Date: 20070904
Docket: IMM-682-07
Citation: 2007
FC 881
Ottawa, Ontario, September 4, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MUHAMMAD
FAROOQ GHAURI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant
seeks judicial review of the
decision of a Refugee Protection Division Panel dated January 17, 2007, wherein
the Panel Member found that the applicant is neither a Convention refugee nor a
person in need of protection. For the reasons that follow, I find that there
are no grounds for the Court to interfere with that decision and the
application is dismissed.
[2]
Mr.
Ghauri, a Sunni Muslim, practiced naturopathy in Okara, Pakistan. Among his clients were members of the
Ahmadi faith, a sect not recognized by some adherents of Islam. He claims that
he suffered persecution as a result of this by members of the Sunni extremist organization Khatam-e-Nabuvat. After receiving death
threats he left Okara and went to Faisalabad where he says that he was attacked on two occasions
and had to be hospitalized as a result. Following his recovery, he moved to
Lahore where he says he learned that a Fatwa had been issued against him in
Okara and an unknown caller had warned his father that the extremists thought
he might be in Lahore. On June 20, 2006 he was smuggled into Canada and made
his claim for protection the following day.
THE
PANEL’S DECISION:
[3]
The member found that while there was a nexus to the
Refugee Convention based on the applicant’s perceived allegiance with the
Ahmadis there were several grounds for finding that nexus to be insufficient to
accept his claim for the necessity of protection by a country other than
Pakistan.
[4]
The member first
found him to be in default of Rule 7 of the RPD Rules for falsely claiming that
an original copy of the fatwa could not be sent outside Pakistan. The Applicant had claimed that he could not provide an
original copy to the RPD panel because of this. The member found the fatwa to
be false and issued for the purpose of misleading the Panel.
[5]
Second, the member
found that Mr. Ghauri had not rebutted the assumption of state protection. She
found that the police were unable to provide protection in the specific
situation of the two attacks against him due to his inability to identify the
perpetrators.
[6]
The member also found
that an affidavit from Mr. Ghauri’s cousin was too similar to the applicant’s
PIF, and was not credible. She further found the applicant’s credibility was undermined
by inconsistency between his PIF and testimony and medical reports regarding
the injuries suffered in Faisalabad. The lack of a letter of corroboration
from the Ahmadi community of Okara, for whose treatment he had allegedly
suffered so much, further damaged his credibility.
[7]
Finally, the member
found that the applicant had an Internal Flight Alternative (“IFA”) within Pakistan, namely Islamabad. She concluded that as it is a large
city without a significant Ahmadi population, Mr. Ghauri could practice natural
medicine there without facing persecution.
ISSUES:
[8]
The applicant submits that the Panel
erred in concluding that he was neither a Convention refugee nor a person in
need of protection specifically by:
a.
finding there is a viable IFA in Islamabad;
b.
by making credibility findings that were patently unreasonable;
c.
and in failing to consider the evidence.
ANALYSIS:
[9]
There was no dispute between
the parties as to the standard of review. Issues going to credibility are "quintessentially findings of
fact" for which the standard of patent unreasonableness attaches: see Dr. Q. v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at
paragraph 38; Chowdhury v. Canada (Minister of Citizenship and Immigration), 2006 FC 139 at para. 12 [Chowdhury].
It is also well-established
that the same standard applies to review for a finding of a viable IFA: see Ortiz
v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1365, [2006] F.C.J. No. 1716 at paragraph 35;
[10]
In my
view, the member’s credibility findings were open to her on the evidence. The member had several causes for concern which she
clearly linked to the evidence. While I may not have found the photocopy of the
Fatwa tendered in evidence to be false due to the applicant’s confusion over
whether the original poster could be sent out of the country, it was not
patently unreasonable for the member to come to such a conclusion on the
evidence before her.
[11]
Given that the claim turned upon
persecution related to the applicant’s treatment of members of the Ahmadi
minority, it was not unreasonable for the member to inquire why there was no
evidence of support from that community in Pakistan or Canada,
notwithstanding the applicant’s contention that their interests were not
directly affected.
[12]
The applicant suggests that the
negative finding of credibility with regard to the inconsistency between his
testimony and the medical reports he proffered as evidence was a microscopic
review of the evidence. For this, he has cited Attakora v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.). In my view, the Member’s concerns about
the inconsistency on the question of paralysis are not microscopic to the
extent of the panel’s examination of the evidence in Attakora. The
reports tendered did not support the applicant’s account of the effects of the
beating he had suffered and the member did not err in relying upon that.
[13]
As stated by my colleague Phelan
J. at paragraph 5 of Uddin v. Canada (Minister of Citizenship and Immigration), 2005 FC 287:
The Court recognizes that it is a
difficult task to balance over-zealousness on the one hand and diligence at
obtaining the truth on the other. Only in clear cases of crossing this line
should a court interfere.
[14]
With
respect to the contention that the member erred in ignoring or failing to consider some of the evidence, the applicant
has offered no evidence to overcome the presumption that tribunals have
considered all the evidence before them in coming to their decisions without
the need to specifically mention every piece presented. Having concluded that
the affidavit of one cousin was implausibly similar to the applicant’s PIF and
for that and other reasons the claim was not credible, it was not necessary for
the member to deal with each other item of evidence including the affidavits
from the father and the other cousin.
[15]
In any
event, the determinative finding in this matter was that Mr. Ghauri had a viable IFA in Islamabad. Given the lack of
evidence produced to show that the fatwa was published or known outside the applicant’s
local area it was not patently unreasonable for the member to conclude that the applicant had not met his burden of
proof. In this regard, the case is similar to that recently decided by Justice
Noël: Zia v. Canada (Minister
of Citizenship and Immigration), 2007
FC 131, [2007] F.C.J. No. 184.
[16]
Accordingly,
the application will be dismissed. No questions were proposed for
certification.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed.
No questions of general importance are certified.
“Richard
G. Mosley”
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