canada.
[11] The Panel held that the objective element of fear of persecution was the determinative issue. The Panel found that his story was implausible; it did not accept his explanation for being a target of the SS.
[12] Of particular importance is the Panel's finding that documentary evidence presented by the Applicant was dated after February 2003 when the Applicant had arrived in Canada.
REASONS
[13] As the principal findings are credibility, the standard of review is patent unreasonableness except in respect of aspects which raise questions of fairness and natural justice.
UK TRANSIT
[14] The Panel never raised with the Applicant the issue of his failure to claim in the UK and therefore denied him an opportunity to explain his reasons. The issue of failure to claim in the first signatory country of the 1951 Convention is a factor to be considered, not necessarily a determinative factor, in assessing the claim of fear of persecution. Most importantly, fairness requires that an applicant be given an opportunity to offer an explanation to the Board for any such delay. Gavrushenko v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1209.
[15] The failure to confront the Applicant is an even more egregious in this case. At the commencement of the hearing the Panel identified the issues to be addressed - the UK transit was not one of them (Tribunal Record 1231). The stay in the USA (and reavailment to Pakistan was the only foreign stay identified as an issue.
[16] The Panel's decision and the inference drawn, in these circumstances, constitute a breach of procedural fairness. The Panel's conclusion, in the absence of any other evidence other than the mere fact of not claiming, or other explanation, is also patently unreasonable.
DELAY IN CANADA
[17] The Panel accorded the 6 day delay considerable weight without apparently having regard for the fact that half that time had occurred at the behest of immigration officials. The Panel made a key factual error on which it relied for its credibility finding. It failed to address both the fact of only a 3 day delay and the Applicant's explanation for delay - that his agent had advised against claiming at the airport.
[18] While the Panel is entitled to make credibility findings and is to be accorded considerable deference when doing so, it must have its facts correct and have considered the relevant material.
DOCUMENTARY EVIDENCE
[19] The Panel drew very damning conclusions from what it saw as "fabrication of documents". What it described as post-February 2003 documents was the date of the notarization of pre-February 2003 documents. The Panel confused the date of notarization with the actual date of the original documents in Pakistan.
[20] The Panel was in error and drew such a negative conclusion as to the Applicant's credibility that this finding on to the documentary evidence goes to the heart of the Panel's decision. That finding is patently unreasonable given the true facts.
CONCLUSION
[21] While the Respondent says that the Panel did conduct a proper assessment of the evidence of objective fear, it is evident that its conclusions were influenced significantly by its credibility findings. There can be no assurance that given the serious nature of these findings, its conclusions would be the same if it had not made those errors.
[22] Therefore this application for judicial review will be granted and the matter remitted for a new determination by a differently constituted panel of the Board.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3324-04
STYLE OF CAUSE: ABDUL JABAR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2005
REASONS FOR ORDER: Phelan J.
DATED: May 2, 2005
APPEARANCES:
Ms. Karina A.K. Thompson FOR THE APPLICANT
Mr. Stephen Jarvis FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Robert I. Blanshay
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT