Date: 20051014

Docket: IMM-1880-05

Citation: 2005 FC 1412

OTTAWA, Ontario, the 14th day of October 2005

PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM

BETWEEN:

MUHAMMAD SALEEM

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act[1] (Act), of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (Board), dated March 3, 2005. In that decision, the Board determined that Muhammad Saleem (the applicant) did not qualify as a "Convention refugee" under section 96 or as a "person in need of protection" under section 97 of the Act.

[2]                These are the facts alleged by Mr. Saleem, a citizen of Pakistan, as described in his Personal Information Form (PIF)[2] and by the Board. Mr. Saleem was born on May 5, 1954 in Gujranwala, Pakistan. In 1988, Mr. Saleem formed a movie production and distribution company with Aziz Memon. Mr. Saleem produced and distributed six movies between 1988 and 2002. In 2003, his associate Mr. Memon was accused of corruption and was sent to jail.

[3]                Mr. Saleem says that in 2003 he produced a seventh movie called KURSI or KAURSI (the Chair) about a country liberated after 75 years but that was actually under autocratic rule. The movie KURSI offended the Pakistani army because its theme was spreading a message of revolt against the government. Mr. Saleem received many anonymous telephone calls and was threatened with death if he continued production of the movie. Following several violent incidents, Mr. Saleem feared for his life. This is a brief description of the five incidents:

Incident 1 - January 25, 2004

Mr. Saleem is picked up on January 25, 2004, on the street by army officers in a Jeep. He is questioned about his movie KURSI and about the financial matters of his associate Mr. Memon. Mr. Saleem says that he knows nothing about Mr. Memon's affairs and he is released. Mr. Saleem reported the incident to the police but the police respond that they have no power over the Pakistani army.

Incident 2 - February 7, 2004

Mr. Saleem was picked up a second time on February 7, 2004, by army officers in a Jeep. He was blindfolded and told to say his last prayers. Mr. Saleem feared for his life as he was driven to an unknown destination. He was again questioned about his movie KURSI and about Mr. Memon's affairs. Mr. Saleem was beaten that evening and the following morning army officers left him on a highway near the airport. Mr. Saleem did not report this second incident to the police for fear of his safety and the safety of his family.

Mr. Saleem applied for a Canadian visa on March 10, 2004, but his application was denied on March 17, 2004, on the basis that he would not return to Pakistan.

Incident 3 - March 30, 2004

A car pursued Mr. Saleem and his son on March 30, 2004. His son was injured and Mr. Saleem alleges that the car's driver wanted to kill him. Mr. Saleem wanted to file a report with he police but the police did not want to take it.

Incident 4 - April 3, 2004

Mr. Saleem left Pakistan on April 3, 2004, for London, England, where he lived with his daughter for almost one month. During the same period, the army and the police entered Mr. Saleem's home in Pakistan by breaking the door. They verbally harassed his children and later did so by telephone.

Incident 5 - May 12, 2004

Some unidentified individuals (there is nothing to suggest that it was the army or the police) entered Mr. Saleem's house and fired gunshots. These unidentified individuals screamed that Mr. Saleem would die if his movie continued production.

Following these events that occurred between January and March 2004, Mr. Saleem left Pakistan on April 3, 2004. He settled in London with his daughter for a month, and then took a flight to New York on May 2, 2004. Mr. Saleem arrived in Canada on May 4, 2004, where he claimed refugee status.

[4]                After accepting Mr. Saleem's identity as a citizen of Pakistan on the basis of his testimony and with his identification documents, the Board determined that he was not a credible witness, giving several examples.[3] Therefore, the Board denied Mr. Saleem' refugee claim.

[5]                The issues are as follows:

It is patently unreasonable that the Board erred in finding that Mr. Saleem's testimony lacked credibility?

It is well settled that with regard to questions of credibility (a question of fact), the Board's error must be patently unreasonable in order for the Court to intervene and allow the judicial review (see: Augebor v. Canada (Minister of Employment and Immigration)[4]).

MR. SALEEM'S SUBMISSIONS[5]

[6]                Mr. Saleem made two submissions:

(The first applicant's memorandum by counsel Jayne Davis raises several errors of fact by the Board which, I believe, may be summarized under the heading of credibility)

1.                   The Board erred in finding that the applicant was not a credible witness.

2.                   The Board's decision is incomprehensible since it states that:
The tribunal DOES believe that the claimant was assaulted by would-be army aggressors or that he was persecuted in his country as he alleges."[6] [Emphasis added]. However, the Board determined that Mr. Saleem had not been persecuted in Pakistan.

RESPONDENT'S SUBMISSIONS

[7]                The Minister made three submissions:

1.                   Mr. Saleem's failure to have diligently made a refugee claim at the first opportunity is in itself sufficient to dismiss his refugee claim.

2.                   Mr. Saleem lacked credibility.

3.                   Evidence filed had shortcomings.

ANALYSIS

[8]                I will first analyse Mr. Saleem's two submissions, then I will analyse the respondent's first submission.

I.           Analysis of Mr. Saleem's two submissions

Credibility

[9]                A credibility finding is the product of a specialized factual analysis and does not open the door to a judicial review unless it is patently unreasonable.[7] The Board dismissed the refugee claim based on the Mr. Saleem's lack of credibility; that finding is not patently unreasonable after analysing the evidence.

It is also important to note that the standard of review of an assessment of the facts remains what is patently unreasonable. A number of decisions have reaffirmed that the members are in the best position to assess testimony.[8]

[10]            Pissareva[9]refers to the leading decision of the Federal Court of Appeal in Aguebor v. Canada (Minister of Employment and Immigration)[10], with respect to the discussion of credibility. Décary J.A. of the Federal Court of Appeal states that:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.[11]

[11]            With regard to the issue of credibility, the Board gives many examples[12] undermining Mr. Saleem's credibility.

[12]            For example, the letter from Mr. Saleem's daughter,[13] Sobiya Adnan Rajput, states that her father came to visit her in London because she was sick. She does not indicate that her father came to live with her out of fear that he would be persecuted or killed in Pakistan.

[13]            Further, Mr. Saleem states that he did not claim refugee status in London since in the Pakistani culture, it is not acceptable for a parent to live with their child. I completely agree with the respondent that Mr. Saleem could live elsewhere in London.

[14]            At pages 6 et seq. of the respondent's supplementary memorandum, the respondent submits that Mr. Saleem's movie "Kursi" had been authorized by the censorship bureau. It is therefore not credible that all of Mr. Saleem's problems with the authorities would have resulted from the production of that movie.

Incomprehensible decision by the Board

[15]            After a careful review of the Board's decision, it is my opinion that the Board made an error of omission or an inadvertent error in forgetting to write the word "not" at page 5, next to last paragraph of its decision. The Board wrote:

The tribunal does believe that the claimant was assaulted by would-be army aggressors or that he was persecuted in his country as he alleges.

[16]            I think that the Board rather meant to write:

The tribunal does NOT believe that the claimant was assaulted by would-be army aggressors or that he was persecuted in his country as he alleges.

[17]            There are two grounds supporting my finding that the Board simply made an error of omission or an inadvertent error rather than finding that it wrote a truly incomprehensible decision.

[18]            First, if the Board had believed Mr. Saleem, it would have written:

The tribunal does believe that the claimant was assaulted by the would-be army aggressors AND that he was persecuted in his country as he alleges.

[19]            The word "or" makes no sense when we read the entire sentence.

[20]            Second, in its decision, the Board states on several occasions that Mr. Saleem is not credible regarding his allegations of persecution. For example, the Board wrote in its decision:

·         At page 3 (paragraph 2):

The tribunal questioned the claimant on several occasions on several major issues concerning his story and did not find him to be credible as regards his allegations of persecution, either because of his association with the PPP Member of Parliament, Aziz Memon, currently in jail in Pakistan under accusations of corruption, or as regards to his work as a movie distributor.

• At page 3 (paragraph 3):

The tribunal does not believe that he was persecuted for his relationship with Aziz Memon. The lack of evidence undermines the claimant's credibility on this issue.

• At page 4 (paragraph 2):

The tribunal understands that the claimant's company was in good standing with the Government run Censor Board.

• At page 5 (paragraph 1):

The tribunal finds it difficult to believe that the claimant would be the only one to have problems, if indeed, there were any problems, and seriously doubts that the claimant was targeted, as he alleges, by the army.

• At page 6 (concluding paragraph):

Given the above, the tribunal finds that the claimant was not a trustworthy witness and does not find him credible on a general basis. The tribunal accepted that the claimant worked in the Film industry in his country. However, given that the tribunal does not believe that he was persecuted in his country, it does not give any probative value to the documents adducted in support of his allegations of persecution. The tribunal does not believe that the claimant's life would be in danger should he return to Pakistan.

[21]            Therefore, reviewing the entire decision, the Board made nothing more than an inadvertent error in forgetting to include the word "NOT" in the sentence. The decision itself is understandable. Further, the applicant's counsel had the wisdom not to pursue the matter.

II.         Analysis of respondent's submission

Failure to make refugee claim in England

[22]            I entirely agree with the respondent's first argument, that of Mr. Saleem's failure to seek refugee protection when he was passing through countries that are signatories of the Geneva Convention, i.e. England and the United States. This submission is the most persuasive and is worthy of the most attention because it quickly disposes of the judicial review. At page 2 of his memorandum, the respondent refers to Skretyuk v. MCI: [14]

A claimant travelling through a country that is a signatory to the Convention must claim refugee status as soon as possible, or the claim may not be considered serious.

[23]            Mr. Saleem lived with his daughter in London, England, for 29 days. Then, he left for New York, in the United States, and then he found himself at Lacolle, Quebec. From the time he left Pakistan on April 3, 2004, he claimed refugee protection only on May 4, 2004, i.e more than one month after leaving Pakistan.

[24]            The respondent points out that Pinard J. in Gamassi[15] states that the claimant's failure to have diligently sought protection at the first opportunity is in itself sufficient for the RPD to dismiss their claim.[16] Pinard J. writes at paragraph 6 of his decision:

The delay in claiming refugee status, which is not explained, as in this case, is an important factor in determining the lack of a subjective fear of persecution (see, for example, Ilie v. Canada (M.C.I.) (1994), 88 F.T.R. 220, at page 223). In my opinion, this factor alone was, in the circumstances, sufficient to allow the Refugee Division to reasonably infer that the applicant did not have a subjective fear of persecution in Algeria, and sufficient to result in the dismissal of his claim.

[25]            Mr. Saleem spent 29 days in London with his daughter. Document A-5,[17], a letter from his daughter, clearly states as follows:

It is to certify that Muhammad Saleem is my father. He came to UK on 3rd April 2004 to see me, because I was suffering from liver problem [sic]. (Emphasis added.)

[26]            The letter states that Mr. Saleem came to London to visit his daughter when she was suffering from a liver problem. There is nothing in this letter stating that Mr. Saleem came to London for fear that he would be killed or persecuted if he were to stay in Pakistan.

[27]            Mr. Saleem states the following in the narrative section of the PIF:[18]

I had the multiple visa for U.K. and USA, but I did not stayed there because I think that Canada is a peaceful country in the world with a very good reputation of helping the persecuted people of the world and they are giving all human rights. [sic]

[28]            This statement cannot be enough to allow a refugee claimant to pass through two countries, i.e. England and United States, and claim refugee status in Canada more than a month after leaving Pakistan. We cannot allow "forum shopping", i.e. we cannot give the claimant the luxury of deciding which country would be the most convenient for claiming refugee status, whatever the reason may be.

[29]            There is no evidence in the record showing that Mr. Saleem was not able to claim refugee status in England or in the United States.

[30]            I agree with the Board on the point that Mr. Saleem's failure to claim refugee status in London undermines his fear of persecution. The Board writes:[19]

Finally, the tribunal considers that the claimant's failure to claim protection during his month long stay in the U.K. undermines his subjective fear. His explanation that in his culture, parents do not live with their children, is not sufficient. The claimant was surely capable to live elsewhere in London, other than with his daughter. His behaviour is not compatible with that of someone who fears for his life and safety.

[31]            According to settled case law, the claimants have the duty to establish their subjective fear in order to establish a fear of persecution. In Conte v. MCI, [20] a similar matter involving the failure to claim refugee status as soon as possible, decided by this Court on July 14, 2005, Pinard J. states at paragraphs 3 and 4:

[3]            Further, the applicant travelled through France and stayed in the United States with her niece for three weeks without making a refugee claim. In my opinion, it was not patently unreasonable for the IRB to criticize her for that omission, as the United States is a signatory country of the 1967 Protocol Relating to the Status of Refugees (see Pan v. Canada (M.E.I.), [1994] F.C.J. No. 1116 (F.C.A.) (QL) and Assadi v. Canada (M.C.I.), [1997] F.C.J. No. 331 (QL)).

[4]            Therefore, all of the applicant's actions or inactions indicate that she had intended to leave the country before the alleged acts which brought about her fear and that she did not have a genuine subjective fear. Under the circumstances, the absence of a subjective fear is enough to bring about the dismissal of the application for judicial review (see, inter alia, the decisions of the Federal Court in Taj v. Canada (M.C.I.), [2004] F.C.J. No. 880 (QL), Iracanye v. Canada (M.C.I.), [2002] F.C.J. No. 739 (QL), Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720 (QL), Anandasivam v. Canada (M.C.I.), [2001] F.C.J. No. 1519 (QL), Gamassi v. Canada (M.C.I.), [2000] F.C.J. No. 1841 (QL), Kamana v. Canada (M.C.I.), [1999] F.C.J. No. 1695 (QL), Tabet-Zatla v. Canada (M.E.I.), [1999] F.C.J. No. 1778 (QL) and Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (QL)).

[32]            For the reasons given above, I must answer the question at issue in the negative: the Board did not make a patently unreasonable error in determining that Mr. Saleem was not a credible witness. Accordingly, the application for judicial review is dismissed.

[33]            It is of little importance that the tribunal's knowledge and understanding were not infallible with regard to the Censorship Board and the Writers' Association since that issue has no effect on determining the subjective fear of persecution.

[34]            I must reiterate that the applicant had the opportunity to claim refugee status in England. He did not do so and gave no reason for that omission. Accordingly, I am satisfied that there was no subjective fear of persecution in Pakistan.

ORDER

            The application for judicial review is dismissed. No question has been submitted for certification.

"Max M. Teitelbaum"

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           IMM-1880-05

STYLE OF CAUSE:                           Muhammad Saleem v. MCI

PLACE OF HEARING:                     Montréal, Québec

DATE OF HEARING:                       October 7, 2005

REASONS FOR ORDER:                TEITELBAUM J.

DATE OF REASONS:                       October 14, 2005

APPEARANCES:

Michel LeBrun                                       FOR THE APPLICANT

Mario Blanchard                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:

Michel LeBrun

Montréal, Quebec                                 FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada     FOR THE RESPONDENT