Federal Court Decisions

Date: 20060216

Docket: IMM-3264-05

Citation: 2006 FC 189

Ottawa, Ontario, February 16, 2006

PRESENT:      THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

MUHAMMAD ASLAM,

MAHRUKH (MAH RUKH) ASLAM,

MUHAMMAD ZAIN ASLAM,

MUHAMMAD AWON ASLAM

MUHAMMAD HASEEB ASLAM

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

OVERVIEW

[1]                Evidence, if reasonably assessed on the basis of the record, entitles a first-instance, specialized tribunal to make credibility and plausibility findings to which significant deference is to be accorded.

JUDICIAL PROCEDURE

[2]                This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA), for judicial review under the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated February 18, 2005 in which the Board determined that the Applicants were not Convention refugees or persons in need of protection.

BACKGROUND

[3]                The Applicants, Mr. Muhammad Aslam, his wife Ms. Mahrukh Aslam and their sons, Muhammad Zain Aslam, Muhammad Awon Aslam and Muhammad Haseeb Aslam, are citizens of Pakistan and Shia Muslims.

[4]                They base their claims on a well-founded fear of persecution at the hands of the Sepah Sehaba Pakistan (SSP) on the grounds of their Shia religion. They also claim they would be subject to torture or would face a risk to their life or would be subject to a risk of cruel and unusual treatment or punishment if they were returned to Pakistan.    

[5]                Mr. Aslam was very active in his Shia Muslim community in Pakistan, as a result of which he claims he and his family encountered extensive religious persecution at the hands of Sunni Muslim militants of the SSP and the police, including death threats, setting a fire at his business, kidnapping of the youngest son and false charges against him by the police.

[6]                Mr. Aslam was the Managing Partner and co-owner (with his brother Mohammad Azam) of Azam Weaving, a textile factory in Faisalabad.

[7]                In 1995, Mr. Aslam alleges that he began to receive threatening phone calls at home in which the callers told him to cease his religious activities or they would kill him and his family. Despite the threats, he persisted with his religious activities.

[8]                On February 6, 1996, he alleges that a group of people arrived at his factory in the middle of the night. They asked for him and beat up the watchman and some of the workers. They shouted that the factory belonged to Shias and should thus be damaged and destroyed. They broke the gate and entered the factory. They set fire to the factory, burning the cloth and machines and greatly damaging the building. One of the workers called Mr. Aslam at home and he went to the factory which was close to his home. When he arrived on the scene, the factory was on fire and he called the fire brigade. An injured worker was taken to the hospital but he died shortly after. The police arrived on the scene. In the morning, Mr. Aslam went to the police station with some members of his community to report the incident. The police told him they were aware of the incident.

[9]                After the incident, the threatening phone calls increased. The callers told Mr. Aslam that he should not have involved the SSP in the matter and that he should retract his statement to the police. In January 1997, Mr. Aslam moved to Karachi and transferred his new jewellery business from Faisalabad to Karachi. His wife and children moved to her sister's place in Faisalabad. Once the business became established, they planned to join him in Karachi.

[10]            The SSP continued to harass and threatened Mr. Aslam's family in Faisalabad. At the end of 1999, Mr. Aslam began once again receiving threatening phone calls from the SSP. In July 2000, his wife and children joined him in Karachi.

[11]            On February 13, 2001, Mr. Aslam travelled to Islamabad to apply for a Canadian Visitor's Visa as he was planning to come to Canada on a business trip. The Visa was issued two days later. On February 17, 2001, he travelled to Islamabad to pick up the Visa then travelled to Faisalabadto appear in court to make a statement in regards to the criminal case against the SSP for the fire at the textile factory. On February 18, 2001, after making their statement in court, Mr. Aslam and his cousin were on their way home in separate cars. Two SSP members on motorcycles pulled up beside his cousin's car and fired at it. His two cousins and the driver of the car were killed. He stayed in Faisalabad for a couple of days before returning to Karachi. There, his wife informed him that she had received a phone call in which the caller said Mr. Aslam may have got away this time but they would kill him too.

[12]            Mr. Aslam alleges he became very fearful for his life and the lives of his family members. They moved frequently in Karachi and Faisalabadto try to keep safe. On May 9, 2001, Mr. Aslam applied for Canadians Visitor's Visas for his wife and children but they were refused. On May 22, 2001, he travelled to Canada on a business trip. His wife and children remained in Faisalabad. Mr. Aslam tried to get information about seeking protection in Canada. He spoke with his brothers and mother who live in Canada and decided that he would return to Pakistan to bring his family to Canada to make refugee claims. Mr. Aslam returned to Pakistan on June 6, 2001.

[13]            On June 10, 2001, Mr. Aslam and his family visited his sister in law. The youngest son, Haseeb, was kidnapped by the SSP while playing outside the house. Mr. Aslam reported this to the police. He then received threatening phone calls at his sister in law's house, telling him that he should not have reported the kidnapping to the police and demanding a ransom. On June 13, 2001, the Shia community members held a rally to demand the return of Haseeb and condemn the killing of Shias. The next day, Mr. Aslam's cousin and brother went to Jhang to pay the ransom and Haseeb was returned to the family. Later, he was informed that he had been charged under section 16 of Maintenance of Public Order because it was alleged he was involved with the rally. Shortly after, he received a phone call telling him that this had been a warning and that if he mentioned the SSP in connection with the kidnapping he would be killed.

[14]            On June 15, 2001, Mr. Aslam returned to Karachiwith his family. He submitted new applications for Canadian Visitor's Visas to the Islamabad High Commission on July 3, 2001. His wife and children were issued Visas and left for Canada on July 12, 2001. As his lawyer advised him that he should travel separately from his family, he joined them in Canada on August 25, 2001. Through his brother and a friend, he was directed to a lawyer to help them file refugee claims. As the lawyer was out of the office on holiday, the refugee claims were not completed until September 18, 2001.

DECISION UNDER REVIEW

[15]            The Board made a negative finding of credibility concerning the testimony and the evidence given by Mr. Aslam.

I found much of the claimant's testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on his part.

[16]            Because the Board did not find Mr. Aslam's testimony to be at all credible, it found that the allegations must be false. It concluded that the events alleged by Mr. Aslam did not happen and therefore found that he and his family are not Convention refugees or persons in need of protection.

The panel finds the evidence in this claim entirely untrustworthy and totally lacking in credibility and that, on a balance of probabilities, the incidents as described by this claimant, never occurred and, therefore, do not believe what the claimant has alleged in this claim.

ISSUES

[17]            Did the Board make patently unreasonable findings of fact or base its decision on findings of fact made in a perverse and capricious manner without regard for the evidence properly before it?

ANALYSIS

Standard of review

[18]            The Board's assessment of the credibility of the evidence is entitled to the highest level of deference by this court. Where the Board's inferences and conclusions are reasonably open to it on the record, this Court should not interfere, whether or not the Court agrees with the inferences or conclusions drawn. (Aguebor; Grewal)[1]

[19]            A finding that the claimants have an Internal Flight Alternative (IFA) is a finding of fact, reviewable on a standard of patent unreasonableness. (Chorny)[2]

Credibility

[20]            This Court ruled in Maldonado v. Canada(Minister of Employment and Immigration)[3] that the sworn testimony of the claimant is presumed to be true, unless there is valid reason to doubt its truthfulness. The Board had credibility concerns with Mr. Aslam's material evidence that was not resolved in his favour. The Board found much of Mr. Aslam's testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on his part.

[21]            This finding was open to the Board on the face of the evidence before it. Mr. Aslam's testimony was filled with inconsistencies and was generally very implausible. The inherent logic of his testimony was flawed. The finding that Mr. Aslam's evidence was not credible was not patently unreasonable.

[22]            The Board found no discrepancy in the testimony of the child, Haseeb Aslam; however, as articulated in clear and unmistakable terms (Aguebor and Grewal, cited above), the testimony of his father was found in the Board's assessment to be totally void of any inherent logic.

Delay

[23]            A failure to make a refugee claim at the first opportunity demonstrates a lack of subjective fear of persecution. (Sellathamby; Stoica; Pissareva)[4]

[24]            In Djouadou v. Canada(Minister of Citizenship and Immigration)[5], this Court ruled that the Board was entitled to take into account a delay in claiming refugee status. The Federal Court of Appeal has upheld that delay is an important factor to be considered, albeit not a determinative one. In Huerta v. Canada(Minister of Employment and Immigration)[6], the court rules that delay in making a claim for refugee status is not a decisive factor in itself. It is, however, a relevant element that should be taken into account in assessing the actions of the claimant.

[25]            The Board is not required to accept Mr. Aslam's explanation for the delay if it finds that the explanation is implausible on reasonable grounds. (Bogus)[7]

[26]            In this case, Mr. Aslam travelled to Canada in May 2001, returned to Pakistan in June 2001 and travelled again to Canada with his family in August 2001. It would be expected that if Mr. Aslam's fear was well-founded, he would have made a claim at the first opportunity of safety on his first trip to Canada in May 2001 rather than return to the country against which he is making a claim of refugee protection. When asked the reason for the delay, he explained that he returned to see his family because they had missed him. Furthermore, even though Mr. Aslam testified that his family was in danger, he left them in Pakistan when he first travelled to Canada. The Board made a negative inference from this behaviour that goes directly to Mr. Aslam's lack of subjective fear.

[27]               After they arrived in Canada in August 2001, the Aslam family still did not make a claim until September 18, 2001. When asked the reason for this delay, Mr. Aslam stated he was not familiar with the process. However, he has many family members in Canada and testified that he came to Canada in May 2001 to explore the alternatives in order to stay in Canada. It was therefore reasonable for the Board to expect that in doing so he would have discussed all alternatives with his family in Canada and explored the refugee process especially since Mr. Aslam testified that they were fleeing for their lives.

[28]            The Board would expect that individuals who fear for their personal safety and their life would not only flee at their earliest opportunity but would seek refugee protection as soon as they are beyond the reach of their persecutors and it is reasonable to do so. Since the Aslam family did not do this it was reasonable for the Board to draw a negative inference from their actions.

Objective component of well-founded fear of persecution

[29]            Mr. Aslam testified that the SSP persecuted him and his family and he fears they would continue to persecute them if they were returned to Pakistan. He testified that he received threatening phone calls. He also testified that a group of people allegedly belonging to the SSP set a fire in his factory one night and one employee died in the fire. One of the supervisors called him to tell him of the fire but no one called the fire brigade until he arrived and did it himself. The Board determined that such lack of action defies all logic on behalf of the employees. This was a reasonable conclusion. It was also reasonable for the Board to expect that Mr. Aslam would have inquired whether help had been called. The Board found that this evidence was lacking in credibility and determined that, on a balance of probabilities, these incidents never occurred. Based on the lack of logic of the story, this was a reasonable finding.

State protection

[30]            The Board reasonably determined that adequate and effective state protection was available to the Aslam family in Pakistan. The Board assessed the Aslam family's evidence and the objective documentary evidence on country conditions in Pakistan. The conclusion that state protection is available to the Aslam family was amply supported with references to various sources.

[31]            The paragraphs from the documentary evidence that are relied upon by the Aslam family were part of the total evidence which the Board was entitled to weigh as to its reliability and cogency. (Hassan)[8] The preference of certain elements of the documentary evidence over others is a matter of weight for the Board. As long as the Board has evidence before it which supports its ultimate conclusion, this Court should not interfere with that conclusion. (Arunachalam)[9]

[32]            It is further submitted that the issue of the availability of state protection is a question of fact within the jurisdiction and expertise of the Board and, as such, is to be accorded significant deference. (Jahan; Chorny, above)[10]

[33]            This Court has had the opportunity to review the assessment of state protection in Pakistan in several recent judicial review applications. These cases reinforce the Minister of Citizenship and Immigration's view that where there is some evidence which supports the Board's conclusions and where the Board has referred to relevant documentary evidence, the Court should not interfere. The Board is not obliged to find that there is perfect state protection available to the Aslam family. (Villafranca; Hussain; Ahmad; Akhtar)[11]

[34]            The Board's conclusions on the issue of state protection were reasonably open to it on the evidence before it.

Internal Flight Alternative

[35]            The Board must assess the issue of an IFA in light of its findings regarding the credibility of the witness. The Board's findings of fact on the issue of IFA were not perverse or capricious.

[36]            The test with respect to an IFA is two pronged: the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the proposed IFA and that in all the circumstances, including the circumstances particular to those claimants, the conditions in the proposed IFA are such that it is not unreasonable for the applicants to seek refuge there. (Rasaratnam; Thirunavukkarasu; Mohammed)[12]

[37]            Mr. Aslam testified that they would not be safe in Islamabad because the SSP have a network and would find him anywhere. The Board noted that the documentary evidence reports the Musharaff government banned terrorist groups, including the SSP, in January 2002 and reinforced the ban in November 2003. It was reasonable for the Board to determine that, even allowing the possibility of ex-SSP individuals lurking around with new terrorist identities, that, on a balance of probabilities, Mr. Aslam would not be recognized almost four years later in a major urban center of half a million people hundreds of miles from Faisalabad.

[38]            There is nothing to indicate that Mr. Aslam could not find adequate employment in Islamabad. He has ten years education and transferable work experience. Ms. Aslam has 14 years education, a BA degree and experience as a teacher. There is no evidence that in Islamabad the children would not be exposed to adequate schooling. There was no evidence before the Board that the Aslam family will lack medical attention or face other physical hardship in Islamabad. The Board found that the kind of hardship the Aslam family may face in moving to Islamabad is the hardship associated with relocation and dislocation and is not the kind of hardship that renders an IFA unreasonable.

CONCLUSION

[39]            The Board's findings were open to it based on the evidence before it. Neither its findings of fact nor its conclusions were patently unreasonable. There is therefore no reason for this Court to interfere with the decision of the Board. This application for judicial review is dismissed.

ORDER

THIS COURT ORDERS that

1.         The judicial review be dismissed.

2.          No question be certified.

"Michel M.J. Shore"