Ottawa, Ontario, Tuesday the 30th day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Mr. Amir Shahzada is a citizen of Pakistan and a Shia Muslim. He says that he fears the Sipah-e-Sahaba ("SSP") extremist group which targeted him as a result of his work for his Imam Bargah. He therefore claims status as a Convention refugee and a person in need of protection. He brings this application for judicial review from the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board" or "RPD") that he is neither a Convention refugee nor a person in need of protection.
[2] Mr. Shahzada's testimony before the Board with respect to the SSP may be summarized as follows:
- Mr. Shahzada was selected to be the stage secretary of his local Imam Bargah in June of 2000. Following his appointment, his activities increased, he spent many hours volunteering for his Imam Bargah, he became visible in the community and, as result, he was targeted by the SSP.
- In the last week of July 2000, Mr. Shahzada began to receive threatening phone calls from the SSP.
- In the last week of August 2000, because of Mr. Shahzada's activities, his mother was slapped by local SSP gangsters while on her way home. Mr. Shahzada's mother was told by her assailants that to beat the mother of an active Shia is a good deed in the eyes of God, and that if Mr. Shahzada did not stop his religious activities they would kill him.
- On December 6, 2000, Mr. Shahzada was attacked by SSP gangsters. The gangsters told him that he was destroying the area's atmosphere with the work he did for his "filthy" religion. As a result of the assault, Mr. Shahzada sought medical treatment from a doctor and was hospitalized for one night. He reported the incident to the police who took the medical report, but did not register a first incident report because Mr. Shahzada did not have two eyewitnesses to the assault.
- In February of 2001, he planned to hold a large religious gathering at his home, and many Shias were invited. After flyers were placed and invitations announced, Mr. Shahzada began receiving threatening phone calls from the SSP, who threatened to burn his house and kill his family members if the gathering was held at his home. As a result, he cancelled the gathering.
- On November 17, 2001, Mr. Shahzada was again attacked by SSP gangsters. He was told that he was an infidel and that it is a good deed in the eyes of God to kill a Shia. Mr. Shahzada was again hospitalized overnight. He reported the injuries to the police who took the medical report and wrote the incident in their daily book. The police would not write a first incident report because they said Mr. Shahzada had no witnesses and they did not want to get involved in a sectarian dispute.
- Mr. Shahzada's brother was kidnapped at gunpoint in June of 2002 by SSP gangsters. They told Mr. Shahzada's brother that he had been kidnapped as punishment for Mr. Shahzada's involvement in the Shia community. His brother was taken to a nearby SSP mosque, tortured, humiliated and later abandoned, unconscious, on a nearby road. The incident was reported to the police who said there was nothing they could do because the SSP had killed many police officers and they did not wish to have any problems with them.
- In the last week of June 2002, Mr. Shahzada's house was attacked by six SSP gangsters who yelled "Long live SSP" and "Shia Kafirs" (infidels), assaulted Mr. Shahzada and his family members, and broke some household items. Before leaving, the gangsters fired shots into the air and threatened Mr. Shahzada that if he continued his activities, the bullets would be shot at him instead of into the air. They also threatened to kill Mr. Shahzada if he reported the incident to the police.
- Mr. Shahzada then went into hiding and stayed at a friend's house. Once, after that, when he was driving to his local Imam Bargah, he was shot at by SSP gangsters. Following this attack, his father arranged for an agent to take Mr. Shahzada out of Pakistan.
[3] The RPD made no credibility finding and appears to have accepted Mr. Shahzada's testimony as being truthful. It found that the determinative issue was state protection. However, the Board's analysis on this issue is scant. The Board's reasons for rejecting Ms. Shahzada's claim are , in their entirety, as follows:
DETERMINATION
I am satisfied the state of Pakistan is making serious efforts to provide adequate, although not perfect, protection for all its citizens who fear targeted harm as a result of religious motivated terrorists. I reject the claim.
ANALYSIS
In the past when the claimant sought the assistance of the police, the police wrote up the report but did not go further due to the lack of witnesses and the Station House Officer stated that he did not want to get involved in a sectarian dispute.
After the abduction of the brother, the police response was that many police officers have been killed and they (the police) did not wish to get involved.
Even so, I am satisfied the efforts of the government have greatly improved the situation for persons who fear they have been personally targeted in the past and now, as a result of these efforts, there is adequate protection for citizens such as the claimant.
State Protection
For an analysis of the efforts of the state to provide adequate protection for its citizens, I refer the reader to case TA2-20483, IXN (Re), [2004], R.P.D. No. 34, No. TA2-20483, para. 9-33.
Counsel Submissions
Counsel submitted that there is objective evidence that state police corruption cause the police to be ineffective and that the failure of the police to react to acts of religious violence creates an atmosphere of impunity.
The documents I relied on in my analysis certainly do not rebut counsel's submissions entirely. Shia are still being killed. However, as noted, there are now arrests and convictions. Terrorists have now resorted to suicide attacks. It is now rare to read an account on an individual Shia or Sunni being hunted down and murdered.
All this satisfies me that, although as counsel pointed out, the situation is far from perfect, the efforts of the government are showing positive results.
After reviewing the objective evidence and counsel's submissions, I am satisfied that should the claim [sic] return to Pakistan, there would be adequate protection for him.
[4] Despite the able and persuasive submissions by counsel for the Minister, I conclude that these reasons are problematic and inadequate in the following respects.
[5] First, in the face of Mr. Shahzada's testimony, which was apparently accepted, and the documentary evidence that was consistent with Mr. Shahzada's evidence, the Board was, as a matter of law, required to explain (i) what evidence with respect to state protection it relied upon, (ii) why it preferred that evidence over the evidence that supported Mr. Shahzada's claim, and (iii) how such evidence supported the Board's conclusion that Pakistan would be able to provide adequate protection to Mr. Shahzada if he were to return there.
[6] Second, it was not sufficient for the Board to simply "refer" to an earlier decision of the Board for its state protection analysis. The RPD may, as a matter of law, adopt another panel's analysis or conclusion, but as I wrote in Olah v. Canada(Minister Citizenship and Immigration), [2001] F.C.J. No. 623, at paragraph 25, a panel cannot blithely incorporate findings of fact from other cases. In Badul v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 440, at paragraph 25 my colleague Mr. Justice O'Reilly wrote that reliance upon the findings of another panel must be "limited, careful and justified". In Ali v. Canada (Minister Citizenship and Immigration), [2004] F.C.J. No. 1755, I found that the RPD could adopt the reasoning and findings of another case with respect to similarly situated people in Pakistan where satisfied that the facts and evidence regarding country conditions in the earlier case were sufficiently close to the facts and evidence before the RPD in the second case.
[7] In the present case, the RPD engaged in no such consideration. It is argued by counsel for the Minister that I should infer that such consideration took place because the case of Re I.X.N., [2004] R.P.D.D. No. 34, relied upon by the Board, was decided by the same panel member just a few months before the present case, on a similar package of standard country conditions information.
[8] I am not prepared to draw that inference for two reasons. First, in the present case, significant documentary evidence was filed by Mr. Shahzada concerning state protection, including a letter from his father (apparently accepted to be credible) to the effect that the SSP continues to seek Mr. Shahzada. There is no indication that this evidence was considered by the RPD, and no basis upon which to conclude that the documentary record as to country conditions in Pakistan, as augmented by Mr. Shahzada, was comparable to that before the RPD in Re I.X.N., supra.
[9] Second, I am unable to conclude that Mr. Shahzada was similarly situated to the claimant in Re I.X.N., supra, so as to make adoption of the state protection analysis in that case apposite. In Re I.X.N. the RPD rejected the credibility of the claimant and found that the claim was based only upon two incidents, one in 1987 and one in 1996. The decision acknowledged that individual citizens targeted by religious extremists were still murdered in Pakistan, but relied upon the fact that the claimant had not recently experienced serious harm. My colleague Madam Justice Layden-Stevenson recently wrote in Badilla v. Canada (Minister of Citizenship and Immigration), 2005 FC 535, at paragraph 35, in the context of reliance by the RPD upon a jurisprudential guide with respect to the existence of state protection, that while jurisprudential guides may have some value or benefit, they do not negate the obligation of the RPD to compare the underlying facts of the jurisprudential guide with those of the matter before the RPD. In the present case, the Board did not do this.
[10] The RPD erred in law in its analysis of state protection. The application for judicial review is therefore allowed.
[11] Counsel posed no question for certification and I am satisfied that no question arises on this record.
ORDER
[12] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the RPD dated October 19, 2004 is hereby set aside.
2. The matter is remitted for redetermination before a differently constituted panel of the RPD.
"Eleanor R. Dawson"
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9448-04
STYLE OF CAUSE: AMIR SHAHZADA V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 15, 2005
AND ORDER
APPEARANCES:
RONALD POULTON FOR THE APPLICANT
NEETA LOGSETTY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAMANN & ASSOCIATES
TORONTO, ONTARIO FOR THE APPLICANT
JOHN H. SIMS, Q.C.