Date: 20050209
OTTAWA, Ontario, February 9th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ASAD MAHMOOD MIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated November 21, 2003 in which the applicant was found not to be a Convention refugee or a person in need of protection because he had adequate state protection in Pakistan.
FACTS
[2] The applicant is a 35 year-old citizen of Pakistan and a Shia Muslim. He claims a well-founded fear of persecution at the hands of the Sipah-e-Sahaba Pakistan (SSP), an anti-Shia organization composed of Sunni Muslims.
[3] In his personal information form, the applicant alleged that he was beaten on many occasions by members of the SSP, including one serious incident in August 1999 which required his hospitalization for a month. When the applicant reported the beatings to the police, they either refused to assist him or their investigations yielded no results. The applicant also alleged that a close Shia friend was fatally shot while he and the applicant were walking home together. At the hearing, the applicant indicated that his cousin, who was a successful business man, had been the victim of a targeted killing shortly after he left Pakistan.
[4] In its decision, the Board made no adverse credibility findings with respect to the applicant. Instead it concluded that the applicant's fear of persecution was not objectively well-founded because the documentary evidence indicated that adequate state protection would be available to him upon return to Pakistan. The Board acknowledged that there was evidence of continuing sectarian violence in Pakistan, however, it concluded that the preponderance of the documentary evidence suggested that the government has made serious efforts to curb sectarian violence and that the measures implemented by the government are durable. In particular, the Board noted that the SSP and other militant organizations have been banned in Pakistan since January 2002, that the government has taken a number of steps to improve police effectiveness and reduce corruption, that authorities have taken pre-emptive action to detain activists when violent action is contemplated and that the number of targeted killings of individuals decreased considerably in 2002 and 2003 as compared with 2001.
[5] The figures cited by the Board relating to the number of killings in 2001 and 2002 were taken from the Board's standardized country file on Pakistan, however, the figures from 2003 were based on the Board-member's "specialized knowledge". During the hearing, the Board-member informed the applicant's counsel that he was relying on specialized knowledge and stated that the document on which his knowledge was based would be forwarded to counsel after the hearing.
[6] The document in question was mailed to the applicant's counsel the day before the decision was released. As a result, the applicant did not have an opportunity to make representations to the Board regarding the accuracy of the information contained in the document. The applicant submits that this runs counter to the Board's own rules and is a breach of procedural fairness.
ISSUES
[7] The following issues are raised:
1. Did the failure to provide the applicant with an opportunity to respond to the document constitute a breach of procedural fairness that necessitates setting the decision aside?
2. Did the Board take into account the specific circumstances of the applicant when making its assessment on the availability of state protection?
ANALYSIS
Issue No. 1
Did the failure to provide the applicant with an opportunity to respond to the document constitute a breach of procedural fairness that necessitates setting the decision aside?
[8] Pursuant to its own procedural rules, the Board is required to notify the parties when it plans to invoke its specialized knowledge and provide them with an opportunity to make representations. Specifically, Rule 18 of the Refugee Protection Division Rules states:
Notice to the parties - Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information and opinion; and
(b) give evidence in support of their representations.
[9] In the present case, I am satisfied that the failure to provide the applicant with an opportunity to review and comment on the document that formed the basis of the Board's specialized knowledge constitutes a breach of its own rules and procedural fairness. Ordinarily, a breach of procedural fairness voids the hearing and the resulting decision; however, an exception to this strict rule has been recognized where the other elements of the claim support the original finding and where re-determination of the claim would likely result in the same decision. Kabedi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 545 and N'Sungani v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 2142.
[10] Thus the question that remains is whether the procedural error necessitates setting the decision aside. In my view, it does not. The Board's central finding with respect to sectarian killings was that there had been a drastic decline in the number of killings, particularly targeted killing, following the ban of extremist organizations and the implementation of other measures in late 2001 and early 2002. The Board noted that over 400 people were killed by extremist groups in 2001 compared with approximately 40 targeted deaths in 2002 and less than ten targeted deaths in 2003. The applicant does not contest that there was a reduction of the number of deaths in 2002. However, he states that if he had been given an opportunity to respond to the document containing the figures for 2003, he would have argued that it did not support the Board's finding that fewer than ten Shia were the victims of targeted killings. While the parties may debate over the exact number of targeted deaths in 2003, it is clear from the document that the figures cited by the Board are fairly accurate and generally support the Board's conclusion that there has been a downward trend in the number of individual targeted deaths, as opposed to terrorist killings of groups. In these circumstances, it is clear that the applicant's response would not have impacted the final decision.
Issue No. 2
Did the Board take into account the specific circumstances of the applicant when making its assessment on the availability of state protection?
[11] The applicant submits that the Board failed to consider the particular and targeted risks he faced as a professional with a Masters Degree in Public Administration and as someone whose family converted from Sunni to Shia faith. While much of the Board's analysis focuses on the conditions for Shia in general, I am satisfied that the Board turned its mind to the particular circumstances of the applicant. The Board noted that the government has implemented measures to reduce targeted killings. It also noted that although professionals remain at heightened risk, not all professional Shia are targeted (doctors are the group generally accepted as most at risk). Moreover, as the applicant had not practised a profession in a number of years it was unlikely that he would be regarded as a professional and targeted on this basis.
[12] The Board also considered whether the applicant would be targeted because his family had converted to the Shia faith in the 1980s. It concluded that if the applicant considered himself at risk because of his family's conversion, he would not have returned to Pakistan in 1992 after completing his masters studies aborad. Further, the applicant did not recount any incidents, either in his personal information form or in his oral testimony, which he believed were linked to his professional qualifications or his family's conversion. On the contrary, the applicant indicated that his attackers identified him as Shia because they saw him leaving his mosque. Given these circumstances, I find it was reasonably open to the Board to conclude that the applicant would not be at heightened risk if returned to Pakistan.
[13] One aspect of the specific circumstances of the applicant which the Board did not consider was whether the applicant had established compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail himself of the protection of Pakistan. The Board's central finding was that there had been a drastic decline in the number of targeted killings since the applicant left Pakistan in 2001. The applicant had left Pakistan after his close friend was fatally shot while he and the applicant were travelling home together.
[14] At the hearing, I raised the issue of subsection 108(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 which provides:
| 108.(1) Rejection
(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
...
(e) the reasons for which the person sought refugee protection have ceased to exist. ...
108.(4) Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
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108.(1) Rejet
108. (1) Est rejetée la demande d'asile et le demandeur n'a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants_:
... e) les raisons qui lui ont fait demander l'asile n'existent plus. ...
108.(4) Exception
(4) L'alinéa (1)e) ne s'applique pas si le demandeur prouve qu'il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu'il a quitté ou hors duquel il est demeuré.
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Following the hearing, I questioned whether the applicant had established compelling reasons arising out of previous persecution and treatment for refusing to avail himself of state protection in Pakistan as it now exists. Accordingly, I issued a Direction on January 13, 2005 inviting the parties to file submissions on the applicability of this issue. The applicant filed submissions. The respondent did not.
[15] In the case at bar, I am of the view that the Board ought to have considered whether the August 1999 attack and beating of the applicant which required hospitalization for about a month, and the murder of the applicant's close friend while walking next to the applicant on a crowded downtown street, and the murder of the applicant's cousin after the applicant had departed from Pakistan are compelling reasons for the applicant to refuse to avail himself of the protection of Pakistan as contemplated in subsection 108(4) of the Immigration and Refugee Protection Act.
[16] For these reasons, the application for judicial review will be allowed.
[17] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board dated November 21, 2003 is set aside and the matter is remitted to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: ASAD MAHMOOD MIR
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JANUARY 11, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: WEDNESDAY, FEBRUARY 8, 2005
APPEARANCES:
Ms. Maureen Silcoff FOR APPLICANT
Mr. Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Maureen Silcoff
Barrister and Solicitor
Toronto, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Docket: IMM-10034-03
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
AND ORDER