Ahmed v. Canada (Minister of Citizenship and Immigration), docket IMM-2725-96

     IMM-2725-96

BETWEEN:

     IRFAN AHMED

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JOYAL, J.:

     This is an application for judicial review of the decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board, dated July 15, 1996, wherein the applicant's claim for Convention refugee status was dismissed.

     The applicant seeks to have the CRDD's decision set aside and have the matter referred back to a differently constituted panel for redetermination.

I. FACTS

     The applicant is a 26-year-old Ahmadi Muslim from Pakistan. He claims to be a Convention refugee because he fears persecution in his homeland due to his religion.

     The facts in this case are undisputed. In regards to the applicant's alleged previous experiences of persecution, the CRDD found him to be credible and his allegations to be true. As for the plight of the Ahmadiyya community, Pakistan's history of religious intolerance is well-documented and none of the parties, nor the CRDD, doubt it.

     1.      Personal Experiences

     The applicant has throughout his life been subject to persecution as a result of his religion. The incidents listed below summarize his experiences:

     a)      As a child, he was regularly taunted and beaten by his classmates on account of his religion.

     b)      In 1987, he was arrested, jailed and beaten for four days for having written the Kalima on an Ahmadi Mosque.

     c)      In 1989, he was denied admission to local colleges even though his grades were acceptable.

     d)      In May 1991, he and two of his Ahmadi friends were attacked by a Muslim mob and severely beaten. They reported the incident to the police, who told them to go home and forget about it. The applicant was hospitalized for one week, and treated for cuts and bruises. He was unable to work for about six weeks.

     e)      In 1993, he was fired from his job when his employer learned that he was an Ahmadi.

     f)      In August 1994, his house was attacked by a mob of Muslims, and he believes that he would have been killed had the mob gained entrance to his home.

     2.      Experiences of the Ahmadiyya Community

     There exists, in Pakistan, discriminatory laws aimed at circumscribing the religious activities of the Ahmadiyya community. Several of these legislative restrictions, and most notably the anti-blasphemy provisions, are comprised in the Pakistan Penal Code (the "PPC"). In 1984, the government enacted Ordinance XX which prohibits and criminalizes most religious practices of the Ahmadi. Furthermore, the Ahmadis are also excluded from public office. The effect of these laws has been to restrict the activities of the religious community in Pakistan.

    

II. CRDD DECISION

     In a detailed and well-structured decision, the CRDD held that the applicant was not a Convention refugee because he did not have a well-founded fear of persecution. The CRDD's conclusion is based on its overall finding that the applicant's past experiences, as outlined above, do not constitute persecution and thus, do not give rise to a reasonable fear of persecution. They only amount to harassment and discrimination.

     In support of its finding, the CRDD notes that the applicant was never prevented from attending weekly prayer although his religious practices are limited by the PPC. He was able to find employment in the local Ahmadiyya community and was never charged with a religious offence comprised in the PPC. As for his failure to obtain entry into post-secondary studies, it is not persecution, only discrimination.

     In his memorandum of argument, the applicant notes that three weeks after the CRDD rejected his claim, one of the panel members rendered another decision on a case that appears indistinguishable from the case at bar in any material way, in which the opposite conclusion was reached.

III. ISSUES

     The main issue raised by the application is whether the CRDD committed a reviewable error, that is whether it acted in a perverse and capricious manner when it found that the applicant did not have a well-founded fear of persecution. In order to address this issue, the following questions must be dealt with:

1.      Whether the CRDD acted in a capricious and perverse manner when it determined that the applicant's past experiences did not constitute persecution.

2.      Whether the CRDD acted in a perverse and capricious manner when it found that the collective experiences of the members of the Ahmadi community did not give rise to a mere possibility of persecution if the applicant was returned to Pakistan.

3.      Whether the fact that the Presiding Member arrived at a different conclusion in an otherwise undistinguishable case is evidence that the CRDD's conclusions of fact in the case at bar were erroneous, perverse and capricious.

IV. ANALYSIS

     1.      Past Experiences

     The applicant argues that the CRDD committed a reviewable error when it found that the applicant's past experiences only amounted to discrimination and not persecution, and submits that this finding constitutes a reviewable error.

     The respondent concedes that the CRDD did err in stating that the applicant's past experiences, in particular the fact that he had been unlawfully detained and beaten while in detention, were not incidents of past persecution¹.

     However, the CRDD's mischaracterization does not automatically open the doors for the Court to intervene. Proof of past persecution is not sufficient in and of itself to satisfy the definition of Convention refugee. The refugee definition is forward-looking. The refugee claimant must show that he or she faces a serious possibility of persecution if returned to his or her homeland².

     2.      Prospective Persecution

     The respondent maintains that the CRDD correctly addressed the question of prospective fear of persecution. The respondent argues, and reasonably concludes, that there was not a reasonable chance that the applicant would be persecuted in Pakistan if returned.

     On the other hand, it is the applicant's position that the CRDD failed to consider the experiences of the Ahmadi community as a whole in determining whether his claim raised a serious possibility of persecution. Basing his argument on Salibian v. Canada (Min. of Employment & Immigration)³, the applicant says that the religious prosecutions of all Ahmadis are relevant to all refugee claimants from that community.

     Such an argument is not determinative because the Federal Court of Canada has not yet clearly decided whether the discriminatory laws of Pakistan are indeed persecutory in relation to the Ahmadis. It has preferred to adopt a case-by-case analysis of refugee claimants' prospective fears of persecution⁴. In the case at bar, there seems to be no indication that the CRDD capriciously came to its decision without regard to all the circumstances. However, the third and final issue raised by the applicant opposes such a claim.

          .

     3.      Conflicting Decisions

     This question is a much more problematic one. The applicant argues that the arbitrariness of the CRDD's decision is best illustrated through the comparison to another Ahmadi case which was decided by the same Presiding Member. These two cases are virtually undistinguishable on their facts. The legal analysis in both cases are identical, however, the conclusions reached are different. At first blush, the cases do seem similar, giving rise to what appears to be a classic situation of completely diverging conclusions drawn from the same set of facts. I should find, however, that the situation is not the result of inadvertence on the part of the Refugee Board, but quite the contrary. The decision in the latter case involves a woman from another area of Pakistan, but whose Personal Information File is remarkably similar in style and content to that found in the case before me, i.e. an extensive recital of the Ahmadis' troubled history in Pakistan. Further, the decision is similar in style and content to the decision before me and includes the same background information, the same history and the same analysis of current conditions. Keeping in mind that both decisions are endorsed by the same Board, substantially within the same time frame, it can only be concluded that in its disposition of the two cases, the Board knew very well what it was doing.

     It is to be expected, therefore, that the applicant would make this conflict his principal argument and suggest that the decision before me is in error and should be quashed. Unfortunately, the other case referred to is not before me, nor am I in a position to rule whether it is right or wrong. It could very well be that in a proper test, the impugned decision is right and the other one is wrong. For that matter, both decisions could conceivably be wrong.

     The other aspect dealt with is what counsel have referred to as a case-by-case approach. It has been said that such is the only effective way to deal with Ahmadi refugee claimants. This means, of course, that no generalisation may be achieved with respect to any person alleging persecution by reason of their membership in that religion, and that divergent conclusions based on seemingly identical facts are not only possible, but perhaps beneficial to the proper administration of the refugee process.

V.      CONCLUSION

     This Court must eschew any attempt to be drawn into an assessment of both decisions. The decision at bar is the only one of which I am seized, and in that respect, I must perform my review of it in accordance with the normal criteria. Thus, I have read carefully the lengthy and carefully-constructed decision of the Board. I have reviewed the evidence submitted to it, and I have studied the analysis of this evidence and the findings made.

     While I am far from enamoured with the decision, and in fact, I should call this a borderline case, it is nevertheless difficult for me to find in it the kind of error which would justify my intervention under the judicial review process. The Board, as a fact-finding tribunal, was called upon to hear the applicant's story, to balance the impact of the voluminous documentary evidence submitted to it and to reach a conclusion as to whether the applicant was or was not a Convention refugee. The responsibility is, by statute, given to the Refugee Board, and unless its decision is patently unreasonable, this Court should not interfere. Thus, with my respectful sentiments to both counsel for their respective presentations, I must dismiss the within application for judicial review.

     L-Marcel Joyal

     _________________________

     J U D G E

O T T A W A, Ontario

July 4, 1997.

__________________

¹      Ovarzo v. Min. of Employment & Immigration, "1982 > 2 F.C. 779 (C.A.).

²      Adjei v. Min. of Employment & Immigration, "1989 > 2 F.C. 680 (C.A.).

³      "1990 > 3 F.C. 250 (C.A.).

⁴      Butt, Abdul Majid (Majeed) v. S.G.C., F.C.T.D. No. IMM-1224-93, September 8, 1993.