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Date: 20050203

Docket: IMM-3857-04

Citation: 2005 FC 168

Ottawa, Ontario, this 3rd day of February, 2005

PRESENT:      The Honourable Mr. Justice Harrington

BETWEEN:

                                                    QAISER MAHMOOD NAZIR

                                                                FAISAL NAZIR

                                                                                                                                           Applicants

                                                                           and

                                                            THE MINISTER OF

                                             CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Qaiser Nazir and his younger brother, Faisal, have journeyed from Pakistan to Canada via the United States. On arrival here they claimed refugee status based on Qaiser's political activities which allegedly led to more than one arrest, police brutality and severe personal injury. The Refugee Protection Division of the Immigration and Refugee Board turned down the claims on grounds of credibility. This is a judicial review thereof.

[2]                The Panel did not accept that Qaiser was actively involved in the Pakistan People's Party or that he was tortured by the police who broke his leg or that his younger brother, Faisal, was subsequently subjected to police persecution.

[3]                In addition, Qaiser spent five and a half months in the United States as an illegal alien, and drew attention to himself by applying for a Pakistani passport. The Panel characterized this "as behaviour which is not consistent with that of a subjective fear of persecution".

[4]                Both issues are ones of fact. Although the Nazirs' counsel has put the Panel's findings as to what really happened in Pakistan in doubt, it is not necessary to reach a conclusion as to whether those findings were patently unreasonable as per Aguebor v. Canada (Minister of Employment and Immigration), [1993] 160 N.R. 315; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, for even if there were grounds for an objective fear, there must also be a subjective fear of persecution (Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689).

[5]                The record more than justifies a finding as to Qaiser's lack of fear. He spent five and a half months in the U.S. post 9/11. He said he had originally intended to apply for asylum but was dissuaded by acquaintances and a Pakistani lawyer practising in New York.

A.            I have asked people I ran into: "How can I be safe in U.S.A. ? How can I have protection in U.S.A.?" And the people who are of Pakistan origin told me : "Why bother doing all that, you just live here and keep on working."


The lawyer added he would likely be refused. Yet when interviewed he said he moved to Connecticut because "there were too many cops in New York ... I thought I had a better chance to survive".

[6]                This was a man who was content to live indefinitely in the U.S., working under the table, knowing that if he came to the attention of the authorities he risked deportation and with each passing day his failure to claim asylum in the U.S. would work against him. The Panel's finding he lacked subjective fear was not patently unreasonable. Faisal is in the same situation as he also went to the U.S.

[7]                There is no question to certify.

                                               ORDER

Judicial review of the decision of the Immigration and Refugee Board (Refugee Protection Division) rendered on 2 April 2004 in files numbers MA3-01713 and MA2-01714 stating that the applicants are not Convention refugees, is hereby dismissed.

"Sean Harrington"

                                                                                                   Judge                     


                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-3857-04

STYLE OF CAUSE:                                       QAISER MAHMOOD NAZIR

FAISAL NAZIR

                                                                        AND

THE MINISTER OF

CITIZENSHIP AND               IMMIGRATION

PLACE OF HEARING:                                             MONTREAL, QUEBEC

DATE OF HEARING:                                               JANUARY 25, 2005

REASONS FOR ORDER

AND ORDER :                                              HARRINGTON J.

DATED:                                                           FEBRUARY 3, 2005

APPEARANCES:

Stewart Istvanffy                                                FOR APPLICANTS

Édith Savard                                                      FOR RESPONDENT

SOLICITORS OF RECORD:

Stewart Istvanffy

Montreal, Quebec                                             FOR APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT


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