TB9-17393

RAD File / Dossier de la SAR : TB9-17393 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 24, 2020 Date de la décision Panel K. Qureshi Tribunal Counsel for the person who is the subject of the appeal Astrid Mrkich Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant) is a citizen of Pakistan. The Appellant's allegations are as follows. The Appellant was living in Rawalpindi, Pakistan when on XXXX XXXX, 2015, Sunni extremists from a nearby Madrassa came to his family's real estate office to solicit donations, which the Appellant refused. In XXXX 2015, the Appellant left for the United States (US) in order to start a XXXX program at XXXX University in New York. In his absence, the extremists returned to the real estate office again in XXXX 2016 seeking donations. This time, the Appellant's younger brother responded that they do not give donations to extremists who use the money against Shias like them. As a result, the Appellant's brother and his uncle were attacked by the extremists, and the brother was kidnapped. To date, the Appellant alleges that his brother's whereabouts are unknown. The Appellant's mother and uncle did not contact police and instead solicited the assistance of their tribal council. The Appellant's uncle and mother also relocated elsewhere in Rawalpindi. However, in XXXX 2018, the extremists came to their new residence and informed the Appellant's mother and uncle that they are part of the Lashkar-E-Jhangvi (LeJ) and told them to leave the area. The Appellant's uncle and mother moved to Lahore. In XXXX 2018, in Lahore, the mother and uncle filed a petition with the court seeking protection and assistance, as no developments had been made by the tribal council in the past two years. In XXXX 2018, the mother and uncle were threatened in Lahore by the extremists. Accordingly, they moved to XXXX. In XXXX 2018, attackers came to their residence in XXXX but the Appellant's family did not answer the door. In the following days, the mother and uncle moved to Sargodha. In XXXX 2019, the mother received a threatening phone call demanding that the petition be withdrawn. The Appellant states that he has been specifically threatened by the extremists and that his life is in danger if he returns to anywhere in Pakistan. [2] The Appellant's claim was heard on May 28, 2019 and rejected on June 7, 2019 on the basis of credibility, failure to claim in the US and an Internal Flight Alternative (IFA) in Hyderabad. [3] The Appellant does not submit new evidence or request an oral hearing. DECISION [4] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [5] My role is to look at all the evidence and decide if the Refugee Protection Division (RPD) made the correct decision.1 [6] The Appellant argues that the RPD erred in the following respects: a. by ignoring the Appellant's explanation for his delay in seeking advice regarding his status in the US,2 making an unsupported finding regarding what the Appellant was told by immigration lawyers in the US,3 and mischaracterizing the Appellant's evidence regarding why he did not claim asylum;4 b. by ignoring and mischaracterizing the Appellant's evidence regarding his family's efforts to seek protection at the outset,5 his family's petition and subsequent efforts to get police protection;6 c. regarding IFA, the RPD erred by making microscopic findings regarding the availability of state protection for Shias,7 selectively relying on the National Documentation Package (NDP),8 making broad findings without proper analysis,9 misunderstanding the facts regarding the threat from the LeJ and its ability to locate the Appellant;10 d. by not considering the Appellant's profile as a Shia;11 and e. by misunderstanding the test for persecution by focusing on past persecution rather than forward-facing risk.12 Appellant's failure and delay in claiming undermines his subjective fear [7] The RPD raised doubts regarding the Appellant's subjective fear due to failure to make a claim for protection in the US. The RPD's reasons for its doubts are that 1) the Appellant's explanation for not making a claim "evolved," and 2) because the Appellant did not explain to university authorities why he had stopped going to class and did not pay tuition.13 The Appellant argues that the RPD erred in several respects, as outlined above, with respect to his failure to claim protection in the US and, specifically, not accepting the Appellant's explanation. [8] The Appellant explained that he did not claim asylum earlier because he was not aware of the asylum process until he started working and learned about it from a co-worker. The Appellant testified that, before that, he was XXXX and stayed home for many months upon hearing the news of his brother's kidnapping.14 The Appellant also stated that he did not actually make a claim in the US because lawyers told him his chances were not good because he did not claim earlier, he came on a student visa15 and he would be deported.16 The RPD characterized the Appellant's evidence as "evolving." Based on my independent assessment, I acknowledge that the Appellant proffered several reasons as to why he did not make a claim in the US, however, I find that it is entirely possible for people to have multiple reasons for not making a claim, and that this does not necessarily mean that their explanation is evolving. I therefore find that the RPD erred in this regard. [9] Nevertheless, I agree that the Appellant's reasons do not adequately explain his failure to seek protection earlier. Even if the Appellant was apathetic and unable to cope for many months after finding out his brother had been kidnapped, by XXXX 2016 he was working, communicating with friends,17 and by XXXXorXXXX XXXX 201718 he had even consulted with immigration lawyers. Clearly, his XXXXandXXXX XXXX had lifted to the extent that he was functional. However, the Appellant still did not make a claim for protection in the US and did not travel to Canada until many months later, in XXXX 2017. Therefore, I find that the Appellant's failure to claim in the US and delay in claiming protection does undermine his subjective fear, although I note that this is not determinative. RPD erred by finding the mother's and uncle's actions with regards to the threats to be implausible [10] The RPD held that it "strained credulity" that the Appellant's mother and uncle did not contact the police immediately after the brother was kidnapped, but then contacted authorities multiple times while in hiding.19 The Appellant argues that the RPD ignored his evidence that his family did seek assistance at the outset through their tribal council.20 The Appellant also argues that the RPD mischaracterized the threats faced by the mother and uncle, and the actions they took in response.21 Based on my independent assessment, I find that the RPD erred by drawing an implausibility finding in the absence of clear evidence. [11] Regarding the decision of the Appellant's mother and uncle not to contact the police right away, the Appellant's narrative explained that this was because they do not trust the police.22 It was also the Appellant's evidence that the family approached the tribal council in their traditional village for assistance due to the belief that many abductees are taken to this region, and because of their belief that if they contacted the police the extremists would target them even more.23 Based on my independent assessment, I find that the RPD incorrectly made an implausibility finding regarding the mother's and uncle's actions in the absence of clear evidence. Specifically, I note the NDP documentation confirms that there is a mistrust of police in Pakistan due to corruption.24 Furthermore, it is not the case that the mother and uncle did not take any action in response to the kidnapping. Rather, the Appellant's family had various options available to them and they made what they felt was a reasoned and appropriate choice. The fact that the family's actions did not align with what the RPD expected is an implausibility finding and I find that the RPD erred in this regard. [12] Regarding the RPD's concerns over the fact that the mother and uncle did not involve the police and courts until two years after the kidnapping, the Appellant testified that the delay was due to the fact that his mother is uneducated and listened to the tribal council who said they would take care of the matter.25 After two years, when there was no progress by the council and the extremists found them at their new address in Rawalpindi on XXXX XXXX XXXX 2018, the Appellant's mother and uncle decided to take the advice of other relatives and file a petition with the Lahore court. Based on my independent assessment, I find that the RPD incorrectly made an implausibility finding regarding the family's actions. Specifically, the family's actions demonstrate a gradual escalation in their response in the face of new developments. I do not find that it is implausible that the Appellant's family chose not to involve the court and police after they were threated on XXXX XXXX XXXX 2018, and two years had passed without any developments from the tribal council. Appellant is credible overall [13] The Appellant states that it is difficult to understand the RPD's ultimate finding on credibility due to the use of "opaque phrases" such as "strains credulity" and "raises a doubt," and the absence of an analysis of the corroborative documentary evidence.26 Accordingly, I will independently analyse the Appellant's documentation and credibility. [14] I have listened to the audio recording of the hearing and find that the Appellant testified in a clear and consistent manner. I note that the RPD decision also does not point to any internal inconsistencies or contradictions in the Appellant's documentary or oral evidence. Regarding the Appellant's documentation, there are two newspaper articles issued shortly after the brother's disappearance. The articles confirm that the Appellant's brother is missing, which I accept to be the case. On XXXX XXXX XXXX 2019, the Appellant provided an addendum to his narrative which relays that on XXXX XXXX XXXX 2018, his mother and uncle were visited by extremists who identified themselves as the LeJ and told them to leave the area. As a result of this visit, the Appellant's family fled to Lahore. The Appellant provided a copy of a rental agreement from Lahore.27 I do not find any errors or inconsistencies in the agreement; therefore, I accept that the family relocated to Lahore starting XXXX XXXX XXXX 2018. With regards to whether the family was actually threatened in Lahore and XXXX, I have reviewed the petition to the court and the complaints to both of the police stations in Lahore and XXXX and there are no apparent inconsistencies in these documents either. [15] Accordingly, on the basis of the Appellant's overall consistent testimony and corroborative documents, I accept that the Appellant is credible. I also accept, on a balance of probabilities, the Appellant's allegations that he faces a serious possibility of persecution on the basis that his mother and uncle have been threatened by the extremist agents of persecution, and that the extremists will also target him if he returns to Pakistan. Appellant does not have a viable Internal Flight Alternative [16] The RPD found that the Appellant had a viable IFA in Hyderabad.28 The Appellant argues that the RPD made a number of errors in its analysis of IFA.29 Specifically, that the RPD made microscopic findings regarding the availability of state protection for Shias, selectively relied on the NDP regarding threats to Shias, made broad findings without proper analysis, and misunderstood the facts regarding the threat from the LeJ and their ability to locate the Appellant. [17] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam.30 First, I must be satisfied on a balance of probabilities that there is no serious possibility of an appellant being persecuted in the part of the country where an IFA exists and/or the appellant would not be personally subjected to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. Secondly, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the appellant, for an appellant to seek refuge there. [18] Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the appellant to show that they do not have an IFA. The Appellant argues in this appeal that the RPD erred in finding that he has a viable IFA in Hyderabad. First prong of the IFA analysis [19] The Appellant testified that he could be located in Hyderabad as a result of the tenant registration system, and also because the extremists had found his family and therefore could find him too. The RPD did not accept that there was sufficient credible evidence that extremists would pursue him in an IFA partly on the basis that, despite the threats, the extremists never actually harmed the Appellant's mother and uncle, and the lack of evidence to demonstrate the capability of the LeJ to find the Appellant in an IFA. Based on my independent assessment, while I do not accept that the Appellant has demonstrated that he can be located through the tenant registration system, I do accept that the Appellant can be located in an IFA through his family connections. [20] Regarding the tenant registration system, the Appellant has pointed to a Response to Information Request in the NDP.31 The document states that rental agreements in Pakistan are to be registered with the police and therefore the Appellant could be traced in Hyderabad when renting a property. I accept that the police would have access to this information regarding the Appellant's whereabouts. However, the Appellant is not being persecuted by the police, he is being persecuted by extremists. Although the Appellant argues that the LeJ has links to the Pakistani military and intelligence services,32 I note that the LeJ are a banned terrorist organization and the actual intent behind the tenant registration system is counter-terrorism.33 Accordingly, I find the Appellant's argument that the extremists could access his address from the police is speculative. [21] However, the Appellant also argues that the extremists could find him in an IFA because they previously found his mother and uncle in Rawalpindi, Lahore and XXXX. Based on my independent assessment, I find that the Appellant faces a serious possibility of persecution on the basis that the agents of persecution have been able to locate his family on three occasions. Specifically, there is no requirement or any evidence to support that the Appellant's mother and uncle would also move to the IFA with the Appellant. Rather, to date, the mother's and uncle's relocation efforts have remained within the northern part of Pakistan. It was also the Appellant's evidence that, if his brother is still alive, he is likely in the nearby tribal areas,34 which are in the North, and that his family would not just give up efforts to locate his brother.35 Therefore, it is plausible that the Appellant's mother and uncle will continue to remain in the northern part of Pakistan, notwithstanding that they are at risk of being located by the extremists again. As the mother and uncle are still targets of the extremists and may be located again in the future, there is also a risk that the extremists will be able to obtain information from them regarding the Appellant's whereabouts. The only way to prevent this from happening is for the Appellant to hide his location from his family. This is not a reasonable requirement and cannot be used to obviate risk under the first prong. Therefore, on the basis that the extremists may locate the Appellant's mother and uncle again in the future and acquire information regarding the Appellant's whereabouts, I find that the Appellant faces a serious possibility of persecution in an IFA. [22] I therefore find that there is a serious possibility that the Appellant would be persecuted in Hyderabad and that the Appellant does not have a viable IFA. Accordingly, I will not proceed to the second stage of the analysis. Appellant does not have adequate state protection [23] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens.36 To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state's inability to protect its citizens.37 While I do not find that Pakistan is in complete breakdown, based on the Appellant's individual circumstances, I find that he does not have adequate state protection available to him. [24] Specifically, the Appellant's mother and uncle attempted to obtain protection from the state on multiple occasions, as follows: - At the outset, the Appellant's family solicited the assistance of their tribal council in their traditional village with the belief that this would be more effective. - On XXXX XXXX XXXX 2018, the Appellant's family filed a petition for assistance and protection with the Lahore High Court. - On XXXX XXXX XXXX 2018, the Appellant's family filed a complaint with the Mughal Pura police station in Lahore. - On XXXX XXXX XXXX 2018, the Appellant's family filed a complaint with the XXXX police station. [25] Despite their efforts, there is no evidence that any protection or assistance was forthcoming. For example, the Appellant testified that despite the petition, they are still facing risks.38 The available evidence also indicates that the Appellant's brother remains missing. The NDP documentation states that "...inadequate financial resources was a major obstacle to proper police functioning..." and that "'[t]he effectiveness of individual police forces in Pakistan and the challenges faced by these forces vary. Overall, however, police capacity in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors and the judiciary....'"39 [footnote omitted] I therefore find that the Appellant has demonstrated that adequate state protection is not available to him in Pakistan. [26] Overall, I find, on a balance of probabilities, that the Appellant faces a serious possibility of persecution by the extremists, that he does not have a viable IFA and that adequate state protection is not available to him. CONCLUSION [27] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Kiran Qureshi K. Qureshi June 24, 2020 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 25, para. 32. 3 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 26-27, para. 38. 4 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 27, para. 39. 5 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 27-28, paras. 41-45. 6 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 28-29, paras. 46-51. 7 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 31-33, paras. 57-61. 8 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 33-34, paras. 62-64. 9 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 34-36, paras. 65-73. 10 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 37-39, paras. 75-87. 11 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 35, para. 68. 12 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 39-40, paras. 88-90. 13 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, paras. 20-21. 14 RPD Hearing Recording, May 28, 2019, at 00:26 onwards, at 01:50 and 01:35. 15 RPD Hearing Recording, May 28, 2019, at 01:32. 16 RPD Hearing Recording, May 28, 2019, at 01:52 onwards. 17 RPD Hearing Recording, May 28, 2019, at 01:51. 18 RPD Hearing Recording, May 28, 2019, at 01:33. 19 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 8, para. 25. 20 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 27-28, para. 42. 21 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 28-30, paras. 46-51. 22 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) Narrative at p. 20, para. 17. 23 RPD Hearing Recording, May 28, 2019, at 00:38 onwards. 24 See Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Pakistan (29 March 2019), Item 1.6, Pakistan: Country Report, Asylum Research Centre, 18 June 2018, at p. 145. 25 RPD Hearing Recording, May 28, 2019, at 00:38 onwards and at 01:38. 26 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 29-30, paras. 51-52. 27 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 90. 28 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 11, para. 40. 29 Exhibit P-2, Appellant Record, Appellant Memorandum, at pp. 31-39, paras. 57-87. 30 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 31 See Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Pakistan (29 March 2019), Item 3.18, ?Tenant registration systems, including implementation; whether authorities share information on tenant registration (2015-December 2017), Response to Information Request (RIR) PAK106026.E, Immigration and Refugee Board of Canada, 23 January 2018. 32 Exhibit P-2, Appellant Record, Appellant Memorandum, at p. 37, paras. 76-78. 33 See Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Pakistan (29 March 2019), Item 3.18, RIR PAK106026.E, at p. 7. 34 Exhibit RPD-1, RPD Record, Exhibit 2, BOC Narrative, at p. 20, para. 18. 35 RPD Hearing Recording, May 28, 2019, at 01:43. 36 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 37 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), at para 38. 38 RPD Hearing Recording, May 28, 2019, at 01:43. 39 See Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Pakistan (29 March 2019), Item 1.6, at p. 145 and 147. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17393 RAD.25.02 (January, 2020) Disponible en français 2 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