Date: 20040920
Docket: IMM-5287-03
Citation: 2004 FC 1282
Ottawa, Ontario, this 20th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
MIAN MOHAMMED HANIF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a member of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated May 7, 2003 ("Decision") that dismissed the Refugee Claim of Mian Mohammed Hanif ("Applicant").
BACKGROUND
[2] The Applicant is a national of Pakistan and a Shia Muslim.
[3] He was extensively involved in welfare and charitable activities in his Shia Muslim community in Pakistan. Among other things, he served as Finance Secretary of his Imambargah Committee.
[4] As a result of his welfare and charitable activities and the discharge of his duties as Finance Secretary, the Applicant says he suffered extensive religious persecution in Pakistan. The persecution included: occasional verbal abuse and harassment; a telephone threat in September, 2000; three subsequent incidents of late-night vandalism; a beating in December, 2000; a telephone threat against his life on June 5, 2001; and the partial destruction of his place of business by arson.
[5] He reported most of the incidents to the police, but to no avail. The police ultimately advised him to take whatever precautions he deemed necessary to protect himself. The Applicant says that, on one occasion, when he and Shia colleagues turned to the police for assistance, they were threatened with arrest.
[6] The Applicant says that he fears he will be killed by members of the Sipah-i-Sahaba (S.S.P.) and/or related Sunni militant organizations should he return to Pakistan. He also believes he will no longer be able to freely, fully and safely worship as a Shia Muslim for fear he will be killed by Sunni militants.
DECISION UNDER REVIEW
[7] In a Notice of Decision dated May 22, 2003, the Board found that the Applicant did not have the profile of someone at high risk in Pakistan. The Board noted that the Applicant's position as a Financial Secretary of his Imambargah (a Shia place of worship) would not lead him to be targeted for special attention by the S.S.P.
[8] The Board did not accept the Applicant's explanation that the In Charge of his Imambargah was not at the same level of risk as the Applicant because the In Charge worked inside the Imambargah. In fact, the Board found that the In Charge could be seen as a similarly situated person to the Applicant. The Member then reasoned that since a similarly situated person had been able to remain in Pakistan, and the Applicant's profile did not put him at added risk, the Applicant would not be targeted if he were to return to Pakistan.
[9] The Board noted that the Musharraf government had implemented initiatives that would provide adequate but not necessarily perfect protection for someone in the Applicant's position. The Board also found that since the incidents of persecution inflicted upon the Applicant were not of a degree that could be characterized as atrocious and appalling, there was no compelling reason to allow the Applicant to stay in Canada.
[10] The Board did concede that recent documentary evidence indicated that there are significant problems in Pakistan, including the fact that police lack professionalism, police corruption exists and police do not always take appropriate action to deal with disputes. The Board noted that despite the fact that problems have occurred while the Musharraf regime has been in power, the frequency of incidents of sectarian violence has been falling in recent years, and the Musharraf regime has not hesitated to use the army to deal with sectarian violence. In sum, the Board concluded that the documentary evidence indicates that the Pakistani state is making serious efforts to deal with the problems that affected the Applicant.
ISSUES
[11] The Applicant raises the following issues:
Did the Board err in law by ignoring or misinterpreting evidence properly before it?
Did the Board make patently unreasonable findings of fact or base its decision on findings of fact made in a perverse and capricious manner without regard for the material properly before it?
Did the Board misapply and/or misconstrue the definition of Convention refugee, thereby erring in law?
If the Board's errors viewed separately were not reviewable errors of law, then did the cumulative effect of these errors amount to an error of law?
ARGUMENTS
Applicant
Adequate State Protection
[12] The Applicant submits that the Board's finding that adequate state protection exists in Pakistan in light of the ban of the S.S.P. in January of 2002, and other action taken by President Musharraf, was based on evidence that was clearly contradictory and inconclusive in nature.
[13] The Board's assessment of state protection was based on a selective and self-serving review of the documentary evidence on the record. Indeed, the same document entitled "RIR PAK 37965.E" cited by the Board also notes the following:
There is no way one can conceive that the Musharraf government will tackle [the extremist agenda of the Pakistani state.] The state must reach its terminal stage, like the state created by Mullah Omar [former Taliban of Afghanistan] (Jan. 2002, 52).
The same item goes on to note as follows:
Since the beginning of February 2002, the "campaign against the militants has slowed" (Washington Post 18 Feb. 2002). Accordingly, "some in Pakistan suspect that despite hundreds of reported arrests, [Musharraf's] crackdown has not been uncompromising, that many of the militants have been allowed to remain free in exchange for lying low.
Finally, the item then describes the difficulties that lie ahead:
Observers also foresee difficulties for Musharraf in delivering on his promises because "he has to work through a bureaucracy and judiciary that is riddled with the kind of fundamentalists he is trying to curb" (The Herald Feb. 2002a, 39). In effect, he is attempting to "upend more than 25 years of power gains by Islamic fundamentalists... and bluntly challenging the moral and political power of mullahs even as militant Islam is rising in popularity in the region" (Washington Post 20 Jan. 2002). According to the Washington Post Musharraf now faces the beginnings of a potentially ugly internal conflict that, unlike those he just fought against the Taliban and its extremist allies in Pakistan, might cripple him or at least constrain his campaign against terrorism.... But the political transition could overlay the battle Musharraf has declared between a moderate Muslim state and religious extremism with a more familiar contest between the Pakistani military and civilian elites - and give the embattled extremists a crucial respite (18 Feb. 2002).
[14] The Applicant also points to a further item of documentary evidence on the record (Dawn Internet - 20 July 2002), which indicates that, despite the ban of the S.S.P. in January of 2002, a convicted blasphemer was murdered in jail by an S.S.P. activist.
[15] On top of this, the same U.S. Department of State Report, Pakistan Country Report, 2001, released March 4, 2002, upon which the Board relied in part, indicates as follows:
(i) The government's human rights record remained poor; although there were some improvements in a few areas, particularly with regard to protection of religious minorities from intimidation from extremists, serious problems remained. (page 1 of 37);
(ii) Police committed extrajudicial killings. (page 2 of 37);
(iii) Police professionalism is low. (page 3 of 37);
(iv) The judiciary has argued that it had failed to try and convict terrorist suspects in a timely manner because of poor police casework, prosecutorial negligence, and the resulting lack of evidence. In response to this problem, the Anti-Terrorist Act was passed; special antiterrorist courts began operations in 1997. The antiterrorist courts, designed for the speedy punishment of terrorist suspects, have special streamlined procedures; however, due to the continued intimidation of witnesses, police, and judges, the courts initially produced only a handful of convictions...
On June 20, the Musharraf Government approved an amendment to the Anti-Terrorist Act. The new ordinance defines terrorism as "the use or threat of action where the use, or threatened use, is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; and the use or threat is made for the purpose of advancing a political, religious, ideological, or ethnic cause."
Leading members of the judiciary, human rights groups, the press, and politicians from a number of parties expressed strong reservations about the antiterrorist courts, charging that they constitute a parallel judicial system and could be used as tools of political repression. Government officials and police believed that the deterrent effect of the Act's death penalty provisions contributed to the reduction of sectarian violence after its passage. ..." (page 11 of 37)
(v) Reprisals and threats of reprisals against suspected converts are common. Members of religious minorities are subject to violence and harassment, and police at times refuse to prevent such actions or to charge persons who commit them." (page 17 of 37)
(vi)(vi) Discriminatory religious legislation has added to an atmosphere of religious intolerance, which has led to acts of violence directed against minority Muslim sects, as well as against Christians, Hindus, and members of Muslim offshoot sects, such as Ahmadis and Zikris (see Section 5). The Government does not encourage sectarian violence; however, there were instances in which the Government failed to intervene in cases of societal violence directed at minority religious groups. The lack of an adequate government response contributed to an atmosphere of impunity for acts of violence and intimidation committed against religious minorities. Parties and groups with religious affiliations target minority groups." (page 19 of 37)
(vii) Sectarian violence and tensions continued to be a serious problem throughout the country (see Section 5). More than 300 persons died in incidents of sectarian violence in Punjab in the last 4 years, according to one credible newspaper report. Another newspaper reported that more than 2,000 persons have died in sectarian violence since 1981. Sectarian violence, which had decreased markedly after the October 1999 coup, rose steadily during the first 9 months of the year, but decreased again after September 11...
Antiterrorist courts also handed down convictions against several individuals accused of sectarian violence. In April 2000, an antiterrorist court in Rawalpindi sentenced 23 persons to life imprisonment for their role in leading a procession of persons that burned a Shi'a mosque in 1996. In July 2000, an antiterrorist court in Gujranwala convicted 2 men for reportedly killing a Shi'a senior police officer; however, the men later were released. (page 20 of 37)
(viii) Antiterrorist courts handed down convictions against several individuals accused of sectarian violence during the year; however, government authorities did not detain suspects in many other cases of sectarian violence. (page 30 of 37)
[16] The Applicant further points out that the same U.K. Home Office Report-Pakistan Assessment, April 2002 Report, upon which the Board relies in part, indicates as follows:
(i) 4.17... Despite the Government's pledge to respect the independence of the judicial system, it has taken steps to control the judiciary and to remove the Government from judicial oversight... The decree effectively removed the actions of the Musharraf Government from judicial oversight. President Musharraf further undermined the independence of the judiciary when he ordered that all Supreme Court, Shari'a Court, and Provincial High Court justices take an oath to uphold the PCO that brought the military into power. Low salaries, inadequate resources, heavy workloads, corruption and intimidation by political and religious pressure groups contributed to judicial inefficiency, particularly in the lower Courts.[2b] (page 14 of 65)
(ii) 4.18 The judicial process continues to be impeded by bureaucratic infighting, inactivity, and the overlapping jurisdictions of the different court systems. Unfilled judgeships, and inefficient court procedures cause severe delays. The higher level judiciary is considered competent and generally honest, but there were widespread reports of corruption among lower level magistrates and minor court officials.[2b] (page 14 of 65)
(iii) 4.21 In February 2002 new legislation was introduced to establish anti-terrorism courts headed by a panel of three made up of a High Court or Sessions Court judge, a magistrate and high-ranking military officer. [35ao] A spokesman for the Human Rights Commission of Pakistan criticised the move saying that the inclusion of a military officer will dilute the strength of the judiciary.[41b] (page 15 of 65)
(iv) 4.30 During 2001 fewer killings amongst rival political factions were reported than in previous years, however there was in increase in violence and killings between rival religious sects. [2b]
Punjab
4.31 The province of Punjab has also been affected by sectarian violence. Armed militants have been active in many of Punjab's towns with large numbers of deaths as a result of clashes between Sunni and Shia extremist groups.[5a]" (page 16 of 65)
(v) 4.50 When blasphemy and other religious cases are brought to court extremists often pack the courtroom and make public threats about the consequences of an acquittal. As a result judges and magistrates often continue trials indefinitely and the accused is burdened with further legal costs and court appearances. Many judges also try to pass such cases to other jurists. [2b] In February 2001 a group of religious political parties threatened to carry out their own punishment if those responsible for the publication of a letter deemed to be blasphemous were not severely punished. The letter had appeared in the daily Frontier Post publication. [39] (page 19 of 65)
(vi) 4.51 Administrative changes have nonetheless been made to the procedure for filing blasphemy charges so that there must be a judicial review of evidence before charges are laid. Also if a blasphemy charge is found to be baseless, counter-charges will be laid against the complainant who would face a penalty of up to ten years in prison. [12d]The current regime abandoned initial plans to change the way blasphemy cases are registered after a number of Islamic organisations threatened to hold protest demonstrations. Pakistan's Human Rights Commission reacted strongly to the climb-down by the military. The Christian Liberation Front also believed that this was evidence of the incapability of the military regime to introduce a relatively minor measure (which they considered inadequate) concerning the blasphemy law.[35g] (page 20 of 65)
(vii) 4.52 According to Amnesty International the Blasphemy Law has been used over the years to harass, intimidate and punish mostly members of religious minorities such as Ahmadis and Christians as well as Muslims who advocate novel ideas. Ahmadis can be charged under this law for calling themselves Muslims; Christians complain that the legislation is abused and lays them open to false charges aimed at extortion or stealing land.[20a] According to an Asian Human Rights Commission publication the judgements of the superior courts have proved that the blasphemy law is being abused and used as a tool to settle personal scores as well as for religious persecution.[36] (page 20 of 65)
(viii) Police
5.6 Police corruption is reported to be widespread. The US State Department reports that police have committed numerous extra-judicial killings yet states that there were fewer such killings in 2000 than in 1999. Police have also abused and raped citizens. While the officers responsible for such abuses were sometimes transferred or suspended for their actions, no officer has been convicted and very few have been arrested. In Karachi there were signs of progress in redressing police excesses, however in general police continue to commit serious abuses with impunity. [2b]
5.7 According to the Society for Human Rights and Prisoner's Aid (SHARP), a local NGO, 43 deaths due to police torture were reported during the 2001. Amnesty International estimates that at least 100 persons die from police torture each year. In addition to killing suspects to prevent them from implicating the police in court, police reportedly killed suspected criminals to circumvent or overcome insufficient evidence, witness intimidation, judicial corruption and sometimes, political pressure.[2b]
5.8 Police professionalism is low. The police view the killings of criminal suspects as appropriate given the lack of effective action by the judiciary against criminals. The judiciary in turn faults the police for presenting weak cases that do not stand up in court. [2b] In March 2001 for example an anti-terrorism court acquitted a former MQM politician and three other party activists who were accused of murdering a policeman during an ambush in July 1999. The judge also acquitted six accused who had absconded and cited improper investigation on the part of the police.[33q]" (page 25 of 65)
(ix) Torture
5.12 The suspended Constitution and the Penal Code expressly forbid torture and other cruel, inhuman or degrading treatment. Police however regularly torture and abuse people. Police routinely use force to elicit confessions, although there were fewer such reports during 2001. Human rights observers suggest that because of torture, suspects usually confess to crimes regardless of their actual culpability. The courts subsequently reject many such confessions.[2b]
5.13 Common methods of torture include beating, burning with cigarettes, whipping the soles of the feet, sexual assault, prolonged isolation, electric shock, denial of food or sleep, hanging upside down, forced spreading of the legs and public humiliation. Some magistrates reportedly help cover up the abuse by issuing investigation reports stating that victims died of natural causes. Amnesty International have estimated that at least 100 people die from police torture every year [2b]
5.14 It has been reported that the most frequent perpetrators of arbitrary detention and torture are the police. The Rangers and the national FIA (Federal Investigation Agency) have also reportedly engaged in such practices. To a lesser degree, non-state agents such as political parties or fundamentalists have also been reported as being responsible for torture. This may be for the purposes of intimidation or revenge attacks.[40]" (page 26 of 65)
[17] The Applicant's point is that considerable portions of the documentary evidence on the record contradict the Board's findings regarding the availability of state protection in Pakistan, and particularly the Board's findings concerning the adequacy and efficacy of the police force and the judicial system. Also, considerable portions of the documentary evidence clearly establish that the government and the state of Pakistan has been inconsistent, negligent, and/or ineffective in its approach to the ongoing problem of sectarian and religious violence in that country.
[18] The Applicant says that the Board's finding that adequate state protection now exists for him in Pakistan was both highly speculative and unduly optimistic. This is particularly so in light of the following: the contradictory documentary evidence on the record; the Board's own acknowledgement that sectarian violence continued to occur in Pakistan; indications in the very documentary evidence cited by the Board to the effect that the campaign against the militants had in fact "slowed"; and the cyclical and longstanding nature of the sectarian and religious violence in question.
[19] Against this background, the Applicant says that the Board's finding that adequate protection existed for Shias such as the applicant in Pakistan was less than reasonable.
[20] Yet another item of documentary evidence on the record, the Globe and Mail article by Geoffrey York, dated September 3, 2002, suggests that religious extremists are now acting with impunity in Pakistan:
A year after Sept. 11, the rhetoric of Pakistan's religious extremists is as fiery as ever. The spotlight of the Western media has shifted, but these leaders continue to plot victory. Their slogans are the same, their anger as intense, their anti-Western and pro-Taliban goals as steadfast as always...
Although Pakistan's military dictator, President Pervez Musharraf, changed the country's constitution last month to ensure that no civilian can seriously challenge his rule, Mr. Haq and the fundamentalists remain serious foes. Their religious parties are better organized than at any time in the past. And as the country prepares to go to the polls Oct. 10, they have forged an election alliance, putting them in a good position to exploit Pakistan's rising resentment of U.S. regional dominance...
But a year after Pakistan's military overcame the fundamentalists in a confrontation that raised fears of civil war, the extremists believe they have regained their position of backroom power...
Why else would Gen. Musharraf seem willing to co-operate with them -- a prospect that could enrage U.S. strategists who see their madrassas (religious schools) as breeding grounds for Islamic extremism and terrorism? In a country where several hundred people are facing the death penalty for alleged blasphemy against Islam, it is indeed clear that the fundamentalists have retained a huge amount of influence.
Gen. Musharraf has met the religious parties in his office, where he assured them that Pakistan will remain an Islamic state with an Islamic army. And despite heavy U.S. pressure to crack down on the madrassas, he has backed away from a tough plan to regulate the schools...
A year later, Gen. Musharraf is weaker and more isolated. His support is dwindling as ordinary people remain mired in joblessness and poverty, despite a sharp increase in U.S. financial aid since Sept. 11.
The military ruler has been forced to enter the unpredictable world of elections and domestic politics. It is a perilous field where he has already blundered by holding a rigged referendum to extend his rule, damaging his credibility and provoking sharp criticism from almost every corner of Pakistani society.
Meanwhile, he is under increasing U.S. pressure to broaden the antiterrorism campaign by cracking down on the Islamic fundamentalists who dominate the madrassas and the guerrilla campaign against Indian troops in Kashmir. But these groups are a key constituency that he will need in the elections, and they are important allies for the Pakistani army in the Kashmir crisis.
...
[21] The Applicant cites several reliable sources of objective evidence of the Pakistani government's ongoing inability and/or failure to deal adequately with the problem of sectarian violence and terrorism.
Breach of Natural Justice and Fairness
[22] The Applicant also points out that, in assessing the issue of state protection, the Board improperly relied upon "recent televised reports," evidence of which was not on the record. Natural justice and fairness require the Board to afford the Applicant an opportunity to review and address the evidence in such televised reports. The Board's failure to allow the Applicant such an opportunity was a reviewable error.
Patent Unreasonableness
[23] The Applicant says that recent documentary evidence on the record clearly indicates that the Pakistani state is effectively unable to provide adequate protection in cases of sectarian violence.
[24] The Applicant says that the Board's assessment of his claim was patently unreasonable, perverse, and based on a narrow-minded, self-serving and selective assessment of the documentary evidence, particularly with regard to actual and/or potential targets and victims of the S.S.P., a militant Sunni Muslim organization which, despite its ban by President Musharraf in January, 2002, has remained a going concern in Pakistan, and has continued its attacks, both random and targeted, on Shia Muslims such as the Applicant.
[25] It was patently unreasonable for the Board to find that the Applicant was in a position to reasonably expect adequate protection in Pakistan from the same authorities who denied him protection prior to his departure.
Profile
[26] The Applicant says that the fact that he may not fit squarely within the profile of those most at risk in Pakistan today does not necessarily mean his fear of persecution is not objectively well-founded. Indeed, the documentary evidence on the record at the hearing was replete with all manner of Shias, both active and inactive in their communities, who have fallen prey to sectarian attacks at the hands of the S.S.P. This victimization has continued, notwithstanding the ban on the S.S.P. imposed by the government.
[27] The Applicant says the Board unreasonably and capriciously dismissed the distinction between the Applicant and the "In Charge" of his Imambargah. Indeed, the Applicant testified that the In Charge was able to remain in Pakistan and was not at the same level of risk because, unlike the Applicant, this individual worked inside the Imambargah.
[28] The fact that the In Charge would generally be known in the community as a supporter of the Imambargah, as would the Applicant, did not reasonably lead to a conclusion that the Applicant and the In Charge were similarly situated, given the evidence on the record indicating that the Applicant had been involved in all manner of public activities, whereas the In Charge had worked inside the Imambargah.
[29] The Applicant says that the Board's finding that he lacked the profile to attract the attention of the S.S.P. was patently unreasonable, capricious and perverse.
Cumulative Effect
[30] If the Court is not persuaded that the issues raised by the Applicant individually amount to an error of law, then the Board's Decision ought to be set aside on the grounds that all the concerns cited by the Applicant, taken cumulatively, effectively amount to an error of law (Molina v. Canada (Minister of Manpower and Immigration) (1975), 12 N.R. 317 (F.C.) T.D.).
Respondent
Adequate State Protection
[31] The Respondent takes the position that the principal issue raised by the Applicant is whether the Board erred in concluding that adequate state protection is available to the Applicant in Pakistan. The Applicant argues that, in reaching its conclusion, the Board ignored evidence and was unduly selective in its consideration of other evidence. The Respondent submits that this argument is without merit.
[32] The Respondent says there is no indication that the Board ignored the evidence or was unduly selective in its assessment. On the contrary, the Board clearly considered all evidence put forward by the Applicant's counsel and all the documentary evidence. The Board clearly indicates that, although there are still problems with state protection in Pakistan, this does not rebut the presumption that the state is making serious efforts to protect its Shia citizens.
[33] It is simply incorrect, therefore, to argue that the Board ignored or otherwise disregarded evidence. The Applicant may disagree with the inferences the Board drew from the evidence, but he has furnished no evidence for his claim that those inferences were mistaken, much less that the conclusions of the Board were perverse or capricious. The Applicant's submissions amount to a request for a re-weighing of the evidence that was before the Board. The Court should resist interfering with the Decision on this basis.
[34] The Supreme Court of Canada has held that, absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect its citizens. This presumption "serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant." To rebut this presumption, the refugee claimant must provide "clear and convincing" evidence of the state's inability to protect (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at para. 51).
[35] The Respondent submits it was reasonably open to the Board to conclude that the Applicant had failed to provide clear and convincing evidence of the Pakistan government's inability to protect its citizens. The Board had ample documentary evidence of state protection for members of the Shia religion from the S.S.P. and other religious extremists. The Board relied upon evidence from the U.S. Department of State Report on Pakistan for 2001 and the U.K. Home Office Pakistan Assessment dated April 2002. For example, the Board notes as follows:
a) President Musharraf authorized the use of the army to maintain public order during religious holidays.
b) The government has made some improvements with regard to the protection of religious minorities.
c) The government has also taken steps to improve the effectiveness of police by improving training, deployment of army to staff police stations, moving police officers to cut local connections, and making police more accountable to elected officials.
d) The Pakistan Government has protected the Shia religious observance of Muharram by rounding up those people suspected of participating in sectarian violence. This resulted in fewer deaths during Muharram 2001 compared to 2000.
e) In 2002 the Musharraf Government undertook major steps to curb religious extremism by banning extremist groups, publicly criticizing clerics, and undertaking measures to improve police corruption.
f) In 2002 the Musharraf Government banned 5 more extremist groups, including the SSP.
g) Six hundred of the offices of the banned groups were sealed.
h) The assets of the banned extremist groups were frozen.
i) The government has introduced special anti-terrorist courts to deal with extremists.
j) The evidence also indicates that they have been successful in charging and convicting those responsible for sectarian violence including leaders of such groups as the SSP.
k) Pakistan is in control of its territories and is prepared to act through the military or civil authorities to protect its citizens from religious violence.
l) Pakistan has a strong independent judiciary that it willing and able to ensure the rights of its citizens are protected.
I.B.L. (Re) [2003] R.P.D.D. No. 3, at paras. 33-62; and M.Q.T. (Re), [2003] R.P.D.D. No. 75, at paras. 9-44, 48-49.
[36] The Board acknowledges that state protection is not perfect in Pakistan, but it is well settled that state protection need not be perfect. As the Federal Court of Appeal stated in Villafranca:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.(...] Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability to protect. On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (C.A.)
[37] Furthermore, recent decisions of this Court have upheld decisions of the Refugee Protection Division that have found that Pakistan provides adequate state protection to victims of persecution by the SSP (Malik v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 189 (T.D); Ali v. Canada (Minister of Citizenship and Immigration),[2003] F.C.J. No. 334 (T.D.); Sheikh v. Canada (Minister of Citizenship and Immigration),[2004] F.C.J. No. 64 (F.C.))
[38] The Respondent submits that the Board's conclusion that state protection is available to the Applicant in Pakistan was reasonable and well supported by the evidence. The fact that the Board preferred some documentary evidence to other evidence is not reviewable; it is presumed that the Board considered all the evidence. The Board is entitled to consider and weigh the evidence. The Respondent says there is no basis for judicial review.
Assessment of the Documentary Evidence
[39] The Respondent says it is the duty of the Refugee Division not only to consider the evidence before it but also to weigh its value. It was, therefore, open to the Board to find on the basis of the evidence before it that the Applicant had not met the onus of demonstrating that he faced a well-founded fear of persecution in Pakistan on the basis of his Shia faith or his involvement in his local Imambargah (Canada (Attorney General) v. Jolly, [1975] F.C. 216 (C.A.); Herrera v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 801 (C.A.); Canada (Minister of Employment and Immigration) v. Dan-Ash (1988), 5 Imm. L.R. (2d) 78 (F.C.A)).
[40] There is no indication that the Board ignored the evidence or was unduly selective in its assessment. On the contrary, the Board clearly considered the evidence put forward by the Applicant's counsel and all the documentary evidence. The Board clearly indicates that although there are still problems with state protection in Pakistan, this does not rebut the presumption that the state is making serious efforts to protect Shia citizens. Furthermore, the Board makes specific reference to the Applicant's submissions regarding Pakistan's inability to protect it Shia citizens and clearly rejects these arguments.
[41] The Respondent submits that preference of some documentary evidence is a matter of weight that is within the discretion of the Board. It is open to the Board to choose and rely on some evidence and not on other evidence if there is a conflict or inconsistency. The Board need not mention every piece of evidence that it considered. As long as its findings are rationally based on the material before it, this Court should not interfere with the ultimate result (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 318 (F.C.A)).
The Particular Circumstances of the Applicant
[42] Quite apart from concluding that adequate state protection is available to the Applicant in Pakistan, the Board went on to consider whether there were compelling circumstances not to return the Applicant to Pakistan.
[43] Counsel for the Applicant had submitted three issues that could qualify as compelling reasons: "the claimant was humiliated when he was beaten and needed the assistance of his wife; the claimant was forced to close his business; and the claimant was threatened he would be shot." The Board concluded that while these events may have been traumatic, they did not meet the level of "atrocious and appalling" persecution that would justify not returning the applicant to Pakistan (Canada (Minister of Employment and Immigration) v. Obstoj (1992), 93 D.L.R. (4th) 144 at 156 (F.C.A.)).
Conclusion
[44] The Respondent says that the Applicant has not demonstrated any arguable issue for judicial review of the Decision. The Applicant has not shown that the tribunal ignored evidence, misconstrued evidence or made any perverse or capricious findings in this regard.
[45] The Applicant's assertions amount to a disagreement with the Board's conclusion; a conclusion that was open to the Board based on the evidence before it and which does not afford a basis for intervention by this Court (Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.); Ye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1233 (C.A.)).
[46] Furthermore, the Respondent submits that the Board's reasons are clear, cogent and comprehensive, and the Applicant has failed to provide any persuasive arguments to suggest that the Board materially erred in its decision. When the Decision is read as whole, it is clear that the Board had a grasp of the issues and the evidence before it and that no injustice was done. Intervention by this Court is unwarranted (Medina v. Canada (Minister of Employment and Immigration) (1990), 120 N.R. 385 (F.C.A.); Boulis v. Canada (Minister of Manpower and Immigration) (1972), 26 D.L.R. (3d) 216 (S.C.C.); Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (C.A.)).
ANALYSIS
[47] The Applicant raises two principal concerns. One has to do with the Board's finding that the presumption of adequate state protection was not rebutted by the evidence. The other is a breach of natural justice and fairness issue which arises out of televised reports relied upon by the Board, but not provided to the Applicant for review and comment.
[48] While I am of the view that the Board should not rely upon evidence to which the Applicant has not had an opportunity to respond, the nature of the reports in this case (comments concerning election results that contain no novel information that would take anyone by surprise) lead me to the conclusion that the oversight by the Board in this case did not prevent the Applicant from making his full case and did not affect the Board's Decision in any material sense detrimental to the Applicant. The nub of the Board's Decision is that the presumption of adequate state protection in Pakistan for someone with the Applicant's profile was not rebutted. I do not believe the two reports in question influenced the Decision on this issue in any material way that would require setting the Decision aside.
[49] The set of facts and the issues raised in this application are now depressingly familiar to this Court, and the arguments from both sides have been made so often that they now have an unreal air of cliché about them. At bottom, the issue is whether the regime of President Musharraf in Pakistan can really afford protection to people such as the Applicant from religious extremists and terrorists. The reports are often conflicting. The political machinations appear to defy comprehension.
[50] The Respondent is correct that the Board has the expertise in these matters and its job is to weigh the evidence in what is a very difficult situation to assess, and the Court should not interfere even if it disagrees with the Board's conclusions. Reasonable people can disagree, but this does not mean there has been a reviewable error.
[51] As is the case with so many of these applications dealing with risks from sectarian violence in Pakistan, Villafranca is invoked again to remind the Court that "it is not enough for a claimant merely to show that [a government] has not always been effective at protecting persons in [the applicant's] situation ..." and that:
where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[52] The difficulty is that, as far as the Musharraf regime is concerned, this general guide from the Court of Appeal merely begs a host of questions: is President Musharraf in effective control of his territory when sectarian violence is rife and terrorist acts occur with numbing frequency; do the military, the police and the civil authorities have the professionalism, the ability or the will to deal with the exigencies; how many people have to die or suffer persecution before we cease to excuse the state because it is "not always successful" and conclude that, in spite of what may be good intentions, it has become ineffective?
[53] These are difficult and troubling issues for the Refugee Protection Division and this Court. But I see nothing in the evidence before me to suggest that the Board overlooked relevant facts or did not apply the present jurisprudence. I am also aware, as the Respondent correctly points out, that this Court has recently upheld decisions of the Board on very similar facts to those before me.
[54] The Board never questioned the Applicant's credibility concerning what he had faced in the past, but decided that his profile did not correspond with "those identified by Amnesty International as being most at risk ..." As regards the particular situation of the Applicant, the Board noted that the In Charge of the claimant's Imambargah has been able to remain in Pakistan and he is "a person similarly situated as the claimant."
[55] The Applicant explained that the In Charge worked inside the Imambargah and was not at the same level of risk, but the Board merely says "I do not accept this explanation." We are not told why.
[56] In the end, on the central issue, we are left with a mere rejection of the personal evidence of risk and a conclusion that "I am satisfied the Musharraf government has implemented initiatives that would provide adequate [state protection] but not necessarily perfect protection should the claimant return today."
[57] On the basis of the current jurisprudence of this Court, I do not feel the Applicant has identified a reviewable error in the Decision. However, I come to this conclusion with some misgivings. The analysis of the Applicant's personal risks is thin to say the least.
ORDER
1. The Application is dismissed.
2. There are no questions for certification.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5287-03
STYLE OF CAUSE: MIAN MOHAMMED HANIF
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: 19-JUL-2004
REASONS FOR ORDER The Honourable Mr. Justice Russell
and ORDER:
DATED: September 20, 2004
APPEARANCES: MR.JOHN SAVAGLIO
FOR APPLICANT
MR.GORDON LEE
FOR RESPONDENT
SOLICITORS OF RECORD:
JOHN SAVAGLIO
BARRISTER & SOLICITOR
PICKERING, ONTARO
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
DEPARTMENT OF JUSTICE
ONTARIO REGIONAL OFFICE
130 KING STREET, BOX 36
TORONTO, ONTARIO M5X LK6
FOR RESPONDENT
Email this Content