Date: 20041221
Docket: IMM-1708-04
Citation: 2004 FC 1761
Ottawa, Ontario, this 21st day of December, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MUHAMMED YOUSAF KHAN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a 54-year old Pakistani citizen who converted from Sunni Muslim to Shia Muslim in April 2000. He claims that following his conversion, he received threatening phone calls. Then his son was beaten so badly he had to be hospitalized in December 2000. The Applicant's home was attacked during a religious gathering and he himself was beaten in May 2001. In November 2001, his wife was harassed and slapped in the street. The incidents were reported to the police but no investigations were conducted.
[2] The Applicant was a police officer in the province of Punjab from March 1968 until January 2003. In February 2002, he left Pakistan to go the United States, hoping that the hostility in the community towards him would die down. He returned after a month's absence. The Applicant says that he received threats again in March 2002, was attacked in July 2002, and that shots were fired at his home in November 2002. The police did investigate this last incident, but the Applicant says this time he was convinced to leave Pakistan. He departed, by himself, on December 9, 2002 and made a refugee claim in Canada on December 25, 2002.
[3] The Immigration and Refugee Board, Refugee Protection Division (the "Board"), ruled on December 21, 2004, that the actions of the Applicant were not always consistent with those of a person who has a well founded subjective fear and that the state of Pakistan is making serious efforts to provide adequate, but not always perfect, protection of its citizens from sectarian violence. Accordingly, the Applicant does not qualify as either a Convention refugee or a person in need of protection.
ISSUES:
1) Did the Board err in concluding that there is adequate state protection in Pakistan?
2) Did the Board err in concluding that the actions of the Applicant in not leaving Pakistan permanently until December 2002 suggested a lack of subjective fear?
STANDARD OF REVIEW:
[4] At the hearing both sides agreed that the standard of review is patent unreasonableness. (See Pushpanathan v. Canada (M.C.I.),[1998] 1 S.C.R. 982; and Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.))
[5] The Applicant argues that the Board made three errors with respect to its findings regarding state protection, namely:
i) it made no finding that state protection is meaningful and effective (relying on Biakona v. MCI [1999] F.C.J. No. 391);
ii) it failed to specify why it preferred the documentary evidence over the Applicant's sworn evidence (relying on Mohacsi v. MCI [2003] 4 F.C. 771); and
iii) it ignored part of the Board's and the Applicant's evidence which establish that there is a broader pattern of state inability or refusal to extend protection (relying on Zhuravlev v. MCI [2000] 4 F.C. 3).
ANALYSIS
State Protection
[6] The relevant considerations for determining whether there is adequate state protection were laid out by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.J. No. 74, [1993] 2 S.C.R. 689, LaForest J. stated at para 50:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives for the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens...Absent a situation of complete breakdown of state apparatus...it should be assumed that the state is capable of protecting a claimant.
[7] In making a claim of state protection, the onus is on the applicant. As so succinctly put by Hugessen J.A. (as he then was) in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (FCA):
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only...a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[8] Lastly, when dealing with persecution by non-state agents the Board has to keep in mind the following observations of Pelletier J. in Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, [2000] F.C.J. No. 507 at para 19:
Where the agent of persecution is not the state, as in Ward, the question of state protection is rarely a yes/no proposition. The state may wish to provide protection but may be unable to provide effective protection, either locally or across its entire territory. Effectiveness is itself a matter of degree. All policing activity is bound to encounter failures, particularly in a democratic state. Even in Canada, random acts of vandalism or violence seldom yield convictions. When does the absence of police assistance represent something other than the normal limits of police activity? When does police failure to act, based upon inadequate material for investigation, amount to an undeclared refusal to act? To what extent does a claimant have to canvass alternate police resources, geographically or administratively, before it can be concluded that the state is unable or unwilling to protect the claimant?
.......
What conclusions can be drawn from the above? The first is that when the agent of persecution is not the state, the lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. Local failures to provide effective policing do not amount to lack of state protection. However, where the evidence, including the documentary evidence situates the individual claimant's experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out. The question of refusal to provide protection should be addressed on the same basis as the inability to provide protection. A local refusal to provide protection is not a state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group. Once again, the documentary evidence may be relevant to this issue. There is an additional element in the question of refusal which is that refusal may not be overt; the state organs may justify their failure to act by reference to various factors which, in their view, would make any state action ineffective. It is for the CRDD to assess the bona fides of these assertions in light of all the evidence.
[9] The foregoing three authorities Ward, Villafranca and Zhuravlev (supra) provide the core analytical framework for examining claims regarding the availability of state protection.
[10] Regarding point i) I find that in this case the Board applied the directions to be garnered from these cases and applied them in a manner that cannot be considered patently unreasonable.
[11] The Board analysed the documentary evidence concerning country conditions in Pakistan very carefully and thoroughly, devoting 12 pages of its decision to the subject. Applying the standard from Ward and Villafranca, there is no situation of complete breakdown of the state infrastructure in Pakistan, and as per Zhuravlvev, the Board has made a determination with reference to specific documentary evidence and stated its reasons for the conclusions it has drawn.
[12] The Board did not use the words "meaningful and effective" when discussing the changes in Pakistan, however, nothing turns on this point. Its findings were clear that state protection in Pakistan exists that is adequate, but not always perfect.
[13] Regarding point ii) The Board is not required to refer to all portions of documents tendered (see Hassan v. MEI, (1992) 147 N.R. 317). Here, its decision was based on abundant evidence. On the other hand, some of the evidence produced by the Applicant came from less than independent sources such as "Shia News". It would have been preferable if the Board had stated why it disregarded the Applicant's evidence, but its failure to do so is not fatal given the extensive sources consulted and referred to by the Board. There will always be contrary evidence when the availability of state protection is considered. However, it is not the role of the Court to reweigh the evidence, but merely to ensure that the preponderance of the evidence supports the conclusion reached (see Javaid v. Canada (MCI) 2004 FC 205.)
[14] Regarding point iii) It is well established that it is the Board's role to weigh the evidence and that this court will not re-weigh the evidence. I am not convinced that the references in the Tribunal Record the Applicant referred to at pp. 89, 134 and 179 are so compelling that the Board could only conclude that there is a broader pattern of state inability or a refusal to extend protection. Quite the contrary, when considered together with the totality of all the evidence before it, the Board could reasonably find that "the state of Pakistan is making serious efforts to provide adequate but not always perfect state protection of its citizens from sectarian violence."
Subjective Fear
[15] The Applicant argues that the Board breached procedural fairness by drawing an adverse inference from the fact that the Applicant did not leave Pakistan permanently until December 2002, and ignored the cumulative effect of the harassment and persecution suffered by the Applicant.
[16] The Applicant asserts that no adverse inference should be drawn from the one month delay between the incident that was the "final straw" and his actual permanent departure. In Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271, Letourneau J stated:
(t)he delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
[17] In this case, there was no delay in claiming status once the Applicant arrived in Canada. The credibility issue that, as the Applicant, despite the fact that he feared reprisals, nevertheless returned to Pakistan after visiting the United States for only a month in 2002.
[18] As the Board observed:
Considering the previous incidents I do not find it plausible that after only one month the claimant would believe it safe to return home to the protection of Pakistan if the fear of serious harm was subjectively well-founded. (p. 2 of the Decision)
...
The fact that the claimant remained in Pakistan from March 2002 until December 2002 when he had valid travel documents that would have allowed him to flee satisfies me this is not the actions of a person whose fear is subjectively well-founded. (p. 3 of the Decision)
[19] The observations by the Board are based on the factual record before it. The Board had the benefit of live testimony by the Applicant, could evaluate his explanations and thus was in the best position to make findings of credibility. There is nothing patently unreasonable in its conclusions.
CONCLUSION
[20] Given that neither the findings in respect of state protection nor subjective fear were patently unreasonable, this application cannot succeed .
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1708-04
STYLE OF CAUSE: MUHAMMED YOUSAF KHAN v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 15, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
DATED: December 21, 2004
APPEARANCES:
Mr. Frederick S. Wang
for the Applicant
Ms. Bridget A. O'Leary
for the Respondent
SOLICITORS ON RECORD:
Mr. Frederick S. Wang
Bay Street Immigration Lawyers, P.C.
Toronto, Ontario
for the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada
for the Respondent
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