Date: 20080122
Docket: IMM-4682-07
Citation: 2008 FC 65
Montreal, Quebec, January 22,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AHMED ABDUL MUHAMMAD LAKHANI
KARIMA AHMED LAKHANI
AMIN AHMED LAKHANI
KAWISH AHMED LAKHANI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
A
motion to stay the removal of the Applicants was presented on January 21, 2008:
(a) The Applicants’ initial
Pre-Removal Risk Application (PRRA), submitted in February 2006, was argued
from the point of view of their establishment in Canada and was denied for lack
of any risk allegations, in April 2006, as none had been presented, due to
their particular circumstances, as specified below;
(b) The
Applicants have before the Court an application for leave on the refusal of
their current PRRA;
(c) The
Applicants are Ismaili Shias, a minority within a minority group in Pakistan. The
Applicants presented evidence to prove their Ismaili faith: letters of
identification from His Highness Prince Aga Khan Imami Ismaili Council for all
members of the family, with pictures of the principal male and female
Applicants, respectively, on separate certificates, in addition to a certified
true copy of a certificate of honour for a teacher’s training program for Mrs.
Lakhani from his Highness Prince Aga Khan Imami Ismailia Association, and, also,
a certified true copy of an Aga Khan Council certificate from the Institute of
Computer Studies for Mrs. Lakhani from the same association;
(d) The
PRRA officer found them credible as to their religious denomination: “Je suis
satisfaite que les demandeurs appartiennent à cette communauté religieuse”;
(e) Ismailis are
labelled as “infidels” as they do not follow the same customs as Sunnis or even
other Shias, who are not Ismailis: for instance, Ismailis, both men and women
pray together in the same mosque (Motion Record, p. 133);
(f) “… on November 25,
unknown persons burnt down an Ismaili place of worship in Chitral district.
HRCP reported that no arrests had been made.” (Pakistan – Country Reports on
Human Rights Practices – 2006, Released by the Bureau of Democracy, Human
Rights, and Labor – March 6, 2007; Motion Record, p. 177);
(g) The
Applicants were personally placed at risk in events describing violations which
were accepted as credible by the PRRA officer.
BACKGROUND
[2]
The
Applicants’ names are Ahmed Abdul Muhammad Lakhani, Karima Ahmed Lakhani, Amin
Ahmed Lakhani and Kawish Ahmed Lakhani.
[3]
In
August 2001, Mr. and Mrs. Lakhani, together with their two sons, Kawish and
Amin, land in Canada under a
business immigration category – entrepreneur category.
[4]
They
have been in Canada since that time and have not returned to Pakistan, their
country of citizenship, nor travelled elsewhere.
[5]
Mr.
Lakhani is 43 years old, Mrs. Lakhani is 36 and their minor sons are 15 and 12,
respectively.
[6]
Not
having met the conditions of landing of entrepreneurs within the two year
period prescribed by the former Immigration Regulations (the current
Regulations allow three years to meet the prescribed conditions), departure
orders were made against them by the Immigration Division, on February 3, 2004.
[7]
The
Applicants appealed to the Immigration Appeal Division (IAD), pursuant to subsection
63(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), and a hearing took place, on June 20, 2005.
[8]
The
IAD considered the Applicant’s investment of $100,000 into Bensus
International, a company in which Mr. Lakhani was first an employee shortly
after arrival in Canada. The IAD decided that he did not make “a
significant contribution to the Canadian economy”, neither did Mrs. Lakhani’s
employment as an assistant educator, nor did the children’s interests warrant
granting special relief, which dismissed their appeal, on September 22, 2005.
[9]
The
judicial review motion in respect of IAD’s decision was dismissed on January 13,
2006, and in April 2006, the Applicants filed an application for permanent residence
from within Canada on
humanitarian grounds (Exhibit B).
[10]
Also,
on April 26, 2006, their initial PRRA application was refused.
[11]
One
year later, on April 25, 2007, Mr. and Mrs. Lakhani attended an interview for
an H&C. Their application on H&C grounds was refused a few days later,
on April 30, 2007.
[12]
Since
the application on H&C was prepared by Mr. Moosa, a Consultant, he did not
represent the Applicants in filing an application for leave.
[13]
An
application for leave on the H&C refusal was filed, on September 21, 2007.
[14]
The
Applicants’ Record was filed on October 19, 2007.
[15]
On
October 31, 2007, the Applicants served and filed a motion to stay their
removal to Pakistan within the
file IMM-3872-07 (application for review of the H&C refusal). Leave was denied
by this Court, on January 10, 2008.
[16]
On
November 2, 2007, another negative PRRA determination was communicated to the principal
male Applicant in person, together with reasons for decision, dated October 30,
2007.
[17]
At
the same time, the officer accorded the Applicants a postponement of departure
until January 25, 2008.
[18]
On
November 12, 2007, the Applicants filed an application for leave of the PRRA
refusal, dated October 30, 2007, and the Applicants’ Record was submitted
December 12, 2007.
Did the officer err by exceeding
jurisdiction or placing too much emphasis on one factor?
[19]
Within
the PRRA assessment, the officer placed too much emphasis on one factor by
giving more weight than exists within her specific jurisdiction in regard to
the fact that the Applicants did not meet the conditions of the entrepreneur
program, rather than a PRRA assessment of the Applicants’ evidence as a whole.
[20]
In
fact, in the reasons for decision (page 20 and following of the Record), the
officer makes several references to this factor:
Je constate que le requérant et sa
conjointe ont toujours subvenus aux besoins de leur famille par leur travail
depuis leur arrivée en 2001. Cependant ils sont venus comme immigrants dans la
catégorie des entrepreneurs et ils n’ont pas respectés leurs conditions. La
présente demande n’est pas un palier de révision de la perte de résidence...
Je constate qu’il a fait cet
investissement [$100,000] quelques jours seulement avant son enquête pour non
respect des conditions...
J’accorde par contre un poids
significatif dans ma décision au fait que le requérant n’ait pas respecté les
conditions du programme des entrepreneurs.
(Motion Record, officer’s
decision, p. 24.)
[21]
IRPA
provides for a specific procedure of establishing whether or not conditions have
been met, starting with an application to cancel conditions of landing and
ending with an appeal to a Member of an IAD under subsection 63(3) of the IRPA.
SERIOUS ISSUE
Did the officer commit unreasonable errors in evaluating
whether the Applicants would be persecuted or subject to risk to life or safety
based on their religion if returned to Pakistan?
[22]
The
Applicants presented evidence to prove their Ismaili faith:
· Letters of
identification from His Highness Prince Aga Khan Imami Ismaili Council;
· Certified
true copy of certificate of honour for Mrs. Lakhani from his Highness Prince
Aga Khan Imami Ismailia Association;
· Certified
true copy of a certificate of honour for a teaching program for Mrs. Lakhani;
· Certified
true copy of an Aga Khan Council certificate from the Institute of Computer
Studies
for Mrs. Lakhani.
[23]
The
PRRA officer found them credible as to their religious denomination: “Je suis
satisfaite que les demandeurs appartiennent à cette communauté religieuse”. (Motion Record, p. 32,
officer’s decision, 4th paragraph.)
[24]
The
officer accepted their explanation as to why no risk allegations were presented
by their Consultant (who was not a lawyer) in their first application for
protection in 2006 and considered all of the evidence presented by the
Applicants regardless of the date of such evidence (before or after the first
PRRA refusal):
Conformément à l’Article 113(a) de
la Loi sur l’immigration et la protection des réfugiés (LIPR) :
Le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient
alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas
raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés
au moment du rejet.
Les demandeurs expliquent qu’ils ont été
mal conseillés par leur premier représentant. Ils n’auraient donc pas présenté
d’allégations de risque. J’accepte ces explications. Tous les documents
présentés par les demandeurs seront donc considérés comme éléments de preuve au
titre de l’alinéa 113 a) de la LIPR.
(Motion Record, officer’s decision, p. 30.)
[25]
The
Applicants submitted in their current PRRA that, because of their religious
minority status, they would face persecution and risk to life and safety; and,
since they left Pakistan in August 2001, the
country conditions (documentation) in their regard have deteriorated
significantly.
[26]
In
fact, since their landing in Canada, six and half years ago, the Applicants
have not returned to Pakistan.
[27]
They
indicated in the PRRA that, even before coming to Canada, they lived through the
following events that had placed them at risk, all of which incidents were accepted
as credible by the PRRA officer:
·
They
were called “Kaafir” by the Sunnis, a derogatory word that means “infidels” as
they do not follow the same customs as Sunnis or other sects of Islam; for
instance, both men and women pray together in the same mosque (Motion
Record, female Applicant’s submissions, p. 133);
·
“They
(Sunni muslims) always treated me like I was inferior to them because I believe
in the Agakhan as our Ismaili spiritual leader, they would say that Ismailis
are committing … the greatest Sin, and they say Koran is for true Muslims not
for us. The situation… was such that if I/we argued to defend our religion they
could start a fight. So I/we had to keep quiet. I do not want for my children
to be treated like that.” (Motion Record, male Applicant’s submissions, p. 137);
·
The principal
male Applicant was harassed for money at his business and threatened that his
sons would be kidnapped (Motion Record, p. 138);
·
The
female Applicant had to run from someone following her on a street of a
neighbourhood in Karachi where many Ismailis
live as it is close to their mosque, when she was eight months pregnant with
her first son, which forced her to never go out alone on a street again (Motion
Record, p. 133).
[28]
According
to the country conditions documentation, the courts could not protect its
minorities; the whole, according to the US Country Report on Human Rights
Practices – Pakistan 2006 and the Religious Freedoms Report 2007, provided to
the officer as objective evidence.
[29]
In
fact, on April 23, 2007, four armed men stormed into the house of Mr. Lakhani’s
mother. She describes this event in her affidavit, that was before the PRRA
officer:
3. That in the morning time on
23/04/2007 at about 4 A.M. four robbers / Docoit equipped with fire-armed
illegally entered into by break – opening window of my above said house and
they roped our hands and put clothes into our mouth and then confined forcibly
me, my husband, my son Abdul Aziz and my daughter-in-law Mst. Saleema in a
room.
4. That thereafter, they extended
threats and warned us that if any value thing and precious items are not
recovered from your house then your grand son and grand daughter will be
kidnapped.
5. That after putting clothes
into our mouth, roping and confining us in a room, those four docoits break
opened the locks of all our Almirahs lying in various rooms and took away Gold
Ornaments, Diamond Rings, Jewelry, Price Bonds and Cash Rs. 12,00,000/- (One
Million and Two Hundred Thousand only.)
6. That after taking in their
possession all the valuable articles / goods/ items and all the saving I made
in my whole life taken-away and at the time of leaving our house they
threatened us on gun-point that if any FIR or complaint is lodged against them,
I and my whole family will be finished.
(Motion Record, p. 143-144).
[30]
The
PRRA officer evaluated evidence in this manner:
Je constate que cet affidavit ne fait pas
le lien entre cet évènement et le fait que la famille appartient à une minorité
religieuse. Il s’agit d’un
évènement isolé. D’ailleurs, la représentante des demandeurs précise
« no-one has ever broken into the client’s or their family’s home
before ». Cet
évènement ne démontre pas à ma satisfaction que les demandeurs sont ciblés
comme membres d’une minorité religieuse.
Les demandeurs ne soumettent aucun
document quant aux menaces et à la fermeture de leur mosquée, le fait que trois
autres familles Ismaili ont été ciblées et ont été victimes de vol ainsi
que la police soit corrompue. Conséquemment, la preuve quant à l’établissement
de ces faits ne me satisfait pas.
D’autre part, le guide du HCR distingue
la discrimination qui résulte en un simple traitement de faveur de celle qui
équivaut à une persécution. La persécution, par effet cumulatif ou à elle
seule, restreint gravement la jouissance par le demandeur de ses droits
fondamentaux : sérieuses restrictions au droit d’exercer un métier ou au
droit d’avoir accès aux établissements d’enseignement et/ou de santé
normalement ouvert à tous ou des mesures économiques imposées qui détruiraient
les moyens d’existence d’un groupe religieux donné.
(Motion Record, officer’s decision, p. 33.)
[31]
In Raza
v. Canada (Minister of Citizenship
and Immigration),
2007 FCA 385, [2007] F.C.J. No. 1632 (QL), the Federal Court of Appeal
confirmed Justice Richard Mosley’s conclusions as to the standard of review
applicable to decisions of PRRA officers.
[32]
Justice
Mosley found that the standard of review for questions of law was correctness,
for questions of fact – patent unreasonableness, and for questions of mixed
fact and law – reasonableness.
[33]
Analysis
of the issue of whether the events related by the Applicants fit the definition
of “persecution” within the Convention refugee definition involve mixed issues
of law and fact and, therefore, the correctness standard is that of
reasonableness.
[34]
A
very detailed analysis of the notion of persecution and whether or not past
events are enough to be qualified as persecution was undertaken by Justice J.
François Lemieux in Ranjha v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 637, [2003] F.C.J. No. 901 (QL).
[35]
In
this case, Mr. Ranjha, a refugee claimant from Pakistan, was believed by the Immigration
and Refugee Board (IRB) as to what he had been subjected to in Pakistan (he was
beaten and burned by the Pakistan Muslim League (PML) goons in Pakistan and was
arrested by police for his involvement in a protest against the government, who
also used tear gas and batons).
[36]
In
the case at bar, the PRRA officer found Applicants credible as to the armed
break-in at the family home, on April 23, 2007, and, as to the violations they
had suffered prior to coming to Canada.
[37]
Mr.
Ranja’s claim for refugee status was denied because, according to the tribunal,
“these alleged incidents were not repetitive, persistent and
systematic, and therefore, do not cumulatively amount to persecution” and
because “[T]hese
encounters were a result of participation in protests and rallies where police
used batons and, on one occasion, tear gas to break up the activity; only one
incident involved arrest”. (Ranjha, above, paras. 7 and 31.)
[38]
In
the case at bar, the PRRA officer also found that “Il s’agit d’un évènement isolé...
Cet
évènement ne démontre pas à ma satisfaction que les demandeurs sont ciblés
comme membres d’une minorité religieuse... je ne suis pas satisfaite que la
discrimination alléguée atteigne le niveau de gravité qu’on attribue à la
persécution”. (Motion Record, officer’s decision, p. 33.)
[39]
Justice
Mosley returned the matter for reconsideration and held :
[42] In my view, the error
the tribunal made in its analysis of persecution is not to have determined the
quality of incidents in terms of whether they constituted a fundamental
violation of human dignity, e.g. body mutilation as expressed in Chan,
supra, viz torture, beatings, violent physical mistreatment or the breaking up
of peaceful rallies. It seems to me that what led the tribunal to this error
was an exaggerated emphasis on the need for repetition and persistence.
[43] The evidence shows the applicant was severely
burned by PML goons in 1993, was arrested and tortured in 1996 and his arm was
fractured by the police when dispersing a rally in 1999.
[44] I have no hesitation in holding these incidents were serious enough as
to constitute a fundamental violation of the applicant's human dignity and have
so been recognized by judges of this Court. I need only cite Kang v. Canada
(Minister of Employment and Immigration), [1995] F.C.J. No. 1119, and
Justice Nadon's decision as a member of the Trial Division in Saad v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1140, where
one incident of torture qualified, in his view, as persecution. (Emphasis
added.)
[40]
For
the reasons similar to those in Ranjha, the PRRA officer appears to have
placed exaggerated emphasis on the need for repetition and persistence when she
stated that “Il s’agit d’un évènement isolé... Cet évènement ne
démontre pas à ma satisfaction que les demandeurs sont ciblés comme membres
d’une minorité religieuse... ”. The officer even quotes the undersigned
submissions within the PRRA application that no-one ever stormed into the
Applicants’ home before, in order to support her conclusion that the event of
April 23, 2007 was an isolated incident, yet this fact was brought to her
attention as to how the situation of minorities deteriorated in Pakistan since the
Applicants’ departure.
[41]
Moreover,
the officer failed to determine the gravity of this event, which may very well
be attributed to the same reason as mentioned by Justice Mosley in Ranjha,
above, placing too much emphasis on the need for repetition.
[42]
In
fact, looking at how the officer analyzes this serious incident in her analysis
of the evidence, on page 33, at paragraph 6, of the Motion Record, the officer
refers to it as if it were only a theft:
En ce sens, je ne suis pas satisfaite que
la discrimination alléguée (la possibilité d’être volé ainsi que les
paroles et les gestes inappropriés de d’autres membres de communautés
religieuses à leur égard) atteigne le niveau de gravité qu’on attribut à la
« persécution ». (Emphasis added.)
[43]
Having
accepted the event related in respect of the principal male Applicant’s mother,
in her affidavit, had occurred, a need exists to consider all of the
circumstances in context and not only the fact that the Applicants’ family was
deprived of their valuables and money :
·
There
were four robbers and they were armed with guns;
·
They
tied the hands of their captors and stuffed clothes into the mouths of a 63
year old woman (male Applicant’s mother), her husband, her son and her
daughter-in-law and forcibly confined them;
·
They
threatened to kidnap the grandchildren if they do not obtain all of their
valuables inside the house;
·
After
having taken the valuables and money, the robbers threatened the family at
gunpoint not to complain or file an FIR or else they will be “finished”.
[44]
The
PRRA Manual produced as Exhibit C, guides officers in the same direction as the
jurisprudence on the issue of persecution: “It will be necessary to
determine whether or not the harassment or sanctions that the applicant fears
are sufficiently serious to constitute persecution. Threats to a person’s life
and freedom for one of the reasons in the definition will constitute
persecution…” (Motion Record, p. 218.)
[45]
Yet,
instances of violations personally suffered by the Applicants as well as the
objective evidence provided as to the situation of minorities in Pakistan, speak for themselves.
[46]
The
question, the PRRA officer, asked herself, appears to be whether the incident
of April 23, 2007 was sufficient, in and of itself, to be qualified as
persecution: “Il s’agit d’un évènement isolé… Cet évènement ne démontre pas à
ma satisfaction…”.
[47]
It
is not until her conclusion on the issue of persecution that she holds that the
violations alleged do not constitute persecution.
[48]
The
question is whether all of the incidents of violations in the Applicants’
evidence and the country conditions, as a whole, in addition to the evidence of
treatment of the specific minority in Pakistan, cumulatively, constitute persecution. (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, Ranjha, above;
para. 6.4 “Persecution” of the PRRA Manual on page 218 of the Motion Record.)
[49]
A
single violation or mistreatment may or may not amount to persecution,
depending on the circumstances, its severity and possibility to be repeated;
however, this was not the issue that the PRRA officer had before her.
[50]
In addition
to the event of April 23, 2007 and the violations specified, the Applicants described
the extortion at the principal male Applicant’s business prior to their arrival
in Canada, in addition to the
Applicants having been threatened that their sons would be kidnapped.
[51]
This
factor was not given any analysis, other than mentioned by the officer in her
decision, which must be examined in respect of fact and law.
[52]
They
also stated that the female Applicant had been followed on a street of her
Ismaili neighbourhood during her pregnancy.
[53]
This
factor was not considered within the officer’s analysis of the persecution in
respect of the ground of belonging to a religious minority, and, consequently,
does not appear in the officer’s conclusion.
[54]
Lastly,
the Applicants filed evidence that outlined the situation of minorities in
Pakistan in today’s environment, this evidence is produced on page 148 and
following of the Motion Record and consists of the US County Report on Human
Rights Practices for 2006, the International Religious Freedoms Report 2007 –
Pakistan, and the Amnesty International Report 2007 – Pakistan.
[55]
The
Applicants and their counsel brought the officer’s attention to the underlined
passages in this evidence and referred the officer to the chapter on the
frequency of women being raped in Pakistan, as well as specifically quoting the
following passages:
On
November 25, unknown persons burned down an Ismaili place of worship in Chitral
district. HCRP reported that no arrests have been made. (Motion Record, p.
140.)
…The
documentation speaks of much more than simple discrimination and corruption, it
speaks of police torturing and raping citizens, of failure of the courts to
protect the minority rights, of a killing of a Shia leader on February 14,
2007, of a businessman Syed Anwar Abbas being killed outside his shop on March
9, 2007etc.
…security
forces tortured and abused persons. (Motion Record, p. 114.)
[56]
This
important evidence requires analysis in respect of alleged persecution and
demonstrates a need to consider the totality of the evidence in the case at
bar.
[57]
Having
failed to consider the objective evidence provided as to the human rights violations
perpetrated against minorities, the officer made the following finding of fact
and law when she states: “Les demandeurs ne soumettent aucun document quant aux
menaces et à la fermeture de leur mosque, le fait que trois autres familles Ismaili
ont été ciblées et ont été victimes de vol ainsi que la police soit corrompue.”
(Motion
Record, p. 33.)
[58]
“The
nature of the test for well-founded fear of persecution is described in terms
of “reasonable chance”: Is there a reasonable chance that persecution would
take place were the applicant returned to the country of origin? An applicant
need not show probability of persecution but need only show “reasonable chance”
or “serious possibility”.”
[59]
In
light of the facts accepted by the PRRA officer, and, in light of the country conditions
documentation, are these allegations reasonable?
[60]
The
country conditions documentation states: “Corruption was widespread in the
government and police forces, and the government made little effort to combat
the problem.” (Motion Record, p. 161, Country Report on Human Rights Practices
2006.)
[61]
The PRRA
officer’s requirement, to assess the gravity of all the circumstances of this
incident, necessitates analysis due to the possibility of exaggerated emphasis on
the need for repetition of such incident, and her consideration of the incident
as “discrimination”, requires further examination.
[62]
Lastly,
although the officer does not doubt the event of April 2007 did occur,
as described in the affidavit, she mentions : “Je constate que cet
affidavit ne fait pas de lien entre cet évènement et le fait que la famille
appartient à une minorité religieuse”.
[63]
The principal
male Applicant’s mother, who adduced the affidavit, stated clearly in the very
beginning, thereof, that she is Shia Imami Ismaili. (Motion Record, p. 143.)
[64]
The
link between the event and the religious beliefs becomes obvious in recalling that
the home of the in-laws is located in an Ismaili neighbourhood, that it is not
possible to practice one’s religion and attend an Ismaili mosque without it
being public knowledge.
[65]
The
officer notes the issue of persecution when she considers the document entitled
Response to Information Request (RIR), dated April 1, 2004. (Motion Record, p.
194.)
[66]
This
document speaks of generally peaceful coexistence between the two groups with the
exception of some instances of violence; it was presented to the officer to
demonstrate the situation of minorities, prior to, and up to, the year 2004,
but does not take into account the current situation which should have been
carefully examined, specifically from the period of 2004 to 2007, as
was produced in the country conditions documentation of the case at bar for the
second PRRA.
[67]
The
officer considers that this document establishes the same scenario as examined
before and, refrains from making a clear distinction in her conclusion as to whether
or not the situation of the religious minorities has deteriorated in the last
three years.
[68]
She
simply holds that “P-6 (Religious Freedom Report 2007) and P-8 (Country Report
on Human Rights Practices 2006) vont dans le même sens que le rapport précédent
(the RIR, dated April 1, 2007) à l’effet que les relations entre les
différentes communautés religieuses sont tendues”, without any further
substantial analysis. (Motion Record, p. 32.)
[69]
The
officer seems to have accepted that the female Applicant was at risk of being
raped:
La demanderesse allègue qu’étant une
jeune femme elle risquerait le viol à son retour au Pakistan…
... Les viols et les autres formes de
violences sont également fréquents, spécialement pour celles qui sont détenus
par les autorités policières (P-7 et P-8).
... Il est vrai que la preuve
documentaire générale indique que le Pakistan est aux prises avec de nombreux
problèmes notamment avec le traitement des minorités et des femmes par les
forces policières. Toutefois, l’arrêt Ward, indique que, sauf dans le
cas de l’effondrement complet de l’appareil étatique, il y a lieu de présumer
qu’un État est capable de protéger ses citoyens...Or, la demanderesse ne soumet
aucune preuve démontrant qu’elle a demandé la protection des autorités de son
pays ou qu’elle n’a pu le faire ou qu’elle ne pourrait recourir è cette
protection dans le future. Je conclus donc que cette protection est
effectivement disponible.
(Motion Record,
officer’s decision, pp. 31-22.)
[70]
Firstly,
the officer, when having accepted that an applicant is at risk, has an
obligation to study the issue of the state protection (Motion Record, p. 221;
PRRA Manual), as the PRRA officer is to possess an expertise in assessing the
issues of state protection.
[71]
Secondly,
the Applicant and her counsel explained that country protection cannot be
obtained for these Applicants as the human rights record is such that it is
unable to provide such protection. (Motion Record, p. 113-114 and 134.)
[72]
In
order to support these submissions, the relevant passages from the country
evidence were underlined for the officer, to name but a few:
…
Discriminatory legislation and the Government’s failure to take action against
societal forces hostile to those who practice a different faith fostered
religious intolerance, acts of violence, and intimidation against religious
minorities.
…
Public pressure routinely prevented courts from protecting minority rights.
…
Police often refused to prevent violence and harassment or refused to charge
persons who commit such offenses.
…
Police were at times implicated in rape cases.
(Motion Record,
pp. 148, 152, 157 and 182.)
[73]
All
of the above does, therefore, point to a serious issue under Toth v. Canada (Minister of Employment
and Immigration)
(1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587 (QL).
IRREPARABLE HARM
[74]
The
Applicants’ religious background was accepted as proven.
[75]
Given
that:
·
The
Applicants were informed that their faith is accepted as a relevant factor
within the current PRRA application;
·
The
human rights violations of the minority increased most significantly in the
last three years;
·
On
April 23, 2007, the Applicants’ family’s home in Karachi was broken into by
armed men who stuffed clothes into their mouths and ordered them to give all
their valuables and threatened to kill them should they seek protection from
police.
[76]
Their
initial PRRA, submitted in February 2006, was argued from the point of view of
their establishment in Canada and was denied for lack of any risk
allegations, in April 2006, as none had been presented, as specified above, due
to their particular circumstances.
[77]
It
is too late for the Applicants to ask for protection as refugees, as they have
departure orders rendered against them precluding them from asking for such
protection.
[78]
Also,
while the Applicants were allowed to wait for their H&C to be processed,
after the dismissal of the initial PRRA, the situation of the Applicants worsened
considerably, as shown by the event of April 23, 2007 and based on the
objective country documentation.
[79]
Such
documentation is reproduced on page 109 and following of the Motion Record and
includes an International Religious Freedoms Report for 2007 by the US Bureau
of Democracy, Human Rights, and Labour, released on September 14, 2007, a US
Country Report on Human Rights Practices 2006, released on March 6, 2007,
Amnesty International Report on Pakistan.
[80]
For
comparative purposes, a Response to an Information Request, dated April 1,
2004, was also provided within the PRRA application.
[81]
This
document states that 96% of the population in Pakistan is Muslim, majority of who are Sunni
Muslims, while the minority Shia population is between 10 and 20% and the
Ismaili minority, within that, is even smaller.
[82]
The
minority consists of Bohras, Dawoodies, Ismailis, and Khojas.
(Motion Record, p. 194.)
[83]
“The
government took some steps to improve its treatment of religious minorities
during the period covered by this report, but serious problems remained. Law
enforcement personnel abused religious minorities in custody. Security forces and
other government agencies did not adequately prevent or address societal abuse
against minorities. Discriminatory legislation and the Government’s failure to
take action against societal forces hostile to those who practice a different
faith fostered religious intolerance, acts of violence, and intimidation
against religious minorities.” (Motion Record, Religious Freedoms Report 2007,
p. 148.)
[84]
“Relations
between religious communities were tense. Societal discrimination against
religious minorities was widespread, and societal violence against such groups
occurred. Societal actors, including terrorist and extremist groups and
individuals, targeted religious congregations.” (Motion Record, above.)
[85]
“…The
consequences for contravening the country’s blasphemy laws are death for
defiling Islam or its prophets; life imprisonment for defiling, damaging, or
desecrating the Qur’an; and 10 years’ imprisonment for insulting another’s
religious feelings. These laws are often used to settle personal scores as well
as to intimidate reform-minded Muslims, sectarian opponents, and religious
minorities.” (Motion Record, above, p. 149.)
[86]
“Public
pressure routinely prevented courts from protecting minority rights. These same
pressures forced justices to take strong action against any perceived offense
to Sunni orthodoxy. Discrimination against religious minorities was rarely
placed before the judiciary. Courts would be unlikely to act objectively in
such cases.” (Motion Record, above, p. 152.)
[87]
“There
were several incidents involving the abuse of religious groups carried out by
individuals or organizations designated as terrorist organizations by the U.S.
Secretary of State under Section 219 of the Immigration and Nationality Act
and by armed sectarian extremist groups with strong links to such
organizations.” (Motion Record, above, p. 156.)
[88]
“…
on November 25, unknown persons burnt down an Ismaili place of worship in
Chitral district. HRCP reported that no arrests had been made.” (Motion Record,
above, p. 177.)
[89]
“Police
were at times implicated in rape cases. According to the NGO Women Against Rape
(WAR), there were 369 rape cases reported in the media, which WAR estimated to
be less than 5 percent of actual incidents. According to the HRCP,
statistically a woman was raped every two hours, or gang-raped every eight
hours.” (Motion Record, above, p. 182.)
[90]
As a
young woman of an Ismaili minority, living in an Ismaili neighbourhood, Mrs.
Lakhani is subject, not only to the same risks to life and safety as the rest
of the Applicants, but also to the particular consequences of her belonging to
a minority of a minority.
[91]
Although
history of discrimination of religious minorities in Pakistan is not a new
phenomenon, and the Lakhani family experienced violations before, such as
extortion for money at Mr. Lakhani’s business before coming to Canada,
no-one has ever broken into the Applicants’ family’s home before,
threatening the family with a kidnapping of their children.
[92]
The
Response to Information, covering the period 2001 to 2004, speaks of general
“peaceful coexistence” between the Shia and the Sunni, with occasional
outbreaks of violence between the extremist groups of Shia and Sunni, and
attacks on doctors.
[93]
In
an overview of today’s country conditions situation of Ismaili and other
minorities, it is evident that the situation has deteriorated significantly.
[94]
As
specified in the submissions, recent bombings of reform-minded supporters of
Benazir Bhutto demonstrate that Sunni extremists who support Al Qaeda and
Taliban are a real and imminent threat to the lives of those whom they perceive
to be against them, including the minorities of minorities, such as the
Applicants.
BALANCE OF CONVENIENCE
[95]
The
balance of convenience lies in favour of granting a stay for the following
reasons:
·
They
have a pending application for judicial review raising serious issues;
·
They
present neither a threat nor a burden to Canadian society;
·
They
have renewed all their passports on their own.
CONCLUSION
[96]
For
all of the above reasons, the stay of the removal is granted until a final
decision is rendered on the underlying application for leave and for judicial
review of the PRRA.
JUDGMENT
THIS COURT ORDERS that the
stay of
the removal be granted until a final decision is rendered on the underlying
application for leave and for judicial review on the PRRA.
“Michel M.J.
Shore”
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