PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
RIDA KANWALA RAZAK
NASIMA WAHID
MEHWISH KAMWAL RAZZAK
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] If preference is given to objective documentary evidence rather than to personal evidence, intelligible, explicit and not necessarily lengthy reasons must be given for having preferred one over the other. A particular conclusion may reasonably be open to the first instance, trier of fact; however, reasons must then adequately support the conclusion reached.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on November 27, 2003, dismissed the Applicants' claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] Citizens of Pakistan, the Applicants, Wahid Razzak, his wife Nasima Wahid, and their two daughters Mehwish and Rida, allege a well-founded fear of persecution due to their Sunni Muslim religion.
[4] The Razzak's family troubles started on October 24, 2002 when two Shias assaulted Ms. Wahid in front of her home, in Karachi. Mr. Razzak testified that the two Shias are connected to the Muttahida Quami Movement (MQM). They coerced Ms. Wahid, grabbed her wrists while attempting to force her to go with them. Mr. Razzak was forced to fight the two assailants, who beat him. They eventually left while threatening to return for his wife and two children. Mr. Razzak reported the incident to the police and on the following day, he attended at a medical clinic for the treatment of bruises and contusion to his right eye.
[5] On November 12, 2002, Mr. Razzak's older daughter, Mehwish, told him that the same two Shias were at her school asking her to go with them but she ran inside and asked for her teacher's help. Mr. Razzak reported this incident to the police.
[6] A week after that incident, Mr. Razzak's younger daughter was also approached by the same two Shias. These incidents were also followed by threatening phone calls.
[7] On December 26, 2002, Ms. Wahid noticed the two Shias hovering outside the family residence. She called her husband who came home immediately and the whole family went to the police station to seek help, thus, reiterating their previous report that the two Shias were causing trouble to their family. The police advised them that it could not do anything to help the family in its predicament. In as far as the police was concerned, it considered the incidents as not having happened.
[8] Upon the family's return home late that evening, they found their home had been ransacked and a note which read, "There is no place for a rich Sunni in Pakistan, share your money, share your wife and daughters."
[9] The Razzak family left Pakistan early in 2003 and claimed refugee status in Canada on March 13, 2003.
DECISION UNDER REVIEW
[10] The Board only analyzed the issue of state protection. It stated that the failure of the local police in the Karachi district, wherein the Razzak family resided, does not necessarily justify a conclusion that the state as a whole does not offer protection. The Board stated that it considered the Razzaks' allegations that their Shia assailants were connected to the MQM group and that therefore they could not access state protection; nevertheless, the Board did conclude, based on an extensive review of the objective documentary evidence relating to state protection in Pakistan, that Sunni Muslims and the Razzak family in particular could now access adequate - though not necessarily perfect - state protection from the two Shias and other militant Shias. The Board stated that it "prefer[red] the independent evidence provided by the wide variety of reputable sources cited in the documentary evidence to the testimony of the claimant".
ISSUE
[11] Was it reasonable for the Board to conclude there was adequate state protection for the Applicants in Pakistan?
ANALYSIS
[12] The issue of state protection is reviewed by this Court on the basis of reasonableness simpliciter (Chaves v. Canada (Minister of Citizenship and Immigration)[2], Machedon v. Canada(Minister of Citizenship and Immigration)[3]).
[13] The Court finds that it is not inadequate to merely state, as the Board did, that it "prefer[s] the independent evidence provided by the wide variety of reputable sources cited in the documentary evidence to the testimony of the claimant". No discussion ensues in the Board's decision of the attempts made by the Razzak family to avail themselves of state protection, nor of the response and lack of police intervention that had followed. This, then compared and weighed with the personal evidence of the Razzaks against the objective documentary evidence on state protection is also not specified. The Board did not make any credibility findings; nor did it say that it rejected the Razzak family's evidence regarding past incidents of persecution, including the family's unsuccessful requests for help from their district police station. In Coitinho v. Canada(Minister of Citizenship and Immigration)[4], Justice Snider came to the same conclusion in a case also dealing with state protection:
The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants' evidence is not credible, the Board concludes that it "gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing". This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant's because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant's evidence. The Board's decision in this case does not inform the reader why the Applicants' evidence, when supposed to be presumed true (Adu, supra), was considered suspect. (Emphasis added)
[14] The Court fully adopts the following finding of Justice Gibson in Bougai v. Canada(Minister of Citizenship and Immigration)[5]:
While it is a primary function of the CRDD to weigh the evidence before it, I am not satisfied that on the analysis reflected in the reasons in this matter, that weighing was done by this panel in a manner that demonstrates the panel had regard for the totality of the material before it. On this ground alone, I conclude that this application for judicial review must be allowed and that this matter should be referred back for rehearing and redetermination. That is not to say that the conclusion reached by the CRDD in this matter might not have been reasonably open to it. It is to say that the reasons of the CRDD simply do not adequately support the conclusion that it reached. (Emphasis added)
[15] In conclusion, though the Board was open to reach the conclusion which it had. It did so without having demonstrated that it had considered the Razzaks' personal evidence, this, also without having provided any intelligible, explicit reason for having preferred the objective documentary evidence to the Razzaks' personal evidence. This is considered to be unreasonable and requires that the matter be returned for re-determination.
CONCLUSION
[16] For these reasons, the Court answers the question at issue in the negative. Consequently, the application for judicial review is granted.
ORDER
THIS COURT ORDERS that
1. The application for judicial review be granted;
2. No question is certified.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-379-04
STYLE OF CAUSE: WAHID RAZZAK
RIDA KANWALA RAZAK
NASIMA WAHID
MEHWISH KAMWAL RAZZAK v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Mr. Ali M. Amini FOR THE APPLICANTS
Ms. A. Leena Jaakkmainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
AMINI CARLSON LLP FOR THE APPLICANTS
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General