Date: 20080620
Docket: IMM-5361-07
Citation: 2008 FC 779
Toronto, Ontario, June 20,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ALI SHIRAZ NAQVI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review made pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division (Board), dated November 28, 2007, wherein the applicant
was determined not to be a Convention refugee or a person in need of
protection.
I. Facts
[2]
The
applicant, Ali Shiraz Naqvi, is a citizen of Pakistan who has
claimed refugee status on the basis that he would be persecuted by
Sipah-e-Sahaba Pakistan (SPP) because he is a Shi’a Muslim in the predominantly
Sunni Pakistan. The
applicant related one alleged incident where he was assaulted by SPP members
near campus, and the police did nothing to help him, although he did not ask
for help. Prior to coming to Canada, the applicant lived in the United
States
for a period of eleven months on a student visa, where he had allegedly been
sent to study and for his own protection, but without claiming protection. Eventually,
the applicant’s father retired and could not support his education, so the
applicant came to Canada and made his claim for protection.
[3]
The
applicant is no stranger to the refugee process in Canada. His first
hearing for refugee status was on April 27, 2004, and his first rejection was
on June 8, 2004. That decision was judicially reviewed and set aside in a
decision of this Court dated July 19, 2005.
[4]
The
applicant’s second hearing took place on March 6, 2006, resulting in a second
rejection on March 23, 2006. Judicial review was again sought, and again the
decision of the Board was set aside on March 7, 2007, on an issue of missing
materials in the record. This decision has no bearing on the present affair.
II. The Impugned Decision
[5]
The
Board determined that the applicant is not a Convention refugee as he did not
have a well-founded fear of persecution in Pakistan. The Board
also determined that he was not a person in need of protection.
[6]
The
Board first considered state protection for Shi’a Muslims in Pakistan and found “
that the preponderance of the evidence before it indicates that police do take
action against extremist groups, including the SPP”. It also noted the
following facts revealed by the country documentary evidence it preferred to
that of the applicant, as it was gathered from “a number of human rights and
other organizations” without interest in the claim, and ultimately found that
the state protection was available:
·
Of
the religious minorities, Ahmaddiya, Christians and Buddhists are most at risk
for societal victimization with no police protection or state protection;
·
Members
of both Sunni and Shi’a are at risk from extremists from the opposite sect,
mostly while in mosques;
·
While
the majority of Muslims are Sunni, there is a larger minority of Shi’a, a 10%
of the population 14.9 million people, with the Shi’a population claiming the
numbers are closer to 20%;
·
The
rhetoric is against Christians, Sikhs, Buddhists and Parsis and Ahmadiyya;
·
The
government sponsors interfaith dialogue, with the exception of Ahmadiyya;
·
The
police turn a blind eye to attacks against Ahmadiyya;
·
Targets
for assassination are clerics, government officials and professionals;
·
There
is a major crackdown on SSP and other terrorist organizations;
·
The
government sends in the army to assist in state protection for major
celebrations, including Muherram;
·
The
government continues to freeze the funds of terrorist organizations;
·
There
are a number of Shi’a publications;
·
The
government increases security in the Muherram, including procession routes;
·
Police
take action and courts punish extremists.
[7]
The
Board indicated that it preferred that evidence to that of the applicant
“because it is gathered from a number of human rights and other organizations
with no interest in this (claim) or any refugee claim”. In doing so, the Board
also noted that the applicant “does not have the profile of those who are
targeted by extremists, or anyone else”, and that he did not attempt to get
help from the campus police.
[8]
The
Board then considered the applicant’s eleven month stay in the United
States.
It noted that the applicant was in the US some time before the US began to
“register ‘against’ Pakistanis” – apparently his impetus for seeking protection
in Canada – and explained that he did not make a claim in the US before that
started happening because, he felt safe under his student visa. The Board noted
that the applicant knew that he would have to return eventually, and further
could have applied for protection in the United States after his
father retired and could no longer support his education. From this, the Board
determined that the applicant had no intention to come to Canada to make his
claim, that he was forum shopping between countries, lacks credibility, and had
not established that he truly fears for his safety.
III. Standard of Review
[9]
Reasonableness is the
standard applicable to a decision determining the adequacy of state protection
(Wong v. Canada (Minister
of Citizenship and Immigration), 2008 FC 534, at paragraph 5, [2008]
F.C.J. No. 679; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at paragraphs
57, 62, and 64).
IV. Analysis
A. Order of July 19, 2005
[10]
The
applicant denies that the Order of this Court to the Board, of July 19, was
simply to reconsider the issue of state protection. This is true, since in
allowing the application for judicial review, the Order specified was “returned
to a different officer for redetermination”. However, the applicant goes on one
step further by asserting that the Court did make, on that occasion, a finding
on state protection - specifically, that it did not exist in the applicant’s
case- to argue that the Board, in its impugned decision, either cannot make a
different determination or at least must justify a different conclusion.
Unfortunately for the applicant this contention is untrue. The Order in
question contains no such finding, and simply determines that evidence on the
availability of state protection had been ignored. This argument is therefore
unfounded.
B. Documentary Evidence
[11]
The
applicant submits that given the problems with the credibility finding,
including the fact that it was not based on inconsistencies or contradictions,
there was no basis for preferring the 3rd party source (Coitinho
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1037 at par
7). The respondent simply asserts that the preference of evidence is a matter
of weight for the Refugee Division.
[12]
Despite
the applicant’s attempt to attach the credibility issue to this determination,
it does not appear that the Board’s finding on credibility had anything to do
with its determination that it preferred the evidence of the country documents
to that of the claimant because “it is gathered from a number of human rights
and other organizations with no interest in this (claim) or any refugee claim”.
While a lack of credibility on the part of the applicant can be relevant to the
determination by the Board that it prefers the documentary evidence to the
applicant’s evidence, there is no mention of the credibility issue until after
the Board made its determination on state protection. Credibility was only
raised with regard to whether or not the applicant had a subjective fear. Nor
is it mentioned when the Board gives its cursory explanation for why it
preferred the documentary evidence. There is nothing in this particular
decision to lead the court to infer that the credibility finding underlay the
Board’s determination on this issue.
[13]
That
being said, this court has expressed its reservations in the past about such
blanket statements regarding the preference of documentary evidence over the
testimony of an applicant (Malveda v. Canada (Minister of Citizenship and
Immigration), 2008 FC 447, [2008] F.C.J. No. 527, at para. 39; Kosta v. Canada (Minister of Citizenship and Immigration),
2005 FC 994, [2005] F.C.J. No. 1233 at paras. 28-35; Ramsaywack
v. Canada (Minister of Citizenship and Immigration), 2005 FC 781, [2005]
F.C.J. No. 999, at paragraphs 13-15).
[14]
This type of reasoning was addressed by this Court in Coitnho,
above at par. 7, and must be reminded once again:
The Board goes on to make a most disturbing
finding. In the absence of stating that the Applicants' evidence is not
credible, the Board concluded 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 v. Minister
of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.)), was
considered suspect. [Emphasis added]
[15]
In
Malveda, above, this Court disapproved this type of blanket statement by
noting at par. 38 that “...such unqualified statements appear
to negate, if not reverse, the presumption of truthfulness of a claimant's
testimony established in Maldonado ...”. Further, in Malveda, par. 39, the Court
notes the following deficiencies in the blanket statement made by the Board in
the case before him:
In the Decision in this case, there is no attempt
to raise and discuss what the Applicant actually said on this issue, or to
identify those aspects of the documentary evidence that should be preferred,
and why they are to be preferred, and there is no attempt to deal with aspects
of the documentary evidence that might support the Applicant's position. All we
have is a blanket dismissal that explains nothing. In my view, this is not
adequate in the circumstances and this aspect of its Decision contains a reviewable
error.
[16]
In
the present case, the Board gave such a blanket dismissal, did nothing to
indicate why it preferred the documentary evidence over the applicant’s other
than to note that it came from a disinterested source, and did not give any
indication that its credibility finding on the issue of subjective fear had
anything to do with its determination on state protection. It did not even
review the applicant’s allegations, compare them to the documentary evidence,
and explain why one was better than the other.
[17]
It
is trite Law that the Board is not required to refer to every piece of evidence
that it received. “However, the more importance the evidence that is not
mentioned specifically and analysed in the agency’s reasons the more willing a
court may be to infer from the silence that the agency made an erroneous
finding of fact “without regard to the evidence” (Cepeda-Gutierrez c. Canada
(Minister of Citizenship and Immigration), [1998] A.C.F. no
1425, TD, par 17).
[18]
There
is nothing in the impugned decision
to indicate that the Board made some kind of analysis, that took into account the
Applicant's, his allegations, and the evidence he provided and considered
important, in view of his personal situation, to rebut the presumption of state
protection, except for a disturbing and unacceptable blanket dismissal. And
this constitutes a reviewable error.
[19]
The Court
agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT:
1.
Allows
the application for judicial review;
2.
Sets
aside the decision of the Refugee Protection Division; and
3.
The
matter is referred back to a different individual for redetermination in
accordance with these Reasons.
“Maurice E. Lagacé”
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