Date: 20040407
Docket: IMM-4079-03
Citation: 2004 FC 543
CALGARY, Alberta, Wednesday, the 7th day of April, 2004.
Present: THE HONOURABLE MR. JUSTICE MOSLEY
BETWEEN:
SOHAIL ALAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench and Subsequently Written
and Edited for Precision and Clarification)
[1] Mr. Sohail Alam seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated May 8, 2003. In that decision, the Board determined that the Mr. Alam 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.
[2] Mr. Alam is a citizen of Pakistan and 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 police as well as from members of the Pakistan Muslim League ("PML") because of political opinion, based on his membership in the Pakistan People's Party ("PPP"). He also claimed to be a person in need of protection, pursuant to the grounds set out in section 97 of IRPA.
[3] The Board rejected the applicant's claims on two grounds. First, the Board did not believe that the applicant had been actively involved in the PPP because he did not appear to be knowledgeable about national PPP activities. In particular, the Board questioned the applicant about a strike called by the PPP on May 20, 1999 for the purpose of protesting the April 15 conviction of Benazir Bhutto and her husband on corruption charges. The Board stated at page 2 of its reasons, "The claimant initially stated that he did not remember the strike and then that there were many strikes held against the corruption of the PML."
[4] Second, the Board found that the applicant's behaviour was not consistent with a person who had a subjective fear of persecution, as the Board believed that the applicant had not made his claim for refugee protection until August 20, 2001, approximately two months after his arrival in Canada on June 18, 2001. In the Board's view, the applicant would have claimed refugee protection at the first opportunity if his primary concern was for his life. The Board described the applicant's explanations as to why he did not claim refugee status upon arrival in Canada as "somewhat unclear".
[5] The question before me is whether the Board based its decision on erroneous findings of fact, made in a perverse or capricious manner, or without regard to the material before it.
[6] The standard of review that is to be applied to the Board's findings of fact is, generally, patent unreasonableness: Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL). Further, it is well-established that credibility findings of the Board are to be accorded a great deal of deference: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). Where findings of credibility findings are unreasonable on their face, or based on erroneous findings of fact made in a perverse manner, or without regard for the evidence before it, the court may intervene: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d), Manoharan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1125 (T.D.)(QL), Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), and Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280.
[7] I am satisfied on the evidence on the tribunal record that the Board made a perverse finding of fact in relation to the date when the applicant first initiated his refugee claim. The Board then drew an adverse finding of credibility against the applicant on this ground. Such finding was, in my view, patently unreasonable. The hearing before the Board took place on March 5th, 2003 and its reasons were released on May 8th, 2003. The transcript of the hearing discloses that the Board had drawn the applicant's attention to what appeared to be a correction in his personal information form (PIF) relating to the date on which he had first made his claim for refugee status. Applicant's counsel at the hearing clarified that it was a clerical error that she herself had made in submitting amendments to the form. The error was resolved at the hearing but, unfortunately, brought back to life and relied upon when the Board made its decision in this matter. Given the significance afforded the purported delay by the Board, the decision can't stand for that reason alone.
[8] The applicant has also argued that the Board erred in not finding him credible because he was not initially aware, when questioned by the Board member, of a May 20, 1999 anti-government strike called by the PPP. The applicant points out that the Board did not base its negative credibility assessment on any other findings of fact. The applicant says that his inability to recall this one incident is not a sufficient basis to doubt his entire political involvement, particularly as he was able to answer other questions put to him by the Board concerning his political activity and awareness.
[9] The Board has an obligation, when denying a refugee claim on grounds of credibility, to give reasons for such findings in clear and unmistakable terms. An adverse finding of credibility should be based on contradictions or discrepancies in a claimant's testimony that are real and serious in nature: Lai v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.) and Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.).
[10] The Board member initially raised the question regarding the May 20, 1999 general strike to the applicant in the following manner at page 28 of the transcript, just after the hearing had resumed from a break:
BY PRESIDING MEMBER (to person concerned)
Q. Sir, are you aware of a national incident that took place in Pakistan in May of 1999 related particularly to political activities?
[11] This question, posed in this manner, is much too general and vague to allow the applicant to form any sort of logical response to the query. In my opinion, for the Board to subsequently rely on the applicant's lack of "immediate knowledge of this event", and then base an adverse credibility finding solely on this issue, is patently unfair and patently unreasonable. I note that the Board did not make any other credibility findings, aside from the erroneous one related to the date he initiated his refugee claim in Canada, and determined that the applicant's other evidence had no probative value based only on its assessment of his answer to this particular question.
[12] This judicial review is, accordingly allowed, on the grounds that the Board's reason for doubting the applicant's subjective fear is not supported by the evidence that was before it and the Board's finding in relation to the applicant's apparent lack of knowledge of PPP political activities was drawn in a capricious and unfair manner.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed. The decision of the Board, reasons dated May 8, 2003 is set aside and a differently constituted Board shall redetermine the applicant's claim to be a Convention refugee or a person in need of protection, in accordance with these reasons. No question for certification arises.
"Richard G. Mosley"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4070-03
STYLE OF CAUSE: Sohail Alam v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 7, 2004
REASONS FOR ORDER
AND ORDER
DELIVERED ORALLY
FROM THE BENCH BY: MOSLEY, J.
DATED: April 7, 2004
APPEARANCES:
Ms. Lori O'Reilly FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
O'Reilly Law Firm
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT