Date: 20161201
Docket: IMM-663-16
Citation:
2016 FC 1323
Ottawa, Ontario, December 1, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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MUHAMMAD ASIF
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review by
Muhammad ASIF [the Applicant] under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c27 [the IRPA] of a decision by the
Refugee Appeal Division [the RAD], dated January 13, 2016, whereby the RAD
determined that the Applicant's appeal of the decision made by the Refugee
Protection Division [RPD] on June 23, 2015, wherein the Applicant was found to
be neither a Convention refugee nor a person in need of protection. Leave was
granted May 20, 2016.
[2]
Briefly, the Applicant is a 38-year-old
Pakistani national of the Shia faith who alleges a well-founded fear of
persecution from the Sunni extremist group, Sipah-e-Sahaba (SSP). The SSP
sought to force him to sell his land at a reduced price because he is of the
Shia faith and because they wanted him out of the area. Before fleeing his
home, the Applicant lived in the Punjab province in the village of Murali Wala.
The residents of Murali Wala are primarily Sunni, with only four or five Shia
families living in the area.
[3]
The Applicant inherited his land from his
father, as did his brothers; the Applicant farmed it all and wished to continue
farming there. In 2011, the Applicant’s brothers were approached by two
prominent Sunni extremists, who demanded the Applicant’s family sell their land
at a reduced price. The siblings did so, but the Applicant refused. The
extremists built a Sunni school, used to preach jihad and terrorism, on the
purchased lands. After the Applicant’s refusal to sell, there followed a
campaign of increasing harassment against him, including multiple instances of
his crops being destroyed and pressure by other members of the community. He
was branded an infidel. In 2013, he was assaulted by extremists, at which time they
attended the Applicant’s property, slapped him and threatened to kill him if he
did not sell the land.
[4]
The Applicant alleges that, in late 2013, he
spread a rumour that he had written a will leaving his land to the government
for the construction of a school. He did so in the hopes of dissuading the
extremists from killing him, since the existence of such a will would mean his
land would not go to his brothers, who might be persuaded to sell it as they
their own land.
[5]
In January 2014, the Applicant was again
assaulted by people who work for the extremists. The Applicant alleges these
men attended his farm, beat him up, fired their guns into the air and
threatened him. The Applicant filed a report with the police but nothing
happened. The Applicant alleges that he filed a complaint with the District
Police Officer but, once again, no action was taken.
[6]
In February 2014, the Applicant was kidnapped
and forcibly confined in a small cell in a basement for approximately one
month. He was threatened, but not assaulted. The Applicant alleges that he was
kept alone in this cell and fed only once every 24 hours. The Applicant alleges
that, during this time, the same two extremists would enter the cell every few
days and demand that he sell his land at a reduced price, to which the
Applicant would respond with an offer to sell at full price. They were not
satisfied with his response and would return him to his cell.
[7]
During his confinement, the man who served the
Applicant food informed him that the extremists planned to kill the Applicant
after buying his land. This man eventually helped the Applicant escape.
[8]
The Applicant alleges that he was also warned by
a friend, a village elder, in late 2011, that the SSP was planning on killing
him after acquiring his land.
[9]
After escaping, the Applicant hid at a
relative’s house in Dhonkal, a village located in the Punjab province. Several
weeks after his escape, the extremists came to this relative’s house looking
for him. The Applicant then moved to another relative’s home, located in the
village of Faizabad, also located in the Punjab province. The extremists
tracked him again, this time assaulting the relative he was staying with in
Faizabad. The Applicant alleges that the extremists were accompanied by police
when attending at his relative’s home in Faizabad. The Applicant’s brother had
arranged for him to leave Pakistan and, after being tracked down the second
time, the Applicant moved to Lahore to await his flight out of the country.
[10]
The Applicant left Pakistan on June 25, 2014,
with the assistance of a people smuggling agent. He made a claim for refugee
protection in Canada on October 6, 2014.
[11]
The Applicant also makes the following
allegations:
- The extremists have attended at his siblings’ homes with the
police several times both before and after he left the country. During
these visits, the extremists searched his siblings’ homes, demanded to
know his whereabouts, were verbally abusive and threatened death should
the Applicant’s whereabouts be concealed.
- His neighbour in Murali Wala is a Sunni Muslim with land equal
in value to his own who had not been disturbed by the extremists. While in
hiding, the Applicant asked this neighbour to look after his land and take
any profits that resulted therefrom. Despite agreeing at first, this
neighbour refused to tend the farm after being visited by the extremists,
who insisted the land was theirs.
[12]
In support of his claim, the Applicant filed a
psychological report by a psychologist, in which the Applicant was diagnosed
with Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).
The report concluded that a return to Pakistan would result in disabling psychological
harm to the Applicant.
II.
Decision under review
[13]
The RAD heard the Applicant on January 13, 2016.
No new evidence was submitted and no request was made for an oral hearing. The
issue before the RAD was whether there was an Internal Flight Alternative [IFA]
in Hyderabad, a city in Sindh province located in the Southeast of Pakistan.
The RPD found he had an IFA, which was why it dismissed his claim originally.
[14]
Applying the standard of review stated by the
Federal Court in Huruglica v Canada (Citizenship and Immigration), 2014
FC 799 at paras 54-56 [Huruglica (FC)], the RAD found that the RPD’s
credibility findings were clear, it had given reasons for its credibility
concerns and it had made clear which allegations it believed to be true. I
should note that the RPD dismissed the Applicant’s claim also citing
credibility concerns based on the fact the Applicant gave inconsistent stories
about his intentions respecting the land – essentially, that the Applicant had
claimed both that the land was not for sale and also that it was for sale at a
fair price. The RAD agreed with the RPD that the Applicant’s statements regarding
his intent to sell his land, as indicated in his BOC and at the hearing, were
inconsistent. The RAD agreed that the RPD’s failure to challenge the evidence
regarding the SSP’s actions, the Applicant’s flight and the SSP’s pursuit
indicated that these allegations were assumed to be true. It did not find,
however, that this made the viability of an IFA unreasonable.
[15]
The RAD agreed that the SSP sought the
Applicant’s land because he is a Shia Muslim but found, on a balance of
probabilities, that the extremists’ pursuit was based on the Applicant’s
failure to sell his land. The RAD found no evidence had been presented to
support the contention that the extremists would continue to pursue the
Applicant after the land was sold. The RAD noted the Applicant’s evidence
indicating that he had been informed that he would be killed after selling his
land was uncorroborated. The RAD further noted that the evidence “strain[ed] credulity,” since such threats would
constrain him from agreeing to sell the land.
[16]
The RAD noted the RPD’s contradiction in its
analysis regarding SSP activity in Hyderabad and found the RPD’s statements
regarding possible SSP presence in that city to be speculative and without an
evidentiary basis. The RAD found that there was no evidence that the SSP
operates in Hyderabad and held that the Applicant had not provided any evidence
to the contrary.
[17]
The RAD found that extremist organizations like
the SSP and the Lashkar-e-Jhangvi (LeJ) retained their ability to harm
individuals and organizations in Pakistan, but that the evidence regarding an
IFA there was mixed. The RAD made specific note of documentation by the
Australian Government’s Department of Foreign Affairs and Trade, finding that,
on a balance of probabilities, an IFA in Pakistan was available to people like
the Applicant with similar fears. The RAD found the RPD’s reasoning (that the
SSP was able to pursue the Appellant on two separate occasions because he
stayed with family members within the Punjab province) convincing on this
point.
[18]
The RAD found that the report of the
psychologist should be given little weight in regards to the availability of an
IFA for the Applicant because:
•
it crossed the line separating expert opinion
from advocacy;
•
it made findings of credibility that should have
been reserved for the panel;
•
it had not been subjected to any form of
validation;
•
it reached very serious conclusions regarding
the Appellant’s psychological health after only one interview; and,
•
it spoke to the lack of available resources in
Pakistan without providing any evidence of knowledge regarding treatment
options in that country.
III.
Issues
[19]
This matter raises the following issues:
1.
Was it reasonable for the RAD to find an IFA in
the city of Hyderabad, located elsewhere in Pakistan?
2.
Did the RAD err in assigning little weight to
the report provided by the psychologist?
IV.
Analysis
A.
Standard of Review
[20]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
The existence of an IFA is a question of mixed fact and law and therefore
reviewable on the standard of reasonableness: Diaz v Canada (Minister of
Citizenship and Immigration), [2008] FCJ No 1543. The RAD’s decision is
reviewed on a reasonableness standard: Huruglica v Canada, 2016 FCA 93
at para 35 [Huruglica (FCA)] While the Federal Court of Appeal in Huruglica
(FCA) determined that the standard of review to be applied by the RAD is
that of correctness, except on matters of credibility where the RPD had an
advantage, the RAD’s application of the earlier standard endorsed by the
Federal Court in Huruglica (FC), above, is not necessarily a reviewable
error, so long as the RAD conducts, in substance, a thorough, comprehensive and
independent review of the kind endorsed by the Federal Court of Appeal: Shala
v Canada (Minister of Citizenship and Immigration), 2016 FC 573 at para 9.
[21]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, 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.
[22]
In this case, a decision by the RAD meets the Dunsmuir
criteria if “the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes”: Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16. In addition, the Court is instructed that judicial
review is not to become a line-by-line treasure hunt for errors: Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54. I should add that the RAD’s assessment, of the
evidence is entitled to deference: see Dunsmuir at para 53; Zhong v
Canada (Citizenship and Immigration), 2016 FC 346 at para 16.
B.
Discussion
[23]
On balance, I have determined that this
application for judicial review should be dismissed for the following reasons.
[24]
I agree that the issue is the reasonableness of
the IFA finding. The law in this respect is found in Thirunavukkarasu v
Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (FCA),
1993 CanLII 3011, at para 12:
12 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.
[25]
I also find the RAD conducted a proper review
per Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 9; the
RAD’s review was, in substance, a thorough, comprehensive and independent
review as required.
[26]
I will deal with each part of this two-part
test.
Whether there
was no serious possibility of the Applicant being persecuted in Hyderabad?
[27]
As noted, the RAD’s findings regarding the
availability of an IFA in Hyderabad is challenged on the basis it is
unreasonable for several reasons. I will now set out each of these reasons and
discuss seriatim.
[28]
I do not find the RAD’s reasons contradictory as
alleged. The country condition evidence regarding the possibility of
persecution in Hyderabad was indeed mixed, as the RAD reasonably found. The RAD
set that evidence out and drew a conclusion based on the facts of this case. Drawing
that conclusion fell within the purview of the RAD to assess the mixed evidence
and come to a conclusion. It applied the recognized test for this assessment to
itself and chose to rely on an Australian report in preference to others; that
in my respectful view was its prerogative and duty and did not offend Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
paras 14-17.
[29]
The RAD’s finding on whether or not the SSP and
others would pursue the Applicant in Hyderabad, assuming the land was sold, is
also reasonably open on the facts. This, again, is a factual assessment that
falls within the province of the RAD to determine. In this connection, I note
the RAD is a specialized body in terms of assessing a possible IFA and I am
prepared to defer, as is generally required, to its assessment in this regard.
[30]
The issue of the rumour spread by the Applicant
that he had willed his land to the government (a rumour calculated to result in
there being no benefit to the SSP in having him dead) is exactly the sort of
nuanced and factual assessment that the RAD is designed to assess and
determine. While not mentioned in its analysis, it is well-known that the RAD is
not obliged to deal with each and every issue propounded by an applicant: Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16.
[31]
The allegation that the SSP would kill the
Applicant even if he sold the land was considered and dealt with by the RAD.
Once again, this argument invites this Court to engage in a re-litigation of
the facts of this case, which is generally not its duty. I agree that the RAD’s
finding these reports to be uncorroborated is contrary to the evidence, if that
evidence was in fact accepted. According to the Applicant, two different
sources informed him that he would be killed regardless of whether he sold the
land or not: his jailer and a village elder who was also his friend. Each, in
my view, corroborated the other. Although the RPD’s finding this evidence to be
uncorroborated is unsupported by the record. In my view it is not sufficient to
render the decision unreasonable.
Were conditions
in Hyderabad such that it would not be unreasonable for the Applicant to seek
refuge there?
[32]
The onus of proof rests on the claimant to show
that it is objectively unreasonable for them to avail themselves of a “safe haven” within their own country: Thirunavukkarasu
at para 12.
[33]
In my view, the determination of this issue
depends on the assessment of the report filed by the Applicant’s psychologist,
to which the RAD gave little weight. The reasons the RAD provided for doing so
and my comments on each are as follows:
A.
It crossed the line separating expert opinion
from advocacy. In my view, while it is expected
that expert reports will be supportive of the claim made by the person filing
them, there is a line between providing a diagnosis and prognosis with
appropriate support and open advocacy: Egbesola v Canada (Citizenship and
Immigration), 2016 FC 204. The determination of which side of the line an
expert report falls on comes down to a matter of weighing the evidence and
assessing its bearing on the facts at hand. That is a matter for the RAD as
part of its duty to assess the evidence. Such an assessment is to be afforded
deference by the Court. I have reviewed the report and cannot say the RAD’s
assessment of this particular report is unreasonable.
B.
It made findings of credibility that should
have been reserved for the panel. In my view,
credibility findings are well known to lie at the heartland of tribunals such
as the RPD and the RAD. While I do not know the practice of the particular
expert in issue, it is rare that such reports deal with an applicant’s
credibility at all, much less delve into the level of detail as was the case
here. Not only does this report purport to assess the Applicant’s credibility,
it goes further and may appear to counsel the trier of fact on how to assess the
Applicant’s credibility when he appears before it. The Applicant offers an
explanation in which he explains the psychologist’s comments as being an
assessment of what the Applicant was reporting to him, in order to determine
the credibility of the facts provided to him and upon which he based his
conclusions. However, a fair reading of this report, with respect, does not
support such an argument. In this I defer, as I am required, to the RAD’s
assessment. In any event, I have concluded that this aspect of the RAD’s
consideration of the report is reasonable.
C.
It had not been subjected to any form of
validation. In my view, this is not a stand-alone
basis for assigning little weight to the report. If it were so, most, if not
all, such reports would be given little weight. Therefore, I conclude this basis
of attack is not reasonable.
D.
It reached very serious conclusions regarding
the Applicant’s psychological health after only one interview. We know the Applicant met the psychologist only once; we do not
know for how long. The Court was told this psychologist usually meets with such
clients for 2 or 3 hours. With respect, this again involves an assessment of
the weight assigned to the report, which is for the RAD to reasonably
determine. Such determination is entitled to deference, particularly given the
RAD’s experience in reviewing such reports.
E.
It spoke to the lack of available resources
in Pakistan without providing any evidence of knowledge regarding treatment
options in that country. On the one hand, the psychologist
said there were “no psychological or psychiatric
treatment options for MDD and PTSD in Pakistan”; however, nothing
suggests he had expertise in this respect. On the other hand, the Applicant
argues that this comment was meant to indicate the Applicant would be
untreatable should he return to Pakistan, without speaking to the state of
mental health treatment in that country. On balance, my view is that this
finding is reasonable.
[34]
I have considered these matters as individual
findings for the sake of convenience, and appreciate it is not a matter of
adding up the positives and subtracting the negatives.
[35]
Standing back and reviewing the decision as an
organic whole, looking at each part of the two-part test for determining the
reasonableness of an IFA per Thirunavukkarasu and bearing in mind that
judicial review is not a treasure hunt for errors, I have concluded that the
RAD’s decision is reasonable. It satisfies Dunsmuir because it falls
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and law.
V.
Certified Question
[36]
Neither party proposed a question to certify,
and none arises.
VI.
Conclusions
[37]
Judicial review must be dismissed. No question
is certified.
JUDGMENT
THIS COURT’S JUDGMENT is that judicial
review is dismissed, no question is certified, and there is no order as to
costs.
“Henry S. Brown”
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