Date: 20030506
Docket: IMM-6339-02
Neutral citation: 2003 FCT 563
Toronto, Ontario, Tuesday, the 6th day of May, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
MUJEEB REHMAN
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD"), dated October 16, 2002, wherein the RPD determined that the Applicant is not a Convention Refugee.
[2] The Applicant is a citizen of Pakistan. He claimed a well-founded fear of persecution as a Shia Muslim at the hands of Sunni Muslim fanatics, including the family of his fiancée, who are members of a known terrorist organization, the Sipah-e-Sahaba (SSP). The Applicant also claimed to be a person in need of protection as a person in danger of death, punishment, or cruel and unusual treatment by the Pakistani government for making a refugee claim.
[3] In its reasons, the RPD did not make a specific credibility finding with respect to the Applicant's evidence, but appeared to accept the evidence as true. As a result, as a matter of law, the RPD must be taken to have believed the Applicant (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.)). Thus, the RPD's findings of fact are as follows:
The claimant owned a grocery store in Wazirabad, Pakistan. He said his own father initially objected to a possible marriage with Faiza but his parents later relented. However, Faiza's father and two brothers became enraged. The claimant said they went to his store and smashed his windows. He said they slapped him and threatened him. He said one of the brothers later kicked him unconscious with a blunt object. He said the police refused to file a report citing the fear that her brothers were connected to the SSP. Faiza's brother later telephoned the claimant threatening a lynching.
Soon after, the claimant's brother telephoned to tell him that his shop had been ransacked. Faiza then telephoned the claimant and said that she revealed to her family that the two had slept together and that she was no longer a virgin. She warned him that her brothers were en route to kill him. The claimant said that her brothers soon arrived, but not before he and Faiza met at th back of his home. He said that her brothers had approached the house only by the front door; thus he and Faiza were able to flee. They fled to Sheikhoopura about one hundred kilometres away. The claimant then left his fiancé with a cousin there. He said she was safe there. He went to Lahore and left for Canada arriving on September 3, 2001.
The claimant said that Faiza's family does not know her whereabouts. She rarely ventures out of the house and is in hiding. He said that the SSP has a very strong network and would kill her if they found her. He said that one of her brothers had beaten her and spilled acid on her when he had found out about the extent of their relationship. He said the brother did not kill her immediately because they wanted to kill the claimant first. He said that as her brothers converged on his home, he met Faiza at the back kitchen door and fled to the bus terminal. (RPD Decision, pp. 1-2).
[4] With respect to the report made to the police acknowledged by the RPD, the Applicant's PIF reads as follows:
We went to the police station to file a report. When we told the names of the accused the police officer refused to file a report against them. He said that didn't I know that these people were members of Sipah-e-Sahaba. The police officer further said that he doesn't want to die and suggested that we forget about filing a report against them and should go home. (Tribunal Record, pp. 25-26.)
In his oral evidence before the RPD, the Applicant confirmed that he went to the police and wasn't provided any help or assistance (Tribunal Record, p. 415).
[5] With respect to the fact that the Applicant's fiancée was forced to go into hiding, it is important to note that during the course of oral argument before the RPD, the RCO made the following statements:
Now, the documentary evidence talks about the fact that there is a lot of antagonism between the two sects, the Sunnis and the Shias, and we also know from the documentary evidence about the situation of women in Pakistan, that a woman is very strongly controlled by her family, that if the family doesn't approve of -- well, basically marriage matches are made by families and if they don't approve of the person's personal choice, then they exert a lot of control over the couple.
We also know that there have been many incidences of the fact that if there are relations outside of marriage, the woman has shamed the family and there have been many incidences of physical violence against the people who are involved in the physical relationship outside of the family.
So what the claimant has told us is not something that is unheard of in Pakistan. The fact that he did have a physical relationship with an unmarried woman, the fact that her family found out, the fact that her family opposed the relationship and in fact tried to harm the female and him because of that, I would not say that is beyond the realm of possibility in Pakistan. (Tribunal Record, pp. 436-437).
It is agreed that, also before the RPD, were Country Reports citing the fact of honour killings in Pakistan (see Tribunal Record, p. 100).
[6] In its reasons, the RPD did not deal with the reality described by the Applicant as stated above. Instead, the RPD went on at length to describe how, after the Applicant left Pakistan, the government has taken action against the SSP as part of a nationwide crackdown to deal with alleged terrorism, murder and other serious crimes. Consequently, the RPD, in applying the decision in Canada (Minister of Employment and Immigration) v. Villafranca (1992) 18 IMM. N.R. (2nd) 130 (F.C.A.), found that "the fact that protection is not perfect is not fatal to the proposition that Pakistan now has adequate protection for Shia Muslims such as the claimant (RPD Decision, p. 8). Thus, in rejecting the Applicant's claim, the RPD found that state protection for the claimant from SSP extremists does exist.
[7] I find the RPD's decision to be patently unreasonable. Four dynamics were in play in the evidence before the RPD: the Applicant's persecution by SSP extremists; the Applicant's persecution by family members of the Applicant's fiancée who are also SSP members; the persecution of the Applicant and the Applicant's fiancée as a result of the loss of honour felt by the fiancée family; and, a complete rejection by state authorities of the Applicant's plea for protection.
[8] In its reasons, the RPD makes no attempt to deal with the reality of the Applicant's life in Pakistan and whether any state protection can be provided given the combination of the dynamics in play. As a result, in my opinion, the Applicant's subjective and objective fear of prospective risk of persecution in Pakistan remains unaddressed in the RPD's decision. In my opinion, this failure renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-6339-02
STYLE OF CAUSE: MUJEEB REHMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 6, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY, MAY 6, 2003
APPEARANCES BY: Mr. Joel Etienne
Mr. Kadir Baksh
For the Applicant
Ms. Matina Karvellas
For the Respondent
SOLICITORS OF RECORD: Etienne Law Associates
Finch Avenue East
Suite 308
Toronto, Ontario
M1S 4Z5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030506
Docket: IMM-6339-02
BETWEEN:
MUJEEB REHMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER