Federal Court Decisions

Date: 20050601

Docket: IMM-3703-04

Citation: 2005 FC 787

Ottawa, Ontario, this 1st day of June, 2005

PRESENT:    THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

RAJA FAZAL DAD KHAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]    This is an application for judicial review of a decision of James C. Simeon of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board (the "Board"), dated March 10, 2004, that the applicant is not a Convention refugee and is not a person in need of protection.

Background

[2]    Raja Fazal Dad Khan (the "applicant") is a Pakistani citizen who left Pakistan in July 2001 because he had been targeted and abused by the Sipah-e-Sehab ("SSP"). According to the applicant, he was specifically targeted because he converted from the Sunni to Shia faith, became very active and visible within the Shia community, and was a lawyer. He remained in the United States for 16 months, but did not request asylum there. In February 2003, he entered Canada and requested international refugee protection. By this time, the applicant had observed that there had not been any real crackdown on extremists in Pakistan. The applicant has stated that he knows that he is still targeted by the SSP because he was placed on their "hit list". The applicant also claims that his wife and daughter remain in Pakistan and both have been threatened by the SSP.

Reasons of the Board

[3]    The Board determined that the applicant was not a credible or trustworthy witness. The Board noted that the applicant travelled to the United States in July 2001, and remained there for more than a year and a half without claiming asylum. The Board found that this points to a lack of subjective well-founded fear of persecution. The Board noted the applicant's claim that if he were to return to Pakistan today, he would not be able to obtain state protection. However, the objective documentary evidence indicates that the government of Pakistan has banned a number of terrorist organizations, including the SSP, and that the government is making serious efforts to protect its citizens from sectarian violence.

[4]    The Board also noted key facts that the applicant failed to mention in his Personal Information Form ("PIF") but that were revealed during his oral testimony: The applicant's communication with U.S. lawyers about making a claim for asylum there; his communication with the Canadian Embassy in the U.S. concerning obtaining a Canadian visitors visa; and the advice he received that the Canadian Embassy could not issue a visitors visa to those who were in his position. The Board found that the applicant did not present a satisfactory explanation for not including this information in his PIF, and that the omission of this information points to a lack of credibility.

[5]    The Board noted the applicant's claims that SSP activists fired shots at his car in June 2001, and that this forced him to leave Sahiwal and hide in Chakwal from June to July 2001. His PIF narrative indicated that he applied for a U.S. visitor's visa after he went into hiding in Chakwal. However, the applicant's passport indicated that he had a scheduled interview with United States Embassy officials in Islamabad on June 7, 2001, and the Board found it reasonable to expect that the applicant would have had to apply before June 7, 2001 in order to obtain this interview date. The Board found that the applicant had applied for a U.S. visitor's visa well before June 2001, and therefore before the alleged SSP shooting. The Board concluded that the applicant's evidence relating to the SSP shooting is not plausible, and did not accept that SSP activists in Sahiwal ever shot at the applicant.

[6]    The Board also mentioned the applicant's allegation that he was attacked by the SSP in April 2001. The applicant claimed to have been beaten and badly injured in this attack and "admitted into hospital for one week to obtain medical treatment." However, the medical reports indicated that the applicant was in the hospital for two or three days. The Board concluded that the medical documentation did not support the applicant's evidence that he was badly beaten by anyone in April 2001.

[7]    The applicant presented a number of letters from various sources in Pakistan that allegedly corroborate his evidence. However, the Board found that many of these letters are either inconsistent with the applicant's own evidence or are not corroborated by the medical documentation presented. Based on the Board's negative credibility findings, the Board concluded that the applicant did not present credible or trustworthy evidence that he ever had any difficulties with the SSP in Pakistan.

[8]    The Board noted that when the applicant was asked why he did not claim asylum in the United States, he stated that he consulted immigration lawyers who told him that no asylum claims were being accepted in the United States. However, the Board did not accept that the applicant would have received this advice if he had in fact experienced what he claims occurred to him in Pakistan. The Board also found that the applicant's delay in coming to Canada to seek refugee protection was indicative of his lack of subjective fear of serious harm should he return to Pakistan.

[9]    The applicant acknowledged that since his departure from Pakistan in July 2001, the Pakistani government has banned the SSP. The applicant said that he was aware that the government had banned the SSP, along with other religious terrorist groups, in January 2002. However, he alleged that Pakistan would not be able to provide him with adequate protection should he return today. The Board found, however, that the documentary evidence clearly indicated that Pakistan has been attempting to deal with sectarian terrorist groups such as the SSP for many years. Therefore, the Board found that the applicant had failed to rebut the presumption of the availability of state protection with "clear and convincing proof". Therefore, the Board did not accept that the applicant would not be able to obtain adequate and effective state protection should he return to Pakistan today. The Board also noted that the state protection that the applicant receives in Pakistan need not be perfect.

Applicant's Submissions

Standard of Review

[10]                        The applicant submitted that while the Court shows great deference to the Board's credibility assessments and findings of fact, this Court will intervene where the Board makes critical findings of fact without providing a clear evidentiary basis.

The Board Made Critical Findings Without Providing a Clear Evidentiary Basis

[11]                        The applicant submitted that the Board had made critical findings of fact which are unsupported by any credible evidence. The Board found that Pakistan has banned a number of terrorist organizations including the SSP. However, no evidentiary basis is provided for such a finding, and while the government made verbal commitments to ban terrorists groups within the country, most of these commitments were inadequately enforced. In fact, groups such as the SSP changed their names, leaders went underground, bank accounts were transferred to clandestine accounts, and terrorist acts continued unabated.

[12]                        The Board noted that the applicant's consultation with two American lawyers was omitted from his PIF. The applicant testified that his PIF included only brief notes of his entire claim, but the Board was not satisfied with this explanation. However, the Board has not offered any reason for this dismissal, which conflicts with the Board's finding, immediately after, that "the claimant consulted legal counsel in the United States". Therefore, the Board seems to have accepted the evidence as true while impugning the applicant's credibility on this issue.

[13]                        The Board found that the applicant could not have applied for and obtained a U.S. visitor visa while he was hiding in Chakwal. However, the Board offered no evidentiary basis for this finding. It never asked the applicant if he attended the American Embassy in Islamabad in order to obtain the visa and how and when he attended. Instead, the Board conducted an "after the fact" analysis of the evidence without providing the applicant an opportunity to comment on his actions (see Aden v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 416 (C.A.)(QL)). Finally, because the agent of persecution was the SSP and not the State, it is possible that even while hiding from the SSP in Chakwal, the applicant could have ventured into Islamabad to attend the U.S. Embassy for the purposes of acquiring a visitor visa.

[14]                        The Board cited a medical letter, and stated that because the letter did not detail the attack on the applicant by extremist Sunni groups in April 2001, the document does not corroborate this allegation. In making this finding, the Board focused on what the letter did not state rather than on what it did state, and ignored this letter's consistency with the applicant's viva voce evidence. The applicant noted that the Board did not reject the applicant's own version of the April 2001 SSP attack. The applicant also submitted that the Board dismissed Maulana Muhammad Hussain's affidavit on the basis of it not stating what the Board believed it should have said. The Board came to a similar conclusion with respect to the letters and affidavits that the applicant presented from his family. The applicant argued that the Board failed to provide any evidentiary basis for rejecting all of these documents.

[15]                        The applicant submitted that the Board rejected a media report that specifically mentioned the applicant's name and his problems at the hands of the SSP. The Board noted the inconsistency between the report's statement that the applicant spent "many days" in the hospital and the medical documentation which stated that the applicant was hospitalized for three days. The applicant argued that this is hardly a glaring and significant contradiction, and that the Board disregarded the remaining information in the media report which corroborated the crux of the applicant's claim.

[16]                        The applicant noted the Board's finding that the applicant would not have been advised by legal counsel in the U.S. not to claim asylum there. While the Board had previously found this information to be omitted from the PIF and therefore not credible, it now appears to accept the fact that the applicant did approach U.S. counsel for advice on what to do about claiming asylum in the U.S. Furthermore, the Board offered no comment on what U.S. counsel would or would not have said to the applicant.

[17]                        Regarding the issue of state protection, the applicant submitted that it would have been proper for the Board to seek out and assess recent credible evidence regarding the treatment of Shia lawyers by the SSP (see Sivabalaretnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 224 (T.D.)(QL)). In fact, numerous sources before the Board have stated that Shia professionals such as lawyers are among those at the greatest risk of attack by the SSP. Furthermore, no evidentiary basis was provided for the Board's finding that the state had made "serious efforts" to deal with the SSP, except for a reference to certain information that was not provided. In fact, the government had made verbal commitments which had not been adequately implemented. In January 2002, the government arrested approximately 2,270 extremists, although within days or weeks all but 250 were released.

The Board Placed Undue Weight on a Minor Inconsistency

[18]                        The applicant submitted that his PIF narrative originally stated that he spent one week in the hospital, but this information was amended prior to the start of the hearing to read three days. The Board accepted this amendment at the start of the hearing, but in its reasons it stated that the applicant testified that he remained hospitalized for one week. It appears that the Board relied on the original PIF narrative instead of the amended information. This reliance led the Board to further state in its reasons that the medical documentation does not corroborate the applicant's own evidence that he was hospitalized for one week. The Board used this inaccurate evidence to impugn the applicant's credibility.

Respondent's Submissions

Credibility Findings

[19]                        The respondent submitted that the Federal Court of Appeal has held that adverse credibility findings are properly made as long as the tribunal gives reasons in "clear and unmistakable terms" (see Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.)(QL)). The findings should be supported by examples. The Board's finding that the applicant's evidence was not credible was made in clear and unmistakable terms and was supported by specific reference to the evidence.

[20]                        With respect to the applicant's contention that he was never confronted by the Board about attending the American Embassy in Islamabad, there is no legal obligation on the RPD to confront a witness with contradictions (see Mataraje v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460 (T.D.)(QL)).

[21]                        In response to the applicant's submissions, the respondent argued that the Board did not require the applicant to produce a medical report which laid out in detail the fact that the applicant was attacked and beaten by one of the country's Sunni extremist groups in April 2001. Rather, the Board noted that the documents tendered by the applicant did not indicate that he was hospitalized for one week and did not detail his alleged injuries.

State Protection

[22]                        The respondent submitted that if a refugee claimant cannot deduce clear and convincing evidence to rebut a presumption that state protection is available, he or she cannot be found to be a Convention refugee or a person in need of protection (see Sarfraz v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 1974 (T.D.)(QL)). The respondent submitted that given the evidence that was before the Board, it was reasonably open to the Board to find that the applicant had failed to rebut this presumption.

[23]                        The respondent noted that this Court has considered the assessment of state protection in Pakistan in other judicial review applications. In Javaid v. Canada (Minister of Citizenship and Immigration), 2004 FC 205, the Board found that the preponderance of the evidence, but not all of the evidence, strongly suggested that authorities were making serious efforts to deal with sectarian violence and that the SSP no longer operates with impunity. Madam Justice MacTavish held that it was not the role of the Court to re-weigh all the evidence on the issue of the availability of state protection.

[24]                        In Sultan v. Canada (Minister of Citizenship and Immigration), 2003 FC 1339, the Board based its decision on documentary evidence which demonstrated the government's willingness to address the issue of religiously motivated violence. Justice Beaudry found that the Board properly considered the availability of state protection and dismissed the application for judicial review.

[25]                        In Razzaq v. Canada (Minister of Citizenship and Immigration), 2003 FC 864, the applicant argued that changes in Pakistan have occurred recently and the situation has not stabilized. Madam Justice Snider held that the issue of changed circumstances is a question of fact and that there was documentary evidence to support the Board's conclusion that on a balance of probabilities, Pakistan was making serious efforts to provide adequate protection for Shia citizens.

[26]                        In Ali v. Canada (Minister of Citizenship and Immigration), the applicants, all Shia Muslims, testified about several incidents of persecution by the SSP and a lack of police response to these incidents. The Board concluded that while sectarian violence existed in Pakistan, the government had been making a serious effort to curb such violence. The applicants contended that the Board erred in relying on statements made by President General Musharaff announcing attempts to curb sectarian violence, although the findings were not disturbed on judicial review.

[27]                        Finally, in Akhtar v. Canada (Minister of Citizenship and Immigration), 2003 FCT 541, the Board acknowledged (i) the existence of violence between Shia and Sunni extremists; (ii) that Pakistan had difficulty stamping out this violence; (iii) that Pakistan has taken steps to curb religious extremism; (iv) that the SSP has been banned; (v) that sectarian violence is addressed through law enforcement. On judicial review, the applicant contended that the Board did not fairly deal with the evidence on protection. The Court upheld the Board's findings, and Justice Lemieux observed that the tribunal accurately portrayed the documentary evidence, particularly in light of its appreciation that protection against sectarian violence or sectarian terrorism is not perfect in Pakistan.

Issues

[28]                        The issues as argued before me were:

1.    Did the Board err in its credibility findings?

2.          Did the Board err in its findings regarding the availability of state protection for the applicant?

Relevant Statutory Provisions

[29]                        Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.