Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] 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 of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 14, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant requests an order setting aside the Board’s decision and remitting the matter for redetermination.
Background
[3] The applicant, Mobasher Ellahi Chaudhry, is a citizen of Pakistan who alleged a fear of persecution because he is a Lahori Ahmadi Muslim. He also claimed to be a person in need of protection due to a risk to his life, or a risk of cruel and unusual treatment, punishment and torture.
[4] The applicant explained the nature of the persecution he faced in Pakistan in the narrative portion of his Personal Information Form (PIF). After the government of Pakistan declared that Lahori Ahmadi Muslims were infidels, Sunni groups, including Sipa Sahaba, began causing trouble for them. The applicant claimed that he was an active member of his Ahmadi mosque in April 2004, and began receiving threatening telephone calls from Sipa Sahaba. Between May 25, 2004, and March 3, 2005, the applicant and other Lahori Ahmadi Muslims were attacked by members of Sipa Sahaba in six separate incidents. The applicant was often beaten and had to be hospitalized twice. He reported the incidents to the police but received no response.
[5] The applicant feared being killed by his attackers and fled Pakistan with the help of an agent in March 2005. The applicant arrived in Canada on March 18, 2005, and applied for refugee status on March 23, 2005. The refugee hearing took place on January 17, 2006. Included with his documentary evidence was a letter from the main Lahori Ahmadi Center (the Center), which confirmed his religious affiliation. The applicant’s refugee hearing had twice been postponed in order to await the results of an Acquisition of Information Form (AIF), which had been requested from the Canadian High Commission in Islamabad in order to confirm the veracity of the letter. During the hearing, the parties agreed to a further adjournment in order to obtain verification of the letter. The AIF results were received on January 18, 2006, and revealed that the letter was fraudulent.
[6] In his post-hearing submissions, the applicant explained that the letter was written by a volunteer who misrepresented his capacity to issue letters on behalf of the Center and had attempted to extort his father. The applicant attempted to submit to the Board a second letter from a Lahori Ahmadi official which both confirmed his religious affiliation and corroborated his explanation regarding the fraudulent nature of the first letter. However, the Board refused to wait for this letter before rendering its decision. By decision dated February 14, 2006, the Board rejected the applicant’s claim on the basis that he lacked credibility. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The Board’s reasons are reproduced below.
These are the reasons I reject the refugee claim of Mobasher Ellahi Chaudhry a 39-year-old citizen of Pakistan. The claimant alleges that due to his religion as a Lahori Ahmadi, he has faced persecution in the past and there is a serious possibility he will face other serious harm should he return to Pakistan.
Determination
The response to the Acquisition of Information Report, Exhibit R-3 satisfies me that the claimant’s assertion that he is a Lahori Ahmadi is not credible. Since this is the core of his claim, I reject the claim.
Analysis
At the hearing, counsel, the Refugee Protection Officer and myself agreed that identity as a Lahori Ahmadi was the core of this claim. It was further agreed that we should wait for the response to the request to verify the Ahmadi letter.
After a review of that response, I am satisfied that it is more probable than not that the letter found in Exhibit C-2, item 1 is in fact fraudulent. Further I am satisfied that again it is more probable than not that the claimant was aware this letter was fraudulent when he presented it to the Board to establish his identity as a Lahori Ahmadi. This second finding is supported by his stance during the hearing that his father had recently spoken to the religious authorities at the Institute of Islam New Garden. The claimant assured the panel the letter had been verified. In light of the response this could not be the case.
The evidence before me satisfies me that the claimant is prepared to submit a false document to support his claim and further give false evidence.
Counsel’s Submissions
Counsel submitted, supported by a statement by the claimant, that the claimant obtained the original letter in good faith from the parent organization.
My only response is that if a letter to support the claimant’s religious identity is to be given any weight, it must come from a source that has some knowledge of the facts contained in the letter. The claimant is now saying that the person who wrote the original letter did not know the claimant or his role in his faith. This being the case I am still satisfied the claimant knew the original letter was fraudulent at the time he presented it to the Board.
I reject counsel’s request that I wait for further letters from Lahore. Having found this letter to be non genuine and that the claimant is prepared to put non genuine evidence before the Board, I am satisfied the claimant is not credible.
Issue
[8] The applicant submitted the following issue for consideration:
1. Did the Board make a capricious or perverse credibility finding, without due regard to the evidence properly before it?
[9] I would restate the issue as follows:
1. Did the Board err in finding that the applicant lacked credibility?
Applicant’s Submissions
[10] The Board based its negative credibility finding upon the fact that the first letter in support of his religious affiliation was fraudulent. It was submitted that the Board ignored the applicant’s reasonable explanation and refused to accept a second letter from the Center which explained the circumstances that led them to inform the Canadian High Commission in Islamabad that the first letter was not genuine.
[11] In his post-hearing submissions, the applicant submitted an affidavit which explained that while he regularly attended a local Lahori Ahmadi place of worship, he believed that a letter from the main office would be more authoritative. His father contacted the Center in Lahore and requested a letter confirming his son’s religious affiliation and asked that his son’s religious background be confirmed through a local Lahori Ahmadi scholar. The person who answered the telephone was a volunteer who misrepresented himself as the person responsible for writing letters on behalf of the Center. The volunteer also demanded a large donation, which the applicant’s father refused to pay. Following the failure of his extortion attempt, the volunteer issued the letter.
[12] When the verification process revealed that the letter was not genuine, the applicant contacted the Center and was informed that the person who wrote the letter was a fraud. A second letter from a local scholar was issued which both confirmed the applicant’s religious affiliation and corroborated his explanation regarding the first letter. Counsel informed the Board that the second letter had been mailed and requested the opportunity to submit it as post-hearing evidence. However, the Board refused to wait for the second letter.
[13] The Board found it implausible that the applicant had submitted the first letter in good faith, without knowing that it was fraudulent. The applicant submitted that this implausibility finding was erroneous. It was submitted that such implausibility findings are open to judicial review when the inferences drawn are so unreasonable as to warrant judicial intervention (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.); Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238, 33 A.C.W.S. (3d) 1270 (F.C.A.)).
[14] The applicant submitted that the Board proceeded in a patently unreasonable fashion when it denied counsel’s request to re-open the hearing and allow the applicant the opportunity to confirm his religious identity through oral testimony, since religious identity was central to his claim.
Respondent’s Submissions
[15] The respondent submitted that the Court should not intervene in the Board’s decision unless it was based upon an erroneous finding of fact made in a perverse or capricious manner or without regard to the material (see Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(d); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193).
[16] The respondent submitted that pursuant to subsection 170(a) of IRPA, the Board may inquire into any matter it considers relevant to establishing whether a claim is well founded. It was submitted that the applicant was responsible for producing all documents required by the rules of the Board, including those establishing identity (see rule 7 of the Refugee Protection Division Rules, S.O.R./2002-228). The respondent noted that refugee claimants who do not provide acceptable documents must explain why such documents were not submitted and what steps were taken to obtain them. It was submitted that a lack of acceptable documents without a reasonable explanation for their absence or the failure to take steps to obtain them was a significant factor in assessing credibility.
[17] The respondent submitted that the applicant’s identity as a Lahori Ahmadi Muslim was the core of his claim and that inquiries were made to verify the letter establishing his religious affiliation. The letter was found to be fraudulent and the Board concluded that the applicant was aware of this fact. The respondent submitted that the Board clearly explained its findings on this point and that the applicant failed to demonstrate that it had committed a reviewable error.
[18] The respondent noted that the applicant was given an opportunity to respond to the results of the verification; however, the Board found his explanations to be implausible. It was submitted that the Board therefore did not ignore the applicant’s explanations. The respondent submitted that this conclusion was open to the Board (see Aguebor above). It was submitted that the Board was entitled to reject corroborative evidence where it was unclear whether the author had first hand knowledge of the situation (see Rani v. Canada (Minister of Citizenship and Immigration) (2006), 145 A.C.W.S. (3d) 498, 2006 FC 73).
[19] The respondent submitted that the Board was entitled to reject the applicant’s documentation, or to give it no probative value, especially in light of the results of the AIF. It was submitted that it was open to the Board to prefer the evidence obtained in the AIF, as the Canadian High Commission was impartial and disinterested in the outcome of the hearing. The respondent submitted that the Board’s decision was supported with ample reasons which explained its conclusion that the applicant had not established his identity, and that it therefore did not err in law. It was submitted that once it was determined that the applicant had failed to put forward convincing evidence regarding his identity, it was not possible for the Board to examine the risk to his life or of persecution if returned to Pakistan (see Husein v. Canada (Minister of Citizenship and Immigration) (1998), 80 A.C.W.S. (3d) 619).
Analysis and Decision
Standard of Review
[20] It is well established that the standard of review applicable to the Board’s credibility findings is patent unreasonableness (see Juan v. Canada (Minister of Citizenship and Immigration), 2006 FC 809). Therefore, a reviewing Court will only intervene with the Board’s credibility finding if it was made capriciously or was based on erroneous findings of fact.
Issue
[21] Did the Board err in finding that the applicant lacked credibility?
The Board’s finding that the applicant lacked credibility was based upon: (1) the fact that the letter confirming the applicant’s religious affiliation was fraudulent; and (2) the determination that he knowingly submitted false evidence to the Board. The Board supported its finding that the applicant had knowingly submitted fraudulent evidence by noting that he had testified that his father had confirmed with the Center that the letter was genuine, when the letter turned out to be fraudulent.
[22] However, upon closer examination of the evidence, it does not appear that the applicant necessarily knew that the letter was fraudulent. In his affidavit, the applicant explained that when he first contacted the Center, an individual named Javed Mirza indicated that he was responsible for issuing letters confirming one’s religious affiliation as a Lahori Ahmadi Muslim. The applicant explained that Mr. Mirza attempted to extort money from him, but eventually agreed to issue the letter. This letter was then submitted to the Board. The applicant stated that in early October 2005, his father informed him that he had contacted the Center and had been advised by Mr. Mirza that a request to verify the letter had been received and a response would be prepared. The applicant testified that Mr. Mirza told his father that the Center would confirm his status as a genuine Lahori Ahmadi.
[23] Therefore, it appears that the reason why the AIF request determined that the letter was fraudulent was because it was issued by Mr. Mirza, who was unauthorized to send it. Mr. Mirza was also the individual who provided the applicant’s father with false information regarding the Center’s confirmation of the letter. In my view, it appears that the applicant was at all times under the impression that the letter was genuine and would confirm his religious identity. The Board therefore reached a conclusion that was not supported by the evidence when it determined that the applicant lacked credibility because he had knowingly submitted false evidence. This is especially the case in light of the fact that the applicant was not permitted to submit a second letter confirming his story, nor given the opportunity to reopen the hearing.
[24] In my view, although the letter turned out to be fraudulent, the applicant’s post-hearing submissions and affidavit provided the Board with an adequate explanation of the situation. Having reviewed the evidence, it does not appear that the applicant knowingly submitted fraudulent evidence to the Board. Had the Board waited for the second letter to arrive or simply reopened the hearing, the applicant would have been provided with an adequate opportunity to present his entire case.
[25] As a result, I find that the Board’s negative credibility finding was patently unreasonable and the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
[26] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[27] IT IS ORDERED that the application for judicial review is allowed and the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions of the Federal Courts Act, R.S.C. 1985, c. F-7 are as follows:
|
18.1 . . .
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
( b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(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;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law. |
18.1 . . .
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi. |
The relevant statutory provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.27 are as follows:
|
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. 170. The Refugee Protection Division, in any proceeding before it,
(a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded;
. . . |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. 170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés:
a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande;
. . . |
The relevant statutory provisions of the Refugee Protection Division Rules, S.O.R./2002-228 are as follows:
|
7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. |
7. Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1274-06
STYLE OF CAUSE: MOBASHER ELLAHI CHAUDHRY
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 17, 2007
APPEARANCES:
Ms. Margherita Braccio
Mr. David De Melo FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Lani Gozlan
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT