Date: 20110311
Docket: IMM-3209-10
Citation: 2011 FC 300
Toronto, Ontario, March
11, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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HAM YOON
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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 ORDER AND ORDER
[1]
Although the claimant, a citizen of Pakistan, who lived in the Swat
District in the North West Frontier Province, had a credible risk of
persecution and was found to be at risk of cruel or unusual punishment and of
torture where he lived, his claim for refugee status and international
protection was dismissed on the grounds that he had a viable internal flight
alternative, Karachi. This is a judicial review of that decision.
[2]
Matters turned for the worse in Swat with the rise of TSMN
(Tehrik-i-Nafaz-i-Shariat-e-Mohammadi) in the 1990s. By 2002, local mullahs
began enforcing Islamic law (Sharia) by attacking video and music stores and
denouncing the participation of women in society.
[3]
Mr. Yoon, a school teacher, held a press conference in 2007 to protest
the actions of the mullahs in his area. He was threatened on a number of
occasions. Armed men attacked his home when he was not present and stated that
they would kill him when he was found. He fled to Canada.
[4]
The country conditions in the National Documentation Package indicate
clearly that since the incidents described, Islamic fanatics have been routed
from towns, villages and main transportation routes in Swat. However, some
surviving fanatics remain and so the member found there was more than a mere
possibility that he would be at risk were he to return to his village in Swat.
[5]
The member acknowledged that extremist Islamists existed in all parts of
the country but found there was no objective evidence to support the
proposition that the TSMN, which was not nor had ever been an national
organization with national reach, was privy to a sophisticated level of
command, control and communication which could put Mr. Yoon at risk in Karachi.
[6]
Furthermore, no First Information Report or arrest warrant was ever
issued against him and there is no evidence that the police in the Swat valley
villages are under the sway of militants now.
[7]
The concept of a viable internal flight alternative is inherent in the
determination of whether a person is a refugee or in need of protection. The
burden rests with the applicant (Rasaratnam v Canada
(Minister of Employment and Immigration), [1992] 1
FC 706 (FCA); Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FC 589 (FCA)).
[8]
It was reasonably open for the member to determine that Mr. Yoon was not
a convention refugee and not a person in need of Canada’s protection in
accordance with the standard of review set forth in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47:
Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
ORDER
THIS COURT ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There is
no serious question of general importance to certify.
“Sean Harrington”
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