Ottawa, Ontario, August 30, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Awan's claim to status as a Convention refugee and a person in need of protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it did not believe his evidence and because he had an internal flight alternative. On this application for judicial review of that decision Mr. Awan says that the Board’s findings with respect to his credibility were perverse and capricious, and that if the Board had not so erred it would not have found that he had an internal flight alternative. For the reasons that follow, I find that the Board’s credibility findings were not patently unreasonable and that this application for judicial review should be dismissed.
The Claim to Protection
[2] Mr. Awan is a citizen of Pakistan. He testified that when he started college in Pakistan he joined the People’s Student Federation (PSF), the student federation of the Pakistan People’s Party (PPP). He became general secretary of his college unit of the PPP, and following college he pursued a career in politics. He says that if he returns to Pakistan he will be subject to serious harm or he will be killed by members of the Pakistan Muslim League (PML-Q), or the police, or agents of the current military government in Pakistan because of his membership and political activities with the PSF and the PPP in Rawalpindi and Karachi, Pakistan.
The Decision of the Board
[3] The Board rejected Mr. Awan's testimony because:
1. There were significant omissions from his original Personal Information Form (PIF), including the police having made death threats against Mr. Awan, and threats against him made by the Karachi District President of the PML-Q. Mr. Awan had explained these omissions by stating that he was in detention when he wrote out his PIF and he was upset, and that the legal-aid lawyer provided to him only spent an hour and a half with him. The Board rejected this explanation finding it to be unreasonable.
2. There was no evidence that Mr. Awan's profile with the PSF and the PPP was of national significance or that his activities were conducted regularly beyond Karachi and Rawalpindi. The documentary evidence indicated that the PML-Q would not target for serious harm individuals with a limited political profile; however, persons with a limited profile might occasionally be subjected to politically motivated harassment.
3. With respect to treatment at the hands of the police and government authorities, the Joint Director of the Human Rights Commission of Pakistan had advised the Board's Research Directorate that:
PPP members detained in corruption cases, on charges that at times have proved very hard to verify judicially, have faced harsh treatment in custody – especially during the early months of the military regime. However, such cases are again very isolated, and pertain only to those actually detained on charges. Others could face a threat of arrest for corruption, but it would be highly unlikely that this [would] apply to rank and file PPP members. It is mainly their leaders who are wanted. Treatment across the country may vary slightly, but not significantly.
[…]
Activists of the PPP faced problems in the run-up to the October 2002 general election, and were frequently arrested, harassed and detained while attempting to organize rallies and so on. This action was taken by police, with orders from the military authority. As far as I am aware, since the October 2002 polls, this harassment has decreased, though PPP leaders have faced pressure to switch political loyalties. At the level of activists, workers and party members there have been fewer reports of harassment, although some isolated incidents continue to take place.
[footnotes omitted]
4. The Board gave no weight to copies of the First Information Report (FIR) dated November 2, 2004, an arrest warrant, and a letter dated August 2, 2005 from a lawyer in Karachi because:
- Mr. Awan had delayed substantially in obtaining copies of these documents;
- the failure of Mr. Awan to mention the threats made by the PML-Q District President in his original PIF or to the immigration officer undermined the authenticity of the documents;
- Mr. Awan testified that other PPP representatives were not subjected to extreme treatment, and the documentary evidence was not consistent with the issuance of an FIR in respect of Mr. Awan in the circumstances he described; and
- the documentary evidence was to the effect that in Pakistan it is easy to obtain fraudulent documents, including fraudulent police and judicial documents.
5. Given the treatment of another PPP leader targeted by government authorities who was placed on an Exit Control List, it was implausible that Mr. Awan could be targeted and yet have traveled twice to the United Arab Emirates without difficulty as he testified.
6. If the government was interested in Mr. Awan, it was implausible that he would have been released by the authorities in Karachi as he claimed.
7. At an interview with an immigration officer in Canada Mr. Awan said that he had never been detained or jailed. This was contrary to his evidence before the Board.
8. A newspaper article about Mr. Awan was given no weight by the Board because of documentary evidence to the effect that in Pakistan it is possible to pay for false newspaper articles to be published depicting persecution.
Review of the Credibility Findings on Judicial Review
[4] Findings of credibility made by the Board are findings of fact that can only be interfered with on judicial review if they are perverse, capricious, or made without regard to the evidence before the Board. This equates to review on the standard of patent unreasonableness. A patently unreasonable defect "can be explained simply and easily, leaving no real possibility of doubting that the decision is defective". A decision that is patently unreasonable "is so flawed that no amount of curial deference can justify letting it stand". See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52.
Application of the Standard of Review to the Decision
[5] The Board gave detailed reasons for its credibility findings and those reasons were properly connected to the evidence before the Board. There is no allegation that the Board misstated the evidence before it. I have not been persuaded that the credibility findings were in any way patently unreasonable.
[6] Dealing with the most significant flaws in the decision, as asserted by Mr. Awan:
1. The Board was entitled to draw a negative inference from omissions in the PIF. The omissions went to central aspects of his claim and were not mere elaborative details. The Board was not required to accept Mr. Awan's explanation for the omission of such important details from his original PIF.
2. Mr. Awan is particularly vexed by the Board's rejection of the FIR, arrest warrant and lawyer’s letter on the ground that they were not obtained on a timely basis. However, a number of cogent reasons were given by the Board as to why it gave no weight to the documents. Even if the Board erred in drawing an adverse inference from the delay in obtaining the documents, the Board's rejection of the authenticity of the documents was adequately supported by other reasons. Mr. Awan argues that because the documents were provided within the time mandated by Rule 29 of the Refugee Protection Division Rules, SOR/2002-228 no adverse inference should have been drawn. I am not, however, persuaded that the Board so erred. Rule 29, like all disclosure rules, exists to avoid trial by ambush. Compliance with the rule permits documents to be received in evidence (as these documents were). Compliance with the rule does not, as a matter of law, preclude the Board from deciding (on a proper evidentiary basis before it) that an adverse inference should be drawn because a document was obtained so late in the day.
3. The Board’s implausibility findings (referred to as items five and six above) were nourished by evidence before the Board that it specifically referenced in its decision.
4. The Board noted that Mr. Awan speaks and understands English and that he had access to the services of an interpreter when he was interviewed by the immigration officer. At that interview, Mr. Awan signed a document where a box was checked indicating that Mr. Awan had reported that he had never been arrested or detained. On those facts, the Board was entitled to rely on this document as establishing a contradiction with Mr. Awan's oral testimony that he had in fact been arrested and detained. There was no need for the Board to require the immigration officer who interviewed Mr. Awan to testify.
[7] In Mr. Awan's reply memorandum, he takes issue with the Minister's submission that it was open to Mr. Awan's counsel to clarify inconsistent evidence at the hearing. Mr. Awan states that Chairperson's Guideline 7 and the reverse order questioning process precluded such clarification. I disagree. Nothing in Guideline 7 would preclude any attempt to rehabilitate Mr. Awan's testimony once the Board had finished its examination of him.
[8] For these reasons, the application for judicial review is dismissed.
[9] Counsel posed no question for certification and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-434-06
STYLE OF CAUSE: HAROON RASHID AWAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: AUGUST 16, 2006
APPEARANCES:
MS. JOLENE M. FAIRBROTHER FOR THE APPLICANT
MR. RICK GARVIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
SHERRITT GREENE FOR THE APPLICANT
BARRISTER & SOLICITOR
CALGARY, ALBERTA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA