Date: 20040204
Docket: IMM-4786-03
Citation: 2004 FC 189
Ottawa, Ontario, this 4th day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
HUBDAR HUSSAIN MALIK
SALMAN HAIDER MALIK
ARSHIA BATOOL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PHELAN J.
[1] This is an application for judicial review of the Convention Refugee Determination Division of the Immigration and Refugee Board ("IRB") dated May 13, 2003 which decided that Hubdar Hussain Malik (the "Applicant"), Salman Haider Malik and Arshia Batool were not Convention refugees.
Background
[2] The Applicants are all Shia Muslim citizens of Pakistan. Mr. Malik claims a well-founded fear of persecution on the basis of his religion. Salman Haider Malik and Arshia Batool are respectively Mr. Malik's son and daughter (the "minor Applicants").
[3] The Applicant claimed that he and his wife were active in the Shia community.
[4] Prior to 1999, the Applicant began receiving threatening calls from the Sipah-e-Sahaba Pakistan ("SSP"). In February 1999, his wife was murdered in their home by persons allegedly connected to the SSP. Her murder remains unsolved.
[5] In May 2000 and again in October 2000, the Applicant was beaten by members of the SSP.
[6] In January 2001, the female minor Applicant was harassed by members of the SSP.
[7] In April 2001, the Applicant's home was invaded and he was beaten and in August of the same year, his house was vandalized for the second time. No one has been arrested for these incidents.
[8] The Applicant came via the United States and made a refugee claim in Canada on August 18, 2001.
[9] The Applicant was a senior banking executive and the only Shia at that level in the bank. It was contended that this status facilitated his ability to raise money for the mosque. This, it was submitted, made him easily identifiable to the SSP.
[10] It was admitted that the Applicant waited four years from the time of his wife's murder before he came to Canada. His arrival in Canada was four months after his retirement from the bank from which he received a settlement and is receiving a pension.
[11] The IRB rejected the Applicants' claims on the basis that:
a) the Applicant's actions were inconsistent of possessing a subjective fear for the lives of his children and himself;
b) there was no objective fear due to the existence of state protection;
c) there was an Internal Flight Alternative ("IFA") to Islamabad for the Applicants.
Issues
[12] The Applicants contend that:
a) the IRB erred in its decision that the Applicant's testimony was not credible or plausible owing to a lack of subjective fear;
b) the IRB made a capricious finding of fact unsupported by the evidence that the Applicant does not have an objective or well-founded fear of persecution in Pakistan because of the existence of state protection.
[13] The issues raised by the Applicants are:
a) whether the Applicant had a subjective fear of persecution;
b) whether there was state protection available to these Applicants, given the police attitude and political climate in Pakistan;
c) whether there was a viable IFA to Islamabad, given the reach of the SSP and the profile of the Applicant as a Shia.
Reasons
[14] The IRB's function in this type of determination rests on its expertise, its weighing of the evidence and its conclusions on credibility. As such, it is deserving of a high level of deference and a standard of review which is that of patent unreasonableness.
[15] In respect of this subjective fear, the Applicant offered many reasons for his failure to leave Karachi after his wife's murder and the subsequent assaults, break-in, and harassments including that he had a good job, his children were young and enjoyed a decent life and that he believed that the situation would improve.
[16] By way of argument at the IRB, the Applicants' counsel also claimed that after their mother's murder, the Applicant believed that they needed the support of extended family and that a move to Islamabad would be futile as the SSP would find them wherever they went in Pakistan.
[17] Whether these explanations came before the IRB by way of evidence or argument, the IRB did not accept them as adequate to explain the inconsistency between the Applicant's actions of staying in his home with his children and those of a father who believes his wife has been murdered by the SSP for her religious beliefs and who believes that the SSP has targeted his family, particularly the two children.
[18] Having reviewed the record, I cannot find that the IRB ignored the evidence nor can I find that the conclusions on this issue are patently unreasonable (see Aguebor v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 1512 (T.D.)).
[19] With respect to the Applicants' claim of objective fear on the basis of the absence of state protection, the Applicants claim that the IRB ignored evidence and reached unreasonable conclusions. It is not strictly necessary for the Court to comment further, given its finding on subjective fear, however, to complete the record I will do so.
[20] The Applicant says that the absence of state protection is clear from the failure of the police to adequately investigate the assaults on him, the reason given by the police for not investigating further was the absence of witnesses who could assist the investigation further. Even if a country's police do not measure up to the high standards of policing we expect in Canada, that is not sufficient to conclude an absence of state protection (see Smirnov v. Canada (Secretary of State) [1995] 1 F.C. 780 (T.D.)).
[21] There was evidence that the police had taken steps to investigate the wife's murder, that they had taken note in the daily log of the assaults and the police did investigate the assaults and robberies.
[22] The IRB's findings of state protection cannot be said to be patently unreasonable. They accord with the recent findings of Mr. Justice Russell of this Court in Ali v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 334 (T.D.).
[23] The Applicants' submission that the IRB was highly selective in its reliance on the evidence before it and that it ignored significant contrary evidence cannot be sustained.
[24] A review of the decision confirms that the IRB assessed all the evidence, noted evidence which suggested lack of state protection as well as that which confirmed the existence of state protection. The IRB had to weigh competing evidence and relied significantly on the positive comments in the U.S. Department of State Report for 2002.
[25] In all the circumstances, I cannot find that the IRB was arbitrary, capricious or was patently unreasonable. Therefore, I would dismiss this application for judicial review.
[26] The parties agreed that there was no question to be certified.
ORDER
[27] IT IS ORDERED that this judicial review application is dismissed. No certified question was proposed.
"Michael L. Phelan"
J.F.C.
Ottawa, Ontario
February 4, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4786-03
STYLE OF CAUSE: HUBDAR HUSSAIN MALIK
SALMAN HAIDER MALIK
ARSHIA BATOOL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Friday, January 9, 2004
REASONS FOR ORDER AND ORDER OF PHELAN J.
DATED: Wednesday, February 4, 2004
APPEARANCES:
Lani Gozlan
FOR APPLICANTS
Jamie Todd
FOR RESPONDENT
SOLICITORS OF RECORD:
Max Berger & Associates
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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