Date: 20050208
Docket: IMM-4257-04
Citation: 2005 FC 200
Halifax, Nova Scotia, this 8th day of February, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
Mohammad Sadfar Chaudhry, Anood Sadfar Choudhry,
Omera Sadfar Choudhry, Omer Sadfar Choudhry,
Gul A Raana, Salem Mohammad Choudhry,
and Aiysha Sadfar Choudhry
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mohammad Sadfar Chaudhry's wife Gul A. Raana and their five children are Shia Muslim and citizens of Pakistan. Mr. Chaudhry was a Sunni Muslim who says he converted to Shia. Their claim for refugee status on the grounds of religious persecution was turned down. This is a judicial review thereof.
[2] I have decided to grant the application and refer the matter back to a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board for redetermination. A number of issues were raised. I think it important to set out the grounds why I am not granting judicial review before I explain why I am.
[3] I am not granting the application on the grounds of bias, the failure of the Panel to differentiate between Mr. Chaudhry on the one hand and the rest of the family on the other, or the alleged failure to consider psychological reports. I am granting the application because the Panel drew patently unreasonable inferences as to credibility and failed to consider the internal flight alternative in any meaningful way.
BASIS OF THE CLAIM
[4] Mr. Chaudhry was born to a Sunni family in Pakistan. His wife is Shia. Their 5 children have been raised Shia. The family lived for many years in Saudi Arabia where he worked. In 1999 Mr. Chaudhry's wife and children returned to Lahore, Pakistan, while he remained in Saudi Arabia due to his employment. They wanted their children's higher education to be in Pakistan. The family was allegedly harassed, humiliated, discriminated against and threatened by members of the Sipah-e-Sahaba (SSP), a Sunni extremist group.
[5] In April 2001, Mr. Chaudhry converted to the Shia faith. On November 9, 2001, while he was visiting his family, he and his son Omer were beaten by goons of the Sunni molvi and were also threatened. They reported the incident to the police after they received medical attention but the police refused to do anything. Mr. Chaudhry headed back to Saudi Arabia and shortly after his arrival heard that his son had been badly beaten and his daughters were teased on a consistent basis.
[6] In February 2002, while he was in Pakistan, Mr. Chaudhry and his son Omer were slapped, beaten up and threatened once again. He left for Saudi Arabia with his son. On March 11, 2002, his wife and remaining children were threatened by the molvi goons and subsequently left their house. On March 23, 2002 all claimants left for Canada via the U.S.
[7] After their departure, Mr. Chaudhry came to learn that the molvi goons had been to their home saying that they would find the family and kill them. More recently the molvi is said to have issued a "fatwa" against him.
BIAS
[8] The claim was only heard on its seventh scheduled hearing date. The delays were due in large measure to changes of solicitors, nervousness on the part of Mrs. Raana, and fainting by one of her daughters. The Panel member who had been assigned to determine the matter ultimately recused himself. Mr. Chaudhry complained to the Minister of Citizenship and Immigration claiming that the harsh treatment of the Member, unwarranted threats of abandonment proceedings and harassment, had put his wife under the treatment of a psychiatrist for over six weeks. The Assistant Deputy Chairperson of the Refugee Protection Division of the Immigration and Refugee Board studied the matter, listened to tapes of the proceedings and soundly rejected the complaint finding that the Member's conduct was "entirely appropriate, exercising his statutory obligation to proceed as informally and as quickly as the circumstances and the considerations of natural justice permit".
[9] A new member was assigned to hear the case, Mr. Farid Osmane. The applicants brought on a motion to have him removed on the basis they had a fear there was an appearance of bias and partiality, even if Mr. Osmane was not in himself biased. This is what Mr. Chaudhry had to say:
2. I am a Shia by conviction. All my agents of persecutions in Pakistan are Sunni Muslims, including the Sipa-e-Sabaha Pakistan, the police, etc...
3. I heard that Mr. Farid OSMANE is an Algerian, initially I was wondering of his faith, it was brought to my attention that he is a Sunni Muslim. In my mind that changes all, I fear Sunni Muslims and I will have to testify against Sunni extremists. I fear I will hurt the Board member's religious feelings. In the current world context of the sensitive issue of religion, I cannot afford to risk irritating a Sunni Muslim and have my claim denied;
[10] Allegations of bias are most serious in that they go to the root of our system of justice, a fair hearing before an impartial decision maker. The Board dismissed the application outright, without giving reasons. The applicants say reasons should be given and rely on the recent decision of my colleague, Mactavish J., in Bongwalanga v. Canada (Minister of Citizenship and Immigration), 2004 FC 352, a case in which she held that the Member should have addressed the merits of the bias claim. That case has no application here. In Bongwalanga, the Member had provided detrimental documentation shortly before the hearing in circumstances which called the Member's objectivity into question. In this case, the alleged bias is not for what Mr. Osmane did, but rather for who he is, or rather who Mr. Chaudhry thinks he is.
[11] The Board, like a corporation, acts through its members. They are flesh and blood. Mr. Osmane may be a man of religion, an agnostic or an atheist. He may be Sunni Muslim, Shia Muslim, Jewish, Roman Catholic, Orthodox Christian, Protestant, Hindu, Sikh, Buddhist or an adherent of any other number of religions. The Court does not know. It is irrelevant.
[12] The standard against which to test an allegation of apparent bias was set out by de Grandpré J., in dissent, in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394:
...What would an informed person, reviewing the matter realistically and practically - and thinking the matter through - conclude?...
... The grounds for his apprehension must ... be substantial.
Presumably, the Board found the claim so outrageous that its refusal to remove Mr. Osmane required no explanation. I agree. This is what Dubé J. said in Fogal v. Canada, (1999) F.T.R. 99:
Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practiced law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.
See also José Pereira e Hijos S.A. v. Canada (Attorney General), 2004 F.C. 2738, Gibson J. No right thinking person could possibly think the Board would deny refugee status because its Member might be an adherent of a religion from which the claimant converted.
[13] Board members are sometimes criticized for Canadian cultural biases, for failing to take the effort to walk a mile in the applicants' shoes. In this case, Mr. Chaudhry is relying on the very religious biases he is hoping to escape. His is an unwarranted assumption, backed up by no facts. He is not entitled to choose the religion, if any, of the Panel member who decides his case. He is entitled to equal treatment before the Board, no more, no less. Although written with judges in mind, the following comment by the Canadian Judicial Council in "Ethical Principles for Judges" is right on point: those "who perceive bias where no reasonable, fair minded and informed person would find it are not entitled to different or special treatment for that reason".
SEPARATE DETERMINATION FOR THE FAMILY
[14] The Panel member was not satisfied that Mr. Chaudhry had actually converted from Sunni to Shia. It was submitted that therefore a separate analysis should have been carried out with respect to Mrs. Raana and her children, all of whom were Shia, on the basis of a mixed marriage. However, in her Personal Information Form she simply referred to her husband's P.I.F and so the Panel member cannot be criticized for not carrying out a separate and distinct analysis.
FAILURE TO CONSIDER PSYCHIATRIC REPORTS
[15] The entire family was carefully scrutinized in a number of reports. The doctors, and others, were of the view that the family greatly feared returning to Pakistan. However, it was also noted that a great deal of stress was raised because of the uncertainty of the outcome of the Canadian hearings and what was perceived to be harsh treatment by the first Panel member, accusations soundly rejected by the Board. The Panel member listed the evaluations he considered which were made by health specialists in Canada which describe how the claimants present different symptoms of anxiety, depression and emotional trauma. The Member said:
"Unfortunately, the claimants' health problems do not by themselves qualify them for protection." He is quite right.
[16] The fear of persecution must be both objective and subjective. It is not for the applicants to decide whether or not they are Convention refugees. The Immigration and Refugee Board makes that decision, subject only to judicial review. It must carry out its duties, in a fair and humane manner, even though some claimants may be more prone to stress than others.
REASONS TO GRANT JUDICIAL REVIEW
[17] There are several reasons why this application must be allowed, and the matter sent back for a rehearing before a differently constituted panel.
[18] One reason is the treatment of an incident said to have taken place in March 2002 when Mr. Chaudhry and his son Omer were slapped, beaten up and threatened by SSP goons. As the Panel member correctly noted: "This is an important event since it supposedly led to their escape from Pakistan two days later". The Member found that Omer was evasive and hesitant in describing the abuse he allegedly experienced, first said he was slapped and nothing else and then obviously adjusted to follow-up questions saying that he was punched. There was no evasion at all. There was confusion, confusion caused by inept questioning on the part of the Panel, which kept interrupting Omer and hardly allowing him to utter a word. Finally, he said: "Counsel, maybe you ask the question. Better your question will be better understood." Counsel's question was clear and the answer was clear. It was patently unreasonable in context for the Panel to say it "does not believe that the claimant and his son were beaten by the SSP in March 2002". Maybe they were, maybe they were not, but the Panel member's constant interruptions did not allow Omer to be heard.
[19] The Panel member did not believe Mr. Chaudhry converted to the Shia faith because the initial version of his narrative indicated he converted on 18 April 2001, which he later corrected to 8 April 2001, on the basis that the first date was the result of a typing mistake. The Panel found it hard to imagine it would take a long time for the vigilant claimant to let the wrong date of conversion go undetected. Yet, Mr. Chaudhry gave a perfectly plausible explanation, and the presumably vigilant Panel member also made clerical errors.
[20] The Internal Flight Alternative was botched up. Apparently, there are Shia neighbourhoods in Lahore and Mr. Chaudhry, who is well-off, was asked why he did not move his family to such a neighbourhood. The Panel was not satisfied that he could not have moved his family to a Shia neighbourhood when they were experiencing problems in September 2001, and as a consequence "the Panel doubts that he and his family were having problems up to September 2001".
[21] This is a completely unwarranted conclusion. It was the Panel member's duty to consider whether it was reasonable for the Chaudhrys, in their particular situation, to flee to a safe place within Pakistan. No evidence was weighed. (Sen v. Canada (Minister of Citizenship and Immigration), 2005 FC 2).
[22] The Panel also did not believe Mr. Chaudhry learned he had been proclaimed a religious offender until months after their departure, because his brother-in-law was the caretaker of his house and did not advise him of steps taken within the Pakistani justice system. The Panel was of the view that if a person had absconded, as in this case, the Court would publish a proclamation to be affixed to the house in which such person ordinarily resides. However, the proclamation, which the Panel member quoted in full, simply says the Court "may publish". The fact that Mr. Chaudhry's brother-in-law was unaware of the charges does not justify the Panel member's conclusion that there were no charges.
[23] It is not necessary to review the other findings, which is not to say that they were or were not patently unreasonable.
[24] The parties agreed that there was no question of general importance for certification.
ORDER
Judicial review of the decision of the Panel of the Refugee Protection Division of the Immigration and Refugee Board, dated 13 April 2004, in files numbers MA2-03767, MA2-03759, MA2-03760, MA2-03761, MA2-03768, MA2-03769 and MA2-03770, is granted. The matter is referred back to the Division for re-hearing before a differently-constituted Panel.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4257-04
STYLE OF CAUSE: Mohammad Sadfar Chaudhry, Anood Sadfar Choudhry, Omera Sadfar Choudhry, Omer Sadfar Choudhry, Gul A Raana, Salem Mohammad Choudhry, and Aiysha Sadfar Choudhry
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: JANUARY 27, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: FEBRUARY 8, 2005
APPEARANCES:
Dan M. Bohbot FOR APPLICANTS
Michel Pépin FOR RESPONDENT
SOLICITORS OF RECORD:
Dan M. Bohbot
Montreal, Quebec FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
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