Date: 20021030
Docket: IMM-5893-01
Neutral citation: 2002 FCT 1127
BETWEEN:
MOHAMMAD SULTAN
RAISA KHANAM
ABDUL REHMAN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of the decision of the Convention and Refugee Determination Division of the Immigration and Refugee Board (CRDD) now the Immigration Protection Division (RPD), dated December 3, 2001, which determined that the applicants are not Convention refugees.
[2] Mohammad Sultan (the principal applicant), his wife Raisa Khanam and their son Abdul Rehman are citizens of Pakistan. The principal applicant claims a well-founded fear of persecution on the basis of religion and membership in a social group. His wife and son base their claims on his claim.
[3] The applicant was an employee of the Pakistani government and worked for the House Building Finance Corporation with offices located near the Iranian Consulate in Multan. While at work in 1997, the applicant witnessed the flight of a group of terrorists after the slaying of eight diplomats at the Iranian Consulate. The terrorists were members of the Sipa-e-Sahaba Pakistan (SSP), a Sunni extremist group.
[4] For three months following this incident, four armed police officers were posted outside the applicant's office to provide protection. At the end of the three months when the four officers were removed, the applicant approached the police and requested continued protection. One armed officer was provided. During this time frame, the applicant received death threats from Sunni extremists warning him not to identify the killers. He also received threats from Shia extremists blaming him for supporting the SSP.
[5] The terrorists were eventually apprehended. The applicant received telephone calls, from persons he assumed to be Shia extremists, threatening that he and his family would be killed if the terrorists were not hung. In December, 1998, invaders broke into his home but fled when the applicant fired his gun. The applicant and his family decided to move and left for Karachi in May, 1999. Then, because of having witnessed the incident, the applicant began experiencing problems at work. His new executive director was Shia and the applicant believed that she wanted to get rid of him. She took out charge sheets against him regarding his work although nothing came of the charges. Ultimately, the applicant was pressured into retiring in September, 1999. He travelled to Saudi Arabia to seek employment but returned to Pakistan when he was not successful.
[6] In October, 2000, the convictions of the terrorists were overturned and they were released. Again, the applicant received threatening phone calls. The applicant testified that the persons responsible for the threats knew that he had moved. Fearing for his safety and that of his family, he went into hiding and after making the necessary arrangements, left Pakistan and arrived in Canada on January 21, 2001.
[7] The CRDD determined that the applicant was generally credible but found that he had state protection available and failed to take advantage of it. The board also found that re-availment applied. The parties agree that the primary ground of the decision is state protection and that the applicant must succeed on this ground.
[8] The conclusion regarding state protection was based on the fact that the applicant did not make efforts to avail himself of this protection. The CRDD notes that after the incident witnessed by the applicant, four armed policemen were posted in front of the applicant's office for three months and after their removal, upon the applicant's request, one officer was provided for the applicant's safety. The panel then stated:
Following this period of surveillance, the claimant had no further contact with police. Specifically, the claimant did not inform police after receiving threatening telephone calls from both extremist groups within days of the incident. He never requested any protection for after work hours or at his home. This is despite the fact that he continued to receive threatening calls from both the SSP and the Shia extremists and was awakened at his home by 3 armed intruders one December 1998 night. The claimant explained that he did not inform the police about the incident involving intruders at his home because he had suffered no losses and a friend had advised him not to bother. Similarly, the claimant did not contact the police when he received threatening calls after the acquittal of the killers, instead he decided to leave Pakistan.
The panel also referred to documentary evidence and stated:
Recent media reports indicate that, if anything, protection for Pakistani citizens against religious extremists has increased since that time. The claimant did not seek further protection despite the threats and intrusion. Recent media reports indicate that Chief Executive General Pervez Musharraf has called for a crackdown on sectarian violence, especially with respect to the SSP.
[9] The applicant submits that, in response to questioning by the CRDD, he also indicated that the Pakistani police were corrupt, slow to respond and scarce of resources so there would be little sense in seeking police assistance. He additionally refers to two passages from a 1997 article discussing sectarian crimes. The applicant argues that in the face of this evidence it was incumbent upon the CRDD to analyse it, in the context of effective state protection, and that its failure to do so constitutes material error.
[10] The respondent replies that the applicant refers to passages from a single 1997 article when the panel had fifty-four pages of documentary evidence before it, including evidence dated as late as August 10, 2000 and February 25, 2001. The applicant, says the respondent, bears the onus of establishing that state protection is not available. In a country where protection might reasonably be forthcoming, a claimant is required to approach the state for protection. If an applicant fails to seek protection, he must demonstrate reasonable grounds for the failure. Relying upon N.K. v. Canada (Minister of Citizenship and Immigration) (1996), 206 N.R. 272 (F.C.A.), the respondent submits that the more democratic the state's institution, the higher the onus on the applicant to demonstrate exhaustion of all available courses of action. Since Pakistan was a democracy at the time of the incident, the applicant's efforts to secure protection are insufficient.
[11] I am not persuaded that the CRDD erred as alleged by the applicant. There is a presumption that state protection exists. The presumption may be rebutted by clear and convincing evidence to the contrary: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[12] The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid or that the government itself is in some way prevented from giving it: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
[13] An applicant, to satisfy the onus, may advance testimony of similarly situated individuals let down by state protection arrangements or by testimony of past personal incidents in which state protection did not materialize: Ward, supra.
[14] LaForest, J., in Ward, stated: "...the claimant will not meet the definition of 'Convention refugee' where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities".
[15] In my view, it cannot be said that the CRDD erred, in the present circumstances, in coming to the conclusion that state protection was available. It is for the CRDD to weigh the evidence and the Court should not intervene in this regard. Nor should the Court substitute its opinion for that of the panel, which is entitled to prefer documentary evidence over the evidence of a claimant. Here, the applicant did not establish that it was reasonable not to have sought the protection of his home authorities. Hence, the conclusion of the CRDD was reasonably open to it and the application for judicial review is therefore dismissed. In view of my determination regarding state protection, it is not necessary for me to address the issue of re-availment.
[16] Counsel did not suggest a question for certification. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C.
Toronto, Ontario
October 30, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5893-01
STYLE OF CAUSE: MOHAMMAD SULTAN
RAISA KHANAM
ABDUL REHMAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, OCTOBER 29, 2002
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: WEDNESDAY, OCTOBER 30, 2002
APPEARANCES: Mr. Paul VanderVennen
For the Applicants
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Paul VanderVennen
Barrister and Solicitor
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021030
Docket: IMM-5893-01
BETWEEN:
MOHAMMAD SULTAN
RAISA KHANAM
ABDUL REHMAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER