Date: 20120125
Docket: IMM-2065-12
Citation: 2013 FC 79
Ottawa, Ontario, January 25, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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MUHAMMAD
AYAZ
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Applicant
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and
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THE MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Mr. Muhammad Ayaz, is a citizen of Pakistan who fears persecution in Pakistan because of his adherence to the Muslim Zikri-Mehdvi
(Zikri) faith. In a decision dated February 6, 2012, a panel of the Refugee Protection Division of the
Immigration and Refugee Board (the Board)
concluded that the Applicant is not a Convention refugee or a person in need of
protection under s. 96 or ss. 97(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). In so finding, the Board
concluded that the Applicant had an internal flight alternative (IFA) in areas
outside of the town where he was allegedly persecuted.
[2]
The Applicant seeks to overturn this decision.
[3]
The decision is reviewable on a standard of reasonableness.
The role of the court when a reasonableness standard is appropriate is to
determine “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
A court should also examine whether the decision displays “justification,
transparency and intelligibility within the decision-making process” (Dunsmuir,
above at para 47). In spite of the high degree of deference owed to the
decision-maker in this case, I conclude that the Court’s intervention is
warranted.
[4]
The Board believed the Applicant’s story of persecution at
the hands of a local Mullah in the neighbourhood of one of his business offices
and appears to have accepted that a warrant for his arrest, on charges of
blasphemy, had been issued by the police in the Baldia town district of Karachi
(Baldia). The Board recognized that the Applicant’s fear was that he would be
at risk in other areas because of the blasphemy charges. In concluding that the
Applicant would not be persecuted in an IFA outside of Baldia, the Board made
two critical findings. With respect to the blasphemy charges, the Board found
that it was “unlikely that the authorities in other parts of the country would
become aware of or have a serious interest in following up on these charges”
(Decision, paragraph 22). In the event that he were to be arrested on the
blasphemy charges, the Board concluded as follows:
Any belief that he would not
receive a just hearing is largely speculative, particularly in light of
objective evidence that many such charges are baseless, bogus, laid largely for
harassment purposes, and are ultimately found frivolous and dismissed
(Decision, paragraph 24).
[5]
I have serious problems with both of these findings.
[6]
The Applicant does not dispute the Board’s finding that
Zikri adherents may suffer discrimination but are not persecuted in all regions
of Pakistan. The Applicant also acknowledges that the Board applied the correct
two-part test for IFA (Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706, 140 NR 138 (CA). However, as the Applicant
pointed out during the hearing before the Board, the issue is with respect to
the blasphemy charge and not just his fear of the Mullah in his local region.
Quite simply, the charge of blasphemy, which was accepted by the Board, puts a
much more serious risk into play.
[7]
The Board correctly identified the fact that, in Pakistan, warrants issued in one jurisdiction are not automatically forwarded to other jurisdictions.
There is a process for registering warrants in other areas. However, under the
Pakistani Code of Criminal Procedure, a warrant may be executed anywhere
in Pakistan. There was not a single piece of evidence before the Board that
would allow it to conclude that warrants are not routinely transferred or
accessed electronically by police in other jurisdictions. In supporting its
finding that the charges would not be referred outside Baldia, the Board relies
on the “nature of the alleged charges”. The Board does not appear to take into
account the seriousness of blasphemy charges against a person of a minority
religion in a country where religious intolerance is notorious. The Board also
refers to the Applicant’s “profile” as another reason why the charges would not
be known outside Baldia. While the Board recognizes the source of the charges
as a business dispute, the Board fails to address the fact that this dispute
resulted in charges of blasphemy, a very serious allegation against the
Applicant, regardless of its origin.
[8]
The second part of the Board’s decision – that the
Applicant would be afforded due process – is simply not intelligible. Even if
the charges are ultimately dismissed, the Applicant will face considerable time
in prison before his acquittal. The Board did not evaluate the treatment of a
person of the Applicant’s profile; that is, as a member of religious minority
charged with blasphemy. Yet, the record before the Board included significant,
credible documentary evidence that Pakistani courts fail to protect the rights
of religious minorities, that individuals subjected to such charges may spend
lengthy periods in detention and that torture of those in custody is commonplace.
The Board erred by failing to have regard to this relevant and probative
evidence.
[9]
Moreover, this is not a case where, as part of the judicial
review, an applicant selects extracts from the evidence which were not relied
on during the hearing. In the hearing before the Board, counsel for the
Applicant made extensive and specific reference to this evidence. It should
have been considered.
[10]
For these reasons, I conclude that the Board’s decision
does not display justification, transparency and
intelligibility within the decision-making process. I wish to emphasize that I am not finding that the Applicant should have
been afforded refugee protection; that is a matter for a newly-constituted
Board to determine with a full understanding of the nature of the claim and an
appreciation of the evidence.
[11]
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed, the
decision quashed and the matter remitted to a different panel of the Board for
re-determination; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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