Date: 20040331
Docket: IMM-1684-03
Citation: 2004 FC 490
BETWEEN:
DAWOOD SIDDIQ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This case turns on the internal flight alternative. Although the Refugee Protection Division of the Immigration and Refugee Board found that Mr. Siddiq was a victim of persecution in his home town in Pakistan, it held that he was not entitled to international protection as a refugee within the meaning of the United Nations Convention, Article 1 of which is incorporated into our Immigration and Refugee Protection Act, S.C. 2001, c. 27, because it would not be unduly harsh to expect him to move to Lahore or Karachi. Mr. Siddiq was given leave to have that decision judicially reviewed.
[2] The Refugee Division Panel noted that Mr. Siddiq alleged a well-founded fear of persecution by reason of his political beliefs. More particularly, he was a member of the Pakistan People's Party and as a result became the target of the Pakistan Muslim League and also the target of a rival family. He was threatened, beaten, and charges were laid against him. He sought the help of police, but to no avail.
[3] The evidence found that the claimant's village was dominated by two rival families: his and the Randhawas. They were both politically active in support of rival parties. It was noted that Mr. Siddiq's cousin was a candidate for the Pakistan People's Party, and is still living in the village without problems. The Panel concluded that the real reason Mr. Siddiq was targeted by the Randhawa family is that both families competed for government mandates to collect taxes from small landlords. Since this was the main issue, if he were to live elsewhere in Pakistan it was not believed that the rival family would target him.
[4] As to the fact that there was a First Information Report, and a warrant of arrest, issued against him, the Panel was of the view that he had the protection of the rule of law, i.e. that on the balance of probabilities, Pakistan has in place a judicial system which would allow the claimant to obtain justice.
[5] Although the internal flight alternative was seen, I am afraid that it was seen as an old painting lying undisturbed on the same wall for many years. It was seen but not studied.
[6] There is an inherent contradiction in the Panel's reasoning. If Mr. Siddiq's problems are limited to the Randhawa family, as such, he is not a Convention refugee at all unless one were to say that the source of persecution is his membership in a particular social group, i.e. the Siddiq family. If there were no political overtones, as a person who is not a Convention refugee, but otherwise in need of protection, he could well move to Karachi or to Lahore to escape the clutches of the competing family. However, we must give full consideration to the uncontested fact that there is a warrant for arrest issued against him, and we must also consider the relevance of the fact that his political candidate cousin apparently continues to live in Mr. Siddiq's home village without problems.
[7] Little or no weight can be given to the cousin's situation. It is Mr. Siddiq who is seeking protection, not his cousin. As noted by Beaudry J. in Anwar v. Canada (Minister of Citizenship and Immigration),_[2002] F.C.J. No. 1434 (QL), at paras. 55 and following, it is easy to give undue weight to the situation of other family members.
[8] Although the competing family in Mr. Siddiq's village may have been the driving force behind his problems, the two rival families and politics cannot be segregated. As Mr. Siddiq says: "In Pakistan, the prominent families are connected with political parties."
[9] The information laid against Mr. Siddiq was clearly political with allegations that he and others instigated riots against the government. The warrant of arrest was issued on that basis.
[10] In considering the internal flight alternative, one must ask from whom the fugitive is fleeing. In this case, Mr. Siddiq has to be considered as fleeing from the police. Can he be safe from the police in another part of Pakistan?
[11] In Soopramanien v. Canada (Solicitor General), [1993] F.C.J. No. 1002 (QL), Pinard J. set aside the decision of the Refugee Division on the basis that there was no evidence which allowed it to conclude that the authority of the Seychelles government did not extend to the entire country. I do not accept the respondent's submission in the case at bar that Soopramanien is distinguishable because the Seychelles are small and Pakistan is not.
[12] Counsel for the respondent relied on the decision of Bukhari v. Canada (Minister of Citizenship and Immigration) (1994) 87 F.T.R. 134. However, much of that case turned on the availability of bail in Pakistan, a point not considered in the case at bar. Richard J., as he then was, not only considered access to a fair judicial system, but also the bail hearing element. More recently in Khan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1102 (QL), Rothstein J.A., sitting ex officio as a member of the Trial Division, dealt with a decision of the Board in which it was found that the applicant's fear of persecution by reason of his political opinion was well-founded but that he had an internal flight alternative outside Azad Kashmir. The Board's comprehensive reasons were upheld. It found that the legal system in Azad Kashmir was separate from the rest of Pakistan and that on that basis there was no more than a mere possibility that he might come to the attention of the Pakistan police authorities outside Azad Kashmir. He referred to the earlier decision of MacKay, J. in Khan v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L. R. (3d) 119, in which he found that a failure to address the question of persecution by national authorities when considering an internal flight alternative was a reviewable error.
[13] As the Board did not direct its mind to these issues which are central to the legal definition of a Convention refugee, I must grant judicial review.
[14] There is no question for certification.
"Sean Harrington"
Judge
Montréal, Quebec
March 31, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1684-03
STYLE OF CAUSE: DAWOOD SIDDIQ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 23, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: MARCH 31, 2004
APPEARANCES:
Éveline Fiset FOR APPLICANT
Michèle Joubert FOR RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec