Date: 20041223
Docket: IMM-9276-03
Citation: 2004 FC 1773
BETWEEN:
KHAN Shamshair
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 12, 2003, wherein the Board found the applicant not to be a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicant is a citizen of Pakistan and is a Shia Muslim. He alleges a well-founded fear of persecution based on his religious beliefs.
[3] The Board denied the applicant's claim for refugee status because it found that an Internal Flight Alternative exists and the applicant would be able to seek state protection.
[4] I consider this a case where the applicant has rebutted the presumption that the Board considered all of the evidence before it. Indeed, having expressly found the applicant to be credible, the Board did not even mention one single piece of the documentary evidence submitted by the latter, namely exhibits P1, P3 and P7, which are reports and documents much less positive, concerning country conditions in Pakistan, than the sole UK Country Assessment for Pakistan, April 2003, relied upon by the Board.
[5] Upon reviewing all the documentary evidence, I find that the Board omitted to examine the most recent documentation of country conditions in Pakistan and that it failed to consider a 33-page report by Amnesty International which includes an in-depth investigation conducted by this organization. The aforementioned documents submitted by the applicant generally paint a less positive picture of the state protection for the Shia minority in Pakistan than the Board has presented in its analysis.
[6] Given these special circumstances, I am of the view that the Board ought to have specifically referred to the documentary evidence submitted by a credible applicant and given explicit reasons for preferring the limited documentary evidence (exhibit A-4) it relied upon (see, for example, Okyere-Akosah v. Canada (M.E.I.) (1992), 157 N.R. 387 (F.C.A.) and Canada (M.C.I.) v. Sahin (1994), 87 F.T.R. 19).
[7] Consequently, the application for judicial review is granted and the matter is sent back for reconsideration by a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
JUDGE
OTTAWA, ONTARIO
December 23, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9276-03
STYLE OF CAUSE: KHAN Shamshair v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 24, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: December 23, 2004
APPEARANCES:
Me Styliani Markaki FOR THE APPLICANT
Me Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Styliani Markaki FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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