Date: 20000829
Docket: IMM-3718-99
BETWEEN:
RAFIQ MOHAMMAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS, J.:
[1] This is a judicial review application of the decision of the Refugee Board dated June 29, 1999 wherein the Board concluded that the applicant was not a Convention refugee.
FACTS
[2] The applicant is a 43 year old male, citizen of Pakistan. He alleges that his family always supported the Pakistan People"s Party (PPP) which held meeting in the family pharmacy.
[3] He claims that on various occasions, Member of the Provincial Assembly (MPA), Mohammad Siddique Balouch, pressured him to join his party and formulated threats against him.
[4] On February 14, 1996, his shop was burnt.
[5] In May 1997, he claims to have been tortured by MPA goons. In December 1997, he claims to have been tortured by the police following his arrest. Upon his release, he went into hiding.
[6] On January 12, 1998, MPA Balouch, came to his house. Not finding him, he ordered that the applicant"s wife be tortured. She died as a result.
[7] On March 21, 1998, the applicant left Pakistan. He arrived in Canada on March 23, 1998 where he claimed refugee status based on his political opinion.
THE BOARD"S DECISION
[8] The Board did not find the applicant credible. It was of the view that it has not been demonstrated with credible evidence that the applicant and his wife were tortured by PMA goons, that he was arrested by police and tortured or that he would be at future risk of persecution if he returned to Pakistan.
[9] This case was heard on three different sittings. At the second sitting, the RCO asked the applicant if he tried to obtain additional documents. The applicant said that he contacted his cousin, who went to the police station to get the required information. The cousin"s request was refused, furthermore he was detained. The RCO remarked that the applicant had already adduced that information in evidence. At which point, the applicant said that his cousin went a second time. The Board did not find it plausible that the applicant"s cousin would attempt to go back to the police station a second time, asking for records of the burnt store, when it was refused the first time and he had to bribe his way out of detention.
[10] This implausibility led the panel to believe that P-13, containing the sentence : "I am sorry that I can not go to police station again" was not legitimate, that the applicant did not contact his cousin, whether a first or a second time.
[11] The Board noted that the applicant was inconsistent with regard to the issue of contacting a lawyer to settle his problems in Pakistan. His first answer was negative because of the fees involved. He then said that lawyers refused to handle political problems. The Board then heard that the applicant"s relative contacted all the lawyers in the city of 700,000 people but they all refused to take the case, because there is a need for a police report.
[12] The Board noted that the applicant became evasive when asked if he contacted a lawyer when his shop burnt. The applicant explained that since his persecutor, MPA Balouch, was in power, he could not get any action like that. He finally said that he contacted a lawyer but without a police report, nothing could be done. The claimant was reminded that at the time, the PPP was in power. The applicant explained then that action was taken against the PPP whether they were in power or not.
[13] All these inconsistences, adding to the applicant"s evasiveness contributed to the panel finding the applicant lacking in credibility. Moreover since the PPP was in power at the time, the Board did not find it plausible that no lawyers would have taken the applicant"s case if it were genuine.
[14] The Board noted that the applicant was evasive when asked wether legal proceedings had been instituted against him. He finally admitted that there was no official procedures against him. The applicant"s evasiveness led the panel to find that there are no charges against him and that his credibility was, once again, found to be questionable.
[15] The applicant"s evasiveness as to why his name was not mentioned in the local papers if he was the co-organizer of the Independence Day PPP procession, indicated to the panel that the applicant could not support his allegation and that he was not the political organizer he claimed to be.
[16] The Board found that the generalities described by the claimant do not support the plausibility that a powerful feudal lord would care to persecute a simple worker, if the applicant was even a worker for the PPP.
[17] The Board was baffled by the fact that someone who is unable to show local publications with his name and whose own description of his role appears rather minor, would be the sustained target of a powerful feudal lord or that he would have passed that stage to become a target of the governing Muslim League (ML). The panel did not find these allegations credible.
[18] The Board accepted the testimony of lawyer Mujeeb ur-Rehman, who stated that he was unaware of existing anti-terrorist laws and that he would not advise that First Information Reports (FIR) could be obtained if it was not a regular procedure. The Board concluded that the FIR could not be obtained, because it does not exist. This conclusion led the panel to find that the goons did not burn the applicant"s store.
[19] Furthermore, the Board noted that the applicant wrote in his PIF, that he worked in his own pharmacy from 1982 until January 1998, whereas he testified that the pharmacy burnt down in 1996. This contradiction led the Board to conclude that the evidence that the applicant"s pharmacy was burnt down was not credible.
[20] The Board pointed out that the applicant wrote that he was summoned by MPA Balouch in May 1997. At the hearing, he said that Balouch"s people took him to the MPA"s place. Those goons did not take him from his house but from his friend"s house. These variations and additions from the original "summoned" added to the applicant"s lack of credibility, indicated to the panel that this encounter with the MPA did not occur.
[21] The Board refused to give any probative value to P-11 and P-12. It noted that the stationary contained neither address nor telephone number. Furthermore, it pointed out that a neuro surgeon would know how to spell surgery; all the more so as he writes documents in English.
[22] As to P-10, the Board noted that the date appears reworked in a skill-less manner which taints the credibility and denies it any probative value.
THE APPLICANT"S POSITION
[23] The applicant claims that the Board erred by ignoring the lack of police protection and by focussing on additional agencies and counselling services including legal services. He submits that there is no requirement on any refugee claimant to approach counselling services or a legal counsel as a form of substitute for the established police protection. The applicant reminds the Court that he approached the police at least four times but was unable to get its protection.
[24] The applicant submits that the Board misconstrued his testimony. He gave three reasons why he did not contact a lawyer. The Board erred in concluding that he was contradicting himself.
[25] The applicant alleges that he was not evasive when questioned regarding his burnt shop.
[26] The applicant further claims that he was not evasive in answering the questions whether any legal proceeding was instituted against him. It is more a question of answering to the best of his ability given what he knows from past experience and what he has learned from his cousin. He did not reluctantly answer as the panel has stated, he simply is not sure one way or the other.
[27] As to the applicant's name appearing in the local newspaper, he submits that he answered the question in a straightforward manner, that reporters gave the news, but that he did not get a copy. The applicant submits that the panel did not ask a question but suggested that the applicant's name should be in the newspaper. The applicant responded that he did not remember if the newspaper mentioned the names of the organizers.
[28] The applicant submits that there is no evidence to support the panel's statement that the applicant's name should be mentioned in the newspaper. It is nothing more than mere speculation on the part of the Board.
[29] The applicant claims that his responsibilities within the party were wider and he was more involved that what the Board mentioned in its reasons. As to the Board's finding that he was not a worker for the PPP, the applicant notes that the Board did not question his PPP membership card, as to the letter from Mirza Nasir Baig, a minister of the National Assembly, the Board simply disregarded it because in their view the generalities advanced by the applicant do not support the responsibilities which the letter ascribes to him.
[30] The applicant submits that Exhibit A-22 clearly states that only the accused can obtain a copy of the FIR. Despite this clear statement, the Board had a great deal of difficulty understanding this unequivocal statement and concluded that the applicant who is the complainant and not the accused with respect to his burnt pharmacy ought to have obtained a copy. In so doing it erred.
[31] The applicant submits that he did not contradict himself when he wrote he was summoned. He points out to his PIF where he said that he was summoned and that Balouch's people took him to Balouch's bungalow and tortured him.
[32] The applicant submits that there is an address on the stationary submitted. It is Nishtar Hospital Multan, Neuro Surgery Ward No. 14. This is just as clear an address as it would be if the document stated Montreal General Hospital, Neuro Surgery Ward No. 14.
[33] As to the spelling of the word "surgery", the applicant submits that given that the panel recognizes that the letter is signed by the registrar, it is not clear how the panel concluded that the surgeon would know how to spell "surgery".
[34] Furthermore, the applicant notes that no one: not the President of the Board, not the second Commissioner and not the RCO, asked one question, in the three days of hearing, that even vaguely questions the applicant with respect to a lack of address, or telephone number, or the spelling of the word surgery or the alleged reworking of Exhibit P-10.
THE RESPONDENT'S POSITION
[35] The respondent submits that the applicant's contentions in his memorandum fall short of showing the kind of errors that are needed to warrant the Court's intervention.
[36] It is trite law that the Board has a well established expertise in the determination of questions of facts, particularly in the evaluation of the risk of persecution faced by the applicant, if returned to his country.
[37] The respondent claims that the findings of contradictions and inconsistencies made by the Board are well within its expertise on questions of facts and entirely supported by the evidence.
[38] Contrary to the applicant's contention, the Board did not impose any duty upon him to consult a lawyer instead of going to the police. The Board's conclusion on this aspect of the applicant's testimony is based solely on the contradictory answers of the applicant on this matter.
[39] The respondent submits that the general finding of lack of credibility of the applicant's testimony extends to all the other aspects of his testimony.
[40] The respondent suggests that the allegation made by the applicant are directed solely at the Board's findings of facts and only purport to substitute another opinion to the tribunal's own appreciation of his testimony.
ANALYSIS
[41] Dealing first with the applicant"s argument that the Board imposed an additional requirement on him to contact a lawyer, I was unable to find proof for such allegation upon a reading of the reasons and the transcript. The questions regarding the lawyer's involvement went to the credibility issue, as is evidenced from the Board's reasons at the end of page 2. The Board did not add it or substituted it to the state protection. It was in a completely different context, one relating to the credibility of the applicant. The applicant was later asked, starting at page 48 of the transcript, whether he could get state protection and he answered in the negative.
[42] As to the reasons why the applicant did not contact a lawyer, the Board simply stated what happened, I cannot see how the Board misinterpreted the applicant's answers as he is suggesting.
[43] The Federal Court of Appeal held in Aguebor v. M.E.I. (1993) 160 N.R. 315:
| 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. |
[44] The manner in which an applicant conducts himself during his testimony is an element taken into consideration by the Board in assessing his credibility. An applicant who seems to evade the question and have to be asked numerous times for his answer is less credible than an applicant who answers the question in a straightforward manner.
[45] When asked about a lawyer's involvement following the burning of his shop, the Board noted that the applicant evaded the question and had to be asked three times, once by the RCO, once by the presiding member and thirdly, by the member of the Board, before finally answering in the affirmative. Moreover, the Board raised the fact that it was the applicant's party that was in power when the shop burnt, surely a lawyer sympathetic to the PPP would have taken his case. The applicant did not satisfy the Board with his explanations.
[46] The Board also noted that the applicant claimed to have worked until January 1998 in his shop, when at the same time he claims that it burnt down in February 1996 and was not rebuilt. Despite this fact, he obtained a renewal of his licence in March of 1996. The Board pointed out these inconsistencies to the applicant, however his explanations were lacking.
[47] The applicant evaded the question of the existence of legal proceeding, suggesting that Balouch and his goons are out to get him. When asked bluntly again whether there were any official legal proceeding against him. He answered:
| A. It seems like that, but... because Mohammad Sadiq Khan's pressure is so much that they would do whatever he wants. |
[48] As to the applicant being a co-organizer of the PPP procession for Independence Day, the Board found him evasive and did not believe that his name would not be mentioned in the local newspaper. This conclusion is closely linked to the Board disbelieving the role of the applicant and his responsibilities within the party as the Board raises it again when it concluded that a simple worker would not be the target of the feudal lord. Such finding is based on the evidence before it and is within its jurisdiction as the trier of fact. The applicant has yet to prove its unreasonableness.
[49] The applicant could not prove the existence of the anti-terrorist law that allegedly existed.
[50] Furthermore, the lawyer, Mr. ur-Rehman, stated clearly that an accused can get a copy of his FIR. As to the Exhibit A-22, it states that certain documents can only be obtained by the accused. A-22 deals with the right of the accused to have access to his FIR. This document does not say that only the accused can obtain a copy of his FIR as the applicant is suggesting. The Board interpreted this document to mean that a complainant can get a copy of the complaint FIR if it existed.
[51] After assessing the evidence, the Board found Mr. ur-Rehman's evidence to be more credible than the applicant's and concluded that an FIR did not exist, as the applicant claimed.
[52] As to the issue of being summoned, this is again a finding of fact within the Board's expertise.
[53] Furthermore, the Board assessed the evidence, as it was mandated to do. It did not find that the letter missing the address and the spelling error to be credible.
[54] Such findings are within the Board's expertise as the trier of fact and this Court cannot intervene unless it is unreasonable. I am not convinced that it is in this case.
[55] This judicial review is dismissed.
[56] Neither counsel suggested a question of general importance for certification.
| Pierre Blais |
Judge
OTTAWA, ONTARIO
August 29, 2000