Ansari v. Canada (Minister of Citizenship and Immigration), 2005 FC 504

Date: 20050414

Docket: IMM-4063-04

Citation: 2005 FC 504

Toronto, Ontario, April 14^th, 2005

Present:           The Honourable Mr. Justice Strayer                                   

BETWEEN:

                                                       AWAIS AHMED ANSARI

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated March 31^st, 2004 in which the Board found the claimant not to be a Convention refugee and not a person in need of protection.

[2]                The claimant was born in Pakistan in 1968 and is a citizen of that country. He has not lived there since 1993. He married a Taiwanese citizen and lived in Taiwan from 1993 to 1999. Since that time, he spent time in United States and in the Bahamas until March, 2003 when he made a refugee claim at the Canadian border. He said that he fears persecution in Pakistan if he were to be sent back, because he is a Shia Muslim and as such would be in danger from a Sunni Muslim extremist group. He also claims to be in fear of prosecution there for blasphemy.

[3]                The Board did not find his claim credible. It was not satisfied that he had lost his right to reside in Taiwan. Apart from that, the Board found his claim lacked credibility because he had returned to Pakistan willingly on several occasions in 1998 and 1999. Also in 1999, he sent his two children to Pakistan to live with his mother there. He claimed to have been physically attacked in Pakistan when visiting there in 1998, but the Board found the medical reports concerning his alleged injuries to be inconsistent.

[4]                The Board also had before it documentary evidence of the efforts of the government of Pakistan to curb sectarian violence and to suppress extremist organizations such as the one said to be feared by the claimant.

[5]                In the written submissions filed on behalf of the claimant it is argued that the Board misconstrued the evidence or ignored critical evidence and that this amounted to an error in law. In the oral submissions made before me the claimant's new counsel instead argued that the hearing was not fair because of a "predisposition" on the part of the presiding Board member against the claimant. My attention was drawn to several pages of the transcript to support this proposition.    Counsel suggested that the Board unfairly blamed the claimant for the fact that the Board had sent to the claimant's counsel an Acquisition of Information Form on January 19^th, 2004 seeking the claimant's signature on the form to consent to inquiries being made which would clarify his status in Taiwan, but the claimant's lawyer did not give this form to the claimant for signature until March 9^th, 2004, the day of the hearing. The claimant's new counsel argued before me that the Board had unfairly blamed the claimant for not having consented in a timely fashion so that such information could have been available before the hearing.

[6]                I am not persuaded by reading the passages in question that any "predisposition" is demonstrated. Nor do I think it is unreasonable for the Board to hold the claimant responsible for his lawyer's delay and to draw certain inferences from the fact that such delay on behalf of the claimant prevented any possibility of obtaining of information before the hearing concerning his status in Taiwan. The Board, as a result, stated that it was not satisfied that the claimant, at the time he applied for a visa to Canada in November, 1999 was not entitled to reside in Taiwan. This was only a marginal issue at best.

[7]                Apart from this finding, there was ample evidence upon which the Board could find this claim not to be credible, which evidence is outlined above. The claimant is really inviting the Court to re-weigh the evidence and this of course is not the function of the Court.    I can see nothing patently unreasonable about the decision of the Board and I will therefore dismiss the application for judicial review.     

                                                                       ORDER

THIS COURT ORDERS that the application for judicial review be dismissed.            

                                                                                                                                      "B.L. Strayer"                     

                                                                                                                                                      D.J.                           

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-4063-04

STYLE OF CAUSE:               AWAIS AHMED ANSARI

                                                                                                                                              Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                          Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       APRIL 13, 2005

REASONS FOR ORDER

AND ORDER BY:                            STRAYER D.J.

DATED:                                              APRIL 14, 2005

APPEARANCES:

Marshall Drukarsh                                FOR THE APPLICANT

Marcel Larouche                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

Green & Spiegel

Barristers & Solicitors

Toronto, Ontario                                   FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENT