Montréal, Quebec, February 7, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) rendered on July 6, 2006 finding that Arshad Zia (Applicant) is not a Convention Refugee pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) or a person in need of protection pursuant to section 97 of IRPA on the basis that the Applicant could avail himself of a viable internal flight alternative (IFA) within Pakistan.
I. Facts
[2] The Applicant owned a gas station in the North-West Frontier Province of Pakistan. In March 2004, two of his employees informed the Applicant that they could no longer continue working for him as they had been recruited by the Jamiat Ulma-e-Islam (JUI), the most hardline wing of the Muttahida Majlis-e-Amal Party, the major Islamic political party of Pakistan.
[3] Having been informed of the employees’ intention to join the JUI, the Applicant approached the employees’ parents to advise them of their sons’ intentions and advised them not to allow their sons to join the JUI.
[4] The Applicant’s actions to prevent the employees’ from joining the JUI angered a local Molvi named Ghulam Rasool.
[5] On March 16, 2004, the Applicant was attacked by JUI “goons” and was threatened with further reprisals. The Applicant filed a complaint with the local police following this attack. On March 27, 2004, JUI “goons” searched the Applicant’s home. As he was absent, they “humiliated” his wife and warned her that they would kill the Applicant if he did not retract his police report.
[6] The Applicant did not retract his police report. In fact, because the local police took no action, the Applicant approached higher police authorities on April 4, 2004. Once again, his complaint to the police did not lead to police action against the JUI.
[7] On April 16, 2004, Molvi Rasool declared a fatwa against the Applicant on the basis that the Applicant was an “apostate”, thus authorising he be killed by any Muslim. After the declaration of the fatwa, the Applicant and his family went into hiding in Abbotabad. Around this time, the Applicant also learnt that a false report had been filed against him by a local religious figure.
[8] After staying in hiding for one month, the Applicant left Pakistan on May 15, 2004. He first entered the United Kingdom, but was advised that he had no hope of obtaining political asylum. He therefore left the United Kingdom on July 21, 2004 for the United States. In the United States, he was also informed that it was not feasible for him to apply for asylum. The Applicant therefore came to Canada on November 15, 2004 and applied for refugee protection.
II. Issues
(1) Is the RPD’s finding that the Applicant could avail himself of a viable internal flight alternative unreasonable due to the fact that a fatwa had been issued locally against the Applicant?
(2) Is the RPD’s finding that the Applicant is not a convention refugee or a person in need of protection erroneous as the Applicant is targeted by the police in Pakistan?
III. Analysis
(1) Is the RPD’s finding that the Applicant could avail himself of a viable internal flight alternative patently unreasonable due to the fact that a fatwa had been issued locally against the Applicant?
[9] This Court has stated on numerous occasions that the standard of review applicable to a decision of the RPD finding that an internal flight alternative exists is that of patent unreasonableness (see Ortiz v. Canada (Minister of Citizenship and Immigration), 2006 FC 1365 at paragraph 35; Ako v. Canada (Minister of Citizenship and Immigration), 2006 FC 647 at paragraph 20; Nakhuda v. Canada (Minister of Citizenship and Immigration), 2006 FC 698 at paragraph 8; Camargo v. Canada (Minister of Citizenship and Immigration), 2006 FC 457 at paragraph 7; Chorny v. Canada (Minister of Citizenship and Immigration), 2003 FC 999 at paragraphs 5-11). There does not appear to be any reason to depart from that standard in this case.
[10] The Applicant argues that because Molvi Rasool issued a fatwa against him there is no viable internal flight alternative available to him in Pakistan. Thus, the Applicant submits, that the RPD’s finding that the fatwa issued against him had little or no significance beyond the locality in which the Applicant was living and where he operated his gas station, is patently unreasonable. According to the Applicant, there is no evidence that moving from one locality in Pakistan to another will diminish or eliminate the risk he faces as an individual subject to a fatwa. Moreover, the Applicant submits that the RPD failed to consider the fact that a fatwa cannot be annulled and can only be retracted by its issuing cleric.
[11] The RPD in its decision accepted that the fatwa issued by the Molvi Rasool was credible. However, as there was no evidence that the fatwa was publicized or was known outside the locality where it was issued, the RPD found that the Applicant had a viable internal flight alternative. This finding was based in part on document PAK40294.E cited by the tribunal. In that document, which contains the following remarks of Asma Jahangir, a founding member of the Human Rights Commission of Pakistan and a UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions in Pakistan (Remarks of Asma Jahangir to the Research Directorate, Immigration and Refugee Board, in Ottawa on September 6, 2002):
… when a Muslim leader issues a fatwa against an individual, his followers may give statements to the press to publicize the fatwa and, in some instances, posters will be distributed declaring the fatwa. Regarding the reach of a fatwa, Ms. Jahangir stated that if the fatwa is given by a “small, little mullah in the mosque” no one will know. However, if it is a “radical” or “militant leader”, people will know and it may be publicized. According to Ms. Jahangir, the more publicized the fatwa, the more dangerous the situation is for the named individual.
Ms. Jahangir stated that “it has become ridiculously common” for leaders of local and smaller mosques to issue fatwas against people in their own communities, and the “seriousness of this must not be undervalued”. Many of those issuing fatwas do so due to vested interested and are militants.
[Emphasis added]
Keeping in mind that the Applicant had the burden of proof and given that there was no evidence that the fatwa was publicized or known outside the locality where it was issued, I can but only conclude that the RPD’s finding that the Applicant had an internal flight alternative is not patently unreasonable and thus that the RPD’s finding should not be disturbed.
[12] It is important to note that the finding of a viable internal flight alternative is determinative of a refugee protection claim, as by definition, a person cannot be a refugee if they have an internal flight alternative. As Justice Linden writing for the Federal Court of Appeal in Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 stated at page 592 :
The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee (see Mahoney J.A. in Rasaratnam, supra, at page 710); it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country…
Thus, in the case at hand, the fact that the Applicant has an internal flight alternative is determinative of the case. Nonetheless, for the sake of completeness I will address the issue raised by the Applicant namely that he is targeted by the Pakistani police.
(2) Is the RPD’s finding that the Applicant is not a convention refugee or a person in need of protection erroneous as the Applicant is targeted by the police in Pakistan?
[13] The Applicant claims that in addition to being the subject of a fatwa, he is also being targeted by Pakistani police, as they filed a false police report against him. As such, the Applicant says he will be persecuted if he were returned to Pakistan. In support of his claim that he fears the Pakistani police, the Applicant filed a First Information Report (FIR), a warrant of arrest and a lawyer’s letter before the RPD.
[14] A field investigation conducted by the Canadian High Commission in Islamabad, without objection from the Applicant and after having authorized such inquiries (see page 42 of the Tribunal’s Record), found that the FIR supposedly filed against the Applicant had nothing to do with him and was instead linked to a Mr. Muhammad Shafiq who was accused of reckless driving. The Applicant explains this discrepancy on the basis that Pakistani officials are corrupt. Moreover, he claims that the results of the investigation conducted by the Canadian High Commission in Islamabad yielded hearsay evidence that is inadmissible before the RPD.
[15] As the RPD stated in their decision, the FIR verification was done solely on the basis of the FIR number that was given by the Applicant. There was no indication that the Applicant’s name or that any other name, was given to the police during the investigation. Thus the police would not have known that the High Commission was investigating the Applicant and thus take actions to sabotage the Applicant’s FIR file, if one in fact existed.
[16] As for the argument that the information yielded by the investigation by the High Commission is hearsay, it is to be noted that paragraphs 170(g) and 170(h) of IRPA state that the IRB is not bound by any legal or technical rules of evidence and, as such, may consider all evidence they consider to be trustworthy and credible. Consequently, the RPD was within its right to consider the information yielded by the investigation undertaken by the High Commission.
[17] Additionally, the Applicant on his Personal Information Form (PIF) responded “no” to the question as to whether he was sought by the police in any country (Tribunal’s Record, page 19). Moreover, in Schedule I, completed upon his entry to Canada on November 15, 2004, the Applicant did not mention that he was afraid to return to Pakistan because he was being targeted by the Pakistani police. Also in Schedule I, the Applicant responded “no” to a question relating to whether he was currently charged with or subject to criminal proceedings in any country.
[18] When confronted with these inconsistencies at his hearing, the Applicant said that he had misunderstood the questions on both the PIF and the Schedule I form. The RPD did not accept this explanation. It is well established that statements made by a person at a point of entry, in this case the answers provided on the Schedule I form, and in a PIF, may serve to impugn the credibility of an asylum claimant. As Justice Blanchard stated in Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 767 at paragraph 23:
According to case law, inconsistencies between an applicant's statements at the port of entry and testimony about crucial elements of a claim are sufficient to taint his credibility.
Moreover, it is to be noted that a decision of the IRB relating to credibility will only be overturned by this Court if such a decision is patently unreasonable (see Aguebor v. The Minister of Citizenship and Immigration (1993), 160 N.R. 315, at para. 4). Thus, the fact that the IRB did not believe the Applicant’s explanation as to the inconsistencies between his story and the information provided in the Schedule I form and the PIF is not a reviewable error, as the finding that the Applicant is not credible is not patently unreasonable.
IV. Conclusion
[19] The application for judicial review is dismissed as the Applicant has a viable internal flight alternative and his submission that he fears the Pakistani police is not credible.
[20] The parties were invited to submit a question for certification; they chose not to do so.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed and no question is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3731-06
STYLE OF CAUSE: Arshad Zia v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 5, 2007
APPEARANCES:
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Ms. Lenya Kalepdjian
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Mr. Daniel Latulippe
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SOLICITORS OF RECORD:
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Ms. Lenya Kalepdjian Montréal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada
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