Federal Court Decisions

Date: 20060802

Docket: IMM-6609-05

Citation: 2006 FC 947

Ottawa, Ontario, August 2, 2006

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

ALI MUHAMMAD AFZAL

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               The Applicant is a male citizen of Pakistan in his early 30s who claimed refugee status on the grounds that he feared his sister’s husband. His sister had been successful on her refugee claim which was based on fear of spousal abuse. The Immigration and Refugee Board (Board) rejected the Applicant’s claim on the grounds of credibility, particularly the failure to rebut the presumption of state protection and the existence of a viable internal flight alternative (IFA) in Lahore and in Islamabad. This is the judicial review of the Board’s decision in which issues of state protection, IFAs and natural justice have been raised.

[2]               The Board drew an adverse credibility inference from the Applicant’s failure to mention in his Personal Information Form (PIF) that the feared brother-in-law had such influence with the police as to make it impossible for him to seek state protection. The Board was less than impressed with the Applicant’s explanation for this omission – that the description would take up too much room on his PIF. He had filed a one-page PIF.

[3]               In accordance with the standard of review of credibility findings set out in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, there is nothing patently unreasonable about this conclusion.

[4]               On the issue of state protection, the Board applied the proper two-prong test set forth in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706. The failure to rebut the presumption of state protection underpinned the first prong – absence of serious possibility of persecution in the IFA location. The Board also took account of the second prong – reasonableness of this Applicant to seek refuge at the IFA. The Board took full account of his personal circumstances in reaching that conclusion.

[5]               Under all these circumstances, whether the standard of review is reasonableness or patent unreasonableness is of little consequence. (See Sarker v. Canada (Minister of Citizenship and Immigration), 2005 FC 353, [2005] F.C.J. No. 435 (QL)) It would have been unreasonable to reach any other conclusion given that the Applicant feared only one individual where there is no evidence of that person’s reach to cause him harm at either IFA location.

[6]               The fact that the Applicant’s sister was successful in her refugee claim does not, in and of itself, mean the Board’s decision is unreasonable or patently unreasonable. Each case is fact specific. In this case there is insufficient correlation between the wife’s fear of spousal abuse and her brother’s alleged fear of her husband.

[7]               Lastly, the Applicant contends that the Board hearing was conducted in a manner contrary to natural justice. This ground of judicial review is based on the Board allegedly interfering with counsel’s conduct of the case, the fact that a door was left open thereby imperilling the private nature of the hearing and supposedly untoward comments made by the Refugee Protection Officer (RPO).

[8]               The Applicant’s counsel was cautioned not to give evidence when making an objection. This is a wholly reasonable action by the Board where the possible effect of the objection was to direct the Applicant to statements in his PIF that had not yet been mentioned in evidence.

[9]               There is simply no basis for any allegation of bias or reasonable apprehension of bias or that the Board had improperly interfered with counsel’s case and had taken over the proceedings.

[10]           The issue of the open door is another “red herring”. The door was the back door to the hearing room which opened to the secure area of the Board’s premises. There was no compromise of privacy and no objection raised.

[11]           The Applicant also objected to comments from the RPO as to “smell” and “open season”. The comment about smell related to the reason for the open back door and was unrelated to the Applicant. The comment about “open season” is unclear, particularly as the Applicant does not claim to quote the RPO verbatim.

[12]           More fundamentally, the RPO’s comments are not those of the Board determining the matter. If there is some problem with the RPO’s conduct, it may be a matter for an objection, of which there was none on any of the natural justice issues raised. There was also no reason shown why an objection could not have been made.

[13]           Therefore, this application for judicial review will be dismissed. There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review is dismissed.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-6609-05

STYLE OF CAUSE:                          ALI MUHAMMAD AFZAL

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      July 13, 2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

DATED:                                             August 2, 2006

APPEARANCES:

SOLICITORS OF RECORD: