Date: 20040206
Docket: IMM-498-03
Citation: 2004 FC 205
BETWEEN:
KHALID JAVAID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Khalid Javaid is a citizen of Pakistan. He is a Shia Muslim, in a country primarily populated by Sunni Muslims. Mr. Javaid claims to have a well-founded fear of persecution at the hands of the Sipah-i-Sahaba Pakistan (the SSP), an anti-Shia group of fundamentalist Sunni Muslims. He alleges that he has been persecuted by members of the SSP because he was an active member of the Sunni community.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Javaid's application for refugee status, finding that Mr. Javaid failed to present sufficient credible or trustworthy evidence to establish either that he would face persecution based on a Convention ground if he were returned to Pakistan, or that he was a person in need of protection. He now seeks to have that decision set aside, alleging that the Board erred in finding that he did not have a subjective fear of persecution, and in its finding that any fear on his part was not objectively well-founded.
Background
[3] Although he was born in Pakistan, Mr. Javaid lived in Kuwait between 1978 and 1990. Upon his return to Pakistan, Mr. Javaid started a business with his brother in Sialkot, which became quite successful. He was also active in the Shia community in Sialkot, which ultimately attracted the attention of the SSP. Mr. Javaid claims that the SSP harassed and threatened him on several occasions, because of his religious faith, and prominence in the Shia community.
[4] Mr. Javaid states that in mid-December 2000, SSP members threatened him, stating that he would face serious consequences if he did not stop his fundraising activities for his Imam Bargah, or place of worship.
[5] On April 4, 2001, Mr. Javaid says that he was stopped on the street by three members of the SSP. He was verbally and physically attacked by a well known SSP member named Mohammad Ayub. Mr. Javaid asserts that he filed a First Information Report with the police, but to no avail, as the police believed he was trying to falsely accuse Mr. Ayub.
[6] Two days later, Mr. Javaid's wife received a telephone call from an SSP member who referred to Mr. Javaid's attempt to have Mohammad Ayub arrested. This individual told Mr. Javaid's wife that the next time, Mr. Javaid would be beaten with bullets and not fists, and that the family should leave the area. As a result, Mr. Javaid and his family moved to Lahore, Pakistan.
[7] The SSP became aware of Mr. Javaid's presence in Lahore, and on November 15, 2001, a large group of SSP members gathered in front of Mr. Javaid's flat and verbally harassed him. The group attempted to enter the flat, and fired bullets at the front door before finally leaving. Mr. Javaid says that he again tried to report the incident to the police, but that this time the police refused to accept the report as Mr. Javaid could not identify the attackers.
[8] Mr. Javaid applied for a Canadian Visitor's Visa in June 2001, but his application was rejected. Mr. Javaid then hired a smuggling agent, and fled Pakistan. He stated that his intention was always to come to Canada, because of his understanding that Canada had a favourable refugee policy. Mr. Javaid arrived in New York on December 20, 2001. He asserts that his agent then refused to try to bring him to Canada, because of concerns regarding border security in the aftermath of the September 11th attacks. After being abandoned by his agent in New York, Mr. Javaid went to stay with the only person that he knew in North America, a person living in Alexandria, Virginia. After an eighteen day stay in the United States, Mr. Javaid travelled to Canada, where he immediately made his refugee claim.
The Decision of the Immigration and Refugee Board
[9] The Board considered Mr. Javaid's actions in waiting a year before leaving Pakistan after he says he was attacked physically, and had threats made on his life and that of his family. The Board concluded that this behaviour was indicative of a subjective lack of fear on Mr. Javaid's part. The Board found that Mr. Javaid could not provide a satisfactory explanation for his decision not to seek asylum during his stay in the United States. The Board was not satisfied with Mr. Javaid's explanation regarding his travel to Virginia, finding that his explanation for his decision to travel south from New York, and away from Canada was implausible, and inconsistent with a subjectively well-founded fear of persecution.
[10] The Board also found that Mr. Javaid's alleged subjective fear was not supported by the documentary evidence before the Board relating to conditions within Pakistan. Although the Board acknowledged that there was conflicting evidence with respect to the degree of state protection afforded to Shia Muslims, it found that the preponderance of the evidence demonstrated that there has been a significant improvement in the level of protection afforded to Shia victims of sectarian violence.
[11] The Board referred to the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Villafranca.(1992), 18 Imm. L.R. (2d) 130, where the Court held that no government can be expected to provide its citizens with perfect protection against terrorist activities. The Board found that the state protection available to Mr. Javaid in Pakistan, while not perfect, was adequate. The Board therefore concluded that there was no objective basis for Mr. Javaid's alleged subjective fear, and dismissed his claim.
Issues
[12] There are two issues raised in this application:
1) Did the Board err in finding that Mr. Javaid did not have a subjective fear of persecution?
and
2) Did the Board commit a reviewable error in finding that Mr. Javaid had not established an objectively well-founded fear of persecution by failing to properly assess the documentary evidence?
Did the Board err in finding that Mr. Javaid did not have a subjective fear of persecution?
[13] The Board's finding that Mr. Javaid did not have a subjective fear of persecution is a finding of fact, based upon the Board's assessment of Mr. Javaid's credibility and the plausibility of his story. The Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a consequence, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable. Pushpanathan v. Canada (M.C.I.), [1998] 1 S.C.R. 982, at paragraph 50; and Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)
[14] I am satisfied that Mr. Javaid has established that the Board's finding that he did not have a subjective fear of persecution, based as it was on his supposed delays seeking refugee protection, was patently unreasonable.
[15] The Board found that Mr. Javaid's decision not to leave Pakistan until a year after the first attack was inconsistent with a subjective fear on the part of Mr. Javaid. In coming to this conclusion, however, the Board failed to address Mr. Javaid's evidence that he fled with his family to Lahore in the wake of the first attack.
[16] Further, in finding that Mr. Javaid's 18 day stay in the United States demonstrated a subjective lack of fear on his part, the Board misconstrued the evidence, and failed to take into account the exceptional circumstances in which Mr. Javaid found himself after he was abandoned by his agent in New York.
[17] The Board states that Mr. Javaid claimed that it was "more convenient or much safer" to go to Alexandria before proceeding to Canada. A review of the record discloses that Mr. Javaid made no such claim. Mr. Javaid described the difficult situation in which he found himself as a foreign Muslim on his own in the United States in the post-September 11th environment. He explained that after he was abandoned by his agent, he went to stay with the one contact that he had in the United States, where he remained for a few days before proceeding to Canada on his own.
[18] However, in order to succeed, it is not enough for a refugee claimant to establish that he has a subjective fear of persecution in his home state. He must also demonstrate that this fear is objectively well founded. Canada (Attorney General v. Ward, [1993] 2 S.C.R. 89 Accordingly, it is also necessary to address the Board's findings with respect to whether there was an objective basis for Mr. Javaid's fear.
Did the Board commit a reviewable error in finding that Mr. Javaid had not established an objectively well-founded fear of persecution by failing to properly assess the documentary evidence?
[19] Mr. Javaid contends that the Board's finding that he failed to establish an objectively well-founded fear of persecution was vague and unclear, and relied upon a selective review of the documentary evidence. Mr. Javaid argues that the most recent credible, objective evidence regarding country conditions must be considered, and that the failure to do so is fatal to the Board's decision.
[20] Whether or not there is a reasonable possibility that a refugee claimant will be persecuted upon his return home is a pure question of fact. Yusuf v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No. 35 and Pushpanathan, supra.
[21] A review of the Board's decision discloses that the Board examined the documentary evidence relating to conditions within Pakistan in some detail, including recent evidence addressing the current situation in that country. As a consequence, the decision of this Court in Ali v. Canada (Minister of Citizenship and Immigration), (2003) FC 982, on which Mr. Javaid relies, may be distinguished.
[22] Recognizing that there was some evidence before it to the contrary, the Board found that the preponderance of objective and reliable documentary evidence strongly suggested that Pakistani authorities were making serious efforts to deal with sectarian violence, and that the SSP no longer operated with impunity in its attacks on Shias. As a result, state protection, albeit imperfect, was available to members of the Shia minority.
[23] The Board also considered Mr. Javaid's submissions with respect to the implications that the recent election of an SSP leader as a Member of Parliament could have for the future activities of the SSP, and concluded that these submissions were based on speculation. The Board is not required to accept an argument based on something that may or may not occur at some time in the future. Salim v. Canada (Minister of Citizenship and Immigration) 2002 FCT 864 and Shire v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 220.
[24] It is not the role of this Court to re-weigh all of the evidence that was before the Board on the issue of the availability of state protection. It is clear that the Board considered the competing evidence regarding the current situation in Pakistan. It is for the Board to decide the appropriate weight to be attributed to the evidence before it. Woldemeskel v. Canada (M.C.I.), [1996] F.C.J. No. 140 I see no basis for interfering with the Board's finding that there was no objective basis for Mr. Javaid's subjective fear of persecution.
[25] As a result, this application is dismissed.
Certification
[26] Neither party has suggested a question for certification, and accordingly none will be certified.
ORDER
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
OTTAWA
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040206
Docket: IMM-498-03
BETWEEN:
KHALID JAVAID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-498-03
STYLE OF CAUSE:
KHALID JAVAID v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: February 6, 2004
APPEARANCES:
SOLICITORS OF RECORD:
|
Robert I. Blanshay
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Department of Justice
Toronto, Ontario
|
FOR THE RESPONDENT
|
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