TB9-30530

RAD File / Dossier de la SAR : TB9-30530 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 October 8, 2020 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal Max Berger 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] I allow this appeal. The Appellant, XXXX XXXX XXXX, is a citizen of Pakistan who claims refugee protection on religious grounds as a member of the Shia minority. The Appellant has not applied to file new evidence, and no request was made to hold an oral hearing. Although no transcript is available, I listened to the audio recording of the hearing. Summary of Basis of Claim (BOC) Narrative [2] The Appellant is a Shia Muslim who worked for the municipal government of Lahore as a XXXX XXXX. He started to do volunteer work for the local Shia house of worship (Imam Bargah) in April 2016 to help them XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Scholars said good things about him over loudspeakers at Friday prayers which could be heard by people standing outside. As a result, he came to the attention of a militant Sunni group, the Sipah-e-Sahaba (SSP). Militants who identified themselves as belonging to this group began to threaten him over the phone in May 2016. Although he complained to the police, nobody was arrested. He also received a call from the Taliban on June 18, 2016 threatening him because he was an active Shia who did good work from his Imam Bargah. The Appellant was stopped, insulted and beaten on July 3, 2016. His complaint to the police did not lead to any arrests. Colleagues at work began to shun him when Sunnis spoke out against him. He then took a leave of absence and went to the United States (U.S.) on XXXX XXXX, 2016. Although he planned to return to Pakistan in February 2017, he did not do so after his family told him about continued threats. Subsequently, his employer advised him in March not to return because they also received threats. A religious decree (fatwa) was issued on April 10, 2017 which accused him of being an infidel. Subsequently, rocks were thrown at his house by a Sunni mob on April 19, 2017. The Appellant retained the services of an agent who assisted him to cross the Canadian border without inspection on XXXX XXXX, 2017. He did not claim asylum in the U.S. Refugee Protection Division (RPD) Reasons for Decision [3] The determinative issues for the RPD were credibility, subjective fear, and an internal flight alternative (IFA). It rejected the claim for the following reasons: i) The Appellant is not credible with respect to material aspects of his claim in Pakistan; ii) The Appellant has not likely been targeted by the SSP or by the Taliban for volunteer work at the Imam Bargah because the leader of the congregation was not threatened, despite having a higher public profile; iii) The Appellant continued his work with the Imam Bargah because he was not likely threatened, as alleged; iv) Due to credibility concerns, little weight was given to affidavits from family members and from a friend, letters from his doctors, a statement from the leader of the Imam Bargah, the fatwa and a police report; v) The Appellant has a viable IFA in Hyderabad or Islamabad; vi) The Appellant can freely practice his Shia faith upon return to Pakistan without facing a serious possibility of persecution; and vii) The Appellant's failure to claim in the United States (U.S.) is indicative of a lack of subjective fear and undermines his credibility. Grounds for the Appeal [4] The Appellant submits that the RPD's decision should be set aside for the following reasons: i) The RPD erred in its credibility findings concerning his role as a volunteer at the Imam Bargah; ii) The RPD erred by drawing an adverse credibility inference from his failure to amend his BOC narrative to include events which took place after it was submitted; ii) The RPD erred in dismissing the Appellant's corroborative evidence; iii) The RPD erred in determining that the Appellant has a viable IFA in Islamabad and Hyderabad; and iv) The RPD erred in finding that the Appellant lacks subjective fear because he did not seek asylum in the U.S. Summary of Refugee Appeal Division (RAD) Reasons for Decision [5] The determinative issues are credibility and subjective fear of persecution. Although the RPD was correct that the Appellant failed to include all important facts in the BOC narrative and that he did not reasonably explain his failure to claim asylum in the U.S., these are not determinative issues. His account was plausible, his testimony was consistent, and reliable supporting documents were filed, including medical and police reports. When all of the evidence is considered together, there are insufficient reasons to doubt the truthfulness of his testimony and the reliability of the supporting documents. Evidence in the National Documentation Package (NDP) supports the conclusion that State protection and internal relocation are not viable solutions to the risk. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Submissions by Counsel Credibility [8] The RPD accepted that the Appellant did volunteer work at the Imam Bargah distributing food and collecting donations, but concluded that there is no evidence that this put him at risk. His relatives have not been targeted and they are able to practice their faith freely. The RPD did not accept that he is at risk because of his work XXXX XXXX XXXX of the Imam Bargah because he continued this work there after he began receiving threats in May 2016. He only stopped after the July 3, 2016 attack. In particular, he continued to work after the Taliban threatened to kill him on June 18, 2016 if he did not cease his Shia activities. According to counsel, the RPD ignored the Appellant's reasonable explanation that he only stopped after he was assaulted. The RPD erred by speculating about the strength of the Appellant's religious convictions and what was reasonable under the circumstances. The situation was progressive. [9] The RPD concluded that the Appellant was not targeted after his name was publicized on a loudspeaker at Friday prayer because the leader (the alama) did the administrative work himself before the Appellant arrived, but he had not been targeted. As a religious scholar, he was at greater risk due to a higher profile. Counsel submits that the RPD erred by drawing this implausibility finding without knowing whether the alama had also received threats. The RPD failed to provide a clear explanation based on the evidence to justify this conclusion. It is difficult for a decision-maker in Canada to predict how terrorist organizations in Pakistan will think and act. In addition, the Appellant's situation was different from that of the alama because he was publicly praised for having computerized records which led to an increase in donations. Documentary evidence shows that the SSP and the Taliban have been targeting ordinary Shiites.2 The RPD made selective use of information in the National Documentation Package (NDP). Failure to mention important corroborating evidence is a reviewable error. [10] The RPD erred by drawing an adverse credibility inference from the Appellant's failure to update his BOC narrative after it was submitted on June 13, 2017 by mentioning threats to his family. Counsel submits that the Appellant was under no obligation to update the narrative concerning events which took place after the BOC was signed. This does not concern new evidence because the facts are stated in statements received from the alama and from the Appellant's family. A July 2017 affidavit from his father indicates that the family has been receiving threatening phone calls and has been facing problems since the Appellant left the country. A statement from his brother states that their house was attacked with rocks. Because this information was before the RPD, the BOC narrative did not need to be amended to repeat it. The RPD Ignored Supporting Evidence [11] According to the RPD, the corroborative evidence from family and friends is untested and comes from sources which are not neutral. Police reports are not based on the personal knowledge of witnesses, but rely on what the Appellant told them. Fraudulent documents are widely available in Pakistan. Some police accept bribes to draft false statements. [12] Counsel submits that the RPD must consider the supporting corroborative documents before making credibility findings, not afterwards. If the RPD had concerns about the authenticity of the police reports, the issue should have been raised at the hearing. Rejecting evidence from family and friends because it is self-serving is an erroneous approach. Evidence cannot be discounted simply because it comes from a relative. [13] Counsel submits that the RPD erred by failing to consider the psychological assessment adequately. It concluded that the Appellant is not credible and then proceeded to discount it. It should have taken the report into consideration when making credibility findings. Internal Flight Alternative [14] Counsel submits that the RPD erred in its IFA assessment by failing to consider the national presence and influence of the SSP and Taliban in the context of registration requirements when considering the first branch of the applicable IFA test.3 In addition, the documentary evidence reveals that the proposed locations are not safe for Shias. As a result, it would not be reasonable for him to relocate there in accordance with the second branch of the test. Failure to Claim Asylum in the U.S. [15] Counsel submits that the Appellant had a reasonable explanation for not having claimed asylum in the U.S. He initially planned to return to Pakistan, but the situation deteriorated over time. Secondly, the political environment in the U.S. was not favourable for asylum seekers. Third, this is not a determinative issue. Country Conditions [16] Sources differ concerning what percentage of the Pakistani population is Shia. According to a U.S. report, they make up about 25% of the Muslim population.4 Another document estimates that the Shia consist of between 10 and 15%.5 The situation for Shia Muslims where the Appellant comes from in Lahore is extremely serious. As is the case elsewhere in Pakistan, Shias have been systematically targeted and killed by Sunni militants who do not accept that they are Muslims.6 Examples of Shias who have been targeted include doctors, lawyers, judges, teachers, journalists, bankers, clerics, company chief executives and police officers. Although the media only report the killings of those with a high public profile, less prominent people have also been killed, including shopkeepers and people who attend Shia places of worship or participate in processions.7 The same source states that there is a large population of Islamic militants in Lahore, including the Taliban. Threats against Shias are daily occurrences in that city. Phone calls, letters and text messages are common ways of threatening Shias. The problem is frequent and growing. The government has not taken sufficient steps to curb violence against Shias. Because the government lacks the political will, its response to violence against members of this community have been grossly inadequate. Police do not attempt to investigate attacks against Shia. Because the government is unwilling to act against influential sectarian organizations, police and the judiciary do not prosecute them. RAD Assessment [17] Some of the RPD's conclusions are valid. Important information relating to the risk should be outlined in the BOC narrative. The version presented by the Appellant leaves the impression that he began his volunteer work with the Imam Bargah in April 2016 by XXXX XXXX XXXX. The Appellant's testimony that his volunteer work actually started earlier leads to the question of whether he was embellishing the nature of his involvement with the house of worship. This should have been avoided by providing a factually accurate account of his volunteer work in the BOC narrative. [18] The RPD was also correct to draw an adverse inference from the Appellant's failure to claim asylum in the U.S. The port stamp in his passport shows that he was admitted to the U.S. on XXXX XXXX, 2016 for a limited period until XXXX XXXX, 2016.8 Notwithstanding the fact that he lost his lawful right to be in the U.S. at that time, he did not come to Canada to claim asylum until XXXX 2017, about 8 months later. Although he testified that he planned to return to Pakistan in February 2017, this was 6 months after he lost his temporary residence status. Despite risk detention and removal from the country, he did not inquire into how he could find a durable solution to the risk in the U.S., notwithstanding having been threatened and beaten in Pakistan by members of a powerful militant group. As the RPD noted, the Appellant arrived in the U.S. when Barak Obama was president, not Donald Trump. Although the RPD was correct to draw an adverse inference from the Appellant's failure to claim asylum in the U.S., this is not a determinative issue. [19] The RPD is also correct to conclude that the psychological report does not establish the credibility of his narrative. Although the RPD did not dispute the diagnosis, it was not satisfied that his psychological condition can be attributed to the events as described by the Appellant. Counsel's characterization of the reasons for decision is not fair, given that the RPD did not dispute the diagnosis. Although the report can be helpful in assessing problems with testimony, it does not, in itself, lead to the conclusion that the Appellant was telling the truth to the psychologist. In this sense, the document is neutral. [20] Counsel's submissions on the other issues are substantially correct. Given that the Appellant filed evidence from family members concerning threats which they received after the BOC was filed, it was not necessary to amend the BOC narrative to repeat this information. The RPD did not have an adequate factual basis to conclude that the alama had not received threats himself. In addition, the Appellant worked for the municipal government as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. It is plausible that the SSP and Taliban considered him to be a greater threat than a religious teacher. His situation can also be distinguished from family members. Given the frequent nature of threats against Shia in Pakistan, the Appellant's continued work until he was assaulted is not implausible. [21] The legitimate adverse factors which were identified are not sufficient to make a finding of a general lack of credibility. As a result, the supporting documentary evidence cannot be dispensed with on this basis, especially given their relevance and potential probative value. [22] The Appellant filed evidence from the municipality which confirms his work as a XXXX XXXX.9 A statement from a Shiite congregation in Toronto attests that he is an active member of their community.10 A letter from the alama of his Imam Bargah in Pakistan indicates that the Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX As a result, he began to receive threats from the SSP and the Taliban.11 Another letter from him states that the SSP have been calling the Imam Bargah and asking about the Appellant.12 Medical reports show that the Appellant was treated for multiple injuries on July 3, 2016.13 A police reports substantiates that the Appellant was attacked and injured on July 3, 2016.14 He had previously complained to the police on May 30, 2016 about threats which he had received.15 An affidavit from his father confirms that the Appellant was forced to leave the country because of many problems he had for being a Shia.16 A letter from his employer advises him not to come back to work because they were also receiving threatening calls from the SSP.17 An affidavit from his brother states that the family's house was attacked by a group of Sunni youth who were throwing stones.18 A friend wrote that his brother informed him the that the Appellant left the country because he was receiving death threats from an extremist group.19 A fatwa was issued against the Appellant after he left Pakistan which states that he should not be allowed to return to the country because he is an infidel and that his family should be shunned.20 [23] The adverse factors which were correctly identified are not determinative in nature. The RPD did not identify problems on the face of any of the supporting documents. The Appellant's account is not inherently implausible and is supported by multiple sources, including medical and police reports. When all of the evidence is considered together, there are insufficient grounds to rebut the presumption that the Appellant's testimony is true and that the corroborative documents are reliable. I accept his allegations of fact as being likely true. [24] The documentary evidence provides an objective basis to support the conclusion that State protection is not available to him. It makes it abundantly clear that the government lacks the will to provide adequate protection for Shias who have been threatened by militant Sunni groups. [25] The SSP has a national presence, and has influence with police who are also vulnerable to corruption. The agents of persecution could likely use State resources to locate the Appellant if they were sufficiently motivated to do so. The question becomes whether his profile meets this threshold. His work for the municipal government as a XXXX XXXX and his assistance in XXXX XXXX at an Imam Bargah establishes a profile which is higher than the average volunteer or congregant. Although it is not possible to read the minds of those members of the SSP who have targeted him, there is sufficient evidence to conclude that his risk profile constitutes a sufficient threat to their interest that he would likely be pursued and persecuted in Hyderabad or Islamabad, especially given the issuance of a fatwa. He does not have a viable IFA in the proposed locations. Religion creates a nexus between his situation and the Convention relating to the Status of Refugees.21 The Appellant has a well-founded fear of persecution in Pakistan. CONCLUSION [26] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) "H. Shepherd" H. Shepherd October 8, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Exhbit RPD-1, RPD Record, Exhibit 3, Archive - National Documentation Package (NDP) for Pakistan (29 March 2019), tab 12.5: How Shia Muslims differ from Sunnis; treatment of Shias, particularly in Lahore and Multan; government response to violence against Shia Muslims (2010-December 2013). Immigration and Refugee Board of Canada. 9 January 2014. PAK104713.E. 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A). 4 Exhbit RPD-1, RPD Record, Exhibit 3, Archive - National Documentation Package (NDP) for Pakistan (29 March 2019), tab 12.1: Pakistan. International Religious Freedom Report for 2017. United States. Department of State. 29 May 2018. 5 Exhbit RPD-1, RPD Record, Exhibit 3, Archive - National Documentation Package (NDP) for Pakistan (29 March 2019), tab 12.16: Pakistan: Shi'a and Hazaras. World Directory of Minorities and Indigenous Peoples. Minority Rights Group International. June 2018. 6 Exhbit RPD-1, RPD Record, Exhibit 3, Archive - National Documentation Package (NDP) for Pakistan (29 March 2019), tab 12.5: How Shia Muslims differ from Sunnis; treatment of Shias, particularly in Lahore and Multan; government response to violence against Shia Muslims (2010-December 2013). Immigration and Refugee Board of Canada. 9 January 2014. PAK104713.E. 7 Ibid. 8 Exhibit RPD-1, RPD Record, p. 57. 9 Ibid., pp. 68-71. 10 Ibid., p. 72. 11 Ibid., p. 74. 12 Ibid., p. 92. 13 Ibid., pp. 77-78. 14 Ibid., p. 80. 15 Ibid., p. 76. 16 Ibid., p. 82. 17 Ibid., p. 85. 18 Ibid., p. 87. 19 Ibid., p. 88. 20 Ibid., p. 84. 21 United Nations, Treaty Series, vol. 189, p. 137. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-30530 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