Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121

                                                                                                                                        Date:      20030930

                                                                                                                            Docket:     IMM-4425-02

                                                                                                                            Citation:     2003 FC 1121

Ottawa, Ontario, this 30^th day of September, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                             MAHMOOD ALI SHAH

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mahmood Ali Shah is a 54-year old citizen of Pakistan and an Ahmadi Muslim by birth. The Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined, that he was not a Convention refugee nor a person in need of protection, in a decision rendered August 27, 2002. The applicant seeks judicial review of that decision.

Facts

[2]                 The applicant's refugee claim is based on his fear of persecution by reason of his membership in a particular social group, namely being an Ahmadi. The applicant worked and resided in Abu Dhabi, United Arab Emirates, for 21 years prior to his return to Pakistan in 1999. Upon his return he became involved in religious activities and as a result a local Sunni imam, Mr. Murtaza, began harassing the applicant. The applicant states that the imman and two goons threatened him in May of 2000 and requested that he stop his religious activities. The harassment continued, and the applicant applied for a United States visa in July 2000, "in case things became worse for him."

[3]                 The goons returned to the applicant's grocery store and shoplifted items. The goons warned him not to complain to police. On March 23, 2001, Mr. Murtaza and three goons broke into the applicant's home. They broke his satellite dish and threatened him. The applicant complained to the police about this, but the police refused to get involved in the matter. The applicant filed a second application for a United States visa, and received an interview date.

[4]                 In July 2001, the goons returned to the applicant's store, where they insulted and abused him in front of his customers. They warned him to change his faith or be ready for more serious consequences.

[5]                 The applicant received his United States visa on August 3, 2001. He states that he did not depart Pakistan at that time because he had to sell his store in order to raise money. On November 12, 2001, while finalizing the deal to sell his store, the applicant was again harassed and beaten by Mr. Murtaza and goons. Before departing, Mr. Murtaza threatened to kill the applicant and his family if he didn't change his faith within three days. The applicant states that this is the event that caused him to leave Pakistan. That evening, he left his home and moved with his family to stay with one of his friends in Sheikhupura. He borrowed money to buy a plane ticket and gave a friend power of attorney to sell his property. He states that the goons returned to his home 3 days later and told the applicant's neighbours that the applicant would be killed when they located him.

[6]                 The applicant left Sheikhupura for Lahore in November 2001, and left Pakistan on December 22, 2001. He arrived in the United States on December 23, 2001, and remained there for 8 days before arriving in Canada. He claimed refugee status in Canada upon his arrival.

Board's Decision

[7]                 The Board accepted that the applicant was an Ahmadi Muslim and found that the applicant's behaviour, by delaying his departure from Pakistan until one and a half years after the harassment began, was not consistent with that of a well-founded fear of persecution. The Board determined that the applicant did not have a well-founded fear of persecution and concluded that the applicant was not a Convention refugee. The Board also found no basis on which a claim could be sustained under section 97 of the Immigration and Refugee Protection Act, SC 2001 c. 27 (the Act) and concluded that the applicant was not a person in need of protection.

Issues

[8]                 This application for judicial review raises the following two issues:

1.          Did the Board provide reasons, or sufficient reasons, for its decision that there is no bases upon which the applicant could sustain a claim to be a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act?

2.         In the circumstances, was it unreasonable for the Board to conclude, that the applicant's claim to a well-founded fear of persecution is not credible in light of his failure to leave Pakistan earlier?

Analysis

1.         Did the Board provide reasons, or sufficient reasons, for its decision that there is no bases upon which the applicant could sustain a claim to be a person in need of protection under subsection 97(1) of the Immigration and Refugee Protection Act?

[9]                 The Board determined that the applicant had not made a separate claim to be a person in need of protection pursuant to subsection 97(1) of the Act. The Board, nevertheless, concluded that its "...examination of the record finds no basis on which one could be sustained." The applicant contends that the Board provided no reasons or explanation for this conclusion.

[10]            The applicant submits that he was at risk of being imprisoned or executed because of his religion and asserts that his testimony manifests a claim to be a person in need of protection, for fear of being subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment as a result of penal sanction, pursuant to subsection 97(1) of the Act..

[11]            I am in agreement with the applicant's contention that the applicant asserted both a claim to have a well-founded fear of persecution in Pakistan, and a claim that he is at serious risk of being imprisoned or executed because of his religious beliefs. The Board, appears to acknowledge the applicant's latter claim, since it stated in its reasons that "He [the applicant] also maintained that to return to Pakistan would mean that he would, under the Sharia Bill and Blasphemy law, be subjected to prison and a death sentence." The severity of the penalties provided for under the Blasphemy law are confirmed in the country documentation. These same documents report that, eight Ahmadis were charged under the Blasphemy Law in 2001.

[12]            The tribunal record appears to reveal no explicit claim by the applicant under s. 97 of the Act. It appears that the refugee forms used by the applicant were out of date, and consequently they refer only to Convention refugee status and do not provide a "check off box" for section 97 claims.

[13]            In the circumstances of this case, where the country documentation collaborates elements of the applicant's claim and where the Board evidently turned its mind to the issue by concluding that there was no basis for such a claim, I am of the view that the Board was obligated to provide reasons for its conclusion. I therefore find that a separate claim by the applicant under s. 97 of the Act was before the Board.

[14]            Having determined that a s. 97 Claim was before the Board, the issue which, in my view, is determinative of this judicial review application, is whether the Board properly considered the applicant's s. 97 claim, and provided sufficient reasons for its decision, as required by Rule 61(2) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules).

[15]            The Board's reasons, dealt primarily with the applicant's claim that he has a well-founded fear of persecution in Pakistan. The Board essentially held that the applicant's behaviour in delaying his departure from Pakistan for one and a half years from the time his problems started, is not consistent with a well-founded fear of persecution. A careful review of its reasons shows that the Board's only treatment of the applicant's claim that he was in need of protection, pursuant to s. 97 of the Act, is found in the following two paragraphs of its reasons:

The claimant testified that if he were to return to Pakistan that he would not be able to participate in religious activities - testimony which is not consistent with the Federal Constitution of Pakistan - as cited earlier in these reasons. He also maintained that to return to Pakistan would mean that he would, under the Sharia Bill and Blasphemy law, be subjected to prison and a death sentence.

However, given that the panel has determined that his behaviour was not consistent with that of a well-founded fear of persecution, the panel similarly has concluded that his allegations of past and future persecution are not credible.

[16]            The Board appears to dismiss the s. 97 claim based on a finding that the applicant's behaviour is not consistent with a well-founded fear of persecution. Even if I were to accept this finding as reasonable, which is the subject of the second issue which will be discussed later in these reasons, the test under s. 97 of the Act does not require a determination of subjective fear of persecution, but rather a determination that removal would subject an applicant to a danger of torture, or to a risk to life or to a risk of cruel and unusual treatment or punishment under certain conditions.

[17]            It is useful to reproduce subsection 97 (1) of the Act:

[18]            The applicant submits that, as an Ahmadi, he is susceptible to being charged and convicted under the Pakistan Penal Code provisions prohibiting blasphemy. The applicant notes that the penalties range from 10 years' imprisonment or death. Consequently, the applicant submits that it was incumbent upon the Board to assess the merit of the applicant's claim by evaluating whether the risk of his being charged and convicted was a serious one, whether his conviction might result in a risk to his life or cruel and unusual treatment or punishment, and whether the risk would emanate from "lawful sanctions" imposed by the state of Pakistan. The applicant argues that the Board failed to consider whether his claim for asylum could be allowed under subsection 97(1) of the Act.

[19]            I agree in substance, with the applicant's submissions. I find that the Board's reasons are clearly insufficient in so far as they relate to the s. 97 claim. The Board failed to deal with the documentary evidence which corroborated elements of the applicant's claim. The Board failed to adequately assess the applicant's risk should he be returned to Pakistan. The reasons given amount to no more than an unsupported conclusion with respect to the applicant's claim under s. 97 of the Act. Consequently this application for judicial review will be allowed.

2.          In the circumstances, was it unreasonable for the Board to conclude, that the applicant's claim to a well-founded fear of persecution is not credible in light of his failure to leave Pakistan earlier?

[20]            Although I consider my conclusion, in respect to the first issue discussed above, determinative of this judicial review, I find it necessary to address certain concerns I have with regards to the Board's finding that the applicant's behaviour is not consistent with a well-founded fear of persecution.

[21]            The Board accepted that the applicant was an Ahmadi Muslim and that Ahmadis continue to suffer from restrictions and discrimination and that they are targets of intolerance from religious extremists. However, the Board did not accept the applicant's claim of persecution because he did not leave Pakistan earlier, but waited 1.5 years after the harassment began before leaving the country.

[22]            The applicant states that his evidence showed that the threats became progressively more serious, and culminated in the November 12, 2001, threat to his life. The applicant submits that the Board failed to take into account the fact that the November 12 incident triggered his flight from Pakistan and that he had tried to live with the harassment prior to that time. The applicant argues that it is unreasonable for the Board to take the position that if the applicant does not flee at the first sign of trouble he cannot claim to have a well-founded fear of persecution.

[23]            I am of the view that the applicant's arguments have merit. The applicant was between a rock and a hard place. To leave earlier, at the first sign of harassment, would not, in my view, have justified a finding of subjective fear of persecution. It is the cumulative effect, of the persistent harassment and events which preceded the November 12, 2001, incidents, upon which the applicant bases his fear of persecution. To reject the claim, as the Board did, essentially on a finding that the applicant's fear is unreasonable because he failed to leave earlier is, in these circumstances, unreasonable. In view of the explanations offered by the applicant for his delay, and the particular circumstances of the November 12 incident when the applicant's life was first threatened, I find that the Board's conclusion is patently unreasonable.

[24]            For the above reasons, this application for judicial review will be allowed, and the matter is to be sent back for re-consideration, before a differently constituted panel, in accordance with these reasons.

[25]            Neither party proposed a question for certification. The Court declines to certify a question.

                                                                            ORDER

THIS COURT ORDERS that:

1.          The application for judicial review is allowed, and the matter is ordered submitted to a differently constituted panel to be re-considered in accordance with these reasons.

2.         No question of general importance is certified.

                                                                                                                                "Edmond P. Blanchard"                

                                                                                                                                                               Judge                      

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-4425-02

STYLE OF CAUSE:                           MahmooAli Shah v. MCI

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       August 26, 2003

REASONS FOR ORDER AND ORDER:                          Blanchard J.

DATED:                                                September 30, 2003

APPEARANCES:

Mr. Michael Korman                                                                      FOR APPLICANT

Mr. Negar Hashemi                                                                        FOR RESPONDENT

SOLICITORS OF RECORD:

Otis & Korman                                                                              FOR APPLICANT

290 Gerrard Street East

Toronto, Ontario, M5A 2G4

Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Toronto, Ontario M5X 1K6

         Docket: IMM-4425-02

BETWEEN:

          MAHMOOD ALI SHAH

Applicant

                   - and -

      THE MINISTER OF CITIZENSHIP

            AND IMMIGRATION

                                   Respondent

           REASONS FOR ORDER

                AND ORDER