Date: 20040428
Docket: IMM-6047-03
Citation: 2004 FC 629
Ottawa, Ontario, this 28th day of April, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MOHAMMAD SHABIR AKRAM
a.k.a. MOHAMMED SHABIR AKRAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mohammad Shabir Akram seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated July 3, 2003. In that decision, the Board determined that the Mr. Akram was not a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision and an order remitting his claim back to a differently constituted Board for reconsideration.
BACKGROUND
[2] Mr. Akram, a citizen of Pakistan, is a Shia Muslim. He claimed Convention refugee status in Canada, pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), by reason of his fear of persecution at the hands of the Sipah-e-Sehaba Pakistan ("SSP") and other fundamentalist Sunni Muslim groups because of his religion and his political opinion, as a member of the Pakistan Peoples Party ("PPP"). He also claimed to be a person in need of protection, pursuant to the grounds set out in section 97 of IRPA, based on a fear of being harmed by the government of Pakistan because of his status as a failed refugee claimant, in that the Pakistan authorities would interpret this as having spoken out against the government, by claiming that the government could not provide adequate protection. The applicant also claimed to be at risk for having travelled out of Pakistan using false documents.
[3] The applicant claims to have been an active member of the PPP since 1989. In 1990 the applicant was shot in the hand by a group of Sunni Muslim fundamentalists. He was attacked again in 1992 and fearing for his safety, fled to Canada in December 1992, via the United States, and made a refugee claim here. Mr. Akram returned to Pakistan in April 1993 without completing his refugee claim. He claims that he returned because he believed that he would be safe since the Muslim League was no longer in power at that time.
[4] Upon returning to Pakistan, the applicant testified that he again became active in politics as well as becoming active in the religious and social activities of his Shia community. He assumed the position of general secretary of the PPP in his area of Wazirabad. In 1998 the applicant claims that some of his friends and his cousin were attacked and killed at a PPP meeting by Muslim League members. He was not at that meeting.
[5] In April 2001, he claims that he was attacked and beaten by a group of SSP members but was saved by the intervention of passers-by. He also claims that his attackers threatened to kill him at a later time. He then went into hiding in Lahore from April to November 2001. The applicant left Pakistan on November 24, 2001 and again travelled through the United States to arrive in Canada on November 25, 2001. He made his refugee claim shortly thereafter.
[6] The applicant's hearing before the Board took place on January 22 and February 12, 2003. The applicant testified that the SSP had called his father at some point in 2002 and threatened his life.
The Board's Decision
[7] The Board made several credibility and implausibility findings against Mr. Akram. The Board found that both the subjective and objective elements of a "well-founded fear of persecution" were missing from his claim. The Board doubted the applicant's subjective fear of persecution in Pakistan because he did not follow through on his earlier refugee claim in Canada and he did not claim refugee status in the United States despite having travelled through that country both times that he had come to Canada to claim refugee status.
[8] In respect to the objective component, the Board found it implausible that the applicant had not faced any personal attack in Pakistan until April 2001, when he claimed to have been politically active with the PPP and socially active in the Shia community since returning to Pakistan in 1993. The Board found it implausible that he would be attacked without any precipitating cause in April 2001. The Board found, on a balance of probabilities, that the April 2001 attack alleged by the applicant did not occur.
[9] The Board also found it implausible that the applicant would attract the attention of the SSP after being away from Pakistan for over two years. As stated in the documentary evidence, sectarian violence occurred but proportionately, the numbers of Shia Muslims killed was small and those targeted in the Shia community were typically of high profile and the applicant did not have such a profile.
[10] With regards to the applicant's section 97 claim, the Board concluded that the applicant's allegations of risk were highly speculative and on a balance of probabilities were not supported by the documentary evidence. The Board cited evidence that indicated that Citizenship and Immigration Canada ("CIC") did not indicate that an individual was a failed refugee claimant on the different types of removal orders that it issued. Therefore, the Board found that the Pakistan authorities would not be aware of the applicant's status as a failed refugee claimant. Further, the Board found that there was no evidence that the applicant would be perceived to have violated certain sections of the Pakistan Penal Code, dealing with sedition and treason. Similarly, the Board concluded that the applicant would not be at risk of torture or detainment by reason of having exited Pakistan, using false documents. The Board referred to recent documentary evidence which indicated that the applicant would not be punished, either at all or disproportionately, for having used false documents in leaving Pakistan.
[11] The Board referred to an article from the Pakistan Post Weekly New York, submitted by the applicant, which reported that a man had been tortured in Pakistan after he had been deported from Germany and detained under the Pakistan Penal Code. The Board gave no weight to this news report as there was no way of assessing the validity of the report or the source of the information. The Board contrasted this with the fact that documentary reports from "authentic credited organizations" such as Amnesty International, US Department of State and the British Home Office did not report that failed refugee claimants were being charged under Pakistan's Penal Code solely because they were failed refugee claimants.
ISSUE
[12] Did the Board commit a reviewable error in basing its decision on findings of fact made in a perverse or capricious manner or without regard to the material before it?
ANALYSIS OF PARTIES' SUBMISSIONS
[13] The applicant argues that the Board fundamentally misconstrued and also ignored evidence before it. Specifically the applicant refers to documentary evidence he submitted in support of his claim, certain letters from PPP associates and his father, a medical report from 1990 indicating that he had been shot in the hand and a recent psychological assessment that he suffered from severe depression. The applicant also argues that evidence found in his Personal Information Form ("PIF") and testimony dealing with the context of his life in Pakistan since 1993 which included the attack and killing of some of his fellow PPP members, one being his cousin, by the Muslim League, was not considered by the Board when it came to the conclusion that he had not experienced any personal attacks from 1993-2001. The applicant submits that his testimony was coherent and plausible and that his allegations did not run counter to the general country conditions in Pakistan today and therefore he should have been given the benefit of any doubt.
[14] The respondent submits that the Board's credibility findings are not patently unreasonable and the Board set out in clear and unmistakable terms the reasons for making such findings. Further, the respondent argues that the Board need not refer to every piece of documentary evidence and is presumed to have assessed all evidence before it, unless the contrary is shown.
[15] In my opinion, the applicant has not demonstrated that the Board made any reviewable error. The Board need not mention every piece of evidence in its reasons and is assumed to have weighed and considered all evidence before it, unless the contrary is shown: D'Souza v. Canada (Minister of Employment and Immigration), [1983] 1 F.C. 343 (C.A.), Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)(QL) and Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).
[16] The evidence cited by the applicant was squarely before the Board and while one may view the inferences to be drawn from such evidence differently than the Board, I cannot conclude that the Board's implausibility findings were patently unreasonable or that there is a serious and reasonable apprehension that the Board failed to consider all of the evidence before it.
[17] The applicant has not demonstrated that the Board's failure to mention the letters he submitted from his family and PPP associates leads to a finding that the Board ignored this evidence. These letters are very general in nature, confirming that the applicant is of the Shia sect, that he held various positions with the PPP and also student organizations at certain times, and generally, that he has faced threats in the past and opponents have tried to kill him "several times". These letters do not offer such important and relevant evidence, that the Board's failure to address them in the reasons raises an apprehension that the decision was based on factual findings made without regard to the evidence before it: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[18] Moreover, the applicant's medical report from an injury sustained in 1990 cannot be seen as such important evidence that the Board's failure to mention it in its reasons leads to an inference by this Court that the Board failed to consider it. The recent psychological assessment would carry more weight as it describes the applicant's state of mind shortly before the hearing and speaks generally of his subjective fear of persecution. However, even if I were to find that such report should have been expressly dealt with by the Board in its reasons in analysing the applicant's subjective fear of persecution, such finding would not change the fact that the Board's clear credibility and implausibility findings related to the applicant's objective fear of persecution are not patently unreasonable. A claimant must demonstrate both components to meet the definition of Convention refugee: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. Therefore, on this issue I have determined that the Board did not commit a reviewable error warranting this Court's intervention.
[19] I agree with the respondent that it is well within the Board's area of expertise to evaluate and weigh evidence. I cannot come to a conclusion, from a review of the reasons and certified tribunal record, that the evidence highlighted by the applicant was not considered by the Board or was fundamentally misconstrued.
[20] The Board's adverse credibility findings were reasonably open to it. A high level of deference should be accorded to the decisions of the Board made on the basis of credibility findings: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). As a result, the appropriate standard of review is patent unreasonableness, which means that findings of credibility must not be based on erroneous findings of fact made in a perverse manner, or without regard for the evidence before it: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d), Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL), Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 901 (T.D.)(QL) and Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280.
[21] Unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, or the Board appears to have drawn them capriciously or without regard to the evidence, this Court should not interfere, whether or not it agrees with those inferences: Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106 and Aguebor, supra. Further, the Board must give reasons for its credibility findings in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL).
[22] In the present case, the Board was entitled to find that the applicant's allegations were implausible and such findings are not "so unreasonable" that they warrant the Court's intervention: Aguebor, supra. The Board's reasons are also detailed and clear as to why it made its negative credibility findings: Hilo, supra.
[23] The respondent validly points out that the decision of Sathanandan v. Canada (Minister of Employment and Immigration) (1991), 137 N.R. 13 (F.C.A.) does not stand for the proposition, as asserted by the applicant, that the Board must indicate that it considered all the testimony and documentation before it, however, feeble. Rather, the Federal Court of Appeal held that where documentary evidence indicates the opposite conclusion from that which the Board asserts, then such evidence, even if feeble, cannot be ignored by the Board in displacing the presumption of truthfulness of an applicant's testimony. Therefore, this decision does not aid the applicant.
ORDER
THIS COURT ORDERS that this judicial review is dismissed. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6047-03
STYLE OF CAUSE: MOHAMMAD SHABIR AKRAM
a.k.a. MOHAMMED SHABIR AKRAM
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 8, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: April 28, 2004
APPEARANCES:
Birginder P.S. Mangat FOR THE APPLICANT
Robert Drummond FOR THE RESPONDENT
SOLICITORS OF RECORD:
BIRGINDER P.S. MANGAT FOR THE APPLICANT
Barrister & Solicitor
Calgary, Alberta
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta