Date: 20050617
Docket: IMM-4160-04
Citation: 2005 FC 846
BETWEEN:
AKHTAR Arfan
JABEEN Fakhra
AKHTAR Ntasha
AKHTAR Ayisha
AKHTAR Mohamad Ahmar
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[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 April 8, 2004, wherein the Board found the applicants not to be "Convention refugees" or "persons in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Arfan Akhtar (the principal applicant) and Fakhra Jabeen are respectively 38 and 35 years old. Their children, Ntasha, Ayisha and Mohamad Ahmar are 8, 6 and 3 years old. They are all citizens of Pakistan. They claim to have a well-founded fear of persecution at the hands of the police and the army by reason of political opinion. They also claim to be persons in need of protection as persons in danger of being tortured or at risk to their life or being subjected to cruel and unusual treatment or punishment in Pakistan.
[3] The Board based its decision on a negative credibility finding. It made its findings based on the implausibility of the principal applicant's explanations to inconsistencies between his story and the documentary evidence.
[4] For example, one of the Board's concerns was with the principal applicant's ignorance of the existence of the Exit Control List (the "ECL"). In 2002, the list contained 2450 names. It is not unreasonable for the Board to have concluded that the principal applicant should have been aware of this list, especially since the applicants used false passports to leave the country. It is likely that the applicants would have learned in some fashion about the ECL when they obtained their false passports because of controls in Pakistan that were enforced after the coup.
[5] It was not unreasonable for the Board to also conclude that the principal applicant's behaviour in not leaving Pakistan sooner than he did does not conform to what one can expect from someone so terribly tortured by police (Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225 (F.C.A.)). The applicant stated that the torture and injury to his toes was the worst he had experienced, yet he did not leave the country because he did not see his future as dark at that time.
[6] As another example, the principal applicant claims to have continued to criticize the military regime after his arrest in May 2000, yet was not arrested in July 2000, when other Pakistan Muslim League ("PML") leaders and workers had been arrested. The applicant explained that the police had already taught him a lesson and that is why they gave him a warning and did not arrest him. The Board did not err in not finding this explanation satisfactory since it is more plausible that if he had in fact continued his campaign against the military locally, the police would have arrested him with the others.
[7] Most importantly is the interception of the documents by Citizenship and Immigration Canada. It does not seem likely that the PML general secretary would go to the trouble of gathering all the documents found in the envelope and sending them to the principal applicant in Montréal with the hope that Canadian authorities would see fit to seize them. This seems like too much work for a simple act of revenge for a harsh argument between the two. Furthermore, the applicant's father's name and address were on the package and it contained documents relating to his health. This could lead one to believe that it was actually the applicant's father who sent the documents. Regardless of the reasons behind this, it was certainly not clearly irrational for the Board not to accept the applicant's explanation that he had no knowledge of the mailing.
[8] Upon reviewing the evidence and noting that the impugned decision is well supported by documentary evidence referred to by the Board, I am not convinced that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). I am not satisfied either that the inferences which were drawn by the Board could not reasonably be drawn (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).
[9] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 17, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4160-04
STYLE OF CAUSE: AKHTAR Arfan, JABEEN Fakhra, AKHTAR Ntasha, AKHTAR Ayisha, AKHTAR Mohamad Ahmar v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 16, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: June 17, 2005
APPEARANCES:
Ms. Styliani Markaki FOR THE APPLICANTS
Mr. Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Styliani Markaki FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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