Date: 20040630
Docket: IMM-2798-03
Citation: 2004 FC 923
BETWEEN:
Mohammad DAR ASLAM
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated March 26, 2003, that the applicant is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Mohammad Dar Aslam (the applicant) is a citizen of Pakistan alleging a well-founded fear of persecution in his country because of his actual and perceived political opinions. Specifically, the applicant fears the police because of his membership in the Jammu Kashmir People's National Party (JKPNP). The applicant also alleges that he is a "person in need of protection".
[3] The IRB determined that the applicant was not a "refugee" or a "person in need of protection", having found that he was not credible because his story was peppered with inconsistences and implausibilities. The panel also noted that the applicant had an internal flight alternative in Pakistan and that his behaviour was inconsistent with his alleged fear.
[4] First, with respect to the assessment of the facts and of the credibility of the applicant: after reviewing the evidence and hearing the parties' counsel, I am not persuaded that we have before us a decision based on an erroneous finding of fact, made in a perverse or capricious manner or without regard for the material before the IRB. To the contrary, in my opinion, generally speaking, this specialized tribunal could correctly and reasonably draw these inferences (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). Although I could have interpreted certain facts differently in like circumstances, it is not my place to substitute my assessment for that of the panel.
[5] As for the IRB's finding to the effect that the applicant had an internal flight alternative in Pakistan, he argues that the documentary evidence relied on by the panel does not apply to his situation, considering his involvement in political activities against the Pakistani government. I do not agree. According to the documentary evidence, there is an internal flight alternative in Pakistan for individuals who have political opinions about the independence of Kashmir (page 435 of the tribunal record). Moreover, in its assessment of the facts which does not warrant the Court's intervention, the IRB determined that the applicant did not have an important position with the JKPNP. In my view, on the basis of all that, the panel could reasonably find that there was an internal flight alternative.
[6] Finally, I do not see anything that is patently unreasonable about the panel's assessment of the behaviour of the applicant who, having spent 90 days in the United States after being refused refugee status in Canada, came back to Canada to make the same claim. In my opinion, quite to the contrary, the IRB could then determine that this behaviour undermined the credibility of the alleged subjective fear. In this respect, the following extract from the decision of my colleague Gibson J. in Pillai v. Canada (M.C.I.), [2002] 3 F.C. 481, at pages 491 and 492, in my view is entirely relevant:
[19] But that was not the case. Rather than return to Sri Lanka, the applicant chose to go to the United States, to sojourn there, and not to make a claim for Convention refugee status there. In essence, he did nothing whatsoever to bolster his claim or to put into doubt the findings of earlier panels of the CRDD. Thus, I find no basis on which to conclude that Parliament intended, on the particular facts of this matter, to confer on the applicant a de novo opportunity to claim Convention refugee status upon his third entry to Canada. Rather than bolstering his claim in a period of absence from Canada, his actions put into doubt his claim to a subjective fear of persecution if required to return to Sri Lanka.
[7] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
June 30, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2798-03
STYLE OF CAUSE: Mohammad DAR ASLAM v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 9, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: June 30, 2004
APPEARANCES:
Noël Saint-Pierre FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre, Grenier s.e.n.c. FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario