Date: 20041118
Docket: IMM-1124-04
Citation: 2004 FC 1617
Ottawa, Ontario, November 18, 2004
Present: Mr. Justice Blais
BETWEEN:
MALIK Babar
MALIK Anila
MALIK Behroz
MALIK Besam
MALIK Fezan
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application by Mr. Babar Malik (the applicant) and the members of his family (collectively the applicants) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated December 24, 2003, which concluded that the applicants were neither refugees nor persons in need of protection under section 97 of the Immigration and Refugee Protection Act, S.C 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicants are all citizens of Pakistan and arrived in Canada on May 7, 2002.
[3] The applicant became a member of the Pakistan Muslim League (PML) in 1994 and engaged in various political activities intermittently between 1994 and 2002. In May 2000, the day after a meeting of the PML, he alleges, he was beaten by three policemen to the point that he needed medical treatment. However, he was unable to produce a medical certificate.
[4] Another incident occurred on July 1, 2001, when the applicant was arrested and detained for 15 days. On September 10, 2001, the applicant was again arrested and detained for 10 days during which he alleges he was tortured (however, he did not require any medical treatment). He was then warned to cease all political activity.
[5] In March 2002, the applicant organized a meeting of the PML at his workplace. The police were informed of this activity and arrived on the premises, forcing the members who were present to escape. The applicant then went to Gurjanwala and later left Pakistan with his family.
ISSUE
[6] Based on the evidence before it and the interpretation of that evidence, did the Refugee Protection Division make an order that is patently unreasonable in its interpretation of the facts?
ANALYSIS
[7] Since the issue in this case is whether there was an error as to the facts, the standard of review is that of patent unreasonableness: Harb v. Canada (Minister of Citizenship and Immigration, [2003] F.C.J. No. 108; Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, [2003] 1 F.C. 331 (C.A.); and Stanyk v. Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225. That being the case, the threshold is relatively high and has been established by a number of previous decisions, including Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, [2001] 2 S.C.R. 565, at paragraph 33:
... LeBel J.A. referred to the concept of clearly irrational error, an expression adopted on several occasions by this Court to define the content of the patent unreasonableness standard of review (see Canada (AG) v. Public Service Alliance, [1993] 1 S.C.R. 941, at pp. 963-64; Ajax (Town) v. CAW, Local 222, [2000] 1 S.C.R. 538, 2000 SCC 23">2000 SCC 23, at para. 2; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at para. 11; ...
[Emphasis added]
[8] It is not the job of the Federal Court to reassess the applicant's credibility or the facts presented, which have already been examined by the Refugee Division, particularly when this evidence was considered unpersuasive.
... this is a matter of judicial review and the reviewing Court, and this Court on appeal from the reviewing Court, cannot simply substitute its views of the facts and the law for those of the Tribunal and render what it considers the right conclusion. ... it is for the Tribunal to render a decision on the facts once those facts are properly litigated before it. (Canada (Attorney General) v. McKenna, [1998] F.C.J. No. 1501 (C.A.) at paragraph 6)
[9] In the present case, the applicant admitted there were some discrepancies, but said they were minor and ought not to have been exaggerated by the panel.
[10] In my opinion, it was exaggerated on the part of the panel, after questioning the applicant for several minutes about the event that had precipitated his departure from Pakistan, which occurred on March 22, 2002, to ask him whether anything important had happened between September 2001 and March 23, 2002, when the applicant is being referred to a period of a year and a half, the 23rd of March is substituted for the 22nd in the question, and when the applicant answers that there is no decisive fact occurring during the period he is reminded that he just testified about a triggering event that had occurred on March 22. In my opinion, the applicant's answer can correctly be considered a "contradiction" or a "discrepancy" but the meaning given to it by the Refugee Division is completely disproportionate with that contradiction. However, that does not appear to be sufficient to warrant the Court's intervention, since the panel considered a number of other factors.
[11] In support of its findings, the panel relied on the documentary evidence, including part 5 of the Montréal regional package on Pakistan, and in particular parts 5.3, 5.5, 5.6 and 5.8. As the respondent's counsel conceded, the analysis of this Montréal regional package may be debatable, but a careful reading of the part referred to by the panel does not point to the conclusion that the panel's findings are patently unreasonable. Indeed, there are some items that bear out the panel's conclusions:
No reports indicating a specific treatment of PML supporters, members or leaders by the Inter-Services Intelligence or members of other political parties since the 12 October 1999 coup could be found among the sources consulted. (package part 5.3)
Very few references to the ill-treatment of PML (Nawaz) members by members of the PML (LM) could be found among the sources consulted by the Research directorate. (package part 5.8)
[12] The panel also cited other lacks of coincidence between the applicant's statements at the point of entry and the account contained in his PIF concerning the reason for his fear in Pakistan.
[13] It is also important to bear in mind that the panel did not base itself solely on the information contained in the Montréal regional package; it also questioned the applicant as to why a political activist at a lower level (as he characterized himself) would have been targeted by the authorities while so many other activists were not targeted for retaliation.
[14] The panel was not satisfied by the applicant's answers; the panel does not believe the applicant's allegations that he was persecuted in Pakistan as a result of collusion between the PML(Q) and the army for the purpose of systematically going after supporters of the PML(N).
... in order to establish that the Tribunal committed a reviewable error the applicant and the interveners must demonstrate on the balance of probabilities that the Tribunal's finding that dumping was likely to resume if the original finding were rescinded was not rationally supported by any material before it. Thus, even if the Tribunal committed a reviewable error on some of its findings of fact, its decision to rescind will still be upheld if there were other facts on which it could reasonably base its ultimate conclusion. (Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282 (C.A.) at paragraph 22)
[15] The panel also found that it assigned no credibility to the applicant and consequently it assigned no probative value to a number of documents he filed: the FIR, in exhibits P-16 (applicant's PML membership card), P-17 (letter from PML(N)), P-18 (membership card), P-19 (arrest warrant). The panel also refers to a reply to a request for information to the effect that it is very easy to obtain doctored and falsified documents from Pakistan.
[16] It is quite evident that the panel need not refer to each and every one of the documents appearing in the evidence and the cases are very clear to that effect.
[17] To warrant the Court's intervention, the applicant had to fulfill three conditions: first, that the findings of fact had to be clearly erroneous, which is not the case for the reasons previously expressed; second, that the findings had to be capricious or without regard for the evidence, which is not the case either; and third, to be set aside, the decision itself had to be based on erroneous findings of fact.
[18] Although I concede there are some errors in the interpretation of the facts, I have no hesitation in concluding that the decision was based on a general review of the facts and the evidence presented by the applicant, as well as the available documentary evidence. The panel's general conclusion was not unreasonable, therefore.
ORDER
THE COURT ORDERS that:
- The application for judicial review is dismissed.
- No question has been submitted for certification.
"Pierre Blais"
Judge
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1124-04
STYLE: Malik Babar et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 28, 2004
REASONS FOR ORDER
AND ORDER: Mr. Justice Blais
DATED: November 18, 2004
APPEARANCES:
Styliani Markaki FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Styliani Markaki FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Email this Content