Date: 20030225
Docket: IMM-3548-02
Ottawa, Ontario, the 25th day of February 2003
Present: the Honourable Mr. Justice Pinard
Between:
NAEEM JAWAID
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division dated
June 20, 2002, determining that the applicant is not a refugee within the meaning of the Convention is allowed. The matter is referred back to the Refugee Division for a redetermination by a differently constituted panel.
"Yvon Pinard"
JUDGE
Certified true translation
Mary Jo Egan, LLB
Date: 20030225
Docket: IMM-3548-02
Neutral Citation: 2003 FCT 220
Between:
NAEEM JAWAID
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision of the Refugee Division, dated June 20, 2002, determining that the applicant is not a Convention refugee, as defined in subsection 2(1) of the Immigration Act, R.S.C., (1985), c. I-2.
The applicant, Naeem Jawaid, is a citizen of Pakistan. He is claiming refugee status based on his conversion from the Sunnite religion to the Shi'ite religion.
The applicant alleges that he was beaten several times by former co-religionists because of his conversion to Shi'ite Islam. The applicant also alleges that he was detained and beaten by police in Karachi for ten days, and that he was accused of being a Shi'ite agent and a sympathizer of Sipah-e-Muhammad, a political party affiliated with the Shi'ites.
This is a case where the applicant has persuaded me that the Refugee Division failed to adequately consider the evidence before it. In fact, both at the hearing before the panel and in his response to question 37 in his Personal Information Form, the applicant expressed his fear of being perceived as a sympathizer of Sipah-e-Muhammad or a person associated with that group; in addition, the applicant submitted documentary evidence to the effect that he was a defector.
It appears that the Refugee Division based its decision solely on the documentary evidence about conditions in the country of origin, particularly on the evidence about the general status of Shi'ite Muslims. The panel did not deal with the fact that the police suspected the applicant was a member of the Sipah-e-Muhammad, or the specific circumstances of a person who has converted from the Sunnite religion to the Shi'ite religion. Since those issues were linked to the very basis of the applicant's fear, I am of the view that the Refugee Division particularly erred in failing to consider them.
Under the circumstances, I am also of the view that the Refugee Division erred in failing to give reasons for preferring the only documentary evidence that it considered over the applicant's testimony. In Okyere-Akosah v. Canada (M.E.I.) (1992), 157 N.R. 387, at page 389, the Federal Court of Appeal stated:
. . . Since there is a presumption as to the truth of the appellant's testimony, the Board was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the appellant's testimonial evidence. . . .
Given that the fear alleged by the applicant is based on his conversion from the Sunnite religion to the Shi'ite religion, and not merely on the fact of being a Shi'ite, the Refugee Division should have done a more thorough analysis of his story. The documentary evidence on which the Refugee Division based its decision does not deal directly with the circumstances in which the applicant found himself: therefore, it does not necessarily contradict his testimony. It is not sufficient to state that the applicant "simply does not fit the profile of someone who might be at risk"without examining the risk to which he states he was in fact exposed. Therefore, the Refugee Division also erred in preferring the documentary evidence about general conditions in Pakistan without clearly explaining why it rejected the evidence about the particular circumstances of the applicant and without mentioning in particular Exhibit A-6, which refers specifically to the difficult situation of defectors (page 170 of the tribunal record).
Since the intervention of this Court is warranted, the application for judicial review is allowed, and the matter is referred back to the Refugee Division for redetermination by a differently constituted panel.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
February 25, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3548-02
STYLE OF CAUSE: NAEEM JAWAID v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 14, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: February 25, 2003
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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