Federal Court Decisions

Date: 20050822

Docket: IMM-9157-04

Citation: 2005 FC 1140

Toronto, Ontario, August 22, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN

BETWEEN:

AHMAD HUSSAIN

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

(Delivered orally from the bench and subsequently written for precision and clarification)

[1]    The Applicant is a 33 year old man from Punjab, Pakistan. He claims to be a refugee due to his membership in a particular social group in that he is a male homosexual.

[2]    He alleges that he was punished and persecuted in Pakistan by his family because of his sexual orientation both at his family home and his uncle's residence in Lahore. In addition, the local Iman agitated against him and allegedly issued a fatwa against him. With the help of an agent, the Applicant fled to Canada and seeks asylum.

[3]    The Immigration and Refugee Board (the "Board") denied his claim finding the totality of his evidence not credible and also finding that the evidence did not corroborate his allegation that he is a homosexual.

[4]    The Applicant disputes the finding contesting some of the plausibility findings of the Board and also alleging that it is implicit in the language of the decision that the Board used a stereotypical, if not ignorant, approach to homosexuality.

[5]    The standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).

[6]    It is well established that the Board is in the best position to assess the credibility of a claimant as it can examine the demeanour of the claimant first hand. As stated by Martineau J. in R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 at para 7:

The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.

[7]    The Court in Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 stated at para 14:

Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence.

[8]    The Board conducted a thorough analysis of the evidence and arrived at the conclusion that the Applicant was not credible in his claim that he was homosexual and being persecuted as a result. It is well within its jurisdiction to do so. The Board found several implausibilities in the Applicant's evidence. I cannot see how any of the Board's findings can be characterized as being totally unreasonable.

[9]    It may be that the Board in this case was less then enlightened in its approach to homosexuality (to wit page 9 of the Board's decision). Yet, as established in Akinlou, supra, it is not for this Court to set aside its decision if it is supported by the evidence. Allegations based on an implicit reading of the decision are not sufficient to allow this Court to overturn a Board's decision.

ORDER

THIS COURT ORDERS that this application be dismissed.

"K. von Finckenstein"