Date: 20040225
Docket: IMM-1039-03
Citation: 2004 FC 329
CALGARY, Alberta, Wednesday, the 25th day of February, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
MUHAMMAD IKRAM CHEEMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 31, 2003 wherein the Board found that the Applicant was not a Convention refugee nor was he a person in need of protection.
[2] The Applicant is a citizen of Pakistan who claims a well-founded fear of persecution at the hands of the current military government in Pakistan, the Pakistan police, and members or former members of the Pakistan Muslim League ("PML") because of his political activities as a member of the People's Youth Organization ("PYO") and as a former member of the People's Student Federation ("PSF"), both being youth wings of the Pakistan People's Party ("PPP"). He also claims to be a person in need of protection.
[3] The Applicant's main complaint about the Board's decision is that it gives no consideration to the evidence of serious persecution at the hands of the government. The Applicant's PIF provides evidence on this issue as follows:
In May 1998,....[w]hen the police attacked our peaceful rally, started teargas shelling and charged the crowd with batons, followed by arrests. I was arrested along with my colleagues Irfan Mian and Sajid Hussain who belonged to our ward, and about a dozen other people. We were taken to Satellite Police Station Gujranwala and detained for the whole day and we were beaten. They treated us inhumanly. Police and released us next day with severe warnings to curb our anti-government activities.
...
In April 1999,...[p]olice attacked and arrested us and other workers. Police treated me very cruelly when I questioned them as to why we have been detained. They took me to a separate room, stripped me of my clothes and beat me with leather strips. I cannot forget this inhuman treatment. I was released after two days with strict warning. The PML government continued to suppress our democratic rights.
...
Again there are still democracy loving people in our country who could not take yet another military regime by simply lying down, they had to raise their voice for the restoration of democracy, which resulted in establishing the ARD. They started appealing to the people to come out and attend the rallies, organize strikes at their workplaces and demand the restoration of democracy. I participated and was arrested in one of these rallies, held at Gulshan Park in March 2001, I was taken to the Model Town Police Station, and detained for two days. The treatment I received at the hands of police during my detention is unmentionable. I was beaten up and deprived of all my rights as a human being. The agency people present there threatened me to quit PPP and work to organize PYO unit to support military. They told me that I will be rewarded
for this When I refused I was again beaten brutally. I am still not able to function my right hand as my two fingers were injured during that ordeal. In was medically treated and my two fingers still get numb.
[Tribunal Record, pp. 37 - 39.]
[4] The Applicant's PIF also contains a statement that, as a result of his participation in a rally on June 4, 2002, he believes that politically motivated charges are outstanding against him. Indeed, the Applicant produced documentary evidence in support of this belief. Due to contradictions in the evidence, the Board did not accept either the Applicant's statements or the documentary evidence with respect to this incident and belief, but, quite properly went on to consider the balance of the evidence. I find no reviewable error in this part of the decision. However, the failure of the Board to address the evidence quoted above generates concern that it was not properly considered.
[5] Past persecution is an important potential indicator of the possibility of future persecution. As no negative credibility finding was made with respect to the evidence quoted above, it must be accepted as true. If found to be true, the evidence should have been evaluated on the issue of risk of future persecution. This was not done.
[6] The Board's reasons provide a confusing mix of legal issues and factual findings. Indeed, there is no clear finding of past persecution, but, rather, a priority focus on the question of Internal Flight Alternative which does not arise until a clear finding of the possibility of future persecution is made.
[7] On the issue of future persecution, the Board makes two statements; the first being ambiguous, and the second being in apparent conflict with the first.
[8] At page 7 of the reasons the Board said this:
...[w]hile I accept, based upon the documentary evidence before me, that the claimant could be subjected to harrassment by the police or government authorities because of his PYO membership and associated PPP political activities, the evidence before me indicates that the claimant's PYO and PPP profile and political activities are of a limited and localized nature, such that he would not be perceived as a prominent PYO or PPP leader nationally.
[Board's Decision, p. 7]
[9] During the course of oral argument, a debate took place on the meaning of this statement: the question was, is it a finding of the likelihood of future persecution?.
[10] The very next finding is on future persecution as follows:
Based upon the foregoing analysis, I find there is insufficient credible evidence before me to establish that the claimant's fear of persecution for a Convention ground in Pakistan is well-founded. There is no serious possibility that the claimant would suffer persecution if he were to be removed to Pakistan.
[Board's Decision, p. 8]
[11] I find it is simply not sufficient for the Board to dismiss a persecution claim on this quality of decision making. In my opinion, to reject a claim such as the one in the present case on confusing and ambiguous reasoning and, apparently, without considering in any way the extreme violence perpetrated on the Applicant by the police as first quoted above, is a reviewable error which renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the Board's decision and refer this matter back to a differently constituted board for redetermination.
"Douglas R. Campbell"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1039-03
STYLE OF CAUSE: Muhammad Ikram Cheema v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 24, 2004
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: February 25, 2004
APPEARANCES:
Mr. Birjinder P. S. Mangat FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Birjinder P. S. Mangat
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General for Canada FOR RESPONDENT