Sheikh v. Canada (Minister of Citizenship and Immigration), 2004 FC 8

                                                                                                                                             Date: 20040108

                                                                                                                                 Docket: IMM-4304-03

                                                                                                                                        Citation: 2004 FC 8

Between:

                                                          GULLRAIZ NABI SHEIKH

                                                                                                                                                       Applicant

                                                                              - 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 17, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person 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]         The applicant is a citizen of Pakistan. He alleges a well-founded fear of persecution because of his activities in the Shia Muslim community and he claims to face a reasonable chance of serious harm in Pakistan.

[3]         The Board found that the applicant is not a Convention refugee or a person in need of protection. The Board concluded that state protection is available to the applicant and that the latter did not have the profile of a person at risk in Pakistan.

[4]         This Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). The Board must also be presumed to have considered all of the evidence that was presented to it, and the tribunal is not obliged to mention in its reasons all the evidence it has taken into account before rendering its decision (Taher v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1433 (T.D.) (QL)).

[5]         In the case at bar, I agree with the respondent's argument that the applicant's submissions pertain to the manner in which the Board weighed the evidence on the issue of state protection. It is not the role of this Court to re-weigh and re-assess all of the documentary evidence and substitute its own conclusions. The Board, as a specialized tribunal, is better equipped to evaluate and weigh the totality of the evidence presented to it and, in this case, the Board was entitled to prefer the documentary evidence to the applicant's testimony (Zvonov v. Minister of Employment and Immigration, [1994] F.C.J. No. 1089 (T.D.) (QL)).

[6]         According to the applicant, the Board erred in finding that state protection was available to him. There is a general presumption that the state is able to provide protection to its citizens and the applicant must provide clear and convincing evidence of the state's inability to do so (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724). The applicant has not demonstrated with clear and convincing evidence that the state is unable to protect him. The applicant also submits that in assessing the availability of state protection, the Board improperly relied on an extrinsic televised report. According to the applicant, this use of extrinsic evidence is contrary to the dictates of natural justice and the Board ought to have afforded the applicant an opportunity to address the evidence. I agree with the respondent that this argument does not raise a serious issue. The report upon which the Board relied did not present novel information unknown to the applicant and, therefore, the Board was not required to communicate this information to him. Furthermore, the Board also relied on ample documentary evidence to conclude that state protection was available to the applicant (see Mancia v. Canada (M.C.I.), [1998] 3 F.C. 461 at 472-473, and Yassine v. Minister of Employment and Immigration, [1994] F.C.J. No. 949 (C.A.) (QL)).

[7]         A thorough review of the file reveals that the Board's decision in this case was reasonable and contains no reviewable error. Consequently, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

January 8, 2004

                                                                    FEDERAL COURT

                                NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                            IMM-4304-03

STYLE OF CAUSE:                                            GULLRAIZ NABI SHEIKH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                      Toronto, Ontario

DATE OF HEARING:                           December 10, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD

DATED:                                                                January 8, 2004

APPEARANCES:

Mr. John Savaglio                                                 FOR THE APPLICANT

Mr. Robert Bafaro                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

John Savaglio                                                        FOR THE APPLICANT

Barrister & Solicitor

Pickering, Ontario

Morris Rosenberg                                                 FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario