TB5-08011

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 : TB5-08011 TB5-08012 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 7, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Max Berger 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) and his wife, XXXX XXXX XXXX (the Co-Appellant), both citizens of Pakistan, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. [2] The Appellants did not submit new documents in support of the appeal. However they request a hearing under the provisions of section 110(6) of the Immigration and Refugee Protection Act (the Act or IRPA) and submit that "...if the Refugee Appeal Division impugns the credibility of the declarations made in [the Appellant's] affidavit enclosed in this Appeal Record and/ or if contrary sworn testimony is admitted by the Division from another party which should be the subject of cross-examination by the Appellant's counsel."1 [3] The Appellants' statutory declarations provided on appeal essentially reiterate the story in the Appellant's narrative. Having read the Appellant's declarations made in the Appellant's affidavit mention above, I do not find that these contain any evidence that arose after the rejection and thus, I agree with the Appellants that no new evidence is presented pursuant to s.110(4) of the Act. Since there is no new evidence, the Refugee Appeal Division (RAD) will not hold an oral hearing. [4] The Appellants request that the RAD substitute a positive decision and accept the Appellants' refugee claim. In the alternative, the Appellants requests that that the RAD send the matter back to the RPD for re-determination. DETERMINATION [5] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and finds that the Appellants are neither Convention refugees nor persons in need of protection, as there is a viable Internal Flight Alternative (IFA) for the Appellants. BACKGROUND [6] The Appellants alleged before the RPD that they fear persecution in Pakistan due to their religious identity as Shia Muslims. The male Appellant testified before the RPD that they were living in the UAE for several years and he returned to Pakistan in 2006 for health reasons. In 2007, he became involved with his Imam Bargah (mosque for Shia) as a volunteer. He was an XXXX XXXX of his local Imam Bargah that was attacked. [7] He was in a religious procession in 2009 when a suicide bomber self-detonated in the procession killing 40 people. In July 2012, the Appellant's friend was shot and killed by extremists. In 2013, at another religious procession, extremist gunmen opened fire. In 2014, his Imam Bargah was attacked by extremists. In XXXX 2014, his nephew was murdered. He believes that the situation for Shia in Pakistan is worsening. [8] He obtained a visa to Canada in XXXX 2014 and a visa to the USA in XXXX 2014, but left Pakistan in XXXX 2014. His wife arrived from the UAE later in XXXX. They claimed protection on April 17, 2015. [9] Their claims were heard on June 16, 2015, and the RPD rejected these claims by providing written reasons dated June 30, 2015. ROLE OF THE RAD [10] The Appellants submit that the Federal Court decision, Huruglica,2 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". [11] The case law is still evolving, 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 Appellants are Convention refugees or persons 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 [12] The Appellants' issues3 are: i. The appropriate standard of review; ii. Did the RPD err in its assessment of subjective fear based on the alleged delay in leaving Pakistan?; iii. Did the RPD err in finding that there was a delay in claiming refugee protection in Canada?; iv. Did the RPD err in its IFA analysis? [13] I will rephrase the issue as: are the Appellants Convention refugees or persons in need of protection? Analysis [14] The RPD found that the Appellant's behavior was inconsistent with his alleged fear of persecution as displayed by lengthy delays in departure from Pakistan where he alleges persecution for several years, and a long delay in claiming protection in Canada. [15] The RPD also found that a viable IFA exists for the Appellants in Islamabad. I have considered the evidence, and I come to the same conclusion; a viable IFA exists for the Appellants in Pakistan where they can return and live safely and reasonably. [16] The Appellant also submits that the Appellant should be considered a refugee sur place because he had no intention of staying in Canada and decided to claim protection only after he found out higher risk for the Shia, should he return. I am not persuaded that the Appellant's claims can be considered sur place claims since the Appellant testified that he has been living in fear for years and even relocated prior to his arrival in Canada. Even if I were to find that the sur place claim was not considered by the RPD, it is a moot point since the IFA is determinative. Therefore, the RAD will consider whether Islamabad, the IFA identified by the RPD, is viable. [17] In Velychko,4 the Court stated that a person is neither a Convention refugee nor a person in need of protection if an IFA has been found, and stated: [28] As set out in Irshad v. Canada (Minister of Citizenship and Immigration), 2005 FC 763; [2005] F.C.J. No. 941 at paragraph 21, the concept of an IFA is an inherent part of the Convention refugee definition. In order to be considered a Convention refugee, an individual must be a refugee from a country, not from a region of a country. Therefore, where an IFA is found a claimant is not a refugee or a person in need of protection (see Sarker v. Canada (Minister of Citizenship and Immigration), 2005 FC 353; [2005] F.C.J. No. 435). [18] It is trite law that the burden of proof to demonstrate that no IFA exists in Pakistan lies with the Appellants. [19] In Sargsyan,5 the Federal Court restated the well-established test for IFA as follows: The two-prong test applicable in an IFA analysis is: 1. The RPD must be satisfied, on a balance of probabilities, that there is no serious possibility of the Applicant being persecuted in the part of the country in which it finds an IFA exist; and 2. That the conditions in that part of the country are such that it would not be unreasonable for the Applicant to seek refuge there (Chowdhury v Canada (Minister of Citizenship and Immigration), 2014 FC 1210 at para 22 [Chowdhury]; Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589; Katinszki v Canada (Minister of Citizenship and Immigration), 2012 FC 1326 at para 11; Rasaratnam, above). [20] The Federal Court, in Hernandez,6 stated the additional legal principles for an IFA finding and stated: [38] Madam Justice Eleanor Dawson reviewed the additional legal principles pertaining to IFAs in Saldana v Canada (Minister of Citizenship and Immigration), 2008 FC 1092 at paragraph 22: The law with respect to the existence of an internal flight alternative was recently and succinctly reviewed by my colleague Justice Kelen in Farias v. Canada (Minister of Citizenship & Immigration), 2008 FC 1035 (F.C. at paragraph 34. There, he noted that: • It is the applicant who bears the burden of proof to demonstrate that an internal flight alternative does not exist or is unreasonable. • A high threshold must be met in order to establish that an internal flight alternative is unreasonable. • The fact that a refugee claimant may not be able to find suitable employment in his or her field of expertise may or may not make an internal flight alternative unreasonable. [21] The Appellant takes issue with the RPD's finding that the threats to the Appellant were not personal in nature and "...no one ever came to the principal claimant's home and threatened him." The Appellant argues that the RPD erred since "The numerous phone calls over the years went to the Appellant's cell phone". I am not persuaded. The Appellant, if he felt threatened by calls, he would reasonably be expected to take some steps to distance himself from the threats. In this case, at least by changing his cell phone number. There is no evidence to show that he did. [22] The Appellant also argues in his Memorandum7 that an email from the Appellant's son confirms that the risk to the Appellants is personal, and states,"...the appellant's son is clear that Mr. XXXX colleague had warned him that Mr. XXXX would be personally targeted as a prominent Shia if he returned to Pakistan." [23] I am not persuaded because the exact wording in the email8 mentioned above is as follows: He said to inform dad that it will not be safe for him to return now, as the activities amongst the Shia opposing groups are getting worse and he has found out through his contacts in police that there are some major operations in pipeline. He and some of his colleagues, including dad could be a possible target, so it will be better to stay outside the country. He is also keeping a low profile and advising other active members of the community to move out. [24] The email does not state that the risk to the Appellant is personal or imminent, or even likely. The email contains information from unknown sources; it is more or less hearsay and it does not state that the Appellant is a high profile Shia leader. [25] Moreover, the email states that the source of the information is the police and that the police know of some nefarious plots to attack the Shia. If so, the authorities would likely take steps to protect the Shia minority as the evidence in the following paragraph shows. [26] Documentary evidence9 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] [27] Moreover the International Religious Freedom Report10 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." [28] 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 evidence11 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." [29] The Appellants' counsel argues in the Memorandum that the "The numerous phone calls over the years went to the Appellant's cell phone. In other words, his cell phone number was specifically tracked." After I assumed my position as XXXX XXXX at the local Imam Bargah, dealing with threats over the phone became an inevitable part of my daily routine. These calls were made to the phone at the Imam Bargah, and a few times on my cell phone. The callers threatened to kill Shias because they are kafirs (infidels). My other colleagues at the Imam Bargah also receive similar phone calls. We did not pay heed to these threats and carried on performing our religious responsibilities. I thought that the threats were nothing more than an attempt to intimidate our community, and since my family members were safe in the UAE, I did not take these phone calls too seriously.12 [30] I am not persuaded with the counsel's argument; it exaggerates the Appellant's evidence on the issue of the frequency of calls and the timeframe over which such calls were received. The Appellant's argument that he relocated in Rawalpindi and the calls continued again is an embellishment. The Appellant was in Rawalpindi for five days to visit someone; he continued using his own cell phone and thus, it does not support the Appellant's declaration that he relocated to another city or that the alleged terrorists were able to locate him. [31] The RPD also noted the Appellant's profile. The Appellant was a volunteer and an XXXX XXXX. In Imam Bargah, all Shia worshippers are expected to perform certain duties; this does not make them all high profile Shia community leaders. The UNHCR13 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 [32] 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. [33] The UNHCR report cited above also states that: With a population estimated at over 187 million, the Islamic Republic of Pakistan is the sixth most populous country in the world and the second most populous country with a Muslim majority. Approximately 95 percent of the population professes to be Muslim - of this 75 percent are Sunni and 20 percent are Shia. The remaining five percent includes Christians, Ahmadis and Hindus. [34] Therefore Shia minority is composed of 37.4 million; greater than the population of Canada. If the situation for "average Shia" was as dire as the Appellants want the RAD to believe, the documentary evidence would show. [35] The Appellant's health was also considered by the RPD and the RAD. I note that the Appellant did not provide sufficient credible evidence that he will not be able to obtain the required health care or social services in the identified IFA. [36] Regarding family, the Federal court in Lara Deheza14 stated: [34] The Federal Court of Appeal recognized the test for an IFA in Ranganathan v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 2118 (QL), [2001] 2 F.C. 164, as laid out in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1172 (QL), [1994] 1 F.C. 589: An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee. [Emphasis added] [37] Therefore, considering the particulars of the Appellants, the country conditions, the area of the IFA identified, and the profile of the Appellants, the Appellants have not provided sufficient evidence for me to find that Islamabad, the capital of Pakistan, is not a reasonable IFA. [38] Based on the Record, I am able to make a finding that Islamabad is a viable IFA for the Appellants, and that the Appellants have not fulfilled their burden of proof. [39] Despite the fact that Pakistan is far from perfect on the heinous issue of religious intolerance, based on the foregoing, I find that, on a balance of probabilities, the Appellants can live safety and reasonably in Islamabad. [40] Therefore pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor person in need of protection. CONCLUSION [41] The RAD confirms the RPD's determination that the Appellants are neither Convention refugees nor persons in need of protection, as there is a viable internal flight alternative in Pakistan. [42] These appeals are dismissed. (signed) "Atam Uppal" Atam Uppal October 7, 2015 Date 1 Exhibit P-2, Appellants' Record, p. 18. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Exhibit P-2, Appellants' Record, Memorandum, p. 150. 4 Velychko, Vasyl v. M.C.I. (F.C., no. IMM-5479-08), Near, March 8, 2010, 2010 FC 264. 5 Sargsyan, Kseniya v. M.C.I. (F.C., no. IMM-7784-13), Noël, March 17, 2015, 2015 FC 333. 6 Hernandez, Teodoro Cordova v. M.C.I. (F.C., no. IMM-5936-10), O'Keefe, June 15, 2011, 2011 FC 703. 7 Exhibit P-2, Appellants' Record, p. 157. 8 Exhibit P-2, Appellants' Record, p. 63. 9 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Pakistan (30 January 2015), item 1.10, para. 2.5.9. 10 Exhibit RPD-1, RPD's Record, NDP for Pakistan (30 January 2015), item 12.1, Pakistan. International Religious Freedom Report for 2013. 11 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. 12 Exhibit RPD-1, RPD's Record, Narrative, p. 27, para 6. 13 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] 14 Deheza, Jose Manuel Lara v. M.C.I. (F.C., no. IMM-4469-09), Shore, May 4, 2010, 2010 FC 521. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB5-08011 TB5-08012