Tahir Ahmad Nawaz Chaudri v. Minister of Employment and Immigration

REASONS FOR JUDGMENT

Immigration Appeal Board dismissing application for redetermination of Convention refugee status. When a student, applicant actively involved in Pakistan People's Party. While applicant in Canada, martial law declared in Pakistan. Summons issued for applicant's appearance under martial law. Board accepting evidence to effect other students subject to summonses arrested, tortured and imprisoned. Board affording little weight to summons. Board doubtful as to legal validity of summons and authority of court before which applicant summoned. Board's attempt to interpret Pakistani martial law wrong. Summons signed by person apparently vested with authority to order applicant's detention. Gravamen of applicant's case not fear of being lawfully imprisoned but that, like other students involved in political activities, he would be tortured and imprisoned. Board ignoring evidence found credible by it. Neither applicant's "minor" role (as described by Board) nor length of absence from Pakistan relevant in light of uncontradicted evidence of ongoing persecution of former P.P.P. members. Matter referred back to Board for redetermination.

HUGESSEN J.: -- This is a section 28 application to review and set aside a decision of the Immigration Appeal Board dismissing the applicant's application for redetermination of his status as a convention refugee. The applicant came to this country as a student in 1976. At that time, the Pakistan People's Party (P.P.P.), under the leadership of Mr. Bhutto, was in power in his native land. As a student in Pakistan, the applicant had been active in the affairs of the Party. In particular, he had carried out what were described as "political investigations". The Board appears to have found that this amounted, in effect, to some amateur sleuthing for the purposes of determining which members of rival political parties had been committing thefts and break-in's at the offices of the P.P.P. While the applicant was in Canada, violent political changes took place in Pakistan. There was a military coup. The P.P.P. was driven from office. Mr. Bhutto was arrested and eventually hanged and martial law was declared. In 1980, the applicant learned of a summons issued for his appearance under the provisions of martial law. It was this summons and the applicant's fear of what it might lead to that triggered his application for refugee status. Indeed it is not putting the matter too high to state that the summons lay and continues to lie at the very base of the applicant's claim.

The text of the summons is as follows: Sub-Martial Law Administrator Zone ‘C', Karachi No. 159/A/SMLA/3928 March 1980.

To: Mr. Mohummad Nawaz, Resident of 169/C/2, Central Commercial Area, P.E.C.H.S., Karachi.

Subject: PROSECUTION OF ACCUSED MR. TAHIR AHMED NAWAZ UNDER MARTIAL LAW ORDER NO. 12.

You are hereby ordered to produce or ensure the presence of Mr. Tahir Ahmed Nawaz, your son, before Special Military Court No. 2 M.P.A. Hostel, Karachi, at 10.00 hrs. on March 27^th, 1980.This shall be treated as final notice to you.(sgd.) Brigadier, S. M. KHAN Sub-Martial Law Administrator ZONE ‘C', Karachi. No. 159/A/SMLA/Copy forwarded to: Superintendent of Police, Central Division, Karachi Police, Karachi. For his necessary attention. As can be seen from the heading in the body of the text, the summons was in relation to the prosecution of the applicant (the "accused") under Martial Law Order No. 12.

The text of Martial Law Order No. 12 was also the subject of evidence before the Board, which found that at the relevant time it read as follows: "MARTIAL LAW ORDER NO. 12"

1.         This Martial Law Order, hereinafter referred to as this Order, shall come into force at once.

2.

(1)        This Order shall have effect notwithstanding, anything contained in any other law for the time being in force or any judgment of any court, including the Supreme Court or a High Court.

(2)        Any decision given, judgment passed, stay order made, bail granted or any other order, writ, notice or process issued or made by any court, including the Supreme Court and a High Court, in respect of any thing done in exercise of the powers under this Order shall be of no legal effect.

3.         Where with respect to any person the Chief Martial Law Administrator or a Martial Law Administrator is of the opinion that, for the purpose of preventing him from acting in any manner prejudicial to the purpose for which Martial Law has been proclaimed or to the security of Pakistan, the public safety, maintenance of public order or interest, the defence of Pakistan or any part thereof, the maintenance of peaceful conditions in any part of Pakistan or the efficient conduct of Martial Law prejudicial to Pakistan's relation with any other power, it is necessary so to do, the Chief Martial Law Administrator or a Martial Law Administrator may make an order --

(a)        directing that he be detained;

(b)        requiring him to reside or remain in such place or within such area in Pakistan as may be specified in the order;

(c)        imposing upon him such restrictions as may be specified in the order in respect of his employment or business, or in respect of his activities in relation to the dissemination of news or propagation of opinion; and

(d)        otherwise regulating his conduct in regard to any matter as specified in the order.

4.         Reasons or grounds for detention or restriction, as the case may be, shall not be communicated to any person detained or whose movements or activities are restricted under this Martial Law Order.

5.         The Chief Martial Law Administrator or the Martial Law Administrator may revoke his order at such time when in his opinion the circumstances so warrant. The Board found the applicant to be a credible witness. He gave evidence that other people who had engaged in the same sort of student activities for the P.P.P. as himself had received similar summonses in Pakistan. Two of them in particular, who had been doing "political investigations" with him, were arrested and tortured and spent respectively six and twelve months in prison. The applicant also produced documentary evidence, which the Board seems to have found credible, emanating from Amnesty International and from agencies of the United States Government, dealing with widespread and politically motivated human rights violations in Pakistan. The Board dealt with the applicant's Martial Law summons in these terms: The above quoted Order does not indicate that the applicant's presence is required for any order to be made against him nor does it indicate that a "Special Military Court" has any power to issue an order under any of the paragraphs (a) to (d) listed above. Considering the great uncertainty and the lack of explanation surrounding the summons to appear, the Board is unable to give it much weight in its consideration of this case. The only interpretation that I can give to this passage is that the Board refused to give much weight to the summons because it entertained some doubt as to the latter's legal validity and as to the authority of the court before which the applicant had been summoned. To this it seems to me there are two peremptory answers. In the first place, the Board's attempt to interpret Pakistani martial law is, in my opinion, simply wrong. Assuming that the Board or this Court has any competence in the area, the summons indicates clearly that the applicant is being prosecuted and is accused under Martial Law Order No. 12. It is signed by a person, the sub-martial law administrator, who appears, by the terms of Martial Law Order No. 12, to be vested with authority to order the applicant's indefinite detention or restriction of movement. The grounds which would justify the making of such an order are the vaguest imaginable and, in any event, "shall not be communicated to any person detained or whose movements or activities are restricted". To imagine that the summons to the applicant was for any purpose other than the making of an order against him under Martial Law Order No. 12 requires an act of faith greater than I am capable of. Secondly and in any event, the whole gravamen of the applicant's case is not that he fears being lawfully imprisoned and tortured but rather that he will, in fact, receive the same treatment as his tow companions. It will be recalled that the latter had engaged in the same activities as the applicant and had received the same sort of summons. In finding that there is "great uncertainty" and "lack of explanation" with regard to the summons, the Board, in effect, ignores evidence which it had itself found to be credible. As I have previously stated, the martial law summons forms the very foundation of the applicant's fear of persecution. The Board's refusal to attribute much weight to that summons is, in its turn, central to its decision to refuse the application. Because of the errors which I have indicated, that decision cannot stand. There remains the question of the disposition of the application. The Board found the testimony of the applicant to be credible. It also found the evidence filed by him to be credible. It rejected as not credible or not deserving of weight the only contrary evidence tendered. It accepted that the applicant, while a student in Pakistan, had been a member of and active in the P.P.P. It also accepted that his presence before the Special Military Court was required in connection with that membership. Notwithstanding the foregoing, the Board, in its Reasons, immediately following the previously quoted passage regarding the Martial Law Summons, says as follows: Moreover, considering the applicant's minor role in the P.P.P. and the fact that he has been away from Pakistan for eight years, the Board believes that the evidence filed by the applicant as well as his testimony are not sufficient to establish that he is a Convention refugee …Neither the applicant's "minor" role nor the length of his absence from Pakistan were relevant in the light of the uncontradicted evidence which the Board had accepted, namely, that others who had played the same role had been persecuted and that political persecutions of former members of the P.P.P. were still current at the time of the appeal. In the circumstances, it appears to me that, if the Board had not committed the errors which I have indicated, it could only have come to the conclusion that the applicant had satisfied the definition of Convention Refugee. In may opinion, the matter should be referred back to the Board for redetermination on that basis.