Date: 20050203
Docket: IMM-3857-04
Citation: 2005 FC 168
Ottawa, Ontario, this 3rd day of February, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
QAISER MAHMOOD NAZIR
FAISAL NAZIR
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Qaiser Nazir and his younger brother, Faisal, have journeyed from Pakistan to Canada via the United States. On arrival here they claimed refugee status based on Qaiser's political activities which allegedly led to more than one arrest, police brutality and severe personal injury. The Refugee Protection Division of the Immigration and Refugee Board turned down the claims on grounds of credibility. This is a judicial review thereof.
[2] The Panel did not accept that Qaiser was actively involved in the Pakistan People's Party or that he was tortured by the police who broke his leg or that his younger brother, Faisal, was subsequently subjected to police persecution.
[3] In addition, Qaiser spent five and a half months in the United States as an illegal alien, and drew attention to himself by applying for a Pakistani passport. The Panel characterized this "as behaviour which is not consistent with that of a subjective fear of persecution".
[4] Both issues are ones of fact. Although the Nazirs' counsel has put the Panel's findings as to what really happened in Pakistan in doubt, it is not necessary to reach a conclusion as to whether those findings were patently unreasonable as per Aguebor v. Canada (Minister of Employment and Immigration), [1993] 160 N.R. 315; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, for even if there were grounds for an objective fear, there must also be a subjective fear of persecution (Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689).
[5] The record more than justifies a finding as to Qaiser's lack of fear. He spent five and a half months in the U.S. post 9/11. He said he had originally intended to apply for asylum but was dissuaded by acquaintances and a Pakistani lawyer practising in New York.
A. I have asked people I ran into: "How can I be safe in U.S.A. ? How can I have protection in U.S.A.?" And the people who are of Pakistan origin told me : "Why bother doing all that, you just live here and keep on working."
The lawyer added he would likely be refused. Yet when interviewed he said he moved to Connecticut because "there were too many cops in New York ... I thought I had a better chance to survive".
[6] This was a man who was content to live indefinitely in the U.S., working under the table, knowing that if he came to the attention of the authorities he risked deportation and with each passing day his failure to claim asylum in the U.S. would work against him. The Panel's finding he lacked subjective fear was not patently unreasonable. Faisal is in the same situation as he also went to the U.S.
[7] There is no question to certify.
ORDER
Judicial review of the decision of the Immigration and Refugee Board (Refugee Protection Division) rendered on 2 April 2004 in files numbers MA3-01713 and MA2-01714 stating that the applicants are not Convention refugees, is hereby dismissed.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3857-04
STYLE OF CAUSE: QAISER MAHMOOD NAZIR
FAISAL NAZIR
AND
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: JANUARY 25, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: FEBRUARY 3, 2005
APPEARANCES:
Stewart Istvanffy FOR APPLICANTS
Édith Savard FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy
Montreal, Quebec FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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