Hussain v. Canada (Minister of Citizenship and Immigration), 2004 FC 18

Date: 20040108

Docket: IMM-4455-03

Citation: 2004 FC 18

BETWEEN:

                                                                 AZHAR HUSSAIN

                                                                                                                                                       Applicant

                                                                                 and

                                                                    THE MINISTER

OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

HARRINGTON J.

[1]                 Azhar Hussain is a young man from Pakistan. He is a Shia Muslim in a country in which the majority are Sunni Muslims.

[2]                 He has sought status in Canada on the grounds that he is a refugee within the meaning of the Convention Against Torture or is otherwise in need of protection within the meaning of sections 95 and following of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[3]                 His case is that his father was killed by Sunni fanatics in 1989, and that his brother was killed in 2001 by the Sunni terrorist organization SIPAH-e- SAAHABA who have also threatened him. He fears that if he were to return to Pakistan he would be killed because the police would be unwilling or unable to protect him.

[4]                 The Immigration and Refugee Board dismissed his application. He was given leave to apply for judicial review, which application is now before me. The Board found that his fear of returning to Pakistan was not well-founded. In particular, he could go to another area of Pakistan, Jhelum, where he lived for a number of years without encountering any particular difficulty (internal flight alternative).

[5]                 The Board also noted that following the death of his father, he left Pakistan for a few years and then returned for a decade before making his refugee claim in Canada. It was also noted that Mr. Hussain continued to live in Pakistan for 10 months following the death of his brother.

[6]                 The Board determined that conditions in Pakistan had considerably improved with respect to the Sunni minority and that there was adequate government protection. State protection need not to be perfect as was held in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R.(4th) 334, 150 N.R. 232 (F.C.A.).

[7]                 These were all findings of fact. It matters not whether on a fresh review of the material before the Board I would have come to the same conclusion. The findings of fact should not be disturbed unless they were "patently unreasonable" or to use the language of section 18.1 of the Federal Courts Act (R.S.C. 1985, c. F-7, as amended) "made in a perverse or capricious manner or without regard for the material before it".

[8]                 There are any number of cases to support this proposition. One often cited is Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A).

[9]                 Counsel for the Applicant noted that in assessing country conditions the Board referred to televised reports concerning Pakistan which were not in the material before it at the time of the hearing. It was submitted that this was improper use of extrinsic evidence.

[10]            It was also submitted that Jhelum was not an appropriate internal flight alternative given the changes in Mr. Hussain's situation. Since he had left Jhelum, which was because he was having difficulty finding employment there, he has become much more active in a sectarian or a religious sense, his brother was killed and he was subjected to a death threat.

[11]            Although the use of extrinsic evidence can in some circumstances be unfair, there was a great deal of material put before the officer who in particular relied upon the Board's own 2002 analysis of State protection in Pakistan. As the televised reports were along the same lines, they simply served as another example of improved conditions in Pakistan.

[12]            As regards Mr. Hussain's "changed circumstances", it must be borne in mind that changed circumstances are questions of fact, not law as stated by the Federal Court of Appeal in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11.

[13]            On the one hand, Mr. Hussain contends that his changed circumstances do not make Jhelum a viable internal flight alternative. On the other, the Board has found that conditions in Pakistan have improved. While no one can assure Mr. Hussain's protection in Jhelum, or anywhere else for that matter, the Board considered the risks to him to be a mere possibility. The weighing of these factors properly falls within the province of the Board, and there is no evidence to suggest that it in any way misconstrued the situation.                   

[14]            Consequently, I can see no reason why the findings of the Board should be disturbed and so will order that the application for judicial review be dismissed.

[15]            There is no serious question of general importance to be certified pursuant to section 74(d) of the Immigration and Refugee Protection Act.

"Sean Harrington"

                                                                                                                                                               J.F.C.                         

Toronto, Ontario

January 8, 2004

FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                    IMM-4455-03

STYLE OF CAUSE:                                   AZHAR HUSSAIN

                                                                                                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                                     Respondent

PLACE OF HEARING:                           TORONTO, ONTARIO

DATE OF HEARING:                               JANUARY 7, 2004

REASONS FOR ORDER BY :             HARRINGTON J.

DATED:                                                        JANUARY 8, 2004

APPEARANCES:

Mr. John Savaglio                                                                           FOR APPLICANT

Ms. Marina Stefanovic                                                                  FOR RESPONDENT

SOLICITORS OF RECORD:

John Savaglio

Barrister & Solicitor

Pickering, Ontario                                                                           FOR APPLICANT

Morris Rosenberg                                                                          

Deputy Attorney General of Canada

FOR RESPONDENT

                          FEDERAL COURT

TRIAL DIVISION

Date: 20040108

Docket: IMM-4455-03

BETWEEN:

AZHAR HUSSAIN          

                                                                         Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                     Respondent

REASONS FOR ORDER