Date: 20060824
Docket: IMM-3386-05
Citation: 2006 FC 1016
Ottawa, Ontario,
August 24th, 2006
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
ZEESHAN
SAEED
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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), in which it rejected
the applicant’s claim for refugee status under ss. 96 and 97 of the Immigration
and Refugee Protection Act.
FACTS
[2]
The
applicant is a 28-year-old citizen of Pakistan. He entered Canada September 5,
2001, on a student visa. Mr. Saeed was raised as a Sunni Muslim, and states
that he converted to the Shia sect of Islam in August 2003, due to the
influence of some Shia practitioners he was living with in Canada at that
time. He was arrested on October 23, 2003, when he entered the Citizenship and
Immigration Canada office in Etobicoke to initiate his refugee application.
[3]
In
his Personal Information Form (PIF) the applicant states that the arrest was
based on alleged misrepresentation in terms of his student visa. He further
states that he was arrested as part of “Project Thread,” a group formed under
the rubric of the Ottawa Business College which has been described in the media
as a potential sleeper cell associated with the Bin Laden network. In his
argument, the applicant states that the arrest was on the basis of a reasonable
suspicion that he posed a threat to national security. In his PIF, Mr. Saeed
states that he has been subject to harassment and death threats from personal
acquaintances in Pakistan, including the family of his former fiancée,
who is a Sunni Muslim. He further states that since Canadian authorities have
caused his name to be associated with “Project Thread”, he would be subject to
persecution at the hands of the Pakistani authorities and others upon return to
Pakistan.
[4]
Mr.
Saeed claimed refugee protection on the basis of fear of persecution for his
membership in the social group of people accused of terrorism as well as his
religion on January 2, 2004. After a hearing, the Board rejected his claim for
refugee status in a decision dated May 10, 2005.
DECISION UNDER REVIEW
[5]
In
a well-reasoned and extensive (39 pages) decision, the Board gave the following
reasons for coming to its conclusion.
a) Fear of persecution on the basis of
religion
[6]
The
Board referred to the applicant’s Schedule I Background Information, in which
he indicated that he feared he would be killed by Sunni terrorists
(specifically the group Sipah-e-Sahaba Pakistan or SSP) but
did not mention his fear of family and friends. The Board noted that when
questioned about this, the applicant stated he had omitted the fear of his
family and friends based on the advice of his counsel, who told him he could
include that information later in his PIF. The Board did not find this
credible, as his counsel was experienced in refugee law and was unlikely to
have given such advice.
b) Fear
of persecution on the basis of membership in a social group, i.e. people who
had been identified as associated with terrorist activities
[7]
The
Board found that the media had not connected Mr. Saeed specifically to others
known as members of Project Thread, and that there was no other evidence
establishing such a link. The Board considered the applicant’s concern that an
uncle in the United
States
had informed relatives in Pakistan that the applicant had
been arrested for similar reasons as others associated with Project Thread,
i.e. suspicion of terrorist involvement, and determined that this evidence was
“self-serving at best” (Board Reasons, p. 4). In its examination of the media
evidence, the Board also noted that the link between the persons arrested in
association with Project Thread and terrorist activities was actually
discredited or dismissed by the media in many cases.
[8]
The
Board considered the applicant’s evidence of the treatment of persons arrested
in association with Project Thread upon return to Pakistan, submitted
by way of affidavits given by such individuals and others who had knowledge of
the situation. The Board found that the most serious allegation contained in
this evidence was that of Imran Younas Khan, who claims to have been attacked
and shot at, but escaped by running away. The Board found his ability to escape
by running unlikely, and as such dismissed this evidence as not credible.
[9]
The
Board noted that the evidence indicated that both Amnesty International and the
Pakistani Human Rights Commission were aware of the returnees, but had not
given any reports subsequent to their return indicating ongoing problems. Furthermore,
there was nothing to indicate that the returnees had sought any assistance from
these organizations. The Board stated that even had it accepted the evidence
that returnees were questioned, detained, unable to find employment, beaten,
and threatened, it would still have concluded that this did not amount to
persecution or serious harm for members of Project Thread. For example, the Board
stated: “An isolated beating would on its own not be considered serious harm or
persecution” (Board Reasons, p.13).
[10]
The
Board went on to conclude that the treatment of another returnee, Muhammad Siddiqui,
appeared to be in line with the Pakistan Passport Act, and that even if
he had been forced to pay a bribe, such treatment did not amount to
persecution, stating: “I can see how counsel might characterize a bribe of $400
Canadian dollars as extortion however in many places of the world such as
Pakistan the requirement to bribe officials is both accepted and expected”
(Board Reasons, p. 17).
[11]
Similarly,
the Board found there was no evidence to indicate a specific risk of
persecution in Pakistan based on conversion from Sunni to Shia. In any
event, the Board was of the view that the pertinent question was not so much
whether the applicant returned to Pakistan as a Sunni or as a Shia, but whether
Pakistan could
provide adequate protection to its citizens.
c) State protection
[12]
The
Board considered the documentary evidence with regard to the existence of state
protection in Pakistan for
individuals targeted by religious extremists. It concluded that adequate,
although imperfect, state protection exists for Mr. Saeed. It based its
conclusion on the Pakistani government’s commitment to ridding Pakistan of
sectarian violence, the fact that Pakistan is generally in control of its
territory, and the existence of institutions in place to protect citizens.
[13]
The
Board took note of the fact that Mr. Saeed was still under investigation by the
Canadian authorities but that he had also received clearance to have his
refugee claim heard.
[14]
The
Board accepted that the applicant was a member of a particular social group,
which it described as “those arrested as a result of immigration violations
after enrolling at the Ottawa [Business] College.” The Board
acknowledged that the applicant might be questioned in Pakistan, but
concluded there was “no evidence that the actions of Pakistan, setting
aside possible travel restrictions, have gone beyond that level in the past
with others more directly linked to Project Thread.” The Board found it more
probable than not that Mr. Saeed would be treated in a similar manner (Board
Reasons, p. 32).
[15]
The
Board noted that there was a possibility of serious harm to returnees, but
based on the lack of specific evidence about the situation of returnees,
declined to conclude that the applicant would face a serious possibility of
such harm.
[16]
The
Board found that a majority of violent actions aimed at Shias were mass attacks
by suicide bombers, and incidents of individuals being personally targeted had
decreased.
[17]
Citing
the case of Canada (M.E.I.) v. Villafranca (1992), 18 Imm.L.R. (2d) 130,
the Board found that state protection in Pakistan was sufficient as it met the
test of being in control of its territory, having military, police and civil
authorities in place, and making serious efforts to protect its citizens.
[18]
The
Board concluded that the applicant’s fear of harm by his family and friends was
not credible, his fear of being subjected to harm on the basis of association
with members of Project Thread was not objectively well-founded, and that his
fear of persecution based on his conversion to Shia and the lack of state
protection was not well-founded.
ISSUES
[19]
There
are four issues to consider in the context of this application for judicial
review:
i)
Did the Board err in
determining that the applicant was not linked to Project Thread?
ii)
Did the Board err in
determining that the applicant would not be subject to persecution based on his
ostensible connection to Project Thread?
iii)
Did the Board err in its
articulation of the proper test for determining whether adequate state
protection exists?
iv)
Did the Board err in its
assessment of the evidence with regard to the issue of state protection in Pakistan?
APPLICANT’S SUBMISSIONS
i)
Did
the Board err in determining that the applicant was not linked to Project
Thread?
[20]
The
applicant submits that the Board erred by ignoring his testimony at the hearing,
in which he claimed his friends and family were aware of his arrest and that he
was viewed as a terrorist threat because of his connection to Project Thread.
He alleges the Board focused only on his explanations as to how his friends and
family obtained this information. The applicant submits this amounts to
requiring corroborating evidence, even though there was no contradictory
evidence to undermine the claimant’s explanations, which has been held to be an
error by this Court (see, e.g., Ahortor v. Canada (Minister of Employment
and Immigration) (1993), 65 F.T.R. 137, [1993] F.C.J. No. 705 (QL)). In the
alternative, the applicant argues that the Board failed to express its
disbelief to the applicant in plain language.
ii)
Did
the Board err in determining that the applicant would not be subject to
persecution based on his ostensible connection to Project Thread?
[21]
Relying
on the case of Valtchev v. Canada (Minister of Citizenship and
Immigration) 2001 FCT 776, the applicant contends that the Board erred in
finding that it was unlikely Mr. Khan could evade armed attackers by running
away, because it was not entitled to make an implausibility finding on this
basis and also because it erred by stating that it was a group of armed
attackers, when in fact the evidence indicated Mr. Khan was chased by a group,
of which only one person was armed.
[22]
The
applicant further submits that the Board ignored or misstated the evidence
relating to Mohammad Khalid Jahangir’s affidavit, which demonstrated a clear
link between membership in Project Thread and Mr. Jahangir being attacked. With
regard to the other affidavits, the applicant argues the Board erred by failing
to properly assess the cumulative nature of the actions taken against Project
Thread members, which, taken as a whole, meet the threshold for persecution.
iii)
Did
the Board err in its articulation of the proper test for determining whether
adequate state protection exists?
[23]
The
applicant submits that the Board erred in its statement of the test for state
protection as whether there were “serious efforts to provide adequate but not
necessarily perfect protection for the claimant should he return to Pakistan today”
(Board Reasons, p.19). Relying on subsequent case law such as Choudary v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No 2181 (QL), 2004 FC 1727;
and Razzak v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 951 (QL), 2005 FC 752,
the applicant submits that it is insufficient for a state to indicate a
willingness to help, but it must provide actual, effective protection.
[24]
The
applicant submits that the Board erred by basing its decision on this
articulation of the test. He argues that the test is insufficient because it would
be met in situations where a state made a serious effort, whether or not it
provided any actual protection.
v)
Did
the Board err in its assessment of the evidence with regard to the issue of
state protection in Pakistan?
[25]
In
the alternative, the applicant argues that the Board erred in concluding Pakistan offers adequate
state protection to Shias. Specifically, the applicant impugns the Board’s
findings that the number of individuals murdered by extremists has decreased,
that better police training is now being used, and that there has been a
crackdown on extremism by the government. The applicant submits these findings
are in direct conflict with the documentary evidence, in which a Human Rights
Watch report states that there has been a “sharp increase in the number of
targeted killings of Shi’a...in recent years”.
[26]
The
applicant points to an Amnesty International report indicating that in 2003, torture
and ill-treatment by police were still routine in Pakistan, while perpetrators
were rarely held accountable. The applicant also notes that the Human Rights
Watch report states: “Those implicated in sectarian violence are rarely
prosecuted and virtually no action has been taken to protect the affected
communities”. The applicant submits that both a U.S. Department of State report
and the Amnesty International report indicate that sectarian violence continues
and the government appears unable to offer protection from it.
RESPONDENT’S SUBMISSIONS
i)
Did
the Board err in determining that the applicant was not linked to Project
Thread?
[27]
The
respondent submits that the Board considered the applicant’s testimony and the
other evidence on the issue of the perception that Mr. Saeed was involved in a
terrorist group. It submits the Board was entitled to weigh the evidence, and
it is not this Court’s role to re-weigh the evidence.
ii)
Did
the Board err in determining that the applicant would not be subject to
persecution based on his ostensible connection to Project Thread?
[28]
The
respondent submits that, with regard to the affidavits of Mr. Khan, the
applicant is merely speculating about the possible ways in which the affidavits
could have been considered. More specifically, the respondent argues the Board
was entitled to make an implausibility finding concerning Mr. Khan’s evidence,
as it was based on other documentary evidence before it.
[29]
With
respect to Mr. Jahangir’s affidavit, the respondent contends that the Board’s reasons
clearly indicated that it considered this evidence by referring to it specifically
(Board Reasons, p. 9). The respondent argues that the Board in fact gave the
affidavit evidence the full benefit of the doubt, and still found that it did
not support a finding in the applicant’s favour.
iii)
Did
the Board err in its articulation of the proper test for determining whether
adequate state protection exists?
[30]
The
respondent submits that the Board was under no obligation to further analyze
the effectiveness of state protection as it had already concluded that
adequate, though imperfect, protection was available to the applicant, which
finding it made correctly. The respondent further argues that the applicant
failed to rebut the presumption of state protection with clear and convincing
proof to the contrary.
iv)
Did
the Board err in its assessment of the evidence with regard to the issue of
state protection in Pakistan?
[31]
The
respondent argues that the applicant failed to demonstrate that the Board did
not consider all the evidence, as the Board clearly took all the documents
cited by the applicant into account. With regard to the specific risk of harm,
the respondent contends that the Board was entitled to find that the applicant
did not have a profile that would put him at risk, and further that the Board did
not have to consider documentary evidence since the testimony was found not to
be credible.
[32]
Furthermore,
the respondent argues, the documentary evidence cited by the applicant neither
rebuts the presumption of state protection to the applicant nor contradicts the
Board’s findings. Specifically, the respondent argues that the Board noted the
targeting of Shia professionals, and that the evidence that torture and
ill-treatment persist is not inconsistent with the finding that the government
has provided training to police officers.
ANALYSIS
a) Standard of review
[33]
With
respect to the standard of review for credibility determinations by the IRB, it
is well established in the case law of the Federal Court of Appeal and of this
Court that patent unreasonableness is the norm (see, e.g. Thavarathinam v. Canada
(Minister of Citizenship and Immigration) 2003 FC 1469, [2003] F.C.J. No. 1866
(F.C.A.) (QL), at para. 10; Aguebor v. Canada (Minister of Employment and
Immigration) [1993] F.C.J. No. 732 (F.C.A.) (QL), at para. 4, recently
applied in Ogiriki v. Canada (Minister of Citizenship and Immigration)
2006 FC 342; [2006] F.C.J. No. 420 (QL) , Mohammad v.
Canada (Minister of Citizenship and Immigration) 2006 FC 352; [2006] F.C.J.
No. 493 (QL) ). The same standard of review applies to the assessment of the
legitimacy of identity documents (see, e.g. Egbokheo v. Canada (Minister of
Citizenship and Immigration) 2006 FC 163; [2006] F.C.J. No. 285 (QL), Kosta
v. Canada (Minister of
Citizenship and Immigration) 2005 FC 994; [2005] F.C.J. No. 1233 (QL)).
[34]
As explained by the Supreme Court
of Canada, the standard of patent unreasonableness mandates that this Court
should not interfere with a decision unless “there is no line of analysis
within the given reasons that could reasonably lead the tribunal from the
evidence before it to the conclusion at which it arrived" (Law Society
of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20).
[35]
On the other hand, the proper
determination of the test for state protection calls for the standard of
correctness (see, e.g. the decision of Justice Mactavish in Collins v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1403). This Court has also held that the state
protection analysis itself is a matter of mixed fact and law subject to review
on the standard of reasonableness (see, e.g. the decision of Justice Dawson in Muszynski
v. Canada (Minister of Citizenship and Immigration) 2005 FC 1075). As stated by
the Supreme Court of Canada in Ryan, above,
a decision is reasonable if it stands up to a “somewhat probing examination”. The
state of the law on this issue has been aptly summarized by my colleague Justice
Dawson in Muszynski, above:
7. In order to reach a
conclusion with respect to the adequacy of state protection, the RPD is obliged
to make certain findings of fact. Those findings of fact can only be set aside
by this Court, if made in a perverse or capricious manner, or without regard to
the material before the tribunal. See: Mugesera v. Canada (Minister of Citizenship and
Immigration),
[2005] S.C.J. No. 39, 2005 SCC 40 at paragraph 38.
8. Once those findings of fact
are made, they must be assessed against the legal test articulated by the Supreme
Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page
724, namely do the facts constitute “clear and convincing confirmation of a
state’s inability to protect” so as to rebut the presumption of state
protection? This is a question of mixed fact and law. On the basis of the
pragmatic and functional analysis conducted by my colleague Madam Justice
Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I
accept that the appropriate standard of review of the decision as to the
adequacy of state protection is reasonableness simpliciter.
b)
Did the Board err in determining that the applicant was not linked to Project
Thread, and that he would not be subject to persecution based on his ostensible
connection to Project Thread?
[36]
In
my opinion, these issues must be reviewed on the standard of patent
unreasonableness. A close reading of the evidence before the Tribunal, and in
particular the newspaper articles published in respect of Project Thread,
discloses nothing to indicate that the applicant was publicly associated with
Project Thread. During the hearing, the applicant was asked about how his
friends and family might associate him with Project Thread, and he testified
that members of his family knew he had been enrolled at the Ottawa Business
College and that he had been arrested, the former through his own communication
with them and the latter through the communication of an uncle. The newspaper articles
published in Canada and in Pakistan linked the
College with a number of men arrested during the Project Thread investigation.
However, the Board found that the applicant’s evidence with regard to the
likelihood of people in Pakistan linking him with
Project Thread was self-serving and not corroborated by independent evidence.
[37]
Having
read the Board’s reasons in conjunction with the testimony and documentary
evidence, it is clear that the Board considered the evidence before it and
conducted a reasoned analysis. In my opinion, the applicant is in effect asking
this Court to re-weigh the evidence on this issue, and it cannot be said that
the Board’s findings were patently unreasonable as that standard has been
described in the jurisprudence.
[38]
After
making this finding, the Board nonetheless went on to consider at length the
affidavit evidence of returnees to Pakistan who had been associated with
Project Thread, finding that the experiences of the returnees did not amount to
persecution even if they were all found to be credible, and that in any case
the Pakistani officials in question appeared to be operating within the ambit
of Pakistani law. Of concern is the wording used by the Board in dealing with
the issue of extortion, in which it stated: “I can see how counsel might
characterize a bribe of $400 Canadian dollars as extortion however in many
places of the world such as Pakistan the requirement to bribe officials is both
accepted and expected” (Board Reasons, p. 17).
[39]
This
logic is somewhat disturbing, as it appears to rest on the notion that if
something is a common or expected practice, it cannot give rise to a ground of
persecution. However, this finding was not necessary to the conclusions of the
Board, as the credibility findings above would have in themselves been
conclusive of this issue. Therefore, this passage, although flawed, is not
fatal to the Board’s reasons on the standard of patent unreasonableness.
c)
Did the Board err in its articulation of the proper test for determining
whether adequate state protection exists?
[40]
The
applicant contended that the Board’s articulation of the test was flawed, to
the extent that it relied on the serious efforts of the state without
sufficient consideration of whether or not those efforts were effective. There
is no doubt that some of the Board’s language is ambiguous and may lead to the
interpretation proposed by the applicant. But having carefully considered the
reasons of the Board in their entirety, I am of the view that it applied the
proper test and turned its mind to the relevant considerations.
[41]
In
Canada (Attorney
General) v. Ward, above, the Supreme Court of Canada stated that
an applicant must provide “clear and convincing proof” of a state’s incapacity
to offer protection, stating as follows at pp. 724-26:
Like Hathaway, I prefer to formulate this
aspect of the test for fear of persecution as follows: only in situations in
which state protection “might reasonably have been forthcoming”, will the
claimant’s failure to approach the state for protection defeat his claim. Put
another way, the claimant will not meet the definition of “Convention refugee”
where it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities; otherwise, the claimant need not literally
approach the state.
The issue that arises, then, is how, in a
practical sense, a claimant makes proof of a state's inability to protect its
nationals as well as the reasonable nature of the claimant's refusal actually
to seek out this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available, however,
clear and convincing confirmation of a state's inability to protect must be
provided. For example, a claimant might advance testimony of similarly situated
individuals let down by the state protection arrangement or the claimant's
testimony of past personal incidents in which state protection did not materialize.
Absent some evidence, the claim should fail, as nations should be presumed
capable of protecting their citizens. Security of nationals is, after all, the
essence of sovereignty. Absent a situation of complete breakdown of state
apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed
that the state is capable of protecting a claimant.
... A subjective fear of persecution
combined with state inability to protect the claimant creates a presumption
that the fear is well-founded. The danger that this presumption will operate
too broadly is tempered by a requirement that clear and convincing proof of a
state's inability to protect must be advanced...
[42]
I
acknowledge that there seem to be different streams of jurisprudence on the
issue of state protection. The applicant relies, in particular, on the case of Bobrik
v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1364 (F.C.), where this
Court required actual state protection, over and above evidence of the state’s
effort. That decision, however, was subsequently questioned by Justice Gibson
in Smirnov v. Canada (Secretary of State)(T.D.), [1995] 1
F.C. 780, where he wrote:
The first case was Bobrik v. Canada (Minister of Citizenship and
Immigration). In her
reasons for decision in that case, Madam Justice Tremblay-Lamer stated:
Thus, even when the state is willing to
protect its citizens, a claimant will meet the criteria for refugee status if
the protection being offered is ineffective. A state must actually provide
protection, and not merely indicate a willingness to help. Where the evidence
reveals that a claimant has experienced many incidents of harassment and/or
discrimination without being effectively defended by the state, the presumption
operates and it can be concluded that the state may be willing but unable to
protect the claimant.
Further,
Madam Justice Tremblay-Lamer stated:
That the large number of discriminatory
and harassing incidents did not stop after the applicants sought police
assistance provides sufficient evidence that the state in this particular case
could not offer effective protection to the applicants.
With great respect, I conclude that Madam
Justice Tremblay-Lamer sets too high a standard for state protection, a
standard that would, in many circumstances, be difficult to attain even in this
country. It is a reality of modern-day life that protection offered is
sometimes ineffective. Many incidents of harassment and/or discrimination can
be effected in a manner that renders effective investigation and protection
very difficult. The use of unsigned correspondence that does not identify its
source and of random telephone communications where the caller does not
identify himself or herself are examples. A single incident of defacement of property
is another. The applicants suffered from these types of incidents and received
no satisfaction when they reported them to the militia or police. Random
assaults, such as those suffered by the applicants, where the assailants are
unknown to the victim and there are no independent witnesses are also difficult
to effectively investigate and protect against. In all such circumstances, even
the most effective, well-resourced and highly motivated police forces will have
difficulty providing effective protection. This Court should not impose on
other states a standard of "effective" protection that police forces
in our own country, regrettably, sometimes only aspire to.
[43]
More
recently, Madam Justice Layden-Stevenson has addressed the issue of state
protection in B.R. v. Canada (Minister of
Citizenship and Immigration), 2006 FC 269. It seems to me that the
following excerpt of her reasons is an accurate statement of the law as it
stands now:
Absent a situation of complete breakdown
of state apparatus, it is generally presumed that a state is able to protect
its citizens. This presumption serves to reinforce the underlying rationale of
international protection as a surrogate, coming into play where no alternative
remains to the claimant. Refugee claimants must present clear and convincing
confirmation of a state's inability to protect them in order to rebut the
presumption that states are capable of protecting their citizens: Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689. State protection cannot be
held to a standard of perfection but it must be adequate. It is not enough to
show that a government has not always been effective in protecting persons in a
claimant's particular situation. However, where the state is so weak and its
control is so tenuous as to make it a government in name only, it may be
justifiable to claim an inability to obtain state protection: Canada
(Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R.
(4th) 334 (F.C.A.) leave to appeal dismissed, [1993] S.C.C.A. No. 76.
[44]
It
is also worth noting that Justice Martineau went into an extensive review of
the case law on the subject in Avila c. Canada (Minister of
Citizenship and Immigration), 2006 CF 359. He made it very clear that
an assessment of the availability of state protection must rest on a
personalized analysis of the applicant’s situation. This is precisely what the
Board has done in the present case. It methodically reviewed the evidence
pertaining to the risks alleged by the applicant, and measured that evidence
against the backdrop of the current situation prevailing in the country. After
having emphasized the various steps taken by the state of Pakistan to curb religious
extremism and police abuses, and after having noted that the state is in
control of its territories and has structures in place to provide citizens with
protection under the rule of law, including an independent judiciary, it came
to the conclusion that the state was able to protect its citizens.
[45]
In
coming to that conclusion, the Board was under no illusions and was clearly
aware of the setbacks and of the long road to go before the task is complete.
It nevertheless assessed the evidence using the yardstick of “adequate, but not
perfect” protection. Indeed, the crucial question identified by the Board from
the outset of its analysis was precisely whether Pakistan is “now providing
adequate although not necessarily perfect protection for its citizens, Sunni
and Shia, who fear they may be targeted personally for serious harm by
religious extremists of either sect of Islam” (Board Reasons, pp. 18-19). Accordingly,
I find that the Board applied the correct test for state protection.
d)
Did the Board err in its assessment of the evidence with regard to the issue of
state protection in Pakistan?
[46]
The
applicant argues that the Board failed to consider certain documentary
evidence, and that some of the Board’s findings are inconsistent with the
evidence. Specifically, as described above, the applicant impugns the Board’s
findings that the number of murders of individuals by extremists has decreased,
that better police training is now being used, and that there has been a
crackdown on extremism by the government. The applicant submits that this is in
direct conflict with the documentary evidence, in which a Human Rights Watch
report states there has been a “sharp increase in the number of targeted
killings of Shi’a...in recent years”. The applicant points to an Amnesty
International report indicating that torture and ill-treatment by police are
still routine, and that perpetrators are rarely held accountable. The applicant
also notes that the Human Rights Watch report states that “[t]hose implicated
in sectarian violence are rarely prosecuted and virtually no action has been
taken to protect the affected communities”.
[47]
In
my opinion, it is trite law that the Board is not required to mention in its
reasons all of the documentary evidence it considers. With regard to the
impugned sections of the Board’s decision, I would note that these were also
supported by the documentary evidence. Even if the Board did not specifically
mention the evidence noted by the applicant, upon a somewhat probing
examination it is clear the Board acknowledged that violence against Shia practitioners
continued, that there have been police abuses, and that police have at times
refused to prevent sectarian violence or charge persons involved in such
violence (Board Reasons, pp. 20-23).
[48]
The
Human Rights Watch and Amnesty International reports formed part of the
documentary evidence that was before the Board in this case, and the Board did
not explicitly refer to them. The quotations provided by the applicant may be
examples of issues on which these international non-governmental organizations
take a position somewhat different from that of the internal reporting bodies
of the United States and United Kingdom. To my mind, however,
the excerpts cited by the applicant underscore issues, notably the risk of
violence to Shia practitioners and the potential for impunity towards those who
perpetrate violence. On my reading of the Board’s reasons in light of the
evidence before it, it was clearly alive to these issues, and entitled to weigh
the evidence in a well-reasoned manner, which it did. As such, in my opinion it
cannot be said that the Board’s conclusions regarding state protection are
unreasonable.
[49]
For
all the above reasons, this application for judicial review must be dismissed. The
parties did not suggest any question for certification purposes, and none will
be certified.
Email this Content