Date: 20061109
Docket: IMM-6547-05
Citation: 2006 FC 1360
Ottawa, Ontario,
November 9, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
VAHEED
ALI, AKILA ALI, QALSOOM ALI, HARES ALI
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
principal applicant is Vaheed Ali. His claim under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. (the Act), was heard
jointly by the Refugee Protection Division (RPD) with those of his wife Akila
Ali, and children Qalsoom Ali and Hares Ali. They all claim to be Shia Muslims
and citizens of Pakistan who fear persecution from Sunni Muslins.
They seek judicial review of the RPD’s decision rejecting their claims because
of their failure to present credible evidence in support of such claims and
because State protection would be available to them, should they return to Pakistan.
[2]
The Court
has concluded that the RPD’s finding in respect of the lack of credibility of
the main applicant contains an error. However this is not sufficient to set
aside the decision because the RPD’s finding in respect of State protection is
reasonable and sufficient in itself to justify the decision to reject those
claims (Yassine v. Canada (Minister of Citizenship and Immigration)
(S.C.A.), [1994] F.C.J. No. 949).
[3]
Finally,
in respect of the last argument raised by the applicants which involves the
application of Guideline 7 (order of questioning), the Court has concluded that
the applicants have waived their right to object to the application of this
Guideline. The Court certified a question on that issue.
Background
[4]
The
applicants say that they arrived in Canada
on September 10, 2004. Five days later, they claimed refugee status. They allegedly
travelled on fake Pakistani passports and Canadian visitor visas obtained from
a smuggler. Once in Canada, they returned the passports
and visas to the smuggler.
[5]
At their
initial meeting with Immigration Canada, the applicants presented copies of
four birth certificates and no other identity documents. The date of issue of
those certificates is in Urdu and is not clear. Later, prior to the hearing
before the RPD, they supplied a letter from the President of the main
applicant’s Imambargah (religious center) that attests to the fact that the primary
applicant was appointed as their financial secretary in September of 2003. This
letter, however, does not indicate when the applicant resigned from this
function or when he left Pakistan. They also supplied national
identity cards for Mr. and Mrs. Ali issued on September 20, 2003 and a marriage
deed from Pakistan.
[6]
In his
PIF, the main applicant refers to the fact that he was an active member of his Imambargah
and had become the volunteer financial secretary in September 2003. This
position involved collecting donations door-to-door. He further adds that Sunni
fanatics began to persecute him for his religious activities in mid-October
2003. He allegedly received threatening phone calls from the SSP, was beaten and
his house vandalized on two separate occasions in April and May 2004.
Complaints to the police were ineffective.
[7]
Scared, he
quit his volunteer post in June 2004. Despite this, he was beaten again and his
children threatened. In August, a spiteful police officer jailed him claiming
that an enemy had complained that he had insulted the prophet. He was beaten
and his wife had to pay a bribe to secure his release. Shortly after the family
fled the country. Since then, Mr. Ali has spoken to his immediate family in Pakistan who says that he is still
being targeted. He has also been in contact with the President of his Imambargah.
[8]
In its
decision, the RPD does not refer to any contradiction or inconsistency between
the applicant’s testimony and his PIF or any other notes in his file. Rather it
starts its analysis by stating that pursuant to section 106 of the Act and Rule
7 of the Refugee Protection
Division Rules, (SOR/2002-228), the applicant had the duty of providing
acceptable documents establishing his identity which means “in the case at hand,
his alleged perceived identity as an active Shia during the period of September
2003 to September 2004 or to provide satisfactory explanation for lack thereof.”
[9]
The RPD then goes on to
examine each document provided by the main applicant to determine whether or
not they indicate that the applicants were in Pakistan after September 2003. First, it noted that the four birth certificates
were all handwritten by the same hand and in English and that their date of
issue was not clear as it was written in Urdu without the benefit of
translation.
[10]
However,
it is agreed that the RPD did not question Mr. Ali with respect to these birth
certificates and did not ask him to explain the circumstances in which they
were obtained. It appears from the affidavit of the applicant that they were
issued two or three months before leaving Pakistan and that if this issue had been raised,
it would have necessarily placed him in Pakistan at that time for he had
obtained them himself and had them upon his arrival in Canada.
[11]
The RPD
also mentions that when asked why he had not provided any documents (other than
the birth certificates and the marriage deed, see page 217 of the certified
record) that would place him in Pakistan after September 2003, the claimant
explained that, being in Canada, he could not have obtained them and that he knew
no one that could do so for him. However, after being reminded that he had a
brother still living in Lahore, the applicant stated that
his brother was very much afraid of the Sunni extremists. He did not know
whether his brother could do anything for him.
[12]
Having
rejected such explanation, the RPD concluded that the claimant generally lacked
credibility. It then when on and assessed whether, in any event, the applicants
could avail themselves of State protection in Pakistan.
[13]
In that
respect, the RPD adopted the reasoning of another panel in another matter
reported as I.X.N. (Re) [2004] R.P.D.D. No. 34, and more particularly found
at para. 9 to 33. It noted that the facts in that case were sufficiently
similar to the facts related by Mr. Ali in this case to justify reliance on its
conclusions respecting State protection.
[14]
The RPD
also mentioned that there was no evidence in the present case that the police
were after the main applicant. It then went on to review the more current documentary
evidence on file which described the country situation after the decision in I.X.N.,
above, and found that it could still rely on the I.X.N analysis. It then
concluded that there was State protection in Pakistan.
Issues
a. Did the RPD make a reviewable
error in concluding that the applicant was credible?
b. Did the RPD unreasonably rely
on the decision on I.X.N., above, or neglect any evidence in concluding
that the applicant will be able to benefit from state protection in Pakistan?
c. Did the applicant’s failure to
object at the first opportunity to the application of Guideline 7 constitute an
implied waiver of his right to do so at a later stage particularly on judicial
review?
Analysis
a) Credibility
[15]
The RPD’s
findings with respect to credibility are reviewable on the standard of patent
unreasonableness. It is also well established that normally the RPD cannot make
a negative inference solely from the fact that an applicant failed to produce
documentation corroborating his claim. However, as noted by Justice Michael
Kelen in Amarapala v. Canada
(Minister of Citizenship and Immigration), 2004 FC 12, [2004] F.C.J. No.
62 (QL) at para. 10, “where there are valid reasons to doubt a claimant’s
credibility, a failure to provide corroborating documentation is a proper
consideration for a panel if the Board does not accept the applicant’s
explanation for failing to produce that evidence.”
[16]
Here,
there is no indication in the decision that the RPD doubted that Mr. Ali and
his wife were indeed the persons described in their identity cards. No issue is
taken in respect of the authenticity of such documentary evidence. Also, the
RPD does not indicate in its decision that it gave no weight or that it doubted
the validity of the letter from the President of the Imambargah. There was
therefore corroborating evidence that Mr. Ali and his family were indeed Shia Muslims
and that the main applicant was, as he testified and stated in his PIF, the
financial secretary of said religious center as of September 23, 2003.
[17]
Thus, this
is not really a case where the identity of the applicant has not been
established. It is clearly distinguishable from the situation in Singh v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 556, [2003] F.C.J. No. 755, where the RPD had no evidence of who the
applicant really was.
[18]
It may
well be that the RPD had some valid reasons for doubting Mr. Ali’s credibility,
particularly with respect to his testimony that he lived in Pakistan up to
September 2004. But it could simply not reject the totality of his testimony
without any further explanations. Had the claims been rejected simply on that
basis, this decision would have been set aside. However, as noted, the RPD also
examined the question of State protection.
b) State protection
[19]
Whether
or not State protection exists or is available to an applicant is a mixed
question of fact and law. I adopt the pragmatic and functional analysis
conducted by my colleague Justice Danielle Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship
and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), and conclude
that the standard of review applicable is reasonableness simpliciter (see also Saeed
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1016, [2006]
F.C.J. No. 1281 para. 35 (QL)).
[20]
The
applicants suggest that it was inappropriate for the RPD to rely on the analysis
carried out in I.X.N., above, given that this case was decided in July
2004 and that it must be assumed that country conditions have changed or evolved
since then.
[21]
They also
argue that the RPD’s treatment of the BBC web page was inadequate, more
particularly when the RPD stated that the BBC piece does not further their claim.
[22]
This question
of whether it was open to the RPD to rely on the reasoning of another panel
faced with the same documentary evidence as a basis of a particular finding was
considered by the Federal Court of Appeal in Koroz v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1593 (QL).
[23]
Although,
this question had been certified in respect in a finding of internal flight
alternative, it is, in my view, perfectly applicable to a finding in respect of
State protection.
[24]
In Koroz
above, the Court of Appeal answered the question in the affirmative because it
was satisfied that the documentary evidence was virtually the same in both
cases.
[25]
I
understand from this decision that before the RPD can rely on another panel’s
finding in respect of State protection it must satisfy itself that the facts of
the two cases are sufficiently similar to justify relevance. It must also look
at the documentary evidence before it to assess whether there is any evidence
that was not considered by the other panel and how this evidence impacts on the
other panel’s analysis and its conclusions.
[26]
In I.X.N.,
above, the panel was considering the claim of an applicant who alleged that he
feared persecution from the SSP due to his support for his Shia community. He
had already suffered serious harm in the past and claimed that the police were
ineffective and provided no real assistance.
[27]
The Court
is satisfied that the RPD was correct in concluding that this factual situation
was very similar to the one before it. The respondent could not point to any
documentary evidence indicating that persons holding an official function like
the main applicant were treated any differently than any other Shia actively
involved in his or her community.
[28]
In I.X.N,
above, the panel had made a thorough analysis of the documentary evidence
available up to the time of its decision in July 2004. This included the same
country reports that were available to the RPD in the present case for up to
and including the year 2003.
[29]
The panel
clearly noted that sectarian violence still occurred then and that, in fact,
there was an increase in sectarian murders by the end of 2003 and continuing in
2004. Nevertheless, having noted that the protection does not have to be
perfect, it conclude from it review that protection did exist in Pakistan for Shia Muslims.
[30]
The
analysis in I.X.N., above, is in my view perfectly in line with the
principles recently reviewed by Justice Yves de Montigny in Saeed,
above, at paragraphs 40 to 45. In Saeed, the existence for State
protection for Shia Muslims in Pakistan was also the issue and the negative
decision under review had been issued in May 2005.
[31]
Obviously,
in the present case, the RPD could not simply adopt the conclusion reached in I.X.N.,
above, for there was indeed some more recent documentation available to it.
[32]
More
particularly, a U.S. report on International
Religious Freedom for Pakistan, 2004 had been updated on
September 17, 2004 and the applicant had filed recent articles from the BBC
webpage.
[33]
However,
it is evident from the decision that the RPD considered this evidence. The
Court carefully reviewed the updated report with the parties at the hearing and
is satisfied that it was open to the RPD to conclude that this report which
notes that some steps to improve the situation of religious minorities had been
taken during the period it covers does not warrant a different conclusion than
in I.X.N., above.
[34]
As to the
recent BBC webpage, it does discuss a strike in Karachi over violence between Sunni and Shia Muslims,
new suicide bombings and other violent incidents; however, the Court must agree
with the RPD that it does not shed any new or different light on the issue. The
panel in IXN clearly did not expect such killings to be completely eradicated
in the near future. The panel also clearly referred to similar suicidal bombings
in its decision.
[35]
After a
probing examination, the Court must conclude that it was reasonable for the RPD
to adopt the conclusion reached in I.X.N., above.
[36]
This
finding constituted a distinct ground on which to reject those claims. In
itself, it is sufficient to justify the final conclusion reached by the RPD
that these claims must fail.
c) Guideline 7
[37]
As mentioned,
the applicants did not object to the application of Guideline 7 at the hearing
before the RPD. They had not raised this issue in their memorandum of argument
or in the application for leave and judicial review that was before the judge
who granted leave in this matter. It is only in their reply to the respondent
memorandum dated January 2006 that the applicants relied on the recent decision
in Thamotharem v. Canada (Minister of Citizenship and
Immigration),
2006 FC 16, [2006] F.C.J. No. 8 (QL).
[38]
As
indicated at the hearing, the Court totally agrees with the reasoning adopted
by Justice Richard Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J.
No. 631 (QL), where he concluded at paragraph 237.
vi. – The common
law principle of waiver requires that an applicant must raise an allegation of
bias or a violation of natural justice before the tribunal at the earliest
practical opportunity. If counsel were of the view that the application of
Guideline 7 in a particular case would result in a denial of their client’s
right to a fair hearing, the earliest practical opportunity to raise an
objection and to seek an exception from the standard order of questioning would
have been in advance of each scheduled hearing, in accordance with Rules 43 and
44, or orally, at the hearing itself. A failure to object at the hearing must
be taken as an implied waiver of any perceived unfairness resulting from the
application of the Guideline itself. If the objection was made in a timely
manner at or before the hearing, the applicants are entitled to raise it as a
ground for judicial review in their applications for leave. If the applicants
failed to cite a denial of procedural fairness in their applications for leave,
judicial review of the applications should be confined to the grounds on which
leave was sought.
[39]
I note
that Justice Mosley also said at paragraph 235;
If
the issue of Guideline 7 is only raised in a further memorandum of fact and law
filed subsequent to the granting of leave, there has been an implied waiver and
the applicants are restricted to the issues identified in the initial
application and memorandum.
[40]
In view of the foregoing, the Court
concludes that the decision cannot be set aside simply because the RPD applied
Guideline 7.
Conclusion
[41]
The Court finds that the
application must be dismissed.
[42]
Neither
party proposed a question for certification on either of the first two issues.
I am satisfied that my conclusion in respect of those questions turns on the
particular facts of this case. With regard to the application of Guideline 7,
both parties agreed that I should certify the following question that was
certified by Justice Mosley in Benitez, above:
When must an applicant raise
an objection to Guideline 7 in order to be able to raise it upon judicial
review?
[43]
I agree
that this question would be determinative in this case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial
review is dismissed with the following question certified, as a question of
general importance:
When must an applicant raise
an objection to Guideline 7 in order to be able to raise it upon judicial
review?
“Johanne
Gauthier”
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