Date: 20050418
Docket: IMM-2331-04
Citation: 2005 FC 519
BETWEEN:
FARHAN NAGORI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant has applied for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated February 9, 2004 (the "Decision") in which he was found not to be a Convention Refugee.
[2] The Applicant is a citizen of Pakistan. At college, he became a member of the Muttahhida Quami Movement (Hagigi) ("MQM(H)"). His participation was at a very minimal level - he organized debates and book exchanges.
[3] In June of 2000, the Applicant was attacked by members of the Muttahhida Quami Mahaz (Altaf) ("MQM(A)") on his way home from a college function. He was hospitalized for three days. After his release, he filed a First Incident Report ("FIR") with the police in which he identified three of his assailants. He also terminated his membership in the MQM(H). The MQM(A) learned that he had filed the FIR and threatened severe reprisals.
[4] Almost one year later, in April 2001, the Applicant was kidnapped, beaten and held for three days by the MQM(A). His kidnappers told him that their actions were in response to the FIR. He was released when his father paid a ransom. The incident was not reported to the police and the Applicant left Pakistan three months later and went to the United States on a student visa. He was discovered working illegally and was required by U.S. authorities to return to Pakistan to apply for a new student visa. Instead, he came to Canada and claimed refugee status.
THE DECISION
[5] The Board's primary conclusion was that, since the Applicant stopped all MQM(H) activity in June of 2000, since his activities before then had been low profile and since he had no intention of rejoining the MQM(H), it was implausible that the MQM(A) would target him on his return to Pakistan.
[6] The Board also concluded that state protection in Pakistan for the Applicant was adequate.
THE ISSUES
[7] The Applicant said:
(i) that the Board erred in that it conducted a perfunctory and selective analysis of the objective documentary evidence and failed to refer to evidence which contradicted its conclusions about Pakistan's infrastructure and its efforts to prosecute members of the MQM(A);
(ii) that the Board failed to consider one of the Applicant's grounds for fearing persecution;
(iii) that the Board made a material factual error.
Issue 1 - The Documentary Evidence
[8] The Applicant says that the Board failed to support its conclusions with reference to the objective evidence and failed to assess documents which did not support its conclusions. The first impugned conclusion reads as follows: "Pakistan has in place an infrastructure (army, police and court system), including the Anti-Terrorism Court in Karachi, capable of providing state protection for its citizens . . ." (the "First Conclusion").
[9] The Applicant acknowledges that the Board is not required to refer to all documents but notes that there is no reference to any document which supports this broad conclusion. The Applicant says that the U.S. Department of State Report for Pakistan for 2002 shows that there are widespread problems with the judicial system and with the police and argues that the Decision must show that the First Conclusion was reached after consideration of the DOS Report.
[10] The Respondent says that the Board was not obliged to refer to the DOS Report. It says that it was not material in the context of this case in which the focus of the Board's decision was a student in his mid-twenties who had a brief low profile membership in the MQM(H) and experienced one assault based on that membership. The Respondent said that the Applicant is not going to be affected by policing and judicial shortcomings.
[11] The Applicant, on the other hand, says that the DOS Report shows that the police are sometimes involved in extra judicial killings and in the abuse and torture of detainees. Police have also used excessive force against journalists and demonstrators and have failed to protect members of religious minorities. They have practised extortion and operated arrest for ransom schemes and their corruption is described as widespread. Although serious steps had been taken by the government to improve the professionalism of police, the DOS Report indicated that the reforms had not had much impact by the end of 2002.
[12] I have considered the Applicant's submission but have found the Respondent's submission to be persuasive. I have, therefore, concluded that in the circumstances of this case, it was not necessary for the Board to discuss the DOS Report to support the First Conclusion.
[13] The second conclusion read as follows: " . . . according to documentary evidence the government of Pakistan has been making serious efforts to curb terrorist activities of the MQM(H) and MQM(A) (the "Second Conclusion").
[14] In support of the Second Conclusion, the Board relied on two incidents reported in the South Asia Intelligence Review for 2002 which involved the arrest and trial of MQM(A) activists and workers.
[15] The Applicant acknowledges that this is the only reference to MQM(A) personnel in the Tribunal Record but says that the Board should also have mentioned the Amnesty International Report of October 2002 which said there is no protection for professionals, westerners and Christians from targeted killings. Again, however, I accept the Respondent's submission that the Applicant does not fit the profile of those targeted and that the Board, therefore, was not required to mention this report in its Decision.
[16] The Board also concluded that ". . . just because there was no one arrested by the police as a result of registering the FIR, one cannot conclude the police refused to investigate or were incapable of protecting the claimant (the "Third Conclusion").
[17] The Applicant says that this conclusion was patently unreasonable because, although he had given the police his attackers' names no one was ever arrested. However, he acknowledged that he had not told the police their addresses. The Applicant nevertheless says that, although the police told him they were investigating, they were not credible and their word cannot reasonably be accepted. This is another situation in which the Applicant says that the Board was required to at least make reference to the DOS Report's negative conclusions about police. However, the focus of the DOS Report was police corruption and brutality. It did describe them as unprofessional but only in the sense that new recruits were not well-trained and that rates of pay were low. Notably it did not say that police failed to perform their basic duties. In these circumstances, I cannot conclude that the Board erred in reaching the Third Conclusion or that it was required to refer to the DOS Report.
Issue II - The Applicant's Fear(s)
[18] The Applicant's PIF said that he feared targeting by the MQM(A) because of his membership in the MQM(H) and, in my reading of the transcript, no other fear was suggested. There is nothing in the PIF or the transcript of the hearing to indicate that the Applicant feared future persecution from the MQM(A) in retaliation for his filing of the FIR.
Issue III - The Factual Error
[19] In its Decision, the Board said "When asked how the Hyderabad MQM(H) zonal organizer can still stay in Pakistan, the claimant said he did not know." In my view, this statement of the evidence was correct. At page 478 of the Tribunal Record, the Applicant was asked if the zonal organizer was in hiding and he replied that he was. He was then asked to speculate about how the zonal organizer managed and in response he said "I have no idea".
CONCLUSION
[20] For all these reasons an order will be made dismissing this application.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
April 18, 2005
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2331-04
STYLE OF CAUSE: FARAN NAGORI v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: March 8, 2005
PLACE OF HEARING: Toronto, Ontario.
DATE OF REASONS: April 18, 2005
APPEARANCES BY: Mr. Robert Blanshay
For the Applicant
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD:
Mr. Robert Blanshay
Toronto, Ont.
For the Applicant
Ms. Angela Marinos
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent