Date: 20030528
Docket: IMM-3149-02
Neutral citation: 2003 FCT 662
BETWEEN:
SUHAIB RAO MUSHARRAF
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] This judicial review application is a challenge by Suhaib Rao Musharraf (the "applicant") a 29 year old citizen of Pakistan to a June 20, 2002 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") who denied his claim for refugee status based on a fear of persecution at the hands of political opponents and state authorities by reason of political opinion.
[2] The applicant in his PIF and in oral testimony stated he was a political activist, following in the footsteps of his father, joining the Muslim Student Federation ("MSF") in 1991 while at college, and in 1993 becoming its Secretary General. His history continues as member of the Pakistan Muslin League - Nawaz Sharif ("PML(n)") in 1996, and shortly after appointed Joint Secretary of his ward with his responsibilities increasing to General Secretary and President of his ward in October, 1999 (the month in which the military coup under General Musharraf displaced the then PML lead government).
[3] His evidence was his political activism manifested itself in outward participation: the speeches he gave, the rallies he organized, the demonstrations he joined which included banner carrying processions and wall chalking.
[4] He was against the October, 1999 military coup which overthrew the democratically elected government. His testimony was he organized and participated in several peaceful protest rallies directed against the army regime while seeking the restoration of democracy.
[5] These rallies were contrary to military ordinances in force banning demonstrations, and as a result, the tribunal found the police would arrest and detain opposition activists and demonstrators.
[6] If returned to Pakistan, the applicant fears the army and the police which he said were one and the same. He principally fears a political party known as Mohajir Qaumi Movement ("MQM") but he also included the Pakistan Peoples Party ("PPP").
[7] In the telling of his personal experiences from the time of his MSF days in 1992 to when he fled to Canada, he recited the following in his Personal Information Form ("PIF"):
(1) five beatings by political opponents, three of which required hospitalization but none of which the police acted on following the complaint;
(2) three threats to his life not accompanied by physical violence;
(3) one arrest by the police with torture (April 1993); and
(4) two breakups of peaceful rallies without his being arrested after the military takeover in 1999.
[8] He testified he was there when the police and army would arrest and detain demonstrators and political activists when breaking up peaceful rallies. He testified the police would detain, in unknown places, some of those arrested.
[9] The event which precipitated his flight was on March 19, 2001. The police came to the family home to arrest him for planning a major rally to be held on March 23, 2001, at which he would be speaking against the army. He was not there. The police told his father to bring him to the police station as soon as he returned home. He went into hiding in the house of a friend of his father and stayed in hiding until he left Pakistan on June 6, 2001.
[10] He told the tribunal his father came to see him when in hiding. His father had been to the police station and found out a First Information Report ("FIR") had been lodged by the police accusing him falsely of some serious crime. A decision was then made for the applicant to flee the country, the family lawyer having indicated nothing could be done about the false FIR. With the aid of an agent, he fled on June 6, 2001.
[11] He wrote in his PIF during the last week in March 2001, the army and police conducted mass arrests of activists belonging to the Alliance for the Restoration of Democracy ("ARD"), an umbrella group of those political parties including the PML(n) which opposed the military government.
[12] The situation got worse in the last week in April 2001 - PML(n) workers were arrested. Houses were raided and, if the person they were looking for was not there, they would arrest family members. That is what happened to his father when the police came looking for the applicant in late April. The police continued looking for him, even after his departure. His father was arrested three times on that account.
[13] He testified two of his colleagues in his ward had been arrested in late April 2001, and their whereabouts were unknown. He said "a lot of other office bearers" similarly situated to him had been arrested and "were still at unknown places" (transcript, page 464). He stated he would not be safe anywhere in Pakistan because he was an activist and would continue to be one thereby attracting the attention of the police and army which would lead to his arrest and detention where his life would be in danger.
THE TRIBUNAL DECISION
[14] After enumerating the incidents told by the applicant in his PIF, the tribunal stated its determination the applicant was not a "Convention refugee. The claimant has a viable internal flight alternative in Lahore or Islamabad".
[15] The tribunal provided its analysis. I summarize the major findings of the tribunal. They were:
(1) some credibility concerns;
(2) lack of sufficient credible and trustworthy evidence he was wanted by the police; and
(3) the availability of an internal flight alternative ("IFA").
(1) Some credibility concerns
[16] First, the tribunal said it had "some credibility concerns". The nature of these concerns do not stem from inconsistencies or contradictions in the applicant's testimony nor from omissions in his PIF or additions not contained in that document.
[17] Rather, the tribunal related its credibility concerns as to his subjective fear and this in two ways:
(1) accepting his testimony he went into hiding after the police came looking for him on March 19, 2001, the tribunal found the two and a half month delay leaving Pakistan not consistent with the actions of a person albeit in hiding whose life was in "grave danger" or who has a subjective fear;
(2) the tribunal found his failure to claim in the United Kingdom where he spent the most part of a day or in the United States where he spent two days, inconsistent with someone who has a subjective fear. The tribunal found implausible the applicant's testimony he believed his life would be in danger in the U.K.
(2) Lack of sufficient credible evidence he was wanted
[18] The tribunal determined the applicant failed "to establish sufficient credible and trustworthy evidence that he is wanted by the authorities". The tribunal reached this conclusion because in his PIF the applicant stated a FIR had been issued against him and in his testimony he said his family had told him he was wanted on an arrest warrant. None of these documents were produced by the applicant at the hearing. The tribunal wrote "that the claimant has not been diligent in his efforts to corroborate certain elements of his claim and takes a negative inference". The tribunal considered he had sufficient time to trace the documents.
(3) The IFA
[19] The tribunal found an IFA was available going on to say that because of this conclusion, "the panel has not made any finding in relation to the well-foundedness of his fear of persecution in Karachi, Sindh Province. In determining an internal flight alternative, the tribunal based itself on the Federal Court of Appeal's decision in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706.
[20] The first question the tribunal examined was whether there was a serious possibility the applicant would be persecuted in Islamabad, Lahore, or any large urban centre outside Sindh Province, with the tribunal answering that question with a "no".
[21] The tribunal arrived at this conclusion by first examining the political profile of the applicant:
The panel finds that although the claimant is an executive member of his unit and was active in his ward, this office is one of thousands of similar positions throughout Pakistan and although the claimant may have a moderate degree of political profile, it is limited to his area in Karachi, Sindh Province. [emphasis mine]
[22] The tribunal brushed aside his testimony he went into hiding to avoid further difficulties from opponents and authorities reasoning:
The panel notes that the claimant was able to live, albeit "in hiding", and was visited by his father in another section of Karachi . . . for more than two and one half months without detection by political opponents or authorities. The panel finds that had opponents or authorities been seriously been interested in the claimant, they would have been able to find him. The panel finds that the profile and activities of the claimant in his area of Karachi were not such to seriously interest opponents and authorities. The panel concludes that the profile and activities of the claimant do not warrant the time, manpower and expense required to pursue him outside of his area. [emphasis mine]
[23] The tribunal referred to the claimant's testimony he would continue to be politically active if he were to return to Pakistan. It examined a recent article regarding the activities of the PML(n) in Islamabad which stated the party would continue its struggle for a democratic state and all efforts would be made to accommodate sincere workers in the reorganization of the party. Its inference is he would have no problem in continuing his political activities.
[24] The tribunal minimized the evidence he produced of recent news articles regarding the arrest and detention of a number of opposition activists and, in particular, the arrest on April 27, 2001, of several hundred members of the ARD. These arrests were in Lahore at a rally protesting against the government's failure to call general elections. The detentions were carried out under the Maintenance of Public Order Ordinance which prohibits speech that "causes or is likely to cause fear or alarm to the public".
[25] The tribunal noted "most of those arrested were released within hours or days" and concluded:
The panel does not dispute the accuracy of this documentary evidence respecting the police action in arresting and detaining opposition activists and demonstrators. However, the panel finds these actions by the police were an attempt by the Pakistan government and the police to maintain public peace and order, pursuant to a law of general application, and therefore not persecutory. [emphasis mine]
The tribunal stated:
Although there is evidence of arrest and harassment of high profile national or even provincial PML and PPP leaders throughout Pakistan, a local worker such as the claimant should have no more difficulties than any lower level political worker. A recent Response to Information Request indicated that although PML rank and file members face somewhat more harassment than the PPP, they would not face a threat that would gravely jeopardise welfare.
[26] The tribunal found that not only would the applicant have the opportunity to continue his work with the PML, he would not face any risks in the IFA location than other lower level workers face.
[27] The tribunal then analysed whether he would be at risk from the PPP and concluded in the negative because the applicant testified to only one such incident at the hands of the PPP and noted the change of circumstance with the alliance between the PPP and the PML since October 1999 under the umbrella of the ARD.
[28] The tribunal then concentrated on his risk of harm at the hands of the MQM and again concluded there would be no reasonable chance he would suffer persecution from the MQM outside Sindh Province because, referring to documentary evidence, it found the MQM could be described as an urban Sindh-based political party whose activities were limited to that province.
[29] The tribunal found, in all of the circumstances, it would not be unreasonably harsh for the applicant to move to an IFA location.
[30] The tribunal then noted it had received a post-hearing disclosure containing a letter from the applicant's mother regarding the alleged FIR and arrest warrant as well as medical reports concerning the condition of the applicant's father and a compendium of news articles. As to the letter, the tribunal said:
The panel questions the validity of the letter upon comparison with another letter on file from the claimant's mother; however, the content of the letter does not affect the finding of the panel regarding corroborating documents of police interest in the claimant. Although the panel sympathizes with the claimant and his family regarding the condition of his father, it does not affect the finding of the panel regarding the viable internal flight alternative. The news articles do not affect the finding of the panel regarding the claimant's intent to continue political activities if he were to return to Pakistan. [emphasis mine]
[31] The panel drew the following overall conclusion:
Having considered all the evidence before it, the panel finds that there is not a reasonable chance that the claimant will be at risk from political opponents and authorities by reason of political opinion if he were to return to Pakistan.
ANALYSIS AND CONCLUSIONS
[32] I approach the analysis of the tribunal's findings having in mind it did not discard the applicant's testimony because of a lack of credibility.
[33] As I see it, the tribunal accepted the following basic elements of his refugee claim:
(1) his political activism as a member of the PML(n);
(2) his progression in that Party leading to an executive position in his ward;
(3) the documentary evidence establishing, after the military coup in October 1999, the authorities were arresting and detaining opposition activists and demonstrators; and
(4) the event which precipitated his going into hiding and his flight from Pakistan, namely, the police came to arrest him because he was going to participate in a rally at which he would be speaking to protest against army rule.
[34] Despite this general acceptance of the applicant's story by the tribunal, it made the following findings which led it to conclude there was not a reasonable chance he would be at risk from political opponents and authorities by reason of his political opinion:
(1) his lack of subjective fear because of his delay in leaving Pakistan notwithstanding he was in hiding; and his failure to claim in the U.K. or the U.S.;
(2) lack of evidence he was wanted by the police; and
(3) the existence of a viable IFA outside Karachi, a conclusion the tribunal reached without making any finding in relation to a well-founded fear of persecution in that city.
The IFA
[35] I will deal with the IFA finding first because it was, I believe, the principal one made by the tribunal.
[36] In order to make a finding of a viable IFA, the tribunal had to be satisfied, on the balance of probabilities, there was no serious possibility of the applicant being persecuted in that part of the country to which it found an IFA exists (see Rasaratnam v. Canada, supra).
[37] In my view, the tribunal made a number of errors, essentially ones of fact, which result in this finding being patently unreasonable.
[38] First, the tribunal ignored one of the agents of persecution which the applicant feared was the army which controlled the entire territory of Pakistan having had accepted his evidence he was a political activist speaking at rallies against the army.
[39] In similar circumstances, Justice MacKay in Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 837, quashed a tribunal finding of a valid IFA. At paragraph 8, he wrote:
The applicant did give evidence that he feared the Pakistani military and, in my opinion, the CRDD erred in not addressing the possibility of persecution at the hands of the Pakistani military. The applicant's claim hinged upon the question of IFA and, as the Court of Appeal has held, the question of persecution by national authorities is central to the determination of this issue. It was, in my opinion, a reviewable error that the CRDD failed to address this aspect of the applicant's claim.
[40] Moreover, as I see it, the tribunal's IFA finding hinged, in part, on the view it took the enforcement actions taken by the police were pursuant to a law of general application and therefore not persecutorial.
[41] What this IFA finding fails to consider are two matters:
(1) a law of general application may well be persecutorial depending on the way it is applied; and
(2) a law of general application or an emergency ordinance cannot justify arbitrary arrest and detention.
[42] For a recent discussion of these principles, I make reference to this Court's recent judgment in Ranjah v. Canada (Minister of Citizenship and Immigration), [2003] F.C.T. 637, particularly at paragraphs 24 through 28.
[43] On the point of arbitrary arrest and detention after the breakup of rallies, the tribunal, in my opinion, ignored the evidence led by the applicant that persons similarly situated to him were detained in unknown places.
[44] The tribunal's second major finding relates to its holding of a lack of sufficient credible evidence he was wanted by the police. The focus of the tribunal's finding was on the failure of the applicant to put in evidence the FIR and arrest warrant issued by the police after their March 19, 2001 and other visits to the family home and, in respect of the FIR, which his father discovered when he attended the police station which led to his flight.
[45] The tribunal received as post-hearing material the applicant's mother's June 10, 2002 letter where she explains that copies of the FIR and arrest warrant were sent to him but were seized at Karachi airport and given to the police who then questioned the applicant's parents about his whereabouts.
[46] The tribunal did not mention, in its reasons, this aspect of the evidence. Given the importance of that evidence and its relation to the tribunal's finding of lack of sufficient credible evidence he was wanted, it is my view, under the principle stated by Justice Evans, then of the Trial Division, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, it had an obligation to do so.
[47] I comment briefly on the tribunal's finding concerning his lack of subjective fear which I also find defective. As to the delay in making a claim in the U.K., the applicant was in transit and he did explain why he felt unsafe in England. He testified a leader of the MQM was residing there. In terms of the United States, the tribunal erred in finding he was on American soil for two days. The evidence is to the effect he was also in transit and there for only one day.
[48] The tribunal was critical of the applicant for not leaving Pakistan sooner after he went in hiding. I tie this criticism to a finding made by the tribunal that he went without detection for two and one half months holding "had opponents or authorities been seriously interested in the claimant, they would have been able to find him". That finding was made without any evidence in the record which would permit such inference to be drawn. In other words, it was purely speculative.
[49] For all of these reason, this judicial review application is allowed, the tribunal's decision is set aside and the applicant's claim for refugee status is remitted to a differently constituted panel. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3149-02
STYLE OF CAUSE: SUHAIB RAO MUSHARRAF v. M.C.I.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 10, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Lemieux
APPEARANCES:
Mr. Birjinder P.S. Mangat FOR APPLICANT
Ms. Kerry A. Franklin (Justice Dept - Edmonton) FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Birjinder P.S. Mangat
Barrister & Solicitor FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT