TB5-05335

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 : TB5-05335 TB5-05336 TB5-05337 TB5-05338 TB5-05339 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 5, 2017 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jocelyne C. Mui Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Redetermination of the Appeal - Reasons for Decision [1] XXXX XXXX XXXX XXXX (the principal Appellant), his wife, XXXX XXXX (the second adult Appellant) and his children, XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX (the minor Appellants) appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. The Appellants have provided new evidence in support of their claims, and they have requested an oral hearing. The Appellants further request that the Refugee Appeal Division (RAD) set aside the determination of the RPD and make a finding that should have been made by the RPD. Alternatively, the Appellants request that the matter be remitted to the RPD for reconsideration by a differently constituted panel. [2] The Appellants' initial appeal to the RAD was dismissed on July 17, 2015. The Appellants appealed that decision to the Federal Court and the Court allowed the appeal on June 8, 2016. The matter was remitted to the RAD for reconsideration. DETERMINATION [3] Pursuant to subsection 111(1)(a) of the Immigration and Refugee protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Background [4] The principal Appellant (hereinafter "the Appellant") alleged in his Basis of Claim (BOC) narrative that he worked for ten years as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Pakistan. On October 28, 2013 and on November 25, 2013, he received threatening phone calls from an unknown caller. The caller indicated that he knew who the Appellant was and who were the members of his family. The caller stated that they were watching him, and it was time for him to die like other XXXX XXXX. [5] The Appellant was frightened, and he began making plans to leave Pakistan just before he received the second call. The Appellants left Pakistan on XXXX XXXX, 2014 and made refugee claims in Canada. The Issues [6] The panel indicated the determinative issue in regard to these claims is the availability of an Internal Flight Alternative (IFA). [7] The Appellants submit the issues in these appeals are: (a) Whether the evidence relied upon in these appeals meets the requirements of s. 110(4) of the IRPA; (b) Whether the RPD breached the duty of fairness owed to the Appellants in failing to provide them with the full opportunity to respond to the panel's concerns, specifically whether the panel erred in misleading the Appellants in believing that IFA was the only issue; whereas, it is apparent from the panel's Reasons that state protection was also a live issue; (c) Whether the panel erred in applying the test for persecution or person in need of protection; (d) Whether the panel made erroneous findings of fact in a perverse or capricious manner, without regard for the evidence, and whether the panel ignored evidence, or made conclusions that were unsupported by the evidence. The Role of the RAD [8] The RAD notes that the Federal Court of Appeal's decision, in 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. [9] The RAD concludes from its statutory analysis, with respect to findings of fact and mixed fact and law, that the RAD is to review RPD decisions applying the correctness standard, and that there may be deference to the RPD where the findings of fact involve the assessment of oral evidence. [10] The RAD must carefully consider the RPD's decision and, after doing so, must carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. The Appellant's issues, the initial RAD decision and the Federal Court's decision [11] The appeal issues submitted by the Appellant have been considered by the RAD in its initial decision and by the Federal Court. The RAD has reviewed all of the evidence in the RPD record, as well as the evidence in the initial RAD record, including the proposed new evidence. The RAD has also reviewed the Federal Court's analysis of the issues provided to the Court in the Appellant's appeal of the initial RAD decision, and the Court's analysis and decision in this regard. Whether the proposed new evidence meets the requirements of s. 110(4) of the IRPA [12] The RAD notes that the Appellant tendered 15 documents to the RAD in the initial appeal as proposed new evidence. In the initial appeal, the RAD found that 10 documents did not meet the requirements of s. 110(4). The RAD admitted five documents but found these documents did not raise a serious issue with respect to credibility or that, if accepted, would justify allowing or rejecting the refugee claim. As a result, the application for an oral hearing was denied. [13] This issue was raised in the Appellant's appeal to the Federal Court. The Court agreed with the RAD that the documentation that was not admitted could have been disclosed in the RPD hearing but "for reasons that remain unclear", the Appellant chose not to submit it. As to the Appellant's argument that the RAD failed to exercise its discretion and to consider Charter values in refusing to admit new evidence, the Court cited the decision of the Federal Court of Appeal, in Singh,2 in which the Court held there was, in this regard, "no room for discretion on the part of the RAD".3 [14] The RAD finds that the 110(4) issue in regard to the case at bar, has been resolved by the Court, and there is no reason to revisit the matter in this consideration of the Appellant's appeal. Whether the panel misled the Appellant as to the issue in his claim by indicating that internal flight alternative (IFA) was the only issue but considering as well state protection [15] The RAD has reviewed and assessed all of the evidence in regard to this issue, including the transcript of the hearing, parts of which were cited by the Appellant and parts cited by the RAD in its initial consideration of this appeal. [16] The RAD is not persuaded by the Appellant's argument and agrees with the analysis and decision in the initial RAD decision that the determination and evaluation of a proposed IFA as a safe haven requires an assessment of the availability of state protection in that location.4 [17] The RAD has reviewed the transcript of the RPD hearing and confirms, as did the RAD in its initial decision, that the panel clearly stated its view of the linkage between the first prong of the IFA test and the availability of state protection.5 The RAD notes that the panel referred to the Appellant not going to the police and further indicated it had not accepted that state protection is not available to the Appellants.6 In addition, the panel had a substantial exchange with the Appellant concerning the police, both their successes and inadequacies as to dealing with the Taliban.7 [18] The RAD has considered the Appellant's submission that the panel told counsel to limit submissions to the issue of IFA. The RAD has reviewed the transcript of the hearing and finds, as did the RAD in the initial RAD Reasons, that there is no evidence that the panel instructed counsel to limit examination to the area of IFA. The RAD finds that the panel considered state protection in the context of an IFA and did not err in this regard. The RAD notes that this issue was not included with those raised by the Appellant in his appeal to the Federal Court. Whether the panel erred in applying the test for persecution or person in need of protection [19] The panel found in its Reasons that two phone calls do not amount to persecution. It accepted that a threatening phone call might be considered to be serious, but it is not systemic or sustained, and the calls were anonymous which raised a question in the panel's view if they were serious. The panel further noted that the Appellant had not established that the callers are from the Taliban. [20] The panel noted as well that not only had the agent of harm not been established, but after two months, the threat had not been carried out. The panel determined in the context of an IFA, that state protection had not been rebutted. In addition, the panel found, given the Appellant had given up his contact with the UN, there was little evidence that the agents of harm would be motivated to seek out the Appellants in the IFA. The panel concluded it was not convinced the Appellant would face more than a mere possibility of persecution by unidentified callers. [21] The Appellant submits that they restricted their movements after the first call and essentially went into hiding after the second. The Appellant cited Federal Court jurisprudence stating that a claimant need not demonstrate past persecution to establish a risk if returned. In addition, the Court has stated that evidence of persecution of similarly situated persons may be sufficient to demonstrate the risk. [22] The Appellant further submits that the panel accepted that those similarly situated to the Appellants, XXXX XXXX XXXX XXXX or aid workers, were at risk of harm. The Appellant argues that it is unreasonable for the panel to find a lack of risk based on the lack of previous persecution. The Appellant argues, as well, that for a section 97 analysis, risk may be based on an objective basis even when the Appellant himself lacks a subjective fear. If the Appellant is similarly situated to persons who are targeted by armed groups in Pakistan, then the Appellant's life is objectively at risk. [23] The RAD has reviewed all of the evidence in the record concerning the Appellants' jeopardy. The RAD notes that the agents of harm are unknown. While the Appellant appears to assume they represent the Taliban, he acknowledges he does not know this. The RAD finds the Appellant is speculating in this regard. The RAD further notes that the threat is represented in two anonymous telephone calls one month apart and no subsequent calls during the two months the Appellants remained in Pakistan. The RAD agrees with the panel that the two calls, in themselves, do not amount to persecution. [24] The RAD acknowledges, as did the panel, that XXXX XXXX XXXX XXXX are targeted and face risks. The RAD notes that the panel questioned the Appellant in the hearing as to why the caller would be motivated to pursue him as he had done what was demanded and ended his relationship with the UN. The Appellant responded that the Taliban would not stop. The Appellant submits that the Taliban's reach includes the whole of Pakistan. The RPD concluded that the Appellant was not a high profile target and reiterated its finding that the Appellant's identification of the Taliban as the agent of persecution was speculative. Whether the agents of persecution were Taliban [25] The RAD notes the Appellant argued that the panel provided no support for its conclusion that the callers' failure to positively identify themselves necessarily means that the callers were not Taliban. The RAD further notes that the assessment of the risk from the Taliban was considered by the Federal Court. In their submissions to the Court, the Appellants argued that the RPD engaged in "pure speculation that the Taliban are not the agents of persecution", and the RAD should have reversed this decision. The Court found, however, that it was neither the RPD nor the RAD who speculated, and the Court refused to reweigh the evidence and find that the Appellants have been or will be targeted by the Taliban. The RAD finds it was open to the panel to find that the Appellants had not established that the agents of persecution were Taliban. Internal Flight Alternative (IFA) [26] The RAD notes that the Federal Court considered the Appellants' arguments as to why they believed the RAD's IFA analysis was unreasonable.8 The Court rejected the Appellants' argument that they were the best judges of what was a reasonable location for resettlement. The Court stated that an IFA "has to be assessed objectively, not in accordance with the Applicants' subjective views on the issue." [27] The Court also rejected the Appellants' argument that the IFA was unreasonable because the RAD had not accepted that the Taliban is the agent of persecution. The Court stated that this was not an error, as the Appellants had failed to establish that this was so. [28] The Court did find it problematic that both the RPD and the RAD, without a negative credibility finding, appeared to discount as speculation the Appellant's explanation as to why he remains a target. The RAD notes that the RPD raised the question as to why the Appellant remained a target after he left his XXXX XXXX XXXX XXXX, and the RAD cited this query in its review of the RPD's decision. [29] The Court found in this regard that the threat had been mischaracterized as the threat was that the Appellant would die because he had XXXX XXXX XXXX XXXX and not unless he stopped XXXX XXXX XXXX XXXX. The Court further found that, even it was not established that the Taliban was the agent of persecution, the threat to kill him was clearly made on the evidence. The Court noted as well that there was no evidence in the record that the caller does not intend to follow through on the threat because the Appellant lacks a sufficient profile. [30] The Court found the mischaracterization of the threat renders the IFA analysis unsafe and unreasonable. [31] The RAD has reviewed and assessed all of the evidence in the record concerning the availability of an IFA to the Appellants, including the issue raised by both the RPD and the RAD concerning the significance of the Appellant's withdrawal from his XXXX XXXX XXXX XXXX and the relationship of this action to the death threat, and the Federal Court's determination in this regard. [32] In the initial consideration of this appeal, the RAD noted the Appellants did not decrease their activities until after the second call in November 2013. They subsequently moved to a friend's house for two to three weeks but then returned to their own home. The RAD has reviewed the recording of the RPD hearing and confirms this observation. The RAD concurs with the initial RAD finding that the Appellants' actions reflected limited subjective fear before their exit from Pakistan. [33] The RAD notes that, in the initial consideration of this appeal, the RAD indicated that the RPD noted in the RPD hearing that the Appellant had done what the caller wanted, and the Appellant was asked why whoever had threatened him would be motivated to seek him now. The Appellant's response was that the Taliban would not stop, and they would take it to the end. The RAD, in the initial consideration of the appeal, noted that the RPD found there was less than a mere possibility of persecution in the IFA location by the unidentified caller. [34] The RAD in the initial appeal, on the basis of its review of the country documentary evidence, noted that the Taliban's reach across Pakistan may impact on high profile targets but further noted the RPD had concluded the Appellant is not a high profile target and the assertion that the Taliban is the agent of persecution is based on speculation. [35] The RAD acknowledges that the RPD asked the Appellant why the caller would carry out the threats after the Appellant had stopped XXXX XXXX XXXX XXXX. The RAD notes that the RPD indicated there was little evidence that the agent of harm would be motivated to seek out the Appellant in Hyderabad, and then found it was not persuaded that the Appellant would face more than a mere possibility of persecution from the unidentified callers. The RAD further notes that the RPD provided significant additional analysis of documentary evidence concerning Hyderabad as an available IFA. As well, the RAD notes that, while the Appellant provided evidence as to his view of his likely pursuit by the Taliban, it has not been established that the Taliban was the agent of harm. The RAD further notes that the RPD's indication that IFA was the determinative issue in regard to this claim appears to reflect its view that the Appellants required a safe haven, whether or not he gave up his XXXX XXXX XXXX XXXX. [36] The RAD also notes that, while the RAD in the initial appeal cited the RPD's query about why the caller would seek out the Appellant after he had stopped XXXX XXXX XXXX XXXX XXXX there was no finding in this regard indicating that this was a significant element in the determination of the appeal. Most of the analysis in the initial RAD consideration of the appeal concerned documentary evidence as to the availability of an IFA in Hyderabad. [37] The RAD also notes that the Appellant stated in response to the RPD query that the Taliban would not stop, and they would take it to the end. The RAD finds, given the Appellant's failure to establish that the Taliban is the agent of persecution, there is no basis for his assertion that the unknown caller would pursue him. The RAD notes that the Appellants' counsel in the RPD hearing stated in her submissions as to the nature of the threats that "it's hard to say in a certain situation whether it would have escalated or not". [38] As to the profile of the Appellant, the RAD notes that the Court indicated that the Appellant had a sufficient profile to provoke the threat. The RAD further notes in this regard that the comment by the RPD and its reiteration by the RAD in the initial appeal, in regard to profile, reflect reviews of the documentary evidence concerning Taliban attacks on politicians, journalists and other high profile persons. The RAD finds that, while the targeting of the Appellant and others who worked for the XXXX is significant, it does not necessarily mean that the Appellant has the profile that would lead to the kind of Taliban pursuit reflected in the country documentary evidence cited by the RPD, reviewed by the RAD in the initial appeal and further reviewed by the RAD in the case at bar. [39] The Appellants submit that the panel's finding on Hyderabad being a safe haven for an IFA was unreasonable. The Appellants further submit that there were security issues in Sindh province where Hyderabad is located, and also in Hyderabad. The Appellants cited country documentary evidence in this regard. The Appellants submitted as well that they have no ties in Hyderabad. [40] The RAD has reviewed and assessed all of the country documentary evidence in the record concerning the availability of an IFA in Hyderabad, including the documentation provided by the Appellants. The RAD is not persuaded by the Appellants' argument. [41] The RAD notes, as did the RAD in the initial RAD hearing, that the Appellants' documentation concerns the various localities in Pakistan where the Taliban has a significant presence, but makes no mention of Hyderabad.9 There is as well documentation concerning violence among political factions in Karachi.10 Although Karachi is in Sindh province, as is Hyderabad, the evidence indicates that conditions in Karachi are distinctive as they reflect competing sectarian and ethnic groups, a situation not comparable to Hyderabad. [42] The RAD has reviewed and assessed the five articles provided by the Appellant and admitted as new evidence.11 The RAD notes that the articles deal with the increased military action against the Taliban in tribal areas and the enhanced police actions to protect urban centres from Taliban retaliation. The articles that deal with incidents in Hyderabad concern attacks on government offices and police and the actions by authorities to provide protection, especially for high profile persons who may be targeted. They deal as well with attacks on police officers. [43] The RAD agrees with the initial RAD analysis and findings that these articles do not confirm a lack of state protection in Hyderabad. Rather, they confirm a positive police response to Taliban actions in the city and, in particular, in the availability of protection for individuals who may be at risk of a Taliban attack. The RAD finds these articles do not support a finding that an IFA in Hyderabad is unsafe. [44] The RAD notes that Hyderabad has a population of approximately 3,500,000 people and is almost 2000 kilometres from Islamabad, the Appellants' home city. The RAD cites in this regard country documentary evidence which states: Because of Pakistan's size and diversity, internal relocation offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination and violence. In most cases, there are options available for members of most ethnic and religious minorities to be able to relocate to areas of relative safety elsewhere in Pakistan. In particular, many large urban centres are home to mixed ethnic and religious communities and offer greater opportunities for employment, access to services and a greater degree of state protection than other areas.12 [45] The RAD further notes that the Appellants have failed to establish that the agent of persecution is the Taliban, and the Appellant's argument about Taliban determination to pursue those it had identified for violent action may not apply to the unknown callers who threatened the Appellant. [46] As to whether it is reasonable for the Appellants to seek a safe haven in Hyderabad, the RAD notes that the Appellant is a businessman with sources of income from land ownership. He is also well travelled and he has provided no evidence that he and his family would not be able to resettle in Hyderabad, The RAD finds that the burdens of establishing themselves in a new place are not sufficient to find resettlement in Hyderabad is unreasonable. [47] The RAD further finds, in the context of its review and assessment of all the evidence in the record, that both prongs of the IFA test have been met as to an available IFA in Hyderabad. The RAD is satisfied, on a balance of probabilities, that there is not a serious possibility of the Appellants being persecuted in Hyderabad, the proposed IFA, whether or not the unknown callers wish to pursue the Appellant. The RAD is further satisfied that conditions in Hyderabad are such that it would not be unreasonable in all the circumstances, including those particular to the Appellants, for them to seek refuge in Hyderabad.13 [48] The RAD cites in this regard the decision of the Federal Court of Appeal, in Ranganathan, in which the Court stated that the onus is on the claimant to show that he or she does not have an IFA, and the burden is fairly high in order to show the IFA is unreasonable. The Court further states that the test requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to the safe area. Actual and concrete evidence of adverse conditions is required.14 [49] The RAD finds that the Appellants have failed to meet their onus of providing evidence that Hyderabad is not available to them as an IFA. DISPOSITION [50] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. (signed) "Milton Israel" Milton Israel April 5, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 Qaddafi, Malik Zarar Ali v. M.C.I. (F.C., no. IMM-3646-15), June 8, 2016, 2016 FC 629, pp. 20-24. 4 The initial RAD Reasons, paras. 19-25. 5 Transcript of the RPD hearing, pp. 31-34. 6 Transcript of the RPD hearing, p. 32. 7 Transcript of the RPD hearing, pp. 28-30. 8 Qaddafi, Malik Zarar Ali v. M.C.I. (F.C., no. IMM-3646-15), June 8, 2016, 2016 FC 629, paras. 60-77. 9 RPD's Record, Exhibit 4, p. 829. 10 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Pakistan (14 March 2014), item 2.1. 11 Exhibit P-3, part of Appellant's Record, pp. 99-107. 12 RPD's Record, NDP for Pakistan (14 March 2014), item 2.2, Pakistan: Background Information, including actors of protection and internal relocation, section 2.4.2, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/566241/Pakistan_CIG.pdf. 13 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.). 14 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB5-05335 TB5-05336 TB5-05337 TB5-05338 TB5-05339