Federal Court Decisions

Date: 20050531

Docket: IMM-473-04

Citation: 2005 FC 780

Ottawa, Ontario, this 31st day of May, 2005

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

BETWEEN:

MUHAMMAD ALAMGIR, JAHANGIR MUHAMMAD

and NASHAQAT ZEBA

Applicants

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]    This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 5, 2003, wherein it was determined that the applicants are not Convention refugees nor persons in need of protection.

[2]    The applicants seek an order:

1.          setting aside the decision of the Board dated December 5, 2003, in which it was determined that the applicants Muhammad Alamgir, Jahangir Muhammad and Nashaqat Zeba are not Convention refugees nor persons in need of protection

2.         sending the applicants' claim to Convention refugee status and/or status as protected persons back to the Board for redetermination.

Background

[3]    Muhammad Alamgir ( the "principal applicant") and his parents, Jahangir Muhammad and Nashaqat Zeba, are citizens of Pakistan.

[4]    The principal applicant stated he joined the Pakistan Muslim League ("PML") in 1995. He gave numerous speeches on behalf of his party, worked in the 1997 election, and in 1997 was appointed General Secretary of his local PML unit.

[5]    As a consequence, he was persecuted by the rival Pakistan People's Party ("PPP") following the coup deposing the PML government, by the army. In 1995, the principal applicant was allegedly beaten by PPP members and arrested by the police upon the instigation of the PPP.

[6]    In the October 1999 coup, the principal applicant was detained and beaten by five army officers looking for information about PML leaders. He was released after four days. In November 1999, armed PPP members came to the applicants' home. Warned not to return home by his younger brother, the principal applicant went into hiding at an aunt's house. He decided to flee Pakistan and arrived in the United States on December 22, 1999.

[7]    After the principal applicant left Pakistan, the police and military raided the family home. His parents alleged they were threatened and humiliated. Approximately a month later, his father was taken to army headquarters, questioned and beaten in an attempt to discover the principal applicant's whereabouts. His parents left Pakistan in February 2000. The principal applicant's younger brother remains in hiding in Pakistan.

[8]    The applicants did not make a claim for asylum or otherwise obtain legal status to remain in the United States. They came to Canada in March 2003 and claimed refugee status at the border.

Reasons of the Board

[9]    The Board found that given the current political climate and the principal applicant's political profile, there was not more than a mere possibility that the applicants would suffer persecution or serious harm from either the PPP or the army if returned to Pakistan today. The Board's determination is as follows:

The principal claimant served as a General Secretary for his Local unit in Lahore. He agreed he had no national or provincial duties or responsibilities. He never stood as a candidate nor been elected to a municipal council, provincial or national assembly. He described himself as an ordinary member. The objective documents confirm that immediately following the coup political party leaders and rank and file workers of all stripes were arrested and detained. However, as Musharraf regime has consolidated its power, its interest in low-level political workers has subsided. While political leaders or officeholders may be at risk of arrest or detention I am satisfied, on a balance of probabilities, this is not the case for mere party supporters. The principal claimant's political profile is not such that he would face a serious possibility of harm or persecution by the government if he returned to Pakistan today.

The principal claimant made speeches on behalf of the PML against the PPP. Counsel suggested the claimant's speech making was the factor which set him apart from other low profile party members. While I note there is nothing to corroborate the extent and impact of the claimant's orations, even this is not a factor the objective documents show place him at risk from the PPP or the present government today.

The policies and programs of the PPP are not of any moment in the current political climate. The PPP last held power in 1997. It is now in opposition as is the PML(N). Counsel agreed that there is no reference in the recent objective documentation to PPP and PML(N) animosities in the post-coup political environment. Rather, it would appear the two parties have, to some degree, set aside their differences to pursue their mutual aim of the restoration of democracy. I am satisfied, on a balance of probabilities, that the PPP does not constitute any threat to the principal claimant in present-day Pakistan.

PML(N) members experienced harassment by the army and its supporters during the October 2002 election campaign. However the party has never been banned, was allowed to run candidates in the election and were successful in electing members to the National Assembly. Limits on freedom of speech and assembly introduced in the immediate post-coup period were lifted by the October 2002 election campaign. I am satisfied, on a balance of probabilities, the principal claimant is able to return to Pakistan, support the political party of his choice, exercise his right to speak on political matters, and doing so would face no more than a mere possibility of harm from the Musharraf government and its supporters including the army.

In reaching my conclusion, I have considered the allegations that the principal claimant's brother remains in hiding in Pakistan and that the army continued to seek the claimant after his initial detention in October. I am satisfied there is no credible or trustworthy evidence to support the allegations. The information about the brother's situation was not included in the PIF narrative or mentioned at the port-of-entry (POE). While the PIF does refer to the army coming to the parent's home and the arrest and beating of the father, this was not mentioned at the Port of Entry by either the claimant or his father. The claimant was not able to provide a reasonable explanation for the omissions from his PIF. He suggested his father's age, physical health and nervousness accounted for his failure to mention his arrest and beating during the POE interview. The father was not asked to testify on this matter and I draw a negative inference from this as a result. I further find it implausible the claimant, a low level worker having left the country in 1999 before the development of the Alliance to Restore Democracy or rise of the PML(Q), would continue to be of any interest to the army or any person in the Pakistan government nearly 4 years later.

Issues

[10]                        The issues as framed by the applicants are:

1.         Did the Board commit a patently unreasonable error of law by misstating key portions of the applicants' evidence and by omitting other relevant explanations and evidence provided by the applicants?

2.         Did the Board commit a patently unreasonable error of law by failing to provide adequate reasons and a clear evidentiary base for critical findings, particularly with regard to the objective country conditions facing the applicants in Pakistan today?

Applicants' Submissions

[11]                        Issue 1

The applicants submitted that the principal applicant's key evidence was that his parent's home was visited by the Pakistani army right after he fled Pakistan in November 1999, less than one month after the coup by current President Musharraf. The army humiliated his parents and threatened to put them behind bars if they did not produce the principal applicant to the local police station.

[12]                        The army returned approximately one month later and called the applicant, Jahangir Muhammad, into army headquarters in Lahore. There he was interrogated, beaten and detained because of his son. It was after this second incident that the principal applicant's parents decided to flee the country as well and join their son in the United States.

[13]                        The Board misstated these two separate incidents as if they occurred right after the principal applicant's departure in November 1999. The Board then continued to misstate the fact that the principal applicant's parents fled Pakistan in March 2000, when they in fact quickly fled in February 2000, after Jahangir Muhammad's army detention. The applicants submitted that this evidence went to the very heart of the "subjective fear", and the reasons they fear the same treatment if forced to return to Pakistan today.

[14]                        The applicants submitted that the curt reference to the principal applicant's sojourn in the United States clearly relates to the Board's assessment of credibility, subjective fear of return and the credible basis of the claim overall. The principal applicant testified that while in the U.S., he consulted with members of his Pakistani community and a U.S. immigration lawyer named Shakeel Qazami. The lawyer advised him not to seek asylum in the U.S. but to seek labour certification as a skilled worker, which he then did.

[15]                        The applicants submitted that the Board erred in stating that the principal applicant described himself as an "ordinary member" of the PML. The record of his hearing will show that he never stated this. He testified that he was an active member, giving speeches approximately twice a month before roughly 200 to 300 people until he departed Pakistan. He also stated that he became the General Secretary of his local PML in 1997 and that his activities were restricted primarily to Lahore. To wrongly state that the principal applicant was an "ordinary" party member is to wrongly state the entire basis of this refugee claim.

[16]                        The applicants submitted that the Board further erred in finding that the principal applicant was unable to provide a reasonable explanation for his father's failure to discuss his army arrest, beating and detention at the Canadian port-of-entry upon his arrival to Canada. The principal applicant testified that he and his parents were very nervous upon arriving to Canada. The principal applicant went on to state that the actual interview was brief and abrupt.

[17]                        Issue 2

The Board concluded that since the Musharraf regime has consolidated its power, its interest in low-level workers has subsided. The Board found that the principal applicant's profile is not such that he would face a serious possibility of harm or persecution by the government. The applicants submitted that no evidentiary base is provided for this specific critical finding. The Board has a duty to reference the actual specific evidence which clearly supports such critical findings (see Ali v. Canada (Minister of Citizenship and Immigration) 2003 FC 1115).

[18]                        The Board stated it considered the evidence of the principal applicant's brother remaining in hiding in Pakistan and that the army came looking for the principal applicant after he fled the country and found that the evidence is not credible. However, the letter from the principal applicant's uncle and the aunt's affidavit refers to the principal applicant's brother remaining in hiding with them in Pakistan. Both documents further confirm that after his departure from Pakistan, members of the PPP as well as other unidentified persons came looking for him. To require written corroborative evidence in the face of credible testimony is an error of law.

[19]                        The Board found that opposition political parties are not "banned" by the current government, are allowed to run candidates, and that former limits on freedom of speech have been lifted. The principal applicant submitted that the fact that his party is not officially "banned" and may run candidates is the very reason he says that the army and PPP feel threatened by people like him, and aim to dissuade them from supporting the PML(N) by any means possible.

[20]                        The applicants submitted that documentary evidence shows that the police continue to commit serious human rights abuses with impunity. Further, it contains repeated references to the abusive acts of Pakistan's security forces, including killing suspects in custody, torturing detainees, and extrajudicial killings (U.S. Department of State Pakistan Country Reports on Human Rights Practices - 2002, released March 2003). This is the very information relied upon by the principal applicant when discussing his fear of the army because of his political profile.

Respondent's Submissions

[21]                        The respondent submitted that the Board did not misstate the evidence. The Board provided a summary of the principal applicant's allegations and is not required to repeat every piece of evidence provided at the hearing (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)).

[22]                        The details not referred to have no bearing on the outcome of the Board's decision. For example, the Board concluded that given the political changes in Pakistan and the passage of nearly four years, the agents of persecution no longer pose a threat to the applicants. This finding would not change whether the Board specifically stated that the applicants' house was raided once or twice (see Ikegwuonu v. Canada (Minister of Citizenship and Immigration) 2003 FC 1124).

[23]                        The respondent submitted the fact that the principal applicant's parents left Pakistan in February 2000 and not in March 2000, does not amount to a reviewable error, as it does not have any impact on the final outcome of the Board's conclusion.

[24]                        The respondent submitted that regardless of the advice sought, and the fact that the applicants may have an outstanding application for a work permit in the U.S., the evidence remains that the principal applicant lived in the U.S. from 1999, and his parents from 2000, until 2003, and during that time they neither sought refugee protection, nor obtained any legal status.

[25]                        The respondent noted that contrary to the applicants' assertion, the reasons indicate that the principal applicant described himself as an "ordinary member" of the PML. Regardless of what the principal applicant has been labelled as, the Board found that the nature of his activities were not such that would place him in a risk profile.

[26]                        The respondent submitted that the Board provided clear, coherent and sufficiently detailed reasons for its decision .The principal applicant is asking this Court to re-weigh the documentary evidence, however, the Board is in the best position to weigh the evidence. The Board was entitled to weigh the competing evidence as it saw fit in order to determine the presence of a well-founded fear of persecution (see Hassan, supra).

Relevant Statutory Provisions

[27]                        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.