Federal Court Decisions

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Decision Content

Date: 20030501

Docket: IMM-4328-02

Citation: 2003 FCT 541

BETWEEN:

                                                                SHAHNAZ AKHTAR

                                                                NUZHAT YASMEEN

                                                   MOHAMMAD QAISER GONDAL

                                                                                                                                                      applicants

                                                                                 and

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                     respondent

                                                            REASONS FOR ORDER

LEMIEUX, J.


[1]                 The applicants, Shahnaz Akhtar and her two minor children are Shia Muslims and citizens of Pakistan who, in this judicial review proceeding, seek to set aside the August 22, 2002 decision of the Refugee Protection Division of the Immigration and Refugee Board (the tribunal) which rejected their refugee claims in which they allege a well-founded fear of persecution at the hands of the Sipah-e-Sahaba Pakistan (SSP) and the police. In addition, they claim to be persons in need of protection because of their being in danger of torture or at risk of losing their lives or at risk of cruel and causal punishment in Pakistan.

[2]                 As I see it, the tribunal denied their claim on two bases: available protection by the State against sectarian violence which it acknowledged existed in Pakistan between Shia and Sunni extremists and absence of credible or trustworthy evidence in support of their claim which led it to conclude "that she is not generally credible".

[3]                 Counsel for the applicants was quite candid with the Court which is appreciated.

[4]                 He framed the issue of protection in terms of what quality of protection can be expected in a situation where the agent of the alleged persecution is not a State agent such as the police.

[5]                 This qualification of the police not being agents of persecution in this case is important because of the applicants' allegation that the police sided with the Sunni who persecuted her husband and son who are said to be in hiding in Pakistan.

[6]                 The tribunal made a specific finding that it did not believe Mrs. Akhtar's allegation citing documentary evidence. Counsel for the applicants could point to no documentary evidence in the record to support the proposition the police in Pakistan supported Sunni extremists against the Shia.


[7]                 The tribunal dealt with state protection in the Shia-Sunni conflict in these terms:

The panel is aware that sectarian violence between Shia and Sunni extremist groups exists in Pakistan. However, documentary evidence reveals that Shias are not systemically discriminated against by other elements in Pakistani society; that they are generally protected by the government and are well integrated into the society. Most Sunni Muslims live peacefully with Shia Muslims. Though the state of Pakistan has difficulty in stamping out sectarian violence, there is a lack of objective evidence to indicate that the military government or police favors the Sunni majority over the Shia or that the state directs persecutory actions against the Shia. As a matter of fact, documentary evidence shows that the military government has taken recent steps to curb religious extremism. During the period of Muharram when incidents of violence between Shia and Sunni Muslims typically occur, the government made mass arrests of those suspected of contemplating violent action against members of the other group, and a public call for religious leaders to enforce a code of conduct. On August 14, 2001, the government banned two groups, the Shia Muslim based Sipah-e-Mohammed Pakistan, and the Sunni Muslim based Lashar-e-Jhangvi, both of which had claimed responsibility for acts of sectarian violence in the past. In January 2002, a further five groups including the SSP were banned. Announcing the ban President Musharraf stated that an aim of the ban was cleaning society of sectarian violence and intolerance. In the crackdown of these extremist religious groups following the ban, over 1900 religious activists were detained. Based on this objective evidence on the government's response to sectarian violence, the panel does not believe the claimant's allegation that the police sided with the Sunni and persecuted her husband and son.

[8]                 What I take from this paragraph is: (1) an acknowledgment by the tribunal of the existence of violence between Shia and Sunni extremists; (2) Pakistan has had difficulties stamping out this violence; (3) Pakistan has taken steps to curb religious extremism; (4) the SSP has been banned; and (5) sectarian violence is addressed through law enforcement.

[9]                 I am reminded of the following words of Justice Hugessen, then with the Federal Court of Appeal, in Canada (Minister of Employment and Immigration v. Villafranca [1992] F.C.J. No. 1189:


[...] On the other hand, where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.

[10]            Counsel for the applicants tried to convince me the tribunal did not fairly deal with the documentary evidence on protection. My review of the documentary evidence persuades me the tribunal accurately portrayed it particularly when assessed in the context of the tribunal's appreciation that protection against sectarian violence or sectarian terrorism was not perfect in Pakistan.

[11]            The tribunal cited six instances which led it to find the applicant Shahnaz Akhtar's evidence not credible. In some cases, implausibility findings were drawn, in others, the finding rested on contradictions with her Personal Information Form and yet in others it was grounded on her confusing testimony or unpersuasive answers.

[12]            The law is quite clear to the effect assessments of the nature described above as the building blocks to credibility findings is the task of the tribunal and this Court cannot reweigh the evidence and substitute its decision unless errors are identified which would lead the tribunal to rule the credibility finding was patently unreasonable. The applicants have not been able to identify any such errors.

[13]            For these reasons, this judicial review application is dismissed. No certified question was proposed.

                 "François Lemieux"                

                             Judge                             

Montreal, Quebec

May 1, 2003


                                                                                                

                                                                 FEDERAL COURT OF CANADA

                                                                              TRIAL DIVISION

Date: 20030501

Docket: IMM-4328-02

BETWEEN:

                                                                             SHAHNAZ AKHTAR

                                                                             NUZHAT YASMEEN

                                                                MOHAMMAD QAISER GONDAL

                                                                                                                                                                                applicants

                                                                                              and

                                                               THE MINISTER OF CITIZENSHIP

                                                                           AND IMMIGRATION

                                                                                                                                                                               respondent

                                                                                                                                                                                  

                                                                         REASONS FOR ORDER

                                                                                                                                                                                   


                                                                 FEDERAL COURT OF CANADA

                                                                              TRIAL DIVISION

                                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                          IMM-4328-02

STYLE OF CAUSE:                                        SHAHNAZ AKHTAR

                                                                             NUZHAT YASMEEN

                                                                MOHAMMAD QAISER GONDAL

                                                                                                                                                                                applicants

                                                                                              and

                                                               THE MINISTER OF CITIZENSHIP

                                                                           AND IMMIGRATION

                                                                                                                                                                               respondent

                                                                                                

PLACE OF HEARING:                                  Montreal, Quebec

DATE OF HEARING:                                    April 29, 2003

REASONS FOR ORDER :                          THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                                                             May 1, 2003

APPEARANCES:

Mr. Ethan A. Friedman                                                                               FOR THE APPLICANTS

Mr. Mario Blanchard                                                                                   FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Ethan A. Friedman                                                                               FOR THE APPLICANTS

Morris Rosenberg                                                                                        FOR THE RESPONDENT

Deputy Attorney General of Canada

Montreal, Quebec


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