Date: 19981030
Docket: IMM-5171-97
BETWEEN:
AMAN KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL J.
[1] In its decision of November 18, 1997, the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) found the applicant not to be a Convention refugee on the basis that, even though it was proved that as an active member of the Pakistan Muslim League (PML) in 1995 he suffered political persecution because of a change in government, at the time of the hearing this threat no longer existed. The applicant argues that this finding disregards current personal information, is made on outdated information, and is made without regard to the evidence of current country conditions on the tribunal record, and is, therefore, made in reviewable error.
A. Uncontested Facts
[2] The applicant, a citizen of Pakistan who resided in Ghour Ghusti, Punjab until fleeing Pakistan in 1996, arrived in Canada in May 1996 when he made a claim for Convention refugee status based on a well-founded fear of persecution due to his political opinion.
[3] In Pakistan, the applicant joined the PML in 1990, and in 1995 was appointed the party"s secretary for his village where he worked for the party and recruited members.
[4] One night in April 1995, the applicant was beaten by four men and told to quit the PML. The following day he was arrested for allegedly fighting with PPP supporters; his cousin gave the police 8,000 rupees in order to free him.
[5] In September 1995, a fire was set to the water power authority complex in the applicant"s village. The next day police arrested the applicant, beat him and accused him of setting the fire. The police claimed to have a warrant for his arrest, but did not show it to him. Three days later, the applicant was released, after paying a bribe of 15,000 rupees. The applicant continued thereafter to work for the PML and claims to have received death threats for his continued activity with that group.
[6] In December 1995, a hotel in the city of Attock was bombed. The following day, police came to the applicant"s house. The applicant was not home at the time, but a warrant for his arrest was shown to his family members. The arrest warrant indicated that the applicant was charged with direct involvement with the bombing.
[7] Upon learning of the arrest warrant, the applicant left for Karachi that evening. His cousin contacted an agent who arranged for the claimant"s flight to Singapore and a job working on a ship. After travelling to South Africa and Japan, the applicant arrived in Canada where he made a claim to Convention refugee status.
[8] The applicant claims that the arrest warrant is valid throughout Pakistan. He claims that his brother approached a lawyer asking him to take on the applicant"s case but the lawyer refused stating that many lawyers had been killed for taking on such cases. The applicant fears that he will not get a fair trial in Pakistan. He also states that he is fearful of the police, as he does not know whether they are siding with the PPP or the PML.
B. The CRDD decision
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[9] Relating to the applicant"s objections, a critical portion of the CRDD"s decision is as follows: ... |
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The panel accepts that the claimant was beaten by PPP supporters once and received threats, that he was arrested and beaten by police on the PPP's instigation and that he was charged on two occasions with burning down a building and setting up a bomb explosion (the claimant asserted that he is innocent).[R-l, Country Reports on Human Rights Practices for 1996, Department of State, P1469.] The question before the panel is whether his fear of persecution by PPP members and the police is well-founded. |
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The panel notes that the PPP is no longer in power. In elections this year the PML won an overwhelming victory and the PPP was trounced both at the national and the provincial levels. In the claimant's district, the national seat was won by PML's Sheikh Aftab Ahmed and the provincial seat by Khanzada Taj Mohammed Khan. The PML victory in the provincial and federal elections in Pakistan this year followed robust electioneering by all the parties. Despite some violence there are no reports that members of any political party were kept out of fear from participating actively in the election campaign. There are no reports of persecution of PML members by the PPP following the election. Though the letter from Ahsan Khan told the claimant that PML party executives are being killed, this is not borne out by reports from Pakistan.[3 R- I, Profile of Asylum Seekers, U.S. Department of State, June 1996, Pages 14-15.] Ahsan Khan mentioned the killing of one PML leader of his area. There is no evidence that this is anything other than a part of the general violence in the country. Given that the PPP was trounced in the elections, the panel considers that the claimant's fear of PPP members is not well-founded. |
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As to persecution by the police, the documentary evidence is that the ruling party uses the police and other instruments to harass, intimidate and threaten opponents. This includes being jailed on trumped up charges. The panel accepts that the police victimized the claimant at the instigation of the ruling PPP and that the arrest warrant against him may have been politically motivated. The panel finds that the police in Pakistan today would side with the party in power against its opponents. The panel finds that the claimant's fear of the police is not well-founded. The claimant and counsel stated that there is uncertainty and escalating violence in Pakistan and that the change there is not durable [C7, Supplementary documentary evidence on the conditions in Pakistan at present]. The panel accepts that there is uncertainty and violence in Pakistan. But this year's election has removed the agents of the claimant's persecution from power. The massive PML majority in Parliament has stripped the President of his power to dissolve the government, which he had used to oust the last PPP and PML governments. |
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The panel found that the claimant did not establish clear and convincing evidence of the lack of state protection in Pakistan. The panel finds that the claimant's agents of persecution no longer have the capacity (in the case of the PPP) or the motivation (in the police's case) to persecute the claimant. Secondly, the PML is in power both federally and provincially and the panel finds that it will use its power, as it has and the PPP has when they were in power, to shield its supporters and to threaten or victimize its opponents [R-2, Response to Information Request, PAK16306.E, January 25, 1994]. The panel finds no reason to believe that the situation will be different in the claimant's case. The panel is aware that Pakistan is gripped by sectarian and political violence and crime. While the level of such violence has fluctuated, it has been a feature of life in Pakistan for at least a decade no matter which government has been in power. But this has been a situation for all Pakistanis, particularly for those active politically or in the field of religion. Akram Khan, president of the PML in the claimant's district, and Ahsan Khan, the Union Council chairman in the claimant's district and a PML leader, who are similarly situated as the claimant, have been living in the claimant's region without harm. The claimant's assertion that the president of the PML of his district was a "high-up" and beyond the reach of the PPP or police while the claimant, as secretary of the same party, was vulnerable to their abuse is implausible. The panel finds that while the protection is not airtight, it is available to the claimant [R-2, U. S. Department of State, March 1997] as a citizen and more so to the claimant as a worker of the governing party....
C. The applicant"s principal objections
1. Disregard for current personal information
[10] As current evidence of the applicant"s risk of persecution were he to return to Pakistan, the CRDD received letters from the applicant"s mother and friends Akram Kahn and Ahsan Khan, who are PML leaders in the applicant"s village. About these letters, the CRDD commented, in part, that they "state that conditions are not good in the area; Aijaz Khan, a former PML president in the claimant"s area, had been assassinated; the police are still looking for the claimant, and he should not return to Pakistan".1
[11] The only precise finding respecting the weight to be given to these letters, as quoted above, is contained in the passage "[t]hough the letter from Ahsan Khan told the claimant that PML party executives are being killed, this is not borne out by reports from Pakistan.[R-1, Profile of Asylum Seekers, U.S. Department of State, June 1996, Pages 14-15.]".
[12] It is important to note that Ahsan Khan"s letter is dated August 27, 1997 2 and the information used to refute it is dated June, 1996. In my opinion, the statements in the letter cannot be refuted by simply footnoting a document which predates it. In my opinion, the applicant is entitled to an analysis of why the evidence he has tendered is given no weight. I find that not to do so amounts to disregarding important evidence for no reason.
2.Use of outdated information
[13] As quoted above, the CRDD make the following central finding: The panel found that the claimant did not establish clear and convincing evidence of the lack of state protection in Pakistan. The panel finds that the claimant's agents of persecution no longer have the capacity (in the case of the PPP) or the motivation (in the police's case) to persecute the claimant. Secondly, the PML is in power both federally and provincially and the panel finds that it will use its power, as it has and the PPP has when they were in power, to shield its supporters and to threaten or victimize its opponents [R-2, Response to Information Request, PAK16306.E, January 25, 1994]
[14] This finding expresses a general opinion that in Pakistan, just because the government changes, the actions of all the operatives within the apparatus of the state also change. I find that such an opinion is speculation unless it can be proven.
[15] It was agreed during the hearing that the change in government found to be so important by the CRDD occurred on February 3, 1997. Given that the date of the reference to support the opinion expressed predates this by four years, it appears to be with regard to the situation that prevailed when the PPP was previously in power. It is also engaging in speculation to transfer information from one period in time to another, and to rely upon it to make global assertions about present conditions, without precise reasons being given for why it is accurate and credible to do so. There being no such reasons, I find that the unsupported opinion expressed by the CRDD is speculation.
3. Disregard for evidence
[16] To prove country conditions generally, and that even with the PML in power there is a reasonably foreseeable possibility that the applicant will suffer persecution if he returns to Pakistan, the tribunal record contains some 189 information documents filed by the applicant"s counsel, Mr. Birginder P.S. Mangat. Given the failure of the CRDD to refer to any of this evidence in its decision, Mr. Mangat argues that the decision respecting country conditions was made without regard to this evidence.3
[17] There is ample evidence on the record to prove that, after the PML was elected, PML officials were, nevertheless, subject to political violence.4 On this issue, as quoted above, the CRDD simply said "[t]he panel finds that while the protection is not airtight, it is available to the claimant [R-2, U. S. Department of State, March 1997] as a citizen and more so to the claimant as a worker of the governing party". In the tribunal record, the R-2 document referred to is found at page 101 and is entitled "Pakistan National Issue Package, March 1997", and cites 33 separate articles about country conditions in Pakistan. Within the decision there is no precise reference to the actual documentation considered in reaching the opinion. There is also no analysis as to why the applicant"s documentation should be given little or no weight.
[18] Therefore, while on principle I can assume that in good faith the CRDD considered the evidence produced, given the general, cursory, and unsubstantiated nature of the CRDD"s reasons, I have a serious doubt as to whether, in fact, the applicant"s evidence was considered. In fairness to the applicant, this doubt must be resolved in his favour.
D. Relief
[19] In my opinion, the errors identified constitute reviewable error, and, accordingly, I set the decision of the CRDD aside and refer this matter to a differently constituted panel for redetermination. However, in this respect, I direct that the redetermination be on the basis of the record produced in the hearing under review, and that the uncontested finding of the CRDD that the applicant suffered political persecution prior to the PML coming to power in the election of February 3, 1997, and in particular that "the police victimized the claimant at the instigation of the ruing PPP and that the arrest warrant against him may have been politically motivated"5 be accepted as established facts. Therefore, I direct that the focus of the redetermination be on the evidence of change in country conditions after the election.
OTTAWA, Ontario
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1 Tribunal Record, p.5.
2 Tribunal Record, p.42.
3 During the hearing, Mr. Mangat advised that, given the large number of Convention refugee cases arising from Pakistan at the time the CRDD made its decision, in order to prove country conditions in each in a efficient manner, his practice was to file an original copy of the information material with the CRDD to be used in all cases, and then in each case to file an index referring to this material. This practice was accepted by the CRDD in this case. The index in this case appears at page 56 of the Tribunal Record.
4 The documents cited in the index filed with the CRDD and contained in the Applicant"s Record at the noted pages are as follows: "PML leader shot dead, Document 2.68, p.94; "PML man escapes kidnap attempt", Document 2.60, p.97; "Lahore: PML leader, friend shot dead", Document 2.31, p.102.
5 Tribunal Record, p.6.
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