Date: 20100118
Docket: IMM-2492-09
Citation: 2010 FC 28
Ottawa, Ontario, this 18th
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MUHAMMAD
IQBAL BUTT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
CANADA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”) of the decision rendered
April 21, 2009 by Alexander George Johnstone wherein he denied the applicant’s
refugee claim.
[2]
Mr.
Muhammad Iqbal Butt, the applicant, was born and raised in Sialkot, Punjab, Pakistan. He is 46
years old and came to Canada on October 18, 2007. He is a member of the
Pakistan Muslim League (Nawaz Group), PML-N, a political party. The applicant
has been active in the party, like his father before him and has often attended
political rallies and demonstrations.
[3]
The
applicant’s stated persecutors were agents of the state, the Sialkot police,
and members of the Pakistan Muslim League (Qaid-e-Azam Group), PML-Q,
specifically Choudry Shujaat Hussain who was the local MP in Sialkot. The alleged motivation
for the persecution was the applicant’s political affiliation with the PML-N and
particularly, his participation in rallies to oppose the ruling party.
[4]
The
issue for the Board member was whether the applicant’s subjective fear was
well-founded with regard to the documentary evidence. He also considered the
evidence of the political climate in Pakistan in 2009 in comparison to 2007 when the
applicant fled the country. The Board ultimately found that the evidence
supporting persecution on the basis of political opinion was not well-founded with
respect to the evidence presented at the hearing.
[5]
The
Board considered whether the applicant is a person in need of protection. The applicant
testified that the leader of the PML-N lives in Lahore. He agreed that there was a “possibility”
that he could have moved to Lahore but added that the police would arrest him upon arrival at
the airport. The applicant explained that the police did not need an arrest
warrant or a FIR to detain him. The “police network” exists such that the
“system” made it unsafe for him to be in Lahore. The Board rejected this suggestion and found
that there was an internal flight alternative (“IFA”), namely Lahore. Thus, should the
applicant be returned to Pakistan there was not a serious
possibility that he would be at risk of torture, or cruel and unusual
punishment or death.
[6]
Determining
whether the applicant has met the legal grounds for objective fear of
persecution set out in section 96 is a question of mixed fact and law.
Similarly, determining whether the applicant is a person in need of protection
is a question of mixed fact and law. Incorporated into the decision-making
framework for sections 96 and 97 of the Act the Board will often make findings
of fact with respect to the availability of a reasonable IFA and/or whether
there has
been a change in circumstances in the country of origin sufficient to negate a
well-founded fear of persecution at
the time the applicant fled his country (Stoyanov v. Canada (M.E.I.)
(1993), 157 N.R. 394 (F.C.A), para. 3).
[7]
According
to the Supreme Court of Canada at paragraph 53 of Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, where the tribunal engages in an inquiry of legal and
factual issues that cannot be readily separated, the reviewing court will
accord deference to the tribunal. The standard of review applicable to this
matter is “reasonableness”. The Court noted at paragraph 47 that:
. . . reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
It must not interfere to
substitute its opinion unless the decision falls outside the range of
reasonable outcomes although from time to time this Court will not agree with
the weight accorded to various parts of the evidence.
[8]
The
applicant’s fundamental argument is that the Board misapprehended the evidence
before it and ignored corroborative evidence.
[9]
The
respondent asserts that the Board’s conclusions on objective fear and the
existence of an IFA are each determinative of the refugee claim. Thus, in order
for this Court to quash the decision to reject the claim this Court must find
the Board committed a reviewable error in respect of both issues. I agree.
[10]
The
respondent suggests that there is no reviewable error committed by the Board
with respect to the objective fear of persecution and the existence of an IFA,
and that the applicant objects merely to the weight accorded to the evidence by
the Board.
[11]
In
Omrane v. Minister of Citizenship and Immigration, 2003 FCT 291, Justice
Simon Noël wrote, at paragraph 11:
In
my opinion, all of these arguments concerning the applicant’s credibility go to
the assessment of the evidence and the facts. The IRB based its decision on the
evidence on the record and interpreted it as it understood it. Contrary to
the applicant’s allegations, the IRB did not fail to consider the explanations
he gave, but was simply not persuaded by or satisfied with them. Given the
great deference that the Court must display in relation to a question of fact
addressed in the assessment of the evidence, it is not the Court’s duty to
substitute its interpretation for that of the IRB.
(My
emphasis.)
[12]
Like
in Omrane, supra, and Multani v. Minister of Citizenship and
Immigration, 2009 FC 187, the applicant has provided the Board with
explanations as to why the police could have the motivation to persecute him
but the Board was not persuaded or satisfied by them.
[13]
Furthermore,
if the applicant could reasonably be expected to move to an IFA, his refugee
claim will necessarily fail regardless of a well-founded fear (Sarker v. Minister
of Citizenship and Immigration, 2005 FC 353, para. 5). The test for a finding
of an IFA is that the Board must be satisfied, on a balance of probabilities,
that there is no serious possibility of the applicant being persecuted in the
proposed IFA and that in the circumstances particular to the claimant it is not
unreasonable for the claimant to seek refuge there. The respondent cites Thirunavukkarasu
v. Canada (Minister of Employment
and Immigration),
[1994] 1 F.C. 589 (C.A.). This decision has been confirmed in many subsequent
cases, most recently referenced by Madam Justice Snider in Syvyryn v. Minister
of Citizenship and Immigration, 2009 FC 1027. See also, Rasaratnam v. Canada (Minister of Employment
and Immigration),
[1992] 1 F.C. 706 (C.A.). The Board properly expressed this test in its
conclusion.
[14]
The onus of proof
is on the applicant to demonstrate that he will be persecuted anywhere in his
country of origin or that it is unreasonable to expect him to move if an IFA is
found (see Pena v. Minister of Citizenship and Immigration, 2009 FC 616).
However, the applicant did not discharge this onus. Rather than a
misapprehension of the facts, I find that there was an insufficiency of
evidence to satisfy the Board that the Sialkot police
continued to be interested in him. Given the change in political hierarchy
since the applicant fled Pakistan, based on the evidence which was before the
Board, it was reasonable for the Board to look for corroborating evidence of
persecution anywhere in that country in order to find an objective fear.
[15]
The
applicant argues that the Board should accord him the benefit of the doubt that
he will be persecuted upon his return anywhere in the country. The Board held
that there was no indication as to how the police would find out the applicant
had arrived in Pakistan. The applicant’s opinion as to the links in the
police system and the general influence exerted by the PML-Q on the police was
not satisfactory for the Board to find a serious possibility of risk of cruel
and unusual punishment or death upon his return to Pakistan.
[16]
In
conclusion, it is my opinion that the reasoning of the Board falls within a
range of reasonable outcomes and thus, this Court should not intervene.
[17]
For
all the above reasons, the application for judicial review will be dismissed.
JUDGMENT
The application for judicial
review of the decision rendered on April 21, 2009 by Alexander George Johnstone
wherein he denied the applicant’s refugee claim is dismissed.
“Yvon
Pinard”
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