Hussain v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    8 April 2003

Between
Majeed Hussain, applicant, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 590
2003 FCT 406
Docket IMM-2345-02

Federal Court of Canada – Trial Division
Toronto, Ontario
O'Reilly J.

Heard: March 19, 2003.
Judgment: April 8, 2003.
(14 paras.)


Counsel:

Max Berger, for the applicant.
Michael Butterfield, for the respondent.

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REASONS FOR JUDGMENT AND JUDGMENT
1 O'REILLY J.:— Mr. Hussain is a Shia Muslim. He lived peacefully in the Sanda Kalar area of Lahore, Pakistan until 1990 when he moved to a different neighbourhood of the same city. He continued to observe his religion there but, beginning in 1995, he began to experience problems with the Sipah-e-Sahaba (SSP), an extremist Sunni Muslim organization. He was harassed by phone threats and warnings.

2 It was Mr. Hussain's practice to hold religious gatherings, called majilis, at his home. In April 1999, he was holding a majilis when the SSP interrupted the proceedings by firing gunshots into the air. No one, thankfully, was injured. The SSP warned him to stop holding these gatherings or else it would blow up his home. Mr. Hussain, naturally, reported the incident to the police. The police suggested that he refrain from lodging a formal complaint because that could make matters worse for him. He could be the subject of reprisals from the SSP. He was also told by the police that, if anyone had been injured, they would have taken some form of action.

3 Mr. Hussain continued to receive threats and decided to go into hiding. However, he occasionally visited his family at the house. One night in November 1999, after one of those visits, he was attacked and beaten by members of the SSP. He decided to leave Pakistan.

4 Mr. Hussain arrived in Canada in December 1999 and made an application for refugee status. He was turned down by the Immigration and Refugee Board in April 2002. The Board accepted that Mr. Hussain had been mistreated by the SSP but concluded that he ought to have taken greater advantage of the protection the state of Pakistan could have afforded him. He seeks to overturn that decision and have his application re-considered.

I. Issue

5 There is a single issue involved in this case. The question is whether the Board made a serious error when it concluded there was state protection available to Mr. Hussain in the circumstances.

6 The Board cited considerable documentary evidence, as well as jurisprudence from this Court, showing that authorities in Pakistan are taking serious measures to curb sectarian violence. (See Syed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1556 (QL) (T.D.) and Ahmad v. Canada (Minister of Citizenship and Immigration), 2002 FCT 171, [2002] F.C.J. No. 217 (QL) (T.D.). Mr. Hussain's position is that whatever measures Pakistan was taking were ineffectual in his case. He had tried, and failed, to interest the state in protecting him.

A. The burden on the applicant

7 In a case where an applicant shows that he or she has a legitimate fear of persecution, the question arises whether the state is able or willing to provide adequate protection. To succeed on a refugee claim in those circumstances, the applicant must provide "clear and convincing" evidence that state protection is unavailable (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). This can be shown with reference to the applicant's own experiences or those of similarly situated individuals. The evidence must go beyond a description of the local situation, in that a failure or refusal to provide protection in a particular area does not necessarily justify a conclusion that the state as a whole does not offer protection (Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 507, at para. 31). States may, of course, use their best efforts to protect their citizens and still fail. They are not held to a standard of perfection: (Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL)(C.A.)). The real question is whether it would have been reasonable in the circumstances to expect the person to seek the protection offered by his or her own government, rather than seek refuge in Canada: (Ward, above).

B. Mr. Hussain's attempt to get state protection

8 In this case, Mr. Hussain points to his attempt to get the assistance of police authorities after the shooting incident outside his home in April 1999. He says that the passive response of the police on that occasion demonstrated the unwillingness of the state to protect him.

9 The Board dealt with this point. It said that the police response indicated "prudence from the side of the police not to inflame a delicate situation." The Board might have chosen a better word than "prudence". But the idea it was getting at was that police intervention, in certain circumstances, can be counterproductive. Police authorities have to make choices, taking account of priorities, tactics and community relations. They may sometimes reasonably conclude that the better course is for them to stay out of certain events.

C. Was there an absence of state protection?

10 There is no doubt that the shooting incident at Mr. Hussain's home was a serious matter. Still, taking account of all of the circumstances, the response of the police did not amount to an outright refusal to provide protection. Mr. Hussain testified that he had been told by the police if there had been an injury "that would have been a different matter all together". He had considered going to a higher police authority, such as the Senior Superintendent, but felt that would also have been fruitless in light of the previous response.

11 It is significant, given that the police said they would have done something if there had been an injury, that Mr. Hussain failed to report the incident in which he had been physically assaulted. He said that, based on his first interaction with the police, he thought a return visit would be pointless.

12 However, the police specifically said that they would have intervened if there had been an injury. Accordingly, it was incumbent on Mr. Hussain to report his injuries. He was too quick to assume that no state protection was available to him. No doubt he was discouraged and frustrated, to say the least, after his first visit to the police. Still, his experiences do not amount to "clear and convincing" evidence that no state protection was available to him. In the circumstances, it would be reasonable to expect him to have sought the protection of his home state, rather than seek refuge in Canada.

II. Conclusion

13 It was open to the Board on the evidence before it to conclude that Mr. Hussain had not established an absence of state protection from the mistreatment he suffered. I cannot conclude that the Board made an error in its reasoning or its decision.

14 No question of general importance was proposed for certification and none is stated.

JUDGMENT
IT IS HEREBY ADJUDGED that this application for judicial review is dismissed. No question of general importance is stated.

O'REILLY J.

Comments:
Heard: March 19, 2003. Judgment: April 8, 2003. (14 paras.)
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