Date: 20060830
Docket: IMM-434-06
Citation: 2006 FC 1040
Ottawa, Ontario, August 30, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HAROON
RASHID AWAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Awan's
claim to status as a Convention refugee and a person in need of protection was
rejected by the Refugee Protection Division of the Immigration and Refugee
Board (Board) because it did not believe his evidence and because he had an
internal flight alternative. On this application for judicial review of that
decision Mr. Awan says that the Board’s findings with respect to his
credibility were perverse and capricious, and that if the Board had not so
erred it would not have found that he had an internal flight alternative. For
the reasons that follow, I find that the Board’s credibility findings were not
patently unreasonable and that this application for judicial review should be
dismissed.
The Claim to Protection
[2] Mr.
Awan is a citizen of Pakistan. He testified that when he started college in Pakistan
he joined the People’s Student Federation (PSF), the student federation of the
Pakistan People’s Party (PPP). He became general secretary of his college unit
of the PPP, and following college he pursued a career in politics. He says
that if he returns to Pakistan he will be subject to serious harm or he will be
killed by members of the Pakistan Muslim League (PML-Q), or the police, or
agents of the current military government in Pakistan because of his membership
and political activities with the PSF and the PPP in Rawalpindi and Karachi,
Pakistan.
The Decision of the Board
[3] The
Board rejected Mr. Awan's testimony because:
1. There were significant omissions from his original Personal
Information Form (PIF), including the police having made death threats against
Mr. Awan, and threats against him made by the Karachi District President of the
PML-Q. Mr. Awan had explained these omissions by stating that he was in
detention when he wrote out his PIF and he was upset, and that the legal-aid
lawyer provided to him only spent an hour and a half with him. The Board
rejected this explanation finding it to be unreasonable.
2. There was no evidence that Mr. Awan's profile with the PSF and
the PPP was of national significance or that his activities were conducted
regularly beyond Karachi and Rawalpindi. The documentary evidence indicated
that the PML-Q would not target for serious harm individuals with a limited
political profile; however, persons with a limited profile might occasionally
be subjected to politically motivated harassment.
3. With respect to treatment at the hands of the police and
government authorities, the Joint Director of the Human Rights Commission of
Pakistan had advised the Board's Research Directorate that:
PPP members detained in
corruption cases, on charges that at times have proved very hard to verify
judicially, have faced harsh treatment in custody – especially during the early
months of the military regime. However, such cases are again very isolated,
and pertain only to those actually detained on charges. Others could face a
threat of arrest for corruption, but it would be highly unlikely that this
[would] apply to rank and file PPP members. It is mainly their leaders who are
wanted. Treatment across the country may vary slightly, but not significantly.
[…]
Activists of the PPP faced
problems in the run-up to the October 2002 general election, and were
frequently arrested, harassed and detained while attempting to organize rallies
and so on. This action was taken by police, with orders from the military
authority. As far as I am aware, since the October 2002 polls, this harassment
has decreased, though PPP leaders have faced pressure to switch political
loyalties. At the level of activists, workers and party members there have
been fewer reports of harassment, although some isolated incidents continue to
take place.
[footnotes
omitted]
4. The Board gave no weight to copies of the First Information
Report (FIR) dated November 2, 2004, an arrest warrant, and a letter dated
August 2, 2005 from a lawyer in Karachi because:
- Mr. Awan had delayed substantially in obtaining copies of
these documents;
- the failure of Mr. Awan to mention the threats made by the
PML-Q District President in his original PIF or to the immigration officer
undermined the authenticity of the documents;
- Mr. Awan testified that other PPP representatives were not
subjected to extreme treatment, and the documentary evidence was not consistent
with the issuance of an FIR in respect of Mr. Awan in the circumstances he
described; and
- the documentary evidence was to the effect that in Pakistan
it is easy to obtain fraudulent documents, including fraudulent police and judicial
documents.
5. Given the treatment of another PPP leader targeted by
government authorities who was placed on an Exit Control List, it was
implausible that Mr. Awan could be targeted and yet have traveled twice to
the United Arab Emirates without difficulty as he testified.
6. If the government was interested in Mr. Awan, it was
implausible that he would have been released by the authorities in Karachi as
he claimed.
7. At an interview with an immigration officer in Canada Mr. Awan
said that he had never been detained or jailed. This was contrary to his
evidence before the Board.
8. A newspaper article about Mr. Awan was given no weight by the
Board because of documentary evidence to the effect that in Pakistan it is
possible to pay for false newspaper articles to be published depicting
persecution.
Review of the Credibility
Findings on Judicial Review
[4] Findings
of credibility made by the Board are findings of fact that can only be
interfered with on judicial review if they are perverse, capricious, or made
without regard to the evidence before the Board. This equates to review on the
standard of patent unreasonableness. A patently unreasonable defect "can
be explained simply and easily, leaving no real possibility of doubting that
the decision is defective". A decision that is patently unreasonable
"is so flawed that no amount of curial deference can justify letting it
stand". See: Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247 at paragraph 52.
Application of the Standard
of Review to the Decision
[5] The
Board gave detailed reasons for its credibility findings and those reasons were
properly connected to the evidence before the Board. There is no allegation
that the Board misstated the evidence before it. I have not been persuaded
that the credibility findings were in any way patently unreasonable.
[6] Dealing
with the most significant flaws in the decision, as asserted by Mr. Awan:
1. The Board was entitled to draw a negative inference from
omissions in the PIF. The omissions went to central aspects of his claim and
were not mere elaborative details. The Board was not required to accept Mr.
Awan's explanation for the omission of such important details from his original
PIF.
2. Mr. Awan is particularly vexed by the Board's rejection of the
FIR, arrest warrant and lawyer’s letter on the ground that they were not
obtained on a timely basis. However, a number of cogent reasons were given by
the Board as to why it gave no weight to the documents. Even if the Board
erred in drawing an adverse inference from the delay in obtaining the
documents, the Board's rejection of the authenticity of the documents was
adequately supported by other reasons. Mr. Awan argues that because the
documents were provided within the time mandated by Rule 29 of the Refugee
Protection Division Rules, SOR/2002-228 no adverse inference should have
been drawn. I am not, however, persuaded that the Board so erred. Rule 29,
like all disclosure rules, exists to avoid trial by ambush. Compliance with
the rule permits documents to be received in evidence (as these documents
were). Compliance with the rule does not, as a matter of law, preclude the
Board from deciding (on a proper evidentiary basis before it) that an adverse
inference should be drawn because a document was obtained so late in the day.
3. The Board’s implausibility findings (referred to as items five
and six above) were nourished by evidence before the Board that it specifically
referenced in its decision.
4. The Board noted that Mr. Awan speaks and understands English
and that he had access to the services of an interpreter when he was
interviewed by the immigration officer. At that interview, Mr. Awan signed a
document where a box was checked indicating that Mr. Awan had reported that he
had never been arrested or detained. On those facts, the Board was entitled to
rely on this document as establishing a contradiction with Mr. Awan's oral
testimony that he had in fact been arrested and detained. There was no need
for the Board to require the immigration officer who interviewed Mr. Awan to
testify.
[7] In
Mr. Awan's reply memorandum, he takes issue with the Minister's submission that
it was open to Mr. Awan's counsel to clarify inconsistent evidence at the
hearing. Mr. Awan states that Chairperson's Guideline 7 and the reverse order
questioning process precluded such clarification. I disagree. Nothing in
Guideline 7 would preclude any attempt to rehabilitate Mr. Awan's
testimony once the Board had finished its examination of him.
[8] For
these reasons, the application for judicial review is dismissed.
[9] Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
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