Ottawa, Ontario, July 22, 2005
BETWEEN:
SAFI ULLAH, FAKHRA ILMAS, HUMA SAFI,
ABBAD ULLAH, RAMSHA SAFI and SAAD ULLAH
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] The Refugee Protection Division ("RPD") of the Immigration and Refugee Board ("Board") rejected the application of Mr. Ullah, his wife and children for refugee and person in need of protection status.
[2] The several claims were rejected because Ullah's evidence was found to be not credible or trustworthy. As well, the RPD held that the existence of state protection in Pakistan was determinative. This is the judicial review of that RPD decision.
Background
[3] Ullah, a university educated and professionally employed citizen of Pakistan, is a member of the Shia faith. He claimed that he feared being killed by members of the Sipah-e-Sahaba ("SSP"), an extremist Sunni organization in Pakistan. His father was a retired judge and respected member of the local Imambargah After his death, in 1997, Ullah became a member of the four-person (erroneously described as six-person) management committee of this Imambargah.
[4] The Applicant claimed that his duties on this committee gave him a high degree of profile in the community with the result that, after 1997, he came to the attention of the SSP.
[5] The SSP are said to have issued death threats to, assaulted and shot at, Ullah; they are said to have threatened and kidnapped his children, pressured his employer into firing him and finally, broke into his home and set fire to various items in his yard. This last event precipitated the family's flight to the United States. There, Ullah worked there for three years but, following the World Trade Centre attack, his Hindu employer blamed all Muslims for the change in business atmosphere towards non-Christians and threatened to cancel Ullah's work visa. This resulted in the family's arrival in Canada.
[6] The RPD's decision turns on its finding that the Applicant did not have the profile that would make him a target for the SSP. The Panel based its credibility/implausibility determination on the following:
1. that his father's prominence and lack of problems while he was alive is inconsistent with the claim that the Applicant had become a target after 1997;
2. that the Applicant's duties of raising money and other administrative duties were so low-key as not to draw attention;
3. that no other member of Imambargah had been subject to attack;
4. that, most importantly, the Applicant did not have the profile identified in an Amnesty International Report as most at risk of serious harm of religious persecution.
There was no finding of inconsistency or contradiction within the Applicant's own evidence.
[7] The RPD went on to find that given all the evidence, including country condition documentation, state protection was available to the Applicant (and his family) and that he had failed to rebut the presumption of the existence of state protection.
Determination
[8] While the RPD stated that state protection was the determinative issue, it reached important conclusions as to the Applicant's profile which should have affected the analysis of whether state protection would have been available to him. For the following reasons, I have concluded that the RPD did not properly analyse either the evidence of the Applicant's profile or of state protection as may be applicable to the Applicant.
[9] For the purposes of both the issue of credibility of the claimant (and the plausibility of his evidence) and that of state protection, I am of the view that the appropriate standard is "patent unreasonableness". (See Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.)(Q.L.). As to the duty of fairness/natural justice, the standard is correctness.
Re: Profile
[10] The RPD relied upon the Amnesty International Annual Report 2003 - Pakistan ("Report") to ground its conclusion that the Applicant did not have the profile of those Shias who are at risk of serious harm in Pakistan. The RPD does not identify what that profile is or how the Applicant's profile differs.
[11] The Report identifies the targeted groups most at risk as doctors, professionals/ businessmen, members of the administration and business leaders (see CTR p. 499). The Applicant was a leader of his religion in his community, university educated and professionally employed. He comes from a family of some local prominence as his father was a retired judge.
[12] The Report also indicates that those who may be targeted include a wide range of occupations and varying levels of religious community involvement. The occupations range from insurance executives, to professors, to shopkeepers to bankers. Those connected to their religious community include trustees of local Imambargahs, as well as custodians and caretakers at Imambargahs (CTR 493-494).
[13] The RPD does not address how the Applicant who was a member of his Imanbargah's four-person management committee, is materially different in profile from those listed in the Report.
[14] In a case remarkably similar to that before this Court, Justice Campbell in Khilji v. Canada, [2004] F.C.J. No. 811 (F.C.)(Q.L.), 2004 F.C. 669, held at paragraph 6:
In my opinion the documentary evidence does not support the finding that the Applicant is not within a Shia group most at risk. The report relied on by the IRB (Applicant's Application Record, 108) clearly states that religious leaders are at risk, including persons attached to an Imambargah such as a prayer leader or caretaker. On the evidence of the Applicant accepted by the IRB, there is no doubt that, as he is the President of an Imambargah Committee, the Applicant falls within a group most at risk of persecution."
[15] Given the nature of judicial review, I would not go as far as commenting on what conclusion should be drawn from the evidence. However, I find that without an explanation of how the Applicant is different from the targeted group, it is patently unreasonable to reach the conclusion that the Applicant does not have the profile described in the Report. The RPD has a duty to explain how it reached its conclusion based on the evidence upon which it has relied. In that regard the RPD breached its duty of fairness.
[16] The Court is mindful that considerable deference is owed to credibility/plausibility findings of the RPD. However, plausibility findings must be 'nourished' by reference to the documentary evidence. (See De Urbina v. Canada, [2004] F.C.J. (No. 650 (F.C.)(Q.L.), 2004 FC 494).
[17] Further, in rejecting explanations of an applicant, the RPD must still adhere to the same principles applicable to documentary evidence and must have regard to the evidence before it.
[18] In forming its plausibility conclusion, the RPD noted in the context of the Applicant's prominence in the community due to his father's profile, that he did not mention any problems prior to 1997 when his father died. In attributing relevance to this pre-1997 situation, the RPD does not address the evidence that prior to 1997, the SSP was a much weaker organization, nor is there any mention of the fact that prior to his father's death, there was no Imambargah management committee.
[19] There was no finding of inconsistency in the Applicant's evidence, nor was that evidence contradicted by documentary evidence. Furthermore, there were cogent explanations for such issues as the absence of pre-1997 problems and lack of attacks on other committee members. The RPD's credibility/plausibility finding was based solely upon the panel's subjective assessment that the Applicant did not fit an undescribed profile, and, is inconsistent with the key documentary evidence. Without better explanation for this finding, it is patently unreasonable - as that term is described by Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 57:
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable.
[20] On this basis alone, the decision must be quashed.
Re: State Protection
[21] The Respondent contends that the finding on state protection makes the RPD's decision bullet-proof. With respect, I cannot agree.
[22] The RPD's analysis of state protection was a consideration generally of the existence of state protection in Pakistan. At no time does the RPD attempt to link the general findings of state protection to the specifics of this Applicant's circumstances.
[23] This failure to individualize the analysis of state protection appears to be grounded in the earlier conclusion that the Applicant does not fall within the group of Shias who may be at risk of harm.
[24] Having failed to properly analyse whether the Applicant was personally at risk, the RPD's conclusion as to the availability of state protection for the Applicant was likewise flawed. The conclusion that the Applicant had failed to rebut the presumption of state protection fails to take account of the evidence of risk.
[25] For these reasons the finding on state protection does not "bullet-proof" the RPD's decision from judicial review.
Conclusion
[26] The application for judicial review will be granted, the decision of the RPD will be quashed and the claim will be referred back for determination by a differently-constituted panel of the Board.
[27] There is no question for certification.
"Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7814-04
STYLE OF CAUSE: SAFI ILLAH ET AL v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 13, 2005
REASONS FOR ORDER : Phelan J.
DATED: July 22, 2005
APPEARANCES:
Avi Sirlin FOR APPLICANT
Karen Dickson FOR RESPONDENT
SOLICITORS OF RECORD:
Avi Sirlin FOR APPLICANT
Toronto, Ontario
Karen Dickson
Toronto, Ontario FOR RESPONDENT