Date: 200412010
Docket: IMM-1523-04
Citation: 2004 FC 1727
Toronto, Ontario, December 10th, 2004
Present: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
AMIR SARWAR CHOUDHRY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 23, 2004, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision of the Refugee Protection Division dated the 23rd day of January, 2004, be set aside and the matter be referred back for redetermination.
Background
[3] The applicant, Amir Sarwar Choudhry, is a citizen of Pakistan who claims a well-founded fear of persecution on the basis of his religion (he is a Shia Muslim).
[4] The applicant stated that his father was a very religious person in their Shia community and as the applicant got older he followed in his father's footsteps. In July 1998 the applicant graduated from the University of Agriculture, Fasilabad as a Doctor of Veterinary Medicine. He was then involved in conducting research at a post-doctoral level at the University.
[5] In September 1998 he was attacked and beaten up near his home by four Sipah-i-Sahaba gangsters. He was taken to the hospital where he remained for five days. He reported the incident to the police but they did nothing for him.
[6] In May 1999 his mother was assaulted by Sipah-i-Sahaba gangsters, ostensibly because of the applicant's activities as a Shia.
[7] On August 9, 1991 the applicant and other family members were beaten up at home and the house looted by members of the Sipah-i-Sahaba. The incident was reported to the police but again nothing was done.
[8] On December 7, 1999 the applicant and a number of other Shia Muslims were attacked at the applicant's home by the Sipah-i-Sahaba. The matter was reported to the police and a few people were arrested but released soon thereafter.
[9] On May 20, 2000 the applicant was again assaulted. This time his attackers threatened to kill him.
[10] On August 2, 2000 according to their neighbours, while the applicant and his family were in a nearby town Sipah-i-Sahaba gangsters showed up at the applicant's house firing guns into the air and calling the applicant's name.
[11] The applicant left that same night and went into hiding in Islamabad. He received a Canadian visitor visa on August 7, 2000 and left for Canada on August 18, 2000. The applicant stated he fears for his safety if he returns to Pakistan.
[12] The applicant made a claim for Convention refugee status on September 27, 2000. His claim was heard by the Board on December 8, 2003.
Reasons of the Board
[13] The Board stated that:
Although credibility concerns were raised during the hearing and remained unresolved at the conclusion of the hearing, the determinative issue is whether the changes put in place by the state of Pakistan since the claimant left would provide adequate, although, not necessarily perfect protection should he return to Pakistan today?
[14] The Board member then stated:
The oral decision I rendered at the conclusion of the hearing is not available due to difficulties with the recording device (R-4). As a result I have re-produced from memory only my analysis as it pertains to the determinative issue of state protection.
[15] The Board noted that it relied on the US Department of State Report for the year 2001, the British Home Office Report for April 2002, various recent responses to information requests found in Exhibit R-1, and current press accounts in determining how state protection for citizens of Pakistan has changed since President Musharraf's coup in 1999. For example, the Board noted:
[16] The U.S. DOS Report for 2001 indicated:
- . . . human rights record of the Pakistan government remained poor, but there were some improvements with regard to protection of religious minorities from extremists; however, serious problems remained;
- in August 2001, two organizations blamed for sectarian killings were banned. Several hundred activists of the Sipah-i-Sahaba ("SSP") and Tehrik-e-Jafria ("TJP") were arrested;
- although police corruption is widespread, the government has taken a number of steps to improve police effectiveness . . .
- after October 1999, sectarian violence decreased, but then increased again in early 2001.
[17] The U.S. DOS Report April 2002 indicated:
. . . in a number of places show the difficulties President Musharraf has had in perfectly controlling sectarian violence.
President Musharraf authorized the use of the army to maintain public order during religious holidays.
. . . Five organizations responsible for sectarian killings were banned by year's end, and the government accelerated a crackdown on members of several extremist religious groups.
. . . the number of sectarian attacks against Shia professionals declined significantly . .
[18] The British Home Office Assessment, April 2002 Report, indicated :
5 more extremist groups were banned in January including the Sunni based SSP and the Shia based TJP . . .
This report makes mention of pre-emptive action, taken by the government to detain leaders when violent action is contemplated. In addition, the government has been quick to respond to outbursts of sectarian violence, although these actions have not curtailed sectarian murders.
[19] Response to Information Request PAK37965.E outlines the difficulty President Musharraf
is having in curbing militant violence and delivering on his promises.
[20] The Board noted that the news reports in Exhibit R-1, section 1.11 and 1.19 are mostly after
the ban of January 2002, and found that the evidence was mixed, some positive and some negative for those fearful of religiously motivated terrorism.
[21] The Board held that while as a result of extremist groups such as the SSP, the applicant
testified that he was at risk of serious harm when he fled Pakistan, conditions have continued to improve, including (i) the ban on the SSP has resulted in it no longer operating openly or with impunity; (ii) the SSP offices have been closed; and (iii) the army and local police forces have made round-ups of known members to curtail violent incidents.
[22] The Board found that the change in country conditions is durable. President Musharraf
received an additional five-year mandate and his activities since taking power have been to steadily implement measures that improve the situation for both religious sects.
[23] The Board noted that there was much evidence to support that the task of totally curbing
religious violence will be difficult, however, President Musharraf was serious about achieving this goal. The fact that there are still killings demonstrates that in spite of the government's best efforts, the protection for the Shia is not perfect. However, the fact that protection is not perfect is not fatal to the proposition that Pakistan now has adequate protection for Shia (see Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.)).
[24] The Board stated that on a balance of probabilities, the government of Pakistan has been
making serious efforts to curb religious violence. Proactive steps are taken when there is knowledge of an attack. No longer do sectarian attacks occur without a serious investigation, without charges, and without convictions where the evidence supports such conviction.
[25] The Board found that the changes implemented by the Pakistani government are substantive
and durable. The state of Pakistan is making serious efforts to provide protection to its citizens. Adequate but not necessarily perfect protection would be available to the applicant if required.
Applicant's Submissions
[26] The applicant submitted that the Board erred in finding that the applicant does not have a
prospective danger of persecution in Pakistan, based on a change in circumstances for Shias.
[27] The applicant submitted that the Board ignored evidence that was before it at the hearing
which was contrary to its conclusions. Particularly, the Board failed to consider the impact of the applicant's profession as a doctor in assessing the likelihood of persecution he would face in Pakistan.
[28] The applicant submitted that while the Board is not obligated to refer to all documentary
evidence, it may not base its finding on a highly selective use of the evidence, ignoring significant evidence contrary to its findings (see Hassanzadeh-Oksoi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 644 ( T.D.) (QL)).
[29] The applicant submitted that the Board ignored evidence on country conditions that was
before it that highlights the fact that Shia professionals are a category that is the most likely to face persecution and individual targeting by militant Sunni groups such as the SSP, the applicant's agent of persecution. The applicant referred to a passage from the Amnesty International Report 2003 - Pakistan, as well as passages from the United States Department of State Report ("U.S. DOS Report") on Human Rights Practices in Pakistan released March 2003, as well as the U.K. Home Office Assessment Report on Pakistan released April 2003 in support.
[30] The applicant submitted that the Board ignored the recent and relevant documentary evidence
before it at the hearing which illustrated that there is a lack of adequate state protection for Shias in Pakistan and that the government is insincere in its commitment to uphold the ban on militant groups. This is a reviewable error (see Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (QL) (C.A.)).
[31] The applicant further submitted that there is no durable and lasting change of circumstances
to indicate that Shia minorities, especially a person of the applicant's profile as a professional Shia, are offered protection in Pakistan (see Tariq v.Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 822).
[32] The applicant submitted that while the Board is not obligated to address all evidence relied
on by counsel, it does not dispose of its duty by merely discounting evidence contrary to its decision, without explaining its reasons for doing so (see Javaid v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 233).
[33] In the applicant's further memorandum, the applicant made submissions on the issue of credibility. As the Board decided that state protection was the determinative issue, I will not include the applicant's submissions on credibility as it is not in issue in this judicial review.
Respondent's Submissions
[34] The respondent submitted that the Board's reasons reflect a balanced and fair assessment of
the documentary evidence on country conditions in Pakistan. The Board took into account reports which are both favourable and unfavourable to the outcome of the applicant's claim in determining whether or not adequate state protection was available to the applicant.
[35] There was ample documentary evidence to support the Board's conclusion that adequate state protection was available to the applicant in Pakistan. The applicant is asking this Court to re-weigh and re-assess all of the documentary evidence in this case .
[36] The respondent submitted that the passages taken from the documentary evidence, which are
cited in the applicant's materials, simply indicate that the state authorities cannot provide perfect protection to Shia in all places and at all times and that it is not always successful at protecting Shia from attacks originating from Sunni extremists. This falls short of successfully rebutting the presumption of state protection because it does not meet the standard of clear and convincing confirmation of the state's inability to protect the Shia from extremists attacks. The onus is on the applicant to demonstrate a state's inability to afford protection (see Villafranca, supra).
[37] The respondent submitted that it is well established that a state is not required to provide
perfect or effective protection to its citizens, the protection need only be adequate (see Smirnov v. Canada (Secretary of State) [1995] 1 F.C. 780 (T.D.)). Where the state is making serious efforts to protect its citizens, adequate state protection is available to them. The Board found that the evidence demonstrated that the government was making serious efforts to rectify the problems of violence against Shias in Pakistan (see Sheikh v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 64 (QL)).
[38] The respondent submitted that there is no evidence before this Court of anything that was
overlooked by the Board. A tribunal is not required to refer to every piece of evidence before it in order to discharge its statutory duty to give reasons for its decision.
[39] The respondent submitted that contrary to the applicant's assertion, a careful examination of the transcript demonstrates that the Board paid attention to his profile as a professional doctor working in the field of veterinary medicine in its analysis of state protection.
[40] Further, the Board made explicit reference in the transcript and reasons to both the Amnesty
International and United States Department of State Reports which dealt directly with the targeted killings of professionals and doctors in Pakistan. The record shows that the Board similarly dealt with up-to-date documentary evidence.
[41] The respondent requested that the application for judicial review be dismissed.
Issue
[42] Did the Board make a reviewable error in its assessment of the availability of state
protection?
Analysis and Decision
[43] Standard of Review
As the issue of changed circumstances is a question of fact, the applicable standard of review is patent unreasonableness (see Razzaq v. Canada (Minister of Citizenship and Immigration) 2003 FC 864; Rasheed v. Canada (Minister of Citizenship and Immigration) 2004 FC 786).
[44] It is trite law that a Board need not mention every piece of evidence that was before it in its
decision, however, if there is evidence that is contrary to the conclusion it reached, it must deal with that contrary evidence and say why it did not accept this evidence (see Javaid supra).
[45] The Amnesty International Human Rights Report 2003 for the Islamic Republic of Pakistan
states at page 1 under the heading, "Lack of Protection for Minority Communities" (applicant's record at page 47):
The state continued to ignore abuses inflicted by private individuals or groups against members of minority communities. At least 40 members of the minority Shi'a community, mainly doctors and other professionals and some 65 Westerners and Christians died in targeted killings. Preventative and protective measures were non-existent or inadequate, and action was taken to investigate such killings only following domestic and international pressure.
[46] Further, at page 1 under the heading, "Arbitrary Detention and Transfer of People to U.S.
Custody:
In January, four religious groups were banned and thousands of Islamists arrested and held under administrative detention. They were released within days or weeks.
[47] There was evidence before the Board that the applicant was a Shia Muslim who was also
a doctor.
[48] The Board assessed much of the documentary evidence both favouring the existence of state
protection and taking away from the existence of state protection. However, the Board did not, in its oral decision or written decision, deal with the evidence noted above. I cannot tell from either the oral or written decisions whether the Board considered this evidence. Since this documentary evidence runs contrary to the Board's conclusion that state protection was available to the applicant, it should have been dealt with by the Board in light of the evidence before the Board that the applicant was a Shia Muslim doctor. The board only mentions the fact that the applicant is a doctor in its oral decision. The Board made a reviewable error in failing to deal with this evidence.
[49] The application for judicial review is therefore allowed and the matter is referred to a
different panel for redetermination.
[50] Neither party wished to submit a serious question of general importance for my
consideration.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is referred back to a different panel for redetermination.
John A. O'Keefe
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1523-04
STYLE OF CAUSE: Amir Sarwar Choudhry v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 24, 2004
REASONS FOR ORDER AND ORDER: O'Keefe, J.
APPEARANCES:
Lani Gozlan APPLICANT
Robert Bafaro RESPONDENT
SOLICITORS OF RECORD:
Max Berger & Associates
Toronto, Ontario APPLICANT
Department of Justice
Toronto, Ontario RESPONDENT