Date: 20040617
Docket: IMM-8113-03
CALGARY, Alberta, this 17th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
KHURAM SHAHZAD
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 1, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection for lack of credibility.
FACTS
[2] The applicant, a 18 year old citizen of Pakistan when he arrived in Canada on June 25, 2002, made a refugee claim on June 27, 2002. He alleges a well-founded fear of persecution for his political opinion, at the hands of the Pakistani military, police, and political opponents of the Pakistan Muslim League ("PML"). The applicant claims that on March 3, 2002, he became a member of the Muslim Youth Wing ("MYW"), which is the youth wing of the PML. He also claims his father was a longstanding activist of the PML and that he assisted his father with campaign activities during the 2001 election.
[3] His claim is based on the events which allegedly transpired on April 28, 2002, as follows. The applicant was harassed by opposition thugs, while distributing PML pamphlets urging people to vote against the presidential referendum called by General Pervez Musharraf, the military ruler of Pakistan. Believing that he would be arrested by police, he fled to his uncle's house in Islamabad. Upon contacting his family, he learned that the police had raided his home in search of him. He also learned that charges had been laid against him. His father then arranged with an agent to smuggle the applicant into Canada, via the United States. The applicant claims that after his arrival in Canada, he learned that a warrant had been issued for his arrest in Pakistan.
[4] After the Board heard the applicant's claim, it concluded that the applicant failed to produce credible evidence to support his claim. The Board identified inconsistencies, omissions, and implausibilities in the applicant's evidence. The Board made the following findings:
1) the applicant's Personal Information Form ("PIF") contained no reference to recruitment activity, but he testified that recruitment of new members was an important part of his duties with the MYW;
2) the applicant had poor knowledge of basic information about the PML and its various factions;
3) the authenticity of the applicant's National Identity Card ("NIC") was in question;
4) the applicant's story about how he was smuggled into Canada on the back of a truck, was dropped off at a Montreal laundromat without any support or instructions, and then happened to meet a Pakistani stranger by chance, was found to be implausible;
5) the applicant waited over a year to obtain corroborating documents for the charge laid against him, and the warrant for his arrest; the Board found his lack of personal interest and substantial delay in obtaining the documents to be inconsistent with his stated subjective fear of the alleged charges;
7) the corroborating documents eventually produced were suspect because they were of poor quality, and the documentary evidence revealed a prevalence of false judicial documents from Pakistan; and,
8) the supporting letter from the MYW was vague and self-serving.
[5] After making the above findings the Board reached the following conclusion at page 4 of its reasons:
[...]
The cumulative effect of the foregoing non-credibility findings led the panel to conclude that the claimant is not credible in his allegations. The panel does not believe that he was an active member of the MYW, and that he is faced with politically motivated charges in Pakistan. The claimant has not discharged his burden of proof to establish with credible or trustworthy evidence that there is a "serious possibility" or "reasonable chance" that he would be persecuted or would face cruel or unusual treatment or punishment or torture or risk to life should he return to Pakistan.
ANALYSIS
[6] The sole issue raised in this application is whether the Board erred in rejecting the applicant's credibility. The applicant submits that the Board failed to consider the totality of the evidence, and failed to give due weight to the evidence supporting his claim. The applicant submits that the Board's rejection of his explanations for any omissions or inconsistencies was unreasonable. The applicant submits that the Board misconstrued the evidence on record, and in particular, his oral testimony.
[7] The respondent submits that the Board was entitled to make a negative credibility finding on the basis of the numerous inconsistencies and contradictions it noted. The respondent submits that the Board clearly stated its reasons for doubting and discounting the applicant's testimony. The respondent argues that there is no support for the applicant's bare assertion that relevant evidence was not considered. The respondent further submits that the Board correctly found that the actions of the applicant were not consistent with a subjective fear of persecution.
[8] The standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. This Court will not substitute the Board's decision with its own, except the Board's decision is clearly wrong. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
[9] I have reviewed the record, including the transcript. I have concluded that the Board's findings of fact and assessment of credibility are patently unreasonable with respect to the so called inconsistencies and implausibilities.
[10] First the documentary evidence corroborating the applicant's allegation that the police have charged him with a criminal offence for distributing pamphlets against the government seems authentic. The Board rejected the documents since the applicant delayed obtaining them until instructed by his counsel just prior to the Board hearing. The Board considered this delay undermined the authenticity of the documents. I am of the view that this explanation for the delay is reasonable, and is not a reasonable basis for rejecting the credibility of the documents. The Board also found the documents were probably forged because many documents from Pakistan are forged.. I find that the letter from the lawyer in the applicant's home town appears authentic. On the letterhead, the lawyer has struck out by hand reference to a client that he no longer represents. If this letter was a lie, the lawyer would not have bothered to strike off the client printed on the letterhead. The other documents are the information laid against the applicant on April 28, 2002 and the arrest warrant for the applicant dated July 31, 2002. These documents corroborate the applicant's story. I have concluded that the basis for rejecting the credibility of these documents is also patently unreasonable because they are as credible as the lawyer's letter.
[11] Second, I do not consider the omission in the PIF or the lack of detailed knowledge about the PML to be a legitimate reason for rejecting the credibility of the applicant. The PIF contains reasonable detail of the reason why the applicant fled Pakistan. The viva voce testimony of the applicant demonstrate detailed knowledge of the applicant's activities with the PML consistent with his young age of 18 years. Accordingly, the Board's objection of the applicant's credibility in this regard is also patently unreasonable.
[12] Third, the alleged "conflicting information" in the applicant's National Identity Card ("NIC") in Pakistan with respect to a mole on his face and with respect to his present address is also patently unreasonable. The NIC did not identify any mole on the applicant's face. The applicant was examined by the Board member who found that there was no mole on the applicant's face. With respect to the applicant not putting his current address on his NIC while hiding in the capital of Pakistan, I find that this is consistent with the fact that he was hiding from the authorities because they wanted to arrest him for distributing those pamphlets.
[13] Fourth, the applicant's story about being smuggled into Canada on the back of a truck and the letter from the Muslim Youth Wing are plausible and the Board has not provided any clear reason for rejecting this evidence.
[14] For these reasons, I have concluded that the Board's basis for rejecting the applicant's credibility is patently unreasonable. Moreover, I find that the Board did not consider the objective documentary evidence from Pakistan which corroborates that the police are arresting persons who speak out against the government like the applicant allegedly did.
[15] I asked both counsel whether they considered that this case raised any serious question of general importance which ought to be certified for an appeal. They both answered in the negative. The Court agrees that this case does not raise a question which should be certified.
O R D E R
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board in this matter is set aside, and the matter is referred back to the Board for redetermination by a different Board member.
_____"Michael A. Kelen"______
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8113-03
STYLE OF CAUSE: Khuram Shahzad v. The Minister
of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 16, 2004
REASONS FOR ORDER AND ORDER : KELEN J.
DATED: June 17, 2004
APPEARANCES:
Mr. Birjinder P. S. Mangat FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Birjinder Mangat
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT