Ottawa, Ontario, February 6, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
SUMEN SHAHED
ZAINAB SHAHED
ABDUL SHAHED
MAHRUKH SHAHED
AMENA SHAHED
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") with respect to a decision of Mr. S. McCaffery, the Pre-Removal Risk Assessment ("PRRA") Officer, denying the Applicants' PRRA application. In its decision dated May 30, 2005, the PRRA Officer determined that Shaheed Mehmound, Sumen Shahed, Zainab Shahev, Abdul Shaheb, Mahrukh Shaheb and Amena Shaheb ("Applicants") would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Pakistan.
ISSUES
[2] The issues are the following:
- What is the standard of review?
- Did the PRRA officer err in fact or in law in finding that the Applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to Pakistan?
- Did the PRRA officer err in fact or in law in finding that the Applicants can avail themselves of the state protection of Pakistan?
- Does the PRRA system infringe the international obligations of Canada?
- Does the PRRA system infringes the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Canadian Charter").
[3] However, at the hearing, Counsel for the Applicants informed that this last issue would not be pursued.
CONCLUSION
[4] For the following reasons, the application for judicial review is dismissed.
FACTS AND HISTORY OF THE CASE
[5] Mr. Shaheed Mehmoud ("Applicant") is a citizen of Pakistan and is a member of the Shia Muslim minority in Pakistan. He submits that his problems in Pakistan began in January 1998, after the massacre of 25 Shia Muslims at the Mominpura cemetary in Lahore. The terrorist Islamist movement Sipah e Sahaba Pakistan ("SSP") is known to be responsible for the tragedy. He fears a risk of torture, cruel and unusual punishment or a risk to his life at the hands of the SSP Members and of the Pakistani police because of his involvement in Shia Social Activities.
[6] The Applicant was allegedly threatened, in January 2000, by an executive member of the Sunni Mosque, and anti-Shia slogans were painted on the walls of his house. According to his submissions, he was beaten twice, once in November 2000, and then in August 2001, after his family received several harassing phone calls. That month, the Applicant was kidnapped, beaten and released. On March 2002, he was allegedly threatened again, and two motorcyclists shot at him, barely missing him. After these events, the applicant went into hiding in Lahore on April 5, 2002. On the 6th, the whole family moved to Karashi.
[7] Around April 15, 2002, the Applicant's father was allegedly threatened and informed that the Applicants' place of hiding was known, and that the police were looking for the applicant.
[8] The Applicants left Pakistan on May 23, 2002. On May 26, 2002, they arrived in Canada and were interviewed by an Immigration Officer in Lacolle. Their claim for refugee protection was denied by a decision of the Refugee Protection Division ("RPD") on October 30, 2002. Application for leave for judicial review was dismissed on March 25, 2003.
[9] Application for a PRRA was filed in December 2003. Submissions were made to the PRRA Officer by the Applicants' counsel in January 2004, and the PRRA application was dismissed on May 30, 2005.
IMPUGNED DECISION
[10] The RPD Panel Member first assessed the risk for the Applicants to be sent back in Pakistan. The reasons that led the RPD to refuse the Applicants' refugee claim are listed by the PRRA Officer. In addition, the officer analyses the various pieces of evidence provided by the Applicants and relies on several other sources of information on the human rights situation in Pakistan.
[11] In his conclusions, the PRRA Officer rejects some pieces of evidence and raises doubts about their probative value. He concludes that there is substantial evidence of available state protection and that there are no reasonable grounds to believe that the Applicants would be persecuted if returned to Pakistan.
SUBMISSIONS
1. Credibility
[12] The Applicants submit that the PRRA Officer erred in assessing the credibility of the Applicants, given the amount of evidence submitted. In their view, the PRRA Officer erred in law on page 5 of the decision in disbelieving, because he failed to present supporting documentary evidence, that the Applicant was kidnapped, beaten and tortured. Further, the Applicants argue that the PRRA Officer should not have made adverse findings of credibility nor rejected the Applicant's explanation as to why he had not declared that the police wanted him when asked by the Immigration Officer (i.e. : he was afraid to be sent back and did not fully understand the English language). In addition, it is submitted that the PRRA Officer gave too much weight to the Immigration Officer's notes. The Applicants also submits that the PRRA officer failed to explain why he preferred the documentary evidence to the Applicant's testimony. Some of the new evidence presented by the Applicant and accepted as such by the PRRA Officer is the following:
- A letter from a Pakistani law firm, Saleem Law Associates, stating that the Applicant was declared a "proclaimed offender";
- An arrest warrant dated April 12, 2002;
- A clipping from a Pakistani newspaper, the Nation.
[13] The Respondent contends that the Applicant lacks credibility and that the PRRA Officer was entitled to rely on documentary evidence and to give little weight to the documents presented by the Applicants. The Respondent puts forward that the issue of credibility is within the purview of the PRRA Officer's discretion.
2. State Protection
[14] On the issue of state protection, the Applicants emphasize the incapacity and unwillingness of Pakistan to protect the Shia Muslims, and argue that the PRRA Officer failed to properly consider the evidence.
[15] The Respondent replies that the documentary evidence in itself is usually not sufficient to support a claim about the prevailing situation in a country, and that the danger must be specific to the Applicants. In the Respondent's view, evidence on the adequacy of the state protection has been weighed, the decision on this point is not unreasonable, and state protection need not to be perfect for the PRRA Officer to determine that state protection is available.
3. International Law Arguments
[16] The Applicants further submit constitutional and international law arguments in support of their contention that the PRRA Officer did not apply the proper criteria in law as laid out by Section 3(2) of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,10 December 1984, Can T.S. 1987 No. 36 ("Convention against torture") and the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can T.S. 1976 No. 47, 6I.L.M. 368 ("Covenant"). The Applicants point out that this convention and this covenant should be used when evaluating whether there is a substantial risk for them if returned to Pakistan.
ANALYSIS
1. Standard of review
[17] In the present matter, mixed questions of fact and law are involved. The standard of review applicable to a PRRA decision considered globally and as a whole is reasonableness simpliciter (Figurado v. Canada(Sollicitor General), 2005 FC 347, [2005] F.C.J. No 458, at para 51). An unreasonable decision is a decision that does not stand up to a somewhat probing analysis (Barreau du Nouveau-Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, [2003] S.C.J. No. 17, at para. 25; Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116)). However, where a particular finding of fact is made by the PRRA Officer, the Court should not substitute its decision to that of the PRRA Officer unless it is demonstrated by the Applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA Officer (Figurado v. Canada (Sollicitor General), supra, at para. 51.
2. Credibility
[18] A general observation was made in the RPD's decision as to the contradictions between the interview notes and the claimant's testimony. The PRRA Officer repeats this observation and bases his opinion with respect to the Applicant's credibility on the following findings of fact. Some of these findings are also relied upon in the RPD decision:
- The Applicant tried to repudiate what he declared to the Immigration Officer at the Port of Entry ("POE"), alleging that he had an insufficient understanding of the English language;
- The Applicant answered no when asked, at the POE, if he was wanted by the army or the police;
- The duration of the alleged kidnapping varied considerably in the Applicant's testimony;
- Explanations for the discrepancies in the Applicant's testimony, in general, were found unsatisfactory.
[19] The assessment of an Applicant's credibility was done by the RPD Panel Member and the leave application was denied. That finding of non credibility remains and the PRRA Officer can take note of such finding. In addition, references to credibility findings of the RPD were not determinative of the PRRA Officer's decision, as he states in his affidavit.
[20] In his memorandum, the Applicant argues that the credibility findings of the RPD were incorrect. The PPRA process is neither an appeal nor a de novo hearing of a RPD decision. Its goal is to decide whether the new evidence shows that the Applicant is now at risk if returned to his country, not to reassess the evidence presented before the RPD (See, e.g., H.K. v. Canada (Minister of Citizenship and Immigration), 2004 FC 1612, [2004] F.C.J. No. 1945, at para. 17). It is not the appropriate forum to question the validity of the credibility findings of the RPD. The RPD decision found the Applicant to be not credible, on the basis of the facts, and leave for judicial review has been denied.
[21] For these reasons, I cannot find any error in the PRRA decision that justifies this Court's intervention.
3. State Protection
[22] The issue of state protection is at the core of the decision of the PRRA Officer, according to the affidavit he presented. In his view, there was no risk for loss of life, or for cruel or unusual treatment or punishment if the Applicants are returned to Pakistan.
[23] The clipping and the lawyer's letter submitted by the Applicant as new evidence were found to be incredible. The PRRA Officer rightfully notes that both documents have little probative value, that the newspaper article is vague and that the date of the article is blurred. These pieces of evidence balanced against the documentary evidence led the PRRA Officer to conclude that the state protection was available (p. 24):
I give the letter from the lawyer very slight weight: objective evidence shows that such letters or documents are of very doubtful validity. Also, the entirety of objective evidence suggests that someone like Mr. Mehmoud would not be so victimized, and that in fact that [sic] he would benefit from state protection from Sunni militants.
There are two letters from Mr. Mehmoud's Imambargah [sic]. The first states that he has been an active member and that he had been harassed, beaten, threatened with [sic] death by Sunni terrorrists, causing him to leave Pakistan. This letter was written July 10, 2002, and was available to the RPD, which accepted that Mr. Mehmoud was a Shia but not that he was at risk.
The second letter from his Imambaragah, dated March 20, 2003, simply states the essence of what the first said. In fact its opening sentence is:
"This is to reaffirm and reiterate the content of my previous letter dated 10th July 2002..."
The newspaper article, ostensibly from The Nation, is effectively undated because one part of it, the date, is blurred. More importantly, the piece simply relates that a complaint has been made to the paper, of police personnel of the law enforcement agency", harassing the parents of Shahid Mahmood [sic].
Weighted against this is the substantial evidence of determined state protection. Not only the state not allow itself to become the weapon of Sunni extremists, as is inferred in the submission, the state has been increasingly draconian in its approach. The state's reaction has the support of the elites, the urban middle class and the bulk of the electorate. This reaction has increased the pressure on religious extremism in keeping with a societal consensus [my emphasis].
[24] It appears from these conclusions that the main reason for the Officer rejecting the new pieces of evidence is the documentary evidence on the political situation in Pakistan. The same documentary evidence justifies the PRRA Officer's finding on the availability of state protection.
[25] I carefully reviewed this documentary evidence. On one hand, it shows that a ban has been imposed on the SSP and other extremists' organizations (RIN News.org, 17 Nov. 2003, p. 9; Amnesty International, Pakistan: Crackdown on Sectarian Violence Must not Jeopardize Rights, 2002, p. 15-16; United States Department of State country report on human rights practices in Pakistan 2001, p. 13), that efforts have been made in order to arrest or to neutralize members of these organizations and to protect the Shia (BBC News, July 6, 2003, p.10; BBC News, July 5, 2003, p.10-11; Carnegie Endowment for International Peace, November 1, 2002, p. 21-22; BBC News, May 14, 2002, p. 11; BBC News, March 25, 2002, p. 11; United States Department of State country report on human rights practices in Pakistan 2001, p. 12; United States Department of State country report on human rights practices in Pakistan 2002, p. 13; Amnesty International, Pakistan: Crackdown on Sectarian Violence Must not Jeopardize Rights, 2002, p. 15-16), and that the government appealed to moderation (The New York Times, May 27, 2005, p. 8). However, on the other hand, there is some evidence that shows violent attacks are frequent in Pakistan (The New York Times, May 27, 2005, p. 8; Timesonline, May 7, 2004, p. 8-9; BBC News, July 6, 2003, p.10; BBC News, January 13, 2002, p. 9-10; United States Department of State country report on human rights practices in Pakistan 2001, p. 13; International Institute for Strategic Studies, October 1998, p. 17; Asia Times, July 9, 2003) and that the state have difficulty handling this or is unwilling to do so (BBC News, June 14, 2002, p. 12; United States Department of State country report on human rights practices in Pakistan 2002, p. 14; United States Department of State country report on human rights practices in Pakistan 2003, p. 14). All in all, I do not find to be unreasonable the conclusion of the Officer that state protection is available in Pakistan.
3. The International Law arguments
[26] Because of the reasons given above that the Applicants are not personally at risk and that in any event there is state protection available for them in Pakistan, there is no need to discuss further whether a PRRA Officer should apply the criteria in law as laid out in section 3(2) of the Convention against torture.
[27] The parties were invited to submit a question for certification. The Applicants proposed the following 2 questions for certification:
1) Is article 3 of the Convention against Torture mandatory before the Immigration and Refugee Board and the PRRA process and in application of the Canadian Charter or Rights and Freedoms? Is its consideration mandatory in the context of the analysis of the risk of return in the pre-removal risk assessment (PRRA)? What effect should be given to the criteria of the second paragraph of article 3 of the C.A.T.?
2) Does the current situation in Pakistan support a conclusion that protection of the state is available against the Islamic militants in Pakistan?
[28] I agree with the arguments of Counsel for the Respondent against the certification of the questions. In my view, these questions do not meet the criteria set out in Canada(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at para. 4. To be accepted for certification, questions must:
- transcend the interests of the immediate parties to the litigation;
- contemplate issues of broad significance or general application and;
- be determinative of the appeal.
[29] As stated above, the PRRA Officer concluded that protection is available for the Applicants in Pakistan. In addition, section 97 of the IRPA integrates the principles of article 3 of the Convention against torture (on this point, see Justice Martineau's comments in Sidhu c. Minister of Citizenship and Immigration, 2004 FC 39, at para. 26). Therefore, the first question is purely academic and would not be determinative of the appeal. As for the second question, it does not transcend the interests of the parties and it is a factual question that is within the jurisdiction of the RDP. For these reasons, no questions will be certified.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed and that no question be certified.
NAMES OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-3810-05
STYLE OF CAUSE: SHAHEED MEHMOUD ET AL v. MCI
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: 24 JANVIER 2006
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
APPEARANCES:
STEWART ISTVANFFY FOR PLAINTIFF / APPLICANT
THI MY DUNG TRAN FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY
1061, ST-ALEXANDRE
SUITE 300
MONTRÉAL, QUÉBEC
H2Z 1P5
(514) 876-9776
(514) 876-9789(FAX) FOR PLAINTIFF/APPLICANT
JUSTICE CANADA FOR DEFENDANT/
MONTRÉAL, QUÉBEC RESPONDENT