Date: 20000525
Docket: IMM-925-99
Ottawa, Ontario, this 25th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
ARSHED MAHMOOD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application by Arshed Mahmood ("applicant") for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") dated February 8, 1999, wherein the applicant was declared not to be a convention refugee.
[2] The applicant alleges that the panel erred in law in reaching the decision and that it based its decision on erroneous findings of fact which it made in a perverse or capricious manner or without regard to the material before it.
[3] The applicant is a citizen of Pakistan who arrived in Canada on October 11, 1996 and claimed refugee status on December 13, 1996. The applicant had left Pakistan on January 15, 1996 with a visa to enter Saudi Arabia to work. When his employment in Saudi Arabia ended, he was able to, with the assistance of his employer, obtain a visa to enter Belgium on September 20, 1996. The applicant then came to Canada on October 11, 1996.
[4] The applicant provided a personal information form ("PIF") with his application and at a later time two other statements. Some of the facts were not in agreement.
[5] In his PIF and two other written statements, the applicant detailed the following incidents of persecution:
| (1) The applicant was detained in November, 1992 after a march; false charges were laid at the instigation of the local ML MNA ("Member of the National Assembly"). |
| (2) The applicant was beaten and held in custody without a charge by the police in July, 1994. |
| (3) In November, 1995, the applicant was arrested at a rally; false charges were laid against him; he was brutally tortured and taken to hospital by the police. On December 23, 1995, after paying a bribe, he was released on bail. The condition of his bail was that he was to report to police every 14 days. |
| [6] After the applicant was released, he fled to another city to hide with relatives. He |
subsequently learned that a MNA was attempting to have his bail cancelled. He then fled to Saudi Arabia as he was afraid that he would be jailed and convicted of a false charge.
| [7] The applicant also stated that he has later learned that several of his relatives have |
been jailed in Pakistan, that police are continuing to search for him and that a local MNA has appropriated the family home.
| [8] The applicant stated that he feared persecution from Afzal Hussain Tarar, former |
local PPP MNA, the Bhatti brothers, one of whom was a former MPA (Member of Provincial Assembly) as well as from police, no matter where he lives in Pakistan. He contends the Bhatti brothers are influential throughout Pakistan.
| [9] The panel in its decision did not believe the applicant"s testimony in relation to |
his arrests and in the alternative, the panel found that the applicant had an internal flight alternative ("IFA") in Pakistan.
Issues
| [10] The issues stated by the applicant are: |
| (1) That the Convention Refugee Determination Division of the Immigration and Refugee Board of Canada, erred in law in this case. |
| (2) That the Convention Refugee Determination Division based its decision upon an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. |
| (3) That the Convention Refugee Determination Division failed to observe a principle of natural justice. |
Law
| [11] "Convention refugee" is defined in subsection 2(1) of the Immigration Act , 1976- |
77, c. 52:
| "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2)
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
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| réfugié au sens de la Convention" toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi.
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| [12] The jurisprudence of this Court holds that the applicant must have a subjective |
fear of seeking the protection of his country and that this fear must have an objectively reasonable basis.
| [13] The standard of review to be applied when reviewing decisions of the Board on |
questions of law is correctness (see Pushpanathan v.Canada [1998] 1 S.C.R. 982). Pushpanathan, supra, did not set a standard of review for questions of fact or questions of mixed fact and law however, in Canada (Director of Investigatin and Research, Competition Act v. Southam Inc. [1997] 1 S.C.R. 748, the Supreme Court of Canada held that questions of mixed law and fact are to be reviewed on the standard of reasonableness simpliciter. I would be of the opinion that the same standard should apply to the review of factual findings.
| [14] The case law with respect to adverse credibility rulings states that if the Board |
rejects a claim due to the lack of credibility of the applicant, the ground must be stated clearly and the Board must state reasons for its conclusions. (See Ababio v. Canada (M.E.I.) (1988), 5 Imm. L.R. (2d) 174 (F.C.A.) and Armson v. Canada (1989), 9 Imm. L.R. (2d) 150 (F.C.A.)). Further, if the Board prefers the documentary evidence to the oral testimony of the applicant, the Board must provide reasons for this finding (see Sidhu v. Canada (M.E.I.) (1993) 70 F.T.R. 104.
| [15] At the hearing, the argument centred on two main arguments. The first argument |
was that the panel fell into error by not finding as credible and plausible, the evidence of the applicant. The second argument was that the panel erred in law by finding that the applicant had an internal flight alternative ("IFA") available to him in Pakistan.
| [16] I have reviewed the decision of the panel and documents and other material in this |
file and with respect to the findings of the panel on credibility and I find these findings to be reasonable. The panel carefully analyzed the applicant"s three statements and his oral testimony and then isolated examples of inconsistencies and gave the reasons why it did not believe the applicant. For example, it outlined the inconsistencies about the three detentions and pointed out the inconsistencies between the three statements given by the applicant and why the panel did not choose to accept the applicant"s version of the events. I find that the panel"s findings with respect to credibility are reasonable.
| [17] The panel also drew inferences from the evidence. The law allows me to assess |
the evidence from which the panel drew the inferences and form my own conclusions as I am in as good a position as the panel to draw the inferences. I find that the panel was correct in drawing the inferences it did. By way of example, it was reasonable to draw the inference that the applicant would not return to his first lawyer who made so many mistakes in his PIF, a critical part of his application. It was also reasonable to draw the inference that the police who had tortured him so badly would not take him to the hospital. As well, there was no reference under "police involvement" on the medical report.
| [18] I am of the opinion that the panel was correct in finding that there was "no more |
than a mere possibility that he would suffer persecution at the hands of the police or any of the political figures he named if he were to return to Hafizabad today".
| [19] The applicant has also argued that the panel erred in finding that there was an IFA |
available to the applicant. In order to find an IFA, the panel is required to be satisfied, on a balance of probabilities, that there is no serious possibility that the applicant would be persecuted on Convention grounds in a certain area of their country of nationality and that, in all the circumstances, including circumstances particular to the applicant, conditions in the area are such that it would not be unreasonable for the applicant to seek refuge there (see Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.)). The IFA must be taken if it is not unreasonable to do so considering the circumstances of the individual. The reasonableness test is an objective test and the onus of proof rests on the claimant (see Thirunavukkarasu v. Canada (M.E.I.) [1994] 1 F.C. 589 (F.C.A.).
| [20] I have reviewed the decision of the panel and am of the opinion that the panel |
correctly applied the law with respect to the applicant having an IFA within Pakistan, in the factual situation of this case.
| [21] Counsel for the parties informed the Court at the hearing of this matter that they |
did not wish to request the certification of a serious question of general importance, pursuant to subsection 83(1) of the Immigration Act, supra.
ORDER
| [22] IT IS ORDERED that the application for judicial review is denied. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 25, 2000
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