Date: 20040505
Docket: IMM-2880-03
Citation: 2004 FC 667
Toronto, Ontario, May 5th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
MOHAMMED SHAHID KHILJI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of Pakistan who claims refugee protection as a religious leader in the Shia Muslim community, namely as the President of the Imambargah Committee. He fears persecution and a threat to his life at the hands of the Sipah-e-Sahaba Pakistan (SSP), an extremist religious Sunni organization. He seeks judicial review of the decision of the IRB dated March 27, 2003 wherein the IRB found that he is not a Convention refugee, and is not a person in need of protection on the basis that he is not a member of the groups most at risk in Pakistan, and due to a finding that adequate state protection is available should the Applicant return to Pakistan.
[2] In the present case, credibility was not in issue before the IRB. As a result, the following facts were accepted:
The claimant alleges that due to his role as a Shia leader he had numerous problems with the Sipah-e-Sahaba (SSP) Pakistan.
The claimant was present in April 2001 when the Zuljinah Procession was attacked. The police would not take a report since the attackers were unknown.
The claimant in his role as President of his Imambargah Committee, with others, attempted to report an incident at the Imambargah. The police threatened arrest if the group did not leave.
In December 2001 the claimant was confronted by SSP goons and told not to report the activities of the local Sunni leader Maulvi Siddique.
In late March 2002 the claimant received a phone call informing him not to hold the procession during the month of Muharram. The police promised security when the claimant threatened to go to a higher authority.
The next day the claimant was present when gunshots were fired outside his Imambargah. His name was called out and death threats made from outside the wall.
The claimant went into hiding and fled Pakistan, May 17, 2002, making a refugee claim in Canada the same day. (Decision, p. 1).
[3] The analysis supporting the rejection of the Applicant's refugee claim reads as follows:
Analysis
The Amnesty International (AI) Report in Exhibit R-1, Section 1.15, titled No Protection Against Targeted Killings, October 2002 in Section 2 outlines the Shia groups most at risk: Doctors, Professionals, Clerics and others attempting to mediate between each of these persons and the claimant but I am satisfied that they are each Shia, each worship regularly, and in the case of the President have a visible role in the Shia community. I note they are all still in Pakistan with no reported problems from the SSP.
The claimant testified he believed his unique problem was a result of his going to the police station and pointing out his belief that the root cause of the problem was Maulvi Siddique. I accept that it is possible this one act might draw the attention of the SSP, however, considering the claimant's profile does not match any of the groups identified by AI and there are a number of persons similarly situated to the claimant who remain in Pakistan without reported problems I find on a balance of probabilities that this one act would not make him a target for the SSP.
This finding is supported by the nature of the claimant's problems in Pakistan. He was only once face-to-face warned that he should stop his activities. He received a number of phone calls and on one occasion persons believed to be members of the SSP fired shots and called the claimant to come out. There is no evidence the shots were fired at the claimant nor did the armed men make an attempt to scale the wall and enter the building proper.
On a balance of probabilities, I find these are not the actions of the SSP if they in fact had targeted the claimant.
State Protection
Having found the claimant is not of the profile of those most at risk, I am satisfied the state is making serious efforts to provide adequate but not necessary perfect protection. (Decision, p. 2-3).
[4] It is agreed that the burden on the Applicant to provide clear and convincing proof of lack of state protection is hooked to the individual risk circumstances of an individual claimant (Canada (M.E.I.) v. Villafranca (1992), 18 Imm. LR (2d) 130 (F.C.A.)). Indeed, that is what the IRB decided in the present case.
[5] The Applicant argues that the finding of fact with respect to the level of risk that the Applicant would suffer if he returns to Pakistan is wrongly found. I agree.
[6] In my opinion the documentary evidence does not support the finding that the Applicant is not within a Shia group most at risk. The report relied on by the IRB (Applicant's Application Record, 108) clearly states that religious leaders are at risk, including persons attached to an Imambargah such as a prayer leader or caretaker. On the evidence of the Applicant accepted by the IRB, there is no doubt that, as he is the President of an Imambargah Committee, the Applicant falls within a group most at risk of persecution.
[7] In addition, in my opinion, the IRB's finding that "I note they _the claimant's father, brothers and even the person who replaced the claimant as president of his Imambargah Committee_ are all still in Pakistan with no reported problems from the SSP" is a misinterpretation of the evidence. In fact, the following is the Applicant's evidence given at the hearing of this issue:
PRESIDING MEMBER: And is he the person who became President after you left Pakistan?
CLAIMANT: Yes
PRESIDING MEMBER: And does he have problems?
CLAIMANT: He must be having problems but I am here. I don't know. (Tribunal Record, p. 348).
[8] It is important to note that the Applicant's evidence substantiates that he was specifically targeted by the SSP. In my opinion, the IRB's downgrading of this evidence is unwarranted and unsubstantiated. The finding that the attack on the Applicant was not the actions of the SSP is a plausibility finding which is unsupported. In order for the finding to stand, the evidentiary base for making it has to be stated. This was not done.
[9] Given that the IRB clearly sets the condition precedent to its finding of state protection as "having found the claimant is not of the profile of those most at risk", and given that the claimant's profile as found by the IRB is made in error, in my opinion, the finding of state protection cannot stand.
[10] As a result of the factual errors noted, I find that the IRB's decision was made in reviewable error rendering it as patently unreasonable.
ORDER
Accordingly, the IRB's decision is set aside and the matter is referred to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2880-03
STYLE OF CAUSE: MOHAMMED SHAHID KHILJI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 4, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES BY:
Mr. John Grice
FOR THE APPLICANT
Mr. Michael Butterfield
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John Grice
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040505
Docket: IMM-2880-03
BETWEEN:
MOHAMMED SHAHID KHILJI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER