Date: 20030521
Docket: IMM-5566-01
Citation: 2003 FCT 637
BETWEEN:
MUHAMMAD ZULFIQ RANJHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
A. INTRODUCTION
[1] Mohammad Zulfiq Ranjha (the "applicant") is a 29 year-old citizen of Pakistan whose refugee claim, based on an alleged fear of persecution at the hands of the police and members of the Pakistan Muslim League ("PML") by reason of his political opinion as a member of the Pakistan Peoples Party ("PPP"), was denied by the Refugee Division of the Immigration and Refugee Board (the "tribunal") by decision dated November 19, 2001, which is sought to be set aside by his judicial review application.
[2] The tribunal did not draw any adverse findings of credibility against the applicant as to what he said he suffered.
[3] In his Personal Information Form ("PIF"), the applicant wrote he joined the PPP in 1991 after the PPP Government of Benazir Bhutto was dismissed by President Khan of Pakistan in 1990. He recited the following incidents involving the police:
(1) In November 1992, during the Long March protest, the police stopped PPP activists who were proceeding to Islamabad to join the main rally to protest against the government. They were beaten with sticks and not allowed to proceed to Islamabad.
(2) The PPP won the general election in 1993, an election which the applicant says he participated in and, as a result, was appointed Vice-President of the PPP Council in his area in 1996. On November 5, 1996, the PPP Government was again dismissed by President Leghari of Pakistan. Protest rallies were organized and the applicant states to have addressed the public condemning the President's action. The police used tear gas to disperse the rally.
(3) In August 1997, the applicant said he delivered a speech at a rally demanding the abolition of the Anti-terrorists Act introduced by the PML Government. He was arrested along with two other colleagues and detained at the police station for three days. He wrote: "I cannot forget the torture which I sustained in the Police Station, I was released with the warning that I should avoid such activities in future".
(4) On April 20, 1999, he gave what he described as "an emotional speech" condemning the criminal charge and sentence received by Benazir Bhutto. He says the Police "attacked over there, used tear gas shells and baton charge harshly, my left arm was fractured and a lot of participants of rally were also injured".
(5) In October 1999, General Musharraf led a military coup in Pakistan. On November 24, 2000, the PPP held a rally to protest government action. He gave a speech. The police raided the compound in which the rally was taking place "forcibly dispersed the rally, started arresting the participants, but thank God I succeeded in running away". He says the police raided his house and registered a FIR against him. That is when he fled the country.
[4] In his PIF, the applicant gave four examples of atrocities or threats which he claims he suffered at the hands of the PML. They are:
(1) In 1993, general elections were being held with him playing a very active role for the election of PPP candidates to the National Assembly. He provided the services of his truck. The PML candidate threatened him and sent his goons after him to stop his work for the PPP. He refused.
(2) In September 1993, he said "5 PML goons attacked there and beat us ruthlessly, they also put fire on the material, and one of the fire sprinkle [sic] they throw at me, which resulted burning of my neck, upper portion of chest and shoulder". The police were informed but did not take action against the PML goons due to political influence, according to him.
(3) In May 1998, the applicant told he was active and worked for the election of PPP candidates during the local elections that year. He was beaten by PML goons, a matter which was reported to the police but no action was taken.
(4) In September 1999, he spoke at a rally condemning the PML's regime for the massive arrest of PPP leaders. The next day, the PML came to his home when he was not there, and warned his family "of dire consequences to my family members".
B. THE TRIBUNAL'S DECISION
[5] The tribunal divided its analysis into two tranches. First, it considered whether the applicant had suffered past persecution. Second, the tribunal then considered whether the applicant would suffer persecution if he were to return to Pakistan.
(1) Past persecution
[6] In terms of past persecution, the tribunal analysed separately the incidents of persecution at the hands of the PML goons and at the hands of the police.
[7] The tribunal enumerated the incidents of persecution at the hands of the PML goons but, while acknowledging the seriousness of the September 1993 incident, found "that these alleged incidents were not repetitive, persistent and systematic, and therefore, do not cumulatively amount to persecution".
[8] Of the five incidents at the hands of the police, the tribunal said this:
These encounters were a result of participation in protests and rallies where police used batons and, on one occasion, tear gas to break up the activity; only one incident involved arrest. The panel takes judicial notice under Section 68(4) that this reaction by police is not only a common characteristic of politics in Pakistan but of many countries, including, upon occasion, Canada. The panel finds the reaction of the authorities to be pursuant to a law of general application to quell political unrest and not an act of persecution. The panel cites the Brar decision:
National security and peace and order are valid objectives of any state, and temporary derogation of civil rights in an emergency does not necessarily amount to persecution.
Therefore, considering the time between each difficulty and the nature of politics in Pakistan, the panel finds that these five incidents involving the police do not cumulatively amount to persecution.
The panel finds that the alleged mistreatment experienced by the claimant at the hands of police and members of the PML was neither repetitive nor persistent and does not cumulatively amount to persecution. The claimant has failed to establish, on a balance of probabilities, that he experienced persecution in Pakistan. [emphasis mine]
(2) Persecution upon return
[9] The tribunal then turned to the next question, that is, would the claimant suffer persecution if he were to return to Pakistan.
[10] The tribunal examined recent documentary evidence regarding the relationship of the PML and the PPP noting first from a response to an information request there were no reports of violent actions suffered by PPP members at the hands of PML members and, second, the PPP and PML had joined together with several other parties to form the Alliance for the Restoration of Democracy ("ARD"). The tribunal concluded:
The panel prefers the objective documentary evidence, noting the sources have no interest in the outcome of this claim. Therefore, the panel finds that there is insufficient credible evidence to establish, on a balance of probabilities, that the claimant would suffer persecution at the hands of the PML, or that his fear of persecution by members of the PML and factions thereof is well-founded.
[11] The tribunal then asked whether the applicant would suffer persecution at the hands of the police if he were to return to Pakistan today. It examined documentary evidence and quoted a response to information which stated there had been limited harassment of all political activists in 2000 since the Musharraf regime had taken over.
[12] The tribunal concluded:
The document goes on to say that the situation does not vary significantly throughout the country. Once again, the panel prefers the documentary evidence to the testimony of the claimant because it comes from objective and reliable sources having no interest in the outcome of this claim.
[13] The tribunal next examined the applicant's personal documentary evidence and found these documents did "not help to establish police interest in the claimant" for the following reasons:
(1) the arrest warrant was defective in substance because it must disclose clearly for what offence a person is being arrested. The warrants which the applicant filed, according to the tribunal, did not meet this requirement. The tribunal found comfort in its conclusion by referring to a recent German study concerning the traffic of fraudulent documents in Pakistan asylum claims which said "[N]early all warrants of arrest, court decisions and letters from lawyers turned out to be forged or incorrect as to their contents"; and
(2) the tribunal found the dates on the arrest warrants and proclamation pre-dated March 23, 2001, which is when he claimed the police came to his house to arrest him. The tribunal also concluded there was no mention of these specific documents in his narrative which is incorrect in so far as the FIR is concerned, nor were they mentioned in the port of entry notes. The tribunal concluded:
. . . the failure of the claimant to mention the existence of the Arrest Warrants and the Proclamation undermines the reliability of these documents. The panel once again notes the easy availability of false documents in Pakistan is well documented and finds, therefore, the reliability of the documents submitted to bolster the claim of police interest is seriously undermined and the documents do not help his claim. The panel finds that the claimant has failed to present sufficient, credible evidence to establish, on a balance of probabilities, he is wanted by the police in Pakistan today;
[14] Lastly, the tribunal considered a psychological assessment by Hap Davis, Ph.D., which it characterized as having been obtained "to bolster his claim". The tribunal found the medical report did not "support the credibility of the claimant and assigns weight accordingly".
[15] The tribunal came to this conclusion by noting the description by Dr. Davis of the applicant that "this man is prone to understatement and at his hearing he may not volunteer information" to be inconsistent and contradictory to the tribunal's observation of the applicant during the hearing where she found "the claimant was forthcoming and had no problems expressing himself; however, the panel notes he did have problems elaborating outside the information in his narrative".
[16] For the reasons expressed, the tribunal found the applicant had failed to establish, on a balance of probabilities, there is a reasonable possibility he would suffer persecution if he were to return to Pakistan today. It concluded "the claimant does not have a well-founded fear of persecution at the hands of the police or members of the PML by reason of his political opinion".
C. CONCLUSIONS
[17] At the beginning of this analysis, it is useful, I think, to set out the relevant parts for the purposes of this case of the definition of "Convention refugee" as set out in section 2 of the Immigration Act:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and [emphasis mine] |
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« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
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[18] As mentioned, the tribunal accepted the applicant's testimony on what he had been subjected to at the hands of the police and the PML goons.
[19] Essentially, what the tribunal concluded was this evidence was insufficient to establish his claim of a well-founded fear of persecution at the hands of the police and the PML by reason of his political opinion.
[20] As I see it, the tribunal's analysis focussed on the objective element of the statutory test for determining whether a person has a well-founded fear of persecution, namely, is that fear, when evaluated objectively, a valid one.
[21] In addition, the well-founded fear must be of "persecution". The tribunal, in its reasons, found the incidents involved not to be ones of "persecution". As to the incidents involving the police, the tribunal rested its finding of no persecution on two grounds: (1) the acts were neither repetitive nor persistent nor cumulatively amounting to persecution; and/or (2) the reaction of the authorities in breaking up protests and rallies i.e., quelling political unrest pursuant to a law of general application, were not acts of persecution.
[22] These two findings by the tribunal constitute, in my opinion, errors of law with the result the tribunal's decision must be set aside.
[23] In my view, the tribunal had insufficient basis to invoke the doctrine of a law of general application (and, in this case, reference was also made to the national emergency doctrine justifying temporary derogation of civil rights) to immunize the acts of the police which included arrest and torture in 1997 and the fracturing of his arm in 1999 as being non-persecutorial.
[24] There is ample jurisprudence from this Court that security measures, for example, to unmask terrorists, can never justify torture and physical violence of innocent civilians as a means to that end (see Kaillyapillai v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 232, Rajaratnam v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1019, Rajathurai v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1023, and Alfred v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 463.
[25] The fountainhead for this line of cases is found in Justice Linden's decision in Thirunavukkarasu v. Canada, [1994] 1 F.C. 589 at 601, where he said this:
¶ 22 The panel made no adverse finding about the appellant's credibility. The appellant's testimony reveals that he was subjected to arbitrary arrest and detention, as well as beatings and torture, at the hands of the Sri Lankan government during his time in Colombo. These arrests were motivated by the simple fact of the appellant's being a Tamil. As the appellant argues, the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beating and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety. [emphasis mine]
[26] This jurisprudence finds additional support in a line of cases dealing with the laws of general application in areas such as forced sterilization and prosecution of conscientious objectors.
[27] The Supreme Court of Canada in Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593, recognized it was quite possible a law or policy of general application may well be violative of basic human rights and thus very much persecutory.
[28] Justice La Forest, delivering a minority judgment but with the majority not dealing with the point, cited with approval Justice Linden's decision in Cheung v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 314, at 323:
¶ 17 Even if forced sterilization were accepted as a law of general application, that fact would not necessarily prevent a claim to Convention refugee status. Under certain circumstances, the operation of a law of general application can constitute persecution. ... Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.
(See also Zolfagharkhani v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 540 (C.A.).
[29] The tribunal's second error of law relates to the finding of no persecution in the incidents described by the applicant and this finding requires an interpretation of the tribunal's reasons.
[30] The tribunal characterized the incidents the applicant suffered at the hands of the PML not to be "repetitive, persistent and systematic, and therefore, do not cumulatively amount to persecution".
[31] The tribunal characterized the incidents involving the police as "[T]hese encounters were a result of participation in protests and rallies where police used batons and, on one occasion, tear gas to break up the activity; only one incident involved arrest".
[32] As noted, the tribunal went on to find:
. . .the reaction of the authorities to be pursuant to a law of general application to quell political unrest and not an act of persecution....
Therefore, considering the time between each difficulty and the nature of politics in Pakistan, the panel finds that these five incidents involving the police do not cumulatively amount to persecution.
[33] As noted, the tribunal concluded the alleged mistreatment experienced by the claimant at the hands of the police and members of the PML, "was neither repetitive nor persistent and does not cumulatively amount to persecution. The claimant has failed to establish, on the balance of probabilities, that he experienced persecution in Pakistan".
[34] The tribunal's reasons in this case, as to the applicant's persecution, seem to be based on two grounds: (1) either the incidents recited by the applicant, when taken individually, were not acts of persecution but harassment and when taken cumulatively, do not amount to persecution; (2) the incidents described were not numerous enough to constitute persecution.
[35] The Federal Court of Appeal's decision in Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601, is the leading case dealing with the notion of persecution under the Act in terms of refugee status under the Convention.
[36] In Rajudeen, supra, the applicant, a young Tamil male, described his experiences of persecution he suffered in the space of eight months all at the hands of a group of Sinalese individuals who constituted the majority in the place where he lived and where the police offered no protection. These experiences amounted to four incidents including two beatings with sticks and two instances of threats to his life without physical violence being experienced.
[37] Justice Heald noted the term "persecution" was not defined in the Act and referred to dictionary definitions in the following way:
The Living Webster Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."
The Shorter Oxford English Dictionary contains inter alia, the following definitions of "persecution':
A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source.
Based on the evidence of this case, it is clear to me that this applicant was persecuted over a lengthy period of time in Sri Lanka because of his religious beliefs as well as his race. . . .
I have quoted from the evidence at some length because it establishes beyond doubt a lengthy period of systematic infliction of threats and of personal injury. The applicant was not mistreated because of civil unrest in Sri Lanka but because he was a Tamil and a Muslim. He committed no overt acts entitling any one to invoke counter-measures against him. He was not a member of any political party or group nor was he a member or supporter of any revolutionary group. Accordingly, in my view, the Board ignored the evidence of the applicant in this regard, notwithstanding its finding that he was a credible witness, and, in so doing, erred in law.
[38] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Justice La Forest endorsed the concept of persecution as meaning "sustained or systematic violation of basic human rights demonstrative of a failure of « state protection » ." In Chan, supra, quoting from his concept of persecution in Ward, stated that, "this Court endorsed an approach in which the concern of refugee law ought to be the denial of human dignity in any key way with the sustained or systematic denial of core human rights as the appropriate standard".
[39] Justice La Forest, in Chan, supra, then stated:
¶ 70 Both Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154, and Cheung were approved in Ward for developing tests making the consideration of basic human rights the appropriate focus of a refugee inquiry. It was noted that groups defined by a characteristic that is changeable or from which disassociation is possible, so long as neither option requires renunciation of basic human rights, were beyond Canada's obligation and responsibility. The essential question is whether the persecution alleged by the claimant threatens his or her basic human rights in a fundamental way.
[40] Justice La Forest concluded in Chan, supra, forced sterilization constituted "a grave intrusion on a person's rights" and an "irreversible and serious intrusion on the basic rights of the individual. . ." and would "constitute a gross infringement of the security of the person and readily qualify as the type of fundamental violation of basic human rights that constitutes persecution as discussed in the mentioned authorities and the UNHCR Handbook..." and "it is utterly beyond dispute that forced sterilization is in essence an inhuman and degrading treatment involving bodily mutilation, and constitutes the very type of fundamental violation of basic human rights that is the concern of refugee law".
[41] The Federal Court of Appeal in Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49, recognized an obligation by the Refugee Board to squarely address the question of whether cumulative acts of harassment by the state amounted to persecution. That Court in Sagharichi v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 796, made this point:
The incidents recited by the appellant in her testimony were no doubt unfortunate as they constituted in all appearances incidents of discrimination or even possibly harassment; but both members, in their respective reasons, make it clear that for them they were not serious or systematic enough to be characterized as persecution, or to lead to a conclusion that there was a serious possibility of persecution in the future.
¶ 3 It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, . . . . It is true also that the identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact, legal concepts being involved.
[42] In my view, the error the tribunal made in its analysis of persecution is not to have determined the quality of incidents in terms of whether they constituted a fundamental violation of human dignity, e.g. body mutilation as expressed in Chan, supra, viz torture, beatings, violent physical mistreatment or the breaking up of peaceful rallies. It seems to me that what led the tribunal to this error was an exaggerated emphasis on the need for repetition and persistence.
[43] The evidence shows the applicant was severely burned by PML goons in 1993, was arrested and tortured in 1996 and his arm was fractured by the police when dispersing a rally in 1999.
[44] I have no hesitation in holding these incidents were serious enough as to constitute a fundamental violation of the applicant's human dignity and have so been recognized by judges of this Court. I need only cite Kang v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1119, and Justice Nadon's decision as a member of the Trial Division in Saad v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1140, where one incident of torture qualified, in his view, as persecution.
[45] I am aware the tribunal discussed the incidents mentioned by the applicant were in terms of past persecution and the focus of any refugee claim is not past persecution but is forward looking, that is, a well-founded fear of persecution should he return to Pakistan.
[46] Reading the tribunal's decision as a whole, I have no doubt in concluding the view the tribunal took of the absence of the applicant's past persecution necessarily impacted on its view as to whether the applicant would be persecuted should he return to his country of origin.
[47] In Oyarzo Marchant v. Minister of Employment and Immigration, [1982] 2 F.C. 779, Chief Justice Thurlow stated past incidents are part of the whole picture and serve as a foundation for the assessment of his present fear.
[48] In terms of his present fear of returning to Pakistan, there are two items which I briefly refer to. First, I note the applicant left Pakistan in November 2000. He filed documentary evidence of what was currently happening in Pakistan in terms of the army and police and the arrests of political activists. In my view, the tribunal ignored this evidence.
[49] Finally, the tribunal commented upon the arrest warrant against the applicant which was filed in evidence. It appears the tribunal gave no weight to that arrest warrant seemingly because a complete section of the Code had not been referred to in the body of the text of the warrant nor were the offences he was charged with specified in the text. These findings, in my view, were patently unreasonable because the section reference had been explained during the proceedings and it is apparent from looking at the arrest warrant, the sections of the Penal Code of India he had been charged with were mentioned.
[50] For all of these reasons, this judicial review application is granted, the tribunal's decision is set aside, and the applicant's refugee claim is remitted to a differently constituted panel of the Immigration and Refugee Board for reconsideration. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5566-01
STYLE OF CAUSE: MUHAMMAD ZULFIQ RANJHA v M.C.I.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 10, 2003
REASONS FOR ORDER: Lemieux J.
APPEARANCES:
Mr. Satnam S. Aujla FOR APPLICANT
Ms. Kerry A. Franklin FOR RESPONDENT
SOLICITORS OF RECORD:
Yanko Merchant Law Group
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT