Ottawa, Ontario, December 19, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE SOLICITOR GENERAL OF CANADA
REASONS FOR ORDER AND ORDER
[1] Nazir Hussain's claim for refugee protection in Canada was twice rejected by the Refugee Protection Division of the Immigration and Refugee Board on the basis that he had a viable internal flight alternative (or "IFA") in Pakistan, outside of the province of Azad Kashmir. His application for a Pre-removal Risk Assessment was also rejected, with the PRRA Officer finding that the evidence provided by Mr. Hussain to support his PRRA application, while technically new, was essentially a reiteration of the same type of evidence that had been before the IRB. As a consequence, the PRRA Officer found there to be insufficient evidence to justify a different finding than that made by the IRB.
[2] Mr. Hussain seeks judicial review of the PRRA Officer's decision, asserting that the Officer erred in failing to properly consider the new evidence filed in support of Mr. Hussain's PRRA application. Moreover, Mr. Hussain says, the PRRA Officer erred in relying too heavily on the conclusions reached by the IRB, and in failing to conduct an independent assessment of the risk faced by Mr. Hussain should he return to Pakistan.
[3] For the reasons that follow, I am satisfied that the PRRA Officer did not commit a reviewable error in this case. As a consequence, this application for judicial review will be dismissed.
Background
[4] Mr Hussain is a citizen of Pakistan Occupied Kashmir, also known as Azad Kashmir. While he was living in Pakistan, Mr. Hussain was active in the United Kashmir People's National Party (the "UKPNP"), which seeks the establishment of an independent State of Kashmir. Mr. Hussain alleges that while he was in Pakistan, his home was raided, and that he was repeatedly arrested and beaten by the police because of his political activities. He also alleges that he was attacked by pro-Pakistani gangsters, and that he was abducted and beaten by members of a pro-Pakistani party.
[5] Mr. Hussain says that after he was charged with anti-State activities, he fled Pakistan. Mr. Hussain arrived in Canada on December 5, 2000, and made a refugee claim upon his arrival in this country. His refugee claim was based upon his fear of persecution, torture and risk to his life due to his political opinion and activities as a member of the UKPNP.
[6] Mr. Hussain's refugee claim was rejected by the Immigration and Refugee Board in a decision dated December 14, 2001. The Board accepted that Mr. Hussain was a UKPNP member and activist, but did not find it necessary to determine whether his alleged fear of persecution was well-founded, as the Board was satisfied that Mr. Hussain's political activities had been confined to the Azad Kashmir area, and that he did not have a profile outside of that province.
[7] While recognizing that the Pakistani military government and police have authority throughout the country, the Board nevertheless concluded that the localized nature of Mr. Hussain's political activities, and his lack of national profile, meant that there was not more than a mere possibility that he would come to the attention of Pakistani authorities outside of Azad Kashmir, and that, as a result, he had a viable IFA within Pakistan. Accordingly, his claim for refugee protection was rejected.
[8] This decision was set aside on judicial review by Justice Dawson, on the basis that the Board had failed to refer to the testimony of two witnesses called by Mr. Hussain in relation to the issue of the availability of an IFA. These two individuals were members of the UKPNP, and each testified as to their belief that Mr. Hussain would not be safe anywhere in Pakistan.
[9] Mr. Hussain's refugee claim was then re-heard by the IRB on January 29, 2003. In a decision dated March 13, 2003, his refugee claim was rejected for a second time, with the Board again finding that Mr. Hussain had a viable IFA in Pakistan.
[10] Leave to judicially review this decision was denied by Justice Campbell on July 20, 2003.
[11] Mr. Hussain then submitted his PRRA application in October of 2003, filing additional evidence in support of his application in September of 2004. The new evidence filed by Mr. Hussain included two statutory declarations from fellow members of the UKPNP, whose claims for refugee protection in Canada had been accepted by the IRB. These individuals deposed that Mr. Hussain had continued to be active in the UKPNP movement here in Canada. They also deposed to their belief that he would not be safe anywhere in Pakistan.
[12] Mr. Hussain also provided the PRRA Officer with a copy of a newspaper article dated September 16, 2003, describing a raid that had taken place on Mr. Hussain's home in Azad Kashmir involving the Pakistani police and security forces. Also filed with the Officer were copies of letters received from Mr. Hussain's wife and the Secretary General of the UKPNP attesting to the fact that the Pakistani police, as well as militants, continue to seek him in Azad Kashmir.
[13] Finally, Mr. Hussain provided the PRRA Officer with evidence that several pro-Pakistani organizations including the Harkat-ul-Mujahidin, Jaish-e-Mohammad, and Lashkar-e-Tayyiba have been banned by the Canadian government.
Decision of the PRRA Officer
[14] The PRRA Officer viewed the determinative issue in Mr. Hussain's application as being whether the new evidence adduced by Mr. Hussain demonstrated that there had been a significant change in conditions within Pakistan since the March 13, 2003 decision of the IRB, such that the Board's findings in relation to the availability of an IFA were no longer valid.
[15] The PRRA Officer observed that Mr. Hussain's submissions in support of his PRRA application essentially asked the Officer to reconsider his refugee claim, and that a PRRA application is not the proper venue for such a reconsideration. The Officer also found that most of the new evidence provided by Mr. Hussain was essentially more recent evidence of the same type of information that had already been assessed by the IRB.
[16] The Officer went on to consider each of the documents filed in support of Mr. Hussain's PRRA application, explaining why little weight was to be accorded to each of them. The Officer also reviewed some of the objective information relating to country conditions within Pakistan, including the US State Department's Human Rights Report, dated February 28th, 2005, and the UK Home Office Country Report for Pakistan, dated April, 2005. The Officer noted that this information did not corroborate Mr. Hussain's claim that members of the UKPNP were targeted either within or outside of Azad Kashmir.
[17] As a consequence, the Officer concluded that there was insufficient credible and trustworthy evidence to warrant a determination different than the one that had been made by the IRB, finding that Mr. Hussain had a viable IFA in locations in Pakistan outside of Azad Kashmir.
Issues
[18] Although Mr. Hussain's memo of fact and law identifies a number of issues raised by this application for judicial review, his oral argument discloses that his application essentially rests on his claim that the PRRA Officer did not properly and independently evaluate and weigh the new evidence relating to Mr. Hussain's circumstances, unduly relying instead on the findings of the Immigration and Refugee Board as to the existence of an IFA for Mr. Hussain.
Standard of Review
[19] Before turning to address the merits of Mr. Hussain's application, it is first necessary to consider the question of standard of review.
[20] As counsel for the Minister points out, there is a conflict in the jurisprudence of this Court as to whether the decision of a PRRA Officer should be reviewed against a standard of reasonableness or that of patent unreasonableness. It is unnecessary for me to resolve this issue in this case, however, as I am satisfied that the Officer's decision can withstand scrutiny under the more exacting standard of reasonableness.
Analysis
[21] A review of the decision of the PRRA Officer discloses that the Officer properly understood that his role on a PRRA application following a negative decision of the IRB was not to completely re-evaluate the risk faced by the applicant. Rather, the Officer's task is limited to the evaluation of new evidence that either arose after the applicant's refugee hearing, or was not previously reasonably available to the applicant: H.K. v. Canada (Minister of Citizenship and Immigration), [2004] F.C. No. 1612, 2004 FC 1612 ¶ 17; Bolombo c. Canada (Ministre de la Citoyennet et de l'Immigration), [2005] C.F. no. 459, 2005 CF 375 ¶ 7.
[22] In this case, the PRRA Officer commenced his analysis by reviewing the findings of the IRB. He then went on to address each item of new evidence adduced by Mr. Hussain, explaining why, in his view, little weight should be accorded to the evidence in question.
[23] By way of example, the Officer considered the two statutory declarations sworn by the UKPNP members in Canada which were relied on by Mr. Hussain in support of his contention that he did not have a viable IFA in Pakistan. The Officer notes that the evidence is vague and speculative, and thus of little use in providing new evidence as to the IFA issue. From a review of the statutory declarations in question, I am satisfied that this conclusion was one that was reasonably open to the Officer.
[24] It should also be noted that these declarations appear to be quite similar to the evidence adduced before the IRB by two other UKPNP members, which evidence was rejected by the Board for essentially the same reason.
[25] While the Officer appears to accept the authenticity of the newspaper article regarding the continuing police raids on Mr. Hussain's home, the Officer quite reasonably found that this was evidence of the continuing risk faced by Mr. Hussain should he return to Azad Kashmir, but did not address the determinative issue of the availability of an IFA elsewhere in Pakistan.
[26] In a similar vein, the Officer quite reasonably found that the letters from Mr. Hussain's wife and the Secretary General of the UKPNP were simply additional evidence of the situation that Mr. Hussain faced in Azad Kashmir, and did not bear on the availability of an IFA.
[27] The Officer then weighed this evidence against the objective country condition information regarding the situation in Pakistan, observing that this information was glaringly silent in relation to the risk allegedly faced by UKPNP members in Pakistan.
[28] Having evaluated the evidence, the PRRA Officer concluded that there was insufficient credible evidence before him that would warrant a determination that was different from that reached by the IRB. In coming to this conclusion, I am satisfied that the Officer properly understood the risk being claimed by Mr. Hussain, that he independently examined the situation, and that his conclusion was one that was reasonably open to him on the evidence.
Conclusion
[29] For these reasons, the application is dismissed.
Certification
[30] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3630-05
STYLE OF CAUSE: NAZIR HUSSAIN v.
THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December 14, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Mactavish
DATED: December 19, 2005
APPEARANCES:
Mr. Birjinder P.S. Mangat FOR THE APPLICANT
Ms. Camille Audain FOR THE RESPONDENT
SOLICITORS OF RECORD:
MANGAT LAW OFFICE
Calgary, Alberta FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Department of Justice
Edmonton, Alberta FOR THE RESPONDENT