Date: 20091119
Docket: IMM-1738-09
Citation: 2009 FC 1185
Ottawa, Ontario, November 19,
2009
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ROOHI
TABASSUM
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a Pre-Removal Risk Assessment (PRRA) Officer, dated
April 30, 2008, denying the applicant’s application for protection because of
the availability of state protection.
FACTS
Background
[2]
The
applicant, a 44 year old citizen of Pakistan, arrived in Canada on July 27,
2001 and filed a claim for refugee protection.
[3]
The
applicant’s refugee claim was based on fear of persecution from a banned Sunni
Muslim religious group named Sipah-e-Sahaba (SSP). The applicant alleged that
SSP was targeting herself and her husband because of their religious activities
on behalf of the Shia Muslim community in Pakistan. (Note: The
applicant’s own evidence indicates that she subscribed together with her
husband to “extreme Shia” beliefs. She also indicates that her husband was the
driving force behind those activities.) The applicant argued in front of a three-member
panel of the RPD that she was forced to flee to Canada from Pakistan while her
husband fled to the United Arab Emirates (UAE).
[4]
The
applicant’s refugee claim was denied by the Refugee
Protection
Division (RPD) of the Immigration and Refugee Board on July
16, 2003 on the basis of lack of credibility and the availability of adequate
state protection. The applicant failed to provide objective documentary
evidence to corroborate the alleged six SSP attacks. When the claim was heard,
the RPD held that country conditions in Pakistan have improved since 2001 such that the applicant would able to avail
herself of state protection.
[5]
The applicant’s application for leave to apply for judicial review was denied.
[6]
The
applicant filed a PRRA application on July 31, 2007 and later updated it with
supplementary materials and submissions.
[7]
On
February 4, 2009 the applicant received a negative PRRA.
[8]
On April 27, 2009, the applicant was granted a stay of
deportation by
Justice Anne Mactavish.
Decision under review
[9]
The
applicant submitted extensive materials in support of the same allegations of
risk that were alleged in front of the RPD and new allegations of risk from the
applicant’s husband. The PRRA officer states at page 2 of the decision that the
applicant’s submissions included items that pre-dated the RPD decision and were
therefore not considered pursuant to subsection 113(a) of the Immigration
and Refugee Protection Act (IRPA) S.C. 2001, c. 27. Any evidence with
respect to the new fear of violence from the applicant’s husband and his family
was considered as new evidence.
[10]
The
officer determined that the risks of persecution by the SSP were fully dealt
with by the RPD. In addition, the country conditions with respect to religious
violence have not deteriorated. The applicant did not challenge this part of
the PRRA decision before this Court.
[11]
The
applicant submitted that since March 2006 her husband and his family have
declared the applicant to be a source of shame and dishonour to their family by
her act of touching other men’s hair in the course of her employment. They are
also alleged to have become erroneously convinced that she is living with
another man in Canada when a male guest of the applicant answered the
phone at her apartment. If returned to Pakistan, the
applicant alleged that she will be subject to an “honour killing” at the hands
of her husband’s family.
[12]
The
officer reviewed the applicant’s new allegations of risk from her husband and
his family. The officer noted the following supporting documents: an affidavit dated
January 17, 2009 from the applicant’s brother, Mr. Arif Mehmood; a letter dated
April 24, 2008 from the applicant’s cousin, Sher, and a copy of clinical notes
dated April 10, 2008 from the Shaukat Clinic in Rawalpindi that describe
injuries sustained by Mr. Mehmood.
[13]
Mr.
Mehmood’s Affidavit described an incident where he was attacked by the
applicant’s in-laws after he refused to help lure the applicant back to Pakistan so that she
may be killed. Sher’s letter is a second hand description of Mr. Mehmood’s
attack.
[14]
The
officer accepted that Mr. Mehmood was attacked, however, the officer found that
that it did not provide objective documentary evidence to support that the
applicant faces hardships at the hands of her husband or his family upon return
to Pakistan. The officer
reasoned that the evidence failed to explain how Mr. Mehmood or Sher came to
know that that the applicant’s in-laws perpetrated the attack on Mr. Mehmood. The
officer assigned a low weight to Mr. Mehmood’s Affidavit because of his failure
to report the assault to the police.
[15]
The
officer identified an inconsistency with regard to the location of the
applicant’s husband because some of the documentation indicated that he left
the UAE and returned to Pakistan in 2004, and then moved
to the UAE again; however the updated PRRA submissions and application form
listed the husband’s whereabouts as unknown.
[16]
The
officer assigned no weight to a newspaper article that mentioned the applicant
because it was not corroborated with objective documentary evidence. The
officer reasoned that it was not difficult to create false newspaper reports in
“notoriously corrupt” Pakistan.
[17]
The
applicant submitted a number of allegedly threatening letters. Two of the
letters were sent to the applicant from her husband. One letter was sent from the
applicant’s husband to the applicant’s brother. One letter was sent from the
applicant’s brother in-law to her.
[18]
The
officer assigned a low probative value to the above letters for the following
reasons:
The evidence before me indicates that the
applicant’s husband sought a reasonable explanation from the applicant for the
male answering the telephone. It is noted that her statement explains that the
male individual that answered the phone was her friend’s husband, who was at
her residence repairing the computer. The evidence before me indicates that the
applicant provided this reasonable explanation to her husband. The evidence
before me does not support that this explanation was rejected by the
applicant’s husband, or that he seeks to harm her as a result.
[19]
The
officer proceeded to consider state protection as the determinative issue in
this PRRA.
[20]
The
officer considered the objective country condition documentation with a view to
the current and future efforts of the Government of Pakistan to combat domestic
violence and “honour killings”. He concluded that Pakistan made serious
efforts to combat “honour killings” and domestic abuse and was providing
adequate, if imperfect, state protection.
[21]
The
officer determined that the applicant failed to link the general country
conditions in Pakistan to her
personalized and forward-looking risk. The officer determined that the
applicant failed to provide objective documentary evidence to support her
profile as similar to those persons that are currently at risk of persecution
or harm in Pakistan.
[22]
The
officer then considered the treatment of Shia Muslims by the Pakistani Government
and the advances in the way the state treated victims of domestic abuse. He
concluded by noting that Pakistan is a democracy with a
functioning judiciary and multiple levels of state protection that would be
available to the applicant.
[23]
The
officer concluded that the evidence before him did not support the applicant’s
submissions that she is of interest to the SSP or her husband and his family.
The PRRA application for protection was therefore denied.
LEGISLATION
[24] Subsection
18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c F-7 designates the
making of findings of fact that are made in a capricious manner or without
regard for the material before it as a ground of review:
|
(4) The Federal
Court may grant relief under subsection (3) if it is satisfied that the
federal board, commission or other tribunal
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
|
(4) Les mesures
prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue
que l’office fédéral, selon le cas :
d) a rendu
une décision ou une ordonnance fondée sur une conclusion de fait erronée,
tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont
il dispose;
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[25] Section 96
of the IRPA confers protection upon person who are Convention refugees:
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette
crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
|
[26] Section 97 of
IRPA confers protection on persons who may be at a risk to their life or to a
risk of cruel and unusual punishment which is personalized, or at risk of torture,
:
|
97. (1) A
person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not
have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning
of Article 1 of the
Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is
unable or, because of that risk, unwilling to avail themself of the
protection of that
country,
(ii) the risk would
be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk is
not inherent or incidental to lawful sanctions, unless imposed in disregard
of accepted
international standards, and
(iv) the risk is not
caused by the inability of that country to provide adequate health or medical
care.
|
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au
sens de l’article
premier de la Convention contre la torture;
b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans
le cas suivant :
(i) elle ne peut ou,
de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou
le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
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ISSUES
[27]
The
applicant restricted her argument to the reasonableness of the PRRA officer’s
determinations with respect to the new events which post date the RPD decision,
namely the risk of persecution by the applicant’s husband and his family.
STANDARD OF REVIEW
[28]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, 372 N.R. 1, the Supreme Court of
Canada held at paragraph 62 that the first step in conducting a standard of
review analysis is to “ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of (deference) to be accorded
with regard to a particular category of question (see also Khosa v. Canada
(MCI), 2009 SCC 12, per Justice Binnie at paragraph 53).”
[29]
It
is clear that as a result of Dunsmuir and Khosa that questions of
the reasonableness of a PRRA officer’s factual determinations are to be
reviewed on a standard of reasonableness (see also Christopher v. Canada
(MCI), 2008 FC 964, Ramanathan v. Canada (MCI), 2008 FC 843 and Erdogu
v. Canada (MCI), 2008 FC 407, [2008] F.C.J. No. 546 (QL)).
[30]
In
reviewing the officer’s decision using a standard of reasonableness, the Court
will consider “the existence of justification, transparency and intelligibility
within the decision-making process” and “whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” (Dunsmuir, supra at paragraph 47, Khosa, supra,
at paragraph 59).
ANALYSIS
Issue: Did the officer make an
erroneous finding of fact in a perverse or capricious manner without regard to
the evidence?
[31]
The
applicant challenges several factual determinations made by the PRRA officer which
formed the basis of the negative PRRA. The applicant contends that these
factual determinations were erroneous, and made in a manner that was capricious
or without regard to the evidence. Accordingly, these findings were not
reasonably open to the PRRA officer.
[32]
The
respondent submits that the applicant disagrees with the officer’s weighing of
the evidence, a function that is strictly within the purview of the PRRA
officer conducting the assessment. The respondent submits that the PRRA officer
reasonably determined the credibility of the applicant’s documents and made
reasonable findings on fact with respect to the applicants risk and state protection.
[33]
In
Kaybaki v. Canada (Solicitor General of Canada), 2004 FC 32, I held at paragraph 5 that “the decision of a PRRA officer is to be accorded deference
since it involves findings of fact. However, a PRRA officer's decision must be
supported by the evidence”. The onus is clearly on the applicant to
demonstrate that the PRRA officer’s findings were
not supported by the evidence on the record (Malshi v. Canada (MCI),
2007 FC 1273, per Justice Shore at paragraph 18).
[34]
The
first impugned finding of fact is found at paragraph 3 of the decision where
the officer rejects Mr. Mehmood’s Affidavit as objective documentary evidence
to support that “the applicant faces hardship at the hands of the husband or
his family” if removed to Pakistan. The officer reasoned
that the documents do not explain how Mr. Mehmood knows that the attack on him
was related to the applicant, or that the husband or the in-laws were involved.
[35]
Mr.
Mehmood’s Affidavit about the April 10, 2008 attack describes the incident:
… my sister’s in-laws and her husband
believed she is living against Shariah Law with some male person in Canada. Her in-laws often cursed me
on phone (sic) and called me coward and provoked me to declare my sister
as a curse and disgrace woman to family and asked me to join hands with them,
call her back to Pakistan and kill her. On my refusal
they (in-laws) threat (sic) me to face the severe consequences and
physical damages to me and my family. On April 10, 2008 some of her in-law
relative (sic) attacked me and injured me. I am worried and scared of my
safety as well as Roohi’s they will not spare her life. I strongly believe they
(in-laws) determine to kill her in the name of honour-killing…it is decided to
kill Roohi whenever they find her. I am scared if she comes back she will be
victim of this barbaric custom, which is performed conservative families like
her in-laws.
[36]
The
Court must conclude that the PRRA officer’s finding at page 3 of the decision:
The documents provided do not explain how
they have come to know that the attack on Arif Mehmood was related to the
applicant, or that her husband or in-laws were involved.
is unreasonable based on the Court’s
reading of the same documents.
[37]
The
applicant contends that the officer erred in faulting the applicant for failing
to provide objective documentary evidence such as a police report about this
April 10, 2008 attack. The absence of a police report was explained, yet
dismissed by the PRRA officer without any reasons. There was no report to the
police because, according to the explanation, the applicant’s brother did not
want “more trouble” with the applicant’s husband and his family, and the police
would not take any action in any event (presumably because it is a domestic
matter).
[38]
The
applicant impugns the officer’s findings of fact of fact with respect to the
letters sent by the applicant’s husband to the applicant’s brother. The
officer determined at page 5 of the decision that correspondence sent by the
husband did not disclose an intention to harm the applicant. Rather, the
correspondence shows that the husband sought an explanation for why a man
answered the applicant’s phone in her apartment. The officer determined that
the applicant provided a reasonable explanation to her husband, and that the
evidence did not support the applicant’s contention that her explanation was
rejected.
[39]
In
my view this is an unreasonable finding of fact. The February 6, 2007 letter
from applicant’s husband to the applicant, which is reproduced at page 53 of
the applicant’s record, states that the applicant’s husband will “finish” her
by himself. Clearly, the evidence discloses that the applicant’s husband wishes
to harm the applicant. The husband’s letter to the applicant’s brother,
reproduced at page 43 of the applicant’s record, explicitly states that the
applicant’s explanation for why a man answered the phone in her apartment was
not accepted:
…I was doubtful at that and I called
Roohi the next day and asked for that man that (sic) who he was there
yesterday? Roohi told me that he is the husband of her friend who had come to
repair the computer but I am not satisfied with Roohi’s answer because
she now hides several matters from me because I had forbidden her not to work
for men in the beauty parlor … (Emphasis added)
[40]
In
this same letter the applicant’s husband writes:
… But even then what I have learnt, is
true, believe me no one can escape her from me, either I have to do anything. (sic)
The Court finds this to be a threat of some
kind. The letter from the brother of the applicant’s husband to the applicant
at page 47 states:
… All family members are very annoyed,
which can be turned into revenge … you also know very well that if we turn
ourselves to take revenge, we can be proven as the worst enemies.
The
applicant’s brother’s letter to the applicant at page 50 of the applicant’s
motion record stated:
… One more thing I want to tell you that
younger brother of Faisal (the applicant’s husband) came to the shop and talked
abusively and threatened that whenever Roohi comes to Pakistan, they will kill you. Now I am trying to
avoid these people because all three brothers are getting abusive …
[41]
The
handwritten letter from the applicant’s husband to the applicant dated February
6, 2007 at page 53 of the applicant’s motion record writes, surprisingly in
English:
I arranged your escape for your safety
and now you looking for divorce. My doubts about you are real and right but
keep this in mind that now I will finish you myself.
[42]
The
affidavit from an old friend of the applicant at page 57 in the applicant’s
motion record states:
… They believe Roohi is living against
Shariah Law of Islam. She has illicit relation with someone in Canada. She is living a free woman
life in Canada. This justifies them to kill
her in the name of honour so they can live a heads up life. The situation over
here has become very drastic for Roohi as her in-law declares her Kari.
I am dead sure that she will be killed
instantly if she comes back to homeland.
[43]
On
reviewing this evidence the Court must conclude that the PRRA officer’s finding
that the applicant was not being threatened by her husband with an “honour
killing” if she is returned to Pakistan cannot be sustained as
reasonably open to the PRRA officer. Rather, the PRRA officer cannot deal with
these threatening letters by mischaracterizing the letters as not threatening.
Rather, the PRRA officer must decide that if these letters are true or
fraudulent or not credible. Since the credibility of these many documents which
purportedly threaten the applicant must be assessed, the PRRA officer may wish
to convoke a hearing with the applicant to assess her credibility and the
credibility of the letters and other documents which could be found to be true,
or could be found to be self-serving for the purpose of the applicant remaining
in Canada.
[44]
With
respect to state protection, the applicant submits that the PRRA officer’s
conclusion that state protection would be available to the applicant is contradicted
by the evidence. “Honour killings” continue to be a serious problem in Pakistan
notwithstanding the Government’s efforts.
[45]
The
United States Department of State Country Reports on Human Rights Practices for
Pakistan in 2007
shows that:
Honour killings continue to be a problem,
with women as the principal victims. During the year local human rights
organizations reported between 1200 and 1500 cases. … Many more likely went
unreported.
[46]
According to the
objective country evidence, the Government is not able to control “honour
killings”, and cases of domestic abuse “are rarely acted upon as the police and
judges view it as a family problem”.
CONCLUSION
[47]
For
these reasons, the Court concludes that the PRRA officer made unreasonable
findings of fact with respect to the threats against the applicant in the
documents, and that if the applicant is credibly found to be threatened with an
“honour killing” upon her return to Pakistan, then the objective country
evidence shows that the Government of Pakistan is not able to provide adequate
state protection against “honour killings” in that the U.S. Department of State
reports 1200 to 1500 honour killings took place in Pakistan in 2007
notwithstanding Government efforts to protect women. Accordingly, the Court
will set aside the PRRA decision and refer the matter back to another PRRA
officer with the direction that the PRRA officer may convoke a credibility
hearing to determine if these documents containing the threats are credible, or
self-serving documents created by persons close to the applicant to buttress
her case to be allowed to remain in Canada.
CERTIFIED QUESTION
[48]
Both
parties advised the Court that this case does not raise a serious question of
general importance which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
The
application for judicial review is allowed, the PRRA decision is set aside, and
the PRRA application is remitted to another PRRA officer to redetermine if the
documents are credible, and if this PRRA application should be allowed or
dismissed.
“Michael
A. Kelen”
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