Date: 20041028
Docket: IMM-8657-03
Citation: 2004 FC 1491
Ottawa, Ontario, this 28th day of October, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
MUHAMMAD ZULFIQ RANJHA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated October 16, 2003 which determined that the Applicant was not a Convention refugee and was not a person in need of protection. The Applicant seeks the following relief:
(a) an Order quashing the decision that the Applicant is not a Convention refugee and is not a person in need of protection;
(b) an Order referring the matter back to the Refugee Protection Division for a new hearing before a differently-constituted Board; and,
(c) such further and other relief as Counsel may advise and as the Court may permit.
ISSUE
[2] Whether the Board made any reviewable error in law in arriving at its decision, in regards to the definition of a Convention refugee, the adverse findings of credibility or the availability of an internal flight alternative ("IFA").
BACKGROUND
[3] The Applicant, Muhammad Zulfiq Ranjha (Mr. Ranjha, or the "Applicant") is a 32-year-old citizen of Pakistan who claims a well-founded fear of persecution at the hands of supporters of the Pakistan Muslim League ("PML"), the Pakistan Muslim League Quaid-e-Azam ("PMLQ"), the police and the current military government in Pakistan by reasons of his political opinion and affiliation with the Pakistan Peoples Party ("PPP").
[4] In his application materials, Mr. Ranjha details a number of incidents in which he was persecuted by the PML, the PMLQ and the police between 1992 (or so) and 2001, the most serious of which occurred in August 1997. In late November 2000, police got involved in a protest at which the Applicant was present. The Applicant avoided arrest by the police and went into hiding at a friend's house. Upon learning the police had raided his house and were claiming to have a First Information Report ("FIR") registered against him, Mr. Ranjha decided to flee Pakistan. With the help of an agent, he was able to leave Pakistan on January 20, 2001. He spent three days in the United States before coming to Canada on January 24, 2001, whereupon he claimed refugee status five days later.
[5] Mr. Ranjha's claim was heard on September 27, 2001 by the Refugee Protection Division of the Immigration and Refugee Board, and a negative decision rendered against his claim on November 19, 2001. The Applicant applied for judicial review of this decision, which was granted on or before May 2, 2002. The Applicant's claim was then heard by a new Board on August 26, 2003, and a second negative decision rendered on October 16, 2003. It is that second decision that is under review.
DECISION UNDER REVIEW
[6] The Board determined that the claimant was not a Convention refugee since he has a viable IFA in the city of Karachi, in the Province of Sindh, and that, for the same reasons, the Applicant was not a person in need of protection and that his removal to Pakistan would not subject him personally to a risk to his life or risk of cruel and unusual treatment or punishment.
[7] The Board's negative decision centred around the fact that it "did not find the claimant to be a credible and trustworthy witness respecting the central elements of his refugee protection claim." Specifically, the Board found the claimant's substantial delay in leaving Pakistan (slightly more than three years after the August 1997 incident) to seriously undermine the credibility of his allegations and to be inconsistent with a subjective fear of persecution in Pakistan. The Board also drew a negative inference regarding Mr. Ranjha's credibility from the fact that he did not make a refugee protection claim while in the United States. The Board then went on to find that Mr. Ranjha had an IFA available to him after having assessed the Applicant's objective fear of persecution in Karachi, Sindh Province.
[8] Having concluded that an IFA was available to the Applicant, the Board did not consider the objective basis for Mr. Ranjha's fear of persecution in District Mandi Bahauddin, Punjab Province, where he was living at the time of these events.
SUBMISSIONS
The Applicant
[9] The Applicant submits that the Board, in its determination that Mr. Ranjha was neither a Convention refugee nor a person in need of protection, erred by interpreting ss. 96 and 97 of the Immigration and Refugee Protection Act ("IRPA"), the sections that define a "Convention refugee" and a "person in need of protection," as a single consideration rather than two separate issues. The Applicant further states that the Board erred in its application of the definition of Convention refugee in determining Mr. Ranjha was not a refugee since he should have been judged according to his political opinion rather than his political profile or level of political activity. The Board also erred, it is submitted, in its determination that protection was available to Mr. Ranjha.
[10] Insofar as the Board's findings regarding Mr. Ranjha's credibility are concerned, the Applicant submits the Board erred by imposing too high a standard of proof. The evidence should have been assessed for credibility on a balance of probabilities, especially in light of the documentary evidence that demonstrated Pakistan's record of human rights abuses. The Board dismissed the FIR, warrants of arrest and a proclamation issued against Mr. Ranjha, on the basis that document forgery was known to be rampant in Pakistan, rather than on the basis of contradictory evidence. The Applicant states that the Board further erred when it rejected Mr. Ranjha's claim on the basis of its adverse credibility findings without having assessed the objective merits of his claim.
[11] Because of the other errors allegedly made by the Board, the Applicant is of the opinion that the Board came to an erroneous conclusion when it stated that an IFA existed. The Applicant states that the Board's decision regarding the existence of an IFA was premature since the Board "first has to make a determination on the issue of a 'well-founded fear' of persecution," and that the Board specifically failed to do so when it stated at page 4 of its decision:
"Having concluded through the following analysis that an internal flight alternative is available to the claimant in Karachi, Sindh Province, apart from my adverse credibility findings, I did not consider the objective basis for his fear of persecution in District Mandi Bahauddin, Punjab Province."
[12] Therefore, Mr. Ranjha claims that the Board erred in determining that since he could live in Sindh Province, the Board did not have to make a determination of whether he had a well-founded, objectively-supported fear of persecution in his current home state of Punjab Province.
[13] Finally, the Applicant claims that the Board erred by taking irrelevant concerns into consideration; for instance, the fact that the PPP Vice President for District Mandi Bahauddin, a much more high-profile member of the PPP than the Applicant, had never been arrested, detained or tortured by the police. The Board thus found it implausible that the police would have been interested in the Applicant.
The Respondent
[14] The Respondent states that since the Board has not made any patently unreasonable findings, it is not open to this Court to interfere with its decision. The Respondent is of the opinion that the standard of review should be patent unreasonableness since virtually everything in the Applicant's argument goes to the Board's findings of fact. Furthermore, the Respondent argues that even if the standard of review is reasonableness simpliciter, the Board is granted considerable deference and that its decision is still supported by a tenable explanation.
[15] The Respondent claims that the Applicant has misunderstood the Board's reasoning regarding its determination that Mr. Ranjha was not a Convention refugee and that Mr. Ranjha was also not a person in need of protection. The Respondent states that the Board undertook, in fact, three separate determinations: first, that the applicant was not a Convention refugee; second, that the applicant had a viable IFA; and third, because he had a viable IFA, he was not a person in need of protection.
[16] The Respondent claims that the Board did consider both the objective as well as the subjective elements of the test in determining whether Mr. Ranjha was a Convention refugee, and therefore, no reviewable error was made.
[17] The Respondent then goes on to explain how the Board properly assessed the existence of an IFA. According to the Respondent, the Applicant is merely trying to have the Court re-weigh the evidence, and that it was reasonably open to find that an IFA existed.
[18] Finally, the Respondent submits that it was open to the Board to make adverse findings of credibility, despite the fact that these findings could negatively impact the Board's subsequent determinations regarding the Applicant's claim. The Respondent claims that it is not open to the Applicant to re-visit these decisions in the absence of evidence that the credibility findings were made based on erroneous facts or in a capricious manner.
ANALYSIS
Standard of Review
[19] Since the bulk of the Applicant's arguments are concerned with the Board's findings of fact, the standard of review should be patent unreasonableness. This is consistent with judicial authority:
"[T]he standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per LaForest J., at pages 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact-finding be patently unreasonable."
(See C.U.P.E. Local 301 v. Montréal, [1997] S.C.R. 793 at para. 85. See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 52.)
THE ANALYSIS
[20] Furthermore, decisions of the Refugee Protection Division concerning the availability of an IFA have further been found to be reviewable according to a standard of patent unreasonableness : See Mohammed v. Canada (Minister of Citizenship and Immigration), [2003] F.C. 954, Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.).
The Board's decision that Mr. Ranjha was not a Convention refugee nor a person in need of protection
[21] In determining whether a claimant is a Convention refugee, the Board should undergo a two-step process: first, whether the claimant truly holds a subjective fear of persecution on the basis of one of the Convention grounds; and second, whether there is "a reasonable chance that persecution would take place were the applicant returned to his country of origin." This second step is an objective one : See McGuigan J.A. speaking for the Federal Court of Appeal in Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.) at paras. 6-7.
[22] While the Applicant complains that the Board proceeded to the analysis of IFA without having answered the second step of the Convention refugee test, it seems appropriate for the Board to have done so. In this case, a fair reading of the analysis was based on the cumulative effect of the following factors :
- the Applicant's delay in leaving Pakistan;
- his failure to make a refugee claim in the USA;
- the lack of evidence that the Applicant had a profile with the PPP;
- the fact that the PPP Vice-President has a higher profile than the Applicant yet still resides in the same district despite receiving threats;
- the Applicant's explanation about why he did not mention the two (2) arrests warrants in his PIF;
- the documentary evidence about access to fraudulent documents;
- the fact that the Applicant could safely relocate to Karachi; and
- the assessment of the lack of objective fear of persecution in Karachi.
[23] As long as the Board's determination that an IFA exists is correct, the Board cannot be said to have erred in law in its determinations on this point, and thus the Applicant's claim must fail.
[24] As a complement to my preceding comments, I note that the Board did assume its duties in relation to sections 96 and 97 of I.R.P.A. The Board did make findings that met the requirements of the Act when it concluded that the Applicant is not a convention refugee since he has a viable flight alternative in Karachi and therefore is not in need of protection (see the Board's decision at page 13). There is no reason to intervene.
The Board's decision that Mr. Ranjha was not credible
[25] Credibility and the weight given to evidence are both matters for the Board to decide. As long as the factual conclusions and inferences are reasonably open to it to have made, there is no basis for a Court to interfere with the Board's decision : See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
[26] The failure of the Board to refer to every piece of evidence does not, in itself, constitute a reviewable error, unless the Board has ignored, without some form of justification, highly relevant evidence or fairly credible evidence that supports the claimant's allegations. The evidence should be assessed for credibility on a balance of probabilities; that is, whether it is reasonable to believe the evidence is likely true.
[27] A close reading of the assessment of the credibility made by the Board does not open up the possibility of a patently unreasonable finding. On the contrary, the decision read as a whole supports the contrary view: that the credibility finding was well justified.
[28] By way of example, the Board was reluctant to believe that Mr. Ranjha chose to remain in Pakistan for another three years before fleeing. In August 1997, Mr. Ranjha, along with some other PPP supporters, was incarcerated and tortured by the police for three days. After this incident, however, Mr. Ranjha did not leave the country. According to the Board's decision, although he knew he was in danger, he was too involved with the PPP to leave Pakistan at that time, and chose to stay. The Board states at page 3:
"The foregoing alleged incidents are of a serious nature and are central elements of the claimant's refugee protection claim, particularly the alleged torture at the hands of the police in August 1997. Therefore, I find the claimant's explanation as to why he did not leave Pakistan until January 2001 to be unreasonable. Given his allegations of PML beatings and being subjected to torture at the hands of the police in August 1997, I find the claimant's substantial delay in leaving Pakistan seriously undermines the credibility of these allegations, and is inconsistent with a subjective fear of persecution in Pakistan."
[29] The Board goes on to later question whether the incident of August 1997 even occurred, citing the lack of documentary evidence on this point and the fact that there is no evidence that higher profile PPP members, such as the Vice-President for Mr. Ranjha's district, were ever detained and tortured by the police. It was certainly open for the Board to question the Applicant's credibility based on those facts.
[30] Furthermore, the Board dismissed the authenticity of the FIR, arrest warrant and Proclamation produced by Mr. Ranjha. By way of reasons, the Board cites the delay in production of these materials (about eight months after the Applicant's arrival in Canada) and the fact that document forgery is well-known to be widespread in Pakistan. Mr. Ranjha's explanation was that he only fled Pakistan in 2001, three years after he was initially tortured (which story the Board does not find credible either, at any rate), because he learned an FIR, warrant of arrest and proclamation had been issued against him. The Board did have evidence before it that there are high levels of forgery of official court documents such as warrants for arrest in Pakistan; therefore, it was open to the Board to take that into consideration when assessing the credibility of this evidence. The Board also found the claimant's explanation for the delay in requesting and obtaining copies of the documents to be unreasonable, and that this delay put the authenticity of the documents into question. I do not find in these assessments a reason to intervene.
The Board's decision that an IFA was available
[31] Finally, the Board found that an IFA was available to Mr. Ranjha in Karachi, Sindh Province. This was based on the Board's findings, and documentary evidence before it, that many other members of the PPP were able to live in some regions of Pakistan (even some successfully in Punjab Province, from whence Mr. Ranjha fled), that the PPP is becoming more accepted in Pakistan, and that it would not be unduly harsh for the Applicant to relocate to Karachi. Some of these conclusions, however, were reached as a result of the Board's credibility findings. Since the credibility findings can withstand this Court's scrutiny, then there is no reason to interfere with the Board's conclusion that an IFA was available.
CONCLUSION
[32] As mentioned earlier, the Board's decision is well-written and the findings made by the Board were open to the Board to reach based on the evidence before it. Unless the Court finds a patently unreasonable error in the credibility findings made by the Board, there seems to be no reason to interfere with the Board's decision.
[33] Counsel were asked if they had questions for certification to submit and they both declined.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review be denied and no question is to be certified.
"Simon Noël"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8657-03
STYLE OF CAUSE: MUHAMMAD ZULFIQ RANJHA v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: October 14, 2004,
REASONS FOR : The Honourable Mr. Justice S. Noël
APPEARANCES:
Mr. Satnam S. Aujla FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Yanko Merchant Law Group
Calgary, Alberta FOR APPLICANT
Morris Rosenberg, Deputy Attorney General of
Canada (Edmonton Regional Office)
Edmonton, Alberta FOR RESPONDENT