Date: 20050830
Docket: IMM-8020-04
Citation: 2005 FC 1189
BETWEEN:
BABAR MALIK
SEHRISH MALIK
MALIK YUSRA BABAR
MALIK MINAHIL BABA (BABAR)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
( Delivered from the bench and subsequently written for clarification and precision)
von FINCKENSTEIN J.
[1] The Principal Applicant, Babar Malik, (hereinafter referred to as "the Applicant") is a 38 year old citizen of Pakistan who is a Shia Muslim by birth, his Sunni wife Sehrish Malik and their two children, Malik Yusra Babar and Malik Minahil Baba. The Applicant is active in his religious community and claims he was town secretary for the Shia people. Two days after their wedding in September 2000 , the Applicant's in-laws fired shots outside their home and in early 2001 the couple began receiving threatening phone calls from the local Sipa Sahaba ("SSP").
[2] On May 17, 2002 the Applicant was beaten up by the local SSP, in July of 2002 SSP followers entered his home, attacked him and his wife and ransacked his home. He went to the police the second time but they filed a report against unknown persons and did not mention the SSP.
[3] The Applicant went into hiding in Karachi in August of 2002 for a few months while his wife and children stayed behind in Lahore. The Applicant's family continued to be harassed and in January of 2003 his wife was slapped by two SSP followers, in February of 2003 SSP followers again entered the Applicant's home and attacked his wife. The wife then joined the Applicant in Lahore and the family left Pakistan on February 14, 2003 and applied for refugee status upon arrival in Canada.
[4] The Board denied the claim finding that the Applicant was not credible and finding that he had not demonstrated a lack of state protection in Pakistan. The Applicant alleges that the Board erred with respect to both findings.
[5] It is undisputed that the standard of review for issues of credibility is patent unreasonableness ( see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17) and for issues of state protection is reasonableness simpliciter (see Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193).
[6] The Applicant alleges that the Board ignored documentary evidence that showed a lack of state protection and that the government is insincere in its efforts to ban military groups. The Applicant asserts that there has been no lasting change in circumstances with regard to the treatment of Shia Muslims. In his view, the evidence shows that SSP members who were arrested were released shortly after and continue to operate and the evidence also showed that even though some terrorist groups had been banned by law, agents of the state and the police remained corrupt. The Applicant asserts that the Board erred in concluding that the Applicants did not have sufficient grounds to fear persecution.
[7] It is well established law that state protection does not have to be perfect and a state is presumed to protect its nationals unless the contrary can be shown. As stated in the often quoted case of Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (FCA):
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only (...) a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[8] The documentary evidence shows that Pakistan is taking steps to control the sectorial violence between the Shia Muslims and the Sunni Muslims. The Board went into detail describing the efforts that have been undertaken in Pakistan. The Board conducted a thorough analysis of state protection. Clearly the state of affairs in Pakistan leaves a lot to be desired but looking at the totality of the evidence and the decision of the Board I cannot find anything patently unreasonable in its finding that the Applicants have not rebutted, with respect to Pakistan, the presumption that a state can protect its nationals.
[9] Having made the determination that the Board's finding regarding state protection is not patently unreasonable, there is not need for me to review the credibility findings. As Snider J. stated in Sarfaz v. Canada (M.C.I.), [2003] F.C.J. No. 1974 at para. 11:
The Board's analysis of state protection was comprehensive and detailed, and was supported by the documentary evidence before it. As a result, there is no basis for this Court to intervene in that finding.
This conclusion alone is sufficient to dispose of this application for judicial review. As a result of the Boards finding of adequate state protection, the Applicant cannot satisfy the definition of a Convention refugee or a person in need of protection. As a result, any other errors made by the Board would be of no consequence, because the Board's ultimate conclusion would not change if those errors had not been made.
[10] Accordingly, this application will not succeed.
"K. von Finckenstein"
Judge
Toronto, Ontario
August 30th, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8020-04
STYLE OF CAUSE: BABAR MALIK
SEHRISH MALIK
MALIK YUSRA BABAR
MALIK MINAHIL BABA (BABAR)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 29, 2005
REASONS FOR ORDER BY: von FINCKENSTEIN J.
DATED: AUGUST 30, 2005
APPEARANCES BY:
Lani Gozlan FOR THE APPLICANTS
Catherine Vasileros FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAX BERGER & ASSOCIATES
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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