Date: 20080609
Docket: IMM-3832-07
Citation: 2008 FC 717
Ottawa, Ontario, June 9,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
SOHAIL SYED RIZVI,
ANNE SOHAIL RIZVI,
MIKAELEH SOHAIL RIZVI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
background
[1]
The
Rizvi family, all citizens of Pakistan, challenge, in this judicial review
application, the August 7, 2007 decision of a pre-removal risk
assessment (PRRA) officer (the tribunal) rejecting their applications they be
found at risk in Pakistan from Islamic extremists because they are Christians.
The father Sohail Syed Rizvi, age 68, was born of parents with different
religions: his father was Muslim and his mother a Christian; he was baptized a
Christian. Under Islamic law as the son of a Muslim, he is considered a Muslim.
The mother Anne Sohail Rizvi, age 66, is a Catholic and their daughter
Mikaeleh, age 37 was raised as a Christian.
[2]
Mr.
and Mrs. Rizvi were born in 1940 and in 1941 in India and
presumably became citizens of Pakistan after the creation of that state in 1947
upon the partition of British India. Their daughter was
born in Karachi in 1971.
[3]
The
Rizvi family came to Canada in 2002 directly from Dubai where they
had resided since 1978 when Mr. Rizvi found work there. In 2000 he turned 60
which is the retirement age for ex-pats and, as a result, he indicated he could
no longer reside there because he did not meet the residency requirements.
[4]
The
family made a refugee claim which was dismissed on September 14, 2004,
leave to appeal refused by a judge of this Court. In dismissing their refugee
claim, the Refugee Protection Division (RPD) found the father and daughter not
to be of Christian faith essentially because they had identified themselves in
their Pakistani passports as members of Islam; Mr. Rizvi had also identified
himself at work as a Muslim and his evidence was he never attended mass or took
confession in Dubai and his religious attendance in Canada sparse. As for the
daughter, the RPD cited her minimal contact with two Roman Catholic
organizations in this country and her evidence she does not practice that faith
here. The RPD acknowledged the documentary evidence mentioned incidents of
violence against Christians and Christian churches but concluded these
incidents were isolated and not widespread. It concluded there was less than a
mere possibility “that the family will face serious harm if they return to Pakistan as a result
of the mother being a Christian and father and daughter being Muslims.” In late May
2006, they were advised they were eligible to apply for a pre-removal risk
assessment. They took advantage of that procedure.
The tribunal’s decision
[5]
The
tribunal first reviewed the RPD’s findings and determined in their PRRA
applications the applicants alleged the same risk if returned to Pakistan: persecution
on account of their Christian faith. The tribunal then ruled: “As this risk
has been assessed by the RPD, only new evidence of this risk will be considered
in this application.”
[6]
The
tribunal then reviewed two documents it considered as new evidence:
·
A
letter from the pastor of a Toronto church “which states
that the family worships at the church several times a week”; and
·
The
amended Pakistani passports, obtained from the Pakistani consulate in Toronto, for the
father and daughter “which now identifies their religion as Christians”. In
fact, his daughter obtained a new passport. The consulate returned Mr. Rizvi’s
old passport with Islam struck out and Christian substituted. Both religions
are clearly legible in his passport.
[7]
Assessing
the new documentary evidence, the tribunal ruled:
I have considered that the applicants
changed their passports and started regularly attending church in Toronto only after the RPD decision,
which specifically addressed these two issues. In consideration of the timing of these
events and their relation to the RPD’s findings, I assign the letter and
passports little weight in establishing that the applicants face risk
in Pakistan due to their Christian faith. [Emphasis mine.]
[8]
The
tribunal then stated it had considered the internet articles submitted by the
applicants and said it “accepts that the government and police have been
criticized for not taking action against attacks on Christians and their
property” adding it had also considered the 2006 US State Department’s International
Religious Freedom Report which reveals government efforts aimed at improving the
treatment of religious minorities in Pakistan quoting it:
During
the reporting period, the Government maintained its public calls for religious
tolerance, worked with moderate religious leaders to organize programs on
sectarian harmony and interfaith understanding, maintained its ban on and
actively attempted to curb the activities of sectarian and terrorist
organizations, implemented a registration scheme for Islamic religious schools
known as madrassahs, and proceeded with reform of the public education
curriculum designed to end the teaching of religious intolerance.
[9]
The
tribunal also referred to that US DOS report as stating Christians had claimed
there were 4 million of its members there, that 70 percent of English-speaking
Catholics worshipped regularly and the Catholic diocese of Karachi estimated
120 thousand lived in that city.
[10]
The
tribunal also said it had considered Mr. Rizvi’s stated risk he will be killed
because of the change of religion on his passport and noted “according to the
International Religious Freedom Report [of US DOS for 2006] there is no law
against apostasy in Pakistan.” [Emphasis
mine.]
[11]
The
tribunal concluded its consideration of the applicants’ separate submissions
and of its independent research “it has not established that the applicants
face a personal and forward-looking risk of persecution, risk of torture, risk
to life or risk of cruel and unusual treatment or punishment in Pakistan. Having said
this, the tribunal stated it considered country conditions to determine if they
were Convention refugees or persons in need of protection and this time
referring to the 2006 US DOS Country Report on Human Rights Practices in
Pakistan finding “the
government’s human rights record remained poor” but concluding:
While I acknowledge problems
such as restrictions on freedom of religion and violence against women, there is
insufficient evidence before me to conclude that the applicants would be
personally at risk of these or other human rights problems in Pakistan.
Accordingly, I do not find that the applicants would face more than a mere
possibility of persecution, nor do not find it likely that the applicants would
face a risk of torture, risk to life, or a risk of cruel and unusual treatment
or punishment should they return to Pakistan. [Emphasis mine.]
The issues raised by the
applicants
[12]
The
applicants raised the following issues:
1.
The
tribunal erred in law in failing to consider the risk that would be
faced by the applicants if they were returned to Pakistan and failed
to consider the evidence properly before them.
2.
The
tribunal erred in law and breached the principles of natural justice in not holding
a hearing pursuant to the provisions of subsection 113(b) of the Act.
3.
The
tribunal made an erroneous finding of fact and law when it determined the
applicants were not at risk to life if returned to Pakistan.
[13]
The
first issue raised focuses on what the applicants say is the failure of the
tribunal to consider the real capacity of Pakistan to protect
Christians and simply noted the government’s good intentions and further
compounded its error by Christians would be protected by their numbers. The applicants
say the tribunal ignored the voluminous evidence on religious violence
permeating Pakistan. The
applicants rely on Mitchell v. Canada (Minister of
Citizenship and Immigration), (2006) 51 Imm. L.R. (3d) 159 and Kaur
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1491.
[14]
The
second issue relates to the tribunal’s decision to give little weight to the
two pieces of new evidence: the letter from the pastor and their amended passports
because of their timing and relation to the RPD findings. The applicants argue
that while the tribunal frames its finding in terms of assigning of weight, in fact,
it made a credibility finding. They say that as this new evidence could have
lead to a positive decision and is central to it and where the tribunal finds
those documents not credible, the requirements of section 167 of the Immigration
and Refugee Protection Regulations (the Regulations) are met in that
both the Regulations [and additionally] procedural fairness at common law
demanded a hearing be held citing Tekie v. Canada (Minister of Citizenship
and Immigration), 2005 FC 27; Liyanage v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1045; Zokai v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1103 and Shafi v.
Canada (Minister of Citizenship and Immigration), 2005 FC 714.
[15]
With
respect to the final issue, the applicants argue the tribunal erred in fact and
law in finding that the applicants are not at risk relying on my colleague Justice
Mandamin’s decision of October 3, 2007 in Rizvi v. Canada (Minister
of Citizenship and Immigration), 2007 FC 1017 which stayed the applicants’
removal pending the determination of this judicial review application. The
applicants say the tribunal found comfort in the fact there was no law against
apostasy in Pakistan based on the
2006 US DOS International Religious Freedom Report yet one year later the 2007
US DOS International Religious Freedom Report mentions at page 213 that “a
convert from Islam becomes an apostate and is eligible for the death penalty”.
[Emphasis mine.]
Analysis
(a) The standard of review
[16]
The
Supreme Court of Canada in its recent decision in Dunsmuir v. New
Brunswick,
2008 SCC 9 reformed the law on the standard of review of decisions by
administrative decision makers. There are no longer three standards of review
but only two as the result of the collapsing of the patently unreasonable
standard into the reasonableness standard which must also accommodate certain
issues of law in certain circumstances previously handled under the correctness
standard which remains in place.
[17]
In
that case, the Supreme Court of Canada was dealing with a provincially
appointed decision maker and, as a consequence, it did not consider the impact
of paragraph 18.1(4)(d) of the Federal Courts Act which provides this
Court may set aside a decision of a federal administrative decision maker if
the decision was based “on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the evidence before it”. The
jurisprudence makes it clear this statutory provision is analogous to the
patently unreasonable standard of review and is confined to findings of fact.
[18]
In
Dunsmuir, above the Supreme Court of Canada also ruled at paragraph 57
it was unnecessary for a Court to engage in a separate standard of review
analysis for each case when the standard of review on the relevant questions
had been settled by the jurisprudence.
[19]
On
this basis, the first issue raised by the applicants relates to the adequacy of
state protection. The Federal Court of Appeal in Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171 decided this issue was
reviewable on the standard of reasonableness.
[20]
The
second issue raised by the applicants involves the proper interpretation of
section 167 of the Immigration and Refugee Protection Regulations (the Regulations)
and is reviewable on the correctness standard (see Tekie v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27).
[21]
The
final issue raised by the applicants is a question of fact reviewable on the
basis of paragraph 18.1(4)(d) of the Federal Courts Act, a breach
of which would clearly make that decision unreasonable.
(b) Discussion and conclusions
[22]
I
do not accept counsel for the applicants’ submission the tribunal did not deal
with the issue of state protection in Pakistan. The tribunal’s
consideration of state protection in this case was very brief but the record is
before the Court “as a check on the Board’s conclusions” and for this
proposition I refer to the Supreme Court of Canada’s decision in Boulis v.
Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875 at page
885.
[23]
The
applicants have the burden of rebutting the presumption Pakistan is incapable
of providing adequate state protection to Christians; perfect state protection
is not the standard. Sometimes state protection is ineffective (see Canada (Minister of
Citizenship and Immigration) v. Olah, 2002 FCT 595 and, in
particular, the Federal Court of Appeal’s recent decision in The Minister of
Citizenship and Immigration v. Carrillo, 2008 FCA 94 where Justice
Létourneau made it clear “local failures to provide effective policing do not
amount to a lack of state protection” i.e. inadequate state protection).
[24]
I
agree with counsel for the applicants, state protection is not adequate if a
government does nothing to assure it except to express its good intentions to
provide it. However, I do not agree with her the extract cited by the tribunal
can simply be characterized as an expression of a pious hope on the part of the
government of Pakistan. That
extract from the US DOS reflects concrete steps taken by the government of Pakistan to curb the
activities of sectarian organizations.
[25]
The
tribunal indicated in its decision it had considered the internet articles
submitted by the applicants. I also reviewed the certified tribunal record
(CTR) in this respect. I agree with the tribunal those internet articles do not
establish the government of Pakistan is incapable of
providing state protection. Those articles demonstrate sporadic and
unanticipated acts of violence against religious minorities including
Christians.
[26]
I
cannot accept counsel for the applicants’ second submission to the effect the
tribunal’s ruling on the weight to be given to the two documents of new
evidence is a disguised credibility ruling. As I see it, the tribunal did not
reject the new evidence on grounds it was not credible. It accepted the new
evidence as being genuine and reliable. What it did to, however, is to assess
that evidence as to what weight should be given to it i.e. what was its
probative value which is its task.
[27]
The
third issue is more difficult but the facts are clear:
1.
There
is no doubt the tribunal relied upon the 2006 US DOS International Religious
Freedom Report for the proposition in its reasons “there is no law against
apostasy in Pakistan”. The
extract from the 2006 US DOS report is to be found in the certified
tribunal record, at page 21. The full sentence reads: “there was no law against
apostasy; however, societal pressure against conversion from Islam was so
strong that any conversion almost certainly would take place in secret”.
2.
My
colleague Justice Mandamin, on the stay application in this case, he decided on
October 3, 2007 had before him the 2007 US DOS International Religious Freedom
Report. That report was released on September 14, 2007 and, therefore,
was not available to and not before the tribunal whose decision is dated August
7, 2007. It contained the following statement to be found at applicants’
record, volume 1, page 231, the full sentence being: “In addition, a convert from
Islam becomes an apostate and is eligible for the death penalty.” Justice
Mandamin picked up on that statement to conclude the PRRA officer in this case
had performed an inadequate risk assessment because the PRRA officer did not
properly turn his mind to the risk the applicant father and daughter would be
subject to as a result of being seen as converting or re-converting from the
Muslim to the Christian faith. He ruled the risk to the applicant father and
daughter would be materially different if they were seen as apostates than it
would be if they are seen as always having been Christians.
3.
The
applicants’ record was filed with the Court on October 18, 2007. Counsel for
the applicants quoted extensively from Justice Mandamin’s stay decision in
support of the proposition the tribunal had made an erroneous finding of fact
and law.
4.
Counsel
for the respondent then filed its memorandum of fact and law opposing the grant
of leave and chose not to deal with the issue raised by the applicants in terms
of what Justice Mandamin had decided. Furthermore, counsel for the respondent
did not file a supplementary memorandum after leave was granted. The matter was
left to oral argument before the Court.
[28]
The
difficulty with this case is the tribunal cannot be faulted for the conclusion
it reached that, at the time of the decision, there was no apostasy law on the
books in Pakistan. The
material before Justice Mandamin shows that an Apostasy Act was
introduced in the Parliament of Pakistan in 2006.
[29]
The
jurisprudence on this point is clear to the effect the record before a reviewing
court on a judicial review application cannot be expanded beyond the
evidentiary record which was before the tribunal; it must be the same subject
to two exceptions not present in this case, namely, where issues of
jurisdiction or natural justice are before a reviewing Court. That point was
not before Justice Mandamin. The matter before him was a stay proceeding and
not a judicial review proceeding. For the proposition that fresh evidence may
only be adduced on judicial review in exceptional circumstances, I refer to the
Federal Court of Appeal’s decision in Gitxsan Treaty Society v. Hospital
Employees’ Union (C.A.), [2000] 1 F.C. 135; Bekker v. Canada, 2004 FCA
186; Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC
69 and Rafieyan v. Canada (Minister of Citizenship and Immigration),
2007 FC 727.
[30]
In
the circumstances, the third argument raised by counsel for the applicants must
be rejected.
[31]
However,
the applicants are not without a remedy. They are entitled to raise the issue of
the new apostasy law (if it is on the books) in a new PRRA application on the
basis of changed country conditions. They are also entitled to raise the issue
whether the applicants would be considered as apostates according to sharia law
and, if so, what impact such a fact would have on their risk of return to Pakistan. I note Mr.
Rizvi had raised this issue with the officer (see, CTR, page 135).
[32]
The
nature and purpose of a pre-removal risk assessment is settled by the
jurisprudence of this Court. A pre-removal risk assessment is not an appeal
from a negative decision of a refugee protection tribunal. Its purpose is to
evaluate new evidence showing that the situation, particularly in terms of
country conditions, which existed at the time of a negative refugee protection
decision has changed. Moreover, the concept of a second or multiple PRRA
applications is contemplated by section 165 of the Regulations and this
notion has been endorsed by my colleagues (see for example Orozco v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1426 citing Kouka v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1236).
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed without prejudice to the applicants to file a
new PRRA application raising the issue of apostasy. No certified question
arises from this decision.
“François Lemieux”
____________________________
Judge
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