Date: 20020426
Docket: IMM-237-01
Neutral citation: 2002 FCT 452
BETWEEN:
AQEEL KHOKHAR
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
GIBSON, J.:
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that expression in subsection 2 (1) of the Immigration Act[1]. The decision of the CRDD is dated the 11th of January, 2001.
[2] The applicant is a young male citizen of Pakistan. He bases his claim to a well-founded fear of persecution in Pakistan at the hands of members of the Pakistan Muslim League (the "PML") and the police by reason of his political opinion. The CRDD accepted the applicant's evidence that he was, from 1993, a member of the People's Youth Organization (the "PYO") and the Pakistan People's Party (the "PPP").
[3] The applicant alleged that members of the PML attacked and beat him in 1994 and 1995, and threatened to kill him if he did not quit the PYO and PPP and join the PML. He alleged that police detained him for five days following his participation in a protest rally after the PPP government was dismissed in November, 1996. He further alleged that members of the PML attacked and destroyed his party's campaign office in 1997 during the course of an election campaign. Further, he alleged that shortly after the 1997 election, members of the PML shot and killed two of his friends and fellow PPP members as they left their PYO offices. He testified that the police refused to register a case against the PML members involved in the shooting, despite the fact that he witnessed the shooting and reported the matter to the police.
[4] The applicant further alleged that he took part in the local bodies' elections of May, 1998, despite threats from members of the PML. He alleged that the police detained him on the election day in relation to those elections and kept him overnight. He alleged that members of the PML raided his home the same night that he was released by the police and that he managed to escape his home. Thereafter he fled to the home of a friend in another community, where he remained in hiding. He alleged that early in August of 1998, persons he believed to be members of the PML shot and killed the friend to whose home he had fled. Once again the applicant fled, this time to Rawalpindi.
[5] The applicant alleged that once again, police raided his home looking for him in early September, 1999, following his participation in a protest strike. When the police did not find the applicant, they arrested his father. In the course of this incident, he alleged he learned that a First Information Report had been issued against him by the police. In the result, he went into hiding for a third time and made arrangements to leave Pakistan to come to Canada.
[6] The CRDD's summary determination appears in the following form in its reasons:
The panel determined that the claimant is not a Convention refugee. The panel found that accounts of incidents of police and PML interest in the claimant are not credible. They were fabricated to embellish the claim. Documents provided to support them are given little or no weight as the panel found them to have been crafted to embellish the claim.
[7] Counsel for the applicant urged that the CRDD erred in a reviewable manner by basing its decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before it, by basing its decision on its own speculative assumptions contrary to the evidence before it, and by dismissing the applicant's claim, notwithstanding that it acknowledged that the applicant was a member of the PYO and the PPP and held an executive position at the level of his locality.
[8] In brief but well presented reasons, the CRDD dismissed many of the allegations made by the applicant. It found his accounts of certain of the events to be "...rife with unclear explanations..." It found certain of the activities of the police against which he complained to not be unreasonable in the context of political turmoil in Pakistan at the relevant time. It gave little weight to the First Information Report and arrest warrants that were before it on the basis that it simply did not believe that, at the relevant time, the police would have had any interest in the applicant. It equally gave little weight to a letter purporting to support the First Information Report and the arrest warrants on the basis of a forensic report provided by the Royal Canadian Mounted Police indicating "...some apparent anomalies..." in the letter.
[9] Following its review of the evidence, the CRDD concluded in the following terms:
The panel finds that the claimant has not provided sufficient credible evidence to support allegations of PML and police interest in him. The panel finds that there is less than a reasonable chance that the PML or the police will persecute him if he were to return to Pakistan today.
[10] Considerable deference is owed to the CRDD on the issue of findings of fact. In Union of Public Employees, Local 301 v. Montreal (City)[2], Madam Justice L'Heureux-Dubé wrote:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: ... . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.
[citation omitted]
[11] I have reviewed the documentary evidence that was before the CRDD, as disclosed in the tribunal record, and the transcript of the hearing before the CRDD. Against that review, I cannot conclude that the totality of the evidence that was before the CRDD was incapable of supporting the CRDD's findings of fact.
[12] Based on those findings of fact, the CRDD determined that the applicant was not at risk of persecution by reason of his political opinion if he were required to return to Pakistan. This determination is not a determination of fact but rather, I am satisfied, a determination of mixed fact and law.
[13] In Adjei v. Canada (Minister of Employment & Immigration)[3], Mr. Justice MacGuigan, for the Court, wrote at p. 683:
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[14] I find no basis on which to conclude that the CRDD applied a wrong test in concluding as it did. Further, I am satisfied that its conclusion in law on the facts found by it, which findings were open to it, was equally open to it.
[15] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a serious question of general importance arising out of this matter. I agree. No question will be certified.
J.F.C.C.
OTTAWA, Ontario
April 26, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-237-01
STYLE OF CAUSE: AQEEL KHOKHAR v. MCI
PLACE OF HEARING: CALGARY, ALBERTA DATE OF HEARING: April 16, 2002 Reasons for order of the honourable Mr Justice Gibson DATED: April 26, 2002
APPEARANCES:
Mr. Satnam S. Aujla FOR THE APPLICANT
Mr. Brad Hardstaff FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Satnam S. Aujla FOR THE APPLICANT
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada