Date: 20010920
Neutral citation: 2001 FCT 1035
Toronto, Ontario, Thursday the 20th day of September, 2001
PRESENT: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
ASIF IKRAM KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.:
[1] This is an application for judicial review brought pursuant to subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of a decision of the Convention Refugee Determination Division (the "CRDD") dated January 26, 2000. In its decision, the CRDD found the applicant not to be a Convention refugee.
Background Facts
[2] The applicant, Asif Ikram Khan, is a citizen of Pakistan who entered Canada on July 7, 1998 to make a Convention refugee claim. In Pakistan, the applicant was an active member of the Pakistan People's Party (the "PPP") and involved in organizing meetings, protests, election campaigns and other aspects of the PPP. Members of the Pakistan Muslim League (the "PML") subjected the applicant to verbal abuse and he was arrested by the police a number of times due to his association with the PPP. In July of 1997, the applicant was elected as Secretary of the PPP for Sheikhupura. In November, 1997, the applicant was arrested at a protest rally and kept in detention for approximately one week during which time he was beaten by police. He was released only after his brother paid the police a bribe.
[3] During May of 1998, the applicant supported a PPP candidate for the local elections in Sheikhupura. However, shortly before the election, his car was vandalized. A note left on his car suggested that if the applicant did not disappear on his own, he would be made to disappear. At this point, the applicant left his home out of fear and stayed with a friend in Lahore until he left for Canada on July 6, 1998. The applicant's travelling arrangements were made by a smuggling agent. The applicant entered Canada on July 7, 1998. The applicant fears that the police and PML government officials in Pakistan will persecute him if he returns.
[4] The applicant's Convention refugee claim was heard October 20, 1999 and rejected by decision dated January 26, 2000. In finding that the applicant's claim of persecution was no longer objectively well founded, the CRDD wrote:
However, after this claim was commenced, and in one of the most significant political developments in Pakistan's recent history, the PML government of Nawaz Sharif was removed from power in an October 1999 military coup led by General Pervez Musharraf. Sharif, and other PML ministers have been detained, and the new military government has set about establishing its administration. It has also started to round-up politicians, including those of the PML. The fact that General Musharraf has been able to detain Sharif and other PML potentates for an ever lengthening period is a clear indication that his new military administration is in meaningful, effective and durable control of the state and the PML is no longer, and a clear indication that the conversion of the power structure is likely to last. If the PML has been ousted from government and its leaders are in detention, I highly doubt that the PML is in any condition now to continue to persecute its opponents. Any remaining free PML operatives are far more likely to be too busy running for their own cover. I therefore highly doubt the claimant has much to fear from them at this time. I therefore find that the claimant no longer has good grounds to fear persecution by the PML.
Moreover, given the likelihood that the military government rather than the PML now controls the police and the claimant's testimony that he has done absolutely nothing to antagonize Pakistan's new military rulers, I find that the claimant's testimony that he has done absolutely nothing to antagonize Pakistan's new military rulers, I find that the claimant no longer has good grounds to fear persecution by the police.
[5] In their alternative, the CRDD found that even if there were some PML operatives and police in a position to persecute the applicant, the applicant failed to show clear and convincing evidence that the state would not make serious efforts to protect him. In the further alternative, the CRDD reasoned the applicant had an internal flight alternative in Lahore:Given his inexperience in Lahore politics, the claimant is unlikely to be able to do much damage to PML interests there, and, based on previously-cited documents, the PML in Sheikhupura and Lahore are, in all likelihood, far too busy fending off or avoiding raids by the new military government to worry or don anything about the claimant in Lahore, even if it is only an hour away from Sheikhupura. I therefore find that the claimant does not have good grounds to fear persecution in Lahore. The claimant has lived with relatives in Lahore before, and there is nothing before me that would indicate the claimant would encounter a language barrier there.
[6] Issues
1. Did the Board err in finding that the "change in circumstances" in Pakistan was meaningful, effective and durable so that the claimant no longer has good grounds to fear prosecution by the PML?
2. Did the Board err in finding that state protection was available to the applicant?
3. Did the Board err in finding that the applicant had an interact flight alternative?
[7] Relevant Legislation
The relevant provisions of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act")
state:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
[8] Issue 1
Did the Board err in finding that the "change in circumstances" in Pakistan was
meaningful, effective and durable so that the claimant no longer has good grounds to fear prosecution by the PML?
This application was heard by the Immigration and Refugee Board (Refugee Division Board) on October 20, 1999 and the Board's decision was given on January 26, 2000. On October 12, 1999, the army had removed Prime Minister Sharif from power and took over the government of the country from the Pakistan Muslim League. In its decision, the Board concluded that since the PML government had been ousted from power and replaced with a military government, the applicant's fear of persecution was no longer objectively well-founded and that there had been a meaningful effective and durable change in the country conditions. The tribunal record contains the following exempts from articles written after the coup took place.
Lycos News, October 14, 1999:
But the army said it would not make a statement, promised by coup leader General Pervez Musharraf, Thursday to lay out it plans for the country in the wake of Tuesday night's coup, which has alarmed world leaders, international lenders and investors.
Qureshi said the army would not rush into announcing its plans. "Important decisions to take time," he said.
New York Times, November 2, 1999:ISLAMABAD, Pakistan, Nov.1 - Pakistan's new military ruler, Gen. Pervez Musharraf, refused today to be pinned down on when he would restore democracy as he faced more than an hour of questions at his first news conference since he seized power in a coup three weeks ago. Though he fielded questions with the ease and finesse of an old political pro, the general left no doubt that he was running Pakistan, a nuclear power with a population of 150 million, and that he alone would decide when the people would be allowed to pick their own leaders again. Will the return to democracy be achieved through elections or a revival of Parliament, he was asked. "Frankly, I haven't decided," he replied. Will he allow voters to register their support or disapproval of the coup in a referendum? I'll talk it over with my council of adviser, he said.
National Post, October 30, 1999:ISLAMABAD, PAKISTAN - The Commonwealth mission to Pakistan departed yesterday without noticeable success. The group - led by Lloyd Axworthy, the Foreign Minister - didn't see or speak to deposed prime minister Nawaz Sharif. Nor did it get a timetable for a return to democracy from the new ruler, General Pervais Musharraf.
The Toronto Star, November 2, 1999:Despite international pressure to restore democracy, the military regime faces little pressure from the public to hold elections. Musharraf, who has suspended parliament and the constitution, said he wants to decentralize some power in this poor South Asian nation of 140 million people, making people "the master of their own destiny" by returning power to the district level."
[9] The Board itself recognized that changes were only in process when it stated in its decision at page 1:....., and the new military government has set about establishing its administration.
[10] I find that based on the information before the Board there was not a change in country conditions that was meaningful and effective. (See Magana v. Canada (The Minister of Employment and Immigration) (1993), 70 F.T.R. 136 (F.C.T.D.) and Vodopianov v.Canada (The Minister of Employment and Immigration) [1995] F.C.J. No. 964 (June 20, 1995), Docket A-1539-92 (F.C.T.D.). The documentary evidence speaks of changes to come about in the future and that is understandable as the coup had only happened a few days earlier. I am of the opinion that more evidence of changes in country conditions was necessary to meet the requirement that the change be meaningful and effective enough or substantial, durable, and effective enough to make the applicant's fear unreasonable and thus without foundation. The applicant stated that he feared the workers of the PML and the police. The record contains no evidence of the extent of control that the army is exerting over the PML workers or the police. I therefore conclude that the Board erred in law.
[11] Issue 2
Did the Board err in finding that state protection was available to the applicant?
For the same reasons for the lack of evidence of a showing on effective, meaningful and durable change in country conditions in Pakistan, I find that the Board erred in finding that the state now has the ability to protect the applicant from persecution.
[12] Issue 3
Did the Board err in finding that the applicant had an internal flight alternative? The first two sentences in paragraph 3 on page 1 of the decision seem to indicate that the applicant's fear of persecution had been well-founded until the coup occurred. In this case, the record would substantiate this conclusion. The evidence of the applicant was to the effect that he would not be safe anywhere in Pakistan because of his political views. Based on the above, I would conclude that no internal flight alternative existed for the applicant and I find the Board erred in finding that there was an internal flight alternative.
[13] The application for judicial review is allowed and the matter is referred to a different panel of the Board for a redetermination.
[14] Neither party wished to certify a serious question of general importance.
ORDER
1. IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a differently constituted panel of the Board.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
September 20, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1229-00
STYLE OF CAUSE: ASIF IKRAM KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, AUGUST 15, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: THURSDAY, SEPTEMBER 20, 2001
APPEARANCES: Mr. John Savaglio
For the Applicant
Mr. Matthew Oommen
For the Respondent
SOLICITORS OF RECORD: John Savaglio
Barrister & Solicitor
1919 Brookshire Square
Pickering, Ontario
L1V 6L2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010920
Docket: IMM-1229-00
Between:
ASIF IKRAM KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER