Docket: IMM-4285-13
Citation:
2015 FC 441
Ottawa, Ontario, April 10, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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JAFFAR ALI CHEEMA
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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 AND ORDER
I.
Introduction
[1]
The Applicant (Mr. Cheema) is a citizen of Pakistan. He is a Shia Muslim and as an active member of a Shia organization, he fears
persecution from Sunni Muslim extremists for writing a series of four articles
criticizing religious extremism in a local newspaper. It was that fear that
led the Applicant to leave Pakistan. He arrived in Toronto in December 2011
and made a claim for refugee protection shortly thereafter.
[2]
In particular, he claims that several incidents
occurred between March and December 2011, following the publication of these
articles:
- Unknown persons insisted
he print a retraction;
- The office of
the Shia organisation to which he belonged was burned down;
- Sunni extremists
threw stones at his house which prompted his family to move to a new home;
- Armed men indicating
they were looking for him raided and robbed his sister’s home and in the
process, beat some of the occupants and locked some others in a room; and
- Two men on
motorcycles followed him and began shooting at him, which again prompted the
relocation of his family, first to Daska where his in-laws live, and then
to Islamabad where he made arrangements to leave Pakistan.
[3]
On May 23, 2013, the Refugee Protection Division
of the Immigration and Refugee Board of Canada (the RPD) determined that Mr.
Cheema was neither a Convention refugee nor a person in need of protection
within the meaning of sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act). The RPD decision was premised on
the lack of credibility of Mr. Cheema’s story, his failure to make reasonable
efforts to access state protection, and the availability of internal flight
alternatives in Lahore and Islamabad. The RPD found that the incidents Mr.
Cheema allegedly experienced were criminal acts without a nexus to Convention refugee
grounds.
[4]
Mr. Cheema seeks judicial review of that
decision. For the reasons that follow, his application for judicial review is
dismissed.
II.
Issue and Standard of Review
[5]
The issue to be determined in this case is
whether the RPD’s decision shall be set aside on the ground that its conclusion
that Mr. Cheema is neither a Convention refugee nor a person in need of
protection is the result, as Mr. Cheema contends, of a capricious and perverse
finding made without due regard to the evidence that was before it.
[6]
Credibility findings as well as findings
regarding the existence of nexus to a Convention ground or state protection are
subject to the reasonableness standard of review. This standard of review, as
is well established, means that the Court shall not interfere with the RPD’s
decision unless it lacks justification, transparency and intelligibility and
falls outside the range of possible, acceptable outcomes, defensible in fact
and in law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at
para 47; Francis v MCI, 2011 FC 1078, at para 7; Cato v MCI, 2010
FC 1313, at para 27; Sabogal Riveros v MCI, 2012 FC 547, at para 27; Flores
Jacobo v MCI, 2012 FC 345, at para 50; Giovani Ipina Ipina v MCI,
2011 FC 733, at para 5; Hinzman v MCI, 2007 FCA 171, at para 38). It is
also well established that internal flight alternative findings are reviewable
on a standard of reasonableness and warrant deference as they involve not only
the assessment of the refugee protection claimant’s circumstances but also an
expert understanding of the country conditions involved (Gandarilla Martinez
v MCI, 2011 FC 1464, at paras 1 and 17; Lebedeva v MCI, 2011 FC 1165,
at para 32).
III.
Analysis
[7]
As I indicated previously, Mr. Cheema’s refugee
protection claim was rejected on the following three main grounds: lack of
credibility of the alleged fear, availability of internal flight alternatives
and state protection.
A.
Lack of Credibility
[8]
The RPD found several discrepancies between Mr.
Cheema’s testimony at the hearing of his refugee protection claim and his
port-of-entry notes, the Personal Information Form (PIF) he signed in support
of his claim and the amendments he brought to his PIF:
- In his
testimony, Mr. Cheema said he received death threats in March 2011. Both
his original PIF and his first amended PIF were silent on death threats at
that time. In the second amendment to his original PIF, he talked about an
incident of stone- throwing with death threats, which would have occurred
in April 2011. Mr. Cheema justified these discrepancies by saying that he
was “upset and maybe he forgot”;
- In his PIF, Mr.
Cheema indicated that the police did not come to investigate the fire at
the office of the Shia organisation of which he was a member. However, in
his testimony he said that the police came but told the members of the organisation
not to complain to the police as it would result in substantial danger to
their lives. There was no mention of this in the PIF. Also, Mr. Cheema
could not show that the extremists had caused the fire;
- Regarding the
stone- throwing incident at his house and the motorbike shooting, Mr.
Cheema claimed in his PIF he did not contact the police because they do not extend protection to his family. The RPD
indicated that Mr. Cheema’s family did report the case of the robbery that
occurred at their house and that the police responded. It also indicated
that there was no evidence of earlier incidents concerning his family in
regard to which the police was contacted but failed to respond;
- Mr. Cheema
adduced evidence consisting of an affidavit of his brother-in-law
attesting that intruders came to his house with the intention to murder Mr.
Cheema. However, his PIF reported the intruders as saying that the violence
was due to Mr. Cheema’s action and that he would be treated more harshly. There
was no mention of a death threat;
- When asked about
the interest the extremists would still have in him, Mr. Cheema said they
would always be after him. He testified that they contacted his brother
recently to ask about his whereabouts. However, he also testified that
the extremists were receiving information from others because they would
not talk to his family, as they do not talk to Shias. This is
contradicting the fact they contacted his brother. Furthermore, Mr. Cheema
testified that Daska is a small village where the inhabitants know
everything, including his travel to Canada, which means that the
extremists would also know where he is. However, if that were the case,
the extremists would not have asked his brother about his whereabouts.
When confronted with this inconsistency, Mr. Cheema claimed they wanted to
know when he was coming back which led the RPD to find his testimony vague
and inconsistent; and
- Mr. Cheema
testified that he could not relocate anywhere in Pakistan because the
police would inform the extremists once he uses his identity card. However,
there was no evidence on record that the authorities actively supported
extremists in this way.
[9]
It is clear that the accumulation of
contradictions between a refugee claimant’s testimony and his PIF may
legitimately serve as the basis of a negative credibility finding (Shatirishvili,
above, at para 34; Cienfuegos v Canada (Minister of Citizenship and Immigration),
2009 FC 1262 at para 1; Kaleja v Canada (Minister of Citizenship and
Immigration), 2011 FC 668, at para 18).
[10]
As the Federal Court of Appeal stated in Sellan
v Canada (Minister of Citizenship and Immigration), 2008 FCA 381, an
adverse credibility finding will normally be dispositive of a refugee
protection claim unless the record contains reliable and independent
documentary evidence to rebut it (Sellan, at para 3).
[11]
Here, the RPD found several inconsistencies
which were not based on peripheral points, but were related to elements
integral to Mr. Cheema’s claim for protection, including the death threats, the
reason why he did not contact the police about the stone-throwing incident or
the motorbike shooting, and interest the extremists would still have in him.
[12]
Mr. Cheema claims that the discrepancies between
his PIF and his testimony regarding the death threats were due to the fact that
when he filled his PIF, he was upset and forgot some of the details of his
story. The RPD rejected this explanation as Mr. Cheema’s fear for his life was
central to his claim. This finding, in my view, was reasonably open for the
RPD to make. As the Respondent points out, Mr. Cheema provided no evidence
indicating that he had been diagnosed or treated at the time for any
psychological disorder which would have affected his memory.
[13]
The RPD also rejected Mr. Cheema’s explanation
for the discrepancy between his brother-in-law’s affidavit and his PIF
regarding the nature of the threats allegedly made by the intruders during the
raid of his sister’s house. That explanation was that the brother-in-law had
not wanted to worry him with details of the death threats that were made
against him. Again, the RPD was not required to accept this explanation simply
because Mr. Cheema had provided it (Mejia v Canada (Minister of Citizenship
and Immigration), 2006 FC 1087, at para 19; Soto v Canada (Minister of Citizenship and Immigration), 2004 FC 1521, at para 6) Akhtar v
Canada (Minister of Citizenship and Immigration), 2004 FC, at
para 955). When considered jointly with the other credibility concerns raised
by the RPD, the rejection of that explanation was, in my view, within the range
of acceptable outcomes.
[14]
The Respondent, in his further memorandum of
argument, points out that the RPD, after discounting discrepancies in the
affidavit provided by Mr. Cheema’s brother-in-law in relation to the robbery
incident at his sister’s home, erroneously held that there was no corroborating
police documents of that incident on record. Indeed, it appears that both Mr.
Cheema and the Respondent failed, at the Leave Application stage, to notice that
a police report regarding this incident had been filed before the RPD.
However, I agree with the Respondent that this error has little significance on
the RPD’s overall credibility finding as the RPD had ample other reasons to
dispute Mr. Cheema’s credibility. In addition, the police report does not
corroborate the details of the incident alleged by Mr. Cheema as there is no
mention of any threats made against him or of any assaults or mistreatment
against the occupants of the house. The report only states that individuals
were robbed of various jewellery and personal belongings. It does not link the
robbery to Mr. Cheema’s personal situation.
[15]
The role of the Court on proceedings of this
sort is not to reweigh the evidence and substitute its own view of the case to
that of the RPD (Dunsmuir, above; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 59; Jiang v
Canada (Minister of Citizenship and Immigration), 2012 FC 1511 at paras
28-31; Chekroun v Canada (Minister of Citizenship and Immigration), 2013
FC 737, 436 FTR 1, at para 36; Negm v Canada (Minister of
Citizenship and Immigration), 2015 FC 272, at para 34). As I have
indicated previously, it can only intervene if the RPD’s decision falls outside
the range of possible, acceptable outcomes, defensible in fact and in law (Dunsmuir,
above at para 47).
[16]
When considered as a whole, I find that the
RPD’s adverse credibility finding falls within such a range and, therefore, there
is no basis for this Court to interfere with it. In other words, it was within
reason for the RPD to disbelieve Mr. Cheema’s story based on the
inconsistencies revealed by his testimony, particularly on the key aspect of
his refugee protection claim that were the death threats, as well as the link
between the extremists and the fire at the Shia organisation’s office.
B.
State Protection and Internal Flight
Alternatives
[17]
The Applicant claims that the RPD’s finding on
state protection and internal flight alternatives is fatally flawed as it was
made without proper consideration of the country conditions documentation which
shows that Sunni extremists organizations have infiltrated the Pakistani authorities
at various levels, therefore making it impossible for individuals targeted by
these organizations because they do not support their beliefs, to expect state
protection or to find a safe heaven anywhere in the country.
[18]
He also claims that the RPD erred in concluding
that it was implausible and unreasonable that he would not approach the police
for protection given his knowledge of and experience with their inefficiency
and corruption.
[19]
I disagree. The RPD conducted its own analysis
of the country conditions documentation and, in doing so, addressed the
plausibility of the authorities in a large city informing localized extremist
groups of Mr. Cheema’s presence. It noted that a substantial number of members
of the Shia community in Pakistan, which accounts for 25% of that country’s
total population, make their home in large metropolitan areas such as Lahore and Islamabad. It found that Mr. Cheema had provided no satisfactory and
trustworthy evidence that the police in those areas would cooperate with the local
extremists in his home village and eventually provide these extremists with
information regarding his whereabouts. The RPD further noted that Mr. Cheema’s
assertions in this respect were based on his personal opinion and from what he
had heard from unidentified people.
[20]
The RPD especially considered the country
condition evidence regarding the protection of Shias and concluded that
although it was mixed, it showed that the government had implemented measures
against militants and terrorist groups, including Sunni extremists, with a
resulting decline in militancy and incidents against Shias in recent years. It
concluded that there was insufficient evidence to find that the police fears
extremist groups to a point that they would be incapable of providing adequate
protection, particularly in large urban centers such as Islamabad or Lahore.
[21]
As the Respondent correctly points out, Mr.
Cheema’s argument amounts to a disagreement as to how the RPD weighed the
country conditions documentation evidence. Country conditions assessment is
part of the RPD’s expertise and, as a result, is owed significant deference
when challenged on judicial review. This means that the Court may only
interfere with it where there is no credible evidence supporting the RPD’s
finding in this respect (Khosa v MCI, 2009 SCC 12, at para 59-62; Yang
v MCI, 2006 FC 1013, at para 5; Hernandez Perez v MCI, 2009 FC 1065,
at para 12-14; Horvath v MCI, 2012 FC 1132, at para 59).
[22]
Here, I am satisfied that Mr. Cheema failed to
meet that threshold and, therefore, the RPD’s finding that state protection was
available to him in large urban centers, was reasonable.
[23]
I also see no basis to interfere with the
RPD’s finding that Mr. Cheema made insufficient efforts to test the
availability of state protection and, as a result, failed to rebut the
presumption that state protection is available to refugee protection claimants.
Of the three incidents that directly concerned Mr. Cheema - the retraction
threat, the stone-throwing and the motorbike shooting – none was reported to
the police. Mr. Cheema explained that he did not believe the police would
protect him due to “past experiences” with the
police not extending protection to his family. The RPD
noted that no evidence of such past experiences was disclosed by Mr. Cheema.
It further noted that there has been a police response for the two incidents that
were reported, one of them being the raid against a family member’s property,
that of his sister.
[24]
It is well established that the onus is
on a refugee protection claimant to demonstrate, with clear and convincing
evidence, the state’s inability or unwillingness to provide adequate protection
(Smith v Canada (Citizenship and Immigration), 2012 FC 1283, 420
FTR 256 at paras 50-51; Ruszo
v Canada (Minister of Citizenship and Immigration), 2013 FC 1004, 440 FTR 106). Also well-established is the fact that
protection need not be perfect (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689, at para 52; Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at paras 43 and 44; Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94,
[2008] 4 FCR 636 at para 19; Salamon v Canada (Minister of Citizenship and Immigration), 2013 FC 582,
at para 5;
Ruszo, above at para 29).
[25]
In discharging this burden, it is not sufficient
to simply demonstrate that there has been some local failures of the police to
provide state protection, nor is it sufficient to make a mere assertion of a
subjective reluctance to engage the state or to doubt the effectiveness of
state protection without reasonably testing it (Ruzso, above at paras 31
and 33).
[26]
What is required to rebut the presumption of
state protection is evidence that all objectively reasonable efforts were
unsuccessfully made by the claimants to exhaust all courses of action
reasonably available to them before seeking refugee protection (Ruzso,
above at para 32).
[27]
Absent a compelling or persuasive explanation,
the failure to make those efforts prior to seeking refugee protection will
typically provide the RPD with a reasonable basis to conclude that the
presumption of state protection has not been displaced (Ruzso, above at
para 33).
[28]
Here, given Mr. Cheema’s inaction regarding the
incidents where he was personally targeted, I am satisfied that it was
reasonably open to the RPD to found that he had not shown sufficient reason not
to access state protection.
[29]
Having found that the RPD’s conclusions on state
protection and internal flight alternatives were reasonable, I need not address
the issue of whether the RPD’s finding that Mr. Cheema’s refugee protection
claim has no nexus with Convention refugee grounds is reasonable because even
if I were to conclude that this finding is erroneous, it would not change the
outcome of the case. Before international protection is engaged, “the home state must be either unwilling or unable to protect
its own citizens” (Jimenez v Canada (Minister of Citizenship and
Immigration), 2011 FC 1523 at para 33; Mares v Canada (Minister of
Citizenship and Immigration), 2013 FC 297, at para 41; Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689). Therefore, a finding of state
protection is determinative of the assessment of a refugee protection claim
under either sections 96 or 97 of the Act (Racz v Canada (Citizenship and
Immigration), 2012 FC 436, at para 7; Horvath v Canada (Minister of
Citizenship and Immigration), 2014 FC 670, at para 25; Acevedo v Canada
(Citizenship and Immigration), 2006 FC 480, at paras 76-77).
[30]
Mr. Cheema’s judicial
review application is dismissed.
[31]
Neither party has proposed a question of general
importance. None will be certified.
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