Date: 20000519
Docket: IMM-2929-99
Ottawa, Ontario, this 19th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
NADEEM AKHTAR GOSHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Refugee Division") dated May 3, 1999, wherein the Refugee Division determined that the applicant was not a convention refugee.
[2] The applicant, a citizen of Pakistan, arrived in Canada on August 10, 1997 via the United States and Thailand. He did not enter Canada at a regular port of entry and he first stated his intention to claim refugee status on August 29, 1997.
[3] The applicant"s claim for convention refugee status rests on alleged persecution due to political opinion and membership in a particular social group"the Pakistan People"s Party ("PPP").
[4] The applicant states that he was a member of the PPP for several years and that he was an active organizer for the party, culminating with his election as general secretary of the PPP"s election organization group in Islamabad. He also claimed that he was involved in various protests after the annulment of elections in which the PPP was victorious and subsequent to the Pakistan Muslim League ("PML") being elected in new elections.
[5] The applicant claimed to have suffered the following persecution as a consequence of his political activities:
| 1. He was arrested after peaceful protests. |
| 2. He was beaten and tortured while in jail. |
| 3. His place of work was attacked by Muslim League supporters. |
| 4. His home was fired upon. |
| 5. Family members were harassed and injured. |
| 6. False criminal charges were made against him. |
| 7. He fears more false charges and imprisonment if he is returned to Pakistan. |
| [6] The hearing into the applicant"s refugee claim was held on January 18, 1999. The |
Board determined that due to various inconsistencies and implausibilities in the testimony of the applicant, which were not satisfactorily explained, the applicant was not credible and from this finding, concluded that there was insufficient trustworthy evidence that the applicant had a well-founded fear of persecution.
Issues
| [7] The applicant, in his application for judicial review, listed 11 grounds for judicial |
review, however, in his Memorandum of Fact and Law, these issues were condensed into two main issues which were:
| 1. Whether the panel erred in basing its decision or order on the issue of credibility on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. |
| 2. Whether the panel erred in failing to accord the applicant the benefit of the presumption of the truth of sworn statements. |
Analysis and Decision
| [8] Issue 1 |
| Whether the panel erred in basing its decision or order on the issue of credibility |
on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[9] There is no doubt, from a review of the decision of the panel that the credibility of the applicant was a very significant factor in the decision reached by the Board. There is no doubt that the Board can make findings on the credibility of a witness that appears before it. The Board must, however, as part of its credibility assessment, give reasons why it believes the witness lacks credibility if it is indeed of this view. The Board is in the best position to make this assessment as it sees and hears the witness. As Décary J.A. stated in Aguebor v. Canada (1993) 160 N.R. 315 (F.C.A.) at pages 316-17:
| 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
| [10] I have reviewed the decision of the panel and it is very evident from the panel"s |
decision that it carefully assessed the credibility of the applicant and gave particular examples with reasons for not believing the applicant. By way of illustration, the panel found:
| 1. The applicant submitted newspaper clippings to show that he was involved in anti-government activity from November 14, 1996 to December 17, 1996. In his personal information form ("PIF"), he indicated that he was involved in all of the protest meetings. However, in his oral testimony, he stated that he was arrested on November 15, 1996 and released on November 17, 1996. Also, he testified orally that he did not take part in any protests after his release from jail. As the panel pointed out, this is contrary to his statements about taking part in all the protests listed in the newspaper articles. |
| 2. In his PIF narrative, he stated that unknown persons fired at his family home, while in his oral testimony he stated that workers for the PML fired on his house. No reasonable explanation for the discrepancy was given. |
| 3. In relation to his alleged arrest on June 20, 1997, the applicant tendered an arrest warrant to support his story. The panel noted that the arrest warrant was issued on June 21, 1997, the day after his arrest. There was no reasonable explanation for the discrepancy. |
| 4. The applicant testified orally that he did not have any difficulty leaving Pakistan as his agent accompanied him. However, he had earlier signed a declaration stating that he only visited Bangkok for the purpose of meeting his agent. When confronted with this inconsistency, he denied having made the statement in the declaration but when shown the statement, he admitted that a translator had translated the declaration from English to Punjabi before he signed it. There was no reasonable explanation given to the panel for the discrepancy. |
| 5. There was other similar evidence relating to his national identification card ("NIC"), his PPP membership card and certain letters from his father. |
[11] In my opinion, there were abundant facts upon which the panel could and did make all of its findings of credibility and it fell into no reviewable error by so doing.
| [12] Issue 2 |
Whether the panel erred in failing to accord the applicant the benefit of the presumption of the truth of sworn statements.
| [13] The applicant argued that since the applicant gave sworn testimony as to certain |
facts, there is a presumption that these facts are true unless there is some reason to doubt their truthfulness. As support for this proposition, he cited the decision of Heald J. in Maldonato v. Minister of Employment and Immigration [1980] 2 F.C. 302 (C.A.). Heald J. stated as follows at page 305:
| It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant"s credibility concerning the sworn statements made by him and referred to supra . When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness1. On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant"s allegations above referred to. |
| [14] This present case is far different from the facts in Maldonato, supra, as |
the panel of the Board listed many valid reasons for disagreeing with the allegations of the applicant. Furthermore, the presumption of truthfulness does not arise in this case because there exists "reason to doubt [the] truthfulness" of the applicant"s statements (Maldonato, supra ).
| [15] Therefore, I am of the opinion that the Board did not make a reviewable error in |
this respect.
| [16] Further, I am of the opinion that the Board was correct when it found at page 10 |
of its decision that:
| Given all of the above, the panel determines that there is insufficient trustworthy and reliable evidence upon which it can make a positive determination of the claimant"s claim that he was persecuted for Convention reasons in Pakistan. Even if the panel were to accept that the claimant is now a member of the Executive Committee of the PPP in Canada and has written an article about the visit of PPP dignitaries to Canada,19 it finds that these do not constitute sufficient persuasive evidence that there now exists a reasonable chance or a serious possibility that he will be persecuted, for Convention reasons, if he were to return to Pakistan today. . . . |
| [17] And when at page 11 of the decision it found: |
| CONCLUSION |
| After considering all of the evidence, the panel is satisfied that, on a balance of probabilities, there is not a reasonable chance or a serious possibility that the claimant would be persecuted if he were to return to Pakistan, by reason of political opinion (real or imputed), membership in a particular social group (members of the Pakistan People"s Party), or any of the other grounds set out in the Convention refugee definition. |
| The Refugee Division, therefore, finds Nadeem Akhtar Goshi not to be a Convention refugee. |
| [18] Both parties have stated that they do not wish to have a question certified pursuant |
to subsection 83(1) of the Immigration Act.
| [19] For the above reasons, I would dismiss the application. |
ORDER
| [20] IT IS ORDERED that the application for judicial review is hereby dismissed. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 19, 2000