Date: 20071221
Docket: IMM-711-07
Citation: 2007 FC 1354
Ottawa, Ontario, December
21, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ZIA
UDDIN AHMED JILANI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Jilani is a Pakistani citizen and was an active member of the political
movement known by the acronym MQM-A. He arrived in Canada in January
of 1997 and claimed refugee status. That was denied in January 1998 by the
Refugee Determination Division but Mr. Jilani was granted a Temporary Resident
Permit. For reasons unrelated to these proceedings, the permit was not renewed
and an application was submitted for a Pre-removal Risk Assessment in March,
2006. Mr. Jilani seeks judicial review of the PRRA officer’s negative decision
dated January 3, 2007.
[2]
The
Refugee Determination Division concluded that Mr. Jilani was not a Convention
refugee because political conditions had changed in the aftermath of an
election in which the
MQM-A had gained considerable support and
had become part of the governing coalition. It also determined that he had an
internal flight alternative in one of the areas of Karachi, his own
city, where a large number of MQM-A supporters lived.
[3]
The
RDD did find Mr. Jilani’s testimony credible, that he had been persecuted for
his membership in the MQM-A and had been forced to live in what they termed
‘semi-hiding’. His father and an older brother, also active with MQM-A, died of
injuries suffered in jail in 1994. One of his brothers, another MQM-A member,
also sought refugee status in Canada, while his remaining siblings and mother
live in Karachi.
[4]
The
PRRA Officer found that the political situation in Sindh province and its
capital Karachi is
reasonably similar to that which existed in 1998. The MQM-A is aligned with the
governing party and is not specifically targeted by the security forces in
politically-motivated killings or harassment, although these do occur. She
found that there existed an internal flight alternative within the city of
Karachi, and that Mr. Jilani had not provided clear and convincing evidence to
rebut the presumption of state protection.
ISSUES:
[5]
The
issues in this case are whether the PRRA Officer erred in her analysis of the
existence of an IFA and in finding that state protection was available to the
applicant.
ANALYSIS:
[6]
In
Kim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No. 540, at paragraph 19, after applying the
pragmatic and functional approach, I summarized my conclusions as to the
standards of review of the decisions of PRRA officers as follows:
Combining and balancing all of
these factors, I conclude that in the judicial review of PRRA decisions the
appropriate standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness.
[7]
With
respect to questions
relating to state protection, in Chaves v. Canada (Minister of Citizenship
and Immigration), 2005 FC 193, [2005] F.C.J. No. 232, at paragraphs 9-11, Madam
Justice Danièle Tremblay-Lamer held, after canvassing the case law, that the
standard of review applicable is that of reasonableness simpliciter.
[8]
I
see no reason to apply different standards in the present proceedings.
[9]
Mr. Jilani’s refugee claim was heard
under the previous Immigration Act, and thus his present section 97
claim was not analyzed as part of that determination. The applicant contended
in his written submissions that the PRRA officer therefore erred in law by
relying on the decision of the RDD as a baseline and failing to conduct a
separate, in-depth analysis of his claim, as it was then, under section 97 of
the Immigration and Refugee Protection Act S.C. 2001, c. 27 in 2002. The
applicant cited O.N. v. Canada (Minister of Citizenship and Immigration), 2003 FCT 246, [2003] F.C.J. No. 322 for this
proposition.
[10]
The
case cited by the applicant is one of a
handful of decisions which were published in the period directly after the
enactment of the IRPA. The common factual basis of those cases was that the
applicants had provided evidence only on the issue of Convention refugee status
(under the old Act) but were being assessed under the new statute. It was held
in those circumstances that they should be allowed to request a new assessment
for which they could provide documentation for an assessment under section 97. These
decisions are clearly distinguishable from this situation, where Mr. Jilani had
provided materials for a section 97 assessment by the PRRA officer.
[11]
The officer’s analysis covered the
present risks under both sections 96 and 97. To criticize the PRRA
Officer for not carrying out a separate analysis under section 97 of IRPA of
the situation as of the time of the 1998 RDD decision would place form over
substance: Pannu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1666, [2004] F.C.J. No. 2024.
[12]
The applicant contends that the
PRRA Officer’s finding that Karachi is a suitable IFA is patently unreasonable. He
alleges that past persecution raises the presumption of future persecution. It
was in Karachi that Mr. Jilani’s persecution occurred and thus he argues that
it cannot be an ‘alternative’: Rasaratnam v. Canada
(Minister of Employment and Immigration) (C.A.), [1992] 1 F.C. 706, [1991] F.C.J. No. 1256.
[13]
This is an argument without merit
in my view. Karachi is a very large city with many districts and the
evidence clearly establishes that MQM-A has strongholds within a number of
those districts in which members of the organization live and work safely. The
concept of an internal flight alternative does not require that the safe haven
be in another city or province of the state of origin so long as it is truly an
area in which the applicant can seek refuge from the persecution experienced in
his home district.
[14]
The applicant further submits that
the officer’s finding that state protection was available because MQM-A was now
aligned with the ruling party is an error of law. He notes that this Court has
held repeatedly that it is a reviewable error to equate willingness to protect
with the ability to protect: Avila v. Canada (Minister of
Citizenship and Immigration), 2006 FC
359, [2006] F.C.J. No. 439. He asserts that the government is not monolithic,
and that members of MQM-A have continued to be subject to violence, torture and
murder since their inclusion in the coalition.
[15]
The officer noted that the
documentary evidence provided by the applicant dealt primarily with the period
of time from 2001 to 2003 when Pakistani security forces systemically committed
serious human rights abuses against members of political opposition parties
including the MQM-A. The officer recognized that there continued to be violence
perpetrated by security forces but concluded that it was not specifically aimed
at MQM-A members. That conclusion is borne out by the documentary evidence to
which my attention was drawn during the hearing. The evidence indicates that
MQM-A has become successfully integrated into the political life of the country.
The practical effect of this is that the movement has control of some of the
levers of power including influence over the security forces at the local and
state levels. What remained of concern were sporadic incidents not unique to MQM-A
and not comparable to the earlier situation in 2001-2002. Active steps had been
taken to lower the level of violence. Thus there is both willingness and
ability to protect, particularly in those districts which MQM-A controls. The
officer’s conclusion that state protection is available to the applicant was
reasonable and based upon the evidence.
[16]
The applicant’s arguments appear essentially to be a
general objection about the officer’s weighing of the evidence about state
protection. This Court has determined that it is an untenable position to
require that a country be able to guarantee effective protection to all its
citizens at all times. The correct legal test is that the applicant must show
that he faces more than a mere possibility of risk in Pakistan: Alfaro
v. Canada (Minister of Citizenship and Immigration), 2005 FC 92, [2005] F.C.J. No. 97. Mr. Jilani has
failed to do this.
[17]
Mr. Jilani did suffer serious
persecution in Karachi in the early 1990s, and, as noted by the RDD in its
decision almost ten years ago, his reluctance to return to the place in which
he suffered so badly is understandable. That fact notwithstanding, the applicant
has not shown that the PRRA officer’s decision applied an incorrect legal test
or was unreasonable in its outcome.
[18]
I therefore dismiss the
application. The parties proposed no serious questions of general application.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application is dismissed. No certified questions are proposed.
“Richard
G. Mosley”
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