Federal Court Decisions

Date: 20050901

Docket: IMM-9182-04

Citation: 2005 FC 1204

Ottawa, Ontario, this 2^nd day of September, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN

BETWEEN:

MUSAWAR HUSSAIN QAZI

Applicant(s)

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent(s)

REASONS FOR ORDER AND ORDER

[1]       The Applicant, Musawar Hussain Qazi, is a 38 year old citizen of Pakistan. He was an active member of the Pakistan People's Party ("PPP") in Pakistan since 1987. During the 1997 election campaign, he was involved in making speeches and criticizing the Pakistan Muslim League ("PML"), a rival party that now governs Pakistan.

[2]       During a PML rally in Chakwal on January 7, 1997, shots were fired into the crowd and a PML supporter was killed, while several others were injured. The Applicant states that later that day the Secretary General of the PPP notified him that a First Information Report ("FIR") had been registered with the police accusing the Applicant and three other party members of being involved in the murder. The Applicant claims it was reported in the media that he was involved in the murder of the PML supporter. The Applicant went into hiding.

[3]       The police asked for a bribe of 300,000 rupees to have charges against the suspects dropped, the bribe was paid and the Applicant returned home and participated in the January and February 1997 elections. In August of 1998 the Applicant was attacked by PML members. He reported the attack to the police but they took no action.

[4]       In October of 1999 President Musharaff of the PML took power and the Applicant claims he ordered that old unsettled political cases be reopened which included that of the Applicant. In March of 2000 the Applicant says a police officer who was a friend told him he would be arrested soon. The Applicant left for Lahore and hid there until he left Pakistan on May 31, 2000. He arrived in Canada on June 4, 2000 and made a refugee claim.

[5]       The Applicant says that the police have visited the Applicant's family in Pakistan and asked about his whereabouts. The Applicant says the last time this happened was in December of 2003 when a man in civilian clothes went to this father's home and asked about him. He said he had been sent by the National Assembly because the government had ordered the reopening of political cases and the arrest of all accused had been ordered.

DECISION

[6]       The Board found that the Applicant was excluded by virtue of section 98 of the Immigration and Refugee Protection Act ("IRPA"). In the alternative, it found that if he was not excluded, then his refugee claim could not succeed for lack of credibility.

ISSUES

[7]       This case raises two issues:

1.          Did the Board err in finding that the Applicant was excluded from refugee protection because there are serious reasons for considering that he has committed a serious non-political crime pursuant to Article 1F(b) of the UN Convention Relating to the Status of Refugees (the "Convention") and section 98 of IRPA?

2.          Did the Board err in finding the Applicant not credible?

STANDARD OF REVIEW

[8]       In Bitaraf v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1095 Phelan J. discussed the standard of review for Article 1F(c) of the Convention. He stated at para 18:

With respect to the interpretation of Article 1F(c) of the Convention the standard is correctness but with respect to the application of the law to the facts, the standard is reasonableness.

His analysis is equally applicable to interpretation of Article 1F(b).

[9]       Findings of credibility are evaluated on a standard of patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).

ANALYSIS

1. Did the Board err in finding that the Applicant was excluded from refugee protection because there are serious reasons for considering that he has committed a serious non-political crime pursuant to Article 1F(b) of the Convention and section 98 of the IRPA?

[10]     In order to justify a finding of exclusion, the Board has to be satisfied that in the words of Article 1F(b) of the Convention, (incorporated by reference through section 98 of IRPA) that there are "serious reasons for considering that [the Applicant] has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee".

[11]     In this case there is no dispute that the crime set out in the warrant is a serious non-political crime. What then is meant by "serious reasons for considering"?

[12]     In Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125 the Court of Appeal stated at paras 23 and 25:

In the recent decision of this Court in Xie v. Canada (Minister of Citizenship and Immigration) (2004), 243 D.L.R. (4th) 385, 2004 FCA 250 at paragraph 23, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 418, S.C.C. Bulletin, 2005, p. 444, it was established that an 'exclusion' hearing under Article 1F(b) is not in the nature of a criminal trial where guilt or innocence must be proven by the Minister beyond a reasonable doubt. Rather, the onus upon the Minister is to establish, based on the evidence presented to the Board, that there are "serious reasons for considering" that [the Applicant] committed serious non-political crimes (¼)

The standard of evidence to be applied to this threshold test is higher than a mere suspicion but lower than proof on the civil balance of probabilities standard (see Zrig at paragraph 174; and Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 at 312-14 .

[13]     The following points are relevant:

a.        a warrant against the Applicant was produced charging him with murder;

b.       the warrant was introduced by the Applicant;

c.        the affidavit of the Applicant's father confirmed the existence of the warrant; and

d.       the letter from the Applicant's lawyer referred to the outstanding warrant and in no way impugned its genuineness.

[14]     However:

a.        the warrant did not display an FIR number as required by Pakistani law;

b.       the embassy could not confirm its genuineness from central police authorities; and

c.        the issuing authority had not confirmed its genuineness to the Canadian Embassy.

[15]                        The Board made the following finding:

The Minister's investigation of the validity of the arrest warrant resulted in evidence that affects the probative value of the warrant. However, I find that the absence of a FIR number on the warrant and the fact that the Record Keeper at the City Police Station, Chakwal, could find no record of receiving an "Arrest Warrant" dated 18 March 2000 for a person named "Musawar", where "normally" police stations receive such warrants by official channel from Courts within two days, does not impugn the validity of the warrant, given the limited research that was available in this matter. While I do not give the warrant full weight I find it has significant probative value, and while I find insufficient evidence to decide the issue with certainty, I find sufficient evidence to conclude, on a balance of probabilities, that the warrant is valid (Application Record, pp. 23-24).

[16]     I read this somewhat muddled and confused language as stating that the Board felt the warrant was authentic. Under the circumstances, that is not an unreasonable conclusion, given that all the evidence regarding its authenticity was furnished by the Applicant.

[17]     However, the Applicant argues that it is not a question of whether the warrant was authentic, but whether or not what it stated was true. He does not argue that the warrant was forged (after all he produced it), but that the charges stated therein were fabricated.

[18]     The Board has to satisfy itself that there are "serious reasons for considering that [the Applicant] has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee". Normally the Board does not inquire into the guilt or innocence of an applicant charged abroad (see Moreno v. Canada (M.E.I.) [1994] 1 F.C. 298). The existence of a valid warrant issued by a foreign country would, in the absence of allegations that the charges are trumped up, satisfy the "serious reasons for considering"requirement.

[19]     When, however, as in this case, the Applicant alleges that the charges are fabricated, the Board has to go further. It has to establish whether to accept the allegations or not, i.e. whether the Applicant is credible. If he is found to be credible, then the mere existence of a warrant may not be enough.

[20]     This then takes us to the Board's finding of credibility, which incidentally the Board also used to buttress its alternative findings of inclusion.

[21]     The Board found the Applicant not credible with respect to his allegation that the arrest warrant was fabricated because:

a)       notwithstanding the 11 months that had elapsed between the two hearings of the case, the Applicant did not produce any supporting documents regarding the circumstances surrounding the laying of the charges such as newspaper articles from that time (which by his own admission first acquainted him with such charges);

b)       he changed his story several times regarding the police officer/friend who warned him in March of 2000, a friend who's name the Applicant could not recall;

c)       the Applicant was inconsistent in his testimony as to when the police last inquired after him, i.e. 2000 or 2003; and

d)       the Applicant produced a self-serving letter from his father regarding an alleged inquiry and threat from a Member of the National Assembly which conveniently arrived only after the resumption of the hearing where the issue had been raised.

[22]                                      The Board also found the Applicant generally not credible (when dealing with the issue of inclusion) because:

a)       seven years had elapsed since the incidents described in the warrant took place. It found it implausible that after such a long time the government would revive a warrant against a low profile PPP worker such as the Applicant, when according to the Applicant's own testimony, the warrant had gone unenforced as a result of a bribe;

b)       there was no documentary evidence supporting the Applicant's claim that criminal charges against PPP members are being revived as a tool of political repression; and

c)       the Secretary General of the PPP who gave him the first warning is still there and working for the PPP.

[23]     It is well established that credibility findings are the heartland of the Board's jurisdiction and must not be disturbed unless patently unreasonable. As stated by Jerome A.C.J. in Sommariva v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 410 at para 6:

Questions relating to an applicant's credibility are within the jurisdiction of the Refugee Division as the trier of fact in respect of Convention refugee claims. When, as in the present case, a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, her demeanour, frankness, readiness to answer, coherence and consistency, in oral testimony before it. (...)

[24]     Equally, alternate explanations provided by applicants are not enough to overturn a Board's credibility findings. As Snider J. wrote in Sinan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 188 at para 11:

The Applicants have put forward alternative explanations for many of the Board's findings. When the standard of review is, as here, one of patent unreasonableness, it is not sufficient to present an alternative line of reasoning - even where that may present a reasonable explanation. What the Applicants must do is to point to a conclusion of the Board that is not supportable in any way on the evidence.

[25]     In this case, the Board's findings with regard to credibility are well founded and certainly not patently unreasonable, nor do the alternate explanations offered by the Applicant render the Board's conclusions unsupportable.

[26]     Not having found the Applicant credible, the Board could legitimately disregard his allegation that the charges were fabricated, given that no other evidence was provided. Thus the existence of a warrant (found to be authentic) coupled with a lack of credibility of the Applicant (thus undermining any allegation of fabricated charges) were sufficient to satisfy the requirement of "serious reasons for considering that [the Applicant] has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee".

[27]     The Applicant has failed to establish that the Board's finding of exclusion was patently unreasonable. Accordingly, this application cannot succeed. Having reached this conclusion, there is no reason to review the Board's finding regarding inclusion.

ORDER

THIS COURT ORDERS THAT this application be dismissed.

" Konrad von Finckenstein"