Date: 20050831
Docket: IMM-9020-04
Citation: 2005 FC 1194
BETWEEN:
MUHAMMAD SAJID HUSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HUGHES J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board dated September 21, 2004, wherein it was determined that the Applicant was not a Convention Refugee and is not a person in need of protection.
[2] The Applicant is a citizen of Pakistan born in 1971; he left Pakistan in May 2002 and went to the United States and from there to Canada in July, 2002 where he made a refugee claim as a Convention Refugee having a well-founded fear of persecution for reasons of religion and as a person in need of protection. He is a Shi'a muslim and claims to have been beaten by Sunni fanatics, members of the Sipah-e-Sahaba (SSP) and that Pakistan could not offer him adequate protection.
[3] A hearing was held before a member of the Board on November 10, 2003 and a decision was rendered on September 10, 2004 in which the member found that the Applicant is not a Convention Refugee and not a person in need of protection.
[4] The Applicant essentially raises two issues:
1. Did the Board make patently unreasonable findings based on the material before it? and;
2. Did the Board ignore more recent documentary evidence as to conditions in Pakistan which evidence may have led the Board to conclude that the Applicant was a person in need of protection?
[5] As to the first issue Counsel for both parties are agreed that the test for judicial review of the findings by the Board is that of patent unreasonableness. Counsel pointed out a few passages in the documentary material before the Board, particularly from Amnesty International, which indicated that the Board could have made a different finding than it did as the conditions in Pakistan. However, taking the material as a whole, the Board made no reviewable error; its findings were not patently unreasonable. See e.g. Tuju v. Canada (Minister of Citizenship and Immigration) 2005 FC 1127 at paragraphs 22 and 23.
[6] As to the second issue, Applicant's Counsel argues that the Board held a hearing in the matter in November 2003 but did not release its decision for some ten months, that is, not until September, 2004. In the meantime, Applicant's Counsel argues, further information from United States and British government sources become available which indicated continuing instability in Pakistan and its ability, or lack thereof, in providing adequate protection. Counsel argues that, since the Board member's finding was, at page 12 of his Reasons:
"Pakistan is making serious and steadily effective efforts to protect its citizens from religious extremists. I find that the efforts have shown steady improvement and I consider them "Durable"."
efforts should have been made by the Board to secure the most current information as the conditions in Pakistan.
[7] There are two documents that Applicant's Counsel argues that the Board should have considered in the ten month interval between the hearing and the decision, one is the British Home Office Assessment of April 2004 respecting Pakistan, the other the U.S. Department of State Country Report on Pakistan, 2003, dated February 25, 2004. Extracts of these Reports were attached as exhibits to the Applicant's affidavit filed as part of his Record in this application.
[8] These two documents were not part of the certified Tribunal Record submitted in this case. Apparently the Board did not find them or, if it did, did not use them in arriving at its decision. More importantly, the Applicant did not tender these documents to the Board, nor was any effort made by or on behalf of the Applicant to provide these or any other documents to the Board during the period of its deliberations. The Applicant gave no evidence as to how these documents came to his attention or when, or what, if anything he attempted to do with them. In fact, the Applicant's affidavit is misleading on this point. The documents are simply found within a large bundle of documents called "Exhibit B" in respect of which he says at paragraph 6 of his affidavit:
6. I filed various documents at the hearing in support of my claim, with respect to the persecution faced by Shias in Pakistan. I attach hereto and mark as Exhibit "B" some of the documents filed by me as well as some of the documents that were before the Board as part of its standard disclosure package on Pakistan.
[9] The Applicant has the obligation to make out his case before the Board and, as such, to provide the Board with such evidence as he believes may be of assistance in determining his case. The Board has no obligation to seek out nor to make any continuing search for documents that may assist the Applicant. If such a document comes to the Board's attention and it intends to rely upon it, then the Board, as a general rule, should inform the Applicant, however, this is not to say that there is any obligation to seek out such documents.
[10] As stated by Gibson J. in Abdullahi v. Canada (M.E.I.) [1995] FCJ No. 31 at paragraph 11, documents post-dating the hearing and not before the Board are irrelevant to a judicial review of the Board's decision.
[11] Further, Applicant's Counsel conceded during argument that the new documents were of the same nature and contained information of the same kind as that contained in documents which the Board did have before it at the time that it made its decision.
[12] Given that the Board did not have these documents, that the Applicant made no effort to give the Board these documents and that the documents are not materially different from those that the Board did have, there is no error made by the Board to be considered by way of judicial review.
[13] The Applicant will be dismissed. There will be no order as to costs. There is no question to be certified.
"Roger T. Hughes"
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