Date: 20000811
Docket: IMM-1940-99
BETWEEN:
SAEED ATIF HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Saeed Atif Hussain, the applicant, is a 28 year old citizen of Pakistan who claimed, unsuccessfully, before the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") to be a Convention refugee. In this proceeding, Mr. Hussain challenges that determination and seeks an order quashing the CRDD"s decision dated March 8, 1999.
[2] Mr. Hussain based his claim to a well-founded fear of persecution in Pakistan on the grounds of religion, political opinion, and membership in a particular social group, namely Shi"ites in Pakistan.
THE DECISION
[3] The CRDD found that Mr. Hussain had not established a credible basis for his claim. The panel concluded, in material part, as follows:
| The panel has given due consideration to cultural factors that might have had an impact on the manner in which the claimant provided his testimony, including the anxiety that might reasonably be expected to go hand-in-hand with the Convention refugee determination process; however, even given these considerations, the panel still finds that the claimant"s testimony in connection with material aspects of his claim is lacking in trustworthiness and, therefore, is not credible. |
| The claimant alleged that all his problems in Pakistan arose from his membership in the Shi"a sect of Islam. He testified that because of his " and his family"s " abiding belief in the Shi"a, as well as his family"s long historical involvement in the Shi"a"s Imam Bargah , he had been systematically targeted for persecution by the majority Sunnis, particularly the fundamentalist organization Sipah-i-Sahaba. Allegedly, because of his refusal to leave the Shi"a, and convert to the Sunni sect, the claimant had been verbally abused, threatened with death, and tortured to almost the point of death. He stated further that his father had reported to the police the abuses he (the claimant) had suffered, but to no avail. However, the panel finds that the claimant"s knowledge of basic information about the Shi"a religion is woefully inadequate, at best, and markedly inexistent, at worst, so much so that it cannot help but conclude that he does not have the high profile to which he testified " that is, if he is a member at all. As stated, this profile was supposed to be the cause of all the alleged persecution that he experienced in Pakistan, so much so that within his own family, he was the one who was being specifically targeted. |
THE ISSUE
[4] On Mr. Hussain"s behalf it was alleged that in coming to this conclusion, the CRDD failed to comply with the requirements of subsection 68(5) of the Immigration Act , R.S.C. 1985, c. I-2, as amended ("Act"), and breached the duty of fairness by relying upon evidence not before the panel at the hearing.
[5] The information relied upon by the CRDD came from The New Encyclopedia Britannica, and two encyclopedias on world religions. The information from those sources was footnoted by the CRDD in its written decision and consisted of evidence on the importance to Shi"ites of their Imams, the names and the number of Imams, the permissible grouping of evening and night prayers, and how that grouping differed between Shi"ites and Sunnis.
[6] In response to Mr. Hussain"s arguments, the Minister submitted that subsection 68(5) of the Act does not specify the time at which notice of specialized knowledge is to be given, and that the legislation is complied with so long as a reasonable opportunity is afforded to make representations with respect to the specialized knowledge.
[7] The Minister further submitted that the evidence before the Court demonstrated that the specialized knowledge of the CRDD with respect to the practices of the Shi"a was put to Mr. Hussain by the CRDD at the hearing and he was then given an opportunity at the hearing to respond to this specialized knowledge. He was also provided with an opportunity to submit additional evidence after the hearing.
[8] As to the use of the encyclopedias, the Minister asserted that the actual sources of the CRDD"s specialized knowledge are immaterial, whether they be published information on country conditions, knowledge acquired from sitting on a number of related cases or, as in this case, encyclopedias available to the general public.
ANALYSIS
[9] I begin by noting that where the CRDD draws on its specialized knowledge and familiarity with refugee claims, or on generally recognized facts or information, and determines that evidence is implausible, judicial deference is owed to that determination.
[10] The CRDD must comply with the requirements of subsection 68(5) of the Act, which provides that:
| 68(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto. |
68(5) Sauf pour les faits qui peuvent être admis d'office en justice, la section du statut informe le ministre, s'il est présent à l'audience, et la personne visée par la procédure de son intention d'admettre d'office des faits, renseignements ou opinions et leur donne la possibilité de présenter leurs observations à cet égard. |
[11] I am unaware of, and counsel has not directed me to, any requirement in the jurisprudence that requires compliance with subsection 68(5) at the outset of the hearing. Compliance with the subsection during the hearing has been found to be sufficient.
[12] In Elmi v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 122 (F.C.T.D.) at paragraph 17 of his reasons, McKeown, J. stated:
| The Board stated during the hearing that it was relying on its specialized knowledge that clan members traditionally look after one another. Counsel for the applicant addressed this issue in his final submissions before the Board. Thus, the notice requirement of s. 68(5) has been met by the Board. [emphasis added] |
[13] Justice Rothstein, then of the Trial Division of the Federal Court, held in Portilla v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 766, at paragraphs 9 and 10, that:
| [9] While panel members should take care to concentrate on evidence given before them, there will be occasions when a panel member will have some knowledge that will cause him or her to invoke subsections 68(4) and (5). The purpose of these provisions is to ensure that parties have an opportunity to make representations when a panel may take notice of generally recognized facts or information or opinion that is within its specialized knowledge. That opportunity was afforded the applicant in this case. Mr. Burke"s statement that it was common to see large cars in Mexico was innocuous and does not give rise to a reasonable apprehension of bias. |
| [10] Nor was there any obligation on the panel to make express reference to Mr. Burke"s statement in its reasons. The panel did make reference to the Applicant"s evidence that the men who abducted and assaulted her were driving a big dark blue car and that she thought that they were judicial police. However, it noted that she could provide no further details about the car. Clearly the panel was not prepared to infer, just because the Applicant said that the men who abducted and assaulted her were driving a big dark blue car, that they were Mexican judicial police. The panel concluded that it was implausible that the Mexican judicial police were interested in continuing to persecute the Applicant. The panel was not obliged to make explicit reference to Mr. Burke"s observations in its reasons, although it appears they had some influence on its conclusion. The important point is that the Applicant was given the opportunity to submit evidence and make representations in response to Mr. Burke"s statement. In providing that opportunity the Board complied with subsection 68(5) of the Immigration Act. [emphasis added] |
[14] In the case before me, given Mr. Hussain"s stated devoutness as a Shi"ite, the panel"s decision was based upon negative inferences which it drew from the following:
| (i) Mr. Hussain"s failure to name the Shi"a"s twelve Imams. He named five; |
| (ii) Mr. Hussain"s assertion that Hazrat Fatima was an Imam. The panel stated that she was, in fact, married to an important Imam; |
| (iii) Mr. Hussain"s failure to demonstrate the washing ritual which Shi"ites perform prior to their regular prayers and which is viewed by them as an obligation; and |
| (iv) Mr. Hussain"s statement that Shi"ites cannot group their evening and night prayers. The panel stated that Shi"ites differ from Sunnis in that in the Shi"a the noon and afternoon prayers, as well as the evening and night prayers, are usually grouped together. |
[15] In respect of the first inference, Mr. Hussain was asked to tell the panel the principles on which his religion was based. He proceeded to answer and in the course of answering stated that his faith believed in twelve Imams. He then admitted he could not name any others than the five he identified.
[16] It was not, in my view, unreasonable or improper for the CRDD to draw a negative inference from that failure.
[17] With respect to the second inference, Mr. Hussain was asked to give proof that Hazrat Fatima had been proclaimed or considered an Imam. He did not provide such proof, either during or after the hearing. Having afforded that opportunity to Mr. Hussain, I cannot find that the CRDD committed a reviewable error in the drawing of the negative inference.
[18] With respect to the washing ritual, and the inference drawn from Mr. Hussain"s demonstration of that ritual, the presiding member during the course of the hearing did advise that the panel was aware of the basic practices of Shi"ites. The panel proceeded to ask Mr. Hussain to confirm his understanding of the ritual. The panel then gave its understanding. The presiding member followed by inquiring:
PRESIDING MEMBER: Are you able to give us some " any documentary evidence from Imam or something like in your mosque that that is indeed the practice of washing your hands?
CLAIMANT: I can get it from the Imam, yes.
[19] Later in the proceeding, the presiding member asked Mr. Hussain"s counsel if he would be able to obtain information to refute the CRDD"s understanding of the ritual. It was clear Mr. Hussain"s description of the washing ritual of Shi"ites was not consistent with the panel"s understanding.
[20] I conclude this was sufficient compliance with subsection 68(5) of the Act.
[21] With respect to evening prayers, the panel did make clear its concerns that Sunnis" and Shi"ites" practices varied as to which prayers could be grouped together. While the CRDD could have made clearer its understanding as to the grouping permissible to Shi"ites, I cannot conclude that it committed a reviewable error. A reasonable opportunity was afforded to Mr. Hussain to make representations about the concerns the panel had about his description of the grouping of prayers.
[22] As to the use by the panel of encyclopedias, the panel did during the course of the hearing set out in a clear fashion its concerns about Mr. Hussain"s testimony on Shi"ite practices which arose from its review of those volumes. The nature of the subject matter was the kind of general knowledge contemplated by subsections 68(4) and (5) of the Act. Those provisions recognize the ability of the CRDD to take notice of generally recognized facts.
[23] After the CRDD advised Mr. Hussain of its concerns it afforded him a reasonable opportunity to make representations with respect to the concerns. I find nothing in the Board"s footnoted references to encyclopedias to constitute a breach of any duty it owed to Mr. Hussain.
[24] Mr. Hussain was represented before the CRDD by experienced counsel (not counsel who represented Mr. Hussain before this Court). I find that the CRDD made Mr. Hussain"s counsel well aware of its concerns. At the conclusion of the hearing Mr. Hussain"s counsel advised the panel as follows:
| COUNSEL: I spoke just briefly with the client out front on the way back between the waiting area and here and I asked him whether it would be okay if we took the position we would not be making submissions and he basically agreed with that position. The only position, or the only notes " a couple points of note. The subtleties of the faith, even fundamentals can be unknown to practitioners of the faith. I mean, my own personal knowledge being raised in a very devout Catholic family and the Catholic school I still couldn"t name you the Ten Commandments in order. The only cardinal sin I could be sure of naming is the Cardinal of Manila and I doubt " so those are important things. I know there are Cardinals Vigneaut (ph) and more than that. So you know, we might have had bad Priests in the neighbourhood and in our schools too, but in any event I think that we"ll let the evidence stand as it is and then make our choice of action from there. |
| PRESIDING MEMBER: Thank you. |
No post-hearing submissions were made.
[25] In this circumstance, despite the able submission before me by counsel for Mr. Hussain, I cannot find any error which would justify setting aside the decision of the CRDD.
[26] The application for judicial review is therefore dismissed. Counsel were agreed that on the facts of the case no question is raised for certification.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
August 11, 2000