Date: 20040329
Docket: IMM-3373-03
Citation: 2004 FC 480
Toronto, Ontario, March 29th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
SYED-MOBUSHAR SHABBIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a citizen of Pakistan who claims refugee protection as a religious leader in the Shia Muslim community facing persecution and a threat to his life at the hands of the Sipah-e-Sahaba Pakistan (SSP), an extremist religious Sunni organization. He seeks judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "IRB") dated April 2, 2003 wherein the IRB found that he is not a Convention refugee and is not a person in need of protection, on the basis that, despite past persecution, should he return to Pakistan he will have a viable internal flight alternative ("IFA").
[2] The IRB accepted the factual aspect of the Applicant's evidence of past persecution. First, the IRB found the following to be an accurate account of the Applicant's situation in Pakistan:
... It is the claimant's evidence that he lived in a small town of about 2,000 people. The town was named Gillanwala, in Gujrat. The claimant alleges to be passionate about his religion and, as the oldest son in his family, he took over the family responsibilities at the Imam Bargah. In the village where the claimant and his family lived, there were not many Shia families - six, according to the claimant's evidence, and so the claimant would gather other families together from further afield and encourage them to attend the Imam Bargah. During Muharram, there wre about 60-70 Shia attending the Imma Bargah. Because of his activities for the Imam Bargah, the claimant became recognised as a Shia organiser by fanatical Sunni in that area. In particular, Gul Nawz and Chaudry have actively intimidated Shia during Majlis at the Imma Bargah in Gillanwala and are thought to be responsible for the deaths of one of the claimant's uncles. (Decision, p. 1)
[3] Second, the IRB accepted the following details of past persecution:
The claimant has lost two uncles as a result of Sectarian violence in Gillanwala. One was killed in May 1999, the other in September 1999. The killer, Chaudry, was identified and reported, but disappeared , and the police did not then, and have not yet, arrested him. Each year during Muharram, the Imam Bargah was assaulted by Sunni, and Shia were injured as they were at the Imam Bargah for the majlis. In the beginning of September 2001, the claimant received the first of two calls that warned him that he was to be killed because of his religious activities. On October 1, 2001 unknown people, thought to be members of the SSP, attacked the claimant's family home. The claimant's father was injured during the attack, but the claimant escaped out of the back door as the gunmen pursued him. The claimant's father advised the claimant to leave the country. The claimant moved from house to house, sold his business and waited while an agent arranged for him to come to Canada, where he applied for refugee status upon arrival on November 18 2001. The claimant entered Canada from the United States of America, where he had been housed for nearly two weeks at a church until arrangements could be made for him to travel to Canada. (Decision, p. 2)
[4] The IRB's central finding with respect to the availability of a viable IFA is as follows:
The events described by the claimant are alleged to have occurred in a very small town. I accept that the claimant may be well known within that community for his activities with the Imam Bergah, but even so, I do not conclude from the evidence that his reputation would necessarily follow him if he were to move away from that area. In fact, I conclude that it would not. The claimant alleges that he is a photographer. He had a business in Gillanwala that he sold prior to leaving there. (Decision, p. 2)
The IRB also made these findings:
The claimant stated that he could be identified easily anywhere he goes because his name is peculiar to the Shia; however, there are many thousands of Shia living and working in Pakistan who do not face persecution. I conclude that, on a balance of probability, the evidence establishes that the government, while having its problems due to past entrenched attitudes toward minority religious, is doing its utmost to stamp out terrorism and is committed to ensuring minority rights in Pakistan. State protection does not have to be perfect, I am satisfied that if the claimant were to set up a life in Lahore or Islamabad, where there are greater numbers of Shia to advocate for their rights, the protection to which the claimant would have access in Pakistan would be effective. (Decision, p. 7)
Based on this evidence, counsel for the Respondent argues that, without more, the IRB had ample evidence and reasons to reject the Applicant's refugee claim.
[5] However, counsel for the Applicant disagrees and says that there is more that makes a great deal of difference.
[6] The Applicant submitted to the IRB that a certain recent report of Amnesty International provides strong evidence that persons with the Applicant's profile are targeted for persecution. Consequently, it is argued that the report, which was tendered in evidence before the IRB, is evidence that, should the Applicant return to Pakistan, there is more than a mere possibility that he would be persecuted.
[7] In his evidence, the Applicant expressed the subjective fear that he is on a "hit list"; the Applicant argues that the Amnesty International report supplies some objective evidence in support of this subjective fear. Rather than conclude that the Applicant's fear is that he is a targeted person, the IRB took the Applicant's statement literally and went to great lengths in its decision to discount his fear as follows:
... He was asked why he could not move to Islamabad or Lahore, where it was agreed there are more Shia living, and set up business there. The claimant responded that once on a hit list, they never let you go. The claimant alleges that he is on such a hit list. He testified that he could not have moved location, as he would have been discovered no matter where he went in Pakistan. I find that these two assertions are pure speculation on the claimant's part. His assertion regarding the list is based on a belief only and on primarily anecdotal evidence. The claimant testified that others have died because they were on such a list, but no such list has actually been seen or documented by objective observers. Nor is there information that supports the assumption that one would be hunted down should they move away from one area to another. Amnesty International (AI) refers to a possibility of such lists. Their reports are generally based on what their informers tell them in this regard. I conclude that this organisation is an advocacy organisation that depends on such reports to generate support and funding for the organisation. I find that as a result, the position the organisation takes is often biased toward believing the verbal reports of alleged victims. Its position papers are prepared by social activists with a particular point of view and, in my estimation, these papers come close to sensationalism. AI reports that claim a lack of state protection conflict with other documentation that I find more reliable. I give less weight to evidence from advocacy groups and prefer to depend on those such as from the British Home Office and the U.S. Department of State. (Decision, p. 5)
[8] Counsel for the Applicant argues that the IRB's conclusion that Amnesty International is biased and comes close to sensationalism is perverse and capricious. In support of this argument, the record contains an affidavit of an official of Amnesty International which refutes the IRB's opinion (Affidavit of Gloria Nafzinger, December 22, 2003). Since the affidavit was not contested by way of cross-examination, I find its contents are undisputed, and, in agreement with the Applicant's argument, I find that the IRB's conclusions respecting Amnesty International are erroneous. As a result, I find that the IRB's rejection of the Amnesty International report is a manifest error.
[9] This conclusion is important because counsel for the Applicant submits that, had the Amnesty International report not been rejected, the IRB could have weighted the evidence of risk of persecution it contained, and might very well have reached the conclusion that an IAF was available. However, had this occurred, the merits of the report would at least have been properly evaluated rather than dismissed for groundless reasons.
[10] In my opinion, as it is central to the Applicant's case, the rejection of the Amnesty International report renders the IRB's decision as patently unreasonable.
ORDER
Accordingly, I set aside the IRB's decision and refer the matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3373-03
STYLE OF CAUSE: SYED-MOBUSHAR SHABBIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 26, 2004
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: MARCH 29, 2004
APPEARANCES:
Mr. Avi Sirlin
FOR THE APPLICANT
Ms. Marina Stefanovic
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Avi Sirlin
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040329
Docket: IMM-3373-03
BETWEEN:
SYED-MOBUSHAR SHABBIR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER