Date: 20051014
Docket: IMM-54-05
Citation: 2005 FC 1404
Ottawa, Ontario, October 14, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
FARHA SYED
ADEEL ALI SYED
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] When Raghib Syed was 15 years old and living in Pakistan, he developed a friendship with a class-mate named Maria. Raghib is a Shia Muslim, and Maria came from a powerful Sunni family, who were also members of the radical Lashkar-e-Jhangvi group.
[2] After Raghib and Maria were observed holding hands, Raghib was severely beaten by one of Maria's brothers and three of her brother's friends. Raghib and his family sought the assistance of the police, who refused to become involved. A week later, after Raghib and Maria were observed kissing, Maria's brother beat her to death in an 'honour killing'.
[3] In retribution for Raghib's actions, Maria's grandfather, a prominent imam, ordered that Raghib's family's home be burned to the ground. He also issued a 'fatwah' against Raghib, and allegedly against Raghib's family, as well.
[4] Knowing that they would not have police assistance, the family left their home in Lahore and fled to Islamabad. After the family home was set on fire, they decided to flee Pakistan. As the family only had enough money to send three family members abroad, the decision was made to send Raghib to Canada, along with his mother and younger brother, Adeel. Raghib's father and older brother stayed behind, as it was felt that they would have the best chance of surviving in Pakistan.
[5] The Refugee Protection Division of the Immigration and Refugee Board accepted that these events took place, and that a fatwah had been issued, at least against Raghib. The Board also accepted that Raghib was extremely traumatized by what had happened, and was experiencing significant on-going psychological distress as a result. As a consequence, his claim for refugee protection was accepted.
[6] However, the Board rejected the refugee claims of Raghib's mother and brother, finding that there was insufficient credible evidence to support their claim that the whole family was the subject of the fatwah, or that they would be at risk if they were to return to Pakistan.
[7] In my view, the Board erred in coming to this conclusion as it failed to consider important evidence before it, which evidence arguably supported the applicants' claim. For this reason, the Board's decision will be set aside.
Analysis
[8] Having accepted that the tragic events resulting from Raghib's friendship with Maria actually took place, and that Raghib would be at risk should he return to Pakistan, the issue for the Board was whether Mrs. Syed and Adeel would also be at risk if they were to return home.
[9] As a general rule, the Board will be presumed to have considered all of the evidence before it. That said, where there is important evidence that runs directly contrary to the Board's finding on a central issue, there is an obligation on the Board to analyse that evidence, and to explain why it prefers other evidence on the point in question: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) [1998] FCJ No. 1425, 157 F.T.R. 35 (F.C.T.D.).
[10] In this case, the Board found that while men could be the victims of honour killings, the documentary evidence did not demonstrate that entire families are killed in situations such as this.
[11] However, there was evidence before the Board, which the presiding member appears to have accepted as credible, which indicates that the Syed family as a whole was targeted for retribution. In this regard I note that the Board appears to have accepted that Maria's grandfather ordered that the Syed family home be burned, and that the home was destroyed by fire shortly thereafter. This is evidence which arguably demonstrates that the entire family were targets of the fatwah, which was not properly considered by the Board.
[12] Moreover, in her testimony, Mrs. Syed explained that while Raghib was the primary target of the fatwah, the rest of the family would be in danger if Maria's family were unable to exact their revenge against Raghib. The Board appears not to have considered the risk that would be faced by Mrs. Syed and Adeel if they were returned to Pakistan without Raghib.
[13] Finally, while the Board considered the documentary evidence as it related to the practice of honour killings, the Board did not address the documentary evidence with respect to fatwahs. This evidence suggests that it has become "ridiculously common" for clerics to issue fatwahs against people in their own communities.
[14] Nor did the Board address the documentary evidence relating to the Lashkar-e-Jhangvi terrorist group to which Maria's family belonged. This evidence demonstrated that the Lashkar-e-Jhangvi are even more radical than the Sipah-e-Sahaba, and have been responsible for some of the worst anti-Shia violence in Pakistan in recent years. It bears repeating that the Syed family are Shia muslims.
[15] In my view, these were important pieces of evidence that could well have influenced the Board's conclusions as to the scope of the fatwah, and, as well, could have affected the Board's determination as to whether Mrs. Syed and Adeel would be at risk if they were to return to Pakistan. The failure of the Board to properly consider this evidence constitutes a reviewable error of sufficient importance that the Board's decision cannot be allowed to stand.
Conclusion
[16] For these reasons, the application for judicial review is allowed.
Certification
[17] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"Anne Mactavish"
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-54-05
STYLE OF CAUSE: FARHA SYED, ADEEL ALI SYED
Applicants
- and -
THE MINISTER OF CITIZENSHIP
IMMIGRATION
Respondent
DATE OF HEARING: October 12, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER BY: Mactavish, J.
DATED: OCTOBER 14, 2005
APPEARANCES BY:
Timothy Wichert For the Applicants
Jamie Todd For the Respondent
SOLICITORS OF RECORD:
Timothy Wichert
Jackman and Associates
596 St. Clair Avenue West, Unit # 3
Toronto, Ontario
M6C 1A6 For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
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