Date: 19980313
Docket: IMM-1613-97
BETWEEN:
NAQEEB-UR-REHMAN SYED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of, and for an order setting aside, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated April 1, 1997, whereby it was determined the applicant is not a Convention refugee. Counsel for the parties were heard in Toronto on March 5, 1998, when decision was reserved. These are reasons for an order, now issued, dismissing the application.
The Background
[2] The applicant is a native and a citizen of Pakistan. He was born in 1945 into a devout Ahmadi family living in Jhelum. Growing up, he and his family experienced harassment and discriminatory activity of the Sunni Muslim majority against the minority Ahmadi group, and because of this the family moved from Jhelum.
[3] In 1980 the applicant established a business as a cloth merchant at Jhelum. In 1984 he and his son were attacked by Orthodox Muslims for being Ahmadi and his six year old son was injured in the attack. In 1989 his house was attacked and stoned and though he complained to police they refused to intervene. In 1992 orthodox religious leaders warned his customers not to deal with him and he lost nearly half of the customers of his business.
[4] On Pakistan's Independence Day in August 1995, while watching a parade, he was seized by a group of Sunnis directed by one of their religious leaders. His face was blackened with boot polish and he was led through crowds on a donkey and had garbage thrown at him. When he fell off the donkey, he was beaten. He was only let go when he undertook to appear at the Sunni mosque and announce he had left the Ahmadi religion and was now a Muslim.
[5] After this incident the applicant and his family fled to another village some 45 miles away, to the home of a doctor who was a cousin of the applicant's wife. The doctor was a Sunni Muslim. The applicant's family and friends assisted him to leave from there to fly to Canada and he left Pakistan on September 11, 1995. On the following day, Sunni Muslims from the applicant's own village, angry that he had not appeared at the mosque to denounce his Ahmadi religion, traced and followed him to the doctor's house. They lured the doctor to see a fictitious patent, seized him, and finding from him that the applicant had fled Pakistan, they beat the doctor and finally shot and killed him.
[6] The applicant's claim is based upon his fear of persecution by reason of his religion, fearing that there is no part of Pakistan that would be safe for him, that all non-Ahmadis would be after him and that he would be killed because of his religion.
[7] The CRDD panel did not believe, on a balance of probabilities, that the claimant's evidence of the August 1995 incident and of the subsequent events in September is true or credible, since it seemed to the panel to be implausible. Those events were central to his claim. His evidence of earlier incidents was not persuasive of a claim to persecution for religious reasons because of his own testimony for, when asked about this at the hearing, the panel's decision notes that "he summarized his problems with Sunnis prior to August 1995 as minor incidents involving being sworn at in the streets".
[8] Although the claimant had maintained contact with his wife after he had come to Canada, he did not adduce any evidence other than his own testimony and written description to support his claim. For example, no newspaper clipping, not even a letter from his wife, was produced to report the murder of the doctor, or the harassment of his wife and family after the applicant left for Canada. The panel noted that general documentary evidence attested to serious problems of discrimination faced by Ahmadis in Pakistan but it found no credible evidence to conclude that there was a reasonable chance or a serious possibility that the applicant would be persecuted in Pakistan for religious reasons if he were to return there.
The Issues
[9] The essential issue raised is whether the panel's decision, based upon implausibilities found with the applicant's evidence, can be said to be unreasonable, warranting intervention by the Court. A subordinate preliminary issue is whether uncontradicted sworn testimony of the applicant, supported by general documentary evidence of circumstances in his home country, which was not questioned by the Refugee Claims Officer at the hearing, may nevertheless be found by the panel to be implausible, and insufficient to establish the claim to be a Convention refugee.
Analysis
[10] When an applicant swears to the truth of certain allegations there is a presumption those allegations are true unless there by reason to doubt their truthfulness (Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (F.C.A.), per Heald J.A. at p. 305). One basis on which the truthfulness of sworn testimony may be questioned is that the hearing panel finds the evidence implausible. In Aguebor v. Ministre de l'Emploie et de l'Immigration (1993), 160 N.R. 315 at 316-7 Mr. Justice Décary wrote:
| There is lo longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review... |
In my view the preliminary issue raised is settled by jurisprudence. I turn to the essential issue, whether the panel's findings are unreasonable in light of the evidence before it.
[11] It is trite law that findings of credibility are not a basis for intervention of the Court on judicial review unless it is determined that the tribunal's finding is based upon error in law, or is not supportable on the evidence. Where the findings are based on implausibilities, and not merely internal inconsistencies in the evidence adduced, while the Court can judge the implausibilities found in the evidence it will only intervene if it finds the implausibilities to be unreasonable in the circumstances of the case.
[12] The panel found it plausible that the Sunnis might have humiliated the applicant as described in the August 1995 incident but "it is patently implausible that the Sunnis would have acted in this manner so as to gain the claimant's conversion". While I share the view of counsel for the applicant that describing evidence as "patently implausible" is perhaps an over-statement, and not helpful, the conclusion that the evidence is implausible is explained by the decision by reference to a number of factors, including the absence of explanation for the Sunni's described purpose on this occasion. There was no evidence that their action was prompted by the applicant; he had no particular profile in the Ahmadi community, at least no formal position of leadership in that community; and he had no knowledge that the religious leader of that community had ever been treated as he was. It seemed to the tribunal to be implausible in these circumstances that he would be a target of attack merely to convert him, and that he would later be pursued some 45 miles and a prominent non-Ahmadi killed for having assisted him.
[13] Despite submissions of counsel for the applicant on this point, I am not persuaded that the tribunal's finding of implausibility is so unreasonable that it warrants intervention by the Court.
[14] The panel also found it implausible that the Sunni attackers would have pursued the applicant to the doctor's home, arranged to murder the doctor and yet ignored the applicant's wife and children at that time. The tribunal may have misstated the evidence on this point, for the applicant's testimony does speak of attacks on his wife and family subsequent to the attack on the doctor and after he left Pakistan. But even if the panel were wrong in its review of the evidence on this aspect, or if one found the panel's stated implausibility in relation to it to be unreasonable, that finding is not central to its assessment of the applicant's evidence, and that error in itself would not warrant intervention by the Court.
[15] The tribunal also indicated it was not satisfied as to why the claimant produced no documentary evidence, from local newspapers in Pakistan or letters from the applicant's wife with whom he had maintained contact after arriving in Canada, particularly with reference to the killing of the doctor or with reference to harassment of his family after he left for Canada. The claimant had apparently sought to trace news reports of the killing or of the trial of those he said had been arrested, but the panel thought it reasonable that he would have asked his wife for such reports. None were produced. Though he claimed to have had one or more letters from his wife, any letters he had were thrown away. The absence of any document corroborating his story of the attack upon and killing of the doctor or of any ongoing interest of the Sunnis about the applicant's whereabouts after he left Pakistan were factors relied upon in part by the tribunal in its conclusion that the applicant's evidence was not credible concerning the central incident claimed to give rise to his departure from Pakistan.
[16] In addition, it found that it was not satisfied that the evidence of earlier harassment, because of his Ahmadi membership, constituted serious, persistent, systemic actions amounting to persecution.
[17] It is urged that the failure to provide local newspaper reports from within Pakistan concerning the killing of the doctor who assisted him, assumes, without any evidence, that local newspapers existed and that they would include coverage of such an event. That in itself may not be a fair assumption by the panel, but coupled with the absence in evidence of any corroborating letter from the applicant's wife, though one or more letters had been received by the applicant, in my view, left the tribunal without any corroborating evidence at all concerning the death of the doctor or of the major incident giving rise to the applicant's claim. The implausibilities the tribunal found with reference to the central incident in the claim remained.
Conclusion
[18] I am not persuaded that the principal implausibilities identified by the tribunal as leading it to find the evidence of the applicant not to be credible were unreasonable in light of the circumstances and the evidence adduced in this case. There is no basis on which I am persuaded that it erred in its assessment that, on the evidence, it was not satisfied there is a reasonable chance or a serious possibility the claimant would be persecuted because of his religion if he should return to Pakistan.
[19] Thus, this Court declines to intervene. The application for judicial review and for an order setting aside the tribunal's decision is dismissed.
[20] At the conclusion of the hearing counsel for the applicant proposed a question for certification pursuant to s-s. 83(1) of the Immigration Act. The question concerns the authority of the panel to make a determination contrary to the uncontradicted sworn testimony of the applicant, which testimony is supported by the general documentary evidence before the panel. As indicated in these Reasons, it is my view that question has been determined by the jurisprudence (see Maldonado and Aguebor, supra). No other question was proposed and none is certified for possible consideration by the Court of Appeal.
W. Andrew MacKay
Judge
OTTAWA, Ontario
March 13, 1998.