TC0-03332

RAD File / Dossier de la SAR : TC0-03332 TC0-03333 / TC0-03334 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 2, 2020 Date de la décision Panel Anderson, Colin Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s)

XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

INTRODUCTION AND DECISION [1] The following reasons explain why I am allowing the appeals of XXXX XXXX (the Principal Appellant), XXXX XXXX XXXX (the Associate Appellant), and their child XXXX XXXX (the Minor Appellant). The Appellants have jointly appealed the Refugee Protection Division's (RPD) January 14, 2020 decision that rejected their claims for refugee protection. The Appellants have asked that I substitute the RPD's decision with my own finding that the Appellants are Convention refugees or persons in need of protection, or that I return the file to the RPD for redetermination. I find that the RPD erred and the Appellants are Convention refugees.

BACKGROUND [2] The Appellants have made the following key allegations in their Basis of Claim (BOC) forms and at the RPD hearing: * That they all lived primarily in the United Arab Emirates, but only have permanent status in Pakistan. * That they all practice Shia Islam and that the Principal Appellant has been a donor and active supporter of Imam Bargah Minhaj-Ul-Hussain in Lahore, Pakistan. * That they were shot at by members of Lashkar-e-Jhangvi (LeJ), an anti-Shia extremist group, while visiting Pakistan in 2015. * That the Principal Appellant was subsequently threatened over the phone. * That the Appellants fled to the United Arab Emirates, and eventually made their way to Canada. * That the LeJ continue to threaten the Appellants via messages given to their family members still living in Pakistan. [3] The RPD found that the Appellants' claims failed because of credibility problems and because the Appellants have a valid internal flight alternative in Hyderabad. [4] The Appellants have argued on appeal that the RPD erred by making incorrect findings on the Appellants' failure to claim asylum on a trip to the United States of America, by being unduly microscopic, by making unsustainable plausibility findings, by failing to give weight to documents, by failing to address documents, by setting an unduly onerous and prohibitive standard of proof upon the Appellants, by applying an incorrect profile to the Appellants, by ignoring evidence and by generally making incorrect findings on the safety of the internal flight alternative location.

PRELIMINARY MATTERS No new evidence and no oral hearing [3] The Appellants have not requested the admission of any new evidence with respect to this appeal and have not sought a RAD oral hearing. As no new evidence was admitted in this appeal, no oral hearing is permitted pursuant to IRPA s. 110(6). The role of the Refugee Appeal Division (RAD) [4] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout.

ANALYSIS Identity and profiles are established [5] The RPD correctly found that the Appellants' identities as citizens of Pakistan were established on the basis of certified copies of their Pakistani passports. I concur with this assessment as I note no problems with these documents. [6] The RPD did not make a specific finding with regard to the Appellants' religious profiles as Shia Muslims. On a balance of probabilities, I find that this profile is established with the Appellants' testimony, their documentary evidence of long-standing donations to Shia religious communities in Pakistan, and a letter outlining the Appellants' participation at a Shia religious place in Canada. The RPD's approach to credibility and internal flight alternative is erroneous [7] The RPD erred in its approach to its analysis because its findings were confusing and lacked a logical progression. [8] In paragraph seven of its decision, the RPD wrote that the determinative issues in its analysis were credibility and the existence of an internal flight alternative (IFA). The RPD canvassed credibility and IFA at the RPD hearing and made a number of negative credibility findings (which I will discuss in detail below). In paragraph 10, however, the RPD wrote that "the panel is not making a finding with regards to the general credibility of the documentary evidence provided." Indeed, much of the documentary

evidence adduced by the Appellants was not discussed. The RPD then went on to analyze IFA. [9] This approach to the analysis has several confusing implications. First, credibility could not have been a determinative issue as the RPD wrote, because the RPD stopped short of making complete findings with respect to the credibility of the Appellants' evidence. Had the RPD made determinative findings on credibility, the RPD would not have had to progress to an IFA analysis. Second, by declining to make findings regarding pieces of the Appellants' documentary evidence in its credibility analysis, the RPD rendered its own credibility analysis incomplete and therefore of little use. [10] The IFA analysis is similarly confusing to me, because the RPD suggests within the IFA analysis that it does not believe that the Appellants' allegations are credible. In paragraph 23, for example, the RPD writes, "even if the panel had found the allegations put forth credible and determined that the claimants face harm in Pakistan, the panel believes they have an internal flight alternative..." There is nothing erroneous about the RPD deciding to make alternative findings. However, the RPD's findings in the IFA analysis extend to the point of suggesting that the IFA location is safe because the Appellants are not credible. In paragraph 34, for example, the RPD writes that "the principal claimant is

not high profile" and therefore would not attract the attention of LeJ extremists in the IFA location. This, of course, is in direct opposition to the Appellants' allegations that their status as donors to Shia causes made them high profile enough that they were attacked by the LeJ. It makes no sense to me that the RPD could find that an IFA location would be safe on account of the Appellants' profiles without first having fully assessed the credibility of the Appellants' allegations regarding their profiles. The RPD's approach to IFA relied upon doubt in the Appellants' allegations without coming to complete findings on the credibility of those allegations. These partial credibility findings were imported into the IFA analysis such that the analysis is tainted. [11] In any event, the specific negative credibility findings that the RPD did make are not sustainable. I explore these in the sections that follow. The RPD erred in its analysis of the Appellants' trip to the USA [12] The RPD erred in determining that the Appellants' failure to claim asylum in the United States of America (USA) undermines the credibility of their allegations of subjective fear. [13] The Appellants have stated that the LeJ attack and threats began on January 2, 2015.1 The Principal Appellant made his way back to the United Arab Emirates (UAE), where the Appellants had temporary residency contingent on

the Principal Appellant's employment, around XXXX XXXX, 2015.2 The Appellants have stated that the Principal Appellant received word that LeJ was still looking for them in Pakistan on January 21, 2015.3 The Appellants have stated that the Associate Appellant and the Minor Appellant "secretly left Pakistan" from their hiding spot and made their way back to the UAE on XXXX XXXX, 2015.4 [14] The Appellants testified that they travelled to the USA for holidays in 2016. The Principal Appellant testified that he "could not go back to Pakistan" and that they had valid USA visas, so they decided to go to the USA.5 The RPD asked the Principal Appellant why they didn't seek asylum while in the USA. The Principal Appellant explained that "my job was going on well and I was okay [in the UAE]." [15] The Appellants also applied for Canadian temporary resident visas in 2016.6 When the RPD asked the Principal Appellant why he applied for the Canadian visa, the Principal Appellant explained that he did so as a "precaution" and had done so "ever since we had danger in Pakistan."7 When asked why he needed the Canadian visa as a precaution, the Principal Appellant explained, "in UAE we are looked upon with hatred and we have witnessed many such cases where people belonging to our line of faith they have been asked to leave overnight and when this incident happened to someone right across my office

- he was a manager - at that time we lost all the confidence that we are kicked out in this way, we cannot even go back to Pakistan." [16] The RPD found that the Appellants' failure to claim asylum on their trip to the USA undermined their allegations of subjective fear because their status in the UAE was precarious, and because the Appellants had applied for a Canadian visa around the same time and cited precarity as a reason for wanting the Canadian visas. While failure to claim status in a safe third country is often a reason to doubt allegations of subjective fear, this must be assessed in light of an Appellant's specific circumstances and explanations. In this case, the RPD did not engage with the Appellants' explanation. [17] A careful look at the timeline reveals that the Appellants' passports were stamped by USA immigration on XXXX XXXX, 2016.8 At that time, the Appellants explained, they had been living in the UAE for many years, the Principal Appellant had a good job, and things were "okay." The Canadian temporary resident visa application shows that it was initiated on November 17, 2016, almost a year after the USA trip.9 The Appellants explained that they had lost confidence in the UAE because the Principal Appellant's manager and other Shia individuals were fired and had to leave the country on short notice. [18] The RPD did not engage with the Appellants' specific

reasons for explaining that at the beginning of 2016, they perceived stability in the UAE and therefore saw no reason to claim in the USA, whereas approximately one year later, after they witnessed other Shia people being fired, they perceived precarity and decided to apply for a Canadian visa as a precaution. This explanation is, on its face, reasonable. None of the Appellants' other testimony or evidence is inconsistent with this explanation. I therefore have no reason to doubt its truthfulness based on the record before me. The RPD's plausibility finding is not sustainable [19] The RPD erred when it found that the Principal Appellant was inconsistent with regard to his actions on the night of January 2, 2015. [20] The RPD found it problematic that the Principal Appellant testified that he went to the South Cantt police station to report the LeJ attack, despite the fact that there is a police station in Wapda Town, much closer to the Appellants' home. The Principal Appellant explained that he drove to the South Cantt police station because he was concerned that the attackers may have known where his house was, and he wanted to go to the "much larger" South Cantt police station.10 Following the police report, the Principal Appellant's father met them at the police station and they all proceeded home despite their earlier worry that the attackers knew the location of the

home. [21] The RPD characterized the fact that the Appellants went home despite earlier worrying that the attackers knew the location of their home as an inconsistency. The RPD further found that this inconsistency was so severe that the Appellants had "fail[ed] to establish that they were attacked on January 2, 2015 as alleged." I disagree. [22] I disagree because this is not a finding of inconsistency at all. This is a weak finding of implausibility. A theoretical inconsistency could occur, say, if the Appellants testified that they had attended the South Cantt police station, yet their police documents specified that they had attended the Wapda Town police station. An inconsistency could also include contradictory statements: if the Appellants alleged that they spent the night in a hotel but later testified that they went home after the attack. In this case, the RPD inferred that the Appellants should have behaved in a certain way given their earlier behaviour and their articulated concerns that the attackers may have known the location of their house. [23] This implausibility finding is unsustainable because it clearly falls short of the test laid out by the Federal Court in cases like Valtchev. The Federal Court has stated that findings based on implausibility should be made only in the clearest of cases, when the facts presented are outside the realm of what could

reasonably be expected or where the documentary evidence demonstrates that the events could not have happened in the manner asserted. In this case, the Appellants simply changed their minds in the aftermath of a shocking and violent incident. There is simply no evidence that they couldn't or wouldn't do so. [24] It is possible that, had the RPD drilled deeper into these allegations, a meaningful inconsistency may have arisen. As the record stands, I see nothing inconsistent and nothing inherently implausible about the Appellant's statements or actions. [25] The RPD's finding in this regard is further erroneous because it specifies that this implausibility finding alone led the RPD to the conclusion that the Appellants had failed to establish that the attack ever occurred. This is clearly erroneous because it ignores numerous other pieces of corroborative evidence, including a police report and various letters attesting to the attack, which would have had to have been weighed prior to making this finding. The RPD erred in giving documents no weight [26] The RPD erred when it weighed the Appellants' supporting documents and decided that they deserved no weight. The RPD erred because, in explaining why it gave these documents no weight, the RPD relied on the fact that it had already decided that the Appellants' allegations were not credible and because fraudulent documents are

available in Pakistan. [27] The RPD undertook the weighing process backwards. The RPD is first required to weigh all the relevant evidence before coming to conclusions about the allegations that they support. The RPD also engaged in guilt-by-association in finding that the availability of fraudulent documents necessarily undermined the veracity of the documents presented here. The Federal Court has been clear that this is not acceptable. The availability of fraudulent documents in a given country may be an important factor when considering how to question a witness regarding a document, but it does not on its own undermine any given document's veracity. [28] The RPD did canvass the credibility of the Appellants' supporting documents at the RPD hearing. Again, it is possible that, had the RPD drilled deeper into these documents, it may have uncovered meaningful credibility problems. As the record stands, these documents present no inconsistencies, omissions, or implausibilities and I therefore find that they are deserving of weight in establishing the Appellants' allegations. The Appellants' presumption of truthfulness remains intact [29] The Appellants benefit from a presumption that their sworn statements are true unless there are valid reasons to doubt their truthfulness. As the RPD's credibility findings are unsustainable, and as I perceive no other credibility problems

arising from the record, I find that the Appellant's presumption of truthfulness remains intact. There is no safe IFA for targeted religious minorities [30] The RPD erred when it found that Hyderabad would represent a safe IFA location for the Appellants. As I have already discussed, the RPD relied on a number of imported and erroneous credibility findings regarding the Appellants' profiles in order to come to the conclusion that the IFA location would be safe. The Appellants' documentary evidence establishes that they are Shia Muslims, donation receipts and invitations to speak as honoured guests at opening ceremonies establish that they are of a significant profile within their religious community, and there is no established reason to doubt that they have been targeted in the past or that they have been subject to ongoing threats. [31] The RPD spends much of its analysis of IFA on what I see as relatively peripheral issues: considering whether or not other people at the Imam Bargah have been targeted, the implications of Pakistan's tenant registration system, and the general prevalence of Shia Muslims and Shia places of worship throughout Pakistan. These issues are peripheral given the specific facts of this case. It does not matter whether other members of the Imam Bargah have been targeted or not, since the Appellants have stated, and I have no reason to doubt, that they

have personally been targeted. It does not matter how many other Shia Muslims there are in Pakistan since the Appellants have established that the LeJ has targeted them on a personal level. [32] The RPD cites a United Kingdom Home Office country information and guidance note on Shia Muslims.11 This document specifies that, where a person's fear is of persecution at the hands of non-state actors, in general they will be able to relocate to escape that risk. The document qualifies this and specifies that each case must be considered on its individual merits. The RPD did not cite another document in the National Documentation Package, the United Nations High Commissioner for Refugees (UNHCR) guidelines for assessing the international protection needs of members of religious minorities from Pakistan.12 The UNHCR guidelines specify that "UNHCR considers furthermore that an IFA... will generally not be available to individuals who are members of other religious minorities and who are at risk of being targeted by armed militant groups, given the sustained religiously motivated sectarian violence and the wide geographic reach of such groups." [33] Given that the Appellants have been targeted in the past, given that they have been subjected to ongoing threats, and given that they have a significant profile within their religious community, I find that there is no IFA location within

Pakistan in which the Appellants' risk would be reduced below a serious possibility. The IFA fails on the prong of safety. No adequate state protection [34] The RPD made no specific findings regarding the availability of adequate state protection. In consideration of this issue, I note the Appellants' assertions, the credibility of which remains intact, that the police were reluctant to launch a first information report regarding the LeJ attack and that they similarly did not follow up on the ongoing threats. [35] National Documentation Package item 12.5, a response to information request dealing with the government response to violence against Shia Muslims, states that "...government efforts to address violence against Shia have not been sufficient," and that the "...US Commission on International Religious Freedom describes the response of the Pakistani government to violent attacks against Shia as "grossly inadequate." The report further states that there is, "...no protection against targeted killings of Shia and that the Pakistani government 'generally has not done much, does not take responsibility, and seems unwilling to take action.'" [36] As a result of the documentation above and considering the specific facts of this case, I find that there is no reasonable expectation of adequate state protection for the Appellants.

CONCLUSION [37] The RPD erred in its credibility assessment. The Appellants' presumption of truthfulness remains intact. The RPD erred in its IFA assessment, because the proposed IFA is not safe for the Appellants given their profiles and history of past persecution. [38] The Appellants face a serious possibility of persecution on the basis of their religion should they return to Pakistan. [39] Pursuant to IRPA s. 111(1)(b), I set aside the determination of the RPD and substitute my own determination that the Appellants are Convention refugees. [40] The appeal is allowed. (signed) "COLIN ANDERSON" Anderson, Colin November 2, 2020 Date 1 Exhibit RPD-1, RPD Record, BOC Narrative, page 23, para. 8. 2 Exhibit RPD-1, RPD Record, BOC Narrative, page 24, para. 12. 3 Ibid., para. 14. 4 Exhibit RPD-1, RPD Record, BOC Narrative, page 25, para. 15. 5 RPD hearing transcript dated November 29, 2019, page 24. 6 Exhibit RPD-1, RPD Record, Exhibit 1, page 124. 7 RPD hearing transcript, dated November 29, 2019, page 24. 8 Exhibit RPD-1, RPD Record, Exhibit 1, page 102. 9 Exhibit RPD-1, RPD Record, Exhibit 1, page 124. 10 RPD hearing transcript, dated November 29, 2019, page 32. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Pakistan (29 March 2019), Item 1.16. 12 Ibid., Item 1.8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (January, 2020) Disponible en français Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français RAD File / Dossier de la SAR : TC0-03332 TC0-03333 / TC0-03334