Date: 20041020
Docket: IMM-2670-04
Citation: 2004 FC 1449
Ottawa, Ontario, Wednesday the 20th day of October 2004
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SAJID ALI
NAZIMA JABEEN
TOOBA ALI (a.k.a. TOOBA SAJID ALI)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Sajid Ali is a 37-year-old citizen of Pakistan and a Shia Muslim. Nazima Jabeen is his wife and Tooba Ali is their minor daughter. All claim protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"). They bring this application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), whereby the Board determined that they were not Convention refugees or persons in need of protection.
[2] Mr. Ali claims that he suffered persecution at the hands of the Sipah-e-Sahaba Pakistan ("SSP") and that his wife, who taught the Shia faith to children, was also threatened.
THE DECISION OF THE BOARD
[3] For the purpose of this application for judicial review, the central findings of the Board were that neither Mr. Ali nor his wife has the profile of a person at risk from the SSP or other sectarian extremists, and that there is adequate state protection for them in Pakistan.
[4] With respect to the first finding, the Board relied upon an Amnesty International profile of Shias targeted by extremists, and noted that the "educated elite" (namely Shia doctors and professionals) constituted the largest group targeted. Mr. Ali said that he worked as a salesman until he left Pakistan. Therefore, the Board determined that, based on Mr. Ali's low profile in his Shia community and his low profile as a salesman, he would not be targeted by extremists if he returns to Pakistan. The Board went on to note that there was a lack of recorded incidents of attacks or harassment directed at Shia women, including female teachers, and, therefore, the Board gave little weight to Mr. Ali's allegation that his wife was threatened because she taught the Shia faith to children. The Board concluded that Ms. Jabeen would not be targeted by extremists if she returns to Pakistan.
[5] In regard to state protection, the Board found that adequate state protection was available in Pakistan for Mr. Ali and his family. The Board adopted the reasoning and findings in M.Q.T. (Re), [2003] R.P.D.D. No. 75 regarding the availability of adequate state protection to similarly situated persons in Pakistan. The Board was satisfied that the facts and evidence regarding country conditions in that case were sufficiently close to the facts and evidence before the Board in the present case. The Board also noted that action had been taken by the Pakistani government since Mr. Ali and his family left Pakistan, including the banning of extremist groups. The Board referred to news reports that indicated that the current government of Pakistan continues to make serious efforts to curb sectarian violence. While the Board acknowledged that the results of the government's recent efforts were mixed, the Board concluded that adequate state protection was available to Mr. Ali and his family should they return to Pakistan.
THE ERRORS ALLEGED
[6] Mr. Ali submits that the Board erred in law in its determination that he did not have the profile of a person at risk from the SSP or other sectarian extremists, and erred in concluding that there was adequate state protection if Mr. Ali and his family return to Pakistan. Mr. Ali submits that the Board ignored his testimony and documentary evidence.
STANDARD OF REVIEW
[7] In Singh v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 280, Madam Justice Tremblay-Lamer applied the pragmatic and functional approach to conclude that the appropriate standard of review of decisions of the Convention Refugee Determination Division as to the objective component of the definition of Convention refugee is patent unreasonableness. For the reasons given by Madam Justice Tremblay-Lamer, I agree that this is the standard of review to be applied to decisions of the Board concerning the objective component.
[8] Madam Justice Tremblay-Lamer's analysis may also be applied to decisions of the Board as to the adequacy of state protection, and the jurisprudence of this Court is to the effect that such decisions are also reviewed against the standard of patent unreasonableness. See, for example, the decision of Madam Justice Heneghan in Nawaz v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255 and Mr. Justice Blanchard in Zhao v. Canada (Minister of Citizenship and Immigration), 2004 FC 1059. Accordingly, the Board's finding of state protection will be reviewed against the standard of patent unreasonableness.
ANALYSIS
(i) The risk of harm
[9] Despite the careful argument of the applicants' counsel, I find that it was not patently unreasonable for the Board to conclude that neither Mr. Ali nor his wife would be targeted by extremists, or subjected personally to a danger of torture, or a risk to life, or cruel or unusual treatment or punishment, should they return to Pakistan. There was an evidentiary basis for those conclusions and the Board's findings were not made in a perverse or capricious manner or without regard to the material before the Board. Where there is conflicting evidence, the weight to be given to evidence is generally a matter for the Board to determine in the exercise of its expertise. This was not a case where the Board's decision was contrary to the preponderance of the evidence.
(ii) The existence of state protection
[10] I am also satisfied that the Board did not ignore relevant evidence and that the Board's conclusion that adequate state protection is available in Pakistan was open to the Board in the proper exercise of its discretion upon the evidence before it. As noted above, the Board has the expertise to weigh conflicting evidence.
[11] Specifically, there was evidence upon which the Board could conclude that the government of Pakistan is in effective control of its territory, that it had military and civil authorities in place prepared to act to protect Shia citizens, that steps had been taken to make the police more effective, that the state of Pakistan has in place structures to provide citizens protection under the rule of law, and that the current government continues to make serious efforts to curb sectarian violence. While noting that the government's results are mixed, the Board was entitled to find, on a balance of probabilities, that adequate state protection would be available if Mr. Ali and his family return to Pakistan.
[12] It follows that the application for judicial review should be dismissed.
[13] No party suggested certification of a question and I am satisfied that no question arises on this record.
ORDER
[14] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2670-04
STYLE OF CAUSE: SAJID ALI ET AL. v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 29, 2004
REASONS FOR ORDER
AND ORDER BY : DAWSON J.
DATED: OCTOBER 20, 2004
APPEARANCES:
Mr. Mak Sultan FOR THE APPLICANTS
Ms. Marina Stefanovic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Mak Sultan
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT