Ottawa, Ontario, December 16, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Mohammad Imran Akhtar Malik, the applicant, is a citizen of Pakistan who arrived in Canada on August 27, 1999, as he was entitled to do, in accordance with a student visa issued to him. On August 14, 2003, he and 17 other individuals were arrested as part of an investigation which became known as "Project Thread". Enforcement authorities made public statements at that time to the effect that Mr. Malik and others were suspected of being members of an Al Qaeda sleeper cell. This news story was reported in many major Canadian and Pakistani newspapers. Mr. Malik was later released from detention on bail on August 30, 2003. He was one of the first detainees to be released. The charges against Mr. Malik were eventually dropped due to a lack of evidence of wrongdoing.
[2] In November of 2003, Mr. Malik made a sur place refugee claim and a claim for protection on the basis that he was a member of a social group identifiable as "terror suspects". He brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") that he was neither a Convention refugee nor a person in need of protection because he failed to establish a serious possibility, or a reasonable chance, that he will experience persecution or other form of serious harm, including torture, or that his life will be at risk should he return to Pakistan. For the reasons that follow I have determined that the application should be dismissed.
[3] Mr. Malik asserts that the Board committed three reviewable errors in reaching its decision. He says that:
1. The Board erred in finding that the acts and conduct he feared did not constitute persecution.
2. The Board failed to assess his claim under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") and to provide reasons for that assessment.
3. The Board erred by failing to evaluate the availability of state protection.
DID THE BOARD ERR IN FINDING THAT THE FEARED ACTS AND CONDUCT DID NOT CONSTITUTE PERSECUTION?
[4] As a matter of law, the Board's findings of fact are reviewable on the standard of patent unreasonableness. As for the Board's determination of what constitutes persecution, the identification of persecution is a question of mixed fact and law reviewable on the standard of reasonableness simpliciter. Thus, where the RPD proceeds "with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein" the intervention of the Court is not warranted unless the conclusion reached by the RPD is unreasonable. See: Sagharichi v. Canada(Minister of Employment and Immigration)(1993), 182 N.R. 398 (F.C.A.) at paragraph 3.
[5] In the present case, the main thrust of Mr. Malik's claim was that if returned to Pakistan he would be detained, interrogated and tortured because he had been detained and labelled as a terror suspect in Canada. The Board therefore considered the evidence before it concerning the treatment meted out to other similarly situated detainees who have returned to Pakistan. The Board summarized the evidence on this point to be as follows:
- Some detainees, but not all, were interrogated at the airport. In all cases the questioning lasted for less than 24 hours. All were released, some after payment of a bribe or bail. At least one detainee had his passport seized and not returned.
- Some detainees have complained that they have not been able to obtain employment in the approximately five or six months following their return to Pakistan.
- A few detainees have received threats.
- Two detainees were beaten on one occasion each.
- One detainee had his car stolen.
- Some detainees have stated that they are afraid to move about openly.
[6] No issue is raised at the accuracy of such summary, and I am satisfied that such finding, essentially one of fact, was not patently unreasonable.
[7] The Board then turned to consider whether such conduct amounted to persecution. The Board wrote, "For harm to be considered persecution it is usually necessary to show the harm is sustained and serious".
[8] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 63 the Supreme Court of Canada considered what constitutes persecution at law and wrote:
"Persecution", for example, undefined in the Convention, has been ascribed the meaning of "sustained or systemic violation of basic human rights demonstrative of a failure of state protection"; see Hathaway, supra, at pp. 104-105. So too Goodwin-Gill, supra, at p. 38, observes that "comprehensive analysis requires the general notion [of persecution] to be related to developments within the broad field of human rights". This has recently been recognized by the Federal Court of Appeal in the Cheung case.
[9] In N.K. v. Canada (Solicitor General) (1995), 107 F.T.R. 25 (T.D.) my colleague Madam Justice Tremblay-Lamer noted, at paragraph 23, that the "factual situations which the courts have found to constitute persecution generally involve acts of violence which are often accompanied by death threats". On the basis of the decision of the Supreme Court in Ward and jurisprudence to similar effect as N.K., I am satisfied that the Board did not err in law in articulating the nature of conduct that rises to the level of persecution.
[10] The Board then went on to conclude that the treatment of other similarly situated detainees on their return to Pakistan did not rise to level of persecution. In this regard, it concluded that:
· Being questioned for less than 24 hours upon return to one's home country, without any infliction of physical harm, in circumstances where one is deported to one's home country because of immigration violations (as was the case with respect to the other detainees) is not serious harm.
· Being unable to find employment within a few months of return to Pakistan is not uncommon, and there are many reasons why a person who has been out of the country might encounter difficulty finding employment. There was insufficient evidence to find on a balance of probabilities that returnees would be unemployed in the future as a result of Canadian investigation and detainment.
· Threats by unknown individuals by themselves did not constitute persecution, nor did an isolated incident of a beating where no permanent or serious harm occurred, nor did the theft of one's car, nor did the payment of a one-time bribe.
· The claim of not being able to move about openly in Pakistan was inconsistent with what other detainees reported. The record showed one detainee had appeared on a talk show to discuss his arrest, a number of news reports were based upon interviews with detainees, and a public press conference was held where a number of detainees threatened to sue Canada.
[11] Having subjected to a somewhat probing examination the Board's conclusion that the conduct other returning detainees faced was not persecution, I find that the conclusion is supported by reasons that withstand scrutiny. The conclusion of the Board was not unreasonable.
[12] Mr. Malik complains that the Board demonstrated "a gross misunderstanding and cultural bias" by finding that "[t]he payment of a one-time bribe is not unusual in Pakistan and again does not on its own or in combination with other minor difficulties meet the serious or sustained test" and by stating that "in many places of the world such as Pakistan the requirement to bribe officials is both accepted and expected". The Board's choice of language was unfortunate to the extent it incorrectly infers that people in Pakistan are content with a situation where bribes may be exacted. However, extortion by itself does not necessarily constitute persecution, and in all of the circumstances (including the evidence with respect to the frequency with which bribes were requested) the Board found conduct did not constitute persecution. That was not an unreasonable finding, particularly where the fear of extortion was not even raised by Mr. Malik in his Personal Information Form.
DID THE BOARD ERR BY FAILING TO ASSESS THE CLAIM UNDER SECTION 97 OF THE ACT?
[13] Mr. Malik submits that the Board erred by failing to consider his claim under section 97 of the Act and further erred by failing to provide any analysis or reasons with respect to this claim.
[14] It is, I believe, always preferable for the Board to conduct a separate section 97 analysis. However, the failure to conduct such an analysis does not amount to a reviewable error where there is no evidence that requires separate analysis.
[15] In the present case, the sole basis of Mr. Malik's claim was upon a Convention ground: his membership in a particular social group. Since I have been satisfied that the Board's analysis of his risk if returned to Pakistan was sufficient to support its conclusion that Mr. Malik is not at risk of persecution, it follows that he is equally not a person in need of protection.
[16] The Board appears to have recognized this in its co-mingled consideration of the risk of persecution and serious harm. Indeed, the Board advised Mr. Malik's counsel that unless she asked it to do a separate analysis with respect to sections 96 and 97 of the Act, the Board would not. There is no indication on the record that such a request was made. In the circumstances, I find that the Board's reasons contained in its co-mingled section 96 and 97 analysis were sufficient to dispose of the section 97 claim.
DID THE BOARD ERR BY FAILING TO EVALUATE THE AVAILABILITY OF STATE PROTECTION?
[17] Mr. Malik argues that since the actions he fears are actions of the police (i.e. a state agent), the Board ought to have considered whether Pakistan is capable of protecting its citizens. In my view, no such separate analysis was required once the Board found that Mr. Malik failed to establish a well-founded fear or risk of harm at the hands of the police.
CONCLUSION AND CERTIFICATION
[18] It follows that the application for judicial review will be dismissed. Counsel for Mr. Malik posed the following question for certification:
Regardless of whether the Refugee Protection Board finds a nexus to a Convention ground, is an applicant entitled to a decision under both sections 96 and 97 of the Act, and reasons that reflect such a decision?
[19] The Minister opposed certification on the basis that this question would not be determinative of an appeal. In view of my conclusions that the Board did consider each section of the Act and that its reasons were, in the circumstance, adequate, I agree. No question will be certified.
ORDER
[20] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3446-05
STYLE OF CAUSE:
MOHAMMAD IMRAN AKHTAR MALIK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 29, 2005
REASONS FOR ORDER AND ORDER: DAWSON J.
APPEARANCES:
Amina Sherazee FOR THE APPLICANT
John Provart FOR THE RESPONDENT
SOLICITORS OF RECORD:
Amina Sherazee
Downtown Legal Services
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.