Tariq v. Canada (Minister of Citizenship and Immigration), 2001 FCT 465

                                                                                                                                  Date: 20010510

                                                                                                         Court File No.: IMM-3694-00

                                                                                                       Neutral Citation: 2001 FCT 465

Ottawa, Ontario, this 10^th day of May, 2001

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                    KHAN MOHAMMAD TARIQ

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application pursuant to s.82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Immigration Act"), for judicial review of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Refugee Division"), dated April 13, 2000, wherein the Refugee Division held the applicant is not a convention refugee.

[2]                The applicant, Mr. Mohammad Tariq Khan, is a citizen of Pakistan who made a refugee claim in Canada on the basis of a well-founded fear of persecution by reason of political opinion, and holding membership in the Pakistan Peoples Party (PPP). The PPP is an opposition party in Pakistan, and the applicant worked for the PPP for approximately ten years. The applicant alleges that between 1992 and 1998, he suffered persecution at the hands of the police and members of the then ruling Pakistan Muslim League (PML). The applicant alleges that he was attacked, arrested, detained, beaten and tortured during the ten year period before he fled to Canada.

[3]                The Refugee Division did not find that the applicant had a well founded fear of persecution based on the applicant's credibility, change in circumstance in Pakistan, and the availability of state protection. The Refugee Division states the following on the issue on credibility:

                               I am speaking now about credibility. Many of the things which the RCO pointed out were things that I had already thought in my own mind were problems with regard to this case, some of them less important than others. The one that really stuck out in my mind was what seemed to be initially a suggestion in the Personal Information Form (PIF) that he had been held for a week in custody. He indicated in his live evidence that it was only one day.

                               [...]

                               During most of this hearing, I was finding it difficult to get the answers, because I found some of them were evasive. There were multiple answers that were not clear answers.

The Refugee Division went on to note the change of circumstances in Pakistan by stating the following:

                               I also have to bear in mind, however, that it is his onus to establish that all of the parts of the Convention refugee definition are here. He has to establish clear and convincing poof that, on a balance of probabilities, if he were to go home today to Pakistan, the state would not be able to protect him. This is where the circumstances becomes very vital.

                               It is hard to judge; none of us are there. It is understandable that those who have come from that situation would be thinking that things have not changed. I have to bear in mind Exhibit R-5 and the news report therein, and I reread those reports carefully, indicating rumours to the effect that there might be some consolidation between the Nawaz factors (that is, the Muslim League that supported Nawaz Sharif) and Mrs. Bhutto's people towards forging a link, as the report of January 24th put it, "towards a common campaign to return to democracy."

                       I note that the next report comes out the very next day and, in essence, it is something of a denial in that it says no decisions have been made yet and everything is tentative.

                               I think that evidence is clear that the structures that may have been there for a long period of time are not likely going to be structures that will be there if this claimant goes back to Pakistan.

[...]

                               The big question is, who are the agents of persecution today? Would the Muslim League supporters, who have been so difficult for him, be there to harass him for any particular reason? I find that they would not, not only now, but for the indefinite future.

Finally, dealing with the issue of police protection, the Refugee Division states:    

               Would the police protect him? The police are not going to go out of their way to protect him, but I think he was pretty straightforward when he said that they would try in these circumstances which is more than which existed in 1998 when he left. All we can ask of the police is that they try to give him as much protection as they give any other citizen of Pakistan if there were a problem.

           I have two problems with the Convention definition. I cannot find, on a balance of probabilities, that the agents of persecution are going to be there to persecute him if he goes home and, secondly, I find that the state would in fact attempt to give him some support.

[4]                The applicant raises a number of issues on judicial review. First, the applicant argues that the Refugee Division was unreasonable in finding that the applicant was not entirely credible because the applicant swore in his affidavit that his physical and emotional state during the hearing affected his testimony. Second, the applicant argues the Refugee Division erred in finding that the applicant does not have a well-founded fear of persecution. The applicant argues that there must be "good grounds" or a "reasonable chance"^[1] that the applicant would suffer persecution. The applicant states that the amount of political violence in everyday life in Pakistan has increased the probability that the applicant, as a political worker, and an opposition party member, will be persecuted. According to the applicant, the new military government in Pakistan persecutes both PPP and PML members. Finally, the applicant argues that he cannot count on state protection given the volatility of the political situation in Pakistan.

[5]                Turning first to the issue of credibility, this Court has held that findings of credibility by the Refugee Division are given much deference. It is the Refugee Division who has the benefit of observing witnesses directly and are in the best position to determine credibility. As the Federal Court of Appeal states inAguebor v. Canada (M.C.I.):^[2]

                               There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

[6]                In my view, the Refugee Division's finding of credibility cannot be characterized as patently unreasonable. The Refugee Division pointed to unclear answers given by the applicant, inconsistencies in the written and oral evidence, and supporting letters provided by the PPP which do not mention that the applicant was detained on a number of occasions for being a member of the PPP. The inference drawn from this evidence by the Refugee Division, that the applicant is not entirely credible, is not so unreasonable as to warrant intervention by this Court.

[7]                Turning next to the availability of state protection, the onus is on the applicant to provide "clear and convincing proof"^[3] of the unwillingness or inability of the state to protect the applicant. The Refugee Division determined that the applicant had not met this onus, in part based on the applicant's own testimony that the police would try to protect him. The transcript of the hearing reveals the following at page 171:

               COUNSEL             If you went to the police in Pakistan today, do you believe they could offer you protection as against these Muslim League persons that you have feared?

               CLAIMANT         How can the police protect me? I live in my own house. They can come to my house and kill me and the police will come later.

               COOKE That happens in Canada, too.

               CLAIMANT          But a person has to do something to save his life.

COUNSEL             Do you think the police in Pakistan today are interested in trying to help you?

               CLAIMANT         The police would like to help me, but they will only help me after I am dead.

The Refugee Division noted, in particular, that the applicant's own admission that the police would like to protect him, although may not be capable of protecting him. The Refugee Division also noted that the group which the claimant fears, the PML, are no longer in power in Pakistan. The Refugee Division concluded, based on this evidence and the documentary evidence, that the police would attempt to protect the applicant like any other citizen of Pakistan. In my view, this conclusion is supported by some evidence and is not so unreasonable as to warrant intervention by this Court.

[8]                Finally, the Refugee Division concluded that the PML would not persecute the applicant if he were to return to Pakistan. In reaching this conclusion, the Refugee Division noted certain aspects of the documentary evidence, including news reports, indicating rumours that there might be a consolidation between the PPP and the PML in order to campaign for democracy in Pakistan. Although the applicant denied that such a consolidation would take place, the Refugee Division accepted the news reports of a rumoured consolidation. Once again, I cannot characterize this finding as patently unreasonable. Fact finding of this nature is specifically within the expertise of the Refugee Division, who based their conclusion that the PML would not persecute the applicant on the documentary evidence. This conclusion is not so unreasonable as to warrant intervention.

[9]                           There is no question of general importance which would require certification.

[10]            For the foregoing reasons, the application for judicial review is dismissed.

                                                                       ORDER

THIS COURT ORDERS that:

1.         The application for judicial review of the Convention Refugee Determination Division of the Immigration and Refugee Board dated April 13, 2000 is dismissed.

                                                                                                                        "Edmond P. Blanchard"                

                                                                                                                                                   Judge