Date: 20041104
Docket: IMM-1176-04
Citation: 2004 FC 1561
Ottawa, Ontario, this 4th day of November, 2004
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ABDUL KHALIQ
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Abdul Khaliq comes from Azad Kashmir, and holds a Pakistani passport. He arrived in Canada in August 1999 and claimed refugee status. That claim was rejected by the then-Convention Refugee Determination Division of the Immigration and Refugee Board in July 2001, and his application to this Court for leave and for judicial review thereof was also refused.
[2] He also submitted what was then known as a Post-Determination Refugee Claimants in Canada Application which, by virtue of the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c.27, is now treated as a Pre-Removal Risk Assessment pursuant to sections 112 and following of the Act. The application was denied in January 2004. This is a judicial review thereof.
[3] He has also applied to stay here on humanitarian and compassionate grounds. That application was also dismissed in January of this year. Mr. Khaliq has not sought leave and judicial review of that decision.
[4] The removal order against him has been stayed pending the outcome of this judicial review. In essence, Mr. Khaliq alleges a well-founded fear of persecution on the grounds of political opinion; he is in favour of an independent Kashmir. He claims he was falsely accused of being a supporter of the Indian Army, that there was a warrant of arrest against him, and that he fears persecution from various sources in Pakistan, such as the Inter-Services Intelligence of the Pakistani Army, various paramilitary groups promoting terrorism, and Islamic fundamentalists. He says there is no internal flight alternative available for him in Pakistan as the forces against him are all pervasive; their reach extends everywhere.
[5] The PRRA officer reviewed Mr. Khaliq's history, his Canadian immigration situation, and the situation in Pakistan including state protection and the internal flight alternative. She concluded that he had not demonstrated beyond a mere possibility that he would be persecuted on Convention refugee grounds, or that there were substantial grounds to believe he would be at risk of being tortured or subject to cruel and unusual punishment or treatment if he returned to Pakistan.
[6] Judicial review of that decision is being sought on various grounds including that the PRRA officer did not fairly examine the proof submitted concerning the personal risk faced by Mr. Khaliq in Pakistan; ignored documentary evidence as to persecution faced by Kashmiris; was wrong in determining that there was state protection; and failed to conclude that if he returns to Pakistan he is almost certainly to be condemned to torture or even death.
ANALYSIS
[7] Notwithstanding the very forceful arguments put forward on Mr. Khaliq's behalf, I have come to the conclusion that I am being asked to re-weigh the findings of the officer, particularly as regards country conditions which were current when she made her decision earlier this year. She noted what she considered to be improving conditions, and cited the documentary evidence which led her to that conclusion. Although it is quite possible that another officer might have come to a different conclusion, there was nothing patently unreasonable, or even unreasonable, in her conclusion that there would be no more than a mere risk of persecution were Mr. Khaliq to return to Pakistan, and in her determination that an internal flight alternative was available to him.
[8] Mr. Khaliq, relying on Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; [2002] S.C.J. No. 3 (QL), submits that the officer should have begun with the premise that he would be subjected to torture in Pakistan. Suresh was quite different. He was a known terrorist and the risk of his being subject to torture if he were returned to Sri Lanka was not in issue. What was in issue was whether he should be returned anyway. Consequently, there is no basis for Mr. Khaliq's proposed question for certification as to whether consideration of article 3 of the Convention Against Torture is mandatory both in refugee claims and in the PRRA process.
[9] It was also submitted that the officer, and this Court, should take it as a fact that the current situation in Pakistan qualifies as a situation that is described in article 3 in the Convention Against Torture, that is to say that there is massive, systematic and flagrant violation of human rights. Although invited to certify that as a question for the Court of Appeal, I decline to do so.
[10] The situation in Pakistan, or in any other country, at any given time, is a question of fact. Although proof of country conditions before the Immigration and Refugee Board, and before PRRA officers, is not subject to the strict rules of evidence, one cannot say that the facts alleged by Mr. Khaliq are so notorious as not to be the subject of dispute among reasonable persons. The cases of [1938] S.C.R. 100">Reference re Alberta Statutes, [1938] S.C.R. 100 and Schnell v. BC Electric Rly Co. (1910), 14 W.L.R. 586, have led the authors of Sopinka, Lederman, Bryant. "The Law of Evidence in Canada", 2nd ed., to say at paragraph 19:14:
In [1938] S.C.R. 100">Reference re Alberta Statutes, Duff C.J. said: "It is our duty, as judges, to take judicial notice of facts which are known to intelligent persons generally; ... In the simplest terms, the court may and should notice without proof that which 'everybody knows'". The matter need only be common knowledge in the particularly community in which the judge is sitting. Also, what facts are judicially noticeable may change over time.
[footnotes omitted]
[11] It was acknowledged by Mr. Khaliq that some claimants from Pakistan have obtained refugee or similar status in Canada, while others have not. This just goes to show that each claim revolves on its own particular facts. Although the Court is not in the position in this case to take judicial notice of what Mr. Khaliq characterized as notorious facts, the Minister, who is far more knowledgeable than the Court in terms of country conditions, does from time to time form the view that a situation in a given country is horrific and issues a moratorium against returning people there. That has not happened here.
[12] The officer was also criticized for not really going into Mr. Khaliq's personal situation in Pakistan. That was because his refugee claim had been dismissed. It was suggested that the PRRA application is a second opportunity for a new hearing, just in case the first hearing was tainted because the applicant might have been nervous, did not have proper interpretation, may not have had proper advice from an immigration consultant, lawyer, or whatever, or if the case was wrongly decided. That is not the purpose of a PRRA application. As section 113(a) of the Act clearly states:
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Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
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Il est disposé de la demande comme il suit_:
a) le demandeur d'asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'il n'était pas raisonnable, dans les circonstances, de s'attendre à ce qu'il les ait présentés au moment du rejet;
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[13] Since the standard of review on the finding of facts is that the Court should not interfere unless the finding is patently unreasonable, it follows that there have been decisions of the Immigration and Refugee Board, or of PRRA officers, which are wrong. The PRRA is not a vehicle for a fresh hearing. There must be new evidence whether it applies to the applicant personally or to country conditions. The officer found nothing of that sort here.
[14] One new document presented was Mr. Khaliq's warrant of arrest in Pakistan, which the officer considered highly suspicious. It would not have mattered what the officer said as his assertion that there was a warrant for his arrest was noted in his unsuccessful refugee claim
[15] Great weight was placed on a 1994 decision of the Committee Against Torture of the United Nations which found against Canada. Indeed, Mr. Khaliq proposed that a question be certified to the Court of Appeal as to what weight should be attached to that decision, and whether there is an obligation for the PRRA officer to comment on such international jurisprudence.
[16] The decision in question involving Tahfir Khan turned on its own facts. Based on the facts before the Committee it was of the view that he was in danger of being subject to torture. It had also been established that he had already been tortured in Pakistan.
[17] Whenever a PRRA officer is applying the law, the standard of review is correctness. The law is to be found in Canadian statutes and Canadian case law, with the Supreme Court of Canada serving as the ultimate source of interpretation. Decisions from elsewhere which are on point may of course be considered in the light of their reasoning, but certainly not on the basis that they are controlling.
ORDER
1. On consent, the style of cause is amended so that respondent is identified as "Solicitor General of Canada".
2. The application for judicial review is dismissed.
3. There is no question to certify.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1176-04
STYLE OF CAUSE: ABDUL KHALIQ
AND
SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: MONTREAL, QUÉBEC
DATE OF HEARING: OCTOBER 28, 2004
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: NOVEMBER 4, 2004
APPEARANCES:
Stewart Istvanffy FOR APPLICANT
Mario Blanchard FOR RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR APPLICANT
Montreal, Québec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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