Date: 20011115
Docket: IMM-6320-00
Neutral citation: 2001 FCT 1263
BETWEEN:
CHOUDHRY MUHAMMAD NADEEM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated November 7, 2000, in which the Board determined that the applicant was not a Convention Refugee.
[2] The issue is whether the Board erred in determining that state protection in Pakistan was available to the applicant.
[3] The Board determined that the applicant was not a Convention Refugee. It found that there was not clear and convincing evidence that the state would not be reasonably forthcoming with serious efforts to protect the claimant from the Sipah-e-Sahaba ("SSP"), his own Shia community and possibly the police, by reason of his Shia religion and his membership in a particular social group - Pakistan Shia Muslim minority, and possibly by reason of imputed anti-Shia political opinion, if he were returned to Pakistan.
[4] The incident that caused the problem for the applicant occurred when the applicant witnessed an SSP perpetrator leaving a March 1999 attack on a Model Town, Lahore iman bargah in which 11 people were killed. The applicant knows the identity of the perpetrator.
[5] The Board's finding was based on the following:
1) Lahore police have offered the applicant's father police protection for the applicant if he co-operates;
2) the applicant has not requested police protection and been denied it;
3) while the applicant's concern that protection will not be effective is genuine, the issue is not whether there is clear and convincing evidence that the police would not be reasonably forthcoming with a guarantee of effective protection, but whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection;
4) the police have repeatedly pursued the applicant and his father for co-operation, which is strong evidence that the police want to curb sectarian violence and bring the SSP militants to justice;
5) if the police do not accompany their offer of protection with a serious effort at protection, they could lose an important witness and incur further criticism in the press; and
6) recent documentary evidence suggests that authorities have been making serious efforts to bring Sunni militants such as the SSP to justice.
[6] The Board also considered the claim to persecution by his own Shia community. It found that while there is a serious possibility of serious human rights abuse of the claimant by the Shia community, "any risk of persecution by the Shia community or the police is best viewed as engendered by the claimant's particularity - specifically, his refusal to co-operate with the police investigation into the massacre, and not by the Convention reasons of race, religion, nationality, membership in particular social group, or genuinely held perception of anti-Shia political opinion."
[7] It was open to the Board to find that his fear of the Shia community is not based on a Convention Refugee ground and does not have any nexus to the definition. In my view, the Board has not misconstrued the evidence regarding the applicant's fear of persecution at the hands of the Shia community. I return to the central issue in this case as to whether state protection would be available to the applicant.
[8] The applicant submits that the Board did not pay enough attention to the fact that the father was beaten by some policemen as a result of his refusal to disclose the applicant's whereabouts. While it would have been preferable for the Board to refer to the beating of the father, it is not a reversible error to ignore it. The Board does accept that the applicant had a genuine subjective fear that police protection would not be effective if the claimant agrees to co-operate. The Board stated:
The claimant and his father heard about lawyers and judges being killed, and the claimant and his father are afraid that if the claimant co-operates the police will not be able to guarantee effective protection from SSP militants who might come to view his testimony in open court. I accept this concern as genuine and, given the ongoing sectarian killings in the Punjab despite the efforts of the police, well-founded.
[9] I do not read the latter part of this last sentence as confirming that there was objective evidence to support the applicant's fear that police protection would not be effective. As the Board said:
... the issue is not whether there is clear and convincing evidence that the police would not be reasonably forthcoming with a guarantee of effective protection; it is whether there is clear and convincing evidence that the police would not be reasonably forthcoming with serious efforts at protection.
[10] I will not repeat the other reasons that I set out above where the Board showed that police protection would be forthcoming. The onus is on the applicant to produce clear and convincing evidence that the police would not provide protection. The onus is not on the Board to provide proof that there will be police protection. The onus on the applicant to show the inability or unwillingness of the state to protect is a heavy one: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724.
[11] Pelletier J. dealt with a case of state protection in Pakistan where the applicant and his family:
... were the objects of a number of violent acts including assaults, attempted murder, destruction of property and kidnapping. In most cases the police were called but their efforts were ineffectual.
See: Syed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1556.
[12] Pelletier J. stated at paragraphs 13 and 14:
In the light of this evidence, the applicant objects to the CRDD's conclusion that the police protection was available to the applicant. He argues that the police went through the motions but did not provide any protection at all. ...
At the argument of the application for judicial review, counsel for the applicant (who was not counsel before the CRDD) relied extensively on the documentary evidence with respect to sectarian violence and lawlessness in Pakistan. Counsel for the respondent pointed to the documentary evidence tending to show a crackdown on lawbreakers.
Pelletier J. concludes, at paragraphs 19 and 21:
The CRDD clearly found that this was not a situation of complete breakdown of state apparatus. It is apparent from its reasons that the CRDD also found that the police response indicated a willingness to intercede on behalf of the applicant and his co-religionists, even if the circumstances made the response somewhat ineffective.
...
In the end, it was for the CRDD to assess the availability of police protection. The conclusion to which they came is not so unreasonable as to attract this Court's intervention.
I would adopt that last sentence in the case before me. The conclusion of the Board is not so unreasonable as to attract this Court's intervention.
[13] With respect to the documentary evidence, the Board acknowledged in its reasons that there were dissenting views in some news sources. There was, however, clear evidence supporting the conclusion:
... I am persuaded that the militant Sunni sectarian organizations engaged in criminal acts in the name of religion, including the SSP, are treated as criminals by the authorities, that the killings are deemed to be murders, and that the state is making a serious effort to curb these organizations and their violence.
[14] The applicant's concerns go the weight assigned to the evidence, something which is within the Board's jurisdiction and with which this Court ought not to interfere.
[15] The application for judicial review is dismissed.
"W. P McKeown"
JUDGE
TORONTO, ONTARIO
November 15, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6320-00
STYLE OF CAUSE: CHOUDHRY MUHAMMAD NADEEM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, NOVEMBER 7, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: THURSDAY, NOVEMBER 15, 2001
APPEARANCES: Mr. John Savaglio
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: John Savaglio
Barrister & Solicitor
1919 Brookshire Sq.
Pickering, Ontario
L1V 6L2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011115
Docket: IMM-6320-00
Between:
CHOUDHRY MUHAMMAD NADEEM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER