Date: 20020726
Docket: IMM-4127-01
Neutral citation: 2002 FCT 825
BETWEEN:
NAQI MOHD KHAN
and KHAJIDA KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] In this judicial review of a negative decision by the Immigration and Refugee Board, the Board found that the male Applicant's fear of persecution in Azad Kashmir by reason of his political opinion was well-founded. However, the Board went on to find that he had an internal flight alternative outside of Azad Kashmir.
[2] The Board found that the male Applicant, who lived in Azad Kashmir, was a political activist with the United Kashmir Peoples National Party (UKPNP) and formerly the Jammu-Kashmiri Peoples National Party (JKPNP) who criticized the governments of Azad Kashmir and Pakistan. It also found that a First Information Report (FIR) was registered against the male Applicant charging him with anti-state activities which carried a penalty of up to life imprisonment or death. The Board then found that Pakistan Police authorities arrest and detain individuals who are active supporters of a secular and non-religious independent Azad Kashmir which is the political position of the UKPNP. The Board referred to documentary evidence which indicated that independent Azad Kashmir activists are sometimes eliminated in "police encounters" or with the assistance of local pro-Pakistan militants. Although the Board was not explicit, I infer that these findings relate to circumstances in Azad Kashmir and not elsewhere in Pakistan.
[3] While finding that the male Applicant had a well-founded fear of persecution in Azad Kashmir, the Board found that he had a viable internal flight alternative in Pakistan. The Board said that because of the localized nature of his activities, there was no more than a mere possibility that the male Applicant would come to the attention of the authorities elsewhere in Pakistan.
[4] The Board also considered the evidence of the male Applicant that he would remain active respecting the secular independence of Azad Kashmir were he to relocate elsewhere in Pakistan. However, the Board found that with one exception, there was no evidence that such activists are targeted by police or fundamentalist groups outside of Azad Kashmir. There was evidence that the Secretary-General of the UKPNP was able to explain his party's pro-Kashmir independence agenda in a public forum in Islamabad without fear of retaliation. The Board concluded that there was no more than a mere possibility of the Applicants suffering persecution outside of Azad Kashmir.
[5] The main thrust of the male Applicant's submission in this Court is that it was unreasonable for the Board to find a viable IFA in view of the registered FIR charging him with anti-state activities. He says the FIR takes him out of the category of persons who simply advocate an independent secular Azad Kashmir. He says that he would be at risk anywhere in Pakistan because of the FIR. The male Applicant says because of his low profile, he is at a higher risk of persecution than the supporters of the UKPNP that have a high profile. Finally, the male Applicant argues that it was not reasonable to expect him to seek refuge elsewhere in Pakistan when the authorities he fears are the Pakistan police and army.
[6] I have given careful consideration to Applicants' counsel's well-articulated arguments and especially the fact that the male Applicant is the subject of an FIR charging him with anti-state activities. However, I am mindful that it is not for me to substitute my discretion for that of the Board.
[7] Having regard to the Board's reasons in this case, I first note that they are thorough and comprehensive. They deal with the Applicant's arguments carefully and coherently. More specifically, the Board took into account the FIR and that a person could be arrested on the basis of the FIR even without an arrest warrant. Nonetheless the Board considered that the FIR was registered only at the Rawalakot Police Station and at the local courthouse in Azad Kashmir. The Board found on the basis of documentary evidence that the legal system in Azad Kashmir was separate from the rest of Pakistan. Further, the Board found that the male Applicant had no national profile in Pakistan and that his political activities were restricted to the Rehara and Rawalakot areas of Azad Kashmir. It was on this basis that the Board concluded that there was no more than a mere possibility of the male Applicant coming to the attention of the Pakistan Police authorities outside of Azad Kashmir or that he would be arrested on the basis of the FIR registered against him in Rawalakot. The Board also found, because of the local nature of the male Applicant's political activities and his lack of national profile that there was not more than a mere possibility that he would come to the attention of the Pakistan army or Inter-Service Intelligence Services which had authority throughout Pakistan.
[8] I have some concern that the FIR renders the male Applicant more vulnerable outside of Azad Kashmir than if he were only a political activist. However, in its reasons, the Board took express account of the FIR. I cannot say that it ignored the point or that its consideration of it was unreasonable.
[9] I have also considered whether a well-founded fear of persecution by the police in Azad Kashmir makes it unreasonable to expect the Applicant to seek refuge in another part of Pakistan. Applicant's counsel referred to Khan v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 119 (F.C.T.D.), in which MacKay J. found that it was a reviewable error that the Board in that case failed to address the question of persecution by national authorities when considering an internal flight alternative. At paragraph 7 of Khan, supra, MacKay J. cited Sharbdeen v. M.E.I. (1994), 23 Imm. L.R. (2d) 300 (C.A.), in which Mahoney J.A. stated:
Suffice it to say, we are of the opinion that the learned trial judge was correct in concluding that, having regard to all the circumstances here, the Refugee Division had erred in finding an IFA. Once a well-founded fear of persecution at the hands of the national army in a part of the country it controlled had been established, it was not reasonable to expect the Respondent to seek refuge in another part of Sri Lanka controlled by the same army. [...]
Applicants' counsel does not argue, and I do not think, that the statement of Mahoney J.A. in Sharbdeen, supra, is a statement of law that is applicable in all cases. The circumstances must always be considered. Indeed, MacKay J., in Khan, supra, found that the error of law was only in the Board's failure to address the possibility of persecution at the hands of the national authorities.
[10] In the present case, the Board expressly addressed the issue. It found that the legal system in Azad Kashmir was separate from that of the rest of Pakistan. It found that the male Applicant had no national profile for his political activities. It determined that there was no documentary evidence that UKPNP activists with a profile similar to the male Applicant were targeted by the authorities or pro-Pakistan militant groups outside of Azad Kashmir.
[11] The Board dealt with those issues that were relevant to its consideration of an internal flight alternative for the Applicants. I cannot say that its conclusion was unreasonable. As I noted earlier, the Board's reasons on this point were thorough and addressed all concerns expressed by the Applicants.
[12] In spite of Applicants' counsel's able argument, I am of the opinion that this judicial review should be dismissed.
"Marshall Rothstein"
J. A.
Ottawa, Ontario
July 26, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4127-01
STYLE OF CAUSE: NAQI MOHD KAHN
KHAJIDA BEGUM KHAN Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: July 08, 2002
REASONS FOR ORDER: ROTHSTEIN, J.A. (ex officio)
APPEARANCES: Mr. G. Michael Sherritt
For Applicant
Ms. Kerry A. Franklin
For Respondent
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta For Applicant
Morris Rosenberg For Respondent
Deputy Attorney General of Canada