Date: 20020426
Docket: IMM-1513-01
Neutral Citation: 2002 FCT 475
BETWEEN:
MUHAMMAD YOUSAF
Applicant,
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated February 12, 2001, wherein the applicant was declared not to be a Convention refugee.
[2] The issue is whether there was clear and convincing evidence that the state was unable to protect the claimant or that the claimant was unwilling to seek police protection.
FACTS
[3] The applicant, born June 15, 1963, is a devout Shia Muslim and a citizen of Pakistan. He has a wife and three children in Pakistan. He has worked as a mill-grinder and as the personal assistant to one Alama, the applicant's religious instructor.
[4] In October 1999, after 10 months working for Alama, the applicant was threatened, severely beaten, and again threatened, this time with death, by a Sunni Muslim group who demanded that he end his association with Alama. After these incidents, the claimant sought help from the police, who refused to take a report, stated that they were sick of such problems, and advised him to leave town. The applicant moved to another town. Upon discovering the applicant's whereabouts, Alama and his followers threatened the applicant and physically forced him to return home. The applicant received messages that both Shia and Sunni groups were seeking to do him harm.
[5] Feeling that he would get no help from the police, the applicant went into hiding from his "friends" and enemies. He came to Canada on December 28th, 1999 with a "smuggling agent" and applied for refugee status on the grounds that upon return to Pakistan, his life would be in danger from both Shia and Sunni organizations. He further believed that police and government officials are unable and unwilling to protect him.
STANDARD OF REVIEW
[6] In the case at bar, the two issues before this Court raise a question of fact, and a question of fact and mixed fact and law.
(1) Questions of Fact
[7] On questions of fact decided by the CRDD, the standard of review is whether the decision on the question of fact was made in a perverse or capricious manner, or without regard to the material before the CRDD, as per Pelletier J. (as he then was) in Matharu v. Canada (M.C.I.), [2002] F.C.J. No. 13 (F.C.T.D.):
¶ 29 Whether a decision made in a "perverse or capricious manner or without regard to the material before it" is merely unreasonable or is patently unreasonable may be a distinction without a difference. Unlike the "jurisdictional" questions where a judge made standard of review applies, on the question of error of fact, there is a legislated standard of review. It may be useful for purposes of comparison to liken it to the standard of reasonableness simpliciter or patent unreasonableness but this does not change the standard. It may be that a finding of fact which is perverse or capricious is "clearly wrong" which would approximate the standard of reasonableness simpliciter (see Canada (Director of Investigation and Research, Competition Act) v. Southam [1997] 1 S.C.R. 748 at para. 60). In the end result, however, the question should be whether the particular finding is "perverse or capricious, or made without regard to the material before it. [emphasis added]
(B) Mixed Fact and Law
[8] For questions of mixed fact and law, the standard of review is that of reasonableness simpliciter, or in plain English, whether the CRDD was "clearly wrong" as per Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (F.C.A.), where Evans J.A. wrote at paragraph 18:
Whether the admitted facts satisfied the statutory standard is a question of mixed fact and law within the expertise of the Board: Nina v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1747, (F.C.T.D.); A-735--92; November 24, 1994), para 28. On such a question, the Board is entitled to a measure of judicial deference and the Court should not intervene unless satisified that the Board was clearly wrong: (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
DEFINITION OF CONVENTION REFUGEE
[9] "Convention refugee" is defined in section 2 of the Immigration Act, R.S.C. 1985. c I-2 as follows:
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of
nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
"réfugié au sens de la Convention" Toute personne:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
(i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celleci dont le texte est reproduit à l'annexe de la présente lo
CRDD DECISION
[10] The CRDD found the claimant credible, and held at page 3:
"The panel generally accepts the credibility of the claimant."
[11] The panel found that the claimant was beaten severely, and threatened with death because of his religious practice as a Shia Muslim with his religious instructor, Alama Sahib. The CRDD held at page 1:
"The ASS approached him again. This time, they beat him severely, and indicated that they would "kill" him if he continued to go with Alama Sahib. They told him that it was in his "own" interest to get out of Sialkot (his town)."
[12] The CRDD found as a fact that the claimant did report the beating and the threats to the police, but the police refused to take any action and recommended that he simply leave town. The applicant did so. The CRDD held at page 1:
"He stated that the police told him that they are "sick of such type of incidents in the Shia community..." and even though he knew one of the assailants, "...they were not ready to listen," so he did not mention that he had an independent witness.
The police, too, advised the claimant to move out of town. Because he could not get in touch with Alama, he decided to accept the advice of the police and moved to his sister's home in Narowal."
The CRDD recognized that the claimant decided that going to the police again would be futile.
[13] The CRDD found that the claimant considered that his religious organization was setting him up for martyrdom, i.e. being killed because of his religious beliefs by the militant Sunni Muslims, who engage in sectarian violence against Shia Muslims. The CRDD held at page 3:
"One might even think that Alama Sahib is prepared to set the claimant up for martyrdom."
[14] The CRDD concluded that in these circumstances there was an unwillingness on the part of the claimant to seek state protection. The CRDD held at page 6:
"I find these to be circumstances where there is an unwillingness to seek state protection."
DOCUMENTARY EVIDENCE
[15] The documentary evidence includes:
(a) a memorandum from the Research Director, Immigration and Refugee Board, Ottawa, regarding "Pakistan: Whether state protection has been available to Shia victims of sectarian violence since the 12 October 1999 coup..."; and,
(b) the U.S. Department of State 1999 Country Report on Human Rights Practices for Pakistan.
[16] The documentary evidence for 1999 established that the Shias were being killed and injured because of their religious beliefs, and the state, represented by the police, the army and the judiciary, were not able to stop the violence, prevent the violence, or prosecute persons responsible for the violence. The documentary evidence stated that:
(a) the new government in Pakistan has given the militants "more room to breath than their predecessors.... Quite clearly the (military) Government is reluctant to take any decisive step to curb the proliferation of militancy on Pakistani soil....", (Application Record, page 5);
(b) both before and after the coup, "police committed numerous extrajudicial killings and tortured, abused and raped citizens...", (Application Record, page 54);
(c) the government has failed to take action against the killings which have continued throughout the country among the sectarian groups, (Application Record, page 55);
(d) terrorist incidents are frequent in the Punjab, which is where the Applicant was residing. In 1999, there was extensive religious violence between the rival Sunni and Shia organizations, with an estimate that 300 persons were killed in the sectarian violence during the past two years, (Application Record, page 57);
(e) "Members of religious minorities are subject to violence and harassment, and police at times refused to prevent such actions or charge persons who commit them...",
(Application Record, page 59);
(f) Judges are intimidated by the extremists and continue trials indefinitely to avoid a confrontation with the extremists, (Application Record, page 63);
(g) "In Punjab in particular, a deadly pattern of Sunni-Shia violence in which terrorists killed persons because of their membership continues...", (Application Record, page 64); and,
(h) on December 28, 1999, the day the applicant fled from Pakistan, thousands of extremists destroyed homes and shops belonging to Shias "...after attending the funerals of those killed the previous day. At year's end, no suspects had been detained in connection with these events...", (Application Record, page 65).
ANALYSIS
(2) Question of Mixed Fact and Law - Application of the Ward test
[17] The issue in this case is whether the claimant should have sought police protection in Pakistan. The leading case on this issue is Attorney General for Canada v. Ward, [1993] 2 S.C.R. 689 (S.C.C.), which held that the refugee claimant must make proof of the state's inability to protect the claimant, as well as the reasonable nature of the claimant's refusal to seek out this protection. La Forest J. held that there must be "clear and convincing" evidence of the state's inability to protect
the claimant. The evidence must be proof on the balance of probabilities, not mere speculation.
[18] In Minister of Employment and Immigration v. Villa Franca, 1950 N.R. 232 (F.C.A.) per Hugessen J.A. (as he then was), held at paragraph 7 that:
[...] victims of terrorism 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."
[19] In the case at bar, the documentary evidence on Pakistan in 1999, the year that the claimant fled Pakistan in fear of persecution by religious extremists, shows that many Shia Muslims were killed by religious extremists and that the police were unable to protect the Shia Muslims from this violence, prevent the violence, or prosecute the perpetrators. This also was the applicant's personal experience. The police protection, and therefore the protection offered by the state, was ineffective with respect to the extremist violence against Shia Muslims such as the claimant.
[20] This is clear and convincing evidence that the state was unable to protect the applicant. Accordingly, the CRDD was clearly wrong in its application of the evidence to the legal test set out in Ward, supra.
(3) Error of Fact
[21] The CRDD found that the claimant was "unwilling to seek state protection." This finding of fact is perverse, in that the evidence established that the claimant did seek police protection, but
the police refused to protect him, saying that they were "sick of such type of incidents in the Shia community...". This evidence, coupled with the extensive documentary evidence that the police are
unable to provide protection for the Shia Muslims from the extremist violence, demonstrates that the CRDD erred in fact in concluding that the claimant was unwilling to seek state protection.
(4) Conclusion
[22] The applicant is a devout Shia Muslim. He experienced persecution because of his religious beliefs by an extremist faction of the Sunni Muslims. He feared for his life, and hid.
[23] Based on the evidence, it is clear that the applicant had a well-founded fear of persecution by reason of his religion and membership in this Shia Muslim group, and that the applicant's evidence, together with the documentary evidence, provided clear and convincing confirmation of the state's inability to protect the applicant. The applicant was reasonable in not again seeking police protection after having done so and being refused by the police.
[24] For these reasons, this application is allowed and the decision of the CRDD is hereby set aside and the matter remitted to a differently constituted panel for determination. The parties have agreed that the case does not raise a serious question of general importance which ought to be certified pursuant to subsection 83(1) of the Immigration Act.
(signed) Michael A. Kelen
______________________________
JUDGE
OTTAWA, ONTARIO
APRIL 26, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1513-01
STYLE OF CAUSE: MUHAMMAD YOUSAF v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 16, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN DATED: April 26, 2002
APPEARANCES:
Mr. John Savaglio FOR THE APPLICANT
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. John Savaglio FOR THE APPLICANT Pickering, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada
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