Docket: IMM-2034-11
Citation: 2011 FC 1395
Ottawa, Ontario, December 1, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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HASSAN SHAKIL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Hassan Shakil, is a citizen of Pakistan. He seeks
judicial review under section 72 of the Immigration and Refugee Protection
Act, SC 2001, c 27 (“IRPA”) of the decision made on February 22, 2010, by a
Pre-Removal Risk Assessment (“PRRA”) officer, that there was insufficient
evidence that the applicant would be at risk if returned to Pakistan.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND
[3]
Mr. Shakil is a
Shia Muslim and a Mohajir, that is a member of the community that migrated from
India to Pakistan following
partition.
In
1982, he moved to Bahrain for work. In 1994, while still in Bahrain, he joined
the Haqiqi Mohajir Qaumi Movement (“MQM-H”) as a local coordinator. The MQM-H
is a splinter group which broke off from the main Mohajir movement, now known
as the Muttahida Quami Mahaz or MQM-Altaf. He says that his participation attracted
the attention of rival political and religious groups, including the MQM-Altaf,
and that he received threats from Pakistan while he was in Bahrain.
[4]
In
September 1998, the applicant intending to migrate to the USA, went to Pakistan to sell his
property. In Pakistan, he says
that members of the MQM-Altaf searched for him at his father’s house and that shots
were fired into the door. He says the police refused to register his complaint
about the incident. He travelled to the United States in October
1998.
[5]
In
2003 the applicant moved to Canada due to changes in United States policy. He
applied for refugee status. The applicant was deemed to be inadmissible due to
his membership in the MQM-H as it was considered to be an organization that
there are reasonable grounds to believe engages, has engaged or will engage in
terrorism following a hearing before the Immigration Division in March 2009. During
the hearing, the applicant testified that his work as a coordinator for MQM-H in
Bahrain consisted of
little more than arranging venues and food for meetings. He was then deemed
ineligible to claim refugee status as a person described in subsection 112 (3)
of the IRPA.
[6]
The
applicant submitted a PRRA application in June 2009 and received a negative
decision in August 2009. Judicial review of that decision was granted and the
matter sent back for reconsideration: Shakil v Canada (Minister of
Citizenship & Immigration), 2010 FC 473. Justice Campbell found that
the officer had failed to take into consideration a June 17, 2009 letter from one
Arif Dawood, Coordinator of the Dawood Khursheed Memorial (International)
Foundation (“the Dawood letter”), describing the situation in Karachi and
stating, in particular, that no government or non-government organization would
be able to provide security to Mr. Hassan in Pakistan “as the situation is
quite volatile and challenging”.
[7]
Additional
written representations were provided to the PRRA officer in June 2010. In his
submissions, the applicant said he associated with the MQM-H to be protected
from Sunni extremists. He submitted that he was at risk from both the MQM-A and
the Sunni extremists notwithstanding that he did not play a high role in the
MQM-H and that the risk factors affected the country at large.
DECISION UNDER REVIEW
[8]
The
officer found that the determinative issue was the presumption of state
protection. The officer acknowledged
that there was considerable sectarian violence in Pakistan and noted that “the
government and private agencies are addressing the situation”. The officer
cited two documents: the United States Department of State, 2009 Human Rights
Report for Pakistan; and the United Kingdom
Border Agency, Country of Origin Report for Pakistan dated January 17, 2011. The latter report contains
several references to other reputable sources such as Human Rights Watch,
Amnesty International, Jane’s Information Group, and the Human Rights
Commission of Pakistan. These documents summarized the poor human rights
situation in Pakistan, the problem of police
corruption, the government security measures in place and their ineffectiveness
in certain area of the country, and the violence perpetrated against minorities
(including Mohajirs
and Shia Muslims).
[9]
The
officer also considered the Dawood letter and news reports from the Internet
submitted by the applicant. The officer found that the letter had little
probative value as the author did not provide any information to establish his
expertise with respect to sectarian violence. The officer also found that the
news reports, while emphasizing violence against MQM-H members, only referred
to generalized violence and not personalized violence.
[10]
The
officer concluded that the applicant did not submit sufficient evidence to
prove that he would still be at risk in Pakistan due to his membership in the
MQM-H more than 12 years ago, or that he would be perceived to be a member
after his lengthy absence from Pakistan. The officer
acknowledged that the overall human rights in Pakistan was poor but
concluded that the unfavourable conditions were faced by the population as a
whole and were not directed at any one group. The officer concluded that the government’s
efforts were adequate if not perfect and that the applicant had failed to rebut
the presumption of state protection.
ISSUE
[11]
The
sole issue is whether the officer erred in the determination that adequate
state protection would be available to the applicant in Pakistan.
ANALYSIS
[12]
The
jurisprudence has established that the standard of review for issues of state
protection is reasonableness: Mendez v Canada (Minister of
Citizenship & Immigration), 2008 FC 584. The standard of reasonableness is
described at paragraph 47 of New Brunswick (Board of Management) v
Dunsmuir,
2008 SCC 9:
[…]
A court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[13]
The
burden was on the applicant to adduce clear and convincing evidence to satisfy
the officer, on a balance of probabilities, that adequate state protection
would not likely be available to him if he was required to return to his
country of origin (Canada
(Attorney General) v Ward, [1993] 2 S.C.R. 689 at paras 48-51; Hinzman v Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, at para 54; Canada (Minister of Citizenship and
Immigration) v Flores Carrillo, 2008 FCA 94, at para 30 [Carrillo]). In this instance, the applicant
failed to satisfy the officer that he had rebutted the presumption; a finding
to which this Court must give considerable deference applying the
reasonableness standard.
[14]
The
applicant submits that the evidence relied upon by the officer contradicts the
finding that state protection would be available to him in Pakistan. The applicant does not
contend that the officer ignored the country documentation but argues that the
finding that adequate protection would be available to him ignores the evidence
of politically targeted violence in Pakistan. He contends that his past involvement in the
MQM-H, known to his political rivals, would put him at risk. It is not argued
that the officer failed, on this occasion, to take the Dawood letter into
consideration.
[15]
The
respondent contends that the real basis for the decision was the lack of evidence
of personalized risk. The risk he would face is of a generalized nature inherent
to the conditions in Pakistan, and not because he
engaged in political activities in another country more than 12 years
previously.
[16]
The
applicant submits that the finding of state protection was determinative and it
is immaterial that the officer may have made a finding that the applicant would
not be at personalized risk because of the passage of time and the fact that
his political activities took place outside of Pakistan.
[17]
I
agree with the applicant that there are questionable aspects to the officer’s
state protection findings. Many of the sources referred to by the officer state
that the effectiveness of the security forces varies from reasonable to
ineffective, that abuses are frequently unpunished, that there is rampant
corruption in the police, that the police are ineffective at quelling sectarian
and ethic violence and that the security situation is getting worse. The
officer’s assertions that “Pakistan is a democracy possessing political and judicial
institutions capable of protection its citizens” and that the country “is
governed by the rule of law” are debatable in light of the challenges facing
that country.
[18]
Even
if I were to conclude that the officer had erred in the assessment of the
availability and adequacy of state protection in Pakistan, it is clear from the
decision, read as a whole, that the officer found that the applicant would not
face the personalized risks contemplated by s. 97 of the IRPA if returned to
his country of origin. The officer stated his conclusions in this regard in the
following terms at page 9 of his decision:
While the applicant provided an account
of his troubles because of his ties to MQM-H between 1994 and 1998, he has not
provided sufficient evidence of his current ties or activities, if any, to the
MQM-H. I do not find that the applicant has provided sufficient objective
evidence to demonstrate that he would be targeted for his membership in the
MQM-H that occurred 12 years ago or that he would be perceived to be a member
after a 12 year absence from Pakistan. There is insufficient evidence before
me to conclude that the applicant’s former political affiliation will put him
at risk of torture, risk to life, or risk of cruel and unusual treatment of
punishment in Pakistan.
[19]
The
finding that state protection was available was a “secondary” or “subsidiary
ground” for considering the applicant’s claim for protection as it is
characterized at paragraphs 14 and 15 of Carillo, above. The primary
ground was whether, on the basis of an individualized consideration of the
evidence, the applicant faced a present or prospective risk under one or more
of the heads of risk set out in s. 97: Prophète v Canada (Minister of
Citizenship and Immigration), 2009 FCA 31 at para 7.
[20]
Here
the evidence adduced by the applicant was that persons described as workers or
leaders of the MQM-H continued to face a risk of injury and death as a result
of the continuing sectarian violence in Pakistan. It was open to the officer to conclude that
the applicant would no longer be at risk of being targeted because of the
passage of time or perceived to be a present member of the organization.
[21]
The
officer’s finding that the applicant did not face such a risk fell within a
range of acceptable outcomes defensible on the facts and the law and the
reasons provided were transparent and intelligible. The decision is, therefore,
reasonable applying the standard enunciated in Dunsmuir, above.
[22]
No
serious questions of general importance were proposed by the parties and none
will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No questions are
certified.
“Richard
G. Mosley”
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