Toronto, Ontario, September 29, 2005
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
SHAFIQ AHMED RAJA, NAHEED ANJUM
Applicants
and
THE MINISTER OR CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the principal Applicant claims refugee protection on the ground of her religion as a Shia Vice-President of an Imambargah in Pakistan. In its decision rejecting the claim, the Refugee Protection Division ("RPD") found the issues were credibility, subjective fear, failure to claim, and state protection.
[2] The RPD's decision with respect to credibility is very unclear. In its decision, the RPD found that, on discrete points in the evidence, the principal Applicant's evidence was "unsatisfactory". The question which generated a great deal of controversy in the oral arguments presented is: with respect to what issue are the findings relevant? Counsel for the Respondent argues that the RPD's decision should be read so as to conclude that the RPD found the principal Applicant to be lying with respect to the position she held. I find I cannot reach this conclusion. On careful evaluation, I find that the acute lack of clarity in the decision under review with respect to the relevance of the precise credibility findings made does not meet the requirement for clear reasons to be provided on the issue of credibility (see Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.) at paragraph 6, and Leung v. Canada (M.E.I.) (1994), 81 F.T.R. 303 at paragraph 14). As a result, I find that the profile that the principal Applicant claims as a Shia Vice-President of an Imambergah has not been impugned.
[3] With respect to the issue of subjective fear, the RPD found that a specific event of injury to the principal Applicant, which is said to have occurred on October 12, 2002, did not occur. This finding is based on perceived discrepancies between the principal Applicant's Port of Entry statements, her PIF, and a report she made to the police at the time the event occurred. In my opinion, this finding, which impacts negatively on the principal Applicant's claim of subjective fear of prospective persecution, cannot be sustained because the RPD failed to consider an important piece of evidence in arriving at the finding. The record contains an unchallenged medical report which proves that the principal Applicant was hospitalized between October 13th to 16th, 2002 for treatment of injuries (Tribunal Record p. 1017). As a result, I find that the RPD was in error in finding that the principal Applicant did not meet the burden of proving subjective fear.
[4] The issue of "failure to claim" was not addressed in the RPD's decision.
[5] Therefore, the only issue remaining outstanding in the present review of the RPD's decision is whether the RPD erred in finding that the principal Applicant failed to rebut the presumption of state protection in Pakistan. On the state protection issue, Counsel for the Respondent advances the proposition that, regardless of whether the RPD's decision is made in fundamental error on the credibility and subjective fear issues, the RPD's finding that state protection is available in Pakistan has the effect of negating the errors made. There are two facets to this argument: first, since the judges of the Court have found that state protection is available in Pakistan for persons meeting the principal Applicant's profile, I should accept those decisions as guiding precedent; and second, the finding of state protection in the decision under review discloses no error.
[6] In my opinion, an RPD finding on state protection must be tied to the individual claimant in the claim under consideration (see Kilji v. Canada(The Minister of Citizenship and Immigration), 2004 F.C. 667 (T.D.)). Therefore, I do not accept the argument that state protection findings made in cases decided on their individual merits have any precedential value.
[7] In the present case, the RPD decided state protection, not on the principal Applicant's profile as a Shia Vice-President of an Imambargah in Pakistan, but merely as a Shia woman in Pakistan. As I have found that the RPD's erroneous credibility finding does not succeed in impugning the principal Applicant's claimed profile, I find that the RPD's state protection finding is made in reviewable error because it fails to consider her in her claimed profile.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back for redetermination before a differently constituted panel.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-587-05
STYLE OF CAUSE: SHAFIQ AHMED RAJA, NAHEED ANJUM
Applicants
and
THE MINISTER OR CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 27, 2005
APPEARANCES:
Alexandre Tavadian FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Grice
Davis and Grice
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.