Date: 20070604
Docket: IMM-3872-06
Citation: 2007 FC 586
Ottawa, Ontario, the 4th
day of June, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MUHAMMAD
KASHIF
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Muhammad Kashif’s wife
may have been the victim of an “honour” killing by her family in Pakistan but the Refugee Protection Division of the Immigration and
Refugee Board (the “Board”), was not convinced that state protection was unavailable
to him and determined that he was not a refugee or a person in need of
protection. Despite the sympathetic circumstances of his claim, I am unable to
conclude that the Board erred in that determination and must, therefore,
dismiss this application.
[2]
The
applicant, a member of the Shia faith, married a Sunni woman, Sadaf, against
the strong opposition of her family. This resulted in beatings and threats of further
violence notably from her brother and from the Sipah-e-Sahaba (SSP). The couple moved to Lahore to avoid these problems. When the SSP came looking for them
there, they made plans to leave the country. The applicant came to Canada in September 2004. Sadaf intended at first to follow him but
decided to return home to her parents when she discovered that she was pregnant,
thinking that this would resolve the conflict with her family.
[3]
The applicant’s wife
returned home on January 5, 2005. The applicant began making preparations to
return to Pakistan. On January 7, 2005 the applicant’s
father informed him by phone that an oil stove had blown up and that Sadaf had
been badly burned and had died in hospital.
[4]
According to
information received and submitted by the applicant with his claim, on January
8, 2005, Sadaf’s brother, Asif Khan, along with some bearded men (whom the
applicant suspects were SSP members) came to his parents’ house and asked his
father about his son’s whereabouts. He told them that his son was in Canada. The applicant says that Asif Khan then insulted and beat the
father. The father died of a heart attack two days later. The applicant’s
brother attempted to register a charge or First Information Report (FIR)
against Asif Khan and his family, but the police considered the deaths of his
wife and father to be accidental.
[5]
The applicant made his
refugee claim on January 14, 2005, asserting a well-founded fear of persecution
from Asif Khan, members of the SSP and other extremist Sunni Muslim groups, on
the basis of his marriage to a Sunni woman.
THE BOARD’S DECISION
[6]
In its reasons, the
Board stated that it had considered the documentary evidence before it
respecting the treatment of Shias in Pakistan,
particularly by extremist Sunni Muslim groups such as the SSP. The Board set
out many examples of sectarian violence being directed towards members of Pakistan’s Shia community. Based on this evidence, the Board accepted
that “Shias are victims, and continue to be victims of sectarian violence
perpetrated by Sunni extremist groups...”.
[7]
Based
on the two medical certificates that the claimant had submitted to the Board,
the Board accepted that the applicant’s wife had died from burns to 80 percent
of her body on January 7, 2007, and that his father had died of a heart attack
on January 10, 2005. The Board went on to note however that “apart from the
Affidavits by his mother and a friend in Pakistan reporting on the death of his
wife Sadaf under “very mysterious circumstances” from burns suffered from a
Kerosene stove, the claimant has provided no independent documentary evidence
to corroborate that his wife’s death was an act of murder by her brother Asif
Khan and that his father’s death was caused by being beaten and threatened by
Asif Khan”. The Board noted that the medical certificates made no mention of
foul play.
[8]
The Board found that
the applicant had not met his burden to refute the presumption of state
protection as set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724 [Ward] for
the following reasons:
·
The documentary evidence respecting
attempts by the Pakistani authorities to prevent and reduce sectarian violence,
particularly between Sunni and Shia Muslims, did not support the applicant’s
assertions regarding the state’s inability to protect.
·
This evidence was to be preferred to
that of the applicant, as it came from reliable and independent sources.
·
The documentary evidence confirmed that
“police and government authorities are responding to acts of sectarian violence
perpetrated against Shias and are making serious efforts to arrest and detain
fundamentalist Sunni Muslims and members of Sunni extremist groups such as the
SSP and the LJ, and to bring them to justice for their crimes”.
·
While protection against criminal Sunni
militants and terrorists in Pakistan may not be perfect, it is available and adequate.
·
“[W]hile there is sectarian violence in
Pakistan,
Shias are not a disadvantaged group, and the police do respond to outbreaks of
violence by arresting perpetrators from both sides of the violence”.
[9]
The
Board concluded that in light of the availability of adequate state protection,
it was more likely than not that the applicant’s removal “would not subject him
personally to a risk to his life or to a risk of cruel and unusual treatment or
punishment”.
ISSUES
[10]
The
issues raised by the applicant are as follows:
- Did the Board err in making its findings of fact?
- Did the Board err in interpreting and applying the concept of state
protection?
ANALYSIS
Standard of Review:
[11]
It
is well established that the standard of review that applies to the Board’s
factual findings should be that of patent unreasonableness. The Supreme Court has described a
patently unreasonable decision as one that is “clearly irrational” or “evidently
not in accordance with reason”, so flawed that no amount of curial deference
can justify letting it stand: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 52.
[12]
With respect to the
issue of the availability of state protection, the standard of review has been
held in the past to also be patent unreasonableness: Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449. More recently, however,
the standard of review has been held to be reasonableness: Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC
193 at para. 11. This latter approach was recently endorsed by the Federal
Court of Appeal in Hinzmand v. Canada (Minister of Citizenship and
Immigration); Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para. 38, wherein the
Court of Appeal found that “questions as to the adequacy of state
protection are questions of mixed fact and law ordinarily
reviewable against a standard of reasonableness”. Accordingly, this is the
standard I have applied in the present case.
Issue 1: Findings of Fact
[13]
The applicant submits that
the Board’s findings with respect to the deaths of the applicant’s wife and
father were patently unreasonable as the Board’s finding was not based on an
inconsistency in the evidence, but on a “capricious and self-serving contention
to the effect that the applicant had not provided independent documentary
evidence to corroborate his allegations of murder and/of foul play”. The
applicant asserts that in the absence of an adverse credibility finding, and in
light of the documentary evidence regarding “honour killings”, a tribunal
acting reasonably and in consideration of the evidence in its entirety ought to
have found that the applicant’s wife had indeed been murdered, and that his
father had died as a result of foul play.
[14]
While I agree with the
applicant that the circumstances of his wife’s death are suspicious and it is
clear from the documentary evidence that many so-called “honour” killings in Pakistan go unreported, the inference that it was murder was not the
only plausible conclusion that the Board could draw from the evidence. As was
highlighted by the respondent,
the only first hand evidence of the cause for the applicant’s wife’s death is a
medical report that confirms that she died as a result of burns to 80% of her
body. This is also consistent with the hypothesis of an accident with a
kerosene stove.
[15]
The applicant himself
has no direct knowledge of the circumstances of his wife’s death, and is
relying upon allusions in the supporting affidavits to “mysterious
circumstances”, and to an allegation that his late wife’s brother threatened
that “as they had killed their sister they would also kill (the applicant)”. While
one might suspect foul play, the Board did not act capriciously in declining to
make a finding that it was in fact murder.
[16]
There was also no
independent evidence that the death of the applicant’s father, which the
medical evidence confirmed was due to a heart attack, was homicide. The
applicant’s mother’s affidavit mentions that prior to her husband’s death, they
were visited by the applicant’s brother-in-law, who came to their home with
some bearded persons, saying that he “insulted” her late husband and “treated
him badly”. Inexplicably, no mention is made of her husband having been
physically beaten, nor does the applicant’s mother link his subsequent heart
attack with the visit.
[17]
As was recognized by
the Court in
Oyebade v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 773:
13 The Board, which is a
specialized tribunal, has complete jurisdiction to determine the applicant's
credibility, the plausibility of testimony and the weight of evidence.
(See, e.g., Aguebor v. M.E.I. (1993),
160 N.R. 315 (F.C.A.); He v. M.E.I., [1994]
F.C.J. No. 1107 (F.C.A.)). … [emphasis mine]
[18]
While
I may have arrived at a different conclusion with respect to the weight to be
accorded the evidence, particularly the documentary evidence regarding the
extent of so-called “honour killings” in Pakistan, that is not
the task that I have to perform. The applicant has failed to show that the Board ignored
or misconstrued the evidence, or made perverse or capricious findings of fact
that would justify the Court’s intervention. The Board simply was not persuaded
that there was sufficient evidence to conclude that the deaths were homicides.
[19]
In any
event, the Board’s decision did not turn on a finding of a lack of credibility
or that the events claimed by the applicant did not occur but rather upon its
determination that state protection was available to him in Pakistan.
Issue 2: State
Protection
[20]
The
applicant argues that the Board’s review of the documentary evidence was
selective and self-serving, as the Board ignored considerable evidence that
attested to the on-going failure and/or inability of the Pakistani state to
deal adequately with the acknowledged incidences of ongoing sectarian violence
against Shias in the country, perpetrated by purportedly banned Sunni militant
groups like the SSP.
[21]
In
particular, the applicant asserts that there was documentary evidence on the
record which ran directly counter to the Board’s findings regarding the issue
of state protection. The applicant referred to a Research Directorate Document,
dated November 19, 2004, entitled “Pakistan: The Effectiveness of the Government Ban on
Extremist Groups”. This document indicates that though steps have been taken by
the Pakistan government to ban
certain religious organizations, the government has not followed through by
having trials, disarming the organizations or rehabilitating them.
[22]
The
applicant further asserts that the Board should have considered the evidence
that the Pakistani police had refused in the past to take action in relation to
the applicant’s wife’s and father’s death, and that this was an indication that
state protection would not be available to the applicant upon his return to
Pakistan.
[23]
It
is trite law that the Board is not required to refer to every piece of evidence
that was put before it, though the failure to mention an important piece of evidence which contradicts
its findings can support an inference that the decision-maker failed to take
this evidence into account: Thiara v. Canada (Minister of Citizenship and
Immigration), 2007 FC 387 at para. 18; Otti v. Canada
(Minister of Citizenship and Immigration), 2006 FC
1031 at para. 13. This is not a case in which such an inference
should be drawn.
[24]
As
noted above, in its reasons the Board set out many examples from the evidence
it considered of sectarian violence directed towards members of Pakistan’s Shia community by
Sunni extremist groups such as the SSP. The Board accepted that “Shias are
victims, and continue to be victims of sectarian violence perpetrated by Sunni
extremist groups such as the SSP and the LJ”. Though the Board did not mention
the particular excerpts cited by the applicant, it clearly did not ignore the
fact that sectarian violence is an on-going problem in Pakistan in reaching its
conclusion that the presumption of state protection had not been rebutted.
[25]
The
fact that the police were not prepared to accept a charge or a First
Information Report against Asif Khan and other members of his family is not in
itself evidence of an inability to protect sufficient to overcome the
presumption. On the face of the evidence submitted, there was not enough to
substantiate a charge that the deaths of the wife and the father were
criminally related. But even if one may criticize the police for being
unwilling to pursue an investigation in these circumstances, state protection
need not be perfect so long
as the state is in effective control and makes serious efforts to protect its
citizens: Atakurola v. Canada (Minister of Citizenship & Immigration),
[1995] F.C.J. No. 463 at para. 13 (T.D.)(QL). On the basis of the evidence
submitted to the Board, that appears to have been the case as of the date of
the hearing.
[26]
I am
satisfied that the reasons of the Board with respect to the availability of
state protection stand up to a somewhat probing examination and are therefore reasonable.
The Board’s decision should not be interfered with by the Court.
[27]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT
that the application is dismissed. No questions are certified.
“Richard
G. Mosley”
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