Date: 20050530
Docket: IMM-8257-04
Citation: 2005 FC 763
Ottawa, Ontario, May 30, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MOHAMMAD JAWAD IRSHAD
NAUSHEEN ATIF
ATIF QAYUM KHAN
(a.k.a. ATIF Qayum)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The applicants seek judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated August 13, 2004, dismissing their refugee claims.
[2] By way of remedy, the applicants seek to have the Board's decision set aside. They also ask this Court to declare that they are Convention refugees, separate their files and indicate that each of them has proven that they meet the criteria of the Convention refugee definition.
BACKGROUND FACTS
[3] The applicants are citizens of Pakistan. Applicant Mohammad Jawad Irshad (Mr. Irshad) is the brother of applicant Nausheen Atif (Ms. Atif). The female applicant is the wife of applicant Atif Qayum Khan (Mr. Khan). They all claimed refugee status in Canada in March 2003. Mr. Khan is basing his claim on that of his wife.
[4] The father of Mr. Irshad and Ms. Atif is a career diplomat. For all practical purposes, the family has never lived in Pakistan.
[5] The grandfather of Mr. Irshad and Ms. Atif passed away in 1952. Since then, their father and uncles have been engaged in a family land dispute. A resolution to the dispute was proposed in 1992 under the Jirga system; it involved an arranged marriage between Ms. Atif and a cousin, the son of one of their uncles. Ms. Atif refused, and her father allowed her to continue her studies. She married Mr. Khan, who was not a family member, on January 16, 1999. The marriage was kept secret. The female applicant says that she was beaten by her father when he learned that she had married
Mr. Khan. However, she submits that her father helped her and her husband flee Pakistan.
[6] As the family land dispute was not settled using the Jirga system, the father of Mr. Irshad and Ms. Atif initiated several legal proceedings in Pakistan in order to resolve the dispute.
[7] From 2000 to 2003, the applicants lived in the United States. Mr. Irshad and Ms. Atif obtained visitor status and then student visas. They left the United States because they feared they would be deported to Pakistan by the American authorities.
[8] The hearing before the Board took place on April 21, 2004, and the claims were dismissed on August 13, 2004. The application for leave to file this application for judicial review was granted on February 17, 2005.
IMPUGNED DECISION
[9] The Board determined that the applicants were not Convention refugees or persons in need of protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), respectively.
[10] In addition to the testimony of Mr. Irshad and Ms. Atif, the following documentary evidence was submitted to the Board: the applicants' Personal Information Forms (PIFs), personal documents such as passports, certificates and diplomas, and documents dealing with current socio-political conditions in Pakistan.
[11] The Board ruled that the applicants' story was not supported by the evidence in the record. It found the testimonies of Mr. Irshad and Ms. Atif to be not credible.
[12] Moreover, the Board concluded that the applicants had an internal flight alternative (IFA) in Islamabad, where the parents of Mr. Irshad and Ms. Atif live without any problems. The Board noted that Mr. Irshad and Ms. Atif testified that they had already lived in Islamabad and had not experienced any hardship in particular.
[13] Finally, the applicants were not able to convince the Board that there was no state protection in Pakistan. Although the Board noted that the tribal Jirga system still exists in some areas of the country, it pointed out that documentary evidence showed that these practices are forbidden by the Constitution and several Pakistani laws. The Board concluded that the Pakistani state had a judiciary branch, as well as a very visible police force and military.
ISSUES
[14] The issues in this case are the following:
1) Did the Board err in finding the testimonies of Mr. Irshad and Ms. Atif to be not credible?
2) Did the Board err in concluding that the applicants had an IFA in Pakistan, where they could avail themselves of state protection?
3) Was the Board's decision tainted by reasonable apprehension of bias?
ANALYSIS
1) Did the Board err in finding the testimonies of Mr. Irshad and Ms. Atif to be not credible?
[15] Although I am of the opinion that the IFA issue determines the outcome of this judicial review, I would like to draw attention to the Court's concerns with the Board's conclusion regarding the credibility of the applicants, Mr. Irshad and Ms. Atif. Mr. Khan is basing his application on that of his wife.
[16] As regards the credibility of Ms. Atif, the Court is concerned that the Board seems to have based its determination of lack of credibility on one single element, which appears debatable. The Board deemed Ms. Atif to be not credible because, unlike in her testimony, she did not mention in her PIF that she had been beaten by her father when he found out that she had secretly married Mr. Khan. The Board was not satisfied with the applicant's explanation that she did not feel it was necessary to mention this fact in her PIF. According to the Board, this was an especially important omission, which undermined the credibility of Ms. Atif. For her part, Ms. Atif contends that she was so used to being hit that she did not think to mention something that, for her, was quite ordinary. She points out that she indicated in her PIF that she had been beaten by her father without providing details of all the incidents.
[17] As regards the credibility of Mr. Irshad, the Court is concerned that the Board seems also to have based its determination of lack of credibility on flimsy evidence. The Board deemed Mr. Irshad to be not credible because his claims regarding the family dispute, the plans for the forced marriage and his subjective fear of persecution were not supported by adequate documentary evidence and a sufficiently detailed account of these events in his PIF. The applicant contends that this conclusion is at variance with the evidence and that it indicates an erroneous interpretation of the facts in the case.
[18] Without deciding the matter of credibility, the Court questions the merits of the Board's determinations with regard to this aspect of the case.
2) Did the Board err in concluding that the applicants had an IFA in Pakistan, where they could avail themselves of state protection?
[19] The determination of IFA and state protection is subject to the standard of review of patent unreasonableness: Ali v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 193; Ramachanthran v. Canada (Minister of Citizenship and Immigration), 2003 F.C.T. 673; Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999; Carmona v. Canada (Minister of Citizenship and Immigration), 2004 FC 1298.
[20] As regards the question of IFA and state protection, the Board found that the applicants did not meet the burden of satisfying it that they could not avail themselves of state protection in Pakistan and that they had nowhere to flee in their country.
[21] The concept of IFA is an inherent part of the Convention refugee definition. In order to be considered a Convention refugee, an individual must be a refugee from a country, not from a region of a country: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706.
[22] The applicants argue that the Board erroneously based its decision regarding state protection on its biases and lack of knowledge of the situation in Pakistan. The applicants are challenging the Board's conclusion that the Jirga system has been abolished, claiming that it is still in effect. Honour killings are still common in Pakistan, as the evidence in the record indicates, and the applicants contend that Pakistan cannot protect them.
[23] In my opinion, it is implicit from the Board's reasons that it considered both parts of the applicable test to establish that the applicants had an IFA in Pakistan: Rasaratnam, supra. The reasons for the decision show that the Board concluded: (1) that there was no serious possibility that the applicants would be persecuted in Islamabad, and (2) that it would not be unreasonably harsh, given the applicants' particular circumstances, for them to relocate to Islamabad.
[24] As the respondent pointed out, the applicants' argument regarding this point is essentially that the Board improperly weighed the evidence. However, in the context of a judicial review, it is not the role of the Court to evaluate the way in which the Board weighed the evidence. On the contrary, the Court may intervene only if the decision is patently unreasonable, made without regard for the evidence or in a capricious manner: paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7.
[25] As regards the determination regarding state protection, it is true, as the applicants claim, that the Board should not impose Western concepts on the cultural reality of refugee claimants: Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584, online: QL. However, I believe that this was not the case here. In my opinion, the Board did not speculate about the prevalent situation in Pakistan. It weighed the evidence and did not accept the evidence submitted by the applicants. The evidence indicates that the Jirga system is still used in Pakistan. However, it also shows that Pakistan has a system of state protection.
[26] As I cannot conclude that the Board made patently unreasonable determinations regarding the issues of IFA and state protection, I cannot intervene.
3) Was the Board's decision tainted by reasonable apprehension of bias?
[27] The applicants believe that the Board judged the clan situation in Pakistan using Western standards. They contend that the Board lacked partiality in demonstrating a bias toward them, a bias which underlies the decision rendered by the Board. The applicants argue that the Board's decision deals with their applications as one whole, instead of considering the merits of each application or its specific circumstances. In their opinion, this goes against the rules of natural justice.
[28] The test to be applied in determining the existence of reasonable apprehension of bias was established by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369.
The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would a informed person, viewing the matter realistically and practically-and having thought the matter through-conclude."
[29] Careful review of the record leads me to conclude that the applicants were not able to establish that the Board demonstrated bias in this case. They had the chance to submit their applications, be heard and answer the Board's questions. They did not raise the issue of partiality during the hearing before the Board. In summary, I conclude that the rules of natural justice and procedural fairness were respected in this case, and that the allegation of partiality raised by the applicants is not based on the evidence in the record.
CONCLUSION
[30] For the reasons set out above, the application for judicial review is dismissed.
[31] The parties did not propose the certification of a serious question of general importance under paragraph 74(d) of the IRPA. No such question will be certified.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
2. There is no serious question of general importance to be certified.
"Edmond P. Blanchard"
Judge
Certified true translation
Magda Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8257-04
STYLE OF CAUSE: Mohammad Jawad Irshad et al. v. MCI
PLACE OF HEARING: Ottawa, Ontario
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Blanchard
APPEARANCES:
Dr. Séverin Ndema-Moussa For the applicant
Sonia Barrette For the respondent
SOLICITORS OF RECORD:
Dr. Séverin Ndema-Moussa For the applicant
Ottawa, Ontario
John H. Sims, Q.C. For the respondent
Deputy Attorney General of Canada
Ottawa, Ontario