Ottawa, Ontario, November 9, 2006
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
VAHEED ALI, AKILA ALI, QALSOOM ALI, HARES ALI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The principal applicant is Vaheed Ali. His claim under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. (the Act), was heard jointly by the Refugee Protection Division (RPD) with those of his wife Akila Ali, and children Qalsoom Ali and Hares Ali. They all claim to be Shia Muslims and citizens of Pakistan who fear persecution from Sunni Muslins. They seek judicial review of the RPD’s decision rejecting their claims because of their failure to present credible evidence in support of such claims and because State protection would be available to them, should they return to Pakistan.
[2] The Court has concluded that the RPD’s finding in respect of the lack of credibility of the main applicant contains an error. However this is not sufficient to set aside the decision because the RPD’s finding in respect of State protection is reasonable and sufficient in itself to justify the decision to reject those claims (Yassine v. Canada (Minister of Citizenship and Immigration) (S.C.A.), [1994] F.C.J. No. 949).
[3] Finally, in respect of the last argument raised by the applicants which involves the application of Guideline 7 (order of questioning), the Court has concluded that the applicants have waived their right to object to the application of this Guideline. The Court certified a question on that issue.
Background
[4] The applicants say that they arrived in Canada on September 10, 2004. Five days later, they claimed refugee status. They allegedly travelled on fake Pakistani passports and Canadian visitor visas obtained from a smuggler. Once in Canada, they returned the passports and visas to the smuggler.
[5] At their initial meeting with Immigration Canada, the applicants presented copies of four birth certificates and no other identity documents. The date of issue of those certificates is in Urdu and is not clear. Later, prior to the hearing before the RPD, they supplied a letter from the President of the main applicant’s Imambargah (religious center) that attests to the fact that the primary applicant was appointed as their financial secretary in September of 2003. This letter, however, does not indicate when the applicant resigned from this function or when he left Pakistan. They also supplied national identity cards for Mr. and Mrs. Ali issued on September 20, 2003 and a marriage deed from Pakistan.
[6] In his PIF, the main applicant refers to the fact that he was an active member of his Imambargah and had become the volunteer financial secretary in September 2003. This position involved collecting donations door-to-door. He further adds that Sunni fanatics began to persecute him for his religious activities in mid-October 2003. He allegedly received threatening phone calls from the SSP, was beaten and his house vandalized on two separate occasions in April and May 2004. Complaints to the police were ineffective.
[7] Scared, he quit his volunteer post in June 2004. Despite this, he was beaten again and his children threatened. In August, a spiteful police officer jailed him claiming that an enemy had complained that he had insulted the prophet. He was beaten and his wife had to pay a bribe to secure his release. Shortly after the family fled the country. Since then, Mr. Ali has spoken to his immediate family in Pakistan who says that he is still being targeted. He has also been in contact with the President of his Imambargah.
[8] In its decision, the RPD does not refer to any contradiction or inconsistency between the applicant’s testimony and his PIF or any other notes in his file. Rather it starts its analysis by stating that pursuant to section 106 of the Act and Rule 7 of the Refugee Protection Division Rules, (SOR/2002-228), the applicant had the duty of providing acceptable documents establishing his identity which means “in the case at hand, his alleged perceived identity as an active Shia during the period of September 2003 to September 2004 or to provide satisfactory explanation for lack thereof.”
[9] The RPD then goes on to examine each document provided by the main applicant to determine whether or not they indicate that the applicants were in Pakistan after September 2003. First, it noted that the four birth certificates were all handwritten by the same hand and in English and that their date of issue was not clear as it was written in Urdu without the benefit of translation.
[10] However, it is agreed that the RPD did not question Mr. Ali with respect to these birth certificates and did not ask him to explain the circumstances in which they were obtained. It appears from the affidavit of the applicant that they were issued two or three months before leaving Pakistan and that if this issue had been raised, it would have necessarily placed him in Pakistan at that time for he had obtained them himself and had them upon his arrival in Canada.
[11] The RPD also mentions that when asked why he had not provided any documents (other than the birth certificates and the marriage deed, see page 217 of the certified record) that would place him in Pakistan after September 2003, the claimant explained that, being in Canada, he could not have obtained them and that he knew no one that could do so for him. However, after being reminded that he had a brother still living in Lahore, the applicant stated that his brother was very much afraid of the Sunni extremists. He did not know whether his brother could do anything for him.
[12] Having rejected such explanation, the RPD concluded that the claimant generally lacked credibility. It then when on and assessed whether, in any event, the applicants could avail themselves of State protection in Pakistan.
[13] In that respect, the RPD adopted the reasoning of another panel in another matter reported as I.X.N. (Re) [2004] R.P.D.D. No. 34, and more particularly found at para. 9 to 33. It noted that the facts in that case were sufficiently similar to the facts related by Mr. Ali in this case to justify reliance on its conclusions respecting State protection.
[14] The RPD also mentioned that there was no evidence in the present case that the police were after the main applicant. It then went on to review the more current documentary evidence on file which described the country situation after the decision in I.X.N., above, and found that it could still rely on the I.X.N analysis. It then concluded that there was State protection in Pakistan.
Issues
a. Did the RPD make a reviewable error in concluding that the applicant was credible?
b. Did the RPD unreasonably rely on the decision on I.X.N., above, or neglect any evidence in concluding that the applicant will be able to benefit from state protection in Pakistan?
c. Did the applicant’s failure to object at the first opportunity to the application of Guideline 7 constitute an implied waiver of his right to do so at a later stage particularly on judicial review?
Analysis
a) Credibility
[15] The RPD’s findings with respect to credibility are reviewable on the standard of patent unreasonableness. It is also well established that normally the RPD cannot make a negative inference solely from the fact that an applicant failed to produce documentation corroborating his claim. However, as noted by Justice Michael Kelen in Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12, [2004] F.C.J. No. 62 (QL) at para. 10, “where there are valid reasons to doubt a claimant’s credibility, a failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the applicant’s explanation for failing to produce that evidence.”
[16] Here, there is no indication in the decision that the RPD doubted that Mr. Ali and his wife were indeed the persons described in their identity cards. No issue is taken in respect of the authenticity of such documentary evidence. Also, the RPD does not indicate in its decision that it gave no weight or that it doubted the validity of the letter from the President of the Imambargah. There was therefore corroborating evidence that Mr. Ali and his family were indeed Shia Muslims and that the main applicant was, as he testified and stated in his PIF, the financial secretary of said religious center as of September 23, 2003.
[17] Thus, this is not really a case where the identity of the applicant has not been established. It is clearly distinguishable from the situation in Singh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 556, [2003] F.C.J. No. 755, where the RPD had no evidence of who the applicant really was.
[18] It may well be that the RPD had some valid reasons for doubting Mr. Ali’s credibility, particularly with respect to his testimony that he lived in Pakistan up to September 2004. But it could simply not reject the totality of his testimony without any further explanations. Had the claims been rejected simply on that basis, this decision would have been set aside. However, as noted, the RPD also examined the question of State protection.
b) State protection
[19] Whether or not State protection exists or is available to an applicant is a mixed question of fact and law. I adopt the pragmatic and functional analysis conducted by my colleague Justice Danielle Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), and conclude that the standard of review applicable is reasonableness simpliciter (see also Saeed v. Canada (Minister of Citizenship and Immigration), 2006 FC 1016, [2006] F.C.J. No. 1281 para. 35 (QL)).
[20] The applicants suggest that it was inappropriate for the RPD to rely on the analysis carried out in I.X.N., above, given that this case was decided in July 2004 and that it must be assumed that country conditions have changed or evolved since then.
[21] They also argue that the RPD’s treatment of the BBC web page was inadequate, more particularly when the RPD stated that the BBC piece does not further their claim.
[22] This question of whether it was open to the RPD to rely on the reasoning of another panel faced with the same documentary evidence as a basis of a particular finding was considered by the Federal Court of Appeal in Koroz v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1593 (QL).
[23] Although, this question had been certified in respect in a finding of internal flight alternative, it is, in my view, perfectly applicable to a finding in respect of State protection.
[24] In Koroz above, the Court of Appeal answered the question in the affirmative because it was satisfied that the documentary evidence was virtually the same in both cases.
[25] I understand from this decision that before the RPD can rely on another panel’s finding in respect of State protection it must satisfy itself that the facts of the two cases are sufficiently similar to justify relevance. It must also look at the documentary evidence before it to assess whether there is any evidence that was not considered by the other panel and how this evidence impacts on the other panel’s analysis and its conclusions.
[26] In I.X.N., above, the panel was considering the claim of an applicant who alleged that he feared persecution from the SSP due to his support for his Shia community. He had already suffered serious harm in the past and claimed that the police were ineffective and provided no real assistance.
[27] The Court is satisfied that the RPD was correct in concluding that this factual situation was very similar to the one before it. The respondent could not point to any documentary evidence indicating that persons holding an official function like the main applicant were treated any differently than any other Shia actively involved in his or her community.
[28] In I.X.N, above, the panel had made a thorough analysis of the documentary evidence available up to the time of its decision in July 2004. This included the same country reports that were available to the RPD in the present case for up to and including the year 2003.
[29] The panel clearly noted that sectarian violence still occurred then and that, in fact, there was an increase in sectarian murders by the end of 2003 and continuing in 2004. Nevertheless, having noted that the protection does not have to be perfect, it conclude from it review that protection did exist in Pakistan for Shia Muslims.
[30] The analysis in I.X.N., above, is in my view perfectly in line with the principles recently reviewed by Justice Yves de Montigny in Saeed, above, at paragraphs 40 to 45. In Saeed, the existence for State protection for Shia Muslims in Pakistan was also the issue and the negative decision under review had been issued in May 2005.
[31] Obviously, in the present case, the RPD could not simply adopt the conclusion reached in I.X.N., above, for there was indeed some more recent documentation available to it.
[32] More particularly, a U.S. report on International Religious Freedom for Pakistan, 2004 had been updated on September 17, 2004 and the applicant had filed recent articles from the BBC webpage.
[33] However, it is evident from the decision that the RPD considered this evidence. The Court carefully reviewed the updated report with the parties at the hearing and is satisfied that it was open to the RPD to conclude that this report which notes that some steps to improve the situation of religious minorities had been taken during the period it covers does not warrant a different conclusion than in I.X.N., above.
[34] As to the recent BBC webpage, it does discuss a strike in Karachi over violence between Sunni and Shia Muslims, new suicide bombings and other violent incidents; however, the Court must agree with the RPD that it does not shed any new or different light on the issue. The panel in IXN clearly did not expect such killings to be completely eradicated in the near future. The panel also clearly referred to similar suicidal bombings in its decision.
[35] After a probing examination, the Court must conclude that it was reasonable for the RPD to adopt the conclusion reached in I.X.N., above.
[36] This finding constituted a distinct ground on which to reject those claims. In itself, it is sufficient to justify the final conclusion reached by the RPD that these claims must fail.
c) Guideline 7
[37] As mentioned, the applicants did not object to the application of Guideline 7 at the hearing before the RPD. They had not raised this issue in their memorandum of argument or in the application for leave and judicial review that was before the judge who granted leave in this matter. It is only in their reply to the respondent memorandum dated January 2006 that the applicants relied on the recent decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL).
[38] As indicated at the hearing, the Court totally agrees with the reasoning adopted by Justice Richard Mosley in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 (QL), where he concluded at paragraph 237.
vi. – The common law principle of waiver requires that an applicant must raise an allegation of bias or a violation of natural justice before the tribunal at the earliest practical opportunity. If counsel were of the view that the application of Guideline 7 in a particular case would result in a denial of their client’s right to a fair hearing, the earliest practical opportunity to raise an objection and to seek an exception from the standard order of questioning would have been in advance of each scheduled hearing, in accordance with Rules 43 and 44, or orally, at the hearing itself. A failure to object at the hearing must be taken as an implied waiver of any perceived unfairness resulting from the application of the Guideline itself. If the objection was made in a timely manner at or before the hearing, the applicants are entitled to raise it as a ground for judicial review in their applications for leave. If the applicants failed to cite a denial of procedural fairness in their applications for leave, judicial review of the applications should be confined to the grounds on which leave was sought.
[39] I note that Justice Mosley also said at paragraph 235;
If the issue of Guideline 7 is only raised in a further memorandum of fact and law filed subsequent to the granting of leave, there has been an implied waiver and the applicants are restricted to the issues identified in the initial application and memorandum.
[40] In view of the foregoing, the Court concludes that the decision cannot be set aside simply because the RPD applied Guideline 7.
Conclusion
[41] The Court finds that the application must be dismissed.
[42] Neither party proposed a question for certification on either of the first two issues. I am satisfied that my conclusion in respect of those questions turns on the particular facts of this case. With regard to the application of Guideline 7, both parties agreed that I should certify the following question that was certified by Justice Mosley in Benitez, above:
When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
[43] I agree that this question would be determinative in this case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed with the following question certified, as a question of general importance:
When must an applicant raise an objection to Guideline 7 in order to be able to raise it upon judicial review?
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6547-05
STYLE OF CAUSE: VAHEED ALI, AKILA ALI, QALSOOM ALI, HARES ALI v.
THE MINITER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: OCTOBER 19, 2006
REASONS FOR ORDER: GAUTHIER J.
APPEARANCES:
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Mr. Max Berger
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Mrs. Karenna R. Wilding
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SOLICITORS OF RECORD:
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Max Berger Professional Law Corporation Toronto, Ontario |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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