Date: 20070924
Docket: IMM-4603-06
Citation: 2007
FC 954
Ottawa, Ontario, September 24, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
NADEEM
KHALID RAMAY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the RPD or the Board) dated July
19, 2006, wherein the applicant was found not to be a “Convention refugee” or a
“person in need of protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
[2]
The
applicant, Nadeem Khalid Ramay, is a citizen of Pakistan who has claimed
refugee protection on the basis that as a Shia Muslim he was, in the past,
persecuted by fundamentalist Sunni Muslims, in particular the Sepah-e-Sahaba
(the SSP), and the police. He fears the same agents of persecution were he to
return to Pakistan at present. The applicant
fled Pakistan and arrived in the United States of America on August 20, 1996. Although
he remained in that country for approximately six and a half years, he did not
make a claim for refugee protection. The applicant arrived in Canada from the U.S. on January 25, 2003, and subsequently
made a refugee claim.
[3]
The RPD accepted
that the applicant was a citizen of Pakistan
and a Shia Muslim but dismissed the claim primarily on the grounds that he was
not credible and that adequate state protection is available to the applicant.
Specifically, the RPD found that the evidence adduced by the applicant was
fraught with contradictions, omissions and implausibility that seriously
undermine the credibility of the applicant as a trustworthy witness. The RPD’s
reasons, in part, note the following:
·
The
applicant stated at the Port of Entry (POE) interview that the SSP was the only
agent of persecution. When the Board questioned him as to the fact that his Personal
Information Form (PIF) and oral testimony also mention the police as agents of
persecution, the RPD found the applicant was unable to provide a consistent or
satisfactory explanation. Initially the applicant stated the difference was
caused by his lack of an interpreter at the POE interview, but when his attention
was drawn to the interview record which clearly indicated the POE interview was
conducted with the assistance of an interpreter, the applicant changed his
explanation by stating there were difficulties with the interpretation
process. The Board was not persuaded that a significant omission of evidence
concerning an important agent of persecution, namely the police, who allegedly
detained and tortured the applicant on three occasions, could reasonably be
attributed to a mere error in nuance or a misinterpretation of the meaning of
words or terminology.
·
In his PIF
narrative and oral testimony, the applicant stated that on three occasions, in
1994 and 1996, he was detained and tortured by the police. At his POE
interview he mentioned only that he was beaten up by the SSP in 1992. When
asked for an explanation for the discrepancies in the timeframe, the applicant
stated that he was not beaten by the SSP in 1992, but rather in 1995. The
applicant again blamed this error on interpretation problems.
·
When the
applicant was questioned concerning whether he had ever been detained or put in
jail, he failed to mention any of the three alleged detentions by police in
1994 to 1996, although he did state that he had been detained by a Citizenship
and Immigration Canada official at the Peace Bridge. When questioned on these significant
omissions, the applicant did not offer what the Board found to be a
satisfactory explanation. Instead, the applicant blamed his interpreter.
·
The
applicant stated that he was targeted by the SSP for engaging in voluntary
activities that, in his own words, are performed by many active members in the
Shia faith. The Board, nevertheless, found he was unable to explain what
distinguished him from the over 20 million other Shias who carry out such
voluntary activities and continue to live in Pakistan.
·
The RPD
found the applicant’s evidence concerning the well-foundedness of his
subjective fear to raise serious credibility concerns. For example, the
applicant indicated that after being tortured by the police he went into hiding
in Rawalpindi for ten days, during which
time he did not encounter any problems. The applicant stated he left
Rawalpindi because he could not afford to live in a hotel; however, the RPD
noted that the applicant had been able to pay for an air ticket and a
smuggler’s fee to enter the United
States.
·
Likewise,
the Board drew an adverse inference from the fact that the applicant did not
seek refugee protection in the U.S. during the entire time he
lived there. When asked why he did not seek protection sooner, the applicant
stated he consulted a lawyer by a toll-free telephone and was advised that he
should have applied upon his arrival. The RPD found the applicant’s
explanation that he did not have sufficient funds to hire a lawyer not to be
credible given the evidence before the Board that he was employed the very
month that he arrived in the United
States.
·
Finally,
the Board did not believe the applicant’s assertion that he did not claim
protection in the U.S. due to his fear, post-9/11, that he would be deported
since the evidence clearly demonstrated he remained in the United States for
fifteen months after September 11, 2001.
[4]
The
applicant now challenges the RPD’s findings on a number of grounds. The
applicant contends the Board erred in its assessment of his credibility and
finding of lack of subjective fear. The applicant also submits the respondent
breached its duty of procedural fairness by failing to provide an adequate
interpreter to the applicant at the refugee claim intake interview. He further
submits that the Board erred when it determined there is adequate state
protection in Pakistan. Finally, the applicant
asserts the Board failed to adequately address his risks under section 97 of
the IRPA and that a separate analysis should have been conducted in this case.
[5]
All those reproaches
are unfounded in my opinion.
Conclusion of the Board not patently unreasonable
[6]
The
applicant contends that the Board misconstrued material facts and documentary evidence
which demonstrates that not only prominent Shias are targeted by the SSP, since
it appears that many of the victims in 2003 were Shia professionals – doctors
and lawyers – who were not politically active or involved with sectarian
groups.
[7]
The
applicant submits that the Board made a reviewable error in dismissing the
police report and personal medical evidence which corroborates the applicant’s
assertion of past persecution and personal risk.
[8]
The
applicant also states the Board erred by relying on the applicant’s POE
interview, since the applicant did not have an interpreter fluent in his
language and there were problems in interpretation. Further, the applicant submits
that the notes from the POE interview were never read back to the applicant to
verify their accuracy. The applicant asserts that POE notes typically do not
contain the same amount of detail as the PIF. Accordingly, the Board erred
when it drew a negative inference from the discrepancies between the applicant’s
POE notes and his PIF.
[9]
The
applicant also alleges that the RPD erred when it determined the applicant’s
failure to make a refugee claim in the U.S. indicates of a lack of subjective fear.
According to the applicant, the Board ignored the evidence that he consulted
legal services after residing in the U.S. for approximately 1 ½ months, only to
be told that he should have made his claim within 24 hours of his arrival in
that country. Moreover, the applicant states the Board failed to consider the
evidence before it which showed that the applicant did not have funds to retain
a lawyer and that, fearing deportation, he did not approach the authorities
directly.
[10]
Having
read the entirety of the RPD’s decision, I find the Board’s conclusion not
patently unreasonable. In my opinion, the RPD’s reasons
clearly set out the findings of fact and the principle evidence upon which
those findings were based. I am not persuaded that the Board ignored or arbitrarily
discarded relevant documentary evidence, or made erroneous findings of fact in a
perverse or capricious manner without regard to the evidence before it.
[11]
The RPD’s
credibility findings are subject to the most deferential standard of review. This
Court should be reluctant to set aside such decisions of the Board as they are
at the heart of the specialized jurisdiction of the Board as the trier of fact,
unless the overall finding made by the Board is shown to be patently
unreasonable. This is clearly not the case here.
[12]
According
to the jurisprudence, the Board is entitled to compare POE notes with an
applicant’s PIF and oral testimony and to draw adverse inference regarding
credibility based on inconsistencies and discrepancies (Zaloshnja v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 272, at para.
6, 2003 FCT 206). This Court has also held that a negative inference may be
drawn based on an inconsistent statement made to an immigration officer, if the
statement concerns an essential point of the claim and if the explanation for
the inconsistency is not found by the RPD to be reasonable: Neame v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 378 (Q.L.),
at para. 20. Accordingly, it was not patently unreasonable for the Board to
find the applicant’s explanation (that the discrepancies were a result of poor
translation) to be unsatisfactory given that there were significant omissions
of key incidents, and not merely a problem in interpreting the nuances of a
specific word or phrase.
[13]
The Board did
not act in an unreasonable manner in drawing a negative inference from the
applicant’s delay of six and a half years in claiming refugee status. The
respondent’s counsel asserts that delay is an important factor in the
assessment of the veracity of a refugee claim and that it is reasonable for the
Board to expect a person fleeing persecution to claim refugee protection at the
first possible opportunity. I agree with counsel and I defer to the reasoning of
Justice Pinard, in Gamassi v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1841 (QL) at para. 6, where
it was determined that a delay of two and a half years may be indicative of a
lack of subjective fear. In this case, the delay is nearly seven years.
[14]
Finally, given the applicant’s “overall lack of credibility”, it was
not patently unreasonable for the Board to place little or no weight on the
various documents presented by the applicant, including the police report and
the medical evidence (Sheikh v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 238 (F.C.A.)).
No breach of procedure fairness
[15]
The
applicant further alleges that procedural fairness requires an interviewing
officer who provides an interpreter to ensure that the interpreter has the
ability to converse fully and accurately with the applicant in the applicant’s mother
tongue. The applicant asserts that he should have been counselled regarding
his right to switch interpreters if he felt the interpreter was not accurately communicating
what he was saying or if, because of dialect differences, there was a risk that
the applicant’s responses were not being fully communicated to the immigration
officer. Finally, the applicant states that he was denied procedural fairness
as part of the in-take interview was conducted by the interpreter.
[16]
In this instance, I am not convinced that the
omission at the POE interview of three significant allegations of torture at
the hands of the police was a result of an error in translation.
[17]
I find it reasonable to
expect the applicant, who has a working-knowledge of English, and who could
understand the question put to him by the immigration officer and respond appropriately,
to recognize if major and significant interpretation errors were being made at
the POE interview. Further, in my view, it is incumbent on the applicant to object
to any such errors forthwith. At the very least, when the intake officer expressly asked the
applicant if he had any difficulty understanding the interpreter, the onus was
on the applicant to verbalize his concerns at that time.
[18]
The
Federal Court of Appeal has held there is no right to a perfect translation: Mohammadian
v. Canada (Minister of Citizenship and
Immigration),
[2001] 4 F.C. 85 (C.A.), at para. 6, leave to appeal dismissed, [2001] S.C.C.A.
No. 435 (QL). Likewise, in R. v. Tran, [1994] 2 S.C.R. 951, Supreme
Court of Canada, found as follows, at 987:
However,
it is important to keep in mind that interpretation is an inherently human
endeavour which often takes place in less than ideal circumstances. Therefore,
it would not be realistic or sensible to require even a constitutionally
guaranteed standard of interpretation to be one of perfection.
[19]
Further, I note that the Board did not reject
the applicant’s claim simply on the basis of credibility. Instead, the RPD
found the delay of six and a half years in claiming refugee protection
indicated a lack of subjective fear. It also determined the applicant had not
rebutted the assumption of state protection. Accordingly, while the Board’s
credibility assessment was a factor in rejecting the applicant’s claim, it was
not the only factor.
[20]
For these
reasons, I am of the view that, in this instance, there has not been a breach
of procedural fairness.
Presumption of State Protection not
rebutted
[21]
The applicant submits the RPD erred when it
concluded the applicant failed to provide clear and convincing evidence to
rebut the presumption of state protection. He asserts the documentary evidence
clearly demonstrates the Pakistan government has been hesitant to crack down on sectarian extremist
groups because the government is fearful of such groups. It is stated that the
Board erred by failing to consider the evidence adduced by the applicant corroborating
his assertions that state protection is not available. Moreover, since the applicant
also fears the police, here the persecuting agent, it was not unreasonable for
the applicant not to seek state protection.
[22]
I adopt the reasoning of Justice Tremblay-Lamer,
who conducted a pragmatic and functional analysis in Chaves v. Canada (Minister of
Citizenship and Immigration) (2005), 45 Imm.
L.R. (3d) 58 at para. 11, 2005 FC 193, and determined that the appropriate
standard of review of the RPD’s decision with regards to adequate state
protection, is reasonableness simpliciter. This standard has also been
applied in several recent decisions of this Court (See, for example, Resulaj
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 337,
2006 FC 269; Larenas v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 218, 2006 FC 159; and Codogan v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1032, 2006 FC 739).
[23]
The leading case on the question of state protection is the Supreme Court of Canada's decision in
Canada (A.G.) v. Ward, [1993] 2
S.C.R. 689 (Ward), wherein it was stated that, absent a
situation of complete breakdown of the state apparatus, there would be a
presumption that a state is able to protect its
citizens. Such a presumption in turn could be rebutted by a claimant who presented
clear and convincing proof of the state's inability to protect. As the Supreme
Court of Canada stated at paragraph 50 of its reasons:
The issue that arises, then, is how, in a
practical sense, a claimant makes proof of a state's inability to protect its
nationals as well as the reasonable nature of the claimant's refusal actually
to seek out this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available, however, clear
and convincing confirmation of a state's inability to protect must be provided.
For example, a claimant might advance testimony of similarly situated
individuals let down by the state
protection arrangement or the claimant's testimony of past personal incidents
in which state protection did not
materialize. Absent some evidence, the claim should fail, as nations should be
presumed capable of protecting their citizens. Security of nationals is,
after all, the essence of sovereignty. Absent a situation of complete breakdown
of state apparatus, such as that recognized in Lebanon in Zalzali,
[1991] F.C.J. No. 341, it should be assumed that the state is capable of
protecting a claimant.
[Emphasis
added].
[24]
As such, the state is presumed capable of
protecting its citizens and refugee claimants must provide "clear and
convincing confirmation" of the state's inability or unwillingness to
protect them.
[25]
Contrary to the applicant’s claim, the Board
did not casually dismiss the issue of state protection but provided extensive
reasons for doing so. In my opinion, it was not unreasonable, based on the
evidence before it, for the RPD to determine that the applicant had failed to
rebut the presumption of adequate state protection in Pakistan. In its reasons the Board finds, given the
applicant’s limited activity in the Shia community over a decade ago, his
modest education, his professional position as a salesperson and his lack of a
leadership role in the Shia community, that he does not fit the high profile of
persons, such as doctors and lawyers, who are usually targeted for sectarian
violence. The Board noted there are approximately 20 million Shias in Pakistan and Shias are
generally protected by the government and well-integrated into Pakistani
society. The Board admitted that in the past the police were often ineffective
in dealing with Sunni/Shia sectarian violence. Nevertheless, it found there
have been serious and dramatic changes when dealing with sectarian violence.
The Board acknowledged that there are some dissenting views expressed in some
documents. Nevertheless, given the preponderance of objective and reliable
evidence, the RPD concluded that the authorities, while not eliminating sectarian
violence, are making serious efforts to deal with it.
[26]
It is my opinion that the Board’s
conclusion was reasonably open to it and was
supported by the documentary evidence, as well as the principles set out by
this Court with respect to state protection. I am satisfied that the Board understood and appreciated both
the positive and negative evidence that was adduced at the refugee hearing. Moreover,
in view of the fact that the Board did not believe, in the first place, that
the applicant had been deprived and tortured by the police in 1996, and to the
extent that the Board concluded that the applicant had not rebutted the
presumption of state protection,
I am satisfied that the correct test as set out in Ward,
above, was applied. In short, the Board did not make a reviewable error.
Section 97 conclusion valid
[27]
Finally, pursuant
to section 97(1) of the IRPA, the Board is required to evaluate whether a
claimant is in need of protection owing to the danger of torture (ss. 97(1)(a));
risk to life (ss. 97(1)(b)); or risk of cruel and unusual treatment (ss.
97(1)(b)). The applicant submits that the Board erred by failing to properly
address the applicant’s claim for protection in accordance with section 97 of
the IRPA. The applicant states the jurisprudence supports the proposition
that where evidence is clearly tendered concerning section 97 risk, the Board
is obliged to evaluate it and to provide a separate section 97 analysis in its
reasons. See: Nyathi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1409, 2003
FC 1119 at para. 21 and Bouaouni v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 1540, 2003 FC 1211 at para. 41. It is asserted that although
the Board rejected the section 96 claim based on credibility concerns, it had
an obligation to address objective risk under section 97.
[28]
I am ready
to accept that a negative credibility determination in respect of a refugee
claim under section 96 is not necessarily dispositive of the considerations
under section 97(1) since the elements required to establish a claim
under section 97 differ from those required under section 96 (Nyathi, above and Bouaouni,
above). Ultimately,
whether a Board properly considered both claims must be determined on a case by
case basis with regard to the different elements required to establish each
claim (Nyathi, above). However, the failure to conduct a separate
section 97 analysis will not be fatal in all circumstances (Brovina v. Canada (Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 77, 2004 FC 635; Nyathi, above), especially if the
facts and the grounds for seeking protection (here, on a Convention ground) are
the same and the claimant’s story is not credible (Kulendrarajah v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 94, 2004 FC 79).
[29]
In this
case, the Board’s decision reads, in part, as follows:
The panel [of the RPD] also considered
whether the claimant is a person in need of protection because of risk to his
life, or a risk of cruel and unusual treatment, or because he faces a danger of
torture. The claimant adduced neither other evidence, nor does the
documentation support a finding that he faces a serious possibility of
persecution, should he return to Pakistan
at present. Therefore, given the lack of credibility of material facts in this
claim, and having reviewed all the evidence, the claimant has failed to
establish that he meets the higher threshold of risk to life, or a risk of
cruel and unusual treatment or punishment. I conclude also that no credible
evidence was adduced that would support a finding that the claimant faces a
danger of torture.
In considering the totality of the
evidence before me, including the PIF, the oral testimony of the claimant, the
observation of the Refugee Protection Office, and the submission of counsel, I
find that, on the balance of probabilities, the claimant has not presented
sufficient credible or trustworthy evidence that if he were to return to
Pakistan at the present time, he would face a serious possibility of
persecution at the hands of Sunni extremists, such as the SSP for the alleged
reasons, or that he would personally face a risk to his life, or a risk of
cruel and unusual treatment or punishment, or that there are substantial grounds
to believe that he would personally be subjected to a danger of torture.
[30]
In
the case at bar, the RPD found important omissions, contradictions and
implausibilities in the applicant's evidence, which led it to conclude that the
applicant's story was not credible. I have already determined that these
findings were open to the Board. Further, the RPD showed an appreciation of
the country conditions in Pakistan and
specifically considered, in its reasons, the country documentation before it. There
is no evidence to suggest that the Board failed to consider evidence before it
or that it misapprehended any aspect of the evidence. Apart from the evidence
that the RPD found to be not credible, there was no other evidence before it,
in the country documentation, or elsewhere, that could have led the Board to
conclude that the applicant was a person in need of protection. I find that
the Board's conclusion, that the applicant was not a "person in need of
protection" under paragraphs 97(1)(a) and (b) of the IRPA, was open to it
on the evidence.
[31]
In conclusion, the present application must fail. Counsel agrees
that no question of general importance is raised in this proceeding.
ORDER
THIS COURT
ORDERS that the
application for judicial review is dismissed.
“Luc
Martineau”
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