Federal Court Decisions

Date: 20050223

Docket: IMM-9107-03

Citation: 2005 FC 282

Ottawa, Ontario, February 23, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

KAUSAR IJAZ NAQUI and HUMZA IJAZ NAQUI

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]       Kausar Ijaz Naqui and her 18 year old son, Humza Ijaz Naqui, are citizens of Pakistan. They allege that they are Convention refugees and persons in need of protection due to the persecution that they claim to have suffered because of their Shia Muslim religious faith, and because Ms. Naqui's husband (Humza's father) was active in his Imam Bargah.

[2]       The Refugee Protection Division of the Immigration and Refugee Board rejected the Naqui's refugee claims, finding that they had failed to provide credible or trustworthy evidence to support their claims.

[3]       The Naquis seek to have the Board's decision set aside, asserting that many of its credibility findings were patently unreasonable.

The Applicants'Allegations

[4]       The Applicants say that their family was targeted by the Sipa-i-Sahaba (SSP), a militant Sunni organization, because they were Shias, and because Ms. Naqui's husband was the Stage Secretary at his Imam Barghah.

[5]       Ms. Naqui says that her husband was assaulted by SSP members on October 21, 1998. He ended up in hospital for four days as a result. The incident was reported to the police, but according to Ms. Naqui, nothing was ever done to investigate the assault.

[6]       In April of 1999, the family was attacked by SSP members while they were holding a religious gathering in their home. The attackers beat the family and their guests, and looted the house. The family reported this attack to the police. Although the police arrested several people, these individuals were released after bribing the police.

[7]       After the April attack, the family started receiving threatening phone calls. Four months later, the family home was again invaded and looted by members of the SSP. Ms. Naqui, who was home alone at the time, was sexually assaulted. Ms. Naqui says that she was hospitalized for a week after the attack, and although her husband reported the incident to the police, once again, nothing was done.

[8]       In April of 2000, Ms. Naqui's husband was beaten up by unknown assailants, who threatened him because of his relationship with the local Imam. This incident was also reported to the police, and again nothing came of it.

[9]       Ms. Naqui asserts that in June of 2000, the police began a campaign against Shias, arresting them in order to extort bribes for their release. Ms. Naqui's husband was arrested on July 14, 2000, and she had to pay 40,000 rupees in order to get him released.

[10]     At this point, Ms. Naqui says that the family decided to leave Pakistan. The agent hired by the family advised them to travel in two groups. Ms. Naqui and her son left first, arriving safely in Canada on August 11, 2000, where they claimed refugee protection a few days later. Ms. Naqui's husband and daughter then left Pakistan with an agent, in an attempt to travel to Canada, via the United Arab Emirates (UAE). The family's agent was arrested in the UAE, and the father and daughter remain stranded there.

The Board's Decision

[11]     The Board noted that, for the most part, Ms. Naqui's testimony regarding the attacks on her family was consistent with the information contained in her Personal Information Form (PIF). However, in the Board's view, this, by itself, did not mean that Ms. Naqui was telling the truth. The Board noted that this consistency could simply mean that Ms. Naqui had a good memory, and was thus able to properly recite the story recorded in her PIF.

[12]     The Board did note one discrepancy between Ms. Naqui's oral testimony and the version of events outlined in her PIF. In the course of her refugee hearing, Ms. Naqui testified that her children were unable to attend school for two years because of the threats that they received from other children. No mention was made of this in Ms. Naqui's PIF. From this, the Board drew a negative inference regarding Ms. Naqui's credibility.

[13]     The Board also questioned Ms. Naqui's version of events, given that she did not produce

any documentary evidence such as medical certificates, or photographs of the looted house, to substantiate her claims. In this regard, the Board noted that a number of members of Ms. Naqui's family remain behind in Pakistan, and could, presumably, have assisted the applicants in securing documentation to support their claims.

[14]     In addition, the Board found it improbable that the police would not have at least prepared First Information Reports in connection with at least some of the attacks.

[15]     The Board also found it implausible that someone with the profile of Ms. Naqui's husband would have been targeted and attacked by the SSP as often as Ms. Naqui claims. Although the President of the family's Imam Bargah wrote a letter in support of the family's claim, the Board seemed to discount the evidentiary value of the letter, stating that "it appears that the President is safe enough to stay in Pakistan". The Board also found it implausible that the Imam of the Imam Bargah would not suffer persecution, beatings and threats, but that Ms. Naqui's husband would.

[16]     The Board further discounted the evidentiary value of the letter, as it made no mention of Ms. Naqui's sexual assault or of the fact that the family had to pay a bribe to secure the husband's release.

[17]     Finally, the Board was of the view that it was improbable that the family would continue to live in the same house after having twice been attacked in their home.

[18]     Although the Board found that the alleged incidents and attacks did not occur, it nevertheless went on to examine the objective well-foundedness of the claim and the issue of state protection. In a very brief analysis, the Board noted that the country condition information indicated that while sectarian violence between Shias and Sunnis did occur, the number of deaths had decreased over the last several years. Given the Board's conclusion that sectarian violence was not widespread, and that it appeared to occur in a random fashion, the Board concluded that the Applicants would not face more than a mere possibility of persecution if they were to return to Pakistan.

Standard of Review

[19]     The majority of the disputed findings are findings of fact. As such, the standard of review is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).

Analysis

[20]     Counsel for the Applicants has identified numerous alleged errors on the part of the Board. While I have carefully considered all of counsel's submissions, and have reviewed the relevant portions of the record in relation to each of those submissions, I am satisfied that some of the impugned findings were reasonably open to the Board on the evidence before it.

[21]     I am, however, also satisfied that the Board erred in relation to several of its findings, each of which will be discussed in turn.

PIF Omission

[22]     The only real negative finding that the Board made with respect to Ms. Naqui's credibility arose out of the fact that her PIF did not mention the religious harassment that she says her children experienced in school.

[23]     Not every omission from an applicant's PIF will, however, be determinative of the individual's credibility: Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002] F.C.J. No. 332 (FCTD) online: QL. The nature of the omission, and the context in which the new information is brought forward, have to be examined in order to determine the materiality of the omission.

[24]     In this case, a review of the transcript discloses that Ms. Naqui did not volunteer this information in what could reasonably be perceived as an effort to embellish her claim. Instead, it was only in response to a direct question from the presiding member as to whether her children had encountered any problems, apart from physical attacks, that Ms. Naqui mentioned the harassment that her children had encountered at school.

[25]     The PIF requires that refugee claimants list all of the significant incidents that led the claimant to seek refugee protection. Ms. Naqui's PIF describes serious physical and sexual assaults on herself and members of her family. While undoubtedly unpleasant, verbal threats and harassment are simply not in the same league as physical and sexual assaults. In this context, I am satisfied that it was patently unreasonable for the Board to base its finding that Ms. Naqui was not credible on her failure to mention that her children were harassed at school in her PIF.

Failure to Mention the Sexual Assault in the President's Letter

[26]     Although the Board appears to accept that the letter from the President of the family's Imam Bargah was authentic, the Board discounts the evidentiary value of the letter, in part because of the failure of the President to mention the fact that Ms. Naqui had been sexually assaulted in one of the attacks.

[27]     In my view, it was patently unreasonable for the Board to have drawn such an adverse inference.

[28]     As an expert tribunal, the Board is expected to be aware of, and sensitive to, the cultural norms prevailing in the countries with which it deals. The fact that a woman has been sexually assaulted is always a sensitive issue - one that is not necessarily discussed openly, wherever the assault may have occurred. This is all the more so in traditional Muslim societies. I am not satisfied that the Board properly took this into account in making the finding that it did.       

Failure to Produce Documents to Support the Claim

[29]     The Board questioned Ms. Naqui's veracity, in part because she did not produce any documentary evidence such as medical certificates, or photographs of the looted house, to substantiate her claims.

[30]     In my view, the Board erred in this regard. Not only was Ms. Naqui not asked any questions about many of the key incidents during her testimony: she was also never asked why she did not have any documents to support her claim.

State Protection

[31]     The Board's analysis with respect to the issue of state protection is extremely brief. No mention is made of any specific documents relied upon by the Board. Instead, the Board simply references the country condition information, by exhibit number, in a footnote.

[32]     The country condition information regarding the extent to which state protection is available to members of the Shia minority in Pakistan contains a number of conflicting reports. It is up to the Board to consider this conflicting information, and to draw the appropriate conclusions from the evidence before it. It is not the task of this Court to re-weigh the information on judicial review.

[33]     That said, the Court must be satisfied that the Board has indeed weighed the information before it. In this case, the Board's consideration of the state protection issue is cursory, and completely lacking in any reference to any specific document in the country information. As Justice Russell noted in Ali v. Canada (Minister of Citizenship and Immigration), 2003 F.C. 982, there is a difference between a Board failing to refer to all of the country condition information and a Board failing to refer to any of it.

[34]     In my view, the failure of the Board to adequately assess the potential impact of the sectarian violence that exists in Pakistan on the Naquis amounts to a further reviewable error.

Conclusion

[35]     I cannot say with any certainty that the Board would have come to the same conclusion had these errors not been made. As a consequence, the application for judicial review is allowed.

Certification

[36]     Neither party has suggested a question for certification, and none arises here.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for re-determination.

2.          No serious question of general importance is certified.