Date: 20000830
Docket: IMM-4853-99
BETWEEN:
NASIR HUSSAIN, QUDSIA NASIR, SABEEN
ZEHRA (a minor), and ZILE ALI (a minor)
Applicants
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Nasir Hussain is the principal Applicant in this Application for Judicial Review. He is the representative of his wife Qudsia Nasir and their children Sabeen Zehra and Zile Ali. This family, all citizens of Pakistan, applied for Convention refugee status in Canada on the basis that they had a well-founded fear of persecution in Pakistan on the basis of religion and political opinion, as well as membership in social groups. The claims of the mother and minor children are based on the claim of Nasir Hussain who is a practising member of the Shia religion, a recognized minority group in Pakistan. The father also holds a relationship to the Pakistan People's Party ("PPP") which is opposed by the political party Sipa Sabha, a party engaged in extremist acts against the Shia minority.
[2] Following a hearing before the Immigration and Refugee Board, Convention Refugee Determination Division, a decision was filed on September 10, 1999, in which these Applicants were found not to be Convention refugees. The Board found that there was insufficient evidence to show that state protection would not be available to these Applicants if they were to return to Pakistan.
[3] The primary issue submitted by the Applicants on this Application for Judicial Review was that the Board had asked itself the wrong question in relation to the State's ability to protect the Applicants.
[4] The Applicants submit that the Board erroneously asked whether there is clear and convincing evidence that the State would not be reasonably forthcoming with serious efforts to protect them. The Applicants say that the Board should have asked whether there is clear and convincing evidence that the State is unable to provide protection. The Applicants base their argument upon this statement in the reasons filed by the Board:
| Based on the evidence before us, the panel is not persuaded that there is clear and convincing evidence that the State would not be reasonably forthcoming with serious efforts to protect the claimants from this agent if the claimants were to return to Pakistan. |
[5] I am not persuaded that the Board applied the wrong test or asked the wrong question. This conclusion of the Board appears to reflect the views of the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 where the Court considered the burden upon a claimant seeking refugee status to demonstrate the inability of a State to provide protection.
[6] The "State" in question is Pakistan and there was evidence before the Board to show that protection had been made available to the Applicants in the past. There is no evidence on the record that such protection would be unavailable in the future, nor is there evidence that the State, that is Pakistan, was unwilling to afford protection to the Applicants.
[7] In an application for judicial review of a decision of the Convention Refugee Determination Division, the standard of review which applies to a question of law is the standard of correctness. The standard of review on a question of fact is patently unreasonable. In my view, the Board considered the correct test in relation to the availability of State protection. The Board's conclusion, having regard to the evidence before it, is not patently unreasonable.
ORDER
[8] The Application for Judicial Review is dismissed. No question for certification was submitted.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
August 30, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4853-99 |
| STYLE OF CAUSE: NASIR HUSSAIN, QUDSIA NASIR, SABEEN |
ZEHRA (a minor), and ZILE ALI (a minor)
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, AUGUST 29, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDERBY: HENEGHAN J. |
DATED: WEDNESDAY, AUGUST 30, 2000
| APPEARANCES BY: Mr. Michael Korman |
| For the Applicants |
| Mr. Godwin Friday |
For the Respondent
| SOLICITORS OF RECORD: Otis & Korman |
Barristers & Solicitors
326 Richmond Street West
Toronto, Ontario
M5V 1X2
| For the Applicants |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000831
Docket: IMM-4853-99
BETWEEN:
| NASIR HUSSAIN, QUDSIA NASIR, SABEEN |
ZEHRA (a minor), and ZILE ALI (a minor)
Applicants
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER