Date: 20041112
Docket: IMM-287-04
Citation: 2004 FC 1591
Ottawa, Ontario, the 12th day of November, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SHEIKH MAZHAR ALI,
FARWA MAZHAR,
PARVEEN AKHTAR et
MEESAM ALI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) of the Immigration and Refugee Board (the IRB), dated December 5, 2003, that since there was an internal flight alternative (IFA) in Pakistan, the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). The applicants are asking that the panel's decision be overturned and that the matter be sent back for rehearing before a differently constituted panel.
ISSUE
[2] Did the panel err in rejecting certain important documents in support of the applicants' fear of persecution, namely, the First Information Report (FIR), the arrest warrant and the letter from the Pakistani lawyer?
CONCLUSION
[3] For the reasons set out below, I answer this question in the negative.
FACTS
[4] The applicant Sheikh Mazhar Ali (Mr. Ali, or the applicant), 40 years of age, is a citizen of Pakistan. The other applicants, his wife Farwa Mazhar (Ms. Mazhar), his mother-in-law Parveen Akhtar (Ms. Akhtar) and his son Meesam Ali (collectively, the applicants), base their asylum claim on the applicant's. They fear persecution because of their religion (they are all Shiite Muslims) and their membership in a particular social group, the family.
[5] More than 60 years ago, Ms. Akhtar's father founded an "Imambargah", a religious site in the Shiite religion. Ms. Akhtar worked at the Imambargah throughout her life. In 1997, Mr. Ali was appointed administrator of the Imambargah. The applicant testified that he was the constant target of threats from members of the Sipah-e-Sahaba Pakistan (the SSP). In June 1997, the Imambargah was attacked by members of the SSP and the applicant's cousin was killed. Mr. Ali complained to the police and, according to his testimony, he made inquiries several times at the police station to find out if there were any developments in the investigation, but no one was ever arrested for this murder.
[6] In August 2000, faced with further threats from the SSP, Mr. Ali left Pakistan with his family and settled in the United States. However, they returned to Pakistan in November 2000 since the elders in his former Shiite community had told him that the situation had changed and it was no longer dangerous to live in Pakistan. But this was not so, as it turned out. In December 2000, the threats against Mr. Ali and his family resumed. On January 4, 2001, the applicant was beaten by three members of the SSP. He later tried to file a complaint with the police but since he did not have two witnesses to corroborate his story the police refused to take his complaint. Following further threats in January 2001, the Shiite community in the region decided to organize a demonstration against the SSP and the police. Two days before the demonstration took place, the Imambargah was again attacked. The applicants subsequently went into hiding.
[7] After trying again, but without success, to obtain police assistance, the applicants learned that a complaint had been filed against them on February 12, 2001. They left Pakistan on February 20 and once again arrived in the United States. Mr. Ali's brother-in-law tried in vain to sponsor them in the United States. Finally, fearing to remain illegally in the United States after the events of September 11, 2001, the applicants left for Canada where they claimed refugee status on October 1, 2002.
IMPUGNED DECISION
[8] The panel accepted the applicant's entire story, including the fact that he had been persecuted by the SSP and was unable to obtain police assistance in his community. The fact that Mr. Ali had returned to Pakistan in November 2000 was considered reasonable by the panel, given that the elders in his community had advised him that the situation was no longer dangerous. As to the 15 months spent in the United States, during which they never claimed refugee status, this was considered reasonable in view of the fact that the applicant's brother-in-law thought he would be able to sponsor them. (This did not work out since his brother-in-law held only a green card, which did not allow sponsorship.)
[9] The panel concluded that the applicant's account was credible concerning certain matters of importance in the claim and it found that there was a reasonable risk of persecution and of cruel and unusual treatment or punishment if Mr. Ali and his family were to return to their community in Pakistan, since they were targeted by the SSP. Nevertheless, the panel determined that the applicants were not Convention refugees or persons in need of protection, since there was an IFA in Pakistan.
[10] To reach its conclusion of an IFA, the panel rejected the FIR, which was allegedly filed against the applicants on February 12, 2001, and a May 14, 2001 warrant for the arrest of Mr. Ali. The panel noted that the applicant had not indicated on his personal information form (the PIF) that he was being sought in his country. The panel thought the applicant's explanation that he had not properly understood questions 37 and 38 of the PIF, and his explanation concerning the arrest warrant, were not credible:
With regard to the warrant of arrest (P16), the panel notes that the issuing date was May 14, 2001. The claimant testified that he learned about the warrant on September 7, 2003 or more than 15 months later. When asked if he had had ongoing contact with his brother, who knew about the warrant, he responded "yes". The panel finds it implausible that, while having contact with his brother over 15 months, no mention would be made of an arrest warrant. When asked how his brother had found out about the arrest warrant, the claimant responded "when he contacted the lawyer". The lawyer's letter (P8) is dated September 18, 2003. The putative warrant, however, indicates that the arresting officer "...came to know through his (the claimant's) brother...that the accused...went abroad". The claimant hastily attempted to reconstruct his response indicating that his brother had found out about the warrant upon receiving the FIR (February, 2001) thus, creating a still more implausible timeline.
Based upon these numerous contradictions around the FIR as well as the arrest warrant, in the context of the significant problem of easily obtainable fraudulent documents from Pakistan, the panel concludes that exhibits P-15, P-16 and P-8, the FIR, warrant of arrest and lawyer's letter, have no probative value.
[11] Since the panel was of the opinion that the police were not searching for him and since the documentary evidence showed that the government was able to protect its citizens against threats posed by an organization like the SSP, the panel concluded that Mr. Ali could live safely elsewhere in Pakistan. Consequently, he was not a Convention refugee or a person in need of protection. The same findings apply to the other applicants.
PARTIES' SUBMISSIONS
Applicants
[12] The applicants argue that the panel's decision is tainted because the board member committed an unreasonable error in rejecting the FIR, the warrant of arrest and the letter from the Pakistani lawyer (which refers to the FIR and the arrest warrant). Considering that the panel accepted everything else in the applicant's account, the applicants argue that the panel could not with good reason reject these three documents. The applicants contend that the applicant's explanations concerning these documents are credible and uncontradicted. Furthermore, even if the applicant had ticked off "no" in answer to questions 37 and 38 of his PIF, his answer to question 41 indicates that he had been charged with blasphemy, which shows it was possible that he had actually misunderstood questions 37 and 38:
Unfortunately, instead of providing justice and protection to us by the higher authorities, the police came to our house and imambargah in the second week of February 2001, to investigate about us. They told Imam of the Imambargah that there is a complaint of blasphemy against us. Police also said that if we do not appear, they will track us down and arrest us and then no one can save us that we would be rotten in prison for the rest of our lives, we were very much despaired to know about this [sic].
[13] The applicants argue that in the circumstances there was no reason for the panel not to believe their explanations in this context.
[14] The applicants also submit that although Mr. Ali was considered very credible in regard to most of his account, it is unreasonable that the panel considered the applicant not to be credible when he tabled some documents in support of his fear of persecution. The applicants do not dispute that it is easy to obtain false documents in Pakistan, but they argue that in the absence of proof to the contrary it is illogical to cast doubt on the applicant's credibility when he says that these documents are authentic. Even if the applicant contradicted himself in explaining why his brother did not mention to him that there was an arrest warrant pending against him, several other items of evidence confirmed the testimony and they should have been taken into consideration by the panel (for example, his answer to question 41).
Respondent
[15] The respondent is of the opinion that the panel did not err in law or in fact and that its decision is not patently unreasonable. The respondent submits that the question whether an IFA existed for the applicants is a question of fact and consequently, at the judicial review level, the Court must accord great deference to the panel.
[16] The onus of demonstrating that it would be patently unreasonable for the applicants to seek refuge in another part of the country is on the applicants (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164, at p. 171; Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, at para. 8; Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589, at pp. 594-95). The respondent submits that the applicants have not discharged this onus.
[17] In view of the contradictions that tainted the FIR and the arrest warrant, the panel was entitled to find that these documents were not authentic and therefore to conclude that there was an IFA. During submissions, the respondent's counsel drew the Court's attention to some extracts from the transcript that could demonstrate that the credibility of the applicant and of Ms. Mazhar was seriously affected in regard to certain matters of importance. However, the panel's decision did not address these matters.
Standard of review
[18] The existence of an IFA is a question of fact. Accordingly, the review of the reasons for such a decision must be conducted according to the standard of the patently unreasonable decision: Mohammed v. Canada (Minister of Citizenship and Immigration), 2003 FC 954, at para. 4 (T.D.); Sivasamboo v. Canada (Minister of Citizenship and Immigration, [1995] 1 F.C. 741, at paras. 9-25.
ANALYSIS
[19] The applicant's testimony concerning the FIR, the arrest warrant and the letter from his lawyer raises some concerns. Question 37 in the PIF is clear and is not subject to interpretation. However, Mr. Ali answered "no" to this question, notwithstanding the fact that he testified that he was aware of the existence of the FIR prior to his departure in February 2001. His explanation is wobbly. It is hard to accept that Mr. Ali did not understand the question when he himself signed the PIF stating that his answers were true and that it had been translated to him in its entirety.
[20] Even more edifying is the applicant's reply when he was asked when his brother had learned of the existence of the arrest warrant. Initially, the applicant replied that it was in September 2003, when his brother contacted the lawyer. However, the arrest warrant indicates that the knowledge was in May 2001, when a police officer came to visit his brother to get some information about Mr. Ali. The applicant tried with difficulty to reconcile these two periods but without success.
[21] It is enough to read the transcript to note the hesitation and lack of clarity in the applicant's replies (see panel record, pages 582 to 585, 564 to 567). It was possible for the panel to draw some negative observations from this thereby affecting the applicant's credibility in this regard.
[22] A panel may believe a claimant on some points and not believe him on others. Inasmuch as the panel explains its findings, and these are reasonable, a court will not intervene. This decision demonstrates that the conclusion that an IFA exists is reasonable.
[23] The parties were invited to submit some questions for certification but none was suggested.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review is dismissed.
- No question will be certified.
"Simon Noël"
Judge
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-287-04
STYLE: Sheikh Mazhar Ali et al.
v.
Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 10, 2004
REASONS: The Honourable Mr. Justice Simon Noël
DATED: November 12, 2004
APPEARANCES:
Eveline Fiset FOR THE APPLICANTS
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
477 Saint-Francois-Xavier Street FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Montréal, Quebec
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