Federal Court Decisions

 

 

 

Date: 20060809

Docket: IMM-6670-05

Citation: 2006 FC 957

Ottawa, Ontario, August 9, 2006

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

AZHAR MAHMOOD

NICOLE COLLEEN HOUSTON

Applicants

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

OVERVIEW

[1]               …In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 at 237, the Supreme Court applied the standard of patent unreasonableness and gave some indication as to its meaning:

 

… was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review

 

In Blanchard v. Control Data Canada Ltée, [1984] 2 S.C.R. 476 at 486, Mr. Justice Lamer referred to CUPE and characterised the question formulated above as "the classic statement of the approach taken by the Court." He went on to state that "this is a very severe test and signals a strict approach to the question of judicial review, Ibid. at 493. In Lester (W.W.) (1978) Ltd. v. United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R 644 at 669-670, Madame Justice McLachlin reaffirmed the patently unreasonable test, stating that

 

Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere.

 

Mr. Justice Cory, in P.S.A.C. No. 2, provided another formulation of the "patently unreasonable" test:

 

Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is a very strict test...

 

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational, Supra, note 13 at 963-964.

 

(Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (F.C.T.D.), [1994] F.C.J. No. 2018 (QL)).

 

JUDICIAL PROCEDURE

[2]               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 (Board) dated October 12, 2005, wherein it was decided that the Applicants were not Convention refugees nor persons in need of protection according to sections 96 and 97 of IRPA.

 

BACKGROUND

[3]               The Applicants are Mr. Azhar Mahmood, a citizen of Pakistan, and his wife, Ms. Nicole Colleen Houston, a citizen of South Africa. They met in September 2001 while they were both residing in the United States, she as a visitor and he as an illegal resident. They married in April 2003 and came to Canada claiming refugee status in September 2004. While their claims were heard together, each had separate reasons for fearing persecution in their country of citizenship and separate reasons, albeit in the same decision, were given for each claimant.

 

Mr. Azhar Mahmood

[4]               Mr. Mahmood alleges he is at risk of persecution, torture, a risk to his life or of cruel and unusual treatment or punishment at the hands of political opponents by reason of his political opinion.

 

[5]               In December 1993, he states that he joined and worked for the Pakistan Muslim League (PML) as an area organizer. After some time, he became disillusioned with the tactics of the PML and left the party. PML members harassed him and attempted to convince him to return to the party.

 

[6]               In October 1995, he joined the Pakistan Peoples Party (PPP). PML members threatened Mr. Mahmood’s father. At times, Mr. Mahmood felt he was being followed and feared being kidnapped. His brother was mistreated and threatened as a warning to Mr. Mahmood to leave the PPP.

 

[7]               After the PML came to power in February 1997, they started to target PPP members. On May 21, 1998, Mr. Mahmood alleges he was abducted by members of the PML and mistreated. He was held by the PML for what he believes to be two days and thrown out of a car near a bus stop. Someone found him and took him to a hospital. He reported the incident to the police who did nothing.

 

[8]               He and his family were afraid for his safety so they contacted a smuggler who arranged for Mr. Mahmood to leave Pakistan on June 16, 1998. According to his Personal Information Form (PIF), he arrived in the United States approximately nineteen days later. Mr. Mahmood then went to Pennsylvania where he lived and worked until September 2004.

 

Ms. Nicole Colleen Houston

[9]               Ms. Houston alleges she fears returning to South Africa because she has converted to Islam. She fears persecution by reason of her religion.

 

[10]           Ms. Houston arrived in the United States from South Africa in July 2001. She met Mr. Mahmood through friends on September 13, 2001. They married on April 10, 2003.

 

[11]           Ms. Houston comes from a strict Catholic background and her family did not accept her marriage or her conversion to Islam. She learned that people from her town have been rude to her mother and voiced their disapproval of her actions.

 

[12]           She alleges there is no safe place in South Africa for her to live. She added during the hearing that she believes her family members could kill her.

 

DECISION UNDER REVIEW

            Mr. Azhar Mahmood

[13]           The Board accepted that Mr. Mahmood was involved in politics in Pakistan from 1993 to 1997. It also accepts that he had difficulties with PML members as a result of leaving the PML and joining the PPP.

 

[14]           The Board concluded that Mr. Mahmood has a viable internal flight alternative (IFA) in Karachi, in Sindh Province, or another large urban area in Sindh, well away from Rawalpindi, the area where he lived before.

 

[15]           The Board found that there was not a reasonable chance that Mr. Mahmood would be persecuted in Karachi or another large urban area in Sindh or be subjected personally to a danger of torture or a risk to life or of cruel and unusual treatment or punishment. Moreover, the Board found that it was not unreasonable in all the circumstances for Mr. Mahmood to move to the IFA location. 

 

 

Ms. Nicole Colleen Houston

[16]           The Board concluded that Ms. Houston has state protection in South Africa. She has failed to rebut the presumption of adequate state protection with “clear and convincing” evidence.

 

[17]           The Board found that South Africa makes claim to democratic values and protection of human rights. There is no state of civil war, invasion, collapse of order and the government is in control of its territory. The Board also found that there are adequate laws, initiatives, policies and mechanisms in place in South Africa to provide for the protection of its citizens. According to the Board, the documentary evidence indicates that South Africa is making serious efforts to protect its citizens.

 

[18]           Ms. Houston’s mother was successful in obtaining a protection order against her aunt who had threatened her. This indicates that South African authorities are willing to deal with family problems. The Board found that Ms. Houston could obtain the same service and protection if she were threatened by anyone, including her family members.

 

ISSUES

[19]           According to the Minister, there are two issues in this application:

1.      Did the Board err in concluding that an IFA would be available to Mr. Mahmood on return to Pakistan?

2.      Did the Board err in concluding that state protection would be available to Ms. Houston on return to South Africa?

 

ANALYSIS

            Statutory scheme

[20]           According to section 96 of IRPA, a person is a refugee if they fear persecution by reason of their race, religion, nationality, membership in a particular social group or political opinion:

 

[21]           Subsection 97(1) of IRPA states the following:

 

Standard of review

[22]           The question of whether a reasonable IFA is available is question of fact which means that the appropriate standard is that of patently unreasonableness (Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No. 1263 (QL), at paragraphs 5-11; Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (QL), at paragraphs 10-15).

 

[23]           As for the question of the availability of state protection, this involves applying a legal standard, “clear and convincing confirmation of a state’s inability to protect” (Ward v. Canada (Minister of Citizenship and Immigration), [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74 (QL), at paragraph 50), to a set of facts. This is a question of mixed fact and law, therefore the appropriate standard of review is that of reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), at paragraphs 9-12).

 

Did the Board err in concluding that an IFA would be available to Mr. Mahmood on return to Pakistan?

 

 

[24]           In reaching the conclusion that an IFA would be available to Mr. Mahmood, the Board engaged in a proper analysis of the test for finding an IFA and reasonably considered his evidence, including the documentary evidence.

 

[25]           The Board was required to be satisfied on a balance of probabilities that there was no serious possibility of Mr. Mahmood being persecuted in Karachi, or another large urban city in Sindh Province and that in all the circumstances, including circumstances particular to him, conditions in the IFA location were such that it would not be unreasonable for him to seek refuge there (Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.), [1991] F.C.J. No. 1256 (QL), at paragraph 10).

 

[26]           In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.), [1993] F.C.J. No. 1172 (QL), at paragraphs 12-15, the Federal Court of Appeal explained the test to determine if there is a reasonable IFA available to the particular claimant:

Mahoney J.A. expressed the position more accurately in Rasaratnam, supra, at page 711:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there

Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

Let me elaborate. It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.

In conclusion, it is not a matter of a claimant`s convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling half-way around the world to seek a safe haven, in another country. Thus, the objective standard of reasonableness which I have suggested for an IFA is the one that best conforms to the definition of Convention refugee. That definition requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country. The prerequisites of that definition can only be met if it is not reasonable for the claimant to seek and obtain safety from persecution elsewhere in the country.

 

[27]           The legal determination of whether a reasonable IFA was available to a refugee claimant is a question squarely within the special expertise of the Board and should be accorded significant deference if the legal test is met (Sivasamboo, above, at paragraph 26).

 

[28]           The Minister denies the allegation that the Board failed to “provide documentary evidence or other evidence to indicate that he would be safe in the suggested IFA location”. The Board referred to the documentary evidence that indicated only prominent political activists do not have the option of moving to another part of the country (Tribunal Record, Exhibit R-2, Pakistan Country Report, United Kingdom Home Office, October 2004, Item 6.100, at page 381).

 

[29]           Mr. Mahmood argues in his Memorandum of Argument, that the Board erred in concluding that he would be safe in the IFA region because he indicated that “he would again become politically involved”.

 

[30]           At the hearing, Mr. Mahmood was asked by his counsel whether he would become involved in politics on his return to Pakistan. He did not give a definitive answer but rather suggested only that it was a “difficult question” and a “possibility”. (Tribunal Record, Transcript, at pages 482-483)

 

[31]           The Board specifically addressed the issue of whether Mr. Mahmood would return to politics on his return to Pakistan and concluded that on a balance of probabilities, he would not. In the face of the above evidence, that it was only a “possibility”, the Board’s conclusion is not patently unreasonable and is based on the evidence, which included his long absence from the political arena, his prior political profile, his previous withdrawal from politics and his less than definitive answer about whether he would return to politics.

 

Did the Board err in concluding that state protection would be available to Ms. Houston on return to South Africa?

 

 

[32]           In Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.), [1991] F.C.J. No. 341 (QL), at paragraphs 20-23, the Federal Court of Appeal held as follows:

There are probably several reasons beyond a person's control why he might be unable to claim the protection of a State, one of them being, and this is obvious, the non-existence of a government to which that person may resort. There are situations, and the case at bar is one of them, in which the political and military circumstances in a country at a given time are such that it is simply impossible to speak of a government with control of the territory and able to provide effective protection. Just as a state of civil war is no obstacle to an application for refugee status, so the non-existence of a government equally can be no obstacle. The position of the respondent in the case at bar would lead directly to the absurd result that the greater the chaos in a given country, the less acts of persecution could be capable of founding an application for refugee status.

 

I do not have to decide here what is meant by “government”. I know that in principle persecution in a given region will not be persecution within the meaning of the Convention if the government of the country is capable of providing the necessary protection elsewhere in its territory, and if it may be reasonably expected that, taking into account all the circumstances, victims will move to that part of the territory where they will be protected. I also know that the Convention speaks of protection of the “country of which the person is a national”, that in the passages from his text to which I have referred Professor Hathaway speaks rather of the “legitimate government”, and that in Ward MacGuigan J.A. spoke of “nominal governments”. The “country”, the “national government”, the “legitimate government”, the “nominal government” will probably vary depending on the circumstances and the evidence and it would be presumptuous to attempt to give a general definition. I will simply note here that I do not rule out the possibility that there may be several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.

 

The conclusion at which I have arrived carries with it an obligation to alter certain established rules in other circumstances. Where no established authority exists, it will not be possible to apply in their entirety the rules stated with regard to persecution for political opinions, since there is strictly speaking no State to be aware of the claimant’s political opinions or attribute any to him. In that case, the first instance tribunal and the Refugee Division will have to decide, in light of all the circumstances presented, whether those who are persecuting the refugee status claimant are doing so on account of political opinions he has or which they attribute to him.

 

In the case at bar the Refugee Division blamed the appellant for not trying to obtain protection from the Lebanese army. The evidence is that no established authority was able to provide the appellant with the desired protection. In the circumstances, therefore, the appellant was unable to avail himself of the protection of his country, and far from disqualifying him, this, on the contrary enabled him to meet one of the conditions imposed in the definition of a refugee.

 

 

 

 

 

 

 

[33]           Furthermore, in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL), the Federal Court of Appeal explained that state protection does not have to be perfect; however, a government must be in effective control of its territory and able to offer protection to its citizens:  

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.

 

No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration), a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.

 

[34]           South Africa is a democratic state and its government does have control over its territory. It is generally able to provide protection to its citizens. In this case, in fact, the authorities did provide protection to Ms. Houston’s mother, who would seem to be a similarly situated person, by issuing a protection order and an arrest warrant against her aunt.

 

 

 

[35]           Ms. Houston stated that she gave evidence that the present whereabouts of her mother are unknown. She argues that this is evidence that the state is unable to protect a similarly situated person and evidence that the protection order is ineffective. Accordingly, Ms. Houston argues that the Board erred in concluding, based on the success of the protection order, that adequate state protection would be available to her.

 

[36]           Ms. Houston was asked if her mother was still residing with a family member (another aunt) and she stated:

No, she’s not. Actually my mom is now also angry with me for what she’s experiencing so I really don’t know where she is. (Tribunal Record, Transcript, at page 494)

 

[37]           The evidence before the Board did not show that her mother had disappeared but rather that Ms. Houston did not know where her mother was because her mother was angry with her and was not talking to her. It is not possible to conclude that Ms. Houston’s lack of knowledge of her mother’s whereabouts is evidence that demonstrates the ineffectiveness of the protection order. There is no causal connection between Ms. Houston’s lack of knowledge of her mother’s whereabouts and the effectiveness of the protection order.

 

[38]           In the present case, the Board properly found that adequate state protection would be available to Ms. Houston. This finding was not unreasonable as it was based on the evidence before the Board, both the country condition documentation and the evidence concerning Ms. Houston’s mother, deemed to be a similarly situated person.

 

 

 

CONCLUSION

[39]           The conclusion of the Board concerning the availability of an IFA for Mr. Mahmood was not patently unreasonable. Neither was the conclusion concerning the availability of state protection for Ms. Houston unreasonable. Both conclusions were based on the evidence before the Board, the country condition documentation as well as the subjective evidence of both situations.

 

[40]           This Court will not interfere with these decisions. This application for judicial review will be dismissed.

JUDGMENT

 

THIS COURT ORDERS that

 

1.                  The judicial review be dismissed;

2.         No serious question of general importance be certified.

 

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-6670-05

 

STYLE OF CAUSE:                          AZHAR MAHMOOD

                                                            NICOLE COLLEEN HOUSTON

                                                            v. THE MINSITER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      July 19, 2006

 

REASONS FOR JUDGMENT:       SHORE J.

 

DATED:                                             August 9, 2006

 

 

 

APPEARANCES:

 

Mr. Peter Wuebolt	FOR THE APPLICANTS
Ms. Bridget A. O’Leary	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

SALVATORE CAMPESE Browns Line, Etobicoke	FOR THE APPLICANTS
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT