Date: 20080205
Docket: IMM-7715-05
Citation: 2008 FC 137
Ottawa, Ontario, February 5,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KHADIM
HUSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
[35] The Board must assess the issue of an IFA in light of its findings
regarding the credibility of the witness. The Board's findings of fact on the
issue of IFA were not perverse or capricious.
[36] The test with respect
to an IFA is two pronged: the Board must be satisfied, on a balance of
probabilities, that there is no serious possibility of the claimant being
persecuted in the proposed IFA and that in all the circumstances, including the
circumstances particular to those claimants, the conditions in the proposed IFA
are such that it is not unreasonable for the applicants to seek refuge there. (Rasaratnam;
Thirunavukkarasu; Mohammed)
(As specified in Aslam v. Canada (Minister of
Citizenship and Immigration), 2006 FC 189, [2006] F.C.J. 264 (QL).)
JUDICIAL PROCEDURE
[2]
On
December 22, 2005, the Applicant filed an application for leave and for
judicial review against a decision rendered, on November 28, 2005, by the
Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB),
which found the Applicant not to be a Convention refugee or a person in need of
protection.
FACTS
[3]
The
Applicant, Mr. Khadim Hussain, is a 31 year old male citizen of Pakistan. He was born
in Malkanwala, Mandi Bahaddin, Punjab, Pakistan.
[4]
In
January 2003, he fell in love with a girl, named “Sugra”. In May 2003, his
father died. Due to his traditions, he could not marry for a year after the
death of his father. By January 2004, the Applicant’s girlfriend gave birth to
a son.
[5]
Mr.
Hussain had planned to be married on April 12, 2004 by the authority of a Court.
[6]
In
the meantime, Mr. Hussain had problems of a religious nature. As a Shia Muslim,
he was sought by the Sipae Sahaba Pakistan (SSP). In the context, the SSP
threatened to kill the Shia leader.
[7]
On
March 2, 2004, Mr. Hussain participated in a march after which the Shia leader,
Syed Ijaz Hussain Naqvi, was killed, subsequent to which Mr. Hussain was beaten
by SSP goons.
[8]
On
March 5, 2004, the SSP asked Mr. Hussain to spy for it. Mr. Hussain refused and
went into hiding, fearing consequences from the SSP for not having cooperated
with it.
[9]
Mr.
Hussain departed from Pakistan on May 5, 2004 and arrived
at the Toronto airport on
May 7, 2004. He applied for refugee status the same day.
[10]
On
November 28, 2005, the IRB issued a negative decision.
ISSUES
[11]
(1)
Was the IRB’s finding reasonable in its determination that the Applicant could
avail himself of an internal flight alternative (IFA)?
(2) Was
Guideline 7, concerning the preparation and conduct of a hearing before the RPD,
correctly applied?
ANALYSIS
Internal
Flight Alternative
[12]
Mr.
Hussain does not directly challenge the finding that an IFA was available to
him in the city of Karachi.
[13]
The
IRB concluded that police and radical members of the Sunni community would not
pursue him outside his local village. It also considered the reasonableness of
travelling and living outside his village. Finally, the IRB established that
Mr. Hussain was questioned and given an opportunity to respond as to the
availability of an IFA.
[14]
Mr.
Hussain does not directly challenge the IFA finding which is determinative in
this case. In fact, he makes no comment as to the second and third element of
the IFA test; however, Mr. Hussain does challenge the basis of the
conclusion. (Reference is made to Aslam, above.)
[15]
Mr.
Hussain provided a First Information Report (FIR), dated May 12, 2004 (Exhibit
P-13), a letter from his attorney, dated January 7, 2005 (Exhibit P-4), and a
warrant of arrest, dated May 27, 2004 (Exhibit P-5), in support of his
allegation that Sunni extremists had filed a complaint against him with police.
[16]
These
documents were deemed to be fraudulent and of no probative value by the IRB.
[17]
The
IRB noted that the hearing of Mr. Hussain’s claim was initially scheduled for
February 7, 2005 and was postponed due to Mr. Hussain’s illness.
[18]
The
warrant of arrest issued in May 2004 and the lawyer’s letter, dated January 7,
2005, were received by the IRB on Friday, February 4, 2005.
[19]
For
its part, the FIR, which was issued in May 2004, was filed with the tribunal
almost a year later, i.e. on April 26, 2005, recalling from above that the
first hearing was scheduled to take place on February 7, 2005.
[20]
When
confronted with the late filing of these documents, Mr. Hussain indicated the
he had asked his brother to secure these documents but that his brother had
forgotten.
[21]
This
explanation was not deemed credible as Mr. Hussain’s brother and his counsel in
Pakistan met in
either May or June 2004 and that FIRs are readily available upon request from
counsel.
[22]
On
this issue, Mr. Hussain argues that he should have been advised as to where the
IRB found its information as to the ease of securing FIRs.
[23]
Mr.
Hussain’s response on this issue was that his brother forgot to seek these
documents, not that a government authority denied them.
[24]
Furthermore,
the lawyer’s letter or Mr. Hussain, report no difficulty in obtaining the FIR.
The issue, in this case, is not the timely issuance of documents by the
authorities of Pakistan, but rather, the time of the attempt by Mr.
Hussain to obtain these documents. There is no breach of natural justice in the
case at bar.
[25]
Moreover,
Mr. Hussain initially indicated that the meeting between his brother and his
counsel in Pakistan was held on
May 9, 2004. As noted by the IRB, this is chronologically impossible since this
predates both the FIR and the warrant of arrest issued against Mr. Hussain.
[26]
Mr.
Hussain then responded “June 2004”. While this is chronologically possible,
this does not serve to explain why documents, central to the claim, were not
obtained earlier.
[27]
Mr.
Hussain gives no explanation for this contradictory testimony, save perhaps for
paragraph 9 of his affidavit where he indicates that he had not understood the
question. This does not render unreasonable the factual conclusion of the IRB
on this issue.
[28]
Given
Mr. Hussain’s problematic testimony on this issue, the country documentation on
the accessibility of FIRs and the problem of fraudulent documents (page 121 of
the Court Record), the IRB found that Exhibits P-4, P-5 and P-13 were
fraudulent and of no probative value.
[29]
With
regard to fraudulent documents from Pakistan, this Court has noted
the presence of evidence before the IRB on this issue. (Ranjha v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1491, [2004] F.C.J. No.
1827 (QL); Khan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 44, [2005] F.C.J. No. 912 (QL).)
[30]
The
situation as to delay in providing documents and the presence of forged
documents in Pakistan bears much
resemblance with that in Ranjha, above:
[30] Furthermore, the
Board dismissed the authenticity of the FIR, arrest warrant and Proclamation
produced by Mr. Ranjha. By way of reasons, the Board cites the delay in
production of these materials (about eight months after the Applicant's arrival
in Canada) and the fact that
document forgery is well-known to be widespread in Pakistan. Mr. Ranjha's
explanation was that he only fled Pakistan in 2001, three years after he was initially tortured (which story
the Board does not find credible either, at any rate), because he learned an
FIR, warrant of arrest and proclamation had been issued against him. The
Board did have evidence before it that there are high levels of forgery of
official court documents such as warrants for arrest in Pakistan; therefore, it
was open to the Board to take that into consideration when assessing the
credibility of this evidence. The Board also found the claimant's explanation
for the delay in requesting and obtaining copies of the documents to be
unreasonable, and that this delay put the authenticity of the documents into
question. I do not find in these assessments a reason to intervene. (Emphasis
added.)
Guideline 7 - Concerning preparation and
conduct of a hearing
in the Refugee Protection Division
[31]
Section
19 of Guideline 7 provides for the standard practice to be followed as to the
order of questioning before the IRB, essentially the Refugee Protection Officer
(RPO) or, in his absence, the Board member begins questioning and is followed
by counsel for the refugee claimant:
|
3.2 Questioning
19.
In a claim
for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there
is no RPO participating in the
hearing, the member will begin, followed by counsel for the claimant.
Beginning the hearing in this way allows the claimant to quickly understand
what evidence the member needs from the claimant in order for the claimant to
prove his or her case.
|
3.2 Interrogatoires
19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger
le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence
l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette
façon de procéder permet ainsi au demandeur d'asile de connaître rapidement
les éléments de preuve qu'il doit présenter au commissaire pour établir le
bien-fondé de son cas.
|
[32]
This
order of questioning was challenged by Mr. Hussain in the form of an objection
which was denied by the Board member. (Tribunal Record, pp. 311-312.)
[33]
On
May 25, 2007, the Federal Court of Appeal rendered decisions in Thamotharem
and Benitez. In Benitez, the Court noted that there is no
constitutional right for claimants to be questioned first by their counsel, and
that accordingly, Guideline 7 does not breach the duty of fairness:
[16] Substantially for the reasons
given by Justice Mosley (at paras. 47-67) for finding that there is no
constitutional right for claimants to be questioned first by their own counsel,
as well as for the reasons given in our decision in Thamotharem (at
paras. 34-51) for concluding that Guideline 7 does not prescribe a procedure
which is in breach of the duty of fairness, it is my opinion that Guideline 7
does not violate claimants' right to participate at an RPD hearing conducted in
accordance with the principles of fundamental justice.
(Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, [2007] F.C.J. No. 734 (QL); Benitez
v. Canada (Minister of
Citizenship and Immigration), [2007] 1 F.C.R. 107, [2006] F.C.J. 631 (QL),
paras. 16 and 38; Leave to appeal to the Supreme Court of Canada was denied in
both cases on December 13, 2007: Benitez v. Canada (Minister of Citizenship
and Immigration), [2007] SCCA 391 and Thamotharem v. Canada (Minister of
Citizenship and Immigration), [2007] SCCA 394.)
[34]
As
well, the Federal Court of Appeal found that the independence of RPD members is
not compromised by Guideline 7. The Court held:
[88] In my opinion, therefore, the evidence in the present case
does not establish that a reasonable person would think that RPD members'
independence was unduly constrained by Guideline 7, particularly in view of:
the terms of the Guideline; the evidence of members' deviation from
"standard practice"; and the need for the Board, the largest
administrative agency in Canada, to attain an acceptable level of consistency
at hearings, conducted mostly be single members.
[89] Adjudicative
"independence" is not an all or nothing thing, but is a question of
degree. The independence of judges, for example, is balanced against public
accountability, through the Canadian Judicial Council, for misconduct. The
independence of members of administrative agencies must be balanced against the
institutional interest of the agency in the quality and consistency of the
decisions, from which there are normally only limited rights of access to the
courts, rendered by individual members in the agency's name.
[35]
Since
the judgments of the Federal Court of Appeal, the matter on the issue of
Guideline 7 has been determined to have been resolved. (Ali v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 309, [2007] F.C.J. No. 1269 (QL),
para. 1; Jacobs v. Canada (Minister of Citizenship and Immigration), 2007 FC 646, [2007]
F.C.J. No. 861 (QL), para. 6.)
CONCLUSION
[36]
For
all of the above reasons, the IRB decision is not patently unreasonable and,
further to analysis, is even considered to be reasonable; therefore, the application
for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2. No serious question of general
importance be certified.
“Michel M.J. Shore”
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