Date: 20071214
Docket: IMM-6691-06
Citation: 2007 FC 1324
Ottawa,
Ontario, December 14, 2007
PRESENT: The Honourable Orville Frenette
BETWEEN:
SYED
HASSAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the Immigration and Refugee Board, Refugee
Protection Division (RPD), rendered on November 22nd 2006,
determining that the Applicant was not a convention refugee and not a person in
need of protection.
THE FACTS
[2]
The
Applicant is a 28 year old citizen of Pakistan, belonging to the Sunni
religion, the faith of the majority citizens of that country. The Applicant
declared that as a teenager, in 1996, he had a clandestine relationship with a
woman, Fauzia Khan. When her father learned of this relationship in 1997, he
found the couple in a car. He and other men kidnapped the Applicant and
severely assaulted him, following which he was treated at a hospital. Fauzia
was taken away to her family’s village. Her father was the chief of his tribe
and wields much power.
[3]
The
Applicant’s family reported the assault to the police. In July 1997, the couple
reunited and attempted to elope to Karachi. Her father found them
and took Fauzia away. The Applicant has not seen Fauzia since 1998.
[4]
The
Applicant went to the United States of America (USA) to meet an American woman
of Pakistan origin,
which his parents wanted him to marry. He also went there to avoid danger. He
married that woman in 1998 and they had two children; he divorced her in 2003.
[5]
In
2002, his permanent residence status in the USA was removed
because of a criminal conviction (to which he had pleaded guilty), for using
counterfeit money and bad checks in a casino. He was also convicted of
assaulting his wife. He was given a sentence comprising restitution and a two
year probation period. The USA authorities began deportation proceedings
against him.
[6]
Before
the probation period was complete he left the USA to return to
Pakistan in 2003 with
his ex-wife and children. A bench warrant was then issued in the USA.
[7]
The
above crime, if committed in Canada, would have justified a sentence of up to
ten years of prison. He stated that in October 2003, he was attacked in Pakistan by Fauzia’s
father and his men.
[8]
He
came to Canada in January
2004, entering with a visitor’s visa at the expiry of the visa period, i.e.
three months, he applied for refugee status.
[9]
In
his Personal Information File (PIF), he omitted mentioning his criminal record,
explaining at the hearing that he feared this would have caused a refusal of a
permission to enter Canada. Since, he has remained in Canada.
THE RPD DECISION OF
NOVEMBER 22ND, 2006
[10]
The
member, S. Randhawa, in a ten-page decision, summarized the facts presented to
her, as follows:
i.
She
determined the Applicant’s fear of returning to Pakistan was not substantiated
by his actions and his return in 2003 to Pakistan with his
ex-wife and children. In his Port of Entry (POE) statement, he did mention the
alleged attacks of 2003. She found discrepancies in the dates of the alleged
events, and the use of deception by the Applicant on many points. He said he
did not mention them in the POE because he did not want to be deported.
ii.
He
did not mention his criminal record.
iii.
He
did not establish that he could not benefit from state protection in Pakistan.
iv.
The
documentation on Pakistan revealed that women are subject to
discrimination in Pakistan and there are “honour killings”.
v.
The
member found his POE and PIF answers and explanations contradictory, inconsistent,
uncorroborated and imprecise.
vi.
The
delay to claim political asylum was considered. The member found that the
Applicant’s actions, an educated person, did not establish subjective fear.
vii.
State
Protection: The member found that the Applicant had not rebutted the
presumption that Pakistan, a democratic country, could not protect its
citizens. He was a member of the majority religion of the country and was able
to obtain a visa using his Pakistan passport even though he
claimed fear because of the events described before.
viii.
Credibility
and Plausibility: The member decided that the Applicant’s answers, omissions,
discrepancies and implausibility, considering all of the evidence, rendered his
version of the facts, unbelievable.
THE ISSUES
[11]
a. Were
the member’s findings of facts and credibility patently unreasonable?
b.
Did
the member fail to appropriately analyse the availability of state protection?
THE STANDARD OF REVIEW
[12]
The
expertise of the RPD division in assessing credibility and findings of fact, is
well established, being the core of its jurisdiction and must be respected.
[13]
The
standard of review of such findings, is patent unreasonableness, see Harb v.
Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003]
F.C.J. No. 108, Harusha v. Canada (Minister of
Citizenship and Immigration), 2007 FC 2004, [2007] F.C.J. No. 1438.
[14]
To
be patently unreasonable, such decisions must be based upon a “perverse,
capricious or bad faith” examination of the evidence.
[15]
The
standard of review of findings of state protection was thoroughly reviewed in
case law: see Justice Danièle Tremblay-Lamer in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232. After
a careful analysis of the case law on the subject, she held that the
appropriate standard to apply is reasonableness simpliciter and I agree
with her conclusions.
ANALYSIS OF SPECIFIC
ISSUES
A. Were the member’s
findings of facts and credibility patently unreasonable?
I. The
Applicant argues that the three plausibility findings of the decision are not
reasonable.
[16]
He
makes a very detailed assessment of the facts, to conclude that the member
could not have reasonably conclude the implausibility of his version of the
events.
[17]
It
is true perceived implausibility is a subjective exercise but when it is based
on all of the evidence, including inconsistencies and contradictions, such as
in the Applicant’s testimony or PIF, it cannot be ignored. Here, the member did
consider all of the evidence and her rulings on plausibility were based on the
evidence.
II. Over
reliance on omissions and POE notes
[18]
The
applicant claims the member relied excessively on omissions and contradictions in
the PIF and her testimony. I do not agree since important facts or events such
as the criminal record, were intentionally omitted as admitted.
[19]
The
Applicant is a university graduate, fluent in English, and must bear the
consequences of his voluntary omissions and inconsistencies.
III. Did
the member ignore or misapprehend the new evidence in her findings on delay?
[20]
It
is a fact that the Applicant only claimed refugee status either at the end or
near the end of the three months when his visitor’s visa expired.
[21]
The
member was entitled to base her findings on this fact, particularly considering
the Applicant’s education and because he had obtained opinions from various
lawyers during his first three months in Canada. The
Applicant also attacks the member’s reasoning referring to his lack of fear as evidenced
by his return to Pakistan.
[22]
Both
of these arguments, are based upon the member’s interpretation of the facts
which are within her domain and her conclusions are not patently unreasonable.
IV. The
undeclared criminal record
[23]
The
members drew a negative inference from the fact that the Applicant intentionally
omitted to declare his criminal record in his PIF or POE. He explained in his
testimony that he feared that if he had declared this fact, he would have been
deported.
[24]
There
is no doubt that the member had the right to draw such a negative reference about
the Applicant’s credibility on this point.
[25]
If
the applicant omitted to declare negative facts which can adversely affect his
status, it is a concrete element in determining credibility.
V. Did
the member ignore evidence in his state protection analysis?
[26]
The
member did refer to the documentation on Pakistan particularly
concerning “honour killings” and she heard the testimony of the Applicant that
two police officers had taken the report but had not pursued the matter. Yet
the Applicant returned voluntarily to Pakistan in 2003 with his
ex-wife and children; therefore she believed he did not appear to have any
fear. The Applicant had the onus of establishing lack of state protection. To
succeed he had to provide clear and convincing proof of the state’s inability
to act, see: Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, [1993] S.C.J. No. 74.
[27]
It
is insufficient to simply claim that a government has not been effective in
protection persons in particular situation. Police protection may be adequate
even if not perfect: Canada (Minister of Employment
and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.).
[28]
In
Kadenko v. Canada (Solicitor General), 143 D.L.R. (4th) 532,
the Federal Court of Appeal confirmed a decision stating that a refugee
claimant must do more than show that he or she approached a member of the
police force to claim and this was unsuccessful, see also Ramirez c. Canada
(Ministre de la Citoyenneté et de l’Immigration), 2007 CF 1191, [2007]
A.C.F. No. 1536.
[29]
In
a country considered democratic having effective political and judicial
systems, the failure of particular members of the police to furnish adequate
protection is insufficient per se to establish a lack of state
protection, see Kadenko, above.
VI. Applicant’s
unused Canadian visitor’s visa
[30]
The
Applicant assails the member’s decision because she misinterpreted the facts and
that she stated he did not mention that he had previously travelled to Canada because he
had a Canadian visa. This was a factual error but it resulted from the
Applicant’s declaration that he had obtained a visitor’s visa, but had not used
it.
[31]
In
my opinion, such an inference could have easily been made since it is unusual
for a visitor to obtain a visitor’s visa, and then not to use it. I do not
believe this error was more than an honest mistake.
B. Did the member err in
her assessment of all of the evidence?
[32]
As
a matter of law, panel members are “masters in their own house”, on the
questions of findings of fact, credibility and on weight to be given to the
evidence: Zhou v. Canada (Minister of Employment and Immigration),
[1994] F.C.J. No. 1087 (F.C.A.). The member did not breach this rule in this
case.
CONCLUSION
[33]
The
Applicant criticizes the decision basing himself on a microscopic examination
of minute details of the evidence which ignoring the important overall picture.
The basic principle to be applied here is not whether I agree with the decision
but whether the member could rationally base her decision, on the established
facts.
[34]
I
must conclude that she could interpret the evidence the way she did and
therefore cannot find that the decision was patently unreasonable.
JUDGMENT
THEREFOR, THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed.
"Orville
Frenette"
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