Docket: IMM-680-16
Citation:
2016 FC 1421
Ottawa, Ontario, December 30, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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AHMED BIN
SOHAIL 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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JUDGMENT AND REASONS
[1]
The Applicant, Ahmed Bin Sohail Cheema, seeks judicial
review of the decision of a Pre-Removal Risk Assessment [PRRA] Officer, made on
December 17, 2015, refusing his PRRA application. The PRRA Officer determined
that Mr. Cheema would not be subject to the risk of persecution, danger of
torture, risk to life or risk of cruel and unusual treatment or punishment if
returned to Pakistan, his country of nationality.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
I.
Background
[3]
Mr. Cheema claims that during his college years
in Lahore, Pakistan, he organized interfaith harmony meetings in an attempt to
eliminate animosity between the Sunni majority and the Shia minority of
Muslims.
[4]
In July 2011, he was granted a student visa to
come to Canada, following his mother’s wish to have him study abroad. The following
month, he received a call from the Lashqar-e-Jhangvi [LeJ], a militant Sunni
organization, threatening him with dangerous consequences unless he stopped his
Shia religious activities and activities for interfaith harmony. As he had already
been granted a visa for Canada, he decided to leave on the first available
flight. He did not report that threat to the police, as he and his mother were
convinced it would be futile.
[5]
He came to Canada in August 2011 and his study
permit, set to expire in January 2013, was subsequently extended until March
2015. However, he returned to Pakistan in September 2014 due to a shortage of
funds.
[6]
Upon his return to Pakistan, he organized an interfaith
harmony meeting scheduled to occur on November 26, 2014. Two (2) days before
the meeting was to take place, he received a phone call on his cell phone from
an unknown caller and number. The caller notably threatened him with a suicide
bomb attack on the meeting and the killing of all its participants if it was
not immediately cancelled.
[7]
Mr. Cheema filed a police complaint regarding
the matter. Despite initially unwilling to register a report since Mr. Cheema did
not have the identity of the caller, with the insistence of his brother who was
a lawyer in Lahore, the police registered a First Information Report [FIR]. The
police did not provide him with protection but advised Mr. Cheema and his
brother to cancel the meeting immediately in order to keep the participants at
the meeting and himself from being killed. The following day, he received
another phone call from an unknown caller and number and was told that contacting
the police and registering another FIR would not make any difference. He was also
told that if he tried to contact the police again, it would be more dangerous
for him. Frightened, Mr. Cheema left Pakistan on December 2, 2014 and returned
to Canada since he still had a valid visa.
[8]
In September 2015, approximately four (4) months
after the expiry of his temporary resident status, he was stopped and detained
by the Canada Border Services Agency at Fort Erie. An inadmissibility report
was prepared as a result of him staying in Canada beyond the authorized period
and an exclusion order was issued against him. Ineligible to make a refugee
claim, Mr. Cheema therefore submitted an application for a PRRA in which he
alleges that his life is at risk from members of the LeJ extremist group and
/or other militant Sunni Muslim organizations, as a result of his being a Shia
activist and volunteer in organizing interfaith harmony meetings.
[9]
The PRRA Officer rejected Mr. Cheema’s
application, finding that he was neither a Convention Refugee nor a person in
need of protection. The PRRA Officer accepted that Mr. Cheema was involved
in volunteer work in Pakistan and that he was involved in organizing a meeting.
The PRRA Officer also accepted that the police took Mr. Cheema’s statement
regarding the call on November 24, 2014. Notwithstanding, the PRRA Officer
found that Mr. Cheema had not provided clear and convincing evidence to
rebut the presumption of state protection or sufficient corroborative evidence
to demonstrate that he faces a personalized forward looking risk if he returned
to Pakistan.
[10]
Mr. Cheema now seeks judicial review of this
decision.
II.
Analysis
[11]
Despite raising a number of issues, Mr. Cheema
conceded at the hearing that the issue of state protection is determinative in
these proceedings. He submits that the PRRA Officer adopted and applied the
wrong test for state protection by considering state efforts as opposed to the
operational adequacy of state protection for someone in his particular
situation. He also submits that the PRRA Officer reached unreasonable
conclusions as to the availability of state protection in Pakistan.
[12]
In considering whether the PRRA Officer adopted
and applied the appropriate test for state protection, the correctness standard
of review applies (Go v Canada (Citizenship and Immigration), 2016 FC
1021 at para 7 [Go]; Buri v Canada (Citizenship and Immigration),
2014 FC 45 at paras 17-18, citing Ruszo v Canada (Citizenship and
Immigration), 2013 FC 1004 at para 22).
[13]
The adequacy of state protection is however a
question of mixed fact and law to be evaluated on the standard of
reasonableness (Hinzman v Canada (Citizenship and Immigration), 2007 FCA
171 at para 38; Go at para 10; Marqeshi v Canada (Citizenship and
Immigration), 2016 FC 932 at para 16; Mrda v Canada (Citizenship and
Immigration), 2016 FC 49 at para 24).
[14]
It is well established, that in reviewing a
decision against the reasonableness standard, the Court must consider whether
the decision “falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9
at para 47 [Dunsmuir]). Deference is owed to the decision maker. While
there might be more than one reasonable outcome, “as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59).
[15]
Mr. Cheema argues that the PRRA Officer erred in
considering the adequacy of state protection in Pakistan. Specifically, he
argues that the PRRA Officer failed to recognize that the adequacy of state
protection must be assessed on an operational level.
[16]
I am satisfied that the PRRA Officer applied the
correct test in determining whether state protection was available to Mr.
Cheema. In discussing state protection, the PRRA Officer focussed on the
presumption that the state is able to provide protection to its citizens. He
states:
Furthermore,
barring a complete breakdown of state apparatus, there is a presumption that
the state is able to provide protection to its citizens. No state is expected
to provide perfect protection to all citizens at all times; state protection is
considered adequate if the state is in effective control of its territory, has
military, police and civil authority in place, and makes serious efforts to
protect its citizens. An applicant is required to approach his or her state for
protection in situations in which protection might be reasonably forthcoming,
before seeking international protection. The applicant can rebut the
presumption of state protection by providing clear and convincing evidence that
the state was unable to provide the necessary protection.
[17]
While the reference to “serious
efforts” might suggest that the PRRA Officer applied the wrong test and
only considered the efforts of the state to determine state protection, the
PRRA Officer thereafter noted that the police were willing to accept Mr.
Cheema’s complaint as a FIR was registered and that the complaint was forwarded
to superiors and submitted to an officer for investigation purposes. From this,
he deduced that the authorities were willing to review Mr. Cheema’s complaint
and found that there was insufficient evidence as to why Mr. Cheema could not
approach the authorities again for assistance, thus failing to rebut the presumption
of state protection. When read as a whole, I am satisfied that the PRRA Officer
understood that the issue was the ability of the Pakistani authorities, in this
case the police, to provide Mr. Cheema protection at an operational level.
[18]
Mr. Cheema also submits that the PRRA Officer’s
findings regarding the adequacy of state protection and his failure to rebut
the presumption of state protection were unreasonable. He argues that the PRRA
Officer ignored and failed to address the objective documentary evidence which
demonstrated that it was unlikely that further attempts to seek protection by
the police would make any difference.
[19]
The PRRA Officer’s reasons indicate that he
considered the country condition documents outlining the problems in Pakistan.
The PRRA Officer acknowledged the evidence of continuing problems of sectarian
violence and corruption in Pakistan. However, relying particularly on the
United Kingdom Home Office’s Country Information and Guidance report, he noted
that the objective documentary evidence also indicated that Pakistan had taken actual
steps to deal with these issues and provide security to Shias. The PRRA Officer
also observed the steps taken by the state to resolve those issues, including specialized
training focussing on human rights and anti-corruption for police officers and
the avenues available to seek restitution for any wrongdoings, including the
Citizens-Police liaisons Committees or receiving assistance from the courts.
[20]
The PRRA Officer also relied on the conflicting
evidence regarding the third phone call received by Mr. Cheema, as well as the
insufficient evidence regarding the identity of the callers and why Mr. Cheema
could not approach the authorities again if he required assistance.
[21]
Given the conflicting objective documentary evidence
on the availability of state protection, the insufficient evidence regarding
the third phone call and the fact that the police had accepted Mr. Cheema’s
complaint and forwarded it to higher authorities, it was open to the PRRA
Officer to find that Mr. Cheema had failed to rebut the presumption of state
protection.
[22]
While Mr. Cheema may disagree with the PRRA
Officer’s assessment of the evidence, it is not the role of this Court to
reweigh the evidence before the PRRA Officer and to draw a different conclusion.
[23]
Accordingly, the Court is satisfied that the PRRA
Officer’s decision that Mr. Cheema failed to rebut the presumption of state
protection is reasonable and that it “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at para 47).
III.
Conclusion
[24]
This application for judicial review will be
dismissed. The parties are in agreement that there is no serious question of
general importance to be certified.
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