Date: 20040819
Docket: IMM-6658-03
Citation: 2004 FC 1156
Toronto, Ontario, August 19th, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
NAVEED AHMAD SHAIKH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Naveed Ahmad Shaikh, has raised two issues respecting the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated July 22, 2003, which denied his claim to be a Convention refugee or a person in need of protection. Mr. Shaikh argues that the Board's credibility and implausibility findings were patently unreasonable and the Board failed to consider objective evidence of the risk of persecution to members of the Shia faith in Pakistan. For the reasons below, I have concluded that neither ground has merit and accordingly this application will be dismissed.
[2] The Board accepted the applicant's identity as a Shia Muslim from Pakistan, however, it found several aspects of his testimony not to be credible and that his evidence was implausible. The Board made the following findings:
- the applicant testified about major incidents and detailed his responsibilities at his local place of worship, the Imambargah, which were omitted in his Personal Information Form ("PIF") narrative, such as;
- he spoke publicly about intimidation and assaults by the Sipah-e-Sahaba ("SSP") in August 1999;
- he collected financial donations by going to Shia Muslims' houses, he arranged funerals for martyrs, gave speeches at rallies and voiced concerns regarding police corruption.
- in particular, he spoke out at an August 1999 rally against police corruption, a rally which he had organized;
- he had been offered a position in the finance department of his Imambargah several times but did not accept as he did not want to replace the finance secretary who was an old man;
- he was on the "hit list" of the SSP;
- the SSP had demanded that he give up his Shia faith;
[3] The Board did not accept the applicant's explanation as to why he did not include these events in his PIF, that is, that all of these facts were included under the term "active involvement" in his PIF or that he made a mistake in not including these details. The Board found that these omissions were significant aspects, going to "the core" of his claim, and the applicant was an educated man who could read and understand English on his own and he had been in Canada since January 26, 2001, while his PIF was completed and signed just under one year later, in December 2001.
[4] The Board noted that the applicant provided differing reasons as to why he did not have a receipt for his 50, 000 rupees donation in December 2000, when he had an earlier receipt for a 500 rupees donation, therefore the Board found that this event was fabricated to advance his claim. The Board also found that the applicant's PIF was amended at the hearing to state that the police had promised to write a FIR against the SSP after the December 6, 2000 incident, rather than stating that the police had decided to write a FIR against the SSP. Given the applicant's education and knowledge of English, the Board did not accept his explanation that there was an error in originally writing his PIF. Due to all of these credibility concerns, the Board gave the medical report submitted by the applicant no weight.
[5] The Board also noted that the applicant admitted that he did not take the initial threats in July 1999 seriously, and this admission of a lack of subjective fear in July 1999 was "significant", since if such threats had really occurred the way the applicant had described them, then the Board did not find this lack of fear plausible. The Board also found it implausible that the applicant would not take precautions, by curtailing his activities with the Imambargah, and would not insist on a private donation to the Imambargah, given the fact that he had allegedly been the target of past threats and attacks from the SSP.
ANALYSIS
[6] Mr. Shaikh argues that the Board erred in finding his testimony not credible or plausible, given that he had stated in his PIF that he was involved in his Imambargah "very much" and also described his involvement with it as "active". Therefore, he submits that his PIF does not contradict his testimony but merely that his testimony elaborated on these statements in great detail, and that the Board's finding against him in relation to such alleged omissions is unreasonable.
[7] The applicant also submits that the Board drew an unreasonable negative inference from his amendment to his PIF, as one missing word, the result of a miscommunication with the interpreter, changed the meaning of the sentence. The applicant also claims that he provided a reasonable explanation as to why he did not mention speaking at the rally in August 1999 in his PIF, since he focussed in his PIF on the incidents in which violence was inflicted upon himself or his property. Moreover, the Board's implausibility finding concerning the donation receipt was unreasonable, since the applicant testified that his store had been looted and therefore documents could not be located and that as a pious man he had no need for a receipt. The applicant relies on Tshimanga v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1512 (T.D.)(QL) for the proposition that the Board will err when it does not have regard to the totality of evidence in assessing credibility.
[8] The respondent, on the other hand, submits that the Board highlighted in "forceful and cogent terms" the many omissions, inconsistencies and implausibilities with the applicant's evidence and that it reasonably dismissed his claim. It was open to the Board to draw a negative inference against the applicant's credibility due to the evidence omitted from his PIF. The applicant's explanation that he would "elaborate" at the hearing has been held in the jurisprudence to be "not enough", in that it will not necessarily justify why important facts were omitted from a PIF and it will be open to a Board to draw a negative inference from such omissions: Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (T.D.)(QL) and Oduro v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 191.
[9] With regards to the applicant's lack of receipt for the 50,000 rupees donation, the respondent argues that the Board took issue with the applicant's "confusing and inconsistent explanations" as to why he did not have a receipt (page 6 of the Board's reasons), and the implausibility finding was not based on merely the absence of the receipt itself.
[10] On the first issue, that is the reasonableness of the Board's credibility and implausibility findings, I agree with the respondent. The Board was entitled to draw an adverse inference against the applicant because of the details that were missing from his PIF. While another decision-maker, or this Court, may not have weighed such omissions so heavily against the applicant, it was open to the Board, acting reasonably, to do so. The applicant's omissions largely dealt with a description of his involvement in the Imambargah and in the Shia community, and indicated that his profile was quite a prominent one. In his PIF, he only made reference to his "active" involvement with the Imambargah. The Board was entitled to view such lack of detail in his PIF in an adverse manner, against the applicant: Basseghi, supra.
[11] Furthermore, the applicant has not demonstrated that the Board failed to have regard to the totality of the evidence in coming to its negative credibility findings. The Board, I note, is presumed to have considered all the evidence unless the contrary can be shown, such as for example where the evidence not mentioned directly contradicts the Board's findings on relevant and important issues: see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.) and Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.)(QL), as well as Markovskaia v. Canada (Minister of Employment and Immigration) (1994), 86 F.T.R. 74 and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[12] Secondly, the applicant submits that despite the Board's credibility findings, it erred in failing to analyze the impact of current country conditions in Pakistan on the applicant as a member of the Shia minority and as a shopkeeper; two facts that it accepted. The evidence on the record is that prominent Shias have been the targets of the SSP. The applicant says that the case law has established that the Board is required to assess an applicant's situation in light of the objective country conditions if he establishes his identity. The Board, according to the applicant, erred in failing to do just this.
[13] The applicant relies on Kamalanathan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 55 (F.C.T.D.) and Mylvaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 (T.D.)(QL), where this Court held that the Board erred in failing to analyze the documentary evidence that individuals similar to the applicant were persecuted, despite its credibility concerns with the applicant.
[14] The applicant argues that the Board ignored evidence on country conditions that was before it, such as the U.S. Department of State Report on Human Rights Practices in Pakistan, March 2003, indicating that Shias were targeted for religious violence and that police at times refuse to charge persons who commit this violence. Further, the applicant says that the Board ignored recent documentary evidence before it that the government is insincere in its commitment to ban militant groups and there is inadequate state protection for Shias in Pakistan.
[15] The respondent says that the decisions cited by the applicant in support of this second argument are not applicable to his case and in contrast, the Board's credibility determination was indeed determinative of his claim. The Board was not required to undertake a further assessment of the country conditions in Pakistan and whether, absent his own evidence which the Board found non-credible, based on his identity as a Shia Muslim he would face a serious possibility of persecution. The respondent relies on Djouadou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1568 (T.D.)(QL), Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 (C.A.), Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.) and Mathiyabaranam v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1676 (C.A.)(QL) in support of this position. The respondent contends that the applicant's identity as a Shia Muslim does not in itself constitute the minimum basis for a claim, as there is nothing in the documentary evidence referred to by the applicant which indicates that this would be enough to demonstrate a reasonable chance of persecution in Pakistan for the applicant.
[16] In my view, the decisions cited by the applicant are distinguishable, and the decisions cited by the respondent are applicable to the case at bar. I find that this Court in Seevaratnam v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 130 well set out the circumstances when the Board will have an obligation to consider documentary evidence, even in the face of negative credibility determinations against an applicant, at page 132:
Clearly, where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution. It becomes impossible to establish a link between the person's claim and the documentary evidence.
This is obviously different from the present case, where there was evidence, including her NIC, emanating from sources other than the applicant's testimony, which can link her claim to the ongoing persecution of young Tamil women in Sri Lanka.
[17] In my opinion, while the Board accepted that the applicant was a Shia Muslim from Lahore, its many concerns with his credibility and the plausibility of his evidence centred around his level of involvement or prominence in the Shia community which he had claimed. Therefore, since the Board determined that there was a lack of credible evidence, namely that the applicant had such an active role in his Shia community, that would link his situation to the description of Shia individuals who were being targeted by Sunni Muslim extremists in the general documentary evidence, then a further analysis of whether he faced persecution based on that other evidence, despite the Board's negative credibility findings, was not required. In the cases of Seevaratnam, supra, Kamalanathan, supra, and Mylvaganam, supra, other evidence, beyond the applicant's own testimony, supported the possibility that the applicant could be persecuted, based solely on such accepted factors as the applicant's identity and former area of residence. In this case, the fact that the applicant was a Shia shopkeeper from Lahore were not factors that, alone, indicated that he could be persecuted, pursuant to the documentary evidence and therefore in the face of the applicant's non-credible evidence, the Board was not required to undertake further analysis, as it had set out in clear terms why it disbelieved the applicant's claims of having a prominent role in his local Shia community.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question was proposed and none is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-6658-03
STYLE OF CAUSE: NAVEED AHMAD SHAIKH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 17, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: AUGUST 19, 2004
APPEARANCES BY:
Ms. Lani Gozlan
FOR THE APPLICANT
Mr. Stephen H. Gold
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Berger & Associates
Barristers & Solicitors
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040819
Docket: IMM-6658-03
BETWEEN:
NAVEED AHMAD SHAIKH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER