Date: 20050720
Docket: IMM-7110-04
Citation: 2005 FC 1006
Toronto, Ontario, July 20, 2005
PRESENT:Â Â Â Â THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
NAJEEB SARWAR
Applicant
and
THE MINISTER of CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act), against a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated July 20, 2004, wherein the Board determined that the Applicant was not a Convention refugee or a person in needs of protection pursuant to section 96 and 97 of the Act.
ISSUE
[2] Did the Board commit an unreasonable error by concluding that state protection would be available to the Applicant if he was to return to Pakistan?
[3] For the following reasons, I must answer the above question in a negative manner. Therefore, the application for judicial review will be dismissed.Â
[4] The Applicant is a citizen of Pakistan born into a Sunni Muslim family in Punjab on August 3, 1968. The Applicant claims a well-founded fear of persecution based upon his religious opinion. He also claims to be a person in need of protection based upon a risk to his life or of cruel and unusual treatment or punishment should he returned to Pakistan.Â
CONTESTED DECISION
[5] The Board decided that there was adequate state protection should he return to Pakistan. The Board based its conclusion on the decision in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), which held, at pp. 132-133, that state protection need not to be perfect for it to be considered adequate. In this regard, the Board cited the following passage:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration), a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[6] The Board was satisfied that the changes put forward by President Musharraf in Pakistan were implemented to improve the situation for both Muslim sects. The initiative to get rid of the sectarian violence is consistent. In this regard, the Board pointed to the fact that the state of Pakistan is in control of its territories and that it has in place structures to provide citizens protection under the rule of law. There is no doubt that the task of totally controlling religious violence is a difficult one. However, the Board was of the opinion that President Musharraf is serious about achieving his goals and that the fact that sectarian violence still exists is not sufficient to conclude that the Applicant could not obtain state protection if he were to return in his country.
ANALYSIS
Applicant's submissions
[7] The Applicant submits that the Board's finding that adequate state protection in Pakistan exists for him is based on evidence that was clearly contradictory and inconclusive in nature. In addition, he argues that the Board's assessment of the issue of state protection was based on a selective and self-serving review of the documentary evidence. To support his allegations, the Applicant cites numerous passages from the documentary evidence demonstrating that sectarian violence is still a problem in Pakistan and that the efforts put forward by the President are not effective.
Respondent’s submissions
[8] The Respondent submits that the Applicant failed to identify a reviewable error upon which the application for judicial review should be granted. Rather, in the Respondent's view, the Applicant is asking the Court to re-weigh the evidence.  The disagreement with the manner in which the Board weighed the evidence does not warrant a legal basis for the Court to intervene.
State protection
[9] The principle of state protection was discussed at length by the Supreme Court of Canada in Canada (General Attorney ) v. Ward, [1993] 2 S.C.R. 689. It was confirmed that international refugee law was created to serve as a back-up to the protection from the state of which an individual is a national. Refugee law can only be used when an individual's country is unable to provide him or her with some protection, and then only in certain situations. The international community intended that persecuted individuals first approach their home state for protection before they can ask protection from other states (Ward, supra, at para.18).
[10] It is incumbent upon the claimant to prove a well-founded fear of persecution in his or her country.  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 his fear is objectively well-founded. It is at this stage that the state's inability to protect should be considered. The onus rests on the Applicant to provide "clear and convincing" evidence of the state's inability to protect him.  If a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded (Ward, supra, at para. 25). Therefore, if state protection exists, there should be no reason why the claimant would be unable or unwilling to avail himself of this protection.
[11] In the recent decision of Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, the divergence on the appropriate standard of review regarding state protection was considered by Justice Tremblay-Lamer. After an analysis of the pragmatic and functional approach as establish in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, it was held that the appropriate standard of review when dealing with state protection is reasonableness simpliciter. Here is the analysis made by Justice Tremblay-Lamer in Chaves, supra, at para. 9 to 11:
The Standard of Review
The four contextual factors comprising the pragmatic and functional approach, which potentially overlap, are: "the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing Court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question - law, fact, or mixed law and fact" (Dr. Q, supra at para. 26).
Turning to the first of those factors, decisions of the Board are not protected by a strong privative clause (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982). The second and third factors, however, militate in favour of curial deference. Whether state protection is available, or whether the claimant has sought that protection, engages the relative expertise of the RPD. And though the provision in question in effect requires a determination of the rights of individuals claiming refugee status, the legislation gives substantial discretion to the RPD.
However, the nature of the question is key in this application and also brings into play relative expertise. Deciding whether a particular claimant has rebutted the presumption of state protection involves "applying a legal standard [i.e. "clear and convincing confirmation of a state's inability to protect": Ward, supra, at para. 50] to a set of facts", which according to the Supreme Court constitutes a question of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 26. The RPD has relative expertise with respect to the findings of fact and assessing country conditions. However, the Court has relative expertise with respect to whether the legal standard was met. Accordingly, the appropriate standard of review is in my view reasonableness simpliciter. This is consistent with the rulings characterizing the issue of state protection as a question of mixed fact and law: Smith, supra and Racz, supra.
[12] The standard of reasonableness simpliciter was first identified by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748. At para. 56 of that decision, Iacobucci J. held:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it (Southam, supra at para. 56).
[13] Iacobucci J. gave further guidance as to how apply that particular standard in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 47:
The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" This is the question that must be asked every time the pragmatic and functional approach in Pushpanathan, supra, directs reasonableness as the standard. Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter. Of course, the answer to the question must bear careful relation to the context of the decision, but the question itself remains constant.
[14] In the case at hand, the Applicant alleges that the Board misinterpreted the evidence and the facts before it, leading it to an unreasonable finding of adequate state protection. In reviewing the Board's line of analysis, the Board took into consideration the fact that sectarian violence still persists in Pakistan. It also acknowledged the fact that the results of state protection, as illustrated by the documentary evidence, are mixed. However, after having weighed the evidence, the Board concluded on a balance of probabilities that the government of Pakistan can provide protection to the Applicant.
[15] The evidence demonstrates that numerous reforms were implemented by President Musharraf since he took over the Pakistani government in the fall of 1999. These measures have been effective even though they have not provided perfect protection. In reaching its decision, the Board considered the durability and the effectiveness of the various measures put in place to curb sectarian violence, for example:
(1) extremist religious groups, such as the S.S.P, have been banned;
(2) better training is offered for police officers;
(3) investigations are conducted;
(4) arrests and convictions are made;Â
(5) increased security is provided during religious festivities; and
(6) revisions to the Court system to create anti-terrorism courts including Sessions Court
Judge, magistrate and a military officer.
[16] The Board further concluded that these measures would likely continue, since President Musharraf was recently elected for another five years and that he is serious about enforcing measures designed to improve the situation for both Muslim sects. The Board summarized its conclusion as follow:Â
The results are mixed, however, I am satisfied that, on a balance of probabilities, the government of Pakistan has been making serious efforts to curb religious violence. Proactive steps are taken when there is knowledge of an attack. No longer do sectarian attacks occur without a serious investigation, without charges, and without convictions where the evidence supports such conviction (p. 12 of the Board's reasons for decision. Applicant's Record, p. 18).
[17] The onus rests on the Applicant to demonstrate the state's inability to offer him protection. In the case at hand, the Applicant testified that he did not receive any protection from the police as he was unable to identify his assailants. However, the Applicant indicated that he did not push further his requests for help despite the fact that numerous mechanisms are now in place to curb sectarian violence.
[18] The Court is satisfied that the Board considered all of the evidence adduced before it and that its reasons are sufficient to support its findings.  It is true that evidence exists which supports the fact that sectarian violence is still present; however, evidence also exists which clearly demonstrates that the measures implemented by the government are effective and durable. It is within the Board's jurisdiction to weigh the evidence adduced before it. Since no unreasonable error can be found in the Board's reasoning, this Court's intervention is not warranted.
[19] The parties had the opportunity to submit question of general importance. They decline to do so, and no such questions arise.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed and no question is certified.
“Michel Beaudry�
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