Date: 20050412
Docket: IMM-4053-04
Citation: 2005 FC 496
Toronto, Ontario, April 12th, 2005
Present: The Honourable Mr. Justice Strayer
BETWEEN:
MOHAMMAD TARIQ SAEED, ROBINA TARIQ,
MOHAMMAD SALMAN TARIQ,
MOHAMMAD REHMAN TARIQ and
IQRA IQBAL TARIQ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants are a husband and wife, two adult children and their one minor child. They seek to set aside a decision of the Refugee Protection Division ("RPD") of the Immigration and Refugee Board ("Board") dated April 2, 2004, refusing their claim for refugee status or the status of persons requiring protection. They are citizens of Pakistan and assert that they fear persecution in Pakistan if they are forced to return there.
[2] The husband Mohammed Tariq Saeed is a Shia Muslim. In 1982 he married Robina whose family are Sunni Muslims. Prior to the marriage Robina promised her parents that she would persuade her husband to convert to the Sunni sect. After the marriage he declined to do so and instead persuaded her to convert to the Shia sect. According to the claimants this resulted in great tension between this couple and Robina's brother who is an activist in an extremist Sunni organization. According to the claimant Mohammed Tariq Saeed, he and his father were at various times assaulted by his brother in law and his family was threatened. He left for the United States in 1992 where his family joined him in 1996. They resided in United States illegally until 2003 when they sought refugee status and protection in Canada.
[3] The claimants essentially are asking me to weigh the evidence differently from the way it was weighed by the Board, and thus come up with a different factual conclusion that there is a probability or at least there is a reasonable chance of persecution should they be sent back to Pakistan.
[4] The Board made two findings: that the evidence of the principal claimant was not credible; and that, given the changes in Pakistan since the claimant left in 1992, state protection exists for him and his family should they return there.
[5] The claimants point to particular errors in the Board's findings of fact. The Board concluded they did not have problems in Lahore but did not specify what period was being discussed. It is true that there was some evidence to this effect concerning the period of 1992 to 1996, after the principal claimant had gone to the United States, but he had also stated that they had serious problems in Lahore between 1989 and 1992, having moved there from Karachi. The Board wrongly stated that the family had been in Karachi for the whole of the period 1985 to 1992. It is also argued that the Board misconceived the special nature of this marriage. The Board seemed to treat it as simply a mixed marriage between a Shia and a Sunni of a kind which, according to some documentary evidence, is not uncommon in Pakistan and is relatively successful. The Board did not have regard to the important fact that the bride's parents had consented only on condition that she convert her husband to the Sunni sect and in fact the opposite occurred. Counsel for the claimants argued that this made the mixed marriage an affair of honour which would more likely attract vicious if not lethal retribution from the wife's family.
[6] While these criticisms may be legitimate I do not think that they are fatal to the decision. There was considerable evidence upon which the Board could conclude that the claimants have no serious fear of return and that they would have state protection if they do return. The claimants had been in United States for years (he for 11 years and the remainder of the family for 7 years) without making any claim there for asylum. This could weigh heavily with the Board in concluding that the claimants were not in constant fear of a return to Pakistan, considering that they had no legal status to remain in the United States. Further, the claimant Robina Tariq returned to Pakistan twice after 1996 and did so without any problems. As pointed out by counsel for the Respondent, the Handbook of the United Nations High Commissioner for Refugees at paragraph 118 states clearly that a refugee who voluntarily re-avails herself of the national protection of her country is no longer in need of international protection. In addition to these important factors weighing against a credible fear of persecution, the Board had evidence upon which it could find that they would probably receive national protection by their own country. Documentary material before the Board showed that in recent years the government of Pakistan has banned sectarian groups such as the one to which the brother-in-law belongs and has taken action through the police and the army to suppress sectarian violence. The Board is entitled to presume that a state is able to protect its nationals and the burden of proof to the contrary is on the claimant: see, Canada v. Ward [1993] 2 S.C.R. 689 at 726; M.E.I. v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (FCA). While the claimants have provided some evidence of their problems in the period from 1982 to 1992, and in certain respects the Board appears to have overlooked that evidence, it was open to the Board to find that in the past several years conditions have changed for the better in the matter of sectarian violence. The Board could take into the account, in this connection, the fact that the wife had safely returned to Pakistan on two occasions after 1996.
[7] Looking at the evidence as a whole, I am not able to say that the Board reached its conclusions in a perverse or capricious matter or without regard for the material before it. Nor do I think that the claimants have demonstrated any error of law.
[8] Therefore I will dismiss the Application for Judicial Review.
ORDER
THIS COURT ORDERS that the Application for Judicial Review is dismissed.
"B.L. Strayer"
D.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4053-04
STYLE OF CAUSE: MOHAMMAD TARIQ SAEED, ROBINA TARIQ,
MOHAMMAD SALMAN TARIQ, MOHAMMAD
REHMAN TARIQ and IQRA IQBAL TARIQ
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: APRIL 11, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: STRAYER J.
DATED: APRIL 12, 2005
APPEARANCES BY:
John Savaglio FOR THE APPLICANTS
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Savaglio
Barrister & Solicitor
Pickering, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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