Docket:
IMM-2178-13
Citation: 2014 FC 264
Calgary, Alberta, March 18, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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MUDDASSIR SHEIKH
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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]
Mr. Sheikh is asking the Court to set aside a decision of the Refugee
Protection Division of the Immigration and Refugee Board of Canada that found
that he was not a convention refugee or person in need of protection.
[2]
The primary basis for this application is a challenge to the finding of
the Board that Mr. Sheikh did not have a “well-founded fear of persecution” as
required under section 96 of the Immigration and Refugee Protection Act, SC
2001, c 27.
[3]
The facts are not in dispute. Mr. Sheikh is a Sunni Muslim citizen of Pakistan. In 2009, he married Ameena James, a Christian Pakistani citizen. The marriage was
carried out in secret and was conducted after Ms. James falsely converted to
Islam for purposes of the marriage ceremony. This subterfuge was known by Mr.
Sheikh and he participated in it in order to effect the marriage ceremony. The
Applicant’s friend, Naveed, helped him arrange the marriage ceremony, and four
of Naveed’s friends acted as witnesses. The couple’s families are not aware of
the marriage.
[4]
Soon after the marriage, Mr. Sheikh came to Canada with his wife on a
temporary work permit. Ms. James has a pending permanent residence application
with the Saskatchewan Immigrant Nominee Program and has not filed a refugee claim.
Mr. Sheikh made a refugee claim alleging that he is subject to risk of
persecution from his family, friends, and religious extremists on account of
his involvement in his wife’s false conversion to Islam, and his marriage to a
Christian woman.
[5]
The Board determined that Mr. Sheikh was a credible witness and found his
evidence of his wife’s conversion to Islam and their secret marriage out of
fear of their families’ respective religious differences genuine. It was found
that he is in an inter-religious marriage that was based on his wife being
Muslim, which he and his wife fabricated, that lies at the heart of his fear of
persecution. Nexus for purposes of section 96 of the Act was
established.
[6]
The Board concluded that given the “broad and petty use” of blasphemy
laws in Pakistan, it is possible that Mr. Sheikh would face persecution for his
knowledge of and role in his wife’s subterfuge in pretending to be Muslim; however,
the Board went on to find that there was not a serious possibility of such persecution
befalling him because it was unlikely (but not impossible) that these facts
would become known in Pakistan.
[7]
In short, the Board found that Mr. Sheikh has a subjective fear of being
charged “under Pakistan’s blasphemy laws for his role in the false conversion
of his wife.” It further found that there was no “serious possibility of such
persecution befalling” him because it was unlikely that this would be disclosed
by those who knew or by his family in Pakistan.
[8]
Despite the able submissions of the Minister’s counsel, I am not
convinced that the Board properly and reasonably examined the issue of the
well-foundedness of Mr. Sheikh’s fear. I agree with counsel for the Applicant
that the principles expressed by this Court in Sadeghi v Canada (Minister of Citizenship and Immigration), 2002 FCT 1083 [Sadeghi] and AB v Canada (Minister of Citizenship and Immigration), 2009 FC 325 [AB] apply.
[9]
In Sadeghi the Iranian applicant claimed protection based on his
fear of religious persecution as he had converted to Christianity while
overseas. His claim was denied based on the Board’s assessment of his degree
of commitment to Christianity. In quashing that decision, Justice Rouleau stated
at para 18:
With respect, the
panel is mistaken. The question is not whether the applicant is so deeply
committed to Christianity that he would, if he were to return to Iran, practice that religion there at risk of receiving the attention of the authorities. Rather,
the central issue to the well-foundedness of the applicant's fear of
persecution on religious grounds is the fact of his conversion to Christianity
and the attitude of the Iranian government, the putative persecutor, should his
conversion come to be known to the Iranian authorities. Indeed, the
consequences for the applicant, if his conversion to the Christian faith
were known by the Iranian authorities, are very serious. The documentary
evidence tendered at the hearing makes it very clear that apostasy is a serious
crime in Iran and may be punishable by death. The CRDD panel utterly failed to
address this question and does not seem even to have recognized that the
problem existed in Iran. In my view, the panel clearly exaggerated the import
of a few apparent implausibilities which it succeeded in detecting in the
testimony of the applicant, and this caused it to forget the substance of the
facts on which the applicant based his claim. Consequently, the panel erred in
failing to ask itself a question that was crucial to the decision that it
reached. (emphasis added)
[10]
Justice Rouleau, correctly in my view, held that
the real question to be asked when assessing whether that applicant’s
subjective fear was well-founded, is to ask what will happen if his conversion
is discovered in Iran. It is not to ask whether it is likely that his
conversion will be discovered.
[11]
A similar result was reached by Justice Gibson
in AB where the applicant had rejected Islam after leaving Iran. Justice Gibson held that the proper question was to ask what was the risk of
persecution from the Government of Iran “should” it become aware of his
rejection of Islam. Justice Gibson went on to explain that:
“Even assuming
that an individual who has rejected Islam, if required to return to Iran, will
remain discreetly silent on that rejection, I am satisfied that he or she may
well remain at risk of persecution if the circumstances are such that his or
her rejection of Islam might come to the attention of state authorities.
That risk was simply not addressed by the Officer on the facts of this matter”
(emphasis original).
[12]
In both of these decisions, the Court properly says
that in assessing the objective element of the applicant’s subjective fear, one
asks what objectively will happen if the situation becomes known; one
does not ask whether it is likely that the situation will become known.
Contrary to the submissions of the Respondent, I am of the view that this
inquiry fully accords with the decision of the Court of Appeal in Adjei v Canada (Minister of Employment and Immigration), [1989] 2 FC 680 [Adjei], which
I note was decided prior to both Sadeghi and AB.
[13]
In Adjei, the Court of Appeal stated that
the issue related “to the well-foundedness of any subjective fear, the
so-called objective element, which requires that the refugee’s fear be
evaluated objectively to determine if there is a valid basis for that fear.” In
other words, is the subjective fear irrational because there is no valid basis
for it?
[14]
From this perspective, it is irrelevant how
likely or unlikely it is that the facts on which the persecution is based,
would become known to the agents of persecution. In fact, any analysis on the
part of the Board on this question would largely be an exercise in speculation,
absent a finding on the evidence that it would never become known. It is also
easy to imagine situations where there may be grave consequences for people
with certain immutable characteristics, but who may not be easily discovered
(homosexuals in Uganda for example). Are those claimants any less entitled to
protection because the Board speculates that there is a low probability of that
characteristic being discovered? This Court has consistently said that such
individuals are entitled to protection if they prove that their subjective fear
of persecution is objectively affirmed by showing that persecution is a real
risk if their identity becomes known.
[15]
In this case, the fear of Mr. Sheikh is not that
his conduct vis-à-vis his wife will become known, it is that if it
becomes known, then he will be at risk of persecution. The Board
accepted that there is such a risk in Pakistan, but regrettably improperly
assessed the likelihood that the feared persecution would be experienced. At
the hearing, counsel for the Minister conceded that the Board found that Mr.
Sheikh had good grounds to fear persecution if his conduct was discovered. To
use the words of the Supreme Court in Chan v Canada (Minister of Employment
and Immigration), [1995] 3 S.C.R. 593 at para 120, there was a determination “that
there is more than a ‘mere possibility’ of persecution” and accordingly, the
refugee claim ought to have been allowed.
[16]
The Board’s decision is unreasonable and is
quashed.
[17]
No question was proposed for certification by
either party.
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