Date : 20050719
Docket : IMM-5870-04
Citation : 2005 FC 996
OTTAWA, Ontario, this 19th day of July , 2005
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
ALI SHIRAZ NAQVI
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for a judicial review of a decision by the Refugee Protection Division (RPD), dated May 17, 2004, wherein the claim of Ali Shiraz Naqvi, the Applicant, was rejected, the RPD concluded that he was neither Convention refugee nor person in need of protection.
[2] The Applicant is a 23 year old citizen of Pakistan. He claims to have a well-founded fear of persecution at the hands of Sunni extremists (formerly the Sipah-e-Sahaba (the "SSP")) and other groups by reason of his religion, namely, a Muslim who is a member of the Shia sect.
[3] The Applicant alleges that in 1983 his family's home was burned down and that they were forced to find other accommodation, which was difficult. The Applicant states that while in school SSP students threatened him with a knife. He further alleges that conditions in Pakistan are very serious for members of the Shia sect, who are a minority.
[4] The RPD accepted the Applicant's identity as a national of Pakistan and as a member of the Shia sect. It also found the Applicant to be a credible witness and believed what he alleged in support of his claim. The RPD noted that the Applicant testified in a straightforward manner and that there were no material inconsistencies in his testimony, or contradictions between his testimony and the other evidence.
[5] The decision turned on state protection. The RPD found that the Applicant did not rebut the presumption of state protection with credible and convincing evidence. It stated that the documentary evidence indicated that "sectarian violence has decreased as a result of the changes put in place by President Musharraf" and further noted that the country conditions in Pakistan have changed since the Applicant's departure.
[6] The RPD concluded that the state of Pakistan is making serious efforts to provide adequate, although not perfect, protection for its Shia citizens. Considering that the Applicant only had minor problems in Pakistan and that the state is providing better protection now than during the earlier periods, it found that the Applicant's fear of returning was not well-founded.
[7] The sole issue in this case is the alleged availability of state protection in Pakistan. It is the Applicant's contention that the RPD made a selective reliance on documentary evidence. He submits that the decision is not supported by the documentary evidence and that it ignored the most recent report. The RPD relied on another decision from the same tribunal. The Board based its decision on the 2001 Department of state report and failed to consider more updated documentary evidence.
[8] The Applicant then explain that in the documentary evidence there were several references to the problems in Pakistan despite the serious efforts of the Government. Counsel cited numerous extracts of reports indicating that there are arbitrary police arrests and detained citizens; that the government has failed to curb sectarian violence, that it is unable to offer any protection to its Shia minority and that the Shia have been victims of sectarian violence. The RPD should have undertaken a detailed analysis of the conflicting evidence, however, its analysis regarding the durability of the changed circumstances is limited. The Applicant advances that the mere implementation of some measures by the government is by no means an indication of durability.
[9] In this case, the issue of state protection involves an additional layer having to do with a change in the country conditions.
[10] Finally, he argues that what happened to the applicant constitutes compelling reasons why the RPD should have addressed the issue.
[11] Essentially, the Respondent argues that the RPD's decision on state protection was amply supported with references to various sources. The RPD is entitled to prefer certain documentary evidence, as long as the evidence supports its decision.
[12] In addition, the Respondent submits that the RPD was not required to assess compelling reasons since there was no prior finding that the Applicant was a Convention refugee.
[13] The critical issues in this case are the availability of state protection and changed circumstances in Pakistan.
[14] With respect to the issue of state protection, the decision of the Supreme Court in Ward (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689) outlined the principle applicable:
"The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant" (par. 50)
[15] The determination of changed circumstances is a question of fact. The Federal Court of appeal, in Cuadra v Canada (Solicitor General) ([1993] F.C.J. No. 736 , par. 4, FCA) explained that a: "more detailed analysis of the conflicting evidence in respect of a change in circumstances was necessary to meet the requirement that the change be meaningful and effective enough to render the genuine fear of the appellant unreasonable and hence without foundation".
[16] In the case at bar, the credibility of the Applicant was not challenged, the RPD found him to be credible and accepted his evidence concerning his subjective fear, linked to one of the grounds, namely religion.
[17] The decision made some references to evidence indicating that sectarian violence has decreased and the RPD found that referring to random acts of violence were not personal to the Applicant. Also, it relied on the analysis of state protection in Pakistan from another decision of the RPD (Re I.B.L., [2003] R.P.D.D. No. 3). The decision cited relied on the U.S. Department of State Report of 2001 and the British Home Office Assessment of 2002.
[18] More recent documentary evidence was properly before the RPD, namely the U.S. Department of State Report of 2003 on human rights practices. That report clearly states that members of the security forces committed serious human rights abuse (p. 221 of tribunal record); the Government's human rights record remained poor, although there were some improvements, serious problems remained; (p. 222 of tribunal record) that the worst religious violence was directed against the Shia minority, who are disproportionally victims of individual and mass killings (p. 281 of tribunal record) and that "members or religious minorities are subject to violence and harassment, and police at times refuse to prevent such actions or to charge persons who commit them" (p. 288 of tribunal record) . Moreover, the U.S. Department of State Report of 2003 on religious freedom specify that:
"there were no significant changes in the Government's treatment of religious minorities during the period covered by this report. The government fails in many respects to protect the rights of religious minorities. This is due both to public policy and to the Government's unwillingness to take action against societal forces hostile to those who practice a different faith" (p. 515 of tribunal record)
[19] It is trite law that the RPD is not required to refer to every piece of evidence that it received, "However, the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence"." (Cepeda-Gutierrez c. Canada (MCI), [1998] A.C.F. no 1425, TD, par 17). In my opinion, the RPD read the documentary evidence in a selective fashion, relied on older reports while more recent evidence was properly before it. This evidence explains the numerous problems faced by the religious minorities and it was ignored.
[20] At the close of the hearing of this application the parties suggested that a question may be submitted for certification; having determined to return the matter for a rehearing, the Court will not entertain a question for certification.
ORDER
This application for judicial review is allowed and the matter is returned to a different officer for redetermination.
« Paul U.C. Rouleau »
JUDGE
OTTAWA, Ontario
July 19, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-5870-04
STYLE OF CAUSE : ALI SHIRAZ NAQVI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 19, 2005
APPEARANCES:
Mr. Ali Amini FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Amini Carlson LLP
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT