TB8-28858

RAD File / Dossier de la SAR : TB8-28858 TB8-28859 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision June 15, 2020 Date de la décision Panel Max Wolpert Tribunal Counsel for the persons who are the subject of the appeal Paul Vandervennen Conseil des personnes 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 these appeals by XXXX XXXX XXXX XXXX XXXX XXXX XXXX citizens of Pakistan. I find that the RPD was incorrect in dismissing their refugee claims, first, because of credibility concerns with their allegation that, as Christians, they had been specifically identified by religious extremists wishing to convert them, and who made threats against their security of the person, and second because they had internal flight alternatives within their country. Allegations [2] Ms. XXXX XXXX XXXX is 65 years old. Her husband Mr. XXXX XXXX is 74 years of age. They lived in Karachi. [3] The appellants are life-long practicing Christians. In Pakistan they were longtime Catholic church members who attended church every Sunday.1 Though not wealthy, they were not among the many Pakistani Christians who are poor. [4] The appellants visited Mr. XXXX daughter in Canada from XXXX 2015 to XXXX 2016. Two months later, new women neighbours, very religious proselytizing Muslims, invited Ms. XXXX, whom they acknowledged was Christian, to a Quran recitation at their home to learn about Islam as she might like it. Faced with their insistence, she said she would go, though she did not attend. [5] The women returned in April 2016 to renew their invitation. They would not take no for an answer. Ms. XXXX felt she had no choice but to agree to attend. The women added that they had heard about the appellants' trip to Canada. They said that Canada, along with the United States of America (USA) and Europe, was an enemy of Islam, and any friend to those countries is a friend of the enemy. [6] The appellants decided that Ms. XXXX should attend once just to please the neighbours and then, if re-invited, say she was not interested. A few days later she went, albeit uncomfortably, to a recitation. [7] The women kept coming back to Ms. XXXX door to preach Islam, undeterred by her repeated demurrals. Their constant insistence started to get to her and she was losing patience. [8] Around Christmas 2016, the women questioned Ms. XXXX about why she and Mr. XXXX celebrated Christmas. When she explained that it was because they believed Jesus was their savior and the son of God, the women reacted with a sign of disgust signifying asking Allah for forgiveness for having heard something blasphemous. Ms. XXXX now lost her patience and told them she could not listen to their rubbish anymore and they must never return to her house. They told her angrily that she would regret her words. She regretted her outburst and felt frightened. She began praying to God to keep her safe. [9] On March 24, 2017, men who were bearded and dressed in the style of Islamic scholars came to the appellants home carrying guns. They pushed Mr. XXXX and fired into the air. Ms. XXXX cried with fear, thinking she and her husband were going to die. The men told them they must convert to Islam soon or else they would charge the appellants with blasphemy. They said they had witnesses who had heard Ms. XXXX speaking against Islam and calling it rubbish. [10] The police, alerted by neighbours who heard the shots, arrived shortly after these men left. After the appellants recounted what had happened, the police asked Ms. XXXX if she had indeed called Islam's teachings rubbish. Frightened, she said she had not said anything directly against Islam, but had told the women out of frustration that she didn't want to listen to their rubbish. [11] The police looked angry and said they could not help the appellants. They added that no one had made a complaint yet, but were that to happen they would have no choice but to arrest her. They told her she had dug her own grave. [12] That same night, and up to their XXXX XXXX XXXX 2017, departure to Canada, which they had already booked for another visit to Mr. XXXX daughter here, the appellants hid at the home of a friend elsewhere in Karachi. RPD reasons [13] The RPD began its analysis by stating that the determinative issue had been the existence of an internal flight alternative in Lahore, Hyderabad or Islamabad.2 [14] The RPD then, however, identified credibility concerns, which it found had rebutted the presumption of credibility.3 These were: Failure to claim protection during 2015 trip to Canada - RPD incorrect [15] The RPD asked why the appellants had not sought protection in Canada during their earlier trip here, given that Ms. XXXX had testified to earlier problems due to religion, albeit less serious than the incident of March 2017, but instead had returned to Pakistan in XXXX 2016. Ms. XXXX explained that at the time of that trip they faced "no such threat", whereas the latter incident was quite serious, in that people had invaded their home with guns.4 [16] The RPD rejected this explanation. Pakistan, it observed, was the same place where the appellants alleged that all over the country any minor incident invariably implicates Christians and brings potentially deadly allegations of blasphemy. The member noted that the documentary evidence, including that filed by the appellants, indicated that Christians in Pakistan face persecution, torture, police abuse, and death, as a result of their religion. Even if the appellants had not previously faced the same type of incident that befell them in 2017, it held, it was reasonable to expect them to have sought protection in Canada in 2015, when the problems faced by Christians in Pakistan were allegedly widespread and commonly resulted in persecution, threats or death.5 [17] The RPD concluded that the appellants' return to Pakistan in XXXX 2016 was inconsistent with a subjective fear of persecution, and detracted from the credibility of the appellants' allegations.6 Appellants' position - failure to claim protection in 2015 Counsel submits that: [18] It was unreasonable to draw a negative inference from the fact that the appellants did not make a refugee claim during their first visit to Canada, because the incident that triggered their claim happened after their return. [19] It is wrong to expect people to make refugee claims in Canada when nothing has happened to them and they have no fear of persecution. [20] The fact that the appellants did not make refugee claims in Canada during their first trip can only enhance the credibility of their allegations, rather than detract from it. Their actions demonstrate that they make refugee claims when they have a reason to fear for their lives and safety, and not because they are migrants looking for a better life. Analysis - failure to claim protection in 2015 [21] Ms. XXXX testimony about earlier problems the appellants had experienced were that there were many "small incidents" that they had been able to tolerate or ignore, keeping in mind that "things happen in a neighbourhood". Asked for detail, she described how their daughters, about fifteen years before the RPD hearing, would be teased in the street by Muslim youth, who sometimes also snatched their bags and shawls. By contrast, she explained, the March 2017 incident upset the appellants because it was a risk to their lives.7 [22] As regards the appellants' alleged prior personal experiences, then, their distinction between what happened before and after their first trip to Canada is evidently plausible and reasonable. I thus agree with counsel's overall submission on this point. They themselves had experienced nothing remotely like the alleged March 2017 before. [23] In faulting the credibility of their subjective fear because they did not claim protection while out of Pakistan before 2017, the RPD was also holding the appellants to account for their and the Board's evidence about widespread and serious persecution of Christians in Pakistan. The appellants recounted or cited that evidence while arguing that they could not have a safe Internal Flight Alternative (IFA) within their country. The RPD member implied that, if that evidence is true and it made the appellants feel that way, they would have seized their earlier opportunity to claim protection. I do not, however, find it implausible that the appellants would not have taken the decision to seek refugee protection until they personally experienced or were threatened with serious harm. [24] I thus conclude that the RPD was incorrect on this point. Claimants avoided for decades the serious and deadly problems faced by other Christians in Pakistan - RPD incorrect RPD reasons- prior avoidance of problems [25] The RPD noted that the documentary evidence painted a picture of numerous, widespread, serious, and violent, incidents involving Christians in Pakistan. Such problems commonly involved Christians being harmed, mobs forming, Christians being charged with blasphemy, and Christians being killed. The member found that Ms. XXXX answer, when asked how she and her family had been able to avoid these serious problems for decades, was non-responsive, merely indicating that her daughters are involved with the church and are also employed. The RPD concluded that this detracted from her credibility and her allegations about being threatened after decades without facing such problems.8 [26] Next, the RPD observed that Ms. XXXX responded in the negative when asked whether she and her family are in any way different from other Catholics in Pakistan.9 [27] The member then remarked that, only after being given several opportunities did Ms. XXXX identify any incidents of harm, threats or mistreatment other than the serious March 2017 one. Moreover, the next most serious events she finally had mentioned, the RPD wrote, were the above-mentioned episodes of Muslim boys snatching the daughters' shawls and teasing them some 15 years ago, which she had described as small incidents.10 [28] The appellants' recent and only serious incident was allegedly related to their new neighbours, the RPD continued. The appellants had demonstrated that they and their family, despite being life-long active and identifiable Christians, had never otherwise faced harms, threats, allegations of blasphemy or attempts to force them to convert. Their numerous family members still living in Pakistan had also been able to do so as Christians without facing any such problems. Mr. XXXX had testified that they were living there happily. The RPD found that all this decreased the likelihood that the appellants would face such problems in the future.11 Appellants' position - Prior avoidance of problems The appellants submitted that: [29] The RPD was wrong to draw a negative inference as to credibility from this evidence. The testimony was credible that the appellants did not face any serious incidents prior to 2017. They did not embellish their evidence or try to make things sound worse than they were, and again, this enhanced their credibility rather than detract from it. There was no basis for any negative credibility inference.12 [30] In addition, the RPD 's credibility findings had nothing to do with the central 2017 incident. They were not only incorrect but also were not actual findings that the appellants were untruthful. Negative credibility findings must be made in clear and unmistakable terms, and be based on clear and cogent reasons. The RPD did not make any finding that this central incident that caused the appellants to flee did not occur as they described.13 Analysis - Prior avoidance of problems [31] Counsel is correct that none of the RPD's findings, even read broadly, questioned the credibility of the appellants' allegation that in March 2017 they were attacked, threatened and told to convert to Islam or face charges of blasphemy. I would add that the same applies to their allegation that the police indicated that they would offer no protection were such charges to be filed. [32] The appellants' testimony about the March 2017 incident was consistent with their BOC narrative. There was also no documentary evidence inconsistent with it. While Ms. XXXX 'rubbish' outburst that allegedly triggered that incident may be at least somewhat surprising, given the self-preservation instincts that the appellants had honed over the years, it is nowhere near implausible as a response to continual unwelcome proselytizing and eventual indication of disgust at Ms. XXXX deeply held religious convictions. I thus confirm, as the RPD in any event did not contest, that the evidence describing the March 2017 incident, and what led up to it, was credible. [33] To my mind, reading the above portions of its reasons, what the RPD was trying to get at was not, or not so much, that it doubted the March 2017 incident, but that it found not credible the subjective fear the appellants claimed to feel in response to it; i.e. the RPD seemed to say that, even if you experienced that incident, your past decades without problems anywhere near as serious, as well as the fact that your family have not experienced anything like this, means that you are fabricating or exaggerating your fears of future persecution that might flow from that incident. [34] To reiterate the RPD's findings: The documentary evidence painted a picture of numerous, widespread, serious, and violent, incidents involving Christians in Pakistan. Such problems commonly involved Christians being harmed, mobs forming, Christians being charged with blasphemy, and Christians being killed. That being so, in my opinion neither the fact that the appellants had not personally experienced such problems before being singled out by fundamentalists for blasphemy in 2017, nor had their relatives experienced anything similar after that, means that the appellants would not subjectively fear persecution as a result. To the contrary, such fear is reasonable and understandable. [35] I thus conclude that the RPD erred in this finding. Internal Flight Alternative - RPD incorrect RPD reasons - IFA first prong [36] The RPD found that the appellants would not face a serious possibility of being persecuted or harmed were they to move to Lahore, Hyderabad or Islamabad.14 In summary, this was because: i. The appellants checked 'yes' to the BOC question whether they had moved to another part of Pakistan to seek safety, but provided no details to the additional question listed there that if so, why could they not live there or elsewhere in their country as of the time they filed their refugee claims. ii. No blasphemy charge has been filed against either appellant. iii. Many of the appellants' family members continue to live in Karachi and they have not faced the types of significant discrimination and societal violence reported in the country conditions documents. iv. The appellants have a somewhat elevated socio-economic class; they have travelled in the past; they "do not fit the profile of many of the Christian victims of violence who are illiterate, entirely uneducated, or live in abject poverty." v. No police action has been taken against the appellants. No mobs have acted against them. vi. The proposed IFAs are approximately 1,200 kilometres (Lahore), 150 kilometres (Hyderabad), and 1,400 kilometres (Islamabad) away from the appellants' former residence in Karachi and the problems they faced there stemming from their neighbours. All of this would provide a significant degree of anonymity for the appellants. Appellants' position - IFA first prong [37] Counsel submits that : 1. There was no connection between the appellants' omission from their BOC of the explanations why they could not live elsewhere in Pakistan and the credibility of their explanations in oral testimony. Their testimony did not contradict the written information, they simply failed to address the question at all. 2. The IFA assessment was flawed because the RPD carried it out based on negative credibility inferences which are wrong and which have nothing to do with the incident that gave rise to their fear of persecution. The RPO did not make a finding that the central incident of March 2017 did not occur, but it cast a nebulous cloud over the credibility of the appellants' evidence. In the absence of a clear [and correct] finding that the appellants' evidence regarding the central incident that caused them to flee the country was not credible, it was incumbent on the RPO to determine whether there was a viable IFA with the understanding that their evidence was credible. 3. The documentary evidence showed that Christians face persecution throughout all of the territory in Pakistan. Items 12.26, 12.27 and 12.28 of the NDP [of April 30, 2018] give numerous examples of attacks against Christians in places including Lahore, Gujrat, Sargodha, Faisalabad, Karachi, Balochistan and others throughout Pakistan. 4. Item 12.13, under the heading "3.1 Police", states that police officers have committed abuses against Christians including gang rape, murder, fabricating false charges and beatings and torture. It also states: "Sources indicate that government officials do not adequately protect religious minorities from violence", and "it is difficult for the authorities to protect members of religious minorities, even if they want to, because of pressure from 'extremists". 5. The appellants submitted objective country documentation that demonstrates that the situation of Christians living in Pakistan was becoming worse. The Islamic militants were becoming stronger. Attacks, forced conversions, blasphemy charges and routine discrimination against Christians occur in all areas of life, and throughout Pakistan. Analysis - IFA first prong [38] In connection with the primary BOC question, to which they had ticked 'yes', the appellants filed two letters corroborating that they hid in April 2017 at a friend's home elsewhere in Karachi.15 The RPD did not find that these letters were inauthentic, nor do I. While the appellants, as counsel acknowledges, did not answer the BOC sub-question about why they could not live elsewhere in Pakistan, in my view it would thus be going too far to infer that this meant they had not thought at the time they completed their BOCs that they would be safe moving to another part of their country. Although their BOC answer was incomplete, the information they provided there and in their narrative strongly implied that they believed they had no IFA. [39] In light of my conclusion that the RPD's other negative credibility findings were incorrect, and considering that they were made after the RPD identified IFA as the sole determinative issue, I agree with counsel that these findings erroneously cast a nebulous cloud over the RPD's IFA findings. [40] To repeat, the RPD acknowledged that the documentary evidence before it, including the April 2018 version of the IRB National Documentation Package for Pakistan, painted a picture of numerous, widespread, serious, and violent, incidents involving Christians in Pakistan. Such problems commonly involved Christians being harmed, mobs forming, Christians being charged with blasphemy, and Christians being killed. I agree with that depiction. Counsel is also correct that the evidence showed that such persecution of Christians was geographically widespread. [41] My review of the information in the updated NDP finds no substantive improvement in this situation. For example, item 12.1 is the International Religious Freedom Report for 2017 issued on 29 May 2018, which gauges the current level of religious tolerance in Pakistan. It confirms that Christians are a small religious minority in Pakistan and that: Armed sectarian groups connected to organizations banned by the government as extremist, as well as groups designated as terrorist organizations by the United States and other governments, staged attacks targeting Christians, Ahmadi Muslims, Sufi Muslims, and Shia Muslims, including the predominantly Shia Hazara community. [42] As a further example, NDP item 2.4 is a Human Rights Watch report entitled: Pakistan. World Report. 2019. Events of 2018 (published in January 2019). This HRW suggests that the use of blasphemy allegations continue apace in Pakistan: Blasphemy allegations and related rhetoric from both private actors and officials increased in 2018. However, the government did not amend the law and instead encouraged discriminatory prosecutions and other abuses against vulnerable groups. [43] In addition, the personal threats by religious fundamentalists of blasphemy against the appellants, even if not known to have been acted upon as of their April 2017 departure from Pakistan, as well as the explicit expression by police of lack of intent to provide protection against the agents of persecution, distinguish the appellants from the general population of Pakistani Christians, and render them more vulnerable to persecution than the average member of that community. [44] The appellants have been specifically identified by religious extremists wishing to convert them and who have made threats against their security of the person. I do not agree that IFA, anywhere in Pakistan is a viable option for them. [45] I thus determine that the RPD's finding against the appellants on the first prong of IFA was incorrect. This determination disposes of the IFA issue, and hence these appeals, in the appellants' favour. DECISION [46] The decision of the RPD is set aside. I substitute for it my decision that the appellants XXXX XXXX XXXX XXXX XXXX XXXX are Convention refugees. (signed) Max Wolpert Max Wolpert June 15, 2020 Date 1 The appellants filed a letter stating that they had joined a Pentecostal church in Canada (RPD record, page 188). The RPD did not explore why, and I thus do not take it into account. 2 RPD-1, RPD Record, Exhibit 3, RPD reasons, paragraph 5. 3 Ibid, paragraph 8. 4 RPD Hearing, September 6, 2018, Audio recording 0 :57 to 0 :59. 5 RPD-1 RPD Record, Exhibit 3, RPD reasons, paragraphs 9 to 11. 6 Ibid paragraph 11. 7 RPD Hearing, September 6, 2018, Audio recording 0 :43 to 0 :54; RPD reasons, paragraph 13. 8 RPD-1, RPD Record, Exhibit 3, RPD reasons, paragraph 12. 9 Ibid paragraph 12. 10 Ibid, paragraph 13. 11 RPD-1, RPD Record, Exhibit 3, RPD reasons, paragraph 14. 12 Appellants' memorandum, paragraph 13. 13 Appellants' memorandum, paragraph 9. 14 RPD-1, RPD Record, Exhibit 3, RPD reasons, paragraph 27. 15 RPD-1, RPD Record, Exhibit 3, pages 186 and 187. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-28858 TB8-28859 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