Date: 19990812
Docket: IMM-4908-98
BETWEEN:
KHALID MOHAMMAD KHOKHAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario on
Thursday, August 12th, 1999)
LEMIEUX J.:
| [1] I am ready to render judgment. |
| [2] The applicant is a citizen of Pakistan. He made a refugee claim on his arrival at Pearson International Airport on December 2nd, 1997. His claim is based on a well-founded fear of persecution on the ground of political opinion, namely, his membership in the Pakistan Muslim League (PML). He fears persecution at the hands of the Pakistan Peoples Party (PPP) and associated police abuses. |
| [3] The Convention Refugee Determination Division (CRDD) held a hearing on August 27th, 1998. It acknowledged the applicant"s participation in the PML and accepted he had problems from PPP goons in 1995. The CRDD accepted the deciding event which led to the applicant"s flight from Pakistan in December of 1995 was the disruption of a June 1995 PML anti-PPP government demonstration which the police raided causing the applicant to go into hiding. The applicant was charged by the police. He fled to England. Shortly after his arrival in England he learned that his residence was attacked by PPP goons. He made a refugee claim in England which was denied. He appealed but left England before the appeal decision saying he feared a negative decision and the implication for his life should he be forced to return to Pakistan. He came to Canada. |
| [4] Applying the principles in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.), the CRDD rejected his claim on the basis it was not satisfied there was a reasonable chance or a serious possibility the claimant would be persecuted should he return to Pakistan. The CRDD found the applicant did not meet the test in the definition of "Convention Refugee" set out in section 2 of the Immigration Act because the applicant"s fear was not objectively well-founded. The CRDD anchored its reasoning on the fact the political situation in Pakistan had changed since the applicant had left Pakistan in 1995. The PML, the claimant"s party, was in power since February 1997. The CRDD found that it was reasonable to expect the PML would provide protection for the claimant considering his past political activities for the party. The CRDD went on to say in the absence of evidence of an inability to protect a State is presumed to be able to protect its citizens. The CRDD referred to the applicant"s testimony to the effect he had taken a vow to avoid politics, the police charge would not be effective upon his return because of the change in government and there had been no further incidents involving his family since December 1995. |
| [5] In my view the CRDD"s decision is not assailable, contains no reviewable errors and is in accordance with what the Supreme Court of Canada held in Canada v. Ward (1993) 103 D.L.R. 4th 1. |
| [6] In the Ward case, the Supreme Court of Canada held in establishing whether a subjective fear of persecution is established objectively the focus should be on the State"s ability to protect the claimant; if the State can protect the claimant, the claimant"s fear is not, objectively speaking, well-founded. The Supreme Court of Canada further held a claimant had the obligation to provide clear and convincing confirmation of the State"s inability to protect because absent such evidence the refugee claim should fail as a nation is presumed capable of protecting its citizens. |
| [7] As I see it, the CRDD"s findings and analysis were precisely what the Supreme Court of Canada set out in Ward . It was not satisfied the applicant had established, in the circumstances of this case, Pakistan"s inability to protect him. |
| [8] The applicant is his testimony before the CRDD testified in general terms about his fear from the PPP goons and the police upon his return. The CRDD characterized some elements of that testimony as speculative. |
| [9] Counsel for the applicant argued the CRDD ignored the evidence of the situation in Pakistan as at the date of the hearing. This evidence was said to be documentary evidence - a U.S. State Department Report on Human Rights Practices in Pakistan for 1997 which referred to the Government"s human rights record remaining poor, there being serious problems regarding police abuse and killings by some political groups (without naming the PPP however). I find no merit in this argument. The CRDD specifically referred to the U.S. State Department Report in its decision when it commented on the fact the PPP was now demonstrating against the government and that PML goons are now harassing the PPP. It is true the CRDD did not make specific mention in its reasons of Pakistan"s poor human rights record, police and political party abuses. In my view, however, it took all of these elements into account when making its finding that protection in Pakistan might not be perfect. What the Tribunal did was weigh the evidence said to be ignored with the testimony of the applicant. Such assessment is a matter within its jurisdiction; this finding cannot be said to be perverse. |
| [10] Counsel for the applicant presented a new argument at the hearing not contained in his memorandum. That argument focussed on the CRDD"s finding of changed political circumstances. Counsel for the applicant submitted the CRDD did not analyse whether changes in Pakistan were meaningful, effective and durable, citing Acedevo v. Canada (Minister of Employment and Immigration), [1994] F.C.T.D., 78 F.T.R. 316 amongst other cases. Counsel for the respondent countered with Yusuf v. Canada (Minister of Employment and Immigration), [1995] F.C.A. 179 N.R. 11. |
| [11] In Yusuf, Hugessen J.A. said this: |
| |
We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant"s country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act : does the claimant now have a well founded fear of persecution ? Since there was in this case evidence to support to Board"s negative finding on this issue, we would not intervene. |
|
| [12] In my view, the CRDD in this case, considered the very question which the Federal Court of Appeal in Yusuf said it should answer: does the claimant now have a well-founded fear of persecution. It made a negative finding. The evidence as a whole supports this finding. |
| [13] For these reasons this judicial review application is dismissed. Counsel did not request a certification of a serious question. |
"François Lemieux"
JUDGE
TORONTO, ONTARIO
August 12, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KHALID MOHAMMAD KHOKHAR |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: THURSDAY, AUGUST 12, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: THURSDAY, AUGUST 12, 1999
| APPEARANCES: Mr. John Savaglio |
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: John Savaglio
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990812
Docket: IMM-4908-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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