Date: 20070207
Docket: IMM-3731-06
Citation: 2007 FC 131
Montréal,
Quebec, February 7, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
ARSHAD
ZIA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board (IRB) rendered on July 6, 2006 finding that Arshad Zia
(Applicant) is not a Convention Refugee pursuant to section 96 of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (IRPA) or a person in
need of protection pursuant to section 97 of IRPA on the basis that the
Applicant could avail himself of a viable internal flight alternative (IFA)
within Pakistan.
I. Facts
[2]
The Applicant owned a gas station in the
North-West Frontier Province of Pakistan. In March 2004, two of his employees informed the
Applicant that they could no longer continue working for him as they had been
recruited by the Jamiat Ulma-e-Islam (JUI), the most hardline wing of the
Muttahida Majlis-e-Amal Party, the major Islamic political party of Pakistan.
[3]
Having been informed of the employees’
intention to join the JUI, the Applicant approached the employees’ parents to
advise them of their sons’ intentions and advised them not to allow their sons
to join the JUI.
[4]
The Applicant’s actions to prevent the
employees’ from joining the JUI angered a local Molvi named Ghulam Rasool.
[5]
On March 16, 2004, the Applicant was attacked
by JUI “goons” and was threatened with further reprisals. The Applicant filed
a complaint with the local police following this attack. On March 27, 2004,
JUI “goons” searched the Applicant’s home. As he was absent, they “humiliated”
his wife and warned her that they would kill the Applicant if he did not
retract his police report.
[6]
The Applicant did not retract his police
report. In fact, because the local police took no action, the Applicant
approached higher police authorities on April 4, 2004. Once again, his
complaint to the police did not lead to police action against the JUI.
[7]
On April 16, 2004, Molvi Rasool declared a
fatwa against the Applicant on the basis that the Applicant was an “apostate”,
thus authorising he be killed by any Muslim. After the declaration of the
fatwa, the Applicant and his family went into hiding in Abbotabad. Around this
time, the Applicant also learnt that a false report had been filed against him
by a local religious figure.
[8]
After staying in hiding for one month, the
Applicant left Pakistan on May 15, 2004. He first entered the United Kingdom, but was
advised that he had no hope of obtaining political asylum. He therefore left
the United Kingdom on July 21, 2004 for the United States. In the United States, he was
also informed that it was not feasible for him to apply for asylum. The
Applicant therefore came to Canada on November 15, 2004 and applied for refugee protection.
II. Issues
(1) Is the RPD’s finding that the Applicant
could avail himself of a viable internal flight alternative unreasonable due to
the fact that a fatwa had been issued locally against the Applicant?
(2) Is the RPD’s finding that the Applicant is
not a convention refugee or a person in need of protection erroneous as the
Applicant is targeted by the police in Pakistan?
III. Analysis
(1) Is the RPD’s finding that the Applicant
could avail himself of a viable internal flight alternative patently unreasonable
due to the fact that a fatwa had been issued locally against the Applicant?
[9]
This
Court has stated on numerous occasions that the standard of review applicable
to a decision of the RPD finding that an internal flight alternative exists is
that of patent unreasonableness (see Ortiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1365 at paragraph 35; Ako v.
Canada (Minister of Citizenship and Immigration), 2006 FC 647 at paragraph
20; Nakhuda v. Canada (Minister of Citizenship and Immigration), 2006 FC
698 at paragraph 8; Camargo v. Canada (Minister of Citizenship and
Immigration), 2006 FC 457 at paragraph 7; Chorny v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999 at paragraphs 5-11). There does
not appear to be any reason to depart from that standard in this case.
[10]
The
Applicant argues that because Molvi Rasool
issued a fatwa against him there is no viable internal flight alternative
available to him in Pakistan. Thus, the Applicant submits, that the RPD’s finding that
the fatwa issued against him had little or no significance beyond the locality
in which the Applicant was living and where he operated his gas station, is
patently unreasonable. According to the Applicant, there is no evidence that
moving from one locality in Pakistan to another will diminish or eliminate the risk he faces as
an individual subject to a fatwa. Moreover, the Applicant submits that the RPD
failed to consider the fact that a fatwa cannot be annulled and can only be
retracted by its issuing cleric.
[11]
The RPD in its decision accepted that the fatwa
issued by the Molvi Rasool was credible. However, as there was no evidence
that the fatwa was publicized or was known outside the locality where it was
issued, the RPD found that the Applicant had a viable internal flight
alternative. This finding was based in part on document PAK40294.E cited by
the tribunal. In that document, which contains the following remarks of Asma
Jahangir, a founding member of the Human Rights Commission of Pakistan and a UN
Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions in Pakistan (Remarks of Asma
Jahangir to the Research Directorate, Immigration and Refugee Board, in Ottawa on September 6,
2002):
… when a Muslim leader issues a fatwa against an
individual, his followers may give statements to the press to publicize the fatwa
and, in some instances, posters will be distributed declaring the fatwa. Regarding
the reach of a fatwa, Ms. Jahangir stated that if the fatwa is given by a
“small, little mullah in the mosque” no one will know. However, if it is a
“radical” or “militant leader”, people will know and it may be publicized.
According to Ms. Jahangir, the more publicized the fatwa, the more dangerous
the situation is for the named individual.
Ms. Jahangir stated that “it has become ridiculously
common” for leaders of local and smaller mosques to issue fatwas against people
in their own communities, and the “seriousness of this must not be
undervalued”. Many of those issuing fatwas do so due to vested interested and
are militants.
[Emphasis added]
Keeping in mind that the Applicant had the
burden of proof and given that there was no evidence that the fatwa was
publicized or known outside the locality where it was issued, I can but only conclude
that the RPD’s finding that the Applicant had an internal flight alternative is
not patently unreasonable and thus that the RPD’s finding should not be
disturbed.
[12]
It is
important to note that the finding of a viable internal flight alternative is determinative
of a refugee protection claim, as by definition, a person cannot be a refugee
if they have an internal flight alternative. As Justice Linden writing for the
Federal Court of Appeal in Thirunavukkarasu v. Canada (M.E.I.), [1994] 1
F.C. 589 stated at page 592 :
The idea of
an internal flight alternative is "inherent" in the definition of a
Convention refugee (see Mahoney J.A. in Rasaratnam, supra, at page 710);
it is not something separate at all. That definition requires that the
claimants have a well-founded fear of persecution which renders them unable or
unwilling to return to their home country. If claimants are able to seek safe
refuge within their own country, there is no basis for finding that they are
unable or unwilling to avail themselves of the protection of that country…
Thus, in the case at hand, the fact that the
Applicant has an internal flight alternative is determinative of the case.
Nonetheless, for the sake of completeness I will address the issue raised by
the Applicant namely that he is targeted by the Pakistani police.
(2) Is the RPD’s finding that the Applicant is
not a convention refugee or a person in need of protection erroneous as the
Applicant is targeted by the police in Pakistan?
[13]
The
Applicant claims that in addition to being the subject of a fatwa, he is also
being targeted by Pakistani police, as they filed a false police report against
him. As such, the Applicant says he will be persecuted if he were returned to Pakistan. In support
of his claim that he fears the Pakistani police, the Applicant filed a First Information
Report (FIR), a warrant of arrest and a lawyer’s letter before the RPD.
[14]
A
field investigation conducted by the Canadian High Commission in Islamabad, without
objection from the Applicant and after having authorized such inquiries (see
page 42 of the Tribunal’s Record), found that the FIR supposedly filed against
the Applicant had nothing to do with him and was instead linked to a Mr.
Muhammad Shafiq who was accused of reckless driving. The Applicant explains
this discrepancy on the basis that Pakistani officials are corrupt. Moreover,
he claims that the results of the investigation conducted by the Canadian High
Commission in Islamabad yielded
hearsay evidence that is inadmissible before the RPD.
[15]
As
the RPD stated in their decision, the FIR verification was done solely on the
basis of the FIR number that was given by the Applicant. There was no
indication that the Applicant’s name or that any other name, was given to the
police during the investigation. Thus the police would not have known that the
High Commission was investigating the Applicant and thus take actions to
sabotage the Applicant’s FIR file, if one in fact existed.
[16]
As
for the argument that the information yielded by the investigation by the High
Commission is hearsay, it is to be noted that paragraphs 170(g) and 170(h) of IRPA
state that the IRB is not bound by any legal or technical rules of evidence and,
as such, may consider all evidence they consider to be trustworthy and
credible. Consequently, the RPD was within its right to consider the
information yielded by the investigation undertaken by the High Commission.
[17]
Additionally,
the Applicant on his Personal Information Form (PIF) responded “no” to the
question as to whether he was sought by the police in any country (Tribunal’s
Record, page 19). Moreover, in Schedule I, completed upon his entry to Canada
on November 15, 2004, the Applicant did not mention that he was afraid to
return to Pakistan because he
was being targeted by the Pakistani police. Also in Schedule I, the Applicant
responded “no” to a question relating to whether he was currently charged with
or subject to criminal proceedings in any country.
[18]
When
confronted with these inconsistencies at his hearing, the Applicant said that
he had misunderstood the questions on both the PIF and the Schedule I form.
The RPD did not accept this explanation. It is well established that
statements made by a person at a point of entry, in this case the answers provided
on the Schedule I form, and in a PIF, may serve to impugn the credibility of an
asylum claimant. As Justice Blanchard stated in Chen v. Canada (Minister of
Citizenship and Immigration), 2005 FC 767 at paragraph 23:
According to case law, inconsistencies between an applicant's
statements at the port of entry and testimony about crucial elements of a claim
are sufficient to taint his credibility.
Moreover, it is to be noted that a decision
of the IRB relating to credibility will only be overturned by this Court if
such a decision is patently unreasonable (see Aguebor
v. The Minister of Citizenship and Immigration (1993), 160 N.R. 315, at para. 4). Thus, the fact that
the IRB did not believe the Applicant’s explanation as to the inconsistencies
between his story and the information provided in the Schedule I form and the PIF
is not a reviewable error, as the finding that the Applicant is not credible is
not patently unreasonable.
IV. Conclusion
[19]
The
application for judicial review is dismissed as the Applicant has a viable
internal flight alternative and his submission that he fears the Pakistani
police is not credible.
[20]
The
parties were invited to submit a question for certification; they chose not to
do so.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial
review is dismissed and no question is certified.
“Simon
Noël”
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