Toronto, Ontario, November 22, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated November 25, 2004, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks an order setting aside the decision of the Board and directing that the matter be redetermined by a differently constituted panel of the Board.
Background
[3] Usman Rafiq (the "applicant") is a 24-year old citizen of Pakistan. He alleged fear of persecution at the hands of the Pakistan Muslim League ("PML") and the Pakistan government due to his political activities with the People's Student Federation ("PSF") student wing of the Pakistan People's Party and later with the Pakistan People's Party ("PPP").
[4] The applicant alleged the following facts in the narrative portion of his Personal Information Form ("PIF"). In 1997, while studying at the Allama Iqbal College (the "College"), the applicant formally joined the PSF. He was elected as the general secretary of the PSF at the College. There were two other rival student organizations at the College. One was the Muslim Student's Federation ("MSF") which was affiliated with the Pakistan Muslim League and the other was the Anjuman Tulba-e-Islam which was affiliated with the Jamaat Islami Party.
[5] In April 2000, the applicant was taken to hospital for a bullet wound he sustained in his right thigh as a result of being shot at by members of the MSF. This incident was reported to the police, but the police did not register a report because of intervention by the College.
[6] The applicant completed his education at the College in September 2000, and subsequently assisted with his father's business which made surgical instruments. In May 2001, the applicant formally joined the youth wing of the PPP. In September 2001, he was named vice president of the youth wing of the PPP for his village, Adha, in the district of Sialkot. The applicant was active in organizing and promoting the local wing of his party.
[7] On August 14, 2002, while the applicant was delivering a speech on the occasion of "Independence Day" in Pakistan, members of the Pakistan Muslim League Quaid-e-Azam Group ("PMLQ") attacked all of the participants. The applicant was left unconscious with a bloody nose and mouth. He received stitches to his head and stayed in a hospital for about ten days. The incident was reported to the police and the police registered a First Information Report ("FIR").
[8] The applicant campaigned for the PPP after a general election was announced for October 2002. The applicant was threatened and pressured by political opponents from the PMLQ to leave the PPP and to join them. In the election, the PMLQ won the national and provincial seats for the applicant's area.
[9] In October 2002, while the applicant was heading home on his motorbike, he was shot at by strangers. The applicant was not hurt. His father reported this incident to the police, which did not take any action or file a report.
[10] Later that night, the applicant's father received a threatening phone call from a caller who said that the applicant should have joined the PMLQ. After he received two more similar phone calls, allegedly from unknown PMLQ callers, the applicant's father arranged with an agent to help the applicant flee Pakistan on December 25, 2002. The applicant arrived in Canada on the same day. He claimed refugee protection on December 30, 2002, and his claim was heard on September 3, 2004. The Board dismissed his claim in a decision dated November 25, 2004. This is the judicial review of that decision.
Reasons of the Board
[11] The Board accepted the applicant's personal and national identity. However, the Board did not find the material elements of the applicant's evidence with respect to his profile as a PPP activist and his subjective fear of the PMLQ to be credible.
[12] The Board made the following factual findings:
(a) The Board expressed concern about the veracity of a letter which stated that the applicant has been elected general secretary. The Board wrote at page 4 of its decision:
PSF Cards
The claimant presented two cards, one dated September 1997, and the second one does not have a date but a number "47/98", which states he is the general secretary. There was also a corresponding letter stating he has been elected the general secretary. The claimant was asked why the letter was from Sialkot and not from the president of the village and his explanation was that the district office appointed him solely to write the letter. The panel does not find that explanation reasonable for one would expect the village committee to issue a letter and not the district level.
(b) The Board found that two PSF cards issued to the applicant in consequent years were not genuine because renewal of membership is normally after two years, as indicated on the reverse of the PPP card.
(c) With respect to another letter that was tendered in support of the applicant's claim, the Board wrote at pages 4 to 5 of its decision:
The claimant presented ... a letter dated September 9, 2001, on the letterhead of a lawyer who has a PPP Party letterhead from Sialkot that the claimant has been selected/nominated as the vice president. This letter has no address on the letterhead, just a stamp under the author's signature, which states "PPP SAILKOT CITY." The panel does not give much weight to the letter since it is not on proper party letterhead and has no address on it. The panel does not find it to be a genuine letter, which impugns the claimant's overall credibility.
(d) The Board found that there was no evidence, other than the applicant's testimony (which the Board determined was not credible), to establish that some of the applicant's PPP colleagues had encountered problems due to their political affiliation.
(e) The Board gave no weight to a further letter from the PPP in support of the claim, because of anomalies in the letter: the letterhead did not have an apostrophe in the word "PEOPLES", the letter was written in English with several spelling and grammatical mistakes, and there was no mention of the PMLQ targeting the applicant.
(f) The Board found that the applicant was affiliated with the PPP, but did not have the profile to be a target.
(g) The Board found that the applicant had fabricated the evidence concerning the alleged Independence Day incident of August 14, 2002. The Board noted that there were discrepancies between the applicant's written and oral evidence and the contents of the FIR.
At pages 6 to 8 of its decision, the Board wrote:
The claimant's oral description painted a different picture to what he has presented in the written version, and the FIR had another version. In his PIF he states:
...on August 14, 2002, while I was delivering a speech on the occasion of "Independence Day" in Pakistan, some goons of the P.M.L.(Q) attacked all of the participants and beat us with rods and hockey sticks. As their primary target, I received serious injuries when one of the attackers hit my head with his hockey stick. They left me unconscious with a bloody nose and mouth. When the gathering dispersed, I was taken to the hospital, where I received twenty-six stitches to my head. I remained in the hospital for approximately ten days. This incident was reported to the police by my senior party members...
In oral testimony he stated:
- There were about 100 people present
- He was on the stage speaking
- The goons came straight to the stage and started beating him
- There were five other people who were injured
- Gave names of five people who were injured
- He said the president and he were the targets
After, he was asked how many people came on that day and, he said more than 15, he did not have a count. When asked what was the means of their travel, he said that they came on motorbikes. He stated that he was speaking and talking about 1947 independence and military rule. He said they came straight to the stage and started beating him with hockey sticks or guns. He was asked why they beat him and he said because he worked hard for the Party. He stated orally that his father reported the incident.
FIR
The information in the FIR about this particular incident was:
- His father and two other gentlemen reported
- 6/7 goons
- Armed with fire guns
- The goons started calling bad names
- When they started to call bad names the claimant asked them not to make a noise
- His son was beaten with gun butts and hockey
- Son was seriously hurt and fell down
- The people around intervened and they ran away.
There is no mention of anyone else being injured. The claimant was asked why these three descriptions of the same event were different. His explanation was that it is not different and that it has been two years since the incident and that his father did report the incident. The panel does not find his explanation reasonable and finds that the discrepancies in all three versions make the panel believe that the incident never happened.
The Board further noted that whereas the documentary evidence indicated that incidents of harassment of a political nature are mostly reported in newspapers, the August 14 incident was not reported. The Board found that it should have been reported in the local newspaper as it was related to Independence Day.
(h) The Board found that the applicant obtained a medical report relating to an alleged shooting incident on April 3, 2000 only to present his claim. The Board pointed out that the applicant's testimony that he had been wearing pants at the time of the incident was inconsistent with the medical report that stated that the applicant was wearing traditional dress, "shalwar". The applicant insisted at the hearing that he was wearing pants and the doctor must have made a mistake on the medical report.
(i) The Board found that certain photographs tendered in support of the claim had been staged and presented merely to bolster the claim. The photographs depicted injured PPP activists posing with their heads bandaged. The Board expressed concern that the photographs had not been taken when the injuries were incurred.
[13] The Board also considered the subjective and objective components of the applicant's fear of persecution. The Board stated that the documentary evidence revealed harsh treatment for PPP activists in Pakistan, but it would be highly unlikely that this would apply to "rank and file PPP members". The same documentary evidence indicated that from 2001 to 2004, some PPP activists were arrested. The Board found that the applicant had not established a profile in the PPP party, and neither the subjective nor objective components of his claim had been established.
Issues
[14] The applicant raised the following issues:
(a) Did the Board err in law by ignoring or misinterpreting evidence properly before it?
(b) Did the Board make patently unreasonable findings of fact or base its decision on findings of fact made in a perverse and capricious manner without regard for the material properly before it?
(c) Did the Board misapply and/or misconstrue the definition of Convention refugee, thereby erring in law?
(d) If the Board's errors were not reviewable errors of law, then did the cumulative effect of these errors amount to an error of law?
[15] The applicant raised a preliminary issue at the commencement of the hearing with respect to the absence of a transcript. The parties requested that I deal with this preliminary issue prior to their presenting their oral argument on the remaining issues in the case.
[16] The main reason for the failure of the applicant's claim was that the Board found him not to be credible. The Board based this finding of non-credibility on the alleged conflicts between the written documents and the applicant's oral testimony. Since I do not have a transcript of the hearing, I am unable to assess whether there are such conflicts. This is significant in this case as the applicant's lack of credibility based on these alleged conflicts was central to the failure of the applicant's claim.
[17] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[18] Because of my finding on this preliminary issue, I need not deal with the other issues.
[19] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
"John A. O'Keefe"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10656-04
STYLE OF CAUSE: USMAN RAFIQ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 26, 2005
APPEARANCES:
John Savaglio FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Savaglio
Pickering, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT