TB5-11574

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 File No. / N° de dossier de la SAR : TB5-11574 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 26, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dalwinder Hayer Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) is a citizen of Pakistan, and he appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant did not submit new documents in support of the appeal, and did not request a hearing under the provisions of section 110(6) of the Immigration and Refugee Protection Act (the Act or IRPA). [3] The Appellant requests that the Refugee Appeal Division (RAD) allow "...a new hearing by a different member" at the RPD. DETERMINATION [4] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and finds that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [5] The Appellant alleged before the RPD that he is from XXXX, Pakistan and he had been working in Dubai since 2007. In Dubai, some acquaintances introduced him to the Shia sect and he converted in 2010. In XXXX 2013, a former schoolmate saw the Appellant coming from an Imam Bargah in XXXX. The Appellant told his classmate about his conversion from the Sunni to Shia sect of Islam. A few days later, an Imam and a few other people came to the Appellant's house and told him to recant his conversion; otherwise, he may be subjected to the death penalty. The Appellant returned to Dubai. In XXXX 2013, he returned to Pakistan because his wife was fearful of the people enquiring about him. He relocated his family within XXXX, and went back to Dubai. In XXXX 2014, the Appellant returned to Pakistan during Ramadan and he was threatened and assaulted. [6] The Appellant had already obtained visas to the USA and Canada in XXXX and XXXX 2014. The Appellant left Pakistan in XXXX 2014, went to the USA and, after a stay of three months, arrived in Canada towards the end of XXXX 2015, and claimed protection. [7] This claim was heard on June 4, 2015, and the RPD rejected the claim by written reasons dated June 18, 2015. ROLE OF THE RAD [8] The Appellant did not make submissions regarding the role of the RAD in reviewing the decisions by the RPD. The Federal Court decision, Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [9] The case law is still evolving, pending decision of the Federal Court of Appeal regarding the role of the RAD, but at this time Huruglica appears to be widely accepted and applied. Thus, guided by Huruglica, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Issues [10] The Appellant's issue, in his words, is: "The Member failed to provide sufficient reasons for why she did not believe the applicant was a legitimate convert to Shia Islam and the member made decision without regard to material before her."2 [11] I will rephrase the issue as: is the Appellant a Convention refugee or a person in need of protection? Analysis [12] The RPD found that the Appellant was not credible based on several errors, omissions and inconsistencies. Guided by Huruglica, the RAD recognizes and respects the RPD's credibility findings where it enjoyed a particular advantage and the RAD has conducted its own assessment of the evidence. [13] In the RAD's opinion, the RPD's determination is supportable based on credibility analysis. The RAD notes that the RPD questioned the Appellant about two possible internal flight alternatives in Lahore and Multan.3 The RPD could have made a finding based on a viable IFA, but did not. Therefore, even though there is sufficient credible evidence regarding IFAs, the RAD is not going to make a finding on this issue. [14] The RAD also notes that the Appellant provided a new narrative only after the RPD panel had declared that she had no more questions.4 To the credit of the RPD, the panel accepted and considered the new narrative, and asked a few more questions. In fact, the RPD noted in its reasons at paragraph 15: ...I have not made any negative inferences about the claimant's credibility on this basis. I gave the claimant the benefit of the doubt that he believed he had submitted this version to the Immigration and Refugee Board (the "Board"), so I made all credibility findings in reference to the second narrative rather than by comparing the two. [15] The RPD provided cogent and transparent reasons for disbelieving the Appellant regarding his allegations of persecution due to his alleged conversion. If the Appellant's stories regarding his persecution due to alleged conversion are deemed sufficient to impugn his credibility, the RPD is not required to refer to each and every piece of evidence or issue. Conversion of one's religion is a serious matter. The Appellant testified that he changed the sect of his religion in 2010. The Appellant would be approximately 47 years old at that time. Religion is very personal and changing it requires thoughtful considerations. One would consider that is particularly so in countries like Pakistan where religious intolerance is quite high and minorities are often victims of harassment and, in extreme cases, persecution. [16] The Appellant's own evidence5 shows large numbers of Shia who have lost their life at the hands of extremists Sunni groups. The national documentation package provided by the board has several articles confirming sectarian wars between Shia and Sunni, and mistreatment of Ahmadi, Christian and Hindu minority groups. [17] Objective documentary evidence shows : There were reports of societal abuses and discrimination based on religious affiliation, belief, and practice. Societal intolerance persisted, including through mob attacks and actions by violent extremists. Violent extremists in some parts of the country demanded all citizens follow their authoritarian interpretation of Islam and threatened brutal consequences if they did not. They also targeted Muslims who advocated tolerance and pluralism. There were scores of attacks on Sufi, Hindu, Ahmadi, Shia, and Christian gatherings and religious sites, resulting in numerous deaths and extensive damage.6 [18] The Appellant submitted that conversion from Sunni to Shia in Pakistan will be considered as blasphemy. In evidence, he included three articles.7 Obviously the Appellant sincerely believes that the conversion has serious implications in Pakistan. Therefore, it is not unreasonable to consider that a decision to convert from the majority sect of Islam to a minority sect of Islam will be taken after careful and lengthy deliberations and/or some life altering experiences. [19] The RPD panel asked the Appellant why did he convert, and his response was some friends convinced him to convert, and that Prophet Mohammed was a Shia.8 The RPD panel continued with the questioning as to how this decision was made, which is a serious matter; the Appellant audibly yawned and responded, "they teach me like that."9 [20] The Appellant's knowledge of Shia religion and/or differences between the Shia and Sunni was very minimal. In response to the RPD's question about differences, the Appellant responded "Sunnis don't like them". I would expect a Shia to refer to himself as "us" and not "them" in the sentence above. In fact, the Appellant references the Shia as "they" and "them" a number of times. For example, in the audio recording at: * 21: 30- they do not marry for the 10 days (during Moharram) * 22:00- to show solidarity with them * 22:05- we pray for them [21] He also mentioned Shia self-flagellation rituals. The Shia conduct great processions to mourn the death of Hussein at the time of the Moharram, and during the procession the Shia engage in self-flagellation rituals using swords, method chains, and other instruments. Knowledge of this act is not unique to Shia because of the public nature of processions throughout the countries with Shia population. It is an important part of the Shia religion. [22] Documentary evidence10 shows that "there are differences in ritual, law, theology and religious organization." It is not unreasonable for the RPD or the RAD to expect the Appellant to provide some details about the process of conversion, and/or the differences in the two sects that persuaded the Appellant to convert. The Appellant's testimony11 that "there are differences in proclamation" and "things are almost the same", is not supported by objective documentary evidence. [23] I note that the Appellant's counsel is providing evidence - unsolicited evidence - about the Shia sect of Islam in the Appellant's Memorandum in paragraphs 15 to 34. This evidence was obviously in support of the Appellant's testimony regarding the number of Imams and khalifas in Sunni and Shia sects. This information was not provided to the RAD as new documents to be considered as new evidence pursuant to s. 110(4). The RAD will not consider these paragraphs as evidence. Moreover, this information is not in the Board's extensive documentary package about Pakistan. [24] The RPD asked the Appellant a number of questions about Shia practices and his answers were not sufficient to show, on a balance of probabilities, that he has converted. The Appellant's counsel submitted in the Memorandum that, "It is very likely the applicant is not aware of the fact that this significant variation in traditions and assumed that it was practised by all Shia Muslims. This is especially true has (sic) most of his colleagues in Duabi (sic) were likely Pakistani migrants who practised this version of Shia Islam".12 This, in the RAD's opinion, is a confirmation of the RPD's determination that the Appellant did not provide sufficient credible evidence of his knowledge about the Shia and, therefore, the alleged conversion. [25] Material Omissions: The Appellant's narrative has material omissions, including the alleged gun shots aimed at him. In explanation, the Appellant testified, "just recalled now therefore mention now."13 The Appellant provided two narratives and both times confirmed, under oath, that the information was complete, true and correct. This explanation is not reasonable. Similarly, in response to the RPD's question about why beating was not mentioned, the Appellant's explanations of "no reason" and a little later "just came into my mind"14 are not reasonable. [26] National documentation package item 12.4 states the following regarding Shia in Pakistan: Shi'a During the reporting period, militants and terrorist organizations targeted Shi'a processions and mosques, as well as social gathering places, with impunity. Particularly large bombings occurred at a pool hall frequented by Shi'a in Quetta in January 2013 and on a busload of Shi'a pilgrims returning from Iran in January 2014. Overall, advocacy organizations put the number of Shi'a killed across Pakistan during the past year at close to 700, with over 1000 wounded. The response by the Pakistani government has been grossly inadequate. Police, if present, have been unwilling to stop attackers before people are killed, and the government has not cracked down on the groups that repeatedly target Shi'a. [27] While it is clear that Shia minority members are often targeted, they are not individually targeted. The terrorists target them at Muhharam time to inflict damage to the largest number of individuals. Thus, a risk from terrorists to 45 million persons may be considered as a generalized risk for the Shia. [28] The Appellant initially testified that he is at risk because of his conversion; however, his testimony contradicted that, and he testified "look at incidents. ...Everyday killings of Shia. They do not kill because of conversion, they kill everyone."15 The Appellant continued, "bomb will not recognize converted or Shia". With apparent meaning that all Shia, whether converted or born into Shia faith, are equally at risk. [29] Shortly after that, the Appellant attempted to demonstrate that the risk was not generalized in nature by stating that they are watching his family's movements. [30] The Appellant submits that the RPD provided inadequate reasons in impugning the credibility of the Appellant's conversion from the Sunni sect of Islam to the Shia sect of Islam. I am not persuaded. The RPD considered numerous errors, omissions and inconsistencies in the Appellant's testimony before the RPD, and considered the Appellant's explanation, before arriving at its determination. Having heard the audio recording, as well as having considered the evidence in the record, the RAD is able to confirm the RPD's determination. [31] Documentary evidence16 shows that: Attacks against Shias escalate during the Muslim holy month of Moharram, particularly on Shia processions marking Ashura, the 10th day of Moharram. ...Aside from the incident in Rawalpindi, Ashura passed peacefully in most of the country on account of the security measures put in place by Pakistan's law enforcement authorities. Several suspected militants were arrested in Karachi, and security cameras helped prevent terrorist activity in Lahore. [Emphasis added] [32] Moreover, the International Religious Freedom Report17 also shows that: ...Shia procession in Rawalpindi left 11 people dead and another 80 injured. The Punjab government implemented a two-day curfew and suspended cell phone service in order to maintain law and order. Punjab Chief Minister Shahbaz Sharif created a judicial commission to investigate the incident. [33] It is clear that Pakistan is not always successful in completely eliminating such attacks. The reason is simple; these attacks are conducted by extremists and terrorist groups from the majority Sunni as well as minority Shia. No jurisdiction is immune from such and/or can prevent all attacks from terrorists. Documentary evidence18 shows that "The Lashkar-e-Jhangvi has claimed responsibility for most of the attacks and killings. It has also killed with increasing impunity members of the Frontier Corps or police assigned to protect Shia processions, pilgrims, or Hazara neighborhoods." [34] In Imam Bargah, all Shia worshippers are expected to perform certain duties; this does not make them all high profile Shia community leaders. The letter19 from the Imam Bargah, dated XXXX XXXX, 2015, states that the Appellant has "...volunteered his services in our organizational matters and provided Physical, Moral and Monetary support to the Organization." This letter states that he joined the organization on the XXXX XXXX XXXX 2010. [35] The RPD did not specifically mention this letter; however, the RAD places little weight on this letter for the following reasons: * The Appellant stated in his newer narrative20 that he converted at the "XXXX XXXX Imam Bargah" on the XXXX XXXX 2010; however, the letter is issued by "XXXX XXXX XXXX XXXX" with the same date as above. * The letter cited above states that the Appellant provided help in organizational matters, physical matters and moral matters. The Appellant's own testimony is that he was working in Dubai until XXXX 2014 when he went to the USA. Thus, it is not clear how he could provide organizational, physical and moral support to the "organization". * Moreover, there is no mention of the process of conversion and there is no corroborative evidence such as photographs, a certificate, etc. * No Zakat exemption: Shia are exempt from providing Zakat, [Islamic tithe on income and wealth]21 a form of tax on Sunnis. Documentary evidence states, "The government collects a 2.5 percent zakat (tax) on all Sunni Muslims and distributes the funds to Sunni mosques, madrassahs, and charities. The government does not impose similar requirements on other religious groups."22 It would be reasonable to expect some evidence of tax exemption due to his Shia beliefs. In this there is none. * There is no reference about how and when he was converted from the Sunni sect to the Shia sect. * There is no evidence in the form of receipt of any payments made to the Imam Bargah. [36] The RAD also notes that the letter mentioned above names a specific cleric of "XXXX thought XXXX XXXX XXXX and his gang" as the agents of persecution. However, the Appellant never identified XXXX XXXX XXXX in either of his two narratives. [37] The UNHCR23 identified seven profiles that are at "potential risk" in Pakistan, and they are: 1. Ahmadis 2. Christians 3. Hindus 4. Sikhs 5. Baha'is 6. Shias 7. Sufis / Barelvis [38] Regarding Shia, The UNHCR also states: Although both Sunni and Shia militant groups have engaged in acts of violence against each other over the years, according to analysts the majority of recent violent attacks were committed by Sunni militants inspired by al-Qaeda's ideology. In the last year sectarian violence targeting the Shia minority, including through attacks on Shia processions and religious gatherings and sites, reportedly continued. Such attacks were carried out predominantly in the North-West of the country.... In the context of Pakistan, an IFA/IRA will generally not be available in areas of FATA, Khyber Pakhtunkhwa, as well as Balochistan province, which are currently affected by sustained security and military counter-insurgency operations and retaliatory militant attacks. Whether relocation to other urban centres, such as Karachi or Islamabad, may constitute a viable alternative, should be considered on a case-by-case basis. [39] Objective documentary evidence24 shows that in Pakistan, "The U.S. government estimates the total population at 193.2 million (July 2013estimate). According to the most recent census, conducted in 1998, 95 percent of the population is Muslim (75 percent of the Muslim population is listed officially as Sunni and the other 25 percent is listed officially as Shia)." This comes to approximately 45 million Shia that live in Pakistan. [40] Therefore, the Shia minority is composed of 45 million strong; greater than the population of Canada. If the situation for "average Shia" was as dire as the Appellant wants the RAD to believe, the documentary evidence would show. [41] It is recognized that Pakistan is far from perfect on the heinous issue of religious intolerance. However, based on the foregoing, I find that the Appellant is not credible on a balance of probabilities. [42] Therefore pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. CONCLUSION [43] The RAD confirms the RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection. [44] The appeal is dismissed. (signed) "Atam Uppal" Atam Uppal November 26, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit P-2, Appellant's Record, p. 13. 3 Audio Recording of the hearing, at the 56 minute mark. 4 Audio Recording, at the 58 minute mark. 5 RPD-1, RPD's Record, pp. 176- 266. 6 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Pakistan (30 January 2015), item 12.1. 7 RPD-1, RPD's Record, at pp. 267- 277 except pp. 271- 275. 8 Audio Recording, at 14:13 mark. 9 Ibid., at 15:15 mark. 10 RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 12.5, PAK104713. 11 Audio Recording, at 16:50 mark. 12 Exhibit P-2, Appellant's Record, p. 17. 13 Audio Recording, at 54:40. 14 Ibid., at 50:20. 15 Audio Recording, at 57:04 mark. 16 Exhibit RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 1.10, para. 2.5.9. 17 Exhibit RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 12.1, Pakistan. International Religious Freedom Report for 2013. 18 Exhibit RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 12.7, "We are the Walking Dead." Killings of Shia Hazara in Balochistan, Pakistan. 19 RPD-1, RPD's Record, p. 279. 20 Exhibit P-2, Appellant's Record, at p. 23. 21 RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 4.2, Islamic Parties in Pakistan. Asia Report No. 216. 22 Ibid., item 12.1. 23 Exhibit RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 1.8, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan. [Emphasis added] 24 Ibid., item 12.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11574