TB8-27370

RAD File / Dossier de la SAR : TB8-27370 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 November 26, 2020 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal Cemone Morlese 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 (the Appellant) is a citizen of Pakistan. He claims that he is a Convention refugee/person in need of protection in Pakistan. The family of his former fiancée, and the family of his girlfriend in Pakistan, seek to harm him. The father of his girlfriend is a member of a terrorist organization. The Refugee Protection Division (RPD) denied the claim, and the Appellant has appealed to the Refugee Appeal Division (RAD). DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant, born in Sialkot, Pakistan on XXXX XXXX XXXX 1996. He bases his claim on the following. [4] He was a student in XXXX XXXX who XXXX as a hobby. In XXXX 2016, his family informed him that they had arranged a marriage with his cousin, XXXX. The Appellant had not seen her since she was a child. He was studying XXXX XXXX at a college. He fell in love with XXXX, whom he met in college. In XXXX 2016, he dissolved the engagement with XXXX. That same month, XXXX father and two other men showed up at a XXXX XXXX where the Appellant was working. They beat him. This was reported to the police. [5] The Appellant continued his relationship with XXXX. However, she informed him that her father was a member of Lashkar-e-Jhangvi (LeJ). Further, her father did not approve of the relationship, as he wanted to choose a spouse for her. Her Her father called his father and threatened him. His father was angry. On XXXX XXXX XXXX 2016, the Appellant and XXXX were leaving school, and her father found them. Her father pulled at XXXX. His friends beat the Appellant. The Appellant went to the hospital and reported this to the police. [6] The Appellant went into hiding at Lahore. Then, in XXXX 2016, the Appellant went to study XXXX XXXX in China. XXXX father seemed to relent in his pressure on XXXX, and she asked the Appellant to send his parents to her home to ask about marriage. His parents went to her home, and his father was assaulted. He sought medical treatment and reported the matter to the police. [7] XXXX died on XXXX XXXX XXXX 2017; her parents blame the Appellant for his death. [8] The Appellant came to Canada on XXXX XXXX XXXX 2020 for a vacation. However, he learned that XXXX had refused an arranged marriage and was beaten. Again, her father threatened the Appellant. Instead of returning on XXXX XXXX XXXX 2020 as planned,1 the Appellant stayed in Canada and claimed protection. The RPD denied the claim, and the Appellant has appealed this decision to the RAD. [9] On October 13, 2020, the RAD provided notice that it would consider the IFAs of Karachi and Lahore. Further, the Appellant was given the opportunity to provide submissions on the National Documentation Package (NDP) dated March 31, 2020, which was in force at the time of writing the decision. He was also given extensions of time to provide them. The Appellant provided detailed submissions that demonstrated that he had considered the documents in the current NDP. These submissions are on record, and I have considered the articles noted in them. NEW EVIDENCE AND ORAL HEARING [10] The Appellant has not submitted any new evidence. However, in his written statement in his Appeal Record, he has requested an oral hearing. As there is not any new evidence on record, the RAD does not have jurisdiction to hold a hearing.2 ANALYSIS [11] Further, as indicated above, in keeping with the "Policy on National Documentation Packages in Refugee Determination Proceedings", 3 the RAD has considered the most recent NDP at the time of writing the decision. The Appellant was provided notice and has provided detailed submissions indicating that he has considered the NDP. Test for IFA [12] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam.4 (1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject 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. (2) Moreover, 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 claim, for him to seek refuge there.5 [13] Both prongs must be satisfied to find that the 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 he does not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose taking into account the Appellant's personal circumstances. An IFA must be a realistic and attainable option. An appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there [14] An IFA is an integral part of the definition. If there is sufficient evidence that there is an IFA, the Appellant is not a Convention refugee. Is there a serious possibility of persecution in Karachi? [15] The Appellant claims that the family of XXXX, his former fiancée, and the family of XXXX, his girlfriend, are the agents of persecution. XXXX father is a member of the LeJ. [16] Documentary evidence confirms that large urban centres such as Karachi have ethnically and religiously diverse populations and offer some anonymity for people fleeing violence by non-state actors.6 The UK Home Office states that Pakistan offers viable IFAs for people fleeing non-state actors and notes that there is freedom of movement as well as few legal limitations on employment or education.7 Is states that: ... Pakistan's size and diversity generally allows for reasonable relocation options depending on the person's individual circumstances and the security situation in the area of relocation.8 [17] I have considered the risks from the agents of persecution. XXXX family [18] Karachi is hundreds of kilometres away from Sialkot; both cities are on opposite ends of Pakistan.9 XXXX family lives one hour away from the Appellant's parents' home in Sialkot.10 Even when the Appellant was in Lahore, only two hours from Sialkot,11 they were unable to find him. The level of threat was limited to phone calls.12 The Appellant testified that he was in complete hiding in Lahore; however, he was there for about four months which is a prolonged period of time, and Lahore is close to Sialkot. The geographic distance between Karachi and Sialkot is a factor that weighs against the likelihood that the agents of persecution might find the Appellant. [19] I have considered the likelihood that XXXX family blames the Appellant for her death. In so doing, I am not considering the motivation for the agents of persecution. Rather, this is a finding of fact regarding the likelihood that the family holds the Appellant entirely responsible for her death. The Appellant testified that the family blamed the tension of his rejection as a cause of her death.13 As acknowledged by the Appellant, the Appellant's testimony about XXXX cause of death may be outside his experience and may be unreliable.14 While the Appellant may have an honest belief that she killed herself, the death certificate shows that pneumonia and ischemic brain injury were the cause of death.15 The evidence that the Appellant's perception that he was blamed for the death is based on what he heard from her family,16 while the death certificate states that the death was due to natural causes. The affidavit of XXXX XXXX, the Appellant's father, states that her parents "partially" blame the Appellant.17 I agree with the Appellant that his allegation that she killed herself should not be the basis of the finding that he is not credible; however, it is not a reliable statement in the context of a death certificate that clearly states otherwise. Further, while he argues that it is "not implausible" that the parents blame him for her death, the test is not whether it is implausible but whether it is more likely than not that they do so. The evidentiary basis that they do is the Appellant's hearsay account in the context of the death certificate that states the cause is not suicide. I find that it is more likely than not that the Appellant believes that he is blamed for her death and, considering his father's affidavit, that her parents may have expressed that he is one of the reasons for it. However, there is insufficient evidence to conclude that her parents hold him entirely responsible for a suicide. [20] It is speculative that XXXX parents would still seek revenge over four years after the engagement was dissolved and over three years since her death. The Appellant has not heard from them for years. He testified that people told him while he was in China to not go to Pakistan because he was blamed for the death,18 but he did not testify that he heard from XXXX family that they blamed him. There is insufficient evidence to conclude that the Appellant personally received threats regarding XXXX death; rather, he learned of them. This is a weaker evidentiary basis to conclude that it is more likely than not that they occurred, and it is not sufficient to find that they present a serious possibility of harm. The context, the wording, and direct evidence on this point is not on record. The evidence of the most recent threats that the Appellant received from XXXX family places them in Lahore in 2016, almost four years ago. I find that the passage of time and the lack of clear evidence weigh against a finding that it is more likely than not that XXXX parents find that the Appellant is entirely responsible for her death and still seek revenge. Rather, the risk is speculative and not sufficient to find there is a serious possibility of it leading to serious harm in Karachi. [21] The Appellant argues that he would continue his XXXX in the hopes of building a career. This includes posting pictures on Facebook. The agents of persecution could find him that way. However, the Convention does not protect a particular career choice. It is designed to protect fundamental human rights.19 This includes an adequate standard of living;20 it does not include a specific career. Given his age, education, and linguistic ability, it is reasonable that this Appellant could find employment to maintain an adequate standard of living. Similarly, while a refugee claimant is not expected to go into hiding, participating in social media is not an internationally recognized fundamental human right. While living in Karachi may mean that the Appellant should not promote himself as a XXXX on Facebook, I do not equate this measure with a finding that he must go into complete hiding to live there. Further, not participating in social media and not promoting a XXXX career in Karachi is not the serious harm envisaged by the Convention. XXXX family [22] The Appellant claims that XXXX father is a member of the LeJ. Her father does not approve of their relationship because he wants to choose a husband for her. [23] I have considered that the weight of the evidence leads to the conclusion that he is a member of the LeJ. However, even if he is a LeJ member, there in not sufficient credible evidence that his disapproval of the relationship with XXXX could create a serious possibility of persecution to the Appellant in Karachi. The likelihood of persecution must be considered in the context of location and the lapse of time that has passed. [24] The Appellant argues that there is not documentary evidence that the LeJ only seeks the Shia;21 however, it is clear from the documentary evidence that, while they may target other religions, eliminating the Shia is the reason for their existence and their focal point. It is their cause. They are a group based on religion. Further, there is insufficient evidence that the Appellant has been targeted by the LeJ in a widespread manner. While the evidence may lead to a conclusion that XXXX father may be a LeJ member, there is not sufficient evidence to conclude that the Appellant is targeted by the LeJ as a whole in the same manner they would target him for being a Shia. The Appellant is a Sunni Muslim, and while XXXX father may have connections with violent terrorists, the Appellant's beliefs are not the target of this group. There is less likelihood that he would be sought in a city that is a considerable distance from XXXX father. [25] Similar considerations regarding the lapse of time also apply to these agents of persecution. While XXXX father may have threatened the Appellant in 2017, and he testified that XXXX has continued to tell him that her father would kill him,22 there has been a significant amount of time since the Appellant was in Pakistan. [26] Further, the same considerations of location apply for this agent of persecution as well. XXXX father lives in Sialkot as well,23 a considerable distance from Karachi. The distance between the cities is a factor that weighs in favour of an IFA in Karachi. [27] The Appellant argues that the LeJ have a presence in Karachi and pose a risk; he would have to go into complete hiding to relocate to Karachi. The LeJ are present in Karachi; however, the crime and the level of sectarian violence has reduced.24 [28] The Appellant's Counsel argued at the RPD hearing that documentary evidence showed that the Appellant would have to register to rent property.25 In addition, he stated that the LeJ has links with intelligence and that the government gives safe shelters to them.26 I find that this evidence is too remote to show a likelihood of persecution. The article about registering tenancies is from 2009; it is outdated. That the LeJ's government links would give them access to information about the Appellant is speculative. This is in the context of the remoteness of the likelihood that the LeJ as a whole would target him; the Appellant's claim is about a personal grievance and not being part of a group that the LeJ targets. State Protection [29] I agree that there are issues with state protection. The police are not effective, and there is corruption.27 But in this appeal, there is less of a need for state protection, as there is less of a likelihood of persecution. I find that the issues relating to state protection are not sufficient to find that the Appellant is at risk for persecution in Karachi. Is it reasonable for the Appellant to relocate in Pakistan? [30] The Appellant testified that the main reason that it would not be reasonable for him to relocate is that the agents of persecution could find him. I have addressed this portion of his claim. I must now consider if the Appellant would undergo undue hardship to relocate. [31] The Appellant is a young, highly educated man. He has post-graduate studies from a country outside of the country of his birth. He is sophisticated. He speaks four languages, including the national language,28 Urdu, as well as Punjabi, Mandarin and English.29 [32] The Appellant has argued that the new NDP shows that there is a level of crime in Karachi. In so doing, he relies on an article by the International Crisis Group which is discussed in this decision as well as the OSAC "Pakistan 2019 Crime and Safety Report: Karachi".30 Evidence regarding the level of crime is mixed. While it is stated that there is a high level of violent crime, there is also evidence that the level of violent crime has decreased.31 The Department of Foreign Affairs and Trade (DFAT) reported that sectarian violence has decreased in the context of a moderate level of overall violence.32 It defines moderate risk as "sufficient incidents to show a pattern of behaviour", but not a strong pattern of incidents.33 The government has attempted to stem the crime in Karachi by introducing the paramilitary Rangers to focus on a reduction in targeted killings and extortion, while the rates of street crime, gang rape and kidnappings are still high.34 This type of violence is a generalized violence, and the Appellant has not shown how it would affect him in a manner that would create an undue hardship for his relocation to Karachi. Similarly, while there is political and sectarian violence, the Appellant has not shown how he would be affected by it. The Appellant is a Sunni Muslim; this religion constitutes 85 to 90% of the population.35 In other words, he has not shown how this would affect him and his ability to live in Karachi. [33] Further, while health care may be better for those who can afford better, it is free,36 and there is insufficient evidence to conclude that the Appellant has any specific medical issues that would lead him to require more than what is available in Pakistan. [34] The Appellant argues that employment is an issue in Pakistan.37 However, according to the World Factbook,38 the unemployment rate for people in the Appellant's age category is only at 8.6%. Karachi is Pakistan's "economic powerhouse".39 While the Appellant might not be able to promote his XXXX career, I do not find that this is an undue hardship that would render relocation to be unreasonable. The finding that employment is not a barrier to relocation is consistent with the Appellant's exceptional education and with the fact that he has lived in different countries. [35] The Appellant has also argued that housing will be an issue and has quoted an article by the International Crisis Group, Asia.40 However, this quote focuses on the housing challenges for the poor. While some families have more difficulties acquiring property, there is insufficient evidence that the Appellant would not be able to find a place to live. The article also states that owners want to rent to people within their own ethnic group,41 but, again, the Appellant has not shown that he would not be able to acquire a place to live. [36] I have considered that the Appellant does not have family in Karachi. However, the Appellant has travelled and lived internationally. I find that, in this case, his gender is a factor that supports a finding that it is reasonable. According to the UK Home Office,42 relocation for women may depend on their family. It states: Internal location for a woman may be reasonable in some cases depending on their family, social and educational situation. [37] There may be additional challenges for women; however, given that the Appellant is a male, he would not face them. Further, this is not a case where he would have to avoid his family to evade detection from the agents of persecution; rather, his family does not live in Karachi. I do not find that the lack of family in Karachi presents a barrier to relocation. Summary of IFA in Karachi [38] There is insufficient evidence to find that there is a serious possibility of persecution in Karachi. Further, given the Appellant's characteristics, I find that there is not undue hardship for him to relocate and live in Karachi. Is the Appellant a person in need of protection in accordance with Section 97 of the Immigration and Refugee Protection Act (IRPA or Act)? [39] I note that the same considerations for an IFA under section 96 also apply to section 97 of the Act. [40] In addition, I note that there is also insufficient evidence that the Appellant is a person in need of protection. The burden of proof to establish one is a person in need of protection is higher than that for a Convention refugee. The standard to establish that one is a Convention refugee, in accordance with section 96 of the Act, is whether there is more than a mere possibility; the standard to establish that one is a person in need of protection, in accordance with section 97 of the Act, is whether, on a balance of probabilities, one is in need of protection. One must show that there is a mere possibility of persecution under section 96. Section 97 stipulates that one must show that there is a danger of torture; alternatively, that there is a risk to one's life or a risk of cruel and unusual treatment or punishment. The level required to establish a sufficient risk is higher under section 97 than it is in section 96. Further, the burden of proof is higher. As there is insufficient evidence to establish that the Appellant faces more than a mere possibility of persecution in Pakistan, there is also insufficient evidence that he is a person in need of protection in Pakistan. CONCLUSION [41] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Patricia Broad Patricia Broad November 26, 2020 Date 1 Exhibit RPD-1, RPD Record, at p. 123. 2 Subsection 110(6) of the Act. 3 https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/national-documentation-packages.aspx 4 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.). 5 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 6 NDP for Pakistan (March 31, 2020), item 1.13, Australia: Department of Foreign Affairs and Trade, "DFAT Country Information Report: Pakistan", February 20, 2019, at p. 66. 7 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.12, UK Home Office, "Country Policy and Information Note, Pakistan: Background information, including actors of protection, and internal relocation", July 2017, at paras. 12.1.2 and 13.1.3. 8 NDP for Pakistan (March 31, 2020), item 1.12 (ibid.), at para. 2.3.2. 9 NDP for Pakistan (March 31, 2020), item 1.3, Larousse, "Pakistan, L'Encyclopédie en ligne". 10 Transcript of the RPD Hearing, at p. 11. 11 Transcript of the RPD Hearing, at p. 18. 12 Transcript of the RPD Hearing, at p. 20. 13 Transcript of the RPD Hearing, at p. 28. 14 Exhibit P-2, Appellant's Record, Appeal Memorandum, paragraph 21, at pp. 21-22. 15 Exhibit RPD-1, RPD Record, at p. 164. 16 Transcript of the RPD Hearing, at p. 28. 17 Exhibit RPD-1, RPD Record, at p. 144. 18 Transcript of the RPD Hearing, at p. 29. 19 Canada v. Ward [1993] 2 SCR 689; Hathaway, James, The Law of Refugee Status, 2014: Cambridge University Press, starting at p. 193. 20 Hathaway (ibid), at p. 228. 21 Exhibit P-3, Response to Member's Direction, dated November 16, 2020. 22 Transcript of the RPD Hearing, at p. 33. 23 Transcript of the RPD Hearing, at p. 23. 24 NDP for Pakistan (March 31, 2020), item 1.13 (supra footnote 6), at p. 23; NDP for Pakistan (March 31, 2020 and April 30, 2018),item 1.22, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, "Pakistan: COI Compilation", August 2016, at p. 62. 25 The Article is located at p. 197 of the Exhibit RPD-1, RPD Record. 26 Counsel quoted item 12.5 from the NDP Pakistan (April 2018) at pp. 11-12. 27 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.12 (supra footnote 7). 28 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.12 (ibid.), at para. 6.3.1. 29 Exhibit RPD-1, RPD Record, at p. 27. 30 NDP Pakistan (March 31, 2020) item 4.9, International Crisis Group, "Pakistan: Stoking the Fire in Karachi, Asia Report N°284", February 15, 2017; and item 7.10, United States Overseas Security Advisory Council, "Pakistan, 2019 Crime and Safety Report: Karachi", July 2, 2019. 31 NDP for Pakistan (March 31, 2020), item 7.10 (ibid.), at p. 1 32 NDP for Pakistan (March 31, 2020), item 1.13 (supra footnote 6), at p. 37. 33 NDP for Pakistan (March 31, 2020), item 1.13 (ibid.), at p. 6. 34 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.12 (supra footnote 7), at para. 9.2.8. 35 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.5, United States, Central Intelligence Agency, "?Pakistan: The World Factbook", February 7, 2020, at p. 3. 36 NDP for Pakistan (March 31, 2020), item 1.13 (supra footnote 6), at pp. 11-12. 37 Exhibit P-3, Response to Member's Direction, dated November 16, 2020, at paragraph 17. 38 NDP for Pakistan (April 30, 2018), item 1.5; according to the same source in the current NDP, it is 8.2%. 39 NDP for Pakistan (March 31, 2020), item 4.9, International Crisis Group, "Pakistan: Stoking the Fire in Karachi, Asia Report N°284", February 15, 2017, at p. 3. 40 NDP for Pakistan (March 31, 2020), item 4.9 (ibid.). 41 NDP for Pakistan (March 31, 2020), item 4.9 (ibid.), at p. 7. 42 NDP for Pakistan (March 31, 2020 and April 30, 2018), item 1.12 (supra footnote 7), at para. 2.3.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27370 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