Date: 20020227
Docket: IMM-6036-00
Neutral citation: 2002 FCT 223
BETWEEN:
ABDUL MALIK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 of the decision of a single member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") dated October 23, 2000, wherein the Board determined that the applicant was not a Convention Refugee.
[2] The applicant seeks a declaration that the applicant be declared a Convention refugee pursuant to subsections 18(1) and (3) of the Federal Court Act. The applicant seeks an order in the nature of certiorari to set aside the above decision of the Board. In the alternative to a declaration, the applicant seeks an order in the nature of mandamus directing the Board to reconsider the matter on the existing record in accordance with reasons provided by the Court pursuant to paragraph 18.1(3)(b) of the Federal Court Act. In the alternative to a declaration or mandamus, the applicant requests that the matter be referred back for a new hearing before a differently constituted panel.
[3] The applicant seeks costs of the application.
Background
[4] The applicant is a citizen of Pakistan. The applicant lived in the Kotli district in Kashmir at the Pakistan-India border.
[5] The applicant claims to have a well-founded fear of persecution by the Sipah-e-Sahaba because he is a member of Pakistan's Shia sect of Muslims, which is a religious minority. The applicant also claims to fear the Indian army as a result of the Kashmir conflict. The applicant alleges that state protection is not available to him.
[6] The applicant has a wife, four sons, and a daughter, all Pakistani citizens living in Azad Kashmir, Pakistan.
[7] The applicant's Board hearing was on September 12, 2000. The decision was rendered on October 23, 2000.
[8] The Board was not persuaded that the applicant had a well-founded fear of persecution for any of the enumerated grounds should he return to Pakistan.
Applicant's Submission
[9] The applicant submits that the Board erred in law by basing its decision on erroneous findings of fact which it made in a perverse and/or capricious manner without due regard to the evidence properly before it.
[10] The applicant submits that the Board erred in law by reaching conclusions based on no evidence or on evidence not properly before the Board. The applicant submits that the Board erred in law by misstating and/or misinterpreting the evidence.
[11] The applicant submits that the tribunal erred in law by finding that there was adequate state protection for the applicant in Pakistan.
[12] The applicant submits that the Board erred by failing to provide the applicant with notice that Kotli was being proposed as an internal flight alternative ("IFA").
[13] The applicant submits that the Board erred in finding that Kotli was a suitable IFA.
Respondent's Submissions
[14] The respondent submits that the Board found that the applicant would not have been denied state protection because he is Shia. The respondent submits that the documentary evidence demonstrates that Shias are well-integrated into Pakistani society and are not systematically discriminated against.
[15] The respondent submits that the applicant has failed to demonstrate that the Board has committed a reviewable error in its assessment of the evidence before it.
[16] The respondent submits that the applicant has failed to demonstrate that the Board's findings in relation to the availability and adequacy of state protection were perverse, capricious or without regard to the evidence before it.
[17] The respondent submits that the applicant was given adequate notice at the hearing of the internal flight alternative issue.
[18] The respondent submits that the applicant has failed to demonstrate that the Board's finding in relation to the viability of an IFA in Pakistan was perverse, capricious or without regard to the evidence before it.
[19] Issues
1. Did the Board err in law by finding that there was adequate state protection for the applicant in Pakistan?
2. Was sufficient notice given to the applicant that an "internal flight alternative" was to be in issue?
3. Can the applicant argue the "internal flight alternative" issue?
4. If the applicant can argue the "internal flight alternative" issue, was the Board in error on its finding that the applicant had an "internal flight alternative" in Pakistan?
Relevant Statutory Provisions
[20] The relevant section of the Immigration Act, supra states:
|
19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
Analysis
[21] The standard of review in this case is reasonableness simpliciter.
[22] Issue 1
Did the Board err in law by finding that there was adequate state protection for the applicant in Pakistan?
The Board, in its decision, made the following statements:
At page 1:
In March 1999, five Shia scholars held a meeting at a Shia mosque in the claimant's village. They were shot at, and two of them were killed. The claimant and others rushed the victims to the next hospital. The claimant and others reported the shootings to the police. A week later, the claimant received an anonymous letter stating that he would be next. He took the letter to the nearest army post. The commanding officer was sympathetic but could not offer any protection against sectarian violence.
At page 2:
Looking at the responses the claimant received from both the army and the police when he and his fellow villagers reported incidents of violence directed towards the small Shia population of his village, they correspond to what the documentation before us reflects, namely, that the authorities are often helpless when trying to curb sectarian violence.
On May 15, 1999 the claimant's store was attached by two gunmen and an innocent bystander was killed in this incident. The shooting was reported to the police, but, as the claimant stated in his narrative, the authorities were helpless.
. . .
. . . Among many other documents, a newsmagazine report describes that the country is contending with political, sectarian and criminal violence on a scale that is close to uncontrollable. Karachi is especially described as a fertile climate for simple economic crimes and personal vendettas, with lines blurred between political, sectarian and criminal violence, with easy availability of weaponry, while the police - corrupt, demoralized and undermanned - resort to terrorist methods themselves. The article states that normal citizens survive as best as they can. . . .
[23] I am satisfied from the above quoted passages that the decision of the Board, finding that state protection was available for the applicant, was not reasonable.
[24] Issue 2
Was sufficient notice given to the applicant that an "internal flight alternative" was to be in issue?
In Balasubramaniam v. Canada (Secretary of State) [1994] F.C.J. No. 64 (F.C.A.) at paragraphs 3 to 5, the Court of Appeal stated:
At the beginning of the hearing before the Board, the presiding member indicated that the IFA was an issue the Board wanted to be addressed. The appellant was questioned by the Refugee Hearing Officer (RHO) and expressed his fears if he were to be returned to the Jaffna, Colombo and Kandy areas. Points of clarification were sought by the presiding member with regard to Colombo.
The appellant pleads before us that the notice given by the Board was insufficient in that it did not give the appellant the opportunity to respond adequately to the IFA issue and this would explain the paucity of the evidence as noted by the Board.
There is no doubt that the notice given by the Board complies with the jurisprudence of this Court as stated by Mahoney J.A. in Rasaratman v. Canada (Minister and Employment and Immigration) [Note omitted] and later reaffirmed by Linden J.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration). (emphasis added)
[25] I have reviewed the transcript and the Board made it known to the then counsel for the applicant that the IFA was to be an issue in the case. Then later in the hearing, the Board member asked the applicant whether or not the town of Kotli would be an IFA for him. Based on the law as enunciated in Balasubramaniam, supra I am satisfied that sufficient notice of the IFA being an issue was given to the applicant. I also note that no request was made to the Board for an adjournment to prepare further material with respect to the IFA.
[26] Issue 3
Can the applicant argue the "internal flight alternative" issue?
It should be noted that the IFA issue was not raised by the applicant's then counsel in his memorandum of fact and law but the respondent made an extensive argument on the IFA issue in its further memorandum of argument. Accordingly, I see no prejudice to the respondent. I therefore will allow the applicant to argue the IFA issue.
[27] Issue 4
If the applicant can argue the "internal flight alternative" issue, was the Board in error on its finding that the applicant had an "internal flight alternative" in Pakistan?
At page 105 of the Tribunal Record, the following is found in the transcript:
HOMSI Yes, I realize this. But it was a very small place and there were only five or six other Shia families. So now you're telling me that the town of Kotli has quite a larger Shia population. So let's say financial consideration, because your family was there and your business was there and your house was in this other village. Is that the only reason why you would not move, for example, to the town of Kotli?
CLAIMANT I would have uprooted my business and gone to the bigger town, but even in the big town the Shia people have the same problems. They are in greater number, though, but they have problems facing them.
At page 2 of its decision the Board stated:
. . . The paper estimates the Shi'a population to be approximately 15-20% of the population and dates the beginning of the escalated violence in the mid-1980's as the result of a vendetta between the leaders of the Shi'a and Sunni political parties. In the beginning both groups primarily targeted each other's hitmen, but then changed tactics and began targeting high-profile members of the two communities - doctors, lawyers, businessmen, intellectuals and government officials. Even more recently, they have switched to indiscriminate reprisal killings, such as attacks on mosques, in which anyone even remotely connected to the other branch is a potential target. . . .
[28] I am of the opinion that the Board made a reviewable error in its assessment of the IFA in Kotli. The transcript discloses that the applicant testified that he would have the same problems in the bigger town. If this is true, Kotli would not be an IFA for the applicant. The Board did not seem to address in its decision the fact that the applicant would have the same problems in the bigger town. The applicant's testimony would appear to be supported by the remarks from page 2 of the decision cited above. I therefore find that the Board made a reviewable error in relation to the IFA issue.
[29] The application for judicial review is allowed and the matter is remitted for redetermination by a different panel of the Board.
[30] The parties shall have one week from the date these Reasons to submit any proposed serious question of general importance for my consideration.
(Sgd.) "John A. O'Keefe" Judge
Vancouver, British Columbia
February 27, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6036-00
STYLE OF CAUSE: ABDUL MALIK
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, November 15, 2001
REASONS FOR ORDER OF O'KEEFE J.
DATED: Wednesday, February 27, 2002
APPEARANCES:
Mr. Daniel Kleiman
FOR APPLICANT
Mr. Steven Jarvis
FOR RESPONDENT
SOLICITORS OF RECORD:
Daniel Kleiman
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
FOR APPLICANT
Department of Justice
Ontario Regional Office
130 King Street West
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT