Date: 20071003
Docket: IMM-3832-07
Citation: 2007
FC 1017
Toronto, Ontario, October 3, 2007
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SOHAIL SYED RIZVI, ANNE SOHAIL
RIZVI,
MIKAELEH SOHAIL RIZVI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
UPON motion dated the 26th day
of September, 2007 on behalf of the applicants for:
1.
a stay of
the removal order against the applicants, until such time as the application
for leave and judicial review is disposed with;
2.
such other
relief the Court may find just in the circumstances;
AND UPON considering the material
before the Court;
AND UPON hearing from counsel for the
applicants and for the respondent;
[1]
The
applicants seek a stay of a removal order to Pakistan which is scheduled for October 16, 2007 until
their application for leave and, if granted, judicial review of the underlying
Pre-removal Risk Assessment decision is finally disposed of by this court.
[2]
The
applicants are citizens of Pakistan and sought refugee protection
on the grounds that they are Christians and would face persecution if they had
to return to Pakistan. Sohail Syed Rizvi (the
applicant father) is 67, Anne Sohail Rizvi, (the applicant mother) is 66 and Mikaeleh
Sohail Rizvi (the applicant daughter) is 35. The applicant family lived for a
number of years in Dubai where the applicant father worked until the Dubai government required all foreign non
Westerners over 60 to leave unless they met certain requirements for residency.
The applicant family then came to Canada.
They applied for refugee status which was denied.
[3]
The
Refugee Protection Division (RPD) determined they were of mixed religion, the applicant
father and daughter being Muslim and the mother Roman Catholic. The RPD member
acknowledged that the applicant father and daughter may have been baptized
Christian but decided they were Muslim because they had not practiced the
Christian faith and their passports stated their religion was Islam. The
applicants sought judicial review of the RPD member’s decision which was
denied.
[4]
The
applicants applied for a Pre-removal Risk Assessment and submitted new evidence
to the PRRA officer. That evidence consisted of a letter from the pastor of a
Toronto Christian church attesting to their attendance at Christian religious
services and copies of their amended passports which now identify their
religion as Christian.
[5]
The PRRA
officer assigned little weight to the new evidence submitted by the applicant
father and daughter because it was evidence obtained after the RPD decision.
He stated:
I have considered that the applicants
changed their passports and started regularly attending church in Toronto only after the RPD decision,
which specifically addressed these two issues. In consideration of the timing
of these events and their relation to the RPD’s findings, I assign the letter
and passports little weight in establishing that the applicants face risk in Pakistan due to their Christian faith.
[6]
The PRRA
officer went on to consider the 2006 U.S. Department of State International
Religious Freedom Report on Pakistan noting that four million
Christians are reported to live in Pakistan and 120,000 Catholics live in Karachi.
[7]
The PRRA
officer also stated that:
I have also considered the principle
applicant’s stated risk that he will be killed because of the change of
religion on his passport and note that according to the International Religious
Freedom Report there is no law against apostasy in Pakistan.
[8]
Despite
assigning little weight to the new evidence, the PRRA officer seems to have
accepted that the applicant father and daughter are Christian notwithstanding
the RPD determination the applicant father and daughter were Muslim. Moreover,
he accepted that the applicant father and daughter may be considered apostates
because of the change of religious designation in their passports.
[9]
The PRRA
officer’s role in conducting the pre-removal risk assessment is not to
reconsider the RPD’s decision but to evaluate the new evidence and determine
whether it demonstrates a change in the risk to the applicants. Mactavish J.
stated in Hausleitner v. Canada (Minister of Citizenship and Immigration) 2005 FC 641:
Rather,
it seems to me that the question for the PRRA officer at this stage in the process
should be whether the new evidence supplied by the applicants demonstrates a
significant enough change to the conditions within the applicants' home country
such that the state protection analysis conducted by the Immigration and
Refugee Board is no longer valid.
This
interpretation of the scheme of the Act is confirmed by the wording of
sub-section 113(a) of IRPA which makes it clear that, in such cases, the risk
assessment to be carried out at the PRRA stage is not to be a reconsideration
of the Board's decision, but instead is limited to an evaluation of new
evidence that either arose after the applicant's refugee hearing, or was not
previously reasonably available to the applicant: H.K. v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 1945, 2004 FC 1612, Bolubo
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 459,
2005 FC 375.
[10]
The
applicants seek a stay of the removal order so they may challenge the decision
of the PRRA officer as in error in finding that there is adequate state
protection available to the applicants in Pakistan.
[11]
The test
for a stay of a removal order is set out in Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86 N.R. 302 (F.C.A.). The applicants must show that there is a serious
issue to be determined, that they would suffer irreparable harm if the stay is
not granted and that the balance of convenience favours the applicants.
Serious Issue
[12]
The
applicants allege that the PRRA officer’s assessment was superficial and failed
to properly assess the inadequacy of state protection for the applicants should
they be removed to Pakistan.
[13]
The test
of a serious issue is that set out in RJR MacDonald, [1994] 1 S.C.R. 311
where it was held that the threshold for a serious issue was low, the issue
being that the application is not one that is frivolous or vexatious.
[14]
The PRRA
officer stated he gave little weight to the new evidence submitted by the
applicant father and daughter, notably the change in the religious designation
from Islam to Christian. Yet he then differed from the RDP determination that
the family was of mixed Muslim and Roman Catholic faith concluding instead that
the applicant family is of Christian faith. In doing so, he appears to have
accepted the new evidence as significant.
[15]
Moreover,
the applicant father stated that he was at risk of being killed because of the change
of his religion on his passport from Islam to Christian. The PRRA officer gave
this issue little significance merely noting that, according to the International
Religious Freedom Report, there is no law against apostasy in Pakistan. Here, he appears to treat
the new evidence as of little weight and essentially adheres to the RDP’s
decision.
[16]
The PRRA officer’s
approach to the evidence makes little sense. I am satisfied that a serious
issue arises about the PRRA officer’s treatment of the new evidence before him.
Irreparable Harm
[17]
The PRRA
officer relied on the 2006 International Religious Freedom Report to find that
there was no law against apostasy in Pakistan.
He concluded that, while he acknowledged problems such as restrictions on
freedom of religion and violence against women, there was insufficient evidence
before him that the applicants would be personally at risk of these or other
human rights problems in Pakistan.
[18]
The
applicants included the U.S. Department of State International Religious Freedom
Report 2007 at p. 211 of their Motion Record. This is presumably the update of
the report the PRRA officer referred to. At the very least, it is from the
same source as that relied upon by the PRRA officer. On p. 213 of the 2007 report,
after a discussion on interfaith marriages in Pakistan, there is the following stark statement:
In addition, a convert from Islam becomes
an apostate and is eligible for the death penalty.
The change in religious designation from Islam to Christian
in the passports, which are official Pakistani government documents, may be
seen as evidence of a conversion or re-conversion by the applicant father and
daughter. As such, they would be seen as apostates in Muslim eyes. It is to be
remembered that ninety-six percent of the population of Pakistan is Muslim.
[19]
The PRRA
officer did not properly turn his mind to the risk the applicant father and
daughter would be subject to as a result of being seen as converting or
re-converting from the Muslim to the Christian faith. The risk to the applicant
father and daughter would be materially different if they are seen as apostates
than it would be if they are seen as always having been Christian.
[20]
The
assessment of risk done by the PRRA officer was inadequate. As a result I am
satisfied that a serious question arises about the adequacy of the PRRA
assessment of the risk to the applicants in Pakistan.
[21]
To require
the applicants to return to Pakistan based on a flawed PRRA
assessment would place them at an unacceptable level of risk. I am satisfied
that the applicants could face a real prospect of irreparable harm if they are
removed to Pakistan.
Balance of Convenience
[22]
The
applicants have been contributing to Canadian society. They face the
possibility of serious personal harm should they be removed to Pakistan.
[23]
While
observance of Canada’s immigration procedures is
an important consideration, the proper application of safeguards in the
immigration refugee process is a vital element of the Canadian immigration
system.
[24]
I find
the balance of convenience favours the applicants.
Conclusion
[25]
The
application for a stay of the removal order against the applicants is granted until
such time as the application for leave and judicial review of the underlying
matter is finally disposed of.
ORDER
THIS COURT ORDERS that a stay of the removal order
against the applicants for October 16, 2007 is granted until such time as the underlying
application for leave and judicial review is finally disposed with.
“Leonard
S. Mandamin”
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