Date: 200500502
Docket: IMM-7735-04
Citation: 2005 FC 601
BETWEEN:
SAQUIB MEHMOOD HASSAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
FACTS
[1] The Refugee Protection Division of the Immigration and Refugee Board (the Panel) determined that Mr. Hassan, a citizen of Pakistan and a member of the only Shia family in the small colony of Multan was not a refugee or a person in need of protection.
[2] Mr. Hassan claimed that he had been beaten and shot at twice. After the second shooting he complained to police who demanded a bribe in order to file his incident report.
[3] As a result of these events and a general anti-Shia sentiment in his area, he obtained a student visa and came to Canada.
[4] The Panel's rejection of Mr. Hassan's claim is based principally on a finding that state protection is available in Pakistan. In the Panel's general discussion of state protection, the Member made the following problematic statements about this Court's directives to the Board:
On the question of state protection, we have had directives from the Federal Court. Justice Blais of the Federal Court in Sayed Najmi v. Minister of Citizenship and Immigration stated that from the evidence, state protection is available to the Shia community in Pakistan. The same statement was made by Justice Pilon [sic] in R.F. Rashid v MCI on May 31, 2004, and Justice Lemieux also agreed in Shanaz Akhtar v. Minister of Citizenship and Immigration in a decision on May 1, 2003. . . .
* * * * * * * * * *
The courts have told us that state protection is available to the Shia community. . . .
[5] In the Panel's more specific analysis of the "Claimant's profile", the Panel's understanding of this Court's decision is raised again:
The courts have said, and this is what I find also, that the evidence tells us that state protection is available to the claimant and there is no evidence that the Shia members in Pakistan are facing persecution on a mass scale or on a systematic basis. . . .
DECISION
[6] The Panel does make an analysis of the documentary evidence and of Mr. Hassan's narrative to reach its conclusion that state protection is available. However the Court's concern is that this analysis is overlaid with comments about this Court's directives, or comments, on the existence of state protection in Pakistan.
[7] This Court did not issue any such directives and the decisions cited stand for no more than a consideration of reasonableness or patent unreasonableness of the Board's decisions. It is not factually or legally correct to hold that the Court has issued directives or told the Board that state protection exists in Pakistan for Shias.
[8] While the Panel's comments may be nothing other than an unfortunate choice of words, as the Panel's actual analysis arguably suggests, the Court cannot be certain that the Panel's words, and its misunderstanding of this Court's decisions, on state protection did not affect its conclusions.
[9] For these reasons, this judicial review will be granted and the matter referred back for a new determination by a differently constituted panel.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7735-04
STYLE OF CAUSE: SAQUIB MEHMOOD HASSAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 12, 2005
REASONS FOR ORDER: Phelan J.
DATED: May 2, 2005
APPEARANCES:
Ms. Laila Demirdache FOR THE APPLICANT
Ms. Tatiana Sandler FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Community Legal Services
Ottawa,Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT