Docket: IMM-9299-04
Toronto, Ontario, August 30, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
ABDUL SAEED KHAN, RUBINA SAEED KHAN,
ADNAN SAEED KHAN & ADEEL SAEED KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Principal Applicant, (hereinafter referred to as Athe Applicant@), Abdul Saeed Khan is a 59 year old citizen of Pakistan. He claims he is being persecuted by members of the extremist Sunni religious group Sipah-e-Sihaba (ASSP@) due to his membership in the Shia faith. The Applicant and his family lived in Saudi Arabia from September 1976 until November 1995 and then returned to Pakistan.
[2] The Applicant claims that in 1995 he donated 50,000 Rupees to the Imam Bargah to assist in its construction. In Pakistan, the Applicant claims donors= names and the amounts of their donations are announced over a loudspeaker of any Imam Bargah or Mosque. The Applicant=s donation was relatively generous by community standards.
[3] Sunni followers thereupon demanded that he donate money for the Sunni mosque in the area. He refused for the next year and a half. He suffered constant threats, harassment and damage to his house and car. In July 1996 he fled to his brother=s home and hid there until arrangements could be made to go to the US.
[4] They left Pakistan and arrived in the US on August 22, 1996. He never applied for asylum there. He allegedly received faulty advice from two different lawyers, came to Canada on March 10, 2003 and sought refugee protection.
[5] The Board rejected the application finding that:
- the Applicant=s testimony was not credible because he was evasive, he did not answer many questions directly and his explanations had to be dragged out of him;
- it was questionable whether or not the donation was made at all;
- it was implausible that the Sunni extremists would still be seeking him out almost ten years later;
- it was implausible that two different lawyers would wrongly advise him about asylum conditions in the US; and
- state protection against extremists, while not perfect, was available in Pakistan.
[6] The applicable standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17) while the standard for state protection is reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193).
[7] The Applicant argued that the decision should be set aside as the Board:
- made incorrect findings of fact;
- ignored crucial evidence;
- made unreasonable plausibility findings; and
- used Aboiler plate@ reasoning in respect of state protection and did not consider the Applicant=s particular case.
[8] It is trite law that credibility findings are the heartland of the Board=s jurisdiction. This court will only intervene if such findings are patently unreasonable (see Sommariva v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 410 at para 6).
[9] In this case, the Board made a clerical error and referred to the Applicants as a ASunni-Shia couple@. It is clear that they are Shias and this one reference was in error. Nothing turns on this error, as the findings of lack of credibility were supported by many examples and the reference to Sunni Shia was merely descriptive and was never referred to again.
[10] The Applicant provided many alternative explanations for the Board=s findings, however, to succeed the Applicant need not only provide an alternate explanation but must also establish that the conclusion of the Board cannot be supported by the evidence (see Sian v. Canada (M.C.I.) 2004 FC 87 at para 11).
[11] The same rationale applies to findings of plausibility. The Board found it implausible that two different lawyers in the US would provide incorrect advice on US law and that the Applicant, who had over a month to prepare for his departure from Pakistan, would not take with him evidence of the donation that precipitated his departure. The Applicant failed to establish that these findings were not supportable. His alternate explanations did not undermine the Board=s findings.
[12] With regard to ignoring crucial evidence, the Applicant alleges that the Board ignored a letter from Pakistan from the keeper of the Imam Bargah. The Tribunal Record establishes that the Board clearly did look at the letter, even if it did not refer to it in its reasons. There is no need for the Board to refer to every piece of evidence in its reasons.
[13] With respect to state protection, the Board was thorough in its analysis of state protection and went into great detail, considering the situation of the Sunnis and the Shias. Its overall assessment that protection, while not perfect, was available in Pakistan is amply supported by the evidence. This meets the standard set out in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 and therefore I find that the Board was reasonable in its assessment of state protection.
[14] In assessing the totality of the Board's reasons, there is nothing patently unreasonable with regard to the Board=s credibility and plausibility findings and nothing unreasonable with respect to its state protection findings. Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
AK. von Finckenstein@
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9299-04
STYLE OF CAUSE: ABDUL SAEED KHAN, RUBINA SAEED KHAN,
ADNAN SAEED KHAN & ADEEL SAEED KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 29, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 30, 2005
APPEARANCES BY:
Anita Balakrishna FOR THE APPLICANTS
Amy Lambiris FOR THE RESPONDENT
SOLICITORS OF RECORD:
Anita Balakrishna
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT