Date: 20060802
Docket: IMM-6609-05
Citation: 2006 FC 947
Ottawa, Ontario, August 2,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
ALI
MUHAMMAD AFZAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a male citizen of Pakistan in his early 30s who
claimed refugee status on the grounds that he feared his sister’s husband. His
sister had been successful on her refugee claim which was based on fear of
spousal abuse. The Immigration and Refugee Board (Board) rejected the
Applicant’s claim on the grounds of credibility, particularly the failure to
rebut the presumption of state protection and the existence of a viable
internal flight alternative (IFA) in Lahore and in Islamabad. This is the
judicial review of the Board’s decision in which issues of state protection,
IFAs and natural justice have been raised.
[2]
The
Board drew an adverse credibility inference from the Applicant’s failure to
mention in his Personal Information Form (PIF) that the feared brother-in-law
had such influence with the police as to make it impossible for him to seek
state protection. The Board was less than impressed with the Applicant’s
explanation for this omission – that the description would take up too much
room on his PIF. He had filed a one-page PIF.
[3]
In
accordance with the standard of review of credibility findings set out in Aguebor
v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315, there is nothing patently
unreasonable about this conclusion.
[4]
On
the issue of state protection, the Board applied the proper two-prong test set
forth in Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 F.C. 706. The failure to rebut the presumption of
state protection underpinned the first prong – absence of serious possibility
of persecution in the IFA location. The Board also took account of the second
prong – reasonableness of this Applicant to seek refuge at the IFA. The Board
took full account of his personal circumstances in reaching that conclusion.
[5]
Under
all these circumstances, whether the standard of review is reasonableness or
patent unreasonableness is of little consequence. (See Sarker v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353, [2005] F.C.J. No. 435 (QL))
It would have been unreasonable to reach any other conclusion given that the
Applicant feared only one individual where there is no evidence of that
person’s reach to cause him harm at either IFA location.
[6]
The
fact that the Applicant’s sister was successful in her refugee claim does not,
in and of itself, mean the Board’s decision is unreasonable or patently
unreasonable. Each case is fact specific. In this case there is insufficient
correlation between the wife’s fear of spousal abuse and her brother’s alleged
fear of her husband.
[7]
Lastly,
the Applicant contends that the Board hearing was conducted in a manner
contrary to natural justice. This ground of judicial review is based on the
Board allegedly interfering with counsel’s conduct of the case, the fact that a
door was left open thereby imperilling the private nature of the hearing and
supposedly untoward comments made by the Refugee Protection Officer (RPO).
[8]
The
Applicant’s counsel was cautioned not to give evidence when making an objection.
This is a wholly reasonable action by the Board where the possible effect of
the objection was to direct the Applicant to statements in his PIF that had not
yet been mentioned in evidence.
[9]
There
is simply no basis for any allegation of bias or reasonable apprehension of
bias or that the Board had improperly interfered with counsel’s case and had
taken over the proceedings.
[10]
The
issue of the open door is another “red herring”. The door was the back door to
the hearing room which opened to the secure area of the Board’s premises. There
was no compromise of privacy and no objection raised.
[11]
The
Applicant also objected to comments from the RPO as to “smell” and “open
season”. The comment about smell related to the reason for the open back door
and was unrelated to the Applicant. The comment about “open season” is unclear,
particularly as the Applicant does not claim to quote the RPO verbatim.
[12]
More
fundamentally, the RPO’s comments are not those of the Board determining the
matter. If there is some problem with the RPO’s conduct, it may be a matter for
an objection, of which there was none on any of the natural justice issues
raised. There was also no reason shown why an objection could not have been
made.
[13]
Therefore,
this application for judicial review will be dismissed. There is no question
for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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