Ottawa, Ontario, April 26, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review application concerns a female citizen of Pakistan who alleges that she fears persecution because of her inter-faith marriage.
[2] The Applicant was born into a devout Sunni Muslim family but converted to Shia as a result of her marriage. She claimed that her family, specifically two uncles who were members of the SSP (Sepah-e-Sahaba Pakistan), an extreme political group, disapproved of the marriage.
[3] She alleged that she and her husband received death threats from the SSP commencing shortly after the wedding. Following a home visit from the SSP and an incident where her husband was followed and shot at, they lodged a complaint with the local police. The police were said to have refused to register the complaint.
[4] As a result of the increasing number of threats, her husband decided to disappear alone. The threats continued against her and, after a raid on her home by unknown assailants, her husband's cousin attempted to lodge a complaint with the police. This complaint met with no success.
[5] Having been kicked out of her in-law's home and residing with a friend for a short period, she fled Pakistan, lived and worked illegally in the United States for approximately three years before coming to Canada.
[6] The IRB made three critical determinations:
1) that her story was implausible with respect to her husband's leaving her after only two weeks of marriage and with respect to not seeking help from others in lodging a complaint with the police and/or in attempting to locate her husband;
2) that her delay in seeking asylum undercut her claim of subjective fear; and
3) that her failure to seek state protection showed that there was no objective fear of persecution.
[7] Given the result in this case, I will refrain from significant comment on the first two findings except to make the following observations. While delay may not always be a basis for finding an absence of subjective fear, the more extensive the delay and the less credible the explanation, the more reasonable the determination that subjective fear was absent. Furthermore, credibility and implausibility findings, while largely the purview of the IRB, must be supported by reasons and logical inferences.
[8] The decision in this case turns on the findings with respect to state protection. The Respondent, to her credit, accepts that the IRB erred in fact when it concluded that the Applicant "provided no reasonable explanation for her failure to approach the state ...". There were at least two occasions on which the Applicant or someone acting on her behalf went to the police.
[9] The IRB never assessed whether the Applicant failed to do more, after being rebuffed by the local police, or whether doing more was reasonable in the circumstances. There is no doubt that in this case, the conclusion as to failure to seek the protection of state organizations was critical to the IRB's finding of absence of a basis for objective fear.
[10] The Respondent relies on several cases to show that state protection exists in Pakistan. These cases are important but they do not address the issue of whether state protection was available to this Applicant.
[11] The issue of state protection in Pakistan is critical to persons in the position of the Applicant. The IRB itself held that "documentary evidence provided by the claimant and from the Refugee Protection Officer supports the contention that some members of the Shia minority are victims of killing and persecution at the hands of the SSP and other Sunni extremists".
[12] Therefore, this application for judicial review will be granted, the decision of the IRB quashed and the matter be remitted to a differently constituted panel for a new determination of the claim.
[13] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, the decision of the IRB quashed and the matter be remitted to a differently constituted panel for a new determination of the claim.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3294-05
STYLE OF CAUSE: AYSHA MOBIN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2006
APPEARANCES:
| Mr. Ali M. Amini
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| Ms. Vanita Goela
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SOLICITORS OF RECORD:
| AMINI CARLSON LLP Barristers & Solicitors Toronto, Ontario
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|