Date: 19990602
Docket: IMM-1548-98
BETWEEN:
SYED MEHDI ZAIDI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
CULLEN, J.
[1] INTRODUCTION
The applicant did not appear, having, apparently, gone to the wrong office. Also, counsel for the respondent, in answer to a request for documents, in fact only received a list. The list, however, pointed to Exhibit R2 when we were clearly dealing with Exhibit R1. As a consequence, I have decided to make a decision on the record.
[2] The applicant challenges by way of judicial review the decision, dated 26 February 1998, of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), in which the CRDD determined that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act , R.S.C. 1985, c. I-2 (the "Act"). Leave to commence this application for judicial review was granted on 8 March 1999.
[3] Background
The applicant, Syed Mehdi Zaidi, is a 29 year old ethnic Mohajir citizen of Pakistan. Mohajirs are Urdu-speaking Muslims, and their direct descendants, who left India for Pakistan following the partition of the subcontinent in 1947. The applicant left Pakistan and arrived in Toronto on 17 August 1996. He fears persecution at the hands of the police on the basis of his race, political opinion, and membership in a particular social group, namely Mohajirs and members of the Altaf faction of the Mohajir Quami Movement ("MQM").
[4] The applicant joined the MQM, a political organization that seeks to further the rights of Mohajirs, in July 1989. He actively participated in campaign activities for his party"s candidates for the provincial and national elections held in October 1990. In particular, he distributed pamphlets, put up posters and banners, and canvassed door to door. Nationally, the Islamic Jambhorri Ittehad formed a coalition government with the Pakistan Muslim League, with the MQM as partners. The relationship soon soured, and MQM leaders and workers faced arrests. The MQM leader, Altaf Hussain, fled Pakistan in 1992 and remains in London in exile; he faces outstanding murder charges in Pakistan. The MQM has been embroiled in factional infighting between rival wings, the majority Altaf faction and the smaller Haqiqi faction.
[5] The government resigned in July 1993 and elections were set for October 1993. The MQM did not participate in the national election as a form of protest, but did participate provincially, and wound up forming the largest opposition party, with the PPP in government. At this point, the applicant claims, the PPP engaged in systematic persecution of MQM members.
[6] In early 1996, the applicant was given the responsibility of collecting money from the Mohajir community in his section of Karachi for a fund to support families of detained MQM members. The nature of this activity led to his identification by the police as an active member and potential target. In late June 1996, the applicant was kidnapped by PPP members and beaten for several days. He was left for dead by a roadside, but managed to get to a hospital for treatment. Several days later, in early July, he claims to have been shot at by a passing van. Fearing for his life, he went into hiding and made arrangements to come to Canada.
[7] At the hearing before the CRDD, on 18 November 1998, the applicant testified that he was not involved in any terrorist activities, nor did he support them. He claims that after the PPP"s goons failed to kill him, his name was given to the police as part of a list of suspected terrorists, or "active" MQM members, hence their interest in him starting in October 1996. Since he left Pakistan using false documents and that country has a controlled entry and exit system, the authorities have no record of his departure. The applicant testified that the police went to his house in October 1996 looking for him, and had subsequently raided his house every two or three months, with the last visit, before the hearing, in October 1997. He also testified that his brother was arrested during the last raid, questioned about the applicant"s whereabouts, and released upon payment of a bribe.
[8] Board"s Decision
The panel stated that it acknowledged the volatile political situation in Pakistan, as well as the personal attacks the applicant attributes to PPP goons. It made no findings with respect to his credibility or the credibility of the evidence. Instead, the panel relied on documentary evidence which indicates a change of circumstances in Pakistan since the February 1997 elections. The PML and the MQM have entered into an alliance in the southern province of Sindh, which is where most Mohajirs live. In its reasons, the panel stated,
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The panel finds that Mr. Zaidi can avail himself of any state protection from this coalition government. While there is factional fighting between the rivalling Altaf and Haqiqi factions of the MQM, there is no evidence that the government is involved in such infighting. Nor is there any indication of the arrest or roundup of peaceful workers of the MQM. |
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Mr. Zaidi testified that his name is on a wanted list and, as a result, nowhere in Pakistan is he safe. He testified that while the police did not try to arrest him while he was in Pakistan they had gone to his house to arrest him after he left. The panel heard no plausible explanation respecting the government"s delayed actions in trying to arrest him. In any event, the panel does not believe that the government would have an ongoing interest in Mr. Zaidi based on his testimony that he has never subscribed to terrorist activities but admittedly had been an MQM worker with some profile. The evidence is that the government does have a continuing interest in those MQM workers whom they consider terrorists, such as the leader of Mr. Zaidi"s faction, Altaf Hussein. |
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(Applicant"s application record, p. 7) |
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[9] Applicant"s Position
The applicant submits that the CRDD erred in failing to give due consideration to the applicant"s evidence regarding his fear of persecution. The panel failed to assess the applicant"s evidence that the police became interested in him only after the PPP"s goons failed to kill him, thus explaining the perceived delay in arresting him.
[10] The applicant also submits that the CRDD erred in law when it held that the government is only interested in those MQM workers it considers terrorists, and that since the applicant testified he was not involved in such activities, the government will not be interested in him. No evidence was before the panel which would indicate who it considered to be terrorists and why.
[11] The applicant contends that the documentary evidence relied on by the panel to support its finding regarding a change in country circumstances does not actually contain much information on post-February 1997 conditions. Other documentary evidence before the panel shows that the human rights situation in Pakistan remains in a constant state of flux, with no fundamental changes. The focus of police excesses appear only to shift with the prevailing government.
[12] Respondent"s Position
The respondent contends that the panel did not err in determining that the applicant could avail himself of state protection as no evidence indicates that the government is involved in the MQM"s inner power struggle. Furthermore, the panel indicated that the government is interested only in those MQM workers it considers terrorists, but as the applicant did not subscribe to terrorist activities, there is no reason for the government to pursue him.
[13] Analysis
The Federal Court of Appeal held in Maldonado v. Canada (MEI), [1980] 2 F.C. 302 that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true, unless there is reason to doubt their truthfulness. The CRDD acts arbitrarily when it chooses to disbelieve an applicant"s testimony when no valid reason to doubt its truthfulness exists. As the trier of fact, the CRDD evaluates evidence and assigns weight, however, any inconsistencies or implausibilities must be supported by the evidence.
[14] In the instant case, the panel accepted the applicant"s testimony that he had been kidnapped, beaten, and shot at before he fled Pakistan. He testified at the hearing that the police had come looking for him in October 1996, after he had fled the country. He also testified that the police had conducted raids on his family"s home every two or three months, following the October 1996 raid. He further testified that his brother had been arrested and interrogated as to his whereabouts in October 1997, just prior to the hearing.
[15] Nowhere in its reasons does the CRDD explicitly deal with this evidence, except to say that it heard no plausible explanation regarding the government"s delay in trying to arrest the applicant. Yet the explanation provided by the applicant appears reasonable and consistent with the delay: it was only after the PPP failed to deal with him extra-judicially that it then placed his name on a list of suspected terrorists with the police.
[16] Furthermore, the applicant"s uncontradicted evidence that the police have continued to come to his house looking for him suggests that the change in country circumstances are not of such a nature so as to provide the applicant with any sense of security. The panel has failed to take this evidence into account in its analysis of the change in country conditions.
[17] Finally, the panel held that the government would not have any ongoing interest in the applicant given his testimony that he has never been involved in terrorist activities. The latter part of this statement may be so, but the focus must be on the government"s perception of the applicant. Subsequent visits by the police to the applicant"s house may indicate that the police are in fact still interested in him. The applicant testified that his name is on a list of suspected terrorists; nothing contradicts this, and indeed documentary evidence indicates that the police have lists of suspected MQM terrorists.
[18] Thus, it appears that the CRDD fell into error by disregarding the applicant"s explanation as to why the police delayed in arresting him, as well as by failing to address his evidence of continued police interest in him, which extends beyond the February 1997 elections that form the basis of the panel"s conclusion that there has been a change in country circumstances. Accordingly, this appeal is allowed and the matter referred back to differently constituted Board.
| Ottawa, Ontario B. Cullen |
June 2, 1999.
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