Ottawa, Ontario, the 4th day of June, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Muhammad Kashif’s wife may have been the victim of an “honour” killing by her family in Pakistan but the Refugee Protection Division of the Immigration and Refugee Board (the “Board”), was not convinced that state protection was unavailable to him and determined that he was not a refugee or a person in need of protection. Despite the sympathetic circumstances of his claim, I am unable to conclude that the Board erred in that determination and must, therefore, dismiss this application.
[2] The applicant, a member of the Shia faith, married a Sunni woman, Sadaf, against the strong opposition of her family. This resulted in beatings and threats of further violence notably from her brother and from the Sipah-e-Sahaba (SSP). The couple moved to Lahore to avoid these problems. When the SSP came looking for them there, they made plans to leave the country. The applicant came to Canada in September 2004. Sadaf intended at first to follow him but decided to return home to her parents when she discovered that she was pregnant, thinking that this would resolve the conflict with her family.
[3] The applicant’s wife returned home on January 5, 2005. The applicant began making preparations to return to Pakistan. On January 7, 2005 the applicant’s father informed him by phone that an oil stove had blown up and that Sadaf had been badly burned and had died in hospital.
[4] According to information received and submitted by the applicant with his claim, on January 8, 2005, Sadaf’s brother, Asif Khan, along with some bearded men (whom the applicant suspects were SSP members) came to his parents’ house and asked his father about his son’s whereabouts. He told them that his son was in Canada. The applicant says that Asif Khan then insulted and beat the father. The father died of a heart attack two days later. The applicant’s brother attempted to register a charge or First Information Report (FIR) against Asif Khan and his family, but the police considered the deaths of his wife and father to be accidental.
[5] The applicant made his refugee claim on January 14, 2005, asserting a well-founded fear of persecution from Asif Khan, members of the SSP and other extremist Sunni Muslim groups, on the basis of his marriage to a Sunni woman.
THE BOARD’S DECISION
[6] In its reasons, the Board stated that it had considered the documentary evidence before it respecting the treatment of Shias in Pakistan, particularly by extremist Sunni Muslim groups such as the SSP. The Board set out many examples of sectarian violence being directed towards members of Pakistan’s Shia community. Based on this evidence, the Board accepted that “Shias are victims, and continue to be victims of sectarian violence perpetrated by Sunni extremist groups...”.
[7] Based on the two medical certificates that the claimant had submitted to the Board, the Board accepted that the applicant’s wife had died from burns to 80 percent of her body on January 7, 2007, and that his father had died of a heart attack on January 10, 2005. The Board went on to note however that “apart from the Affidavits by his mother and a friend in Pakistan reporting on the death of his wife Sadaf under “very mysterious circumstances” from burns suffered from a Kerosene stove, the claimant has provided no independent documentary evidence to corroborate that his wife’s death was an act of murder by her brother Asif Khan and that his father’s death was caused by being beaten and threatened by Asif Khan”. The Board noted that the medical certificates made no mention of foul play.
[8] The Board found that the applicant had not met his burden to refute the presumption of state protection as set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724 [Ward] for the following reasons:
· The documentary evidence respecting attempts by the Pakistani authorities to prevent and reduce sectarian violence, particularly between Sunni and Shia Muslims, did not support the applicant’s assertions regarding the state’s inability to protect.
· This evidence was to be preferred to that of the applicant, as it came from reliable and independent sources.
· The documentary evidence confirmed that “police and government authorities are responding to acts of sectarian violence perpetrated against Shias and are making serious efforts to arrest and detain fundamentalist Sunni Muslims and members of Sunni extremist groups such as the SSP and the LJ, and to bring them to justice for their crimes”.
· While protection against criminal Sunni militants and terrorists in Pakistan may not be perfect, it is available and adequate.
· “[W]hile there is sectarian violence in Pakistan, Shias are not a disadvantaged group, and the police do respond to outbreaks of violence by arresting perpetrators from both sides of the violence”.
[9] The Board concluded that in light of the availability of adequate state protection, it was more likely than not that the applicant’s removal “would not subject him personally to a risk to his life or to a risk of cruel and unusual treatment or punishment”.
ISSUES
[10] The issues raised by the applicant are as follows:
- Did the Board err in making its findings of fact?
- Did the Board err in interpreting and applying the concept of state protection?
ANALYSIS
Standard of Review:
[11] It is well established that the standard of review that applies to the Board’s factual findings should be that of patent unreasonableness. The Supreme Court has described a patently unreasonable decision as one that is “clearly irrational” or “evidently not in accordance with reason”, so flawed that no amount of curial deference can justify letting it stand: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 52.
[12] With respect to the issue of the availability of state protection, the standard of review has been held in the past to also be patent unreasonableness: Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449. More recently, however, the standard of review has been held to be reasonableness: Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 at para. 11. This latter approach was recently endorsed by the Federal Court of Appeal in Hinzmand v. Canada (Minister of Citizenship and Immigration); Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para. 38, wherein the Court of Appeal found that “questions as to the adequacy of state protection are questions of mixed fact and law ordinarily reviewable against a standard of reasonableness”. Accordingly, this is the standard I have applied in the present case.
Issue 1: Findings of Fact
[13] The applicant submits that the Board’s findings with respect to the deaths of the applicant’s wife and father were patently unreasonable as the Board’s finding was not based on an inconsistency in the evidence, but on a “capricious and self-serving contention to the effect that the applicant had not provided independent documentary evidence to corroborate his allegations of murder and/of foul play”. The applicant asserts that in the absence of an adverse credibility finding, and in light of the documentary evidence regarding “honour killings”, a tribunal acting reasonably and in consideration of the evidence in its entirety ought to have found that the applicant’s wife had indeed been murdered, and that his father had died as a result of foul play.
[14] While I agree with the applicant that the circumstances of his wife’s death are suspicious and it is clear from the documentary evidence that many so-called “honour” killings in Pakistan go unreported, the inference that it was murder was not the only plausible conclusion that the Board could draw from the evidence. As was highlighted by the respondent, the only first hand evidence of the cause for the applicant’s wife’s death is a medical report that confirms that she died as a result of burns to 80% of her body. This is also consistent with the hypothesis of an accident with a kerosene stove.
[15] The applicant himself has no direct knowledge of the circumstances of his wife’s death, and is relying upon allusions in the supporting affidavits to “mysterious circumstances”, and to an allegation that his late wife’s brother threatened that “as they had killed their sister they would also kill (the applicant)”. While one might suspect foul play, the Board did not act capriciously in declining to make a finding that it was in fact murder.
[16] There was also no independent evidence that the death of the applicant’s father, which the medical evidence confirmed was due to a heart attack, was homicide. The applicant’s mother’s affidavit mentions that prior to her husband’s death, they were visited by the applicant’s brother-in-law, who came to their home with some bearded persons, saying that he “insulted” her late husband and “treated him badly”. Inexplicably, no mention is made of her husband having been physically beaten, nor does the applicant’s mother link his subsequent heart attack with the visit.
[17] As was recognized by the Court in Oyebade v. Canada (Minister of Citizenship and Immigration), 2001 FCT 773:
13 The Board, which is a specialized tribunal, has complete jurisdiction to determine the applicant's credibility, the plausibility of testimony and the weight of evidence. (See, e.g., Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.); He v. M.E.I., [1994] F.C.J. No. 1107 (F.C.A.)). … [emphasis mine]
[18] While I may have arrived at a different conclusion with respect to the weight to be accorded the evidence, particularly the documentary evidence regarding the extent of so-called “honour killings” in Pakistan, that is not the task that I have to perform. The applicant has failed to show that the Board ignored or misconstrued the evidence, or made perverse or capricious findings of fact that would justify the Court’s intervention. The Board simply was not persuaded that there was sufficient evidence to conclude that the deaths were homicides.
[19] In any event, the Board’s decision did not turn on a finding of a lack of credibility or that the events claimed by the applicant did not occur but rather upon its determination that state protection was available to him in Pakistan.
Issue 2: State Protection
[20] The applicant argues that the Board’s review of the documentary evidence was selective and self-serving, as the Board ignored considerable evidence that attested to the on-going failure and/or inability of the Pakistani state to deal adequately with the acknowledged incidences of ongoing sectarian violence against Shias in the country, perpetrated by purportedly banned Sunni militant groups like the SSP.
[21] In particular, the applicant asserts that there was documentary evidence on the record which ran directly counter to the Board’s findings regarding the issue of state protection. The applicant referred to a Research Directorate Document, dated November 19, 2004, entitled “Pakistan: The Effectiveness of the Government Ban on Extremist Groups”. This document indicates that though steps have been taken by the Pakistan government to ban certain religious organizations, the government has not followed through by having trials, disarming the organizations or rehabilitating them.
[22] The applicant further asserts that the Board should have considered the evidence that the Pakistani police had refused in the past to take action in relation to the applicant’s wife’s and father’s death, and that this was an indication that state protection would not be available to the applicant upon his return to Pakistan.
[23] It is trite law that the Board is not required to refer to every piece of evidence that was put before it, though the failure to mention an important piece of evidence which contradicts its findings can support an inference that the decision-maker failed to take this evidence into account: Thiara v. Canada (Minister of Citizenship and Immigration), 2007 FC 387 at para. 18; Otti v. Canada (Minister of Citizenship and Immigration), 2006 FC 1031 at para. 13. This is not a case in which such an inference should be drawn.
[24] As noted above, in its reasons the Board set out many examples from the evidence it considered of sectarian violence directed towards members of Pakistan’s Shia community by Sunni extremist groups such as the SSP. The Board accepted that “Shias are victims, and continue to be victims of sectarian violence perpetrated by Sunni extremist groups such as the SSP and the LJ”. Though the Board did not mention the particular excerpts cited by the applicant, it clearly did not ignore the fact that sectarian violence is an on-going problem in Pakistan in reaching its conclusion that the presumption of state protection had not been rebutted.
[25] The fact that the police were not prepared to accept a charge or a First Information Report against Asif Khan and other members of his family is not in itself evidence of an inability to protect sufficient to overcome the presumption. On the face of the evidence submitted, there was not enough to substantiate a charge that the deaths of the wife and the father were criminally related. But even if one may criticize the police for being unwilling to pursue an investigation in these circumstances, state protection need not be perfect so long as the state is in effective control and makes serious efforts to protect its citizens: Atakurola v. Canada (Minister of Citizenship & Immigration), [1995] F.C.J. No. 463 at para. 13 (T.D.)(QL). On the basis of the evidence submitted to the Board, that appears to have been the case as of the date of the hearing.
[26] I am satisfied that the reasons of the Board with respect to the availability of state protection stand up to a somewhat probing examination and are therefore reasonable. The Board’s decision should not be interfered with by the Court.
[27] No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3872-06
STYLE OF CAUSE: MUHAMMAD KASHIF
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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John Savaglio
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Don Hewak
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SOLICITORS OF RECORD:
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JOHN SAVAGLIO Barrister & Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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