Date: 20061201
Docket: IMM-550-06
Citation: 2006 FC 1453
Ottawa, Ontario, December 1, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MUHAMMAD
ADEEL
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
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 January 12, 2006, in which the Board concluded that the
applicant is not a Convention refugee or a person in need of protection.
[2]
The applicant is a citizen of Pakistan born in 1980. At 12 years of age,
in October 1993, the applicant flew to the United
States with his parents and siblings. In the United States, the applicant’s father
worked illegally and the applicant and his siblings attended school. In 1996,
the applicant’s family returned to Pakistan while he remained with relatives in the United
States to pursue his education. At that time the
applicant was 15 or 16 years of age. The applicant made a refugee claim at the
Canadian border in February 2003 at the age of 22.
[3]
The applicant was self-represented at the
hearings before the Board. The applicant was also self-represented before this
Court but advised the Court by letter on the morning of the hearing that he had
abdominal pain, could not attend the hearing because he would not be able to
concentrate, and requested that the Court consider the material filed by the
applicant and make a decision based on this material. The Court decided to
proceed with the hearing based on the extensive representations and material
before the Court. As a result, the Court asked that counsel for the respondent
address each of the issues raised by the applicant and other issues raised by
the Court.
[4]
In his Personal Information Form (PIF) narrative
dated March 20, 2003, the applicant stated that his father and uncle were
supporters of the Pakistan’s
People’s Party (PPP). After the military coup of October 1999, his father
reportedly participated in a rally organized by the PPP. His father was
arrested for his participation. The applicant claims that his father is a
potential target of the Pakistani authorities. The applicant further claims
that he could be targeted as a family member of an enemy of the current regime.
Since September 11, 2001, the applicant claims that the Pakistani government
has become hostile towards possible dissent. The applicant fears he will be
targeted due to the time he spent outside of Pakistan and claims that Pakistanis who return from abroad are often
victimized by violence because they are perceived as being wealthy. The
applicant reports hearing of kidnapping incidents in Pakistan where protection from a corrupt police force is unavailable.
[5]
On March 17, 2005, the applicant submitted an
additional narrative amending his PIF stating that, on September 23, 2003, his
father took a leading role in an opposition strike against the military
government. As a result, his house was raided the next day and his father was
sought for arrest. The police alleged that the applicant’s father and uncle had
jeopardized the public order. His father was not home during the raid and has
since gone into hiding to avoid arrest. The applicant claims that three men
from the inter-services intelligence (ISI) came to his father’s house the next
day to arrest his father and uncle. The applicant’s younger brother informed
the men that his father and uncle were not home. The younger brother was
allegedly detained by the ISI, and his whereabouts since then are unknown. In
October 2003, the rest of the applicant’s family left for Dubai where they have been living
illegally. The applicant claims that he fears death or torture at the hands of
the ISI.
[6]
The Board found inconsistencies in the
applicant’s evidence and did not find his claim to be credible. The Board
considered the applicant’s delay in arriving in Canada to make a claim to be unreasonable. The Board found that the delay
in making a refugee claim demonstrated a lack of credibility and subjective
fear. The Board also had concerns about the September 2003 rally and the role
of the applicant’s father in the rally. The Board noted that the evidence did
not indicate that the rally turned violent as reported by the applicant. The
Board did not consider it reasonable that the Pakistani government would be
interested in the applicant, who has not lived in Pakistan since the age of 12 and was never politically active. The Board
concluded that there was insufficient evidence before it to support the
applicant’s claim that he would be at risk from the government of Pakistan or from any other agent of
persecution.
Issues
[7]
This application raises the following issues:
1.
Did the Board err in making patently
unreasonable findings of fact?
2.
Did the Board breach the duty of procedural
fairness by providing an inadequate record of the hearing?
3.
Did the Board breach the duty of procedural
fairness by reversing the order of questioning during the hearing under the IRB
Chairperson’s Guideline 7?
Standard of Review
[8]
With respect to the Board’s factual
findings, including its determinations of credibility, the appropriate standard
of review is patent unreasonableness. Only if the Board’s findings are
unsupported by the evidence before it will the decision under review be
patently unreasonable. Otherwise, the Court will not revisit the facts or weigh
the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127 at para. 16.
[9]
With respect to the issue of
procedural fairness, the Supreme Court of Canada has held that questions of
procedural fairness or natural justice are subject to the correctness standard:
Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221
at para. 65. If a breach of the duty of fairness is found, the decision must be
set aside: see, e.g., Congrégation des témoins de Jéhovah de
St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665.
Relevant Legislation
[10]
The legislation relevant to this application is the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The
relevant provisions governing protection and refugee status are as follows:
|
Convention refugee
96. A Convention refugee is a person who, by reason of
a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having a
country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
[…]
(b) to a risk to
their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable
or, because of that risk, unwilling to avail themself of the protection of
that country,
(ii) the risk would be
faced by the person in every part of that country and is not faced generally
by other individuals in or from that country, […]
|
Définition de
« réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
[…]
b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas, […]
|
Analysis
Issue No. 1: Did the Board err in making
patently unreasonable findings of fact?
[11]
The applicant argues that the Board based its
decision on erroneous findings of fact and without regard for the material
before it. Specifically, the applicant argues that the Board disregarded or
misconstrued the evidence regarding the applicant’s delay in claiming refugee
protection and the references to his father’s involvement in the PPP in his
original PIF narrative.
[12]
In reaching its conclusion that the applicant’s
claim was not credible, the Board emphasised the applicant’s delay in arriving
in Canada to claim refugee
protection:
The panel does not accept as reasonable the delay of the claiming in
arriving in Canada to make a claim. The claimant states
both at the border and confirmed in his original PIF that his father was
arrested in 1999 and 2000. The claimant did not arrive in Canada until February 2003. The claimant states in his original narrative that after September
11, 2001, the Pakistani government was interested in becoming even more hostile
towards possible dissent. The claimant made no effort until the end of 2002 to
seek a [sic] legal advice in the United States as to obtaining protection.
The panel finds the claimant’s delay in making a timely refugee
claim to demonstrate a lack of credibility and a lack of subjective fear.
[Emphasis added]
[13]
The applicant argues that he gave adequate
reasons at the hearing for why he could not make a claim for protection in the United States and that these reasons were
not taken into account in the Board’s decision. The applicant’s evidence on
this issue is recorded in the transcripts from the hearing held on May 19,
2005. At page 12, the Board member begins questioning the applicant concerning
his delay in applying for protection:
Member:
Okay well we’re going to talk about whether you can live there now.
You were 13 when you went to the U.S.?
Claimant: I was 12 years old.
Member: 12 okay, and you had a student visa or you went as a visitor?
Claimant: I came there as a visitor.
Member: And how long was your visa visitor for?
Claimant: Six months.
Member: Did you ever get another visitor visa after that?
Claimant: No.
Member: And you went to school until when in the U.S.?
Claimant: I went to up to grade 12.
Member: Your PIF says you were in school until June 1998.
Claimant: Yes.
Member: And then after that you worked until January 2002, is that right?
Claimant: No I worked until June 2003. I worked not until June, I worked
until 2003 only, not June.
Member: What month 2003?
Claimant: January, up until January.
Member: And you were at American Perfumery?
Claimant: Yes.
Member: So January 2003.
Claimant: Yes.
Member: And then you came to Canada in February, right?
Claimant: Yes.
Member: Why did you come to Canada in February 2003?
Claimant: Because when I came to know the circumstances, my father told
me about the circumstances, after that I discussed with the lawyer, then my
lawyer suggested that you don’t have very good chances in America, go to Canada.
Member: When did you discuss this with your lawyer?
Claimant: I did end of 2002 up until 2003 I kept discussing.
Member: Why did you not go to a lawyer before then?
Claimant: You’re asking why didn’t I go to the lawyer before that?
Member: Well is that the first time you went to a lawyer?
Claimant: Yes.
Member: Okay so why did it take you until the end of 2002 to go to a
lawyer?
Claimant: Because when I came to America I was only 12 years old and I did not have any understanding of
legal or illegal.
Member: Right but---
Claimant: It’s just that in America I didn’t have any problems but my
father up until now he didn’t throw (verify) [sic] me whatever the
problems that were in Pakistan so far.
Then my father told
me that before Americans get their hands on you, arrest you, and then send you
back, you better go and have a case. Then he told me about whatever problems
they’re having in Pakistan and they said if you come back here you will also be facing the
same problem.
Member: When did he tell you this?
Claimant: This he told me in 2002, I don’t remember exactly when.
Member: Why didn’t he tell you this earlier?
Claimant: It’s just that they were under the impression that I’m living far
away from them and if I come to know about these things then I’ll keep thinking
about them.
[Emphasis added]
[14]
The Board’s decision makes no reference to the
applicant’s stated reasons for not seeking refugee protection earlier than
February, 2003. Instead, the Board concludes that the delay was unreasonable
and indicative of a lack of subjective fear.
[15]
The respondent referred the Court to Mr. Justice
Rouleau’s judgment in Hernandez Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324. At paragraph 17, Mr. Justice Rouleau held that an
applicant must provide an explanation for a delay in claiming protection:
The
Board states correctly that while the delay is generally not a determinative
factor in a refugee claim, there are circumstances where the delay can be such
that it assumes a decisive role; what is fatal to the applicant’s claim is
his inability to provide any satisfactory explanation for the delay.
[Emphasis added]
[16]
In this case, however, the applicant provided an
explanation for the delay. When he arrived in the United
States under the care of his parents, he was only 12
years old. By the time of the events in Pakistan giving rise to his alleged fear of persecution or need for
protection, he had already been living in the United Status illegally for
several years. The Court notes that the applicant was 22 years old when he
began seeking legal advice regarding his refugee protection options. The Court
also notes that the Regulations consider persons under age of 22 years to be
dependent children: Immigration and Refugee Protection Regulations,
S.O.R. 2002-227, s. 2. In any event, the Board has not provided any analysis
disclosing its reasons for rejecting the applicant’s explanation of the delay. It
is thus impossible for the applicant or a reviewing court to determine whether
the Board reached its decision with due regard for the applicant’s explanation.
In my view, the Board failed to provide intelligible reasons for dismissing the
applicant’s explanation for delay in making the claim in 2003.
[17]
However, the Board made other findings of fact
supporting its conclusion that the applicant was not credible including:
1.
the untrustworthiness of the information in the
amendment to the PIF narrative dated March 17, 2005. The Board did not find it
reasonable that the claimant would have waited from September 2003 until March
2005 to provide this significant new information. Moreover, the Board found
that this information was “lifted” verbatim from news articles and this “calls
into question the trustworthiness of the entire amendment of March 2005”;
2.
there was no mention in the lawyer’s letter of
any action being taken to locate or free the claimant’s brother who allegedly
was detained by the police in 2003 and not heard from since. The applicant
alleged that his brother disappeared because of the brother’s relationship to
his father and that the applicant expected the same thing would happen to him
if returned to Pakistan. The
Board found that the claimant’s testimony about his brother was “vague”. The
Court agrees that this evidence is vague and untrustworthy; and
3.
it is not reasonable that the Pakistani government
would be interested in the applicant who has not lived in Pakistan since he was 12 years of age and
was never politically active.
[18]
These findings of fact by the Board are not
patently unreasonable or unreasonable. They are based on evidence before the
Board. Accordingly, the Court cannot set aside the Board’s finding that the
applicant’s evidence was not credible based on these findings.
Issue No. 2: Did the Board breach the duty of procedural fairness by providing
an inadequate record of the hearing?
[19]
The applicant argued in his written submissions in
support of his leave application that the Board failed to provide transcripts
for the hearing held on May 19, 2005 (the “May hearing”). The applicant argued
that the Board member was satisfied at the May hearing that the applicant had
established his claim for refugee protection subject to verification of two
lawyers’ letters to be obtained from Pakistan. As was indicated on the hearing information sheet, the May hearing
was “adjourned for documents”. The applicant argues that the only purpose of
adjourning the May hearing was to confirm the authenticity of two lawyers’
letters he provided as evidence in support of his claim. The applicant
maintains that, if he is able to obtain transcripts for the relevant portion of
the May hearing, it could be proven that the Board was otherwise satisfied with
his claim and subsequently reversed its position at the hearing held on
December 19, 2005.
[20]
The applicant’s argument regarding a lack of
transcript is contained in his memorandum of fact and law dated March 2, 2006. The
applicant requested leave to appeal in order to enable him to procure the
transcript of the hearing. Mr. Justice Robert Barnes granted leave on August
30, 2006, and on September 18, 2006 the Board’s Record including transcripts
were filed with the Court. Accordingly, the Tribunal Record contains a
transcript for the May hearings so that this issue raised by the applicant is
now moot.
Issue No. 3: Did
the Board breach the duty of procedural fairness by reversing the order of
questioning during the hearing under the IRB Chairperson’s Guideline 7?
[21]
The applicant argues that the Board breached its
duty of procedural fairness by reversing the order of questioning at the
hearing pursuant to Guideline 7.
[22]
Since the applicant was self-represented at the
three hearing dates before the Board, the applicant was not in a position to
have his own counsel ask him questions as part of a direct examination.
Accordingly, the Board was left with no alternative but to ask the applicant
relevant questions to illicit information in support of the applicant’s claim.
[23]
Accordingly, this submission in the applicant’s
memorandum has no substance or merit.
Conclusion
[24]
For these reasons, the Court must dismiss this
application for judicial review. Counsel for the respondent submitted that this
case does not raise any serious question of general importance which warrants
certification. As discussed, the applicant was not represented at the hearing
and did not appear. The Court does not consider that this case raises any
serious question of general importance which should be certified. Accordingly,
no question will be certified.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that:
This application
for judicial review is dismissed.
“Michael
A. Kelen”
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