Date: 20030122
Docket: IMM-3455-02
Neutral citation: 2003 FCT 64
Toronto, Ontario, Wednesday the 22nd day of January, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NASREEN ARSHAD, HAMZA ARSHAD, and
MARWA ARSHAD
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant is a 35-year-old citizen of Pakistan who, with her two infant children, fled the country alleging a well-founded fear of persecution based on her religion as a Shia Muslim.
[2] The CRDD assumed the Applicant to be credible in the giving of her evidence, and, accordingly, made the following findings:
The claimant alleges that her persecution began after she and her husband Mohammad Arshad converted to the Shia sect of the Muslim faith in the month of April 2000. Her husband's uncle, Muneer Ahmed, is a member of the SSP [Sipah-e-Shaba Pakistan] and incited other SSP members against both her and her family. Following some threats against the claimant and her husband, in September 2000, Muneer Ahmed and other SSP members attacked her husband on his way home from work and he was treated at a private hospital. The next week two motorcyclists attempted unsuccessfully to kidnap the claimant's nine-year-old daughter.
The claimant and her family moved from Sialkot to the house of a friend of her father-in-law in Rawalpindi. After a month, Muneer Ahmed and some members of the SSP came looking for them, but the claimant and her family successfully hid in the back portion of the house. Following this incident, the family moved to Karachi and arrangements were made for the claimant and her children to seek refuge in Canada, while her husband remains hiding in Karachi to this day. (Decision, p.1)
...
The claimant testified that her father-in-law reported the assault of her husband to the police by himself and that the police refused to file a report on the grounds that this was a personal family problem. (Decision, p.4) [Emphasis added]
[3] Thus, the CRDD found that the persecution proved is based on religious grounds incited by a family member and carried out by him and his extremist associates.
[4] Because of the dedication of the uncle towards persecution of the Applicant and her family, I question whether there is any reason to doubt that, should she return with her children to Pakistan, she would immediately be identified by the uncle and the persecution would resume.
[5] I find that the central issue before the CRDD for determination is whether the State can or is willing to protect the Applicant and her children from the uncle's conduct should she return. Of particular importance in this regard is the evidence that, because the uncle is the instigator, the police characterized the persecution as "a personal family problem" and, as a result, were unwilling to offer protection. In my opinion, the CRDD did not adequately address this fundamentally important reality, but instead focused on the documentary evidence of the general, rather marginal protection that Pakistan authorities can offer with respect to secular violence. As a result, I find the CRDD's rejection of the Applicant's claim to be patently unreasonable.
ORDER
Accordingly, I set the CRDD's decision aside and refer the matter back for redetermination by a differently constituted panel.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET NO.: IMM-3455-02
STYLE OF CAUSE: NASREEN ARSHAD, HAMZA ARSHAD, and MARWA ARSHAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, JANUARY 21, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JANUARY 22, 2003
APPEARANCES BY: Mr. Yehuda Levinson
For the Applicants
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Levinson & Associates
Barristers & Solicitors
480 University Avenue
Suite 610
Toronto, Ontario
M5G 1V2
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030122
Docket: IMM-3455-02
BETWEEN:
NASREEN ARSHAD, HAMZA ARSHAD, and MARWA ARSHAD
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER