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                                                                    Date: 20030225

                                                               Docket: IMM-3548-02

Ottawa, Ontario, the 25th day of February 2003

Present: the Honourable Mr. Justice Pinard

Between:

                               NAEEM JAWAID

                                                                Applicant

                                 - and -

                        MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

                                                               Respondent

                                  ORDER

The application for judicial review of the decision of the Refugee Division dated

June 20, 2002, determining that the applicant is not a refugee within the meaning of the Convention is allowed. The matter is referred back to the Refugee Division for a redetermination by a differently constituted panel.

"Yvon Pinard"

                                                                         

                                JUDGE

Certified true translation

Mary Jo Egan, LLB


                                                                    Date: 20030225

                                                               Docket: IMM-3548-02

                                                  Neutral Citation: 2003 FCT 220

Between:

                               NAEEM JAWAID

                                                                Applicant

                                 - and -

                        MINISTER OF CITIZENSHIP

                             AND IMMIGRATION

                                                               Respondent

                          REASONS FOR ORDER

PINARD J.:

   This is an application for judicial review of a decision of the Refugee Division, dated June 20, 2002, determining that the applicant is not a Convention refugee, as defined in subsection 2(1) of the Immigration Act, R.S.C., (1985), c. I-2.

   The applicant, Naeem Jawaid, is a citizen of Pakistan. He is claiming refugee status based on his conversion from the Sunnite religion to the Shi'ite religion.

   The applicant alleges that he was beaten several times by former co-religionists because of his conversion to Shi'ite Islam. The applicant also alleges that he was detained and beaten by police in Karachi for ten days, and that he was accused of being a Shi'ite agent and a sympathizer of Sipah-e-Muhammad, a political party affiliated with the Shi'ites.


   This is a case where the applicant has persuaded me that the Refugee Division failed to adequately consider the evidence before it. In fact, both at the hearing before the panel and in his response to question 37 in his Personal Information Form, the applicant expressed his fear of being perceived as a sympathizer of Sipah-e-Muhammad or a person associated with that group; in addition, the applicant submitted documentary evidence to the effect that he was a defector.

   It appears that the Refugee Division based its decision solely on the documentary evidence about conditions in the country of origin, particularly on the evidence about the general status of Shi'ite Muslims. The panel did not deal with the fact that the police suspected the applicant was a member of the Sipah-e-Muhammad, or the specific circumstances of a person who has converted from the Sunnite religion to the Shi'ite religion. Since those issues were linked to the very basis of the applicant's fear, I am of the view that the Refugee Division particularly erred in failing to consider them.

   Under the circumstances, I am also of the view that the Refugee Division erred in failing to give reasons for preferring the only documentary evidence that it considered over the applicant's testimony. In Okyere-Akosah v. Canada (M.E.I.) (1992), 157 N.R. 387, at page 389, the Federal Court of Appeal stated:

. . . Since there is a presumption as to the truth of the appellant's testimony, the Board was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the appellant's testimonial evidence. . . .


   Given that the fear alleged by the applicant is based on his conversion from the Sunnite religion to the Shi'ite religion, and not merely on the fact of being a Shi'ite, the Refugee Division should have done a more thorough analysis of his story. The documentary evidence on which the Refugee Division based its decision does not deal directly with the circumstances in which the applicant found himself: therefore, it does not necessarily contradict his testimony. It is not sufficient to state that the applicant "simply does not fit the profile of someone who might be at risk"without examining the risk to which he states he was in fact exposed. Therefore, the Refugee Division also erred in preferring the documentary evidence about general conditions in Pakistan without clearly explaining why it rejected the evidence about the particular circumstances of the applicant and without mentioning in particular Exhibit A-6, which refers specifically to the difficult situation of defectors (page 170 of the tribunal record).

   Since the intervention of this Court is warranted, the application for judicial review is allowed, and the matter is referred back to the Refugee Division for redetermination by a differently constituted panel.

"Yvon Pinard"

                                                                         

       JUDGE

OTTAWA, ONTARIO

February 25, 2003

Certified true translation

Mary Jo Egan, LLB


                              FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

                    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                IMM-3548-02

STYLE OF CAUSE:                       NAEEM JAWAID v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:              January 14, 2003

REASONS FOR ORDER BY:          The Honourable Mr. Justice Pinard

DATED:                          February 25, 2003                    

APPEARANCES:

Michel Le Brun                        FOR THE APPLICANT

Daniel Latulippe                      FOR THE RESPONDENT

SOLICITORS OF RECORD:

Michel Le Brun                        FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                      FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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