Date: 20090903
Docket: IMM-5587-08
Citation: 2009 FC 871
Toronto, Ontario,
September 3, 2009
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
MUHAMMAD AKBAR
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
I informed counsel following the hearing that I
was granting this application for judicial review on a narrow ground based on
information recently discovered by counsel for the Applicant. These are my
brief reasons for so doing.
Background
[2]
Mr. Akbar is a citizen of Pakistan. On May 7, 2002, he came to Canada and on May 16, 2002 filed a refugee
claim.
[3]
Mr. Akbar’s refugee claim was based on religious
persecution. As a minority Shia Muslim in his village, and a public
representative of the Shia denomination, Mr. Akbar claimed that he was
persecuted by the Sunni Muslim majority, and in particular by the Islamic
fundamentalist group Sipah Sahaba Pakistan (SSP). Mr. Akbar also claimed to
have been persecuted by the local police, who he stated were under the
influence of this group.
[4]
Mr. Akbar stated that he was threatened on
multiple occasions by the SSP, but that there were six alleged incidents that
were particularly noteworthy, and which caused him to seek refugee protection
in Canada.
[5]
On April 30, 1999, the SSP attacked his house,
and ordered that his hand be cut off as a form of public condemnation for
practicing the Shia faith. Mr. Akbar was hospitalized for four days, and he
was warned to stop his religious activities. This incident was reported to the
police, but no action was taken.
[6]
On September 24, 2001, Mr. Akbar’s house was
again attacked in response to a religious meeting he had organized. The matter
was reported to the police, but Mr. Akbar was detained for provoking tension in
the village.
[7]
On December 20, 2001, Mr. Akbar was attacked
while he was tending to the Shia symbolic horse Zuljinnah, requiring two days
of hospitalization. The matter was reported to the police, but no action was
taken.
[8]
On or about April 26, 2002, Mr. Akbar was
arrested for holding a rally to denounce the recent killing of Shias in another
part of Pakistan.
[9]
On April 30, 2002, Mr. Akbar’s house was again
attacked, but he managed to escape out the back door.
[10]
Sometime between April 30, 2002 and May 7, 2002,
after Mr. Akbar had fled to Lahore, his village house was attacked and his wife and children beaten.
Shortly after this last incident, Mr. Akbar arranged to travel to Canada to claim refugee status.
[11]
On March 2004, the Refugee Protection Division
(RPD) rejected Mr. Akbar's claim. The RPD disbelieved Mr. Akbar’s allegations
because he stayed in Pakistan
following various assaults by the SSP, and also because he left without his
wife and children who had also been threatened by the SSP. The Board also
stated that objective evidence indicated that the SSP had been banned by the
government and the government was taking steps to counter any SSP activities.
The Board acknowledged Mr. Akbar's amputated hand, but was not convinced that
the SSP was responsible for the injury. As a result, the Board concluded that
Mr. Akbar was neither a Convention refugee nor a person in need of protection.
Mr. Akbar sought leave to judicially review this decision, but his application
was dismissed on July 7, 2004.
[12]
On July 18, 2005, Mr. Akbar filed an application
for permanent residence based on humanitarian and compassionate grounds, and on
June 20, 2006, he filed a PRRA application.
[13]
In his PRRA, Mr. Akbar reiterated his
allegations of abuse at the hands of the SSP. Mr. Akbar also alleged that he
would suffer abuse at the hands of the police who were effectively agents of
the SSP in his community. He submitted two new pieces of evidence that were
not before the Board. The first piece of new evidence was correspondence from
Mr. Akbar's lawyer in Pakistan.
It was the Officer’s consideration of this evidence, or rather his lack of it,
that has resulted in an unreasonable decision.
[14]
The Officer discounts the correspondence from
the lawyer. He writes:
Mr. Akbar submitted a letter from Ch. Shahnaz Ahmad, Counsel dated
10/7/2007, in which he says that a compliant is still in force at the police
station and that they are awaiting the applicant’s return to proceed with the
investigation. However, the nature of the complaint is not specified, and
counsel did not submit a copy of the complaint. I give little probative value
to the letter because of the lack of details about the nature of the compliant
makes it impossible for me to determine whether or not Mr. Akbar would be
subject to persecution, torture, threats to life, or cruel and unusual
treatment or punishment if he returned to Pakistan.
[15]
Although this letter dated 10/7/2007 is
contained in the Application Record, it is not contained in the Certified
Tribunal Record. However, given the specific reference to it in the decision,
there is no doubt that it was considered by the Officer.
[16]
Counsel for the Applicant noted just yesterday
that the Certified Tribunal Record does contain a letter from Ch. Shahnaz Ahmad,
Counsel but it is a previous letter and is dated 5/4/2006. That letter, which
was not in the Application Record, but which is referenced to be included with
the initial PRRA application, sets out precisely the detail the Officer said
was lacking in the letter dated 10/7/2007.
[17]
The letter appears on its face to be material to
the PRRA application and as it provides precisely the information the Officer found
lacking in the subsequent letter may have resulted in the Officer assigning
some weight to this lawyer’s information. It is not plain and obvious to me
that the Officer would have reached the same conclusion had he considered this evidence.
[18]
Accordingly, the Officer’s decision is
unreasonable and the application must be re-determined by another officer.
[19]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
this application is granted, the decision of the PRRA Officer dated October 30,
2008 is quashed and the Applicant’s PRRA application is remitted to a different
officer for a determination and that officer is specifically directed to
consider the two letters from Ch. Shahnaz Ahmad dated 5/4/2006 and 10/7/2007,
respectively.
“Russel W. Zinn”
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