Docket:
IMM-5847-11
Citation:
2012 FC 453
Ottawa, Ontario, April 18, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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AQRAR AHMAD RANA
SAIMA RANA
SHERIN RANA
RAMZA AHMED RANA
MAHAM RANA
AZKA RANA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated August 9,
2011. The Board found that the Applicants (Aqrar Ahmad Rana, Saima Rana,
Sherin Rana, Ramza Ahmed Rana, Maham Rana and Azka Rana) were neither
Convention refugees nor persons in need of protection within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27.
I. Facts
[2]
The
Applicants are citizens of Pakistan. After spending three months in the United
States (US) from April 20, 2009 to July 21, 2009, they arrived in Canada and made a refugee claim.
[3]
This
claim was based on a fear of extremist Sunni Muslims as the Applicants do not
adhere to the ideology of “Jihad” and violence. In particular, the Male
Applicant (Aqrar Ahmad Rana) insisted that extremists objected to his operation
of a photography business.
II. Decision
Under Review
[4]
In
general, the Applicants were not seen as satisfying the Board that they are
Convention refugees or persons in need of protection “in a credible and
trustworthy fashion.”
[5]
The
Board noted that although the Male Applicant is not part of a religious
minority, he and his family alleged being targeted by extremists due to his
photography business. It stated:
The claimant was in the photography business for 18
years in Lahore, Pakistan, and on March 21, 2009, was attacked, shot at and his
studio was damaged. The panel was presented with sufficient documentary
evidence to satisfy itself that the adult male claimant was in the photography
business in Lahore, Pakistan. In support of their claims, the panel notes of
two affidavits in exhibit C-7, pages 195 and 198. Although the documents
describe the adult male claimant as a successful business man, they do not
identify what type of business the adult male claimant was involved in and why
the claimants were targeted by religious extremists. The panel gives little to
the affidavits as presented and makes a negative credibility finding as a
result.
[6]
The
Board could not discern from photos provided that the Male Applicant’s studio
was damaged after he left for the US. There were no additional photos of the
studio to support these claims. This led the Board to make another negative
credibility finding.
[7]
Little
weight was also assigned to a medical letter from the Rasheed Hospital in Lahore as the Board had no idea how the Male Applicant sustained the injuries and
what caused his chest and back pain. According to the Board, this “could have
been caused by a multitude of things.”
[8]
The
Board made a negative a credibility finding for the Applicants’ lack of action
in pursuing refugee protection in the US. It would not accept the explanation
provided that they had friends in Canada who suggested that the Government
granted asylum to people like them and indications from US lawyers that they
had no chance pursuing a claim in that country. Their actions amounted to
refugee shopping, particularly in light of previous failed requests for
Canadian Visas.
[9]
In
addition, the Board found that it was not remotely credibly that alleged
religious extremists who assaulted the Applicant and shot at him would not have
attempted to attack his mother other than an alleged threat against her and his
sister’s life two weeks after he left Pakistan.
[10]
Considering
letters from alleged extremists warning the Male Applicant to stop his
business, the Board found there was “insufficient credible and trustworthy
evidence given why the claimants’ lives would be at risk, in a forward looking
analysis” since the business is no longer operational.
[11]
While
the Board acknowledged Pakistan has a poor human rights record and widespread
corruption, it also concluded that “the series of events as so laid out by the
claimants in their Personal Information Forms, based on the varied credibility
concerns referred to earlier in these reasons, minimizes the truthfulness and
the credibility of the story as presented.”
[12]
The
Board also found that the Applicants had a viable Internal Flight Alternative
(IFA) in Karachi. Given that the Male Applicant’s business was no longer
operational and this was the primary source of their problems, there was “no
credible reason why the extremists would be interested in the claimants with a
view of taking theirs lives in Pakistan or anywhere in the world.” Moreover,
the Applicants did not provide a credible response as to how the Taliban or
religious extremists would be able to locate them in Karachi. Even if the
Applicants were found, the Board did not have sufficient credible and
trustworthy evidence to conclude that state protection would not be afforded to
them.
III. Issues
[13]
This
application raises the following issues:
(a) Did the Board err in
determining that the Applicants were not credible?
(b) Did the Board err by
finding that the Applicants had a viable IFA?
(c) Did the Board fail to
properly consider the Applicants’ claim under section 97?
IV. Standard
of Review
[14]
Findings
of fact and credibility are reviewed according to the reasonableness standard (Aguirre
v Canada (Minister of Citizenship and Immigration), 2008 FC 571, [2008] FCJ
no 732 at paras 13-14). This standard also applies to the Board’s finding of
an IFA (see for example Galindo v Canada (Minister of Citizenship and
Immigration), 2011 FC 1114, [2011] FCJ no 1364 at para 18) and any
assessment of risk under section 97 (see for example Acosta v Canada (Minister
of Citizenship and Immigration), 2009 FC 213, [2009] FCJ No 270 at paras
10-11).
[15]
Accordingly,
the Court will only intervene if the decision does not demonstrate “the existence
of justification, transparency and intelligibility” or falls outside “a range
of possible, acceptable outcomes defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Credibility
[16]
The
Applicants challenge the Board’s approach to analyzing the evidence in making
several negative credibility findings. More specifically, they take issue with
the Board: (i) failing to examine credibility and well-founded fear
independently; (ii) drawing negative inferences from the documents submitted;
(iii) faulting the Applicants for failing to claim in the US; (iv) making implausibility findings; and (v) referring to a “series of events” as not credible. I
will address each of these arguments in turn.
(i) Credibility
and Well-founded Fear
[17]
I
cannot accept the Applicants’ contention that the Board erred in failing to
conduct distinct analyses of credibility and the well-foundedness of their
fear. While the issues may be “related but not identical” as Hettige v Canada (Minister of Citizenship and Immigration), 2010 FC 849, [2010] FCJ no 1056
at para 17 implied; the failure to consider the issues independently was not
the particular error identified by Justice Michael Kelen in that case. As a
consequence, the absence of separate headings in the assessment by the Board of
the Applicants’ circumstances does not by itself warrant the Court’s
intervention.
[18]
The
Board’s determinations in this regard were clear to the Applicants. Their
narrative was not considered credible. This reasonably led to the conclusion
that their fear was not subjectively well-founded. Indeed, the Board stated at
paragraph 18 of its reasons that “there is insufficient credible and
trustworthy evidence given why the claimant’s lives would be at risk.” Perhaps
more significant is that the Board’s additional finding of an IFA in Karachi undermines any subjective and objective fear. Given the clarity in the Board’s
overall assessment, failing to explicitly address credibility and well-founded
fear independently did not ultimately confuse the issues as the Applicants
assert in their submissions.
(ii) Negative
Inferences from Documents
[19]
The
Applicants contend that the Board’s findings on the photography studio were
made without regard to the evidence before it. They note that documents were
provided to substantiate the Male Applicant’s ownership of that business. The
Board proceeded to make a negative inference from silence in the Applicants’
affidavits as to the exact nature of the business.
[20]
I
am not convinced, however, that the Board’s assessment was in error. The Board
is presumed to have considered all of the evidence (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ no 598 (CA)). It is
not required to specifically mention every piece of evidence (Hassan v
Canada (Minister of Employment and Immigration) (1992), 147 NR 317, [1992]
FCJ no 946 (CA)). Although the decision does not mention all documents related
to the photography business as referred to by the Applicants, the Board
concluded that it was “presented with sufficient documentary evidence to
satisfy itself that the adult male claimant was in the photography business in Lahore, Pakistan.”
[21]
The
Board’s negative inference came from the failure of the Applicants’ affidavits
to address why they were targeted and the nature of the business at issue. Instead,
reference was simply made to them being targeted by religious extremists. This
Court found in Osman v Canada (Minister of Citizenship and Immigration),
2008 FC 921, [2008] FCJ no 1134 at para 39 that “where there is no
reasonable explanation” for some “material omissions, they can be the basis of
an adverse inference and impugn an applicant’s credibility.” The Board’s
conclusion was justified since the Applicants’ affidavits omitted crucial
information regarding their claim as to the operation of what sort of business
resulted in them being targeted by extremists.
[22]
The
Applicants further dispute the Board’s negative credibility finding because it
did not have pictures of the business that was damaged on March 21, 2009. According
to the Applicants, they corrected issues associated with the labelling of the
photos during oral testimony and there should have been no reason to doubt the
date of the attack.
[23]
The
Respondent maintains that the Board did not ignore the photographic evidence as
to this attack. There was understandably confusion from the mislabelled photos
that seems to have made its way into the reasons. However, this does not
affect the Board’s finding.
[24]
I
must agree with that assessment. Irrespective of confusion as to which
photograph was at issue, it was reasonably open to the Board to draw a negative
inference from a failure to provide photographs for both of the alleged incidents.
[25]
Regarding
the assessment of a medical letter, the Applicants charge that the Board failed
to consider the totality of the evidence. The Board attributed little weight
to the letter and made a negative credibility finding from the failure to
describe how the injuries were sustained, despite other information related to
physical assaults and photos of the damaged studio.
[26]
I
fail to see how the Board’s conclusion was unreasonable. The letter did not
provide sufficient information to confirm how the injuries occurred and link
them to the threat posed by religious extremists. It was therefore accorded
little weight. As the Respondent notes, the letter contains one sentence
summarizing the injuries.
[27]
In
general, the Board’s negative credibility findings were justifiable,
transparent and intelligible as they were related to the Applicants’ failure to
provide the documentary evidence that would corroborate their specific claims.
(iii) Failure
to Claim in the US
[28]
I
also find it was reasonably open to the Board to make a negative credibility
finding based on the Applicants’ lack of action in pursuing a refugee claim in
the US. This position is supported by relevant jurisprudence. For example,
Justice Judith Snider stated in Remedios v Canada (Minister of Citizenship
and Immigration), 2003 FCT 437, [2003] FCJ no 617 at para 23:
[23] In my view, the Board did not err by concluding
that the Applicants were country shopping. The principal Applicant clearly
testified that they had the option of seeking asylum in the United States, but chose not to do so because their chances of success were much greater in Canada. This testimony supports the finding that the Applicants’ refugee claims are based
on a desire to immigrate to Canada and not on a well-founded fear of
persecution.
[29]
This
reasoning is equally applicable to the Applicants’ circumstances. Their
explanation for not claiming in the US as the Board paraphrased it was that
“they wanted to come to Canada; they had two friends in Canada” and that they were told that the Canadian government granted asylum to people like them. They
also suggested that two lawyers told them they had no chance of pursuing a
claim in the US. The Board gave these explanations due consideration before
making its negative credibility finding. Its position was supported by
previously failed attempts to acquire visas to enter Canada.
[30]
The
Applicants’ reference to Gurusamy v Canada (Minister of Citizenship and
Immigration), 2011 FC 990, [2011] FCJ no 1217 at para 36 is of limited
assistance. Justice James Russell suggested that if the applicant in
that case truly believed that seeking protection in the US would lead to him
being detained and deported, then he should not be expected to seek protection
in that country. A critical aspect of his reasoning was the Board’s failure to
consider the applicant’s subjective fear in claiming in the US and his transit through the UK and US was “simply held against him in a formulaic and
thoughtless way.”
[31]
There
was, however, no issue in the Board’s consideration of the explanations
provided by the Applicants in this instance, as this was done in a detailed
manner. The Applicants’ belief on the word of two lawyers in the US that they had no chance of success was acknowledged by the Board. Furthermore, there
were several other factors that supported the Board’s overall negative
credibility finding; namely the desire to come to Canada, the belief that the
Canadian Government would be more receptive and previous attempts to enter the
country on visas. Their situation more closely resembles that of Remedios
than Gurusamy, above.
[32]
Having
considered the Applicants’ explanations, the Board’s negative credibility
findings on the failure to claim in the US were within the range of possible,
acceptable outcomes.
(iv) Implausibility
Findings
[33]
The
Applicants take issue with the Board’s suggestion that it was implausible
religious extremists would not pursue other family members after they left Pakistan. They insist this finding was unreasonable.
[34]
Since
the Male Applicant alleged in his Personal Information Form (PIF) that
extremists wanted to harm his immediate family, the Respondent maintains that
the implausibility finding was appropriate in the circumstances. I agree. The
lack of threats to extended family was yet another factor in assessing whether
extremists were truly seeking to harm the Applicants. As a result, it was reasonable
to make additional negative credibility findings.
(v) “Series
of Events” Reference
[35]
Contrary
to the Applicants’ submissions, there is no substantive confusion that arises
in the Board referring to a “series of events.” The Board stated “the series
of events as so laid out by the claimants in their Personal Information Forms,
based on the varied credibility concerns referred to earlier in these reasons,
minimizes the truthfulness and the credibility of the story as presented.”
[36]
Understood
in context, the Board was summarizing its broader conclusion regarding
credibility rather than reaching a separate or unclear finding. As the
Respondent contends, this was merely a reference to the Applicants’ entire
story. The Applicants should not expect this Court to intervene on the basis
of these semantics or by taking statements out of context.
[37]
The
Board is entitled to deference in its credibility assessments and the reasons
provided must be read as a whole (see for example Jarada v Canada (Minister of Citizenship and Immigration), 2005 FC 409, [2005] FCJ no 506 at
para 22).
B. Internal
Flight Alternative (IFA)
[38]
In
finding a viable IFA, the Board must be satisfied, on a balance of
probabilities, that there is no serious possibility of the claimant being persecuted
in that part of the country and that it would not be unreasonable, in all the
circumstances of the case, for the claimants to seek refugee there (Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at para
4 (CA); Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589, [1993] FCJ no 1172).
[39]
The
Applicants argue that the Board erred in its application of this test by
finding that they had a viable IFA in Karachi. Focusing exclusively on the
Male Applicant’s business, they contend the Board failed to consider the origin
of their difficulties with extremists, such as the refusal to send his son to a
religious school. The Board therefore conducted a narrow assessment to find
that since the business was no longer operational, they would not be at risk. The
Applicants stress the significance of fatwas issued against them and the
network of extremists operating in Pakistan.
[40]
As
the Respondent makes clear, however, the Board reasonably concluded that the
Male Applicant’s business constituted the “primary source of the problem” and
consequently that its cessation would reduce the risk. The fatwas issued
clearly object to the operation of a “non-Islamic business.” In addition, the
Board’s assessment did not completely foreclose a consideration of other
factors.
[41]
I
cannot accept that the Board ignored evidence presented regarding the fatwas by
focusing on the issues associated with his business. The Board is entitled to
significant deference in its weighing of the evidence. As in Florea,
above, it is presumed to have considered all of this evidence unless the
contrary is shown. It was within the range of possible, acceptable outcomes
for the Board to conclude that there was no serious possibility that the
Applicants would be persecuted in Karachi, given that the main reason the
Applicants were targeted by extremists was due to a business now closed.
[42]
The
Applicants had the onus of establishing how the extremists would be able to
find out they left and pursue them to Karachi. This Court has previously found
that the failure to provide evidence that fatwas can be extended outside of a
particular locality would not result in an unreasonable finding (see Ghauri
v Canada (Minister of Citizenship and Immigration), 2007 FC 881, [2007] FCJ
no 1145 at para 15; Zia v Canada (Minister of Citizenship and Immigration),
2007 FC 131, [2007] FCJ no 184 at para 11). In this instance, the Male
Applicant’s testimony implied that the fatwas had influence in the local area. The
additional evidence referred to by the Applicants in relation to state
protection applied to the situation in Lahore, as opposed to that of Karachi.
[43]
The
Board also reasonably considered the second aspect of the IFA test in noting
that there was no evidence to show the Applicants would not be able to find
adequate employment in Karachi.
[44]
As
a consequence, the Board reasonably weighed the evidence before it in
concluding that a viable IFA existed for the Applicants in Karachi. The
Applicants simply disagree with that assessment and the Board’s focus on
certain critical factors.
C. Section
97 Analysis
[45]
Given
my previous findings, I also consider it unnecessary to require the Board to
conduct a more detailed section 97 analysis of the risks facing the Applicants.
[46]
The
Applicants insist that the Board’s credibility findings were unreasonably
extended to reach a conclusion under section 97. This is not supported by the
decision or relevant jurisprudence. Even the Applicants acknowledge that where
a general lack of credibility finding is made, “that determination is
sufficient to dispose of the claim unless there is independent and credible
documentary evidence in the record capable of supporting a positive disposition
on the claim” and the onus of demonstrating that evidence rests with the
claimants (see Canada (Minister of Citizenship and Immigration) v Sellan,
2008 FCA 381, [2008] FCJ no 1685 at para 3).
[47]
In
this instance, the Board did not believe the Applicants’ claims under sections
96 or 97. As in Ayaichia v Canada (Minister of Citizenship and Immigration),
2007 FC 239, [2007] FCJ no 300 at para 19, where the “evidentiary basis
for both claims is the same and the applicant’s story is not believed, there
will be no need to proceed to a separate section 97 analysis.” This is
particularly so in the context of an IFA finding that necessarily implies one
is neither a refugee nor person in need of protection (see Justice Snider’s
conclusion in Sarker v Canada (Minister of Citizenship and Immigration),
2005 FC 353, [2005] FCJ no 435 at para 7).
VI. Conclusion
[48]
The
Board was reasonable in its assessment of the Applicants’ credibility and the
finding of an IFA in Karachi. In light of this conclusion, it was not required
to conduct a detailed section 97 analysis.
[49]
For
these reasons, I dismiss this application for judicial review.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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