Bilquees v. Canada (Minister of Citizenship and Immigration), 2004 FC 157

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2004 FC 157

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Date: 20040203

Docket: IMM-1454-03

Citation: 2004 FC 157

BETWEEN:

BILQUEES, Fathima

HUSSAIN, Imran

Applicants

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

PINARD J.:

[1] This is an application for judicial review of a decision by the pre-removal risk assessment (PRRA) officer, Sophie-Andrée Roy (the officer), dated February 18, 2003, that the applicants are not Convention refugees or "persons in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] The female applicant, Fathima Bilquees, is a citizen of Pakistan. She arrived in Canada on May 30, 2001 with her son, Imran Hussain. On August 1, 2002, the Immigration and Refugee Board refused their refugee claim.

[3] The applicant and her son claim to have a well-founded fear of persecution by the terrorist group Sipah-e-Sahaba Pakistan, because of their adherence to the Shi'ite religion.

[4] At the outset of the hearing, I allowed the objection of the respondent's counsel regarding the admissibility of the documents found at pages 39 to 44 and 53 to 57 of the Tribunal Record, on the ground that these documents were not before the decision-maker.

[5] These reasons take into account the written representations of the parties' counsel in their respective memoranda, as well as their oral arguments.

[6] As for the decision, the PRRA officer found that the applicants are not refugees or persons in need of protection. She determined that the applicants' fear of persecution was not credible, that the presumption of the State's ability to protect the applicants had not been rebutted and, finally, that there was an internal flight alternative for the applicants in Pakistan.

[7] The PRRA officer found, like the panel that preceded her, that the applicants were not credible. The evaluation of credibility is a question of fact and this Court cannot substitute its decision for that of the PRRA officer unless the applicant can show that the decision was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The PRRA officer has specialised knowledge and the authority to assess the evidence as long as her inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and her reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).

[8] According to the applicants, the PRRA officer had no reason to doubt the risk that they face in Pakistan. Nevertheless, the officer listed several inconsistencies in her decision that cast doubt on the credibility of the applicants' story. The officer raised, for instance, the inconsistencies between Ms. Bilquees' testimony, her son's testimony and the Personal Information Form, significant inconsistencies in the context of the application, because they call the fundamental incidents of the claim into question.

[9] The applicants claim, furthermore, that the officer did not consider all of the evidence before her. They argue, for instance, that the officer should have taken Ms. Bilquees' health into consideration. The officer's notes themselves clearly indicate the contrary to these claims, as she included specific references to Ms. Bilquees' medical condition:

[TRANSLATION] Finally, the claimant described her medical condition in her PRRA submissions. We do not doubt the seriousness of her condition. However, according to subparagraph 97(1)(b)(iv), if the risk is only caused by the inability of the country of reference to provide adequate health or medical care, the applicant could not then qualify for protection. According to IRB legal services, "[c]are must be taken in analyzing a claim where the risk arises, not because of the lack of health care, but because the person has a medical condition that will make him or her more vulnerable to the unstable conditions in his or her country" [Persons in Need of Protection - Risk to Life or Risk of Cruel and Unusual Treatment or Punishment - IRB Legal Services, May 15, 2002]. The claimant did not prove, on a balance of probabilities, that the conditions in her country are such that she personally would be at risk if she were to return to Pakistan. I therefore cannot find that her medical condition will make her more vulnerable to these conditions [see Ahmed, Abdikarim Abdulle v. M.C.I. (FCTD, IMM-850-99), Gibson, July 31, 2000]. Moreover, the documentary evidence does not show that if the applicant were to return to her country, she would be refused available medical care because she is of Shi'ite religion.

[10] The same notes clearly indicate that the officer's analysis and findings regarding the issue of the State's protection were consistent, reasoned and well-founded. In this respect, I am persuaded that the officer clearly applied the applicable principles on the subject, as summarized by the Federal Court of Appeal in Mendivil v. Canada (Secretary of State) (February 7, 1994), A-132-93, 167 N.R. 91, [1994] F.C.J. No. 2021 (QL):

[13] It has now been established in the case of Canada (Attorney General) v. Ward [[1993] 2 S.C.R. 689] that state's inability to protect is an integral component of the notion of a Convention refugee, particularly in the light of the words "well-founded." [S.C.R. at 722]. The onus is on the claimant to establish this inability. La Forest J. makes it clear in Ward that "[a]bsent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant". [S.C.R. at 725] Unless there is an admission by the state that it cannot afford protection, a claimant must provide "clear and convincing confirmation of a state's inability"[S.C.R. at 724] to protect him. . . .

[11] As this is fundamentally a case of a straightforward question of credibility and of assessment of the facts, I must find that the applicants have not successfully discharged the heavy burden of demonstrating that the PRRA officer's decision was patently unreasonable. Accordingly, the application for judicial review is dismissed.

[12] After considering the written representations filed by the counsels of the parties, I agree with the respondent's counsel that there is no question for certification in this case.

"Yvon Pinard"

JUDGE

OTTAWA, Ontario

February 3, 2004

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: IMM-1454-03

STYLE OF CAUSE: BILQUEES, Fathima, HUSSAIN, Imran v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: December 16, 2003

REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard

DATED: February 3, 2004

APPEARANCES:

Stewart Istvanffy FOR THE APPLICANTS

Michèle Joubert FOR THE RESPONDENT

SOLICITORS OF RECORD:

Stewart Istvanffy FOR THE APPLICANTS

Montréal, Quebec

Morris Rosenberg FOR THE RESPONDENT

Attorney General of Canada

Ottawa, Ontario

Date: 20040203