Date: 20100226
Docket: IMM-4500-09
Citation:
2010 FC 229
Ottawa, Ontario, February 26, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
BASHARAT-UL-ZAM
MALIK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION CANADA
Respondent
REASONS FOR
ORDER AND ORDER
[1]
Mr.
Malik seeks judicial review of the decision of the Refugee Protection Division
of the Immigration and Refugee Board (RPD) who denied his claim as a convention
refugee or person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27 (the Act) because he
had an internal flight alternative (IFA) in Pakistan.
[2]
Mr.
Malik, a citizen of Pakistan, arrived in Canada on October
2, 2007 with a false passport and Canadian visa. He filed his claim for refugee
protection the next day. His claim is based on an alleged fear of persecution
due to his religion (Shi’a). The applicant testified that he had been
physically assaulted and had received threats from a local religious cleric
(Moulvi Fazal Din) who later filed a false charge of blasphemy against him, a
crime punishable by not more than three (3) years in jail or a fine or both, and who
issued a fatwa against him. Also, as a result of the aforementioned false
charge, a warrant of arrest was issued by the local Court and directed to the
local police where the cleric had sympathizers. The applicant testified that he
fears the local police and the Sipah-e-Sahaba Pakistan (SSP), a now outlawed
organization that is still a powerful underground group with a large membership
including Moulvi Fazal Din (a local leader). It is also worth noting that Mr.
Malik has a large family in Pakistan, including his wife and
children. They are all Shi’a and live in the same area as the applicant did.
They have not been persecuted because, contrary to the applicant, they were not
actively involved in organizing religious gatherings.
[3]
The
RPD found the applicant to be credible and accepted the central elements of his
story. However, it concluded that although the evidence indicates that state
protection is not available to Mr. Malik in his village or in his district and
would not likely be available if he returned there, the applicant had not
demonstrated that he could not move to, and live in, a large city within Pakistan
such as Karachi where there would be no serious possibility of persecution.
[4]
Mr.
Malik does not allege that the RPD made an error in the legal test it applied
to determine if an IFA was available to him. Rather, he argues that the decision
maker erred in its factual findings and that it based its conclusion on
unreasonable inferences which vitiates the whole decision.
[5]
It
is well settled, and the parties are agreed, that in respect of such issues,
the Court should apply the standard of reasonableness: Rueda c. Canada (Ministre de
la Citoyenneté et de l’Immigration), 2009 CF 828, [2009]
A.C.F. no 937 (QL) at paragraph 58.
[6]
This
standard requires the Court to inquire into the qualities of the decision and
to be concerned with the existence of justification, intelligibility and
transparency in the decision making process. The Court must also determine
whether the decision falls within a range of possible acceptable outcomes: Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1 at paragraph 47.
[7]
I
shall deal first with the alleged error in respect of the applicant’s fear of
the SSP throughout Pakistan. The RPD’s finding that there was a lack of
state protection in the applicant’s village was derived from the applicant’s
evidence and testimony, not documentary evidence. The applicant has not pointed
to any critical piece of information from the documentary evidence that would
call into question the RPD’s finding that: “[a]lthough SSP exists throughout
the country, I am not persuaded that its members in Karachi would be on the
lookout for a small rural landlord from the Punjab, against whom a relatively
minor Sunni extremist, alleged to be an SSP member, had issued a fatwa […]”.
[8]
Furthermore,
the RPD is presumed to have examined all of the evidence and need not mention
and discuss every such document. To the extent that the documentary evidence
explains that the SPP still operated throughout Pakistan, certainly
the RPD acknowledged this in the above mentioned passage.
[9]
The
parties are agreed that there are about 5,000 fatwa posted online every day in Pakistan, this is in
addition to those that are only publicized locally. The applicant testified
that the fatwa in this case was only publicized locally through announcements
on the public address system from the cleric’s madressa (his school), through
local posters and by marking the door of his house with a cross.
[10]
The
applicant also says that the RPD failed to give proper weight to the danger
that comes with the issuing of a fatwa and points to documentary evidence
discussing their deadly effect. However, the documentary evidence also clearly indicates
that the weight of a fatwa depends on the stature of the person making it. It
is exactly on that basis that the RPD chose not to give much weight to the
danger posed in Karachi by the fatwa issued by the local cleric. I am not
convinced that this finding was unreasonable.
[11]
Mr.
Malik also argues that the RPD failed to consider that he would have to use his
national identity card (NIC) on many occasions if he lived in Karachi and that
this would make it easy for the Karachi police to discover the existence of the
outstanding warrant and to alert his persecutors – which include the local
police in his district – to his presence in Karachi. He also says that the RPD
based its conclusion on an unwarranted assumption that the local police records
(FIR and warrants) which are issued manually are not thereafter included in a
computerized system that would make it easy for the local police to provide
information about him.
[12]
It
is evident that the RPD found that there was insufficient evidence to
objectively conclude that the subjective fear of the applicant of being
investigated by the Karachi police was well founded. Mr. Malik testified
that he fears being investigated by the Karachi police who would likely suspect
him of being a member of the SSP and/or a terrorist upon noting that the
permanent address on his NIC is in Punjab. In that respect, the
RPD noted that “[n]o evidence was adduced to suggest that the Karachi police would
have such suspicions [that he is a major criminal or suspected terrorist] beyond
the statement that the claimant is Punjabi. Given the fact that the large
majority of Punjabis are not active terrorists or major criminals, I find it
implausible that the mere fact of being from Punjab would be of significant
concern to Karachi police.”
[13]
As
mentioned by the RPD, Karachi is a major metropolis with a population of
several million people – although the applicant’s counsel said that he had no
idea how large the city was, it is easy to ascertain that it is in fact, one of
the largest, if not the largest, cities in the world. It is in that context
that the RPD noted that:
Given the manual hand written system of
lodging complaints and warrants in Pakistan and the over 170,000,000 citizens,
it was implausible that the police in Karachi would expend much effort getting
local village police in the Punjab to manually go through their files to
see if there was any information on the claimant unless the said Karachi police
had suspicions that the claimant was a major criminal or suspected terrorist.
[Emphasis added.]
[14]
Much
was said at the hearing about the use of the word “manually” in the last
sentence referred to above. The Court cannot agree that this word has the
significant impact attributed to it by the applicant. In my view, the finding
that it was implausible that the police in Karachi would expend much effort
getting local village police in Punjab to provide them with information about
the claimant, was implausible for reasons explained above, whether the local
search was done by hand or on a local computer system (also a rather big
assumption considering the information available as to how the system works and
the fact that when the national card system was computerized, this fact was
documented in the binder on Pakistan used by the RPD). In his testimony, Mr.
Malik only said that the Karachi police could call or
fax the local police. He did not know about computer systems used by the
police.
[15]
Like
the RPD, the Court cannot simply assume, as suggested by the applicant’s
counsel, that there exists a level of police cooperation and computerization of
police information such that there is a serious possibility that this
particular applicant would be apprehended in Karachi and sent back to his
village or that the local police would come to Karachi to arrest him themselves.
There is simply no evidence in that respect. The Court notes that in Navarro
v. Canada (Minister of Citizenship and Immigration), 2008 FC 358, 169
A.C.W.S. (3d) 626, [2008] F.C.J. No. 463 (QL) Justice Yves de Montigny noted at
paragraph 21 that in Mexico (where there are several cities which have over one
million inhabitants) there is very little coordination between Mexican police
forces and that the applicant had done no more than make vague allusions to the
risk of being found which arose from the computerization of data in a modern
country without providing any actual concrete evidence.
[16]
The
applicant had been advised well in advance of the hearing that the existence of
an IFA was an issue in his case. This was again reiterated at the beginning of
the hearing. He presented no documentary evidence (nor did he seek permission
to do so later) to support his subjective fear of being investigated and sent
back to his village from anywhere in Pakistan. The applicant did not
even say, during his testimony, that the police forces are known to cooperate
in similar circumstances or to have good computer systems that enable them to
execute warrants for what appears to be a relatively minor offence throughout
Pakistan. In the circumstances, the Court can find no reviewable error in this
finding.
[17]
Finally,
the applicant, in his written submissions (not raised during the hearing), states
that the RPD erred in comparing Karachi to Montreal and in reaching the
conclusion that because the applicant was willing to relocate to Montreal it
was not unreasonable to expect that he could relocate in another large city in
Pakistan. In that respect, it was noted that his large family is well-off and
would be in a position to provide financial support were he to relocate to Karachi or another
large urban centre.
[18]
While
there is no doubt that there are many significant differences between Montreal
and Karachi, the Court
is not satisfied that the RPD made an unreasonable inference that if the
applicant had the ability to voluntarily relocate to a large city halfway
around the world, he must at least have the same ability to relocate within Pakistan.
[19]
In
conclusion, the decision is brief but cogent. The conclusion reached was within
the possible acceptable outcomes based on the evidence before the RPD.
[20]
The
application is dismissed.
[21]
The
parties did not seek certification of any question and the Court finds that
this case turns on its own facts.
ORDER
THIS COURT
ORDERS that:
[1]
The
application is dismissed.
Judge
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