Ottawa, Ontario, December 1, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[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 January 12, 2006, in which the Board concluded that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant is a citizen of Pakistan born in 1980. At 12 years of age, in October 1993, the applicant flew to the United States with his parents and siblings. In the United States, the applicant’s father worked illegally and the applicant and his siblings attended school. In 1996, the applicant’s family returned to Pakistan while he remained with relatives in the United States to pursue his education. At that time the applicant was 15 or 16 years of age. The applicant made a refugee claim at the Canadian border in February 2003 at the age of 22.
[3] The applicant was self-represented at the hearings before the Board. The applicant was also self-represented before this Court but advised the Court by letter on the morning of the hearing that he had abdominal pain, could not attend the hearing because he would not be able to concentrate, and requested that the Court consider the material filed by the applicant and make a decision based on this material. The Court decided to proceed with the hearing based on the extensive representations and material before the Court. As a result, the Court asked that counsel for the respondent address each of the issues raised by the applicant and other issues raised by the Court.
[4] In his Personal Information Form (PIF) narrative dated March 20, 2003, the applicant stated that his father and uncle were supporters of the Pakistan’s People’s Party (PPP). After the military coup of October 1999, his father reportedly participated in a rally organized by the PPP. His father was arrested for his participation. The applicant claims that his father is a potential target of the Pakistani authorities. The applicant further claims that he could be targeted as a family member of an enemy of the current regime. Since September 11, 2001, the applicant claims that the Pakistani government has become hostile towards possible dissent. The applicant fears he will be targeted due to the time he spent outside of Pakistan and claims that Pakistanis who return from abroad are often victimized by violence because they are perceived as being wealthy. The applicant reports hearing of kidnapping incidents in Pakistan where protection from a corrupt police force is unavailable.
[5] On March 17, 2005, the applicant submitted an additional narrative amending his PIF stating that, on September 23, 2003, his father took a leading role in an opposition strike against the military government. As a result, his house was raided the next day and his father was sought for arrest. The police alleged that the applicant’s father and uncle had jeopardized the public order. His father was not home during the raid and has since gone into hiding to avoid arrest. The applicant claims that three men from the inter-services intelligence (ISI) came to his father’s house the next day to arrest his father and uncle. The applicant’s younger brother informed the men that his father and uncle were not home. The younger brother was allegedly detained by the ISI, and his whereabouts since then are unknown. In October 2003, the rest of the applicant’s family left for Dubai where they have been living illegally. The applicant claims that he fears death or torture at the hands of the ISI.
[6] The Board found inconsistencies in the applicant’s evidence and did not find his claim to be credible. The Board considered the applicant’s delay in arriving in Canada to make a claim to be unreasonable. The Board found that the delay in making a refugee claim demonstrated a lack of credibility and subjective fear. The Board also had concerns about the September 2003 rally and the role of the applicant’s father in the rally. The Board noted that the evidence did not indicate that the rally turned violent as reported by the applicant. The Board did not consider it reasonable that the Pakistani government would be interested in the applicant, who has not lived in Pakistan since the age of 12 and was never politically active. The Board concluded that there was insufficient evidence before it to support the applicant’s claim that he would be at risk from the government of Pakistan or from any other agent of persecution.
Issues
[7] This application raises the following issues:
1. Did the Board err in making patently unreasonable findings of fact?
2. Did the Board breach the duty of procedural fairness by providing an inadequate record of the hearing?
3. Did the Board breach the duty of procedural fairness by reversing the order of questioning during the hearing under the IRB Chairperson’s Guideline 7?
Standard of Review
[8] With respect to the Board’s factual findings, including its determinations of credibility, the appropriate standard of review is patent unreasonableness. Only if the Board’s findings are unsupported by the evidence before it will the decision under review be patently unreasonable. Otherwise, the Court will not revisit the facts or weigh the evidence before the Board: Jessani v. Canada (Minister of Citizenship and Immigration), 2001 FCA 127 at para. 16.
[9] With respect to the issue of procedural fairness, the Supreme Court of Canada has held that questions of procedural fairness or natural justice are subject to the correctness standard: Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at para. 65. If a breach of the duty of fairness is found, the decision must be set aside: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665.
Relevant Legislation
[10] The legislation relevant to this application is the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). The relevant provisions governing protection and refugee status are as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally […] (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, […] |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : […] b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, […] |
Analysis
Issue No. 1: Did the Board err in making patently unreasonable findings of fact?
[11] The applicant argues that the Board based its decision on erroneous findings of fact and without regard for the material before it. Specifically, the applicant argues that the Board disregarded or misconstrued the evidence regarding the applicant’s delay in claiming refugee protection and the references to his father’s involvement in the PPP in his original PIF narrative.
[12] In reaching its conclusion that the applicant’s claim was not credible, the Board emphasised the applicant’s delay in arriving in Canada to claim refugee protection:
The panel does not accept as reasonable the delay of the claiming in arriving in Canada to make a claim. The claimant states both at the border and confirmed in his original PIF that his father was arrested in 1999 and 2000. The claimant did not arrive in Canada until February 2003. The claimant states in his original narrative that after September 11, 2001, the Pakistani government was interested in becoming even more hostile towards possible dissent. The claimant made no effort until the end of 2002 to seek a [sic] legal advice in the United States as to obtaining protection.
The panel finds the claimant’s delay in making a timely refugee claim to demonstrate a lack of credibility and a lack of subjective fear.
[Emphasis added]
[13] The applicant argues that he gave adequate reasons at the hearing for why he could not make a claim for protection in the United States and that these reasons were not taken into account in the Board’s decision. The applicant’s evidence on this issue is recorded in the transcripts from the hearing held on May 19, 2005. At page 12, the Board member begins questioning the applicant concerning his delay in applying for protection:
Member: Okay well we’re going to talk about whether you can live there now.
You were 13 when you went to the U.S.?
Claimant: I was 12 years old.
Member: 12 okay, and you had a student visa or you went as a visitor?
Claimant: I came there as a visitor.
Member: And how long was your visa visitor for?
Claimant: Six months.
Member: Did you ever get another visitor visa after that?
Claimant: No.
Member: And you went to school until when in the U.S.?
Claimant: I went to up to grade 12.
Member: Your PIF says you were in school until June 1998.
Claimant: Yes.
Member: And then after that you worked until January 2002, is that right?
Claimant: No I worked until June 2003. I worked not until June, I worked until 2003 only, not June.
Member: What month 2003?
Claimant: January, up until January.
Member: And you were at American Perfumery?
Claimant: Yes.
Member: So January 2003.
Claimant: Yes.
Member: And then you came to Canada in February, right?
Claimant: Yes.
Member: Why did you come to Canada in February 2003?
Claimant: Because when I came to know the circumstances, my father told me about the circumstances, after that I discussed with the lawyer, then my lawyer suggested that you don’t have very good chances in America, go to Canada.
Member: When did you discuss this with your lawyer?
Claimant: I did end of 2002 up until 2003 I kept discussing.
Member: Why did you not go to a lawyer before then?
Claimant: You’re asking why didn’t I go to the lawyer before that?
Member: Well is that the first time you went to a lawyer?
Claimant: Yes.
Member: Okay so why did it take you until the end of 2002 to go to a lawyer?
Claimant: Because when I came to America I was only 12 years old and I did not have any understanding of legal or illegal.
Member: Right but---
Claimant: It’s just that in America I didn’t have any problems but my father up until now he didn’t throw (verify) [sic] me whatever the problems that were in Pakistan so far.
Then my father told me that before Americans get their hands on you, arrest you, and then send you back, you better go and have a case. Then he told me about whatever problems they’re having in Pakistan and they said if you come back here you will also be facing the same problem.
Member: When did he tell you this?
Claimant: This he told me in 2002, I don’t remember exactly when.
Member: Why didn’t he tell you this earlier?
Claimant: It’s just that they were under the impression that I’m living far away from them and if I come to know about these things then I’ll keep thinking about them.
[Emphasis added]
[14] The Board’s decision makes no reference to the applicant’s stated reasons for not seeking refugee protection earlier than February, 2003. Instead, the Board concludes that the delay was unreasonable and indicative of a lack of subjective fear.
[15] The respondent referred the Court to Mr. Justice Rouleau’s judgment in Hernandez Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324. At paragraph 17, Mr. Justice Rouleau held that an applicant must provide an explanation for a delay in claiming protection:
The Board states correctly that while the delay is generally not a determinative factor in a refugee claim, there are circumstances where the delay can be such that it assumes a decisive role; what is fatal to the applicant’s claim is his inability to provide any satisfactory explanation for the delay.
[Emphasis added]
[16] In this case, however, the applicant provided an explanation for the delay. When he arrived in the United States under the care of his parents, he was only 12 years old. By the time of the events in Pakistan giving rise to his alleged fear of persecution or need for protection, he had already been living in the United Status illegally for several years. The Court notes that the applicant was 22 years old when he began seeking legal advice regarding his refugee protection options. The Court also notes that the Regulations consider persons under age of 22 years to be dependent children: Immigration and Refugee Protection Regulations, S.O.R. 2002-227, s. 2. In any event, the Board has not provided any analysis disclosing its reasons for rejecting the applicant’s explanation of the delay. It is thus impossible for the applicant or a reviewing court to determine whether the Board reached its decision with due regard for the applicant’s explanation. In my view, the Board failed to provide intelligible reasons for dismissing the applicant’s explanation for delay in making the claim in 2003.
[17] However, the Board made other findings of fact supporting its conclusion that the applicant was not credible including:
1. the untrustworthiness of the information in the amendment to the PIF narrative dated March 17, 2005. The Board did not find it reasonable that the claimant would have waited from September 2003 until March 2005 to provide this significant new information. Moreover, the Board found that this information was “lifted” verbatim from news articles and this “calls into question the trustworthiness of the entire amendment of March 2005”;
2. there was no mention in the lawyer’s letter of any action being taken to locate or free the claimant’s brother who allegedly was detained by the police in 2003 and not heard from since. The applicant alleged that his brother disappeared because of the brother’s relationship to his father and that the applicant expected the same thing would happen to him if returned to Pakistan. The Board found that the claimant’s testimony about his brother was “vague”. The Court agrees that this evidence is vague and untrustworthy; and
3. it is not reasonable that the Pakistani government would be interested in the applicant who has not lived in Pakistan since he was 12 years of age and was never politically active.
[18] These findings of fact by the Board are not patently unreasonable or unreasonable. They are based on evidence before the Board. Accordingly, the Court cannot set aside the Board’s finding that the applicant’s evidence was not credible based on these findings.
Issue No. 2: Did the Board breach the duty of procedural fairness by providing an inadequate record of the hearing?
[19] The applicant argued in his written submissions in support of his leave application that the Board failed to provide transcripts for the hearing held on May 19, 2005 (the “May hearing”). The applicant argued that the Board member was satisfied at the May hearing that the applicant had established his claim for refugee protection subject to verification of two lawyers’ letters to be obtained from Pakistan. As was indicated on the hearing information sheet, the May hearing was “adjourned for documents”. The applicant argues that the only purpose of adjourning the May hearing was to confirm the authenticity of two lawyers’ letters he provided as evidence in support of his claim. The applicant maintains that, if he is able to obtain transcripts for the relevant portion of the May hearing, it could be proven that the Board was otherwise satisfied with his claim and subsequently reversed its position at the hearing held on December 19, 2005.
[20] The applicant’s argument regarding a lack of transcript is contained in his memorandum of fact and law dated March 2, 2006. The applicant requested leave to appeal in order to enable him to procure the transcript of the hearing. Mr. Justice Robert Barnes granted leave on August 30, 2006, and on September 18, 2006 the Board’s Record including transcripts were filed with the Court. Accordingly, the Tribunal Record contains a transcript for the May hearings so that this issue raised by the applicant is now moot.
Issue No. 3: Did the Board breach the duty of procedural fairness by reversing the order of questioning during the hearing under the IRB Chairperson’s Guideline 7?
[21] The applicant argues that the Board breached its duty of procedural fairness by reversing the order of questioning at the hearing pursuant to Guideline 7.
[22] Since the applicant was self-represented at the three hearing dates before the Board, the applicant was not in a position to have his own counsel ask him questions as part of a direct examination. Accordingly, the Board was left with no alternative but to ask the applicant relevant questions to illicit information in support of the applicant’s claim.
[23] Accordingly, this submission in the applicant’s memorandum has no substance or merit.
Conclusion
[24] For these reasons, the Court must dismiss this application for judicial review. Counsel for the respondent submitted that this case does not raise any serious question of general importance which warrants certification. As discussed, the applicant was not represented at the hearing and did not appear. The Court does not consider that this case raises any serious question of general importance which should be certified. Accordingly, no question will be certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that:
This application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-550-06
STYLE OF CAUSE: MUHAMMAD ADEEL
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 28, 2006
DATED: December 1, 2006
APPEARANCES:
Negar Hashemi FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario