Docket: IMM-4996-11
Citation: 2012 FC 724
Ottawa, Ontario, June 8,
2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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NADIR SALEEM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant Nadir Saleem seeks judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (hereafter IRPA) of the decision
of the Immigration and Refugee Board, Refugee Protection Division (hereafter
the Board) which found that he was not a Convention refugee or a person in need
of protection.
[2]
For
the reasons that follow, the application is granted.
BACKGROUND:
[3]
The
applicant is a citizen of Pakistan from the city of
Sialkot in the Province of Punjab. He met a young woman
through his sister and began a relationship with her which led to a marriage
proposal contrary to her parent’s wishes. The couple fled to the city of Mardan and took
refuge with the family of a friend. They were married in October 2007. Charges
of abduction and rape were filed against the applicant on the complaint of his
wife’s parents. He fled to Canada and sought protection. In August 2008 his
wife gave birth to a son. The wife and son continue to live in Mardan with the
friend’s family.
DECISION UNDER REVIEW:
[4]
The
Board found the applicant’s claim to be largely credible and supported by the
evidence. This included the First Information Report (FIR), arrest warrant,
marriage certificate, emails from the wife, son’s birth certificate, national
identification card and passport among other items.
[5]
The
Board found that the applicant had Internal Flight Alternatives (hereafter IFA)
in the cities of Multan and Mardan. Both cities
are more than 400 km from Sialkot and have large
populations. The Board found that the applicant’s in-laws would not be able to
find him and his wife in one of those cities and did not, in any event, appear
to be actively looking for him outside Sialkot. The Board
considered that it would be easy for the applicant to relocate as he had a
bachelors degree from Pakistan and had completed most of his MBA in the United
States.
ISSUE:
[6]
The
sole issue is whether the Board’s IFA finding was reasonable.
ANALYSIS:
Standard of review
[7]
An
IFA finding is a question of mixed fact and law attracting a standard of
reasonableness: Soto v Canada (Minister of
Citizenship and Immigration), 2011 FC 360 at para 19; and Guerilus v
Canada (Minister of
Citizenship and Immigration), 2010 FC 394 at para 10. Reasonableness is
based on the existence of justification, transparency and intelligibility
within the decision-making process and whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; and Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59.
Was the IFA finding
reasonable?
[8]
The
test to establish that it is unreasonable for the applicant to relocate to a
proposed IFA is strict. The applicant had to demonstrate on a balance of
probabilities that he would face a serious risk of persecution in the proposed
IFAs. If the Board is not satisfied that such risk exists, the applicant had to
demonstrate that it would be unreasonable for him to move to the proposed IFA:
Ranganathan v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 2118 (FCA).
[9]
The
applicant submits, among other arguments, that the Board erred in its finding
that the in-laws and the police were not actively looking for the applicant and
his wife outside of Sialkot. He contends that the
Board failed to consider the fact that he is subject to a warrant and that it
was unreasonable for the Board to suggest that he can simply face the charges
in Pakistan because he has a
“reasonable” chance of getting them dismissed. The Board’s finding, he submits,
goes against the evidence that the police and the lower courts are corrupt, and
the evidence of violence against couples who get married against their parent’s
wishes.
[10]
It
was open to the Board to find, as it did, that the in-laws and police could
have found where the wife was living through her National Identification Card,
which includes the residence address, as the record indicates that it was used
in the issuance of the son’s birth certificate. It was mere speculation,
however, to also conclude that the police and in-laws could have located her
through the friend who offered shelter in Mardan as the evidence does not indicate
that the friend was known to her family or the police. Moreover, the wife was
not subject to the arrest warrant and the fact that she was able to live in
Mardan, albeit discretely, for four years should not have been used to
demonstrate that the applicant would not have been arrested had he returned to
that city.
[11]
As
noted by the Board, Pakistan experiences a high
number of honour crimes committed against couples who marry in defiance of
parents. The evidence also indicates that the police allow themselves to be
used as guardians of public morality to uphold tradition and culture. It was
unreasonable, in the circumstances, to suggest that the applicant live in
hiding in the propose IFA: Abdeen v Canada (Minister of Employment
and Immigration),
[1994] FCJ No 779.
[12]
The
Board relied on a research report to find that frivolous FIRs are often
dismissed by the Pakistani courts. However, the Board failed to consider the
effect of the arrest warrants. It assumed, without evidence, that the fact that
FIRs are not accessible through a computerized system indicated that there is
no computerized system to access warrants.
[13]
The
evidence describes FIRs as: “written reports prepared by police in response
to the report of an event or criminal incident brought to their attention. FIRs
are a record of the initial information that is provided by a complainant to
the police”.
Warrants, on the other hand, are formal orders for the arrest of the suspect
issued by a magistrate and, under section 83 of the Pakistani Code of
Criminal Procedure, can be executed outside of the local territorial
jurisdiction of the magistrate and police. There is no indication in the
evidence that warrants are not accessible through electronic or other means in
other parts of Pakistan.
[14]
The Board accepted that
many lower courts in Pakistan are corrupt. That
finding was supported by the objective country documentation. It was,
therefore, contradictory for it to suggest that the applicant could return to
face his accusers in Pakistan on the strength of an
assumption that he would have a reasonable chance of success in defending
himself against the charges. If arrested, the applicant would have been tried
in Sialkot where his in-laws,
according to the evidence accepted by the Board, appear to carry considerable
influence. The evidence indicates that there also is a considerable backlog in
the judicial system. This could result in serious consequences such as
indeterminate pre-trial detention: Chowdhury v Canada (Minister of
Citizenship and Immigration), 2008 FC 290 at para 16.
[15]
With
these concerns, I am not satisfied that the Board’s decision is defensible on
the facts and the law or that it falls within the acceptable range of outcomes.
[16]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is granted and
the matter remitted to the Refugee Protection Division for reconsideration. No
questions are certified.
“Richard
G. Mosley”
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