Date: 20050323
Toronto, Ontario, March 23rd, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
AHMED TARIQ (a.k.a. TARIQ AHMED), SEEMA TARIQ,
HANSA TARIQ, KANZA TARIQ, MAHAD TARIQ, &
AHAD TARIQ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Tariq Ahmed and his family are Shia Muslims, originally from Pakistan. Their claim for refugee protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board, which found that they did not have a subjective fear of persecution in Pakistan. In coming to this conclusion, the Board relied heavily on the fact that the applicants had lived in the United States for a number of years prior to seeking refugee protection in Canada.
[2] The Board also found that the applicants' professed fear of persecution was not objectively well-founded. In this regard, the Board found that the applicants had not provided any evidence that they would be specifically targeted by Sunni extremists, nor did they fit the profile of those usually at risk.
[3] The Board rejected the female applicants' claim to be persons in need of protection based upon their fear of attack by extremists because they had become "Westernized", and wore Western clothing. Using her own specialized knowledge, the presiding member found that it was not uncommon for women to wear Western-style apparel in Karachi. From this she concluded that there was nothing more than a mere possibility that the female applicants would be subjected to persecution on this basis.
[4] The applicants argue that in finding that their claims were not subjectively well-founded based upon their alleged delay in seeking refugee protection, the Board failed to address their explanation as to when their fear of persecution arose. In addition, the applicants say that the Board ignored evidence as to the risk of persecution that they face in Pakistan. Finally, the applicants submit that the presiding member erred in relying upon her specialized knowledge with respect to the clothing worn by women in Karachi without first providing them with notice of her intent to do so, and the opportunity to address that information.
[5] For reasons that are explained below, I agree that the Board erred, and that these errors go to the very heart of the applicants' claims. As a result, the application for judicial review will be allowed.
The Issue of Delay and the Subjective Well-foundedness of the Claims
[6] The applicants lived in the United States for a number of years before coming to Canada and seeking refugee protection in 2002. From this, the Board concluded that the applicants lacked the requisite subjective fear of persecution.
[7] In his testimony, Mr. Ahmed explained that he left Pakistan in 1997 for economic reasons, and that his intention in coming to the United States was to try to establish a business and make some money before returning to Pakistan. Although he was concerned about conditions in Pakistan, he had no intention, at that time, of making a refugee claim.
[8] Things changed, Mr. Ahmed said, in the aftermath of the events of September 11, 2001. The American invasion of Afghanistan led to an increase in sectarian violence in Pakistan. According to Mr. Ahmed, in March of 2002, his own wife's brother was shot and seriously wounded by Sunni extremists in Pakistan, and several members of his mosque were shot and killed.
[9] As a result, the family became afraid of returning to Pakistan. Although they do not use the term, it appears that the applicants are essentially claiming that they became 'sur place' refugees.
[10] At the same time, Mr. Ahmed says, life became very difficult for Muslims in the United States. The family came to believe that they would not receive fair treatment in the United States, given the prevailing political climate in that country. In the circumstances, they decided that they had no alternative but to come to Canada and seek refugee protection, which they did.
[11] In her reasons, the presiding member stated that the applicants had not considered making a refugee claim until after September 11, 2001, when they became fearful of being deported from or arrested in the United States. The Board member did not accept this explanation, and found that the applicants' delay in seeking refugee protection indicated that they lacked a subjective fear of persecution.
[12] Nowhere in its analysis does the Board address the applicants' claim that they really only became concerned about their safety, were they to return to Pakistan, after conditions allegedly deteriorated in that country in the wake of the American invasion of Afghanistan in late 2001. Indeed, the triggering event for the claims appears to be the shooting of Mr. Ahmed's brother-in-law in March of 2002. The applicants came to Canada and made their refugee claims in August of 2002.
[13] Thus, if the applicants' evidence were accepted on this point, it would have greatly reduced the delay on their part in claiming protection.
[14] It is true that delay in claiming refugee protection can significantly call into question the bona fides of a refugee claimant's subjective fear of persecution: Pillai v. Minister of Citizenship and Immigration, [2002] 2 F.C. 481. That said, where, as here, claimants offer an explanation as to why they did not make their claims any sooner, it is incumbent on the Board to consider that explanation, and to decide whether it provides a reasonable justification for the delay, or whether it is indicative of a lack of subjective fear.
[15] From a review of the Board's reasons, it is not at all clear to me that the Board understood or considered the applicants' explanation as to why they filed their claims when they did. It was open to the Board to reject the applicants' explanation, and to find that their conduct over the time that they spent in the United States was inconsistent with their having had a well-founded fear of persecution. It was not open to the Board, however, to simply ignore it.
The Failure of the Board to Consider Evidence Relating to the Applicants' Profile
[16] The Board committed a further error in ignoring evidence relating to the applicants' claim that they would be targeted for persecution by Sunni extremists if they were to return to Pakistan. In its reasons, the Board stated that the applicants presented no evidence that they would be specifically targeted if they were to return to Pakistan. The Board further found that the applicants did not fit the usual profile of those targeted by Sunni fundamentalists. As a consequence, the Board concluded that the applicants' claim was not objectively well-founded.
[17] Mr. Ahmed was specifically asked why his family would be targeted by extremists if they were to return to Pakistan. He stated that having spent a number of years living in the West, the family would be perceived as having money, and would thus be a target for kidnappers.
[18] He also testified that members of his family still residing in Pakistan have been the victims of persecution because of their religion. As mentioned above, Mr. Ahmed's brother-in-law was shot and seriously wounded in sectarian violence, and six members of the family's mosque were shot and killed inside the mosque. In addition, Mr. Ahmed testified that his parents and siblings had also been subjected to verbal threats from Sunni extremists.
[19] This testimony was buttressed by documentary evidence filed with the Board after the hearing. These documents included a police report, hospital records and a medical report relating to the brother-in-law's gunshot wound, as well as a letter from the Imam of the family's mosque relating to the armed attack on the worshippers.
[20] The respondent submits that the Board is presumed to have considered all of the evidence before it, and that I should therefore interpret the Board's statement that the applicant had provided "no evidence" that they would be targeted by Sunni extremists if they were to return to Pakistan to mean that there was no such evidence that the Board found to be persuasive.
[21] I do not accept this submission. It is true that a tribunal will ordinarily be presumed to have considered all of the evidence before it, even if no reference is specifically made to any given piece of evidence in the tribunal's decision. That is not, however, the situation that we have here. This is not a case where the Board omitted to mention evidence. What we have here is a clear assertion by the Board that there was no evidence before it on a particular point when there was indeed just such evidence.
[22] In my view, this leads to the inescapable inference that the evidence was overlooked by the Board.
[23] The question of whether the applicants would be at risk from Sunni extremists if they were to return to Pakistan is obviously central to their refugee claim. Once again, while it would have been open to the Board to weigh the evidence provided by the applicants and to reject it, it was not open to the Board to simply ignore it.
The Board's Use Of Specialized Knowledge
[24] The applicants' claim was based, in part, upon the female applicants' fear that they would be targeted by extremists in Pakistan because they had become "Westernized", and wore Western-style clothing. In dismissing this aspect of the applicants' claim, the Board stated "According to the panel[']s specialized knowledge the presence of western dress is not uncommon in Karachi or any other major city in Pakistan ie: Islamabad".
[25] A review of the transcript discloses that although the clothing issue was discussed in the course of the hearing, at no time did the presiding member alert the applicants to her intention to rely on her own specialized knowledge with respect to the style of dress worn by women in Pakistani cities.
[26] The alleged failure of the Board member to alert the applicants to the fact that she intended to rely on her own specialized knowledge with respect to this issue raises a question of procedural fairness. Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
[27] The Board's procedural fairness obligations with respect to its ability to rely on extrinsic information are codified in Rule 18 of the Refugee Protection Division Rules. Rule 18 states:
Notice to the parties - Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information; and
(b) give evidence in support of their representations.
[28] In this case, the presiding member clearly used her own specialized knowledge to conclude that, to the extent that the applicants' fear of persecution was based on their Western appearance, the claim was not objectively well-founded. In doing so, the presiding member failed to first alert the applicants of her intention to use such knowledge, or to give the applicants an opportunity to make representations as to the reliability and use of whatever information it was that the presiding member had in this regard. This constitutes a procedural error, and a denial of natural justice: Kabedi v. Canada (Minister of Citizenship and Immigration), 2004 FC 442.
Conclusion
[29] For these reasons, the application for judicial review is allowed.
Certification
[30] Neither party has suggested a question for certification, and none arises here.
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3026-04
STYLE OF CAUSE: AHMED TARIQ (a.k.a TARIQ AHMED), SEEMA TARIQ, HANSA TARIQ, KANZA TARIQ, MAHAD TARIQ, & AHAD TARIQ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 21, 2005
REASONS FOR ORDER
AND ORDER: MACTAVISH J.
DATED: MARCH 23, 2005
APPEARANCES BY:
Dorothy Fox FOR THE APPLICANTS
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Dorothy Fox
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT