Date: 20020826
Docket: IMM-5-02
Neutral citation: 2002 FCT 913
Vancouver, British Columbia, Monday the 26th day of August 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
NAZIR HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Nazir Hussain is a citizen of Pakistan whose claim to Convention refugee status is based on his nationality, political opinion and membership in a particular social group; namely, a member and political activist of the United Kashmir People's National Party ("UKPNP") which seeks independence and secession of three Kashmir "states" from Pakistan.
[2] He brings this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which decided that he was not a Convention refugee.
THE DECISION OF THE CRDD
[3] The CRDD made no adverse finding of credibility against Mr. Hussain. The panel accepted that he was a member and political activist in the UKPNP in the Hurnameira and Rawalakot areas of Azad Kashmir and noted, apparently accepting his evidence, that if he were returned to Pakistan he would remain active respecting his political views on the secular independence of Azad Kashmir. The panel did not consider whether Mr. Hussain's fear of persecution in Pakistan is well-founded because it found that he had an internal flight alternative ("IFA") in Pakistan, outside the Azad Kashmir region.
[4] The CRDD accepted that a First Information Report ("FIR") was registered against Mr. Hussain by the police in Rawalakot for offenses under the Pakistan Penal Code and the Maintenance of Public Order legislation and that the FIR is legally enforceable throughout Pakistan. The CRDD did not believe that there is an outstanding warrant for Mr. Hussain's arrest, because his explanation for his inability to obtain a copy of the alleged warrant was considered to be unreasonable and unreliable by the CRDD. The CRDD found that based on the localized nature of Mr. Hussain's UKPNP political activities and his lack of a national political profile, if he were to return to Pakistan there is no more than a mere possibility that he would come to the attention of the Pakistan police, military government or the Inter-Services Intelligence Service ("ISI") elsewhere in Pakistan. In the words of the CRDD:
The panel reviewed the documentary evidence before it, respecting FIR's registered by the Pakistan police and whether the police authorities outside of Azad Kashmir would become aware of such a FIR. This documentary evidence indicates that a person can, in law, be apprehended anywhere in Pakistan under the authority of a registered FIR for a cognizable offence, such as those identified. The panel notes that the FIR against the male claimant has been registered at the Rawalakot police station and at the local courthouse. Other documentary evidence before the panel indicates that, for legal purposes, Azad Kashmir is not simply another province of Pakistan. Azad Kashmir has a separate legal system, with local magistrates, and a separate High Court and Supreme Court. The male claimant has no national profile in Pakistan. His UKPNP political activities have been confined to the Hernameira [sic] and Rawalakot area of Azad Kashmir. Given the foregoing, the panel finds there is not more than a mere possibility that the male claimant would come to the attention of Pakistan police authorities outside of Azad Kashmir or that he would be arrested for false and politically motivated charges, on the strength of the FIR registered against him in Rawalakot police station and courthouse. The panel recognizes that the Pakistan military government and the ISI have authority throughout Pakistan. However, again based upon the localized nature of the male claimant's UKPNP political activities and his lack of a national political profile, the panel finds that there is not more than a mere possibility that he would come to the attention of the Pakistan military government or the ISI elsewhere in Pakistan. [footnotes omitted]
[5] In addition, because of his lack of a national political profile, the CRDD found that Mr. Hussain would not be subject to persecution at the hands of pro-Pakistan parties or groups such as the Pakistan Peoples Party ("PPP").
[6] With respect to Mr. Hussain's testimony that he could not live in safety anywhere in Pakistan because he would remain active in the expression of his political views, the CRDD noted that the documentary evidence before the panel indicated that high-ranking leaders of political groups advocating independence for Kashmir have been briefly detained by the police for speaking out in favour of independence outside of Azad Kashmir, that apart from references to the abduction and detention of the chairman of the UKPNP by persons believed to be members of the government security forces there is no other information pertaining to the treatment of UKPNP members, that the Secretary-General of the UKPNP had given an exclusive newspaper interview in Islamabad, and that the letter from the Secretary-General of the UKPNP put in evidence to support Mr. Hussain's claim made no reference to that party's activists being targeted outside of Azad Kashmir. The CRDD then went on to conclude that:
[...] Having regard to the localized nature of his UKPNP political activities and his localized UKPNP political profile, the panel finds there is not more than a mere possibility that the claimant would suffer persecution outside of Azad Kashmir by reason of his political opinion outside or membership in a particular social group.
[7] Finally, the CRDD considered whether it is reasonable in all the circumstances for Mr. Hussain to seek asylum in Pakistan outside of Azad Kashmir, and found that there were no travel, language, employment or social obstacles to his so doing.
ANALYSIS
[8] It is settled law that there is no need to determine whether a claimant has a well-founded fear of persecution in his or her area of origin as a prerequisite to the consideration of an IFA. See: Kanagaratnam v. Canada (Minister of Employment and Immigration) (1996), 194 N.R. 46 (F.C.A.). This is because if an IFA exists, by definition a claimant cannot have a well-founded fear of persecution in his or her country of nationality.
[9] The gist of the argument advanced by Mr Hussain is that considering its findings that he was a UKPNP member and activist in Kashmir, that a person can under Pakistani law be apprehended anywhere in Pakistan under a registered FIR, and that he will continue to express his opinion for an independent Kashmir state were he to re-locate elsewhere in Pakistan, it is speculative on the part of the CRDD to find that he has an IFA on the basis that he lacks a national political profile and failed to produce a warrant for his arrest.
[10] The CRDD conducted a lengthy analysis of Mr Hussain's claim and considered all of the issues raised by him. If made with regard to the evidence before it, the conclusion of the CRDD on the existence of an IFA should not be interfered with by this Court.
[11] Thus for example, I am satisfied that it was open to the CRDD to conclude from Mr. Hussain's failure to produce a copy of the arrest warrant that no such warrant had been issued.
[12] However, despite the thorough reasons of the CRDD, after giving careful consideration to the submissions of the parties and the tribunal record, I have been persuaded that intervention is warranted on the following basis.
[13] The CRDD failed to deal with the evidence of two witnesses who were called to corroborate Mr. Hussain's claim that if he were to return to Pakistan he would not be safe if he continued his activism. Each testified to being an activist with the UKPNP and a Convention refugee. The first testified that in Pakistan there is martial law and the situation is grave for people who talk of independence for Kashmir and that he knew from his experience that Mr. Hussain would not be safe anywhere in Pakistan. The second testified that any rally or protest results in arrest and detention by the government of Pakistan, its intelligence agencies and police, and that the fundamentalist organizations are fully armed, and in their presence the lives of UKPNP activists are always in danger.
[14] The CRDD is not, of course, obliged to cite all of the evidence adduced before it. However, the more important the evidence which is not specifically mentioned and analysed, the more likely it is that a reviewing court may infer from the failure to mention the evidence that it was overlooked.
[15] Here the evidence was so important to Mr. Hussain's response to the issue of an IFA that it can be inferred from the CRDD's failure to mention the evidence that it was overlooked in the sense that the finding of the CRDD was made without regard to the evidence.
[16] The inference is easier to draw in light of the fact that the CRDD's conclusion was based upon the localized nature of Mr. Hussain's political activities and localized UKPNP membership and upon what the CRDD characterized as the absence of information in the documentary evidence to the treatment of UKPNP members.
[17] The first ground is somewhat difficult to understand in that if Mr. Hussain maintained his activism in Karachi or Islamabad he would no longer be an activist confined to the Hurnameira and Rawalakot areas. Reliance upon silence in the documentary evidence without reference to express viva voce evidence supports the inference that the viva voce evidence was overlooked.
[18] The CRDD was not obliged to accept that viva voce evidence from the two corroborating witnesses, but its failure to mention it and analyse it was a reviewable error.
[19] Therefore, the decision of the CRDD is set aside and the matter is remitted for redetermination by a differently constituted panel.
[20] Counsel posed no question for certification and no question is certified.
ORDER
[21] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated December 18, 2001 is set aside. The matter is remitted for redetermination before a differently constituted panel.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5-02
STYLE OF CAUSE: Nazir Hussain v. M.C.I.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 7, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: August 26, 2002
APPEARANCES:
Mr. Birjinder P.S. Mangat FOR THE APPLICANT
Ms. Tracy King FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Birjinder P.S. Mangat FOR THE APPLICANT
Calgary, Alberta
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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