Date: 20080602
Docket: IMM-6414-06
Citation: 2008 FC 689
Toronto, Ontario, June 2, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
GEORGE FREDERICK NILAM
FLORENCE MONICA NILAM
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “IRPA”) for judicial review made by
George Frederick Nilam and Florence Monica Nilam (the “Applicants”) of a
decision made by the Refugee Protection Division of the Immigration and Refugee
Board (the “Board”), dated November 15, 2006, wherein it was determined that
the Applicants were not Convention refugees nor persons in need of protection
under sections 96 and 97 of the IRPA.
[2]
For
reasons set out below I have decided to grant the application for judicial
review.
Background
[3]
The
Applicants are citizens of Pakistan who fear serious harm
amounting to persecution in Pakistan because of their
Christian faith and religious activities.
[4]
Between
1953 and 1967, the male Applicant experienced harassment for reasons of his
faith while employed with the Telephone and Telegraph Company of Pakistan. From 1967
to 1995, the Applicant was self-employed. To supplement his income, he would
tutor Muslim and Christian children in his home. Although not directly
threatened by the Muslim members of his community, the Applicant claims that by
virtue of being Christian and teaching Muslim children, he was repeatedly chastised
by Muslim members of his community.
[5]
The
Applicants say their problems began in 2004 when a new religious leader joined
their neighbourhood mosque. After the Maulvi’s arrival, the earlier
chastisements directed to them by their Muslim neighbours turned into threats.
In February 2004, the male Applicant claims that the Maulvi stopped him on the
street and told him if he did not stop teaching Muslim children the
consequences for him would be dire. After this event the number of Muslim
children he was tutoring declined until all his students were Christian. In
October 2004, the male Applicant claims that the Maulvi came to his home with
eight or nine men, one of whom put a gun to his head and threatened to shoot
him. The Maulvi informed the Applicant that he would have to either convert to
Islam or move to a Christian country. Further, that if the Applicant did not
convert he would be charged with blasphemy.
[6]
The
Applicant twice went to the police to seek protection and was denied assistance
both times. In February 2004 after the first encounter with the Maulvi, the
Applicants went to their local police station to make a complaint. A constable
standing outside the station asked the male Applicant for his name and nature
of his problem but would not let them enter the station. The constable informed
the Applicants that the police could not help because nothing yet had happened
to them. In October 2004, after the second altercation with the Maulvi and the
other individuals, the male Applicant again went to the police station. After
learning the Applicant’s name, the duty officer was able to infer the
Applicant’s faith and made no serious effort to assist the Applicant.
Decision Under Review
[7]
The
Board accepted that the Applicants were members of the Christian community in Pakistan and had been
subjected to incidents of employment discrimination and acts of sectarian
violence perpetuated by Muslim extremists. However, the Board decided that the
Applicants had not overcome the presumption of state protection.
[8]
The
Board preferred to rely on documentary evidence that came from independent
sources with no interest in the outcome of the Board’s proceedings over the
male claimant’s evidence.
[9]
The
Board noted that the documentary evidence disclosed acts of violence against
those of the Christian faith. However, the Board also noted that the
government openly discouraged or condemned violence against Christians. The
Board concluded that while protection against criminal Muslim extremist groups
in Pakistan may not be
perfect it was available and adequate.
[10]
The
Board also considered Pakistan’s blasphemy laws and
its impact on Christians. It noted that blasphemy laws were often used to
harass and intimidate religious minorities. However, the Board found it was
not plausible that the Applicants would be victims of Pakistan’s blasphemy
laws since they had not been previously victims of such laws nor had they been
publicly critical of Islam.
[11]
The
Board found there was no evidence before it that governmental authorities in Pakistan prevented
Christians from openly and freely practicing their religious beliefs.
Issue
[12]
The
determinative issue in this application is whether the Board committed a
reviewable error in finding that state protection was available to the Applicants
in Pakistan.
Standard of Review
[13]
This
hearing was conducted prior to the judgment of the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9, which modified the standard on which judicial reviews are to be
conducted. Now, there are only two standards of review: correctness and
reasonableness (Dunsmuir at para. 34). Prior to Dunsmuir, the
standard of review applicable to issues of state protection, where the question
was one of mixed fact and law, was reasonableness simpliciter (Chaves
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193 at para. 11). At paragraph
51, Dunsmuir instructs that questions of mixed fact and law are now to
be reviewed on the reasonableness standard. Accordingly, the standard of
review in this case shall be reasonableness (see also: Zepeda v. Canada (Minister of
Citizenship and Immigration), 2008 FC 491 at para. 10).
Analysis
[14]
In
regards to the Board’s decision, reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision making
process. 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” (Dunsmuir, above, at para. 47). Justification requires that a
decision be made with regard to the evidence before the decision-maker. A
decision cannot be a reasonable one if it is made without regard to the
evidence submitted (Katawaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612 at paras. 18, 22).
[15]
The
Applicants’ testimony about twice approaching the police for protection was not
impugned. An applicant is presumed to tell the truth unless there is reason
for the Board to question the applicant’s credibility (Katawaru , above,
at para. 15). That situation has not risen in this hearing. Other than
stating that it preferred the documentary evidence over that of the Applicants,
the Board gives no reasons for disregarding the male Applicant’s testimony
about twice approaching the police to no avail. In doing so, the Board has
failed to consider relevant evidence before it in arriving at its decision that
state protection is available.
[16]
In
addition, while it is open to the Board to prefer one type of documentary
evidence over another type, the basis for this preference cannot be because the
Applicant has an interest in the outcome. All applicants have an interest in
the outcome of their hearing. The Board states that it preferred the
documentary evidence to the Applicants evidence as it came from reliable and
independent sources with no interest in the outcome of the proceedings
(Tribunal Record at 62). This goes against the proposition set out by the
Federal Court of Appeal in Maldonado v. Canada
(Minister of Citizenship and Immigration), [1980] 2 F.C. 302, which noted
that there is a presumption of truth of the sworn testimony of a claimant.
Justice Snider’s discussed this point in Coitinho v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1037 at para. 7, I
believe her comments are on all fours with the case at bar:
7 The Board goes on to
make a most disturbing finding. In the absence of stating that the Applicants'
evidence is not credible, the Board concludes that it "gives more weight
to the documentary evidence because it comes for (sic) reputable, knowledgeable
sources, none of whom have any interest in the outcome of this particular
refugee hearing". This statement is tantamount to stating that documentary
evidence should always be preferred to that of a refugee claimant's because the
latter is interested in the outcome of the hearing. If permitted, such
reasoning would always defeat a claimant's evidence. The Board's decision in
this case does not inform the reader why the Applicants' evidence, when supposed
to be presumed true (Adu, supra), was considered suspect. Further, this
reasoning cannot even stand on the facts of this case.
[17]
I
find that the Board’s decision, made without regard to relevant evidence before
it, to be unreasonable.
[18]
The
application for judicial review is granted. The matter will be returned for
re-determination by a differently constituted Board.
[19]
No
general question of importance was proposed for certification.
ORDER
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is granted. The matter is referred back for
re-determination by a differently constituted Board.
2.
No
general question of importance is certified.
“Leonard
S. Mandamin”
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