Date: 20010529
Docket: IMM-559-00
Neutral Citation: 2001 FCT 540
Ottawa, Ontario, this 29th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NAFEES AKBAR TARIQ
SHAZIA NAFEES
DANYAL AKBAR
ROHAN AKBAR
ADNAN AKBAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated January 18, 2000, of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board (the "IRB"). In its decision, the CRDD determined that the applicants were not Convention refugees.
Order Sought
[2] The applicants seek that the above decision be set aside pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. The applicants also seek that their claims be referred back to the CRDD for redetermination with such directions as this honourable Court considers appropriate.
Background Facts
[3] The applicants, Nafees Akbar Tariq (the "father"), Shazia Nafees (the "mother"), and their children, Danyal Akbar, Rohan Akbar and Adnan Akbar are citizens of Pakistan and Shiite Muslims. The applicants entered Canada with valid visitor visas on June 17, 1997 and indicated their intention to make a refugee claim on July 11, 1997.
[4] The father claimed a well-founded fear of persecution in Pakistan by reason of political opinion (his membership in the Pakistan People's Party (the "PPP")), religion (Shia Muslim), and membership in particular social groups (Shia Muslim and members of or persons with connections to PPP). The mother and children claimed a well-founded fear of persecution in Pakistan by reason of their relationship to the father.
[5] The applicants' Convention refugee claims were heard May 4, 1999 and October 28, 1999. At the Convention refugee hearing, the father testified that the claimants feared the Pakistani Muslim League (the "PML") and the Sunni extremists of Sipa-e-Sahaba (the "SSP"). On October 12, 1999, the Pakistani Muslim League government of Nawaz Sharif was removed in a military coup. In its reasons for decision dated January 11, 2000, the CRDD denied the applicants' refugee claims. The CRDD stated in part the following:
In the panel's view, the father's fear of the PML is no longer objectively well-founded. In one of the most significant political developments in Pakistan's recent history, the PML government of Nawaz Sharif was removed in an October 1999 military coup led by General Pervez Musharraf. Sharif and other PML ministers have been detained and the new military government has set about establishing its administration. The fact that General Musharraf has been able to detain Sharif and other PML potentates for months is a clear indication that his new military administration is in meaningful, effective and durable control of state force and the PML is no longer, and a clear indication that the conversion of the power structure is likely to last. If the PML has been ousted from government and its leaders are in detention, we highly doubt that the PML is not in any condition now to continue to persecute its opponents. Any remaining free PML operatives are far more likely to be too busy running for their own cover. We therefore highly doubt the father has much to fear from them at this time. For this reason, the panel finds that the father no longer has good grounds to fear persecution by the PML.
[6] The CRDD also found that the applicants' fears of the SSP were not objectively well-founded. The CRDD had alternative reasons to find that the father's fears of the PML and the SSP were not objectively well-founded. In this regard, the CRDD stated:
All states, not just democracies, are presumed capable of protecting their citizens. Therefore, as the PML is no longer in control of the state and new military rulers are, it became incumbent on the father to persuade the panel that there is clear and convincing evidence that the state would not protect him from the PML and the SSP. After the coup occurred, the father was asked whether he was still afraid. The father testified that the PPP has had problems with the military. As the cause of the problems was, no doubt, in large measure a result of the fact that the PML used to be in control of the military, this cannot be reasonably regarded as clear and convincing evidence that a military which is clearly no longer fettered by PML directions and which has taken the dramatic step of detaining a PML prime minister would not now take steps to curtail PML efforts against PML opponents when requested.
The father also orally testified that he is also still afraid of the SSP, suggesting that while the military coup may have taken care of the PML, the SSP are still at large. When confronted with evidence to suggest that the new military government has pledged to curtail sectarian violence, for which the SSP has been in large measure responsible, the father called the pledge "just a statement," and testified that the institutions are still the same and that everybody is Sunni. However, documentary evidence before us suggests that this is clearly not true . . .
. . .
For all these reasons, then, the panel finds that the father's fear of persecution in Pakistan is not objectively well-founded. As the mother's and minors' fears are based on his, the panel finds that their fears of persecution are also not objectively well-founded.
[7] The CRDD also concluded that there were no "compelling reasons" under subsection 2(3) of the Act.
Applicants' Submissions
[8] 1. Did the Board err in law by applying too high a standard of proof on
Nafees Akbar Tariq to establish that his fear of persecution in Pakistan is well-founded?
The applicants submit a claimant for Convention refugee status need only demonstrate there is more than a mere possibility that he or she may face persecution upon return to the country of nationality. The applicants argue the standard is lower than a balance of probabilities and cite seven cases in support of this submission.
[9] The applicants argue the CRDD erred in law by stating "we highly doubt that the father has much to fear from them at this time." The CRDD, in the applicants' submission, has applied too high a burden since claimants are not required to prove any element of their claim beyond a reasonable doubt. The CRDD's use of the words "much to fear" has also added a higher element than required by law according to the applicants. The applicants submit the same above errors were committed when the CRDD stated "we highly doubt that the PML is not in any condition now to continue to persecute its opponents."
[10] The applicants offer the decision of Chichmanov v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 832, A-243-91 (September 3, 1992) (F.C.A), where it was held that the Board erred in law by imposing too high a burden of proof when it said "we are not convinced that the claimant faces a reasonable chance that he would be persecuted for his political opinions should he be returned to Bulgaria". The applicants argue that in many cases, the Court has found the Board to err by imposing too high a burden of proof by stating there is no serious possibility that the claimant "would" face persecution. Ponniah v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 32 (F.C.A.); Wang v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1150, A-28-93 (August 4, 1994) (F.C.T.D.) and Chen v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 235 (F.C.T.D.) are offered in support of this submission.
[11] The applicants also offer the decision of Cortez v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 882, A-39-93 (September 3, 1993) (F.C.T.D.). In Cortez, supra, the Court allowed the application for judicial review where the Board rejected the claim because it doubted one aspect of the claimant's testimony. The Court stated that proof beyond a reasonable doubt was not required. Furthermore, by the Board basing this aspect of its decision on a mere doubt, the Court found that a burden beyond that prescribed by the Act was imposed. The applicants also submit Yip v. Canada (Minister of Employment and Immigration) (1993), 70 F.T.R. 175 (F.C.T.D.) where the Court held the Board erred by imposing a burden that required a claimant to demonstrate an element of the claim beyond a doubt.
[12] Moreover, the applicants submit the Federal Court has allowed applications for judicial review where the Board has misstated the standard of proof in one part of its reasons, but has correctly stated the test in another part. The decisions of Arduengo v. Canada (Minister of Employment and Immigration) (1981), 40 N.R. 436 (F.C.A.); Ovakimoglu v. Canada (Minister of Employment and Immigration) (1983), 52 N.R. 67 (F.C.A.); Carpio v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 64 (F.C.T.D.) and Flores v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 137 (F.C.T.D.) are offered by the applicants in support of this argument.
[13] 2. Did the Board err in law in finding that the change of circumstances in
Pakistan was "effective and durable" and of such a nature as to remove the objective basis of the applicants' fears?
The applicants argue the CRDD erred in law by concluding that the change of circumstances in Pakistan 16 days before the resumption of the hearing was sufficiently meaningful, effective and durable, so as to remove the objective basis of the well-founded fear of their claim. The applicants submit this conclusion is undermined by the CRDD statement that "we highly doubt that the PML is not in any condition now to continue to persecute its opponents." By expressing a mere doubt, even though modified by the word "highly," the CRDD's reasoning, according to the applicants, does not support a finding of a meaningful, effective and durable change with a clear indication of a conversion to a power structure that is likely to last. Furthermore, the applicants submit there was no evidence on the record before the CRDD from which to base its conclusions regarding the change of circumstances in Pakistan.
[14] The applicants offer the case of Ahmed v. Canada (Minister of Employment and
Immigration) (1993), 156 N.R. 221 (F.C.A.) where the Federal Court of Appeal found that the mere fact of a change of government (in Bangladesh) was not, in itself, sufficient to render the genuine fear of the claimant unreasonable and without foundation. The applicants also offer Vodopainov v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 964, A-1539-92 (June 20, 1995) (F.C.T.D.), where it was held that the three month independence of Ukraine was insufficient because it could not yet be concluded that the change was stabilized and effective. The applicants further submit Magana v. Canada (Minister of Employment and Immigration) (1993), 70 F.T.R. 136 (F.C.T.D.), where the Court decided the Board erred in finding that the peace accord in El Salvador demonstrated a meaningful and effective change of circumstances, so as to remove the objective basis of the claim. The Court stated that the articles relied on in the peace accord were no more than three months old and concluded that the Board's findings were couched in tentative terms.
[15] The applicants submit the documentary evidence of the situation after the military
coup was introduced by them and the Refugee Claim Officer as Exhibits C-12 and R-6, respectively. The only other evidence relating to circumstances after the coup was contained in the Human Rights Watch World Report for 1999, which was submitted by the applicants, along with written submissions as post-hearing evidence. In summary, the applicants argue none of the evidence before the CRDD could have supported its conclusion on this point.
[16] 3. Did the Board err in law by concluding the applicants were unable to
demonstrate clear and convincing evidence regarding Pakistan's ability to protect them from persecution?
The CRDD gave alternative reasons for its finding that the applicants' did not have an objectively well-founded fear of persecution. The alternative reasons state that the applicants did not provide clear and convincing evidence that the state would not protect them from the PML and SSP. The applicants argue this alternative analysis is based upon the CRDD's findings regarding the new government. Therefore, the applicants submit this alternative analysis is subject to the same errors mentioned in the above "change of circumstances" submissions. The applicants submit the CRDD's findings regarding the new government are based only upon statements as to its intentions, statements which should have been dismissed as mere propaganda.
Respondent's Submissions
[17] 1. Standard of Review
The respondent submits this honourable Court should only interfere with the CRDD if it is satisfied that it based its conclusion on irrelevant considerations or ignored evidence. Moreover, the respondent submits if the CRDD's inferences and conclusions were reasonably open to it on the record, this Court should not interfere even if it disagrees with such inferences. Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (F.C.T.D.) is offered in support of the above submissions.
[18] The respondent argues that in order to be reviewable, an alleged error of fact must
be truly erroneous, made capriciously or without regard to the evidence, and the decision must be based on the erroneous finding. According to the respondent, none of these three conditions have been met in this case. The respondent offers Rohm and Haas Co. of Canada v. Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175 (F.C.A.); Bhuiyan et al. v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 310 (F.C.T.D.) and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.
[19] Furthermore, the respondent submits this Court should not interfere unless the
CRDD's decision was patently unreasonable or made in a "perverse or capricious manner and without regard to the material before it". National Corn Grower's Association v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; W.W. Lester (1978) Ltd. v. United Association of Journeyman, [1990] 3 S.C.R. 644; Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129, A-972-82 (February 23, 1983) (F.C.A.) and Bhuiyan, supra are offered in support of this argument. Moreover, the respondent submits the appropriate standard of review was confirmed as patent unreasonableness for determinations of whether there is more than a mere possibility that a claimant would face persecution in Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280 (F.C.T.D.).
[20] 2. Standard of Proof
The fact that the CRDD wrote that it highly doubted the father had much to fear does not, in the respondent's submission, indicate a higher threshold test. The respondent submits that it was open to the CRDD to find that it highly doubted the father's fear. Use of this language only implies that its doubt was high and not that the applicants had a higher test to meet. Use of the words "much to fear," according to the respondent, does not imply that a higher test was used either. The respondent submits this phrase suggests the applicants would have little to fear.
[21] The respondent submits the findings of the CRDD must be considered in light of
the definition of "persecution" enunciated by this Court. Persecution requires an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment. Mere harassment is insufficient. The decisions of Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); Olearczyk v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.) and Murugiah v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 230 (F.C.T.D.) are offered in support of this submission.
[22] 3. Change of Circumstances
The respondent submits the test for Convention refugee status depends upon the circumstances at the time of the hearing. In order to satisfy the definition, the respondent argues there must be evidence of a prospective risk of persecution if the applicants return to their country of origin. The respondent cites Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.); Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (F.C.A.) and Canada (Minister of Employment and Immigration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262 (F.C.A.) in support of this argument.
[23] Furthermore, the respondent submits that the issue of "changed circumstances" is
not a question of law but a question of fact. The conditions at the time the applicants fled their country are relevant, but only to the extent that other evidence fails to show it is no longer reasonable for them to fear persecution due to the changes. The respondent submits the changes in Pakistan must be factually assessed in order to determine whether the change is meaningful and effective enough to render the genuine fear of the applicants unreasonable and without foundation. Cuadra v. Canada (Solicitor General) (1993), 157 N.R. 390 (F.C.A.); Ahmed, supra and Rahman v. Canada (Minister of Employment and Immigration), [1993] A.C.F. No. 487, A-1244-91 (May 14, 1993) (F.C.A.) are offered in support of this argument. The finding of the CRDD, in the respondent's submission, was not "devoid of rationality."
[24] 4. State Protection
The respondent submits that one of the principles underlying the international refugee protection regime is that the refugee division is "surrogate or substitute protection." The respondent submits the following passage of LaForest, J. at page 709 of Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689:
International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason, James Hathaway refers to the refugee scheme as "surrogate or substitute protection", activated only upon failure of national protection; see The Law of Refugee Status (1991), at p. 135.
Absent a complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C.R. 605 (F.C.A.), the Supreme Court of Canada stated that it should be assumed that the state is capable of protecting a refugee claimant. Otherwise, it held that "clear and convincing confirmation of a state's inability to protect must be provided."
[25] The respondent suggests the correct legal test for state protection can be further
explored in the Federal Court of Appeal decision of Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.) at pages 533 to 534:
Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country's political and judicial institutions.
. . .
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her (See Canada (Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725, 103 D.L.R. (4th) 1.)
[26] The respondent also offers Canada (Minister of Employment and Immigration)
v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.) to support its argument that state protection cannot, even in democratic states, always guarantee protection. It is not enough for the applicants to merely show that their government has not always been effective at protecting persons in their particular situation. Mendivil v. Canada (Secretary of State) (1994), 167 N.R. 91 (F.C.A) is also submitted in support of this submission. The respondent cites Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (F.C.T.D.) where Justice Gibson stated the following:
This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
[27] The CRDD relied on oral testimony and documentary evidence presented in
reaching its conclusion that the applicants had not provided "clear and convincing" proof of Pakistan's inability to protect them. The respondent offers Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) where the Court stated "the fact that some of the documentary evidence is not mentioned in the Board's reasons is not fatal to its decision." Similarly, the respondent submits the fact that there was other evidence before the CRDD does not establish that it was ignored or misconstrued. The respondent submits its was open to the CRDD to prefer the objective documentary evidence over the applicants' questionable and biased testimony.
Issues
[28] 1. Did the Board err in law by applying too high a standard of proof on the
applicant father to establish that his fear of persecution in Pakistan is well-founded?
2. Did the Board err in law in finding that the change of circumstances in Pakistan was "effective and durable" and of such a nature as to remove the objective basis of the applicants' fears?
3. Did the Board err in law in concluding that the applicants were unable to demonstrate clear and convincing evidence regarding the state's ability to protect the applicants from persecution?
Analysis and Decision
[29] 1. Did the Board err in law by applying too high a standard of proof on the
applicant father to establish that his fear of persecution in Pakistan is well-founded?
The CRDD stated the following in its decision:
If the PML has been ousted from government and its leaders are in detention, we highly doubt that the PML is not in any condition to now continue to persecute its opponents. Any remaining free PML operatives are far more likely to be too busy running for their own cover. We therefore highly doubt the father has much to fear from them at this time.
The Federal Court of Appeal in Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 stated at page 245:
An applicant, according to Adjei, supra, does not have to prove that persecution would be more likely than not. He has to establish "good grounds" or "reasonable chance" for fearing persecution.
"Good grounds" or "reasonable chance" is defined in Adjei as occupying the field between upper and lower limits; it is less than a 50 per cent chance (i.e., a probability), but more than a minimal or mere possibility. There is no intermediate ground: what falls between the two limits is "good grounds".
If the claimant, as the Board said, "may face slightly more than a mere possibility" of persecution, he had crossed the lower limit and had made his case of "good grounds" or a "reasonable chance" for fearing persecution.
I would allow the s. 28 application [Federal Court Act, R.S.C. 1985, c. F-7], I would set aside the decision rendered by the Refugee Division of the Immigration and Refugee Board, dated May 18, 1989, and I would refer the matter back for a redetermination by a differently constituted panel.
In the present case, the Board stated that it highly doubted that the father had much to fear. What did the Board mean by the words "highly doubt"? Was it that the applicant faced "slightly more than a mere possibility" of persecution? I do not know what the Board meant as there is no explanation in the decision. If the words "highly doubt" mean the same as "slightly more than a mere possibility", then the applicant has established that he has good grounds or a reasonable chance for fearing prosecution. I therefore conclude that the Board has made an error in failing to clearly state what standard of proof it had applied in order to determine the refugee status of the applicants.
[30] 2. Did the Board err in law in finding that the change of circumstances in
Pakistan was "effective and durable" and of such a nature as to remove the objective basis of the applicants' fears?
The Board held hearings in this matter on May 4, 1999 and October 28, 1999. On October 12, 1999, the PML government of Pakistan, led by Prime Minister Nawaz Sharif was overthrown in a military coup.
[31] Basically, the Board concluded that since the PML government had been
ousted from power and replaced with a military government, the applicants' fear of persecution was no longer objectively well-founded and that there had been a meaningful and effective change in the country conditions. The following statements are excerpts from various articles printed after the coup took place:
BBC News, October 27, 1999
Pakistan has been threatened with removal from the Commonwealth unless it gives the organization a clear timetable for returning the country to democratic rule.
. . .
The general has made given [sic] no deadline in public for new elections but the BBC understands he has indicated to the Commonwealth that he expects to remain in power for at least a year.
YAHOO News, October 24, 1999
Musharraf said one week ago that he was forced into taking charge because of economic and political chaos. But he has pledged an eventual return to democratic rule and to install "real democracy" and accountability.
The Board itself recognized in its decision that changes were only in process when it stated, "the new military government has set about establishing its administration". As was Rothstein J. in Magana v. Canada (The Minsiter of Employment and Immigration) (1993), 70 F.T.R. 136 (F.C.T.D.) and Gibson J. in Vodopianov v. Canada (The Minister of Employment and Immigration), (June 20, 1995), A-1539-92, (F.C.T.D.), I am of the opinion that there was not a change in country conditions that was meaningful and effective. The documentary evidence only spoke to planned changes and this is understandable since the coup had only happened a few days earlier. I am of the view that a more detailed analysis of the evidence of changes in country conditions was necessary to meet the requirement that the change be meaningful and effective enough or substantial, durable and effective enough to make the applicants' fear unreasonable and thus, without foundation. I therefore conclude that the Board erred in law.
[32] 3. Did the Board err in law in concluding that the applicants were unable to
demonstrate clear and convincing evidence regarding the state's ability to protect the applicants from persecution?
For the same reasons relating to the lack of evidence showing an effective, meaningful and durable change in country conditions in Pakistan, I am of the opinion that the Board erred in law in finding that the state now had the ability to protect the applicants from persecution.
[33] The applicants' application is allowed and the matter is referred back for a
redetermination by a differently constituted panel of the Board.
[34] Neither party wished to certify a question pursuant to section 83 of the Act.
ORDER
[35] IT IS ORDERED that the applicants' application for judicial review is
allowed and the matter is referred back for a redetermination by a differently constituted panel of the Board.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 29, 2001