Date: 19990630
Docket: IMM-4618-98
BETWEEN:
MAZHIR IQBAL MIRZA and ABID HUSSAIN MIRZA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that expression in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 21st of August, 1998.
[2] The applicants are brothers, citizens of Pakistan and former residents of Dandi, Tehsil Kharian district of Gujrat. Mazhir, the older of the two, is described by the CRDD in its reasons as the "claimant" and Abid as the "claimant"s brother". I adopt that terminology for the purposes of these reasons. The claimant alleges a fear of persecution if required to return to Pakistan by reason of his political opinion as a member of the Pakistan Muslim League and former member of the Pakistan People"s Party. The alleged sources of persecution are members of the Pakistan People"s Party, "gangsters" associated with that party, and police. He alleges that no state protection is available to him since one of the sources of his fear is the police themselves.
[3] The claimant"s brother, also a member of the Pakistan Muslim League, bases his alleged fear of persecution on that membership and on his membership in a particular social group, namely, his family.
[4] The claimant first came to Canada in 1988 but, by reason of an unusual set of circumstances, he was returned to Pakistan by United States authorities in 1990. He again fled Pakistan to Canada on the 7th of March 1996 and bases his claim on events between the time of his return to Pakistan and his second flight to Canada. The claimant"s brother first came to Canada on the 2nd of October 1996.
[5] The claimant alleges a series of threats, harassments and beatings culminating when he helped organize a meeting in August, 1995 to discuss alleged misdeeds of the Pakistan People"s Party. The meeting was raided by police and, although the claimant managed to escape, two other organizers were arrested and detained. The police sought the claimant at his home and threatened family members with arrest if the claimant did not stop his political activities. The claimant agitated for the release of the detained organizers. In the result, in January, 1996, he was arrested, briefly detained and interrogated. The police again sought him out in February, 1996 and, when they failed to find him, they beat and harassed his father and threatened to kill the claimant. The police sought the claimant out on a further five occasions before he fled the country. The police continued to seek the claimant after his departure, on at least three occasions, until an arrest warrant was issued against him on the 11th of November, 1996, allegedly on false charges.
[6] The claimant"s brother was also involved in the organization of the August, 1995 meeting. After the claimant"s flight from Pakistan, the police sought the claimant"s brother on at least four occasions. An arrest warrant was issued against him on the same date that a warrant was issued against the claimant.
[7] The CRDD examined at some length the well-foundedness of the claims of the claimant and his brother, in general terms as well as in the light of changed country conditions resulting from the election of a Pakistan Muslim League government. It also focussed briefly on the issue of whether or not the claimant and his brother would have an internal flight alternative within Pakistan. It determined that neither the claimant nor the claimant"s brother had established an objective basis to a Convention refugee claim, and that, even if they had, they had internal flight alternatives available to them.
[8] The CRDD noted discrepancies between the documentation, originating with the claimant and his brother that was before it and the brothers" testimony but made no adverse finding with regard to credibility. The CRDD wrote:
The panel notes that the claimants offered as evidence of a continuing fear of persecution, outstanding arrest warrants. The panel has reviewed the documentary evidence submitted regarding arrest warrants and first information reports. The panel accepts the documentary evidence as being independent and reliable, and coming from different sources. The panel finds that each of the arrest warrants themselves are suspect for the following reasons. There is no mention of the court from which each warrant was issued. Arrest warrants are addressed to each claimant and not to the police or other authorities charged with the responsibility of executing the warrant. Documentary evidence indicates that the arrest warrant is directed to one or more police officers or, if no police officer is immediately available, to any other person. There is also an indication on the same page, that the copy of an arrest warrant can be obtained and it indicates that such a copy would be a certified copy. The panel notes that there does not appear to be an indication of the documents supplied by the claimants that the copies are a certified copy. This documentary evidence also indicates ..., that the arrest warrant would have the address of the police station to whom the arrest warrant is addressed and the date that the person involved would be expected to appear in court, furthermore, ..., it indicates the arrest warrant contains information regarding the offence as well as the relevant sections and provision of the law under which a person is required to appear. In the arrest warrants supplied by the claimant there is no indication of the nature of the alleged offence. [citations omitted]
[9] Copies of the arrest warrants appear at pages 46 and 56 of the Tribunal Record. Certified translations of the arrest warrants appear at pages 45 and 55. Each of the certified translations indicates the court from which the warrant was issued and indicates the police authority to which it is directed. Each also indicates the crime of which the claimant or the claimant"s brother stands accused. The CRDD would appear to have either simply disregarded this central evidence that was before it or to have substantially misinterpreted the evidence.
[10] The CRDD makes no mention of correspondence that was on the record before it from the father of the claimant and the claimant"s brother, from an official of the Pakistan People"s Party and from a lawyer consulted by the father of the claimant and the claimant"s brother all attesting to the risks that they would face by reason of the outstanding warrants, if they were to return to Pakistan. The CRDD wrote:
Further, even if the arrest warrants were indeed valid, the panel, in light of the current country conditions, finds that the arrest warrants would not be acted upon.
The CRDD cites no authority for this finding made in the face of the letters predicting dire consequences. I conclude that the "finding" amounts to nothing more than sheer speculation.
[11] Finally, the CRDD wrote:
In the alternative, the panel finds that the claimants have an internal flight alternative (IFA) available to them if they have a well-founded fear of persecution in their local area. The harassment, intimidation and alleged persecution alleged by the claimants was localized. When asked about relocating to another centre, the claimants did not give any concrete evidence why they do not have an IFA. Given the panel"s finding that they are not wanted by the police or other authorities, there is not a reasonable chance that they would suffer persecution outside their local area.
[12] In light of the CRDD"s oversights or misunderstandings regarding the arrest warrants before them, the finding regarding an IFA cannot stand. At page 320 of the Tribunal Record, the following paragraph appears in a Response to Information Request dated the 18th of June, 1997:
Police routinely execute arrest warrants issued in other provinces or police districts. According to the Criminal Procedure Code of Pakistan, an arrest warrant can be executed anywhere in Pakistan, regardless of where it was first issued. An arrest warrant issued by a local court is valid even outside of provincial boundaries. It is common for police authorities in one province or police district to seek assistance from police authorities in another jurisdiction to locate an offender. The latter are bound by law to assist the former in their efforts to locate an offender.
Once again, the CRDD would appear to have ignored this evidence that was before it.
[13] In light of what I determine to be central errors of fact made by the CRDD without regard to the totality of the material before it, and of the unfounded speculation on the part of the CRDD to the effect that the arrest warrants, if valid, would not be acted upon, I conclude that the decision here under review cannot stand. That is not to say that the decision reached by the CRDD might not have been reasonably open to it. It is simply to say that the analysis of the CRDD and the findings that it draws based upon that analysis are so flawed as to warrant the intervention of this Court.
[14] In the result, this application for judicial review will be allowed, the decision of the CRDD here under review will be set aside and the claims to Convention refugee status of the claimant and the claimant"s brother will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted tribunal.
[15] Neither counsel recommended certification of a question. No question will be certified.
________________________________
Judge
Ottawa, Ontario
June 30, 1999
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1 R.S.C. 1985, c. I-2 (as amended).
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