Date: 19991005
Docket: IMM-6303-98
Ottawa, Ontario, this 5th day of October, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
SHAHNAZ MAQSOOD and
ANNA SHAHNAZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Shannaz Maqsood fled Pakistan because she was afraid of being killed by the Chaudry brothers who controlled the drug traffic in her home city of Gujrat. The drug traffickers wanted to kill her, she says, because she publicly denounced them and tried to get the police to interfere with their drug business.
[2] The Convention Refugee Determination Division (CRDD) found that the applicant was not a refugee because they found that she was not credible. Their finding of lack of credibility is based upon a number of inconsistencies or implausibilities of which 3 are of particular importance. The Court is asked to intervene on the basis that the CCRD got the facts wrong, and that when the facts are correctly stated, the implausibilities and inconsistencies disappear.
[3] Objection is taken to the facts as recited in the following paragraph:
| The claimant"s allegation about her problems with the Chaudry brothers is also not credible. For instance, she alleges that she was kidnapped by the brothers in April 1997 and warned that she and her husband would be killed if she didn"t stop her activities. However, on July 25, 1997, when she allegedly sent police on a drug raid and implicated the Chaudry brothers, her husband was arrested because nothing was found. However, according to the claimant"s testimony, nothing happened to her. She even addressed a group of several thousand people and only after she was allegedly threatened again. The panel does not believe these events took place for several reasons. First, if the Chaudry brothers were so well connected, they surely would have heard about the claimant implicating them with drugs on July 25, 1997. Secondly, it is not plausible that a meeting of 2,000 - 3,000 people was organized without the knowledge of the Chaudry brothers. |
[4] A review of the transcript shows that the evidence of the Applicant was that:
| 1) she addressed an election meeting of some 2,000 to 3,000 people on January 10, 1997 at which time she told the crowd of the Chaudry"s drug dealings and their property.1 |
| 2) on April 30, 1997, the Chaudry"s kidnapped her and warned her not to interfere in their affairs. Death threats were made.1 |
| 3) on July 25, 1997 the Applicant and her husband caused the police to raid a property where drugs were alleged to be kept. Nothing was found and the Applicant"s husband was arrested for making false statements. The Applicant was allowed to go free.1 |
| 4) on October 6, 1997 the Applicant spoke to a group of approximately 400 to 500 persons about their experience with the July drug raid.1 |
| 5) on October 10, 1997, the Chaudry"s men burned the Applicant"s husband"s warehouse and fired guns in the air in front of their house.1 |
[5] The CCRD apparently thought that the meeting of several thousand people which occurred on January 10, 1997 took place after the April 30 kidnapping incident rather than before. This is an error of fact which, taken alone, would not be particularly significant.
[6] The panel found that the events of which the Applicant testified did not occur. They based their rejection of this evidence upon the fact that the Chaudry"s were so well connected that they would have heard about the applicant implicating them with drugs on July 25, 1997. It is not obvious why this assertion creates a credibility issue in the CCRD"s mind. The panel also found it implausible that a meeting of 2,000 to 3,000 people could be organized without the knowledge of the Chaudry brothers. The relevant portions of the transcript read as follows:
| A. The first time I mentioned their names was on the 10th of January in 97 |
| A. At that time the elections were to take place. The 97 elections were taking place. And in the political campaign, there was ... with regard to that, there was a meeting in the municipal park, and there I mentioned them by name and talked to the people. That was the first time. |
| Q. Okay. Was that the gathering where you said there were four, five hundred people? |
| A. That happened on the 6th of October. |
| Q. Okay. So, at this January 10 gathering how many people were there? |
| A. There were maybe, there were almost two, three thousand people. |
[7] Given that this was the first time that the Applicant spoke against the Chaudry brothers and that the speech occurred at an election meeting, there is no inherent improbability or implausibility in the notion that the meeting was organized without the knowledge of the Chaudry"s. The Applicant never testified that the meeting was organized without the knowledge of the Chaudry"s.
[8] The panel also found a contradiction on a major element of the Applicant"s story in her description of the make-up of the anti-drug cell to which she belonged.
| The principal claimant also contradicted herself on a major element of her story. She was asked at the beginning of the hearing who were the others in the cell. She responded that there were five members, that they informed police of "anyone doing drugs" after making a full investigation. She added that one was an informer. The other members had brothers who took drugs and, in one case, a husband taking drugs. Later during the hearing, she said she was the only woman and that there were two farmers and two businessmen. When confronted with the contradiction, she gave no plausible answer. The panel asked the claimant if the Chaudrys covered any other territory besides Gujrat. The claimant was not spontaneous with her answer at this point and the question had to be repeated. She finally replied that she only knew about Gujrat. However, in later testimony, she said that in her speech to 2,000 - 3,000 people, she told them that the Chaudrys had mills, accounts in foreign countries, smuggled arms, and other accusations. These comments came spontaneously. |
[9] When the applicant was asked to describe her political activities she referred to the fact that she was active in the Pakistan People"s Party (PPP):
| When I got married and I moved to Jalapur, I would sit among the people and tell them about the manifesto of the PPP, and tell the group of the PPP. And because of what I said, people got influenced. Quite a lot of women became members. And they had seen the district president, he nominated me.1 |
[10] When the Applicant was speaking of the activities of the anti-drug cell, she said:
| A. We five members, the fifth person would be the informer and he would secretly .. he would keep investigation that where the people are. Even the people who took drugs he would ask them where do you get this stuff from, I also want to take. This is how he would get to know all these things and then inform. The women members with me in Jalapur out of them also there were one or two such women. One had a brother who took drugs, and one who"s [sic] husband took drugs. And I myself would go and meet these people and ask them and say where do you get this stuff, who gives it to you. This is how we would get to know.1 |
[11] When the Applicant was questioned by the panel about the make-up of the cell, the evidence was as follows:
| Q. Okay, but could you give us an idea of what kind of people were members? Were they shopkeepers? Were they wives? Were they municipal politicians? Who were they? |
| A. The woman, I was the only one, but the others were four men. Two of them were doing business, and two are party members of the PPP and they were farmers. ... |
| Q. So, the two farmers were PPP members? |
| Q. And what about the two businessmen? |
| A. Yes, they were two doing business. |
| Q. Were they PPP members as well? |
| A. No, they were not members of the PPP. |
| Q. So it wasn"t a requirement to be a PPP member to be member of a cell? |
| A. No, no, that was not it. |
| Q. Okay. Earlier in your testimony you referred to two women who was, I understood, members of the cell in Jalalpur, and you said one had a brother who took drugs and one had her husband who took drugs. |
| A. No, I said they were members of the PPP. They were not members of the cell. They were not members of the cell. |
| Q. Well, I"d like to be corrected if my notes are also incorrect. Because the question that was asked in the cell, like how many members, and you said there were five members. You went on to say: "In our area whoever was doing drugs they"d make full investigation, give the police and they would investigate." You said that: "One was an informer. They were women members. And one or two had brother, other had husband who took drugs." And now you say you were the only women [sic]. |
| A. Maybe you didn"t understand what I said. I said this, our work is done in this manner. I have given this as an example, that PPP members of women, there"s one who"s [sic] brother takes drugs and one who"s [sic] husband takes drugs. And I personally met them. And I asked them that where do you get these drugs from. And he said this. In the cell member I was the only woman. The women I mentioned, as an example, they are members of the PPP. |
[12] Read in context, it is clear that the reference to women members in Jalapur in the Applicants comments at page 302 is a reference to the women members of the party of which she had spoken moments earlier. The explanation given by the Applicant is consistent with her earlier evidence.
[13] With respect to the comments made by the panel about the Applicant"s answers to questions about the territory "covered" by the Chaudry"s, the panel"s decision does not accurately reflect the questioning and the Applicant"s answers. The questions about the territory covered by the Chaudry"s were asked in relation to their drug business:
| Q. Madame, you said that the Chaudry brothers control the drug traffic in Gujrat: |
| Q. Okay. Do you know which territory they cover or, more-or-less? |
| Q. Well, where is the ... You said they control drug traffic in Gujrat. Is that just in the Gujrat district? |
| Q. Okay, but you don"t know whether the Chaudry brothers control drug traffic elsewhere than in the district? |
| A. It must be but I"m mentioning only Gujrat. |
| By Presiding Member (to person concerned) |
| - Okay. Madam, we need an answer and we"ll ask you only one more time. |
| Q. Do you know or do you not know? If you don"t know that"s okay. We understand that you were just in Gujrat. |
| A. No. I don"t know. Where they work and how they work I don"t know. |
| - Okay. So you don"t know. Okay. Thank you.1 |
[14] The passage in which the Applicant speaks about the Chaudry"s business operations occurs in her description of the remarks which she made at the meeting of January 10, 1997 which was attended by 2,000 to 3,000 people :
| A. As I told the people this, the Shujat who is the Minister of the Interior, his grandfather, his paternal grandfather, his was Surdar Khan, they had twelve acres of land. He was a policeman in the police. Today, that we do no know the number of mills they have. Today they have accounts in foreign countries. They have started drug smuggling from that time. They have smuggled arms. And then, in 1992, when their government was in power, they have through their men they have taken money and they have sent it to out, foreign countries. They made a bank, private bank called The National Industrial Bank, in which they had tempted people that for this money, amount of money you will be given so much profit. And retired people gave all their savings, the money which they had for their daughter"s dowries people deposited in their bank. |
| When they had collected millions or billions, I"m not sure, of rupees, and after that, when the people went to get their money out they said this bank had become, this is bankrupt. That in Pakistan it is to such an extent their activities...1 |
[15] These comments are spontaneous but they are not in relation to the same subject as the questions to which the panel had so much difficulty getting a satisfactory answer.
[16] Sec. 18.1 (4) of the Federal Court Act R.S.C. 1985 c. F-7 provides that the Federal Court Trial Division may set aside the decision of a federal board or tribunal if it:
| (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
[17] Not every error of fact is made in a perverse or capricious nature or without regard to the material. In Rosemary Amevenu v.The Solicitor General of Canada [1994] F.C.J. No. 2065, Cullen J. set out the circumstances under which an order may be set aside as being based upon an erroneous finding of fact.
| Three conditions precedent must be met to justify judicial intervention for an erroneous finding of fact. First, the finding must be truly erroneous; second, the finding must be made capriciously or without regard to the evidence; third, the decision must be based on the erroneous finding: Rohm & Hass Canada Limited v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.). However, even if the court is convinced that a decision is based on an erroneous finding of fact, it cannot intervene unless it is also of the view that the tribunal, in making its finding, acted in a perverse and capricious manner or without regard to the evidence before it: Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171 (F.C.A.). |
[18] The analysis above shows that the panel did make errors in its findings of fact which it used to support its position on credibility. It is not obvious that the errors were made in a perverse or capricious fashion, but it can be said that the errors were made without regard to the evidence. The panel gave reasons in addition to those cited above for doubting the applicant"s credibility but a review of the decision as a whole leads me to the conclusion that these erroneous findings of fact significantly affected the panel"s view of the applicant"s evidence. Had the panel not made the errors which it did on these points, it may well have taken a different view of the other matters which it felt went to the issue of credibility. In my view, the facts of this case satisfy the test set out by the Federal Court of Appeal in Rohm & Hass Canada Limited supra and referred to by Cullen J. in Amevenu supra . For those reasons, the decision should be set aside and the matter referred back to a differently constituted panel for redetermination.
[19] In coming to this conclusion, I share the sentiments expressed by Cullen J. in Michael v. M.C.I [1997] F.C.J. No. 933:
| A preliminary conclusion is that, based on the Tribunal's errors, it is difficult to wholly trust its conclusion. Although I am very uncomfortable in interfering in a Tribunal's findings on credibility, I believe that this matter ought to be referred back to a differently constituted Tribunal for re-determination. |
[20] I too am uncomfortable interfering with the CCRD"s findings on credibility when they had the benefit of hearing the witness and I did not. However, given the clear errors of fact, I do not believe that it is safe to wholly trust its conclusion.
[21] Neither counsel suggested certification of a serious question.
ORDER
The decision of the Convention Refugee Determination Division of the Immigrant and Refugee Board dated November 3, 1998 is hereby set aside and the matter is remitted for consideration by a differently constituted panel.
"J.D. Denis Pelletier"
Judge
__________________
1. See page 361 of the Tribunal Record.
2. See pages 312 and 365 of the Tribunal Record.
3. See pages 316 and 350-354 of the Tribunal Record.
4. See pages 318-319 of the Tribunal Record.
5. See page 319 of the Tribunal Record.
6. Page 302 of the Tribunal Record.
7. Page 309-310 of the Tribunal Record.
8. Pages 357-359 of the Tribunal Record.
9. Page 362 of the Tribunal Record.