Date: 20060809
Docket: IMM-6670-05
Citation: 2006 FC 957
Ottawa, Ontario, August 9, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AZHAR MAHMOOD
NICOLE COLLEEN HOUSTON
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
…In Canadian Union of Public Employees, Local 963 v.
New Brunswick Liquor Corp., [1979]
2 S.C.R. 227 at 237, the Supreme
Court applied the standard of patent unreasonableness and gave some indication
as to its meaning:
… was the Board's interpretation
so patently unreasonable that its construction cannot be rationally supported
by the relevant legislation and demands intervention by the court upon review
In Blanchard v. Control Data Canada Ltée, [1984] 2 S.C.R. 476 at
486, Mr. Justice Lamer referred to CUPE and characterised the question
formulated above as "the classic statement of the approach taken by the
Court." He went on to state that "this is a very severe test and
signals a strict approach to the question of judicial review, Ibid. at 493. In Lester (W.W.) (1978) Ltd.
v. United Association of Journeyman and Apprentices of the Plumbing and
Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644 at 669-670, Madame
Justice McLachlin reaffirmed the patently unreasonable test, stating that
Courts should exercise caution and deference in reviewing the decisions
of specialized administrative tribunals, such as the Labour Board in this case.
This deference extends both to the determination of the facts and the interpretation
of the law. Only where the evidence, viewed reasonably, is incapable of
supporting a tribunal's findings of fact, or where the interpretation placed on
the legislation is patently unreasonable, can the court interfere.
Mr. Justice Cory, in P.S.A.C. No. 2, provided another formulation of
the "patently unreasonable" test:
Thus, based on the dictionary
definition of the words "patently unreasonable", it is apparent that
if the decision the Board reached, acting within its jurisdiction, is not
clearly irrational, that is to say evidently not in accordance with reason,
then it cannot be said that there was a loss of jurisdiction. This is a very
strict test...
It is not enough that the
decision of the Board is wrong in the eyes of the court; it must, in order to
be patently unreasonable, be found by the court to be clearly irrational, Supra, note 13 at 963-964.
(Sivasamboo v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741 (F.C.T.D.), [1994] F.C.J.
No. 2018 (QL)).
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board) dated
October 12, 2005, wherein it was decided that the Applicants were not
Convention refugees nor persons in need of protection according to sections 96
and 97 of IRPA.
BACKGROUND
[3]
The
Applicants are Mr. Azhar Mahmood, a citizen of Pakistan, and his
wife, Ms. Nicole Colleen Houston, a citizen of South Africa. They met in
September 2001 while they were both residing in the United States, she as a
visitor and he as an illegal resident. They married in April 2003 and came to Canada claiming
refugee status in September 2004. While their claims were heard together, each
had separate reasons for fearing persecution in their country of citizenship
and separate reasons, albeit in the same decision, were given for each
claimant.
Mr. Azhar
Mahmood
[4]
Mr.
Mahmood alleges he is at risk of persecution, torture, a risk to his life or of
cruel and unusual treatment or punishment at the hands of political opponents
by reason of his political opinion.
[5]
In
December 1993, he states that he joined and worked for the Pakistan Muslim
League (PML) as an area organizer. After some time, he became disillusioned
with the tactics of the PML and left the party. PML members harassed him and
attempted to convince him to return to the party.
[6]
In
October 1995, he joined the Pakistan Peoples Party (PPP). PML members
threatened Mr. Mahmood’s father. At times, Mr. Mahmood felt he was being
followed and feared being kidnapped. His brother was mistreated and threatened
as a warning to Mr. Mahmood to leave the PPP.
[7]
After
the PML came to power in February 1997, they started to target PPP members. On
May 21, 1998, Mr. Mahmood alleges he was abducted by members of the PML and
mistreated. He was held by the PML for what he believes to be two days and
thrown out of a car near a bus stop. Someone found him and took him to a
hospital. He reported the incident to the police who did nothing.
[8]
He
and his family were afraid for his safety so they contacted a smuggler who
arranged for Mr. Mahmood to leave Pakistan on June 16, 1998.
According to his Personal Information Form (PIF), he arrived in the United
States
approximately nineteen days later. Mr. Mahmood then went to Pennsylvania where he
lived and worked until September 2004.
Ms. Nicole
Colleen Houston
[9]
Ms.
Houston alleges she fears returning to South Africa because she
has converted to Islam. She fears persecution by reason of her religion.
[10]
Ms.
Houston arrived in the United States from South Africa in July
2001. She met Mr. Mahmood through friends on September 13, 2001. They
married on April 10, 2003.
[11]
Ms.
Houston comes from a strict Catholic background and her family did not accept
her marriage or her conversion to Islam. She learned that people from her town
have been rude to her mother and voiced their disapproval of her actions.
[12]
She
alleges there is no safe place in South Africa for her to live. She
added during the hearing that she believes her family members could kill her.
DECISION UNDER REVIEW
Mr. Azhar
Mahmood
[13]
The
Board accepted that Mr. Mahmood was involved in politics in Pakistan from 1993 to
1997. It also accepts that he had difficulties with PML members as a result of
leaving the PML and joining the PPP.
[14]
The
Board concluded that Mr. Mahmood has a viable internal flight alternative (IFA)
in Karachi, in Sindh Province, or another
large urban area in Sindh, well away from Rawalpindi, the area
where he lived before.
[15]
The
Board found that there was not a reasonable chance that Mr. Mahmood would be
persecuted in Karachi or another
large urban area in Sindh or be subjected personally to a danger of torture or
a risk to life or of cruel and unusual treatment or punishment. Moreover, the
Board found that it was not unreasonable in all the circumstances for Mr.
Mahmood to move to the IFA location.
Ms. Nicole
Colleen Houston
[16]
The
Board concluded that Ms. Houston has state protection in South Africa. She has
failed to rebut the presumption of adequate state protection with “clear and
convincing” evidence.
[17]
The
Board found that South Africa makes claim to democratic values and
protection of human rights. There is no state of civil war, invasion, collapse
of order and the government is in control of its territory. The Board also
found that there are adequate laws, initiatives, policies and mechanisms in
place in South
Africa
to provide for the protection of its citizens. According to the Board, the
documentary evidence indicates that South Africa is making serious
efforts to protect its citizens.
[18]
Ms.
Houston’s mother was successful in obtaining a protection order against her
aunt who had threatened her. This indicates that South African authorities are
willing to deal with family problems. The Board found that Ms. Houston could
obtain the same service and protection if she were threatened by anyone,
including her family members.
ISSUES
[19]
According
to the Minister, there are two issues in this application:
1. Did the Board
err in concluding that an IFA would be available to Mr. Mahmood on return to Pakistan?
2. Did the Board
err in concluding that state protection would be available to Ms. Houston
on return to South
Africa?
ANALYSIS
Statutory
scheme
[20]
According
to section 96 of IRPA, a person is a refugee if they fear persecution by reason
of their race, religion, nationality, membership in a particular social group
or political opinion:
|
96. A Convention refugee is
a person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié au
sens de la Convention – le réfugié – la personne 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 :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
|
[21]
Subsection
97(1) of IRPA states the following:
|
97.
(1) A
person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i)
the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country;
(ii)
the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country;
(iii)
the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards; and
(iv)
the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
97.
(1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la
menace ou le risque ne résulte pas de sanctions légitimes – sauf celles
infligées au mépris des normes internationales – et inhérents à celles-ci ou
occasionnées par elles,
(iv)
la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Standard of
review
[22]
The
question of whether a reasonable IFA is available is question of fact which
means that the appropriate standard is that of patently unreasonableness (Chorny
v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, [2003]
F.C.J. No. 1263 (QL), at paragraphs 5-11; Singh v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL), at paragraphs
10-15).
[23]
As
for the question of the availability of state protection, this involves
applying a legal standard, “clear and convincing confirmation of a state’s
inability to protect” (Ward v. Canada (Minister of Citizenship and
Immigration), [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL), at paragraph
50), to a set of facts. This is a question of mixed fact and law, therefore the
appropriate standard of review is that of reasonableness simpliciter (Chaves
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL),
at paragraphs 9-12).
Did the Board err in concluding that an
IFA would be available to Mr. Mahmood on return to Pakistan?
[24]
In
reaching the conclusion that an IFA would be available to Mr. Mahmood, the Board
engaged in a proper analysis of the test for finding an IFA and reasonably
considered his evidence, including the documentary evidence.
[25]
The
Board was required to be satisfied on a balance of probabilities that there was
no serious possibility of Mr. Mahmood being persecuted in Karachi, or another
large urban city in Sindh Province and that in all the circumstances, including
circumstances particular to him, conditions in the IFA location were such that
it would not be unreasonable for him to seek refuge there (Rasaratnam v.
Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.),
[1991] F.C.J. No. 1256 (QL), at paragraph 10).
[26]
In
Thirunavukkarasu v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 589 (F.C.A.), [1993] F.C.J. No. 1172 (QL),
at paragraphs 12-15, the Federal Court of Appeal explained the test to
determine if there is a reasonable IFA available to the particular claimant:
Mahoney J.A. expressed the position more accurately in Rasaratnam,
supra, at page 711:
In my opinion, in finding the IFA, the Board was required to be
satisfied, on a balance of probabilities, that there was no serious possibility
of the appellant being persecuted in Colombo and that, in all the circumstances
including circumstances particular to him, conditions in Colombo were such that
it would not be unreasonable for the appellant to seek refuge there
Thus, IFA must be sought, if it is not unreasonable to do so, in the
circumstances of the individual claimant. This test is a flexible one, that
takes into account the particular situation of the claimant and the particular
country involved. This is an objective test and the onus of proof rests on the
claimant on this issue, just as it does with all the other aspects of a refugee
claim. Consequently, if there is a safe haven for claimants in their own
country, where they would be free of persecution, they are expected to avail
themselves of it unless they can show that it is objectively unreasonable for
them to do so.
Let me elaborate. It is not a question of whether in normal times the
refugee claimant would, on balance, choose to move to a different, safer part
of the country after balancing the pros and cons of such a move to see if it is
reasonable. Nor is it a matter of whether the other, safer part of the country
is more or less appealing to the claimant than a new country. Rather, the
question is whether, given the persecution in the claimant's part of the
country, it is objectively reasonable to expect him or her to seek safety in a
different part of that country before seeking a haven in Canada or elsewhere.
Stated another way for clarity, the question to be answered is, would it be
unduly harsh to expect this person, who is being persecuted in one part of his
country, to move to another less hostile part of the country before seeking
refugee status abroad?
An IFA cannot be speculative or theoretical only; it must be a
realistic, attainable option. Essentially, this means that the alternative
place of safety must be realistically accessible to the claimant. Any barriers
to getting there should be reasonably surmountable. The claimant cannot be
required to encounter great physical danger or to undergo undue hardship in
travelling there or in staying there. For example, claimants should not be
required to cross battle lines where fighting is going on at great risk to
their lives in order to reach a place of safety. Similarly, claimants should
not be compelled to hide out in an isolated region of their country, like a
cave in the mountains, or in a desert or a jungle, if those are the only areas
of internal safety available. But neither is it enough for refugee claimants to
say that they do not like the weather in a safe area, or that they have no
friends or relatives there, or that they may not be able to find suitable work
there. If it is objectively reasonable in these latter cases to live in these
places, without fear of persecution, then IFA exists and the claimant is not a
refugee.
In conclusion, it is not a matter of a claimant`s convenience or the
attractiveness of the IFA, but whether one should be expected to make do in
that location, before travelling half-way around the world to seek a safe
haven, in another country. Thus, the objective standard of reasonableness which
I have suggested for an IFA is the one that best conforms to the definition of
Convention refugee. That definition requires claimants to be unable or
unwilling by reason of fear of persecution to claim the protection of their
home country in any part of that country. The prerequisites of that definition
can only be met if it is not reasonable for the claimant to seek and obtain
safety from persecution elsewhere in the country.
[27]
The
legal determination of whether a reasonable IFA was available to a refugee
claimant is a question squarely within the special expertise of the Board and
should be accorded significant deference if the legal test is met (Sivasamboo,
above, at paragraph 26).
[28]
The
Minister denies the allegation that the Board failed to “provide documentary
evidence or other evidence to indicate that he would be safe in the suggested
IFA location”. The Board referred to the documentary evidence that indicated
only prominent political activists do not have the option of moving to another
part of the country (Tribunal Record, Exhibit R-2, Pakistan Country Report,
United Kingdom Home Office, October 2004, Item 6.100, at page 381).
[29]
Mr.
Mahmood argues in his Memorandum of Argument, that the Board erred in
concluding that he would be safe in the IFA region because he indicated that
“he would again become politically involved”.
[30]
At
the hearing, Mr. Mahmood was asked by his counsel whether he would become
involved in politics on his return to Pakistan. He did not give a
definitive answer but rather suggested only that it was a “difficult question”
and a “possibility”. (Tribunal Record, Transcript, at pages 482-483)
[31]
The
Board specifically addressed the issue of whether Mr. Mahmood would return to
politics on his return to Pakistan and concluded that on a
balance of probabilities, he would not. In the face of the above evidence, that
it was only a “possibility”, the Board’s conclusion is not patently
unreasonable and is based on the evidence, which included his long absence from
the political arena, his prior political profile, his previous withdrawal from
politics and his less than definitive answer about whether he would return to
politics.
Did the Board err in concluding that
state protection would be available to Ms. Houston on return to South Africa?
[32]
In
Zalzali v. Canada (Minister of Employment
and Immigration), [1991] 3 F.C. 605 (F.C.A.), [1991] F.C.J. No. 341 (QL), at
paragraphs 20-23, the Federal Court of Appeal held as follows:
There are probably several
reasons beyond a person's control why he might be unable to claim the
protection of a State, one of them being, and this is obvious, the
non-existence of a government to which that person may resort. There are
situations, and the case at bar is one of them, in which the political and
military circumstances in a country at a given time are such that it is simply
impossible to speak of a government with control of the territory and able to
provide effective protection. Just as a state of civil war is no obstacle to an
application for refugee status, so the non-existence of a government equally
can be no obstacle. The position of the respondent in the case at bar would
lead directly to the absurd result that the greater the chaos in a given
country, the less acts of persecution could be capable of founding an application
for refugee status.
I do not have to decide here what is
meant by “government”. I know that in principle persecution in a given region
will not be persecution within the meaning of the Convention if the government
of the country is capable of providing the necessary protection elsewhere in
its territory, and if it may be reasonably expected that, taking into account
all the circumstances, victims will move to that part of the territory where
they will be protected. I also know that the Convention speaks of protection of
the “country of which the person is a national”, that in the passages from his
text to which I have referred Professor Hathaway speaks rather of the
“legitimate government”, and that in Ward MacGuigan J.A. spoke of
“nominal governments”. The “country”, the “national government”, the
“legitimate government”, the “nominal government” will probably vary depending
on the circumstances and the evidence and it would be presumptuous to attempt
to give a general definition. I will simply note here that I do not rule out
the possibility that there may be several established authorities in the same
country which are each able to provide protection in the part of the territory
controlled by them, protection which may be adequate though not necessarily
perfect.
The conclusion at which I have arrived
carries with it an obligation to alter certain established rules in other
circumstances. Where no established authority exists, it will not be possible
to apply in their entirety the rules stated with regard to persecution for
political opinions, since there is strictly speaking no State to be aware of
the claimant’s political opinions or attribute any to him. In that case, the
first instance tribunal and the Refugee Division will have to decide, in light
of all the circumstances presented, whether those who are persecuting the
refugee status claimant are doing so on account of political opinions he has or
which they attribute to him.
In the case at bar the Refugee Division
blamed the appellant for not trying to obtain protection from the Lebanese
army. The evidence is that no established authority was able to provide the
appellant with the desired protection. In the circumstances, therefore, the
appellant was unable to avail himself of the protection of his country, and far
from disqualifying him, this, on the contrary enabled him to meet one of the
conditions imposed in the definition of a refugee.
[33]
Furthermore,
in Canada (Minister of Employment and Immigration) v. Villafranca,
[1992] F.C.J. No. 1189 (F.C.A.) (QL), the Federal Court of Appeal explained
that state protection does not have to be perfect; however, a government must
be in effective control of its territory and able to offer protection to its
citizens:
The burden of showing that one is
not able to avail oneself of the protection of one's own state is not easily
satisfied. The test is an objective one and involves the claimant showing
either that he is physically prevented from seeking his government's aid
(clearly not the case here) or that the government itself is in some way
prevented from giving it.
No government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all of its citizens at all times. Thus, it is not enough for a claimant merely
to show that his government has not always been effective at protecting persons
in his particular situation. Terrorism in the name of one warped ideology or
another is a scourge afflicting many societies today; its victims, however much
they may merit our sympathy, do not become convention refugees simply because
their governments have been unable to suppress the evil. Where, however, the
state is so weak, and its control over all or part of its territory so tenuous
as to make it a government in name only, as this Court found in the case of Zalzali
v. Canada (Minister of Employment and
Immigration),
a refugee may justly claim to be unable to avail himself of its protection.
Situations of civil war, invasion or the total collapse of internal order will
normally be required to support a claim of inability. On the other hand, where
a state is in effective control of its territory, has military, police and
civil authority in place, and makes serious efforts to protect its citizens
from terrorist activities, the mere fact that it is not always successful at
doing so will not be enough to justify a claim that the victims of terrorism
are unable to avail themselves of such protection.
[34]
South
Africa
is a democratic state and its government does have control over its territory.
It is generally able to provide protection to its citizens. In this case, in
fact, the authorities did provide protection to Ms. Houston’s mother, who would
seem to be a similarly situated person, by issuing a protection order and an arrest
warrant against her aunt.
[35]
Ms.
Houston stated that she gave evidence that the present whereabouts of her
mother are unknown. She argues that this is evidence that the state is unable
to protect a similarly situated person and evidence that the protection order
is ineffective. Accordingly, Ms. Houston argues that the Board erred in
concluding, based on the success of the protection order, that adequate state
protection would be available to her.
[36]
Ms.
Houston was asked if her mother was still residing with a family member
(another aunt) and she stated:
No, she’s not. Actually my mom is now
also angry with me for what she’s experiencing so I really don’t know where she
is. (Tribunal Record, Transcript, at page 494)
[37]
The
evidence before the Board did not show that her mother had disappeared but
rather that Ms. Houston did not know where her mother was because her mother
was angry with her and was not talking to her. It is not possible to conclude
that Ms. Houston’s lack of knowledge of her mother’s whereabouts is evidence
that demonstrates the ineffectiveness of the protection order. There is no
causal connection between Ms. Houston’s lack of knowledge of her mother’s
whereabouts and the effectiveness of the protection order.
[38]
In
the present case, the Board properly found that adequate state protection would
be available to Ms. Houston. This finding was not unreasonable as it was based
on the evidence before the Board, both the country condition documentation and
the evidence concerning Ms. Houston’s mother, deemed to be a similarly situated
person.
CONCLUSION
[39]
The
conclusion of the Board concerning the availability of an IFA for Mr. Mahmood
was not patently unreasonable. Neither was the conclusion concerning the
availability of state protection for Ms. Houston unreasonable. Both conclusions
were based on the evidence before the Board, the country condition
documentation as well as the subjective evidence of both situations.
[40]
This
Court will not interfere with these decisions. This application for judicial
review will be dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The judicial review be
dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
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