Date: 20050117
Docket: IMM-1449-04
Citation: 2005 FC 44
Ottawa, Ontario, January 17, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MUHAMMAD ILYAS KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of theImmigration and Refugee Protection Act, S.C. 2001, c.27 (Act), against a decision of the Refugee Protection Division of the Immigration Refugee Board (Board) dated January 26, 2004, wherein the Board determined that the applicant was not a Convention refugee nor a person in need of protection.
ISSUE
[2] Did the Board commit a patently unreasonable error in concluding that the applicant could have prevailed himself of an internal flight alternative (IFA)?
[3] For the following reasons, I answer this question in the negative.
BACKGROUND
[4] The applicant is a 45-year-old citizen of Pakistan, a resident of Punjab, who claims a well-founded fear of persecution based upon his political opinion. He also claims to be a person in need of protection based upon a danger of torture, as well as a risk to his life or of cruel and unusual treatment or punishment should he return to Pakistan.
CONTESTED DECISION
[5] Even though the Board found that the applicant exaggerated, it nevertheless concluded that his story was credible overall. However, the Board did not grant the applicant refugee status because it held that he had an IFA in Pakistan. When questioned about the possibility of an IFA in Lahore or Karachi, the applicant submitted that he could not have relocated anywhere in Pakistan because an arrest warrant and a first information report (FIR) had been issued against him in his country. Since both documents are effective throughout all of Pakistan, the applicant believes that he would be arrested and tortured anywhere he might go.
[6] In its evaluation of the probative value of the documents produced by the applicant in support of his allegations, the Board also relied upon documentary evidence. It concluded that both documents were probably fraudulent because documents are rampant and easy to obtain in Pakistan. Therefore, because the applicant was unable to provide credible evidence to establish that there was a serious possibility that his life would be in danger in Lahore or Karachi, the Board concluded that the applicant's problems with the PML were clearly of a local nature and that, consequently, there was no serious possibility of the applicant being persecuted in another part of his country.
ANALYSIS
[7] Based on the jurisprudence and the pragmatic and functional analysis in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL), the appropriate standard of review in an application for judicial review which raises the issue of an IFA is patent unreasonableness (Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 (T.D.) (QL)). In other words, the Court will only intervene with the Board's decision if the applicant can demonstrate that the decision was based on an erroneous finding of fact or one that was made in a perverse of capricious manner or without regard for material before it (Federal Courts Act, paragraph 18.1(4)(d)).
[8] It is settled law that the idea of an IFA is "inherent" to the definition of a Convention refugee. In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), it was established that the definition of "Convention Refugee" requires that the claimant have a well-founded fear of persecution which renders him unable or unwilling to return to his country. If the claimant is able to seek safe refuge within his own country, there is no basis for finding that he is unable or unwilling to avail himself of the protection of that country. Since the existence of an IFA is part of the question of whether or not the applicant is a Convention refugee, the onus is on the applicant to show, on a preponderance of probabilities, that there is a serious possibility of persecution throughout his entire country.
[9] The test in determining the existence of an IFA was expressed by Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1. F.C. 706 (C.A.) at 711 and reiterated in Thirunavukkarasu, supra, at paragraph 12.
In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in [suggested IFA] and that, in all the circumstances including circumstances particular to [the applicant], conditions in [place of IFA] were such that it would be unreasonable for the appellant to seek refuge there.
[10] As mentioned above, it is the applicant's responsibility to demonstrate that there is a serious possibility that he will be persecuted anywhere in his country. In the present case, the applicant's allegations rest upon the warrant of arrest and the FIR filed.
[11] It is well-established that the Board, as a specialized tribunal, is in a better position to determine the credibility of an applicant and the value of the evidence produced in support of his case (Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No.1329 (T.D.) (QL)). Contrary to the applicant's submissions, the Board is under no obligation to order an independent evaluation of the evidence produced. Mr. Justice Joyal stated inCulinescu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1200 (T.D) (QL), which was confirmed in Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 (T.D.) (QL), that it is within the Board's expertise to question the authenticity of a document (Akindele v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 68 (T.D.) (QL) at paragraph 5).
[12] In the present case, the Board relied upon documentary evidence to conclude that the evidence was probably fraudulent. After a careful examination of the evidence, the Board underlined that the reference number on the FIR was improperly noted. In support of its conclusion, it makes reference to documentary evidence which indicates that each FIR must show an annual serial number (PAR36145.E, p.0092 of the tribunal's record). In this instance, the FIR submitted bears the number 455, with no annual reference number. This anomaly raised doubt about the authenticity of the document. This doubt became stronger when the Board realized that the arrest warrant produced by the applicant makes no reference to the FIR.
[13] Furthermore, the applicant testified and mentioned in his Personal Information Form (PIF) that the police was looking for him under the false accusation of murder. He mentioned that this information was given to him by his father. When confronted with the fact that there was no charge for murder, the applicant explained that he was not educated and could not read the FIR and the arrest warrant. However, during his testimony, the applicant stated clearly that the FIR and the arrest warrant were read to him by a friend.
[14] This contradiction between the applicant's testimony and the evidence confirms the Board's conclusion about the exaggerations in the applicant's story. Therefore, given the fact that the documentary evidence (PAK35362.E, p. 0088 of the tribunal's record) indicates that there is a significant problem with forged documentation originating from Pakistan, the Board assigned no probative value to all documents produced in relation to the arrest warrant.
[15] Accordingly, the Board concluded that the applicant's problems with the PML were of a local nature and that, consequently, there would be no serious possibility of political persecution if the applicant was to relocate to a different part of his country. It stated that it was objectively reasonable to expect the claimant to seek safety in a different part of the country prior to seeking refuge abroad.
[16] After considering all of the evidence presented before the Board, the transcript of the hearing and the parties' submissions, I cannot conclude that the Board committed a patently unreasonable error. The Board's conclusion was supported by the evidence. Therefore, there is nothing that would justify this Court's intervention.
[17] The parties declined the opportunity to submit serious questions of general importance. I am satisfied that none arises out of this matter. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1449-04
STYLE OF CAUSE: MUHAMMAD ILYAS KHAN v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 13, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: January 17, 2005
APPEARANCES:
Jeffrey Platt FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jeffrey Platt
Montreal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT