TB5-05321

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. / No. de dossier de la SAR : TB5-05321 TB5-05322 TB5-05323 TB5-05324 TB5-05325 TB5-05326 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 8, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Faiq Watan Yar Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (hereinafter referred to as the P.A.) and his family members (the Appellants), XXXX XXXX, XXXX XXXX, XXXX XXXX, XXXX XXXX and XXXX XXXX, all citizens of Pakistan, are appealing the decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their appeals and are asking the Refugee Appeal Division (RAD) to conduct an oral hearing. Furthermore, they are requesting that the RAD find them to be Convention refugees or persons in need of protection. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellants fear returning to Pakistan because the Taliban have attempted to extort them and have threatened their lives. The P.A. received letters from Pakistani Taliban demanding payment of large sums of money, failing which the family would be killed. The Appellants reported this to the police. They moved to Islamabad and to Lahore, however, the calls continued, and they moved back to their home in XXXX. However, when the Taliban attacked a local school, the children refused to attend school and the Appellants became concerned for their safety. They left Pakistan on XXXX XXXX, 2015 and requested refugee protection a few weeks later. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [4] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [5] The following new evidence has been submitted in support of this appeal: * Photographs of injuries taken while the P.A. was in hospital in XXXX * Sales deed confirming that the P.A. sold his house before coming to Canada dated XXXX XXXX, 2014 * Newspaper report published on June 17, 2013, in a leading English newspaper of Pakistan indicating that business people are often targeted by the Taliban * Newspaper article dated March 28, 2013 * A publication of Matthew M. Aid, an American military historian and author, dated March 30, 2013 * An undated article from the Washington Post dated February 13, 2014 [6] The RAD finds that the foregoing publications and articles pre-date the Appellants' rejections of their claims and therefore do not meet the statutory requirements. Moreover, the Appellants have not provided an explanation as to why these were not reasonably available prior to the rejection of the claim. The photographs could reasonably have been available prior to the rejection of the claim. However, the Appellants have explained that although they were provided to their counsel, the photographs were not submitted as exhibits. Accordingly, the RAD admits them into the record and they will be assessed accordingly. However, they do not meet the requirements as set out in ss.110(6) of IRPA. Oral hearing [7] Section 110(6) of IRPA states: * 6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. ROLE OF RAD [8] The RAD has taken guidance from the Federal Court in Huruglica1 wherein 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." SUBMISSIONS BY APPELLANTS * Did the RPD err in its credibility findings? * Did the RPD err in its finding of generalized risk? * Did the RPD err in its internal flight alternative (IFA) findings? CREDIBILITY Ongoing Interest - telephone calls [9] The RPD cited the central allegations; namely, that the P.A. had found a letter at his home where he was instructed to pay XXXX XXXX rupees at the local Taliban, failing which he and his family would suffer the consequences. The RPD found inconsistencies surrounding the number and timing of the phone calls and location. This included inconsistencies within the P.A.'s oral testimony as well as the information contained in the Appellants' Basis of Claim (BOC) forms. The RPD found the only explanation for the discrepancy, was that they were only counting the calls received in their hometown, however, the question did not restrict the Appellants to where they were living when they received the calls. The RPD, even after consideration was given to the above, considered that the BOC was inconsistent with their oral testimony. In totality, the RPD found that the evidence with respect to follow up calls was not reliable, and therefore, that the agents of persecution did not have an ongoing interest in the Appellants. [10] The P.A. submits that with respect to the number of calls received, he believed the RPD was referring to XXXX XXXX and since this line of questioning occurred at the outset of the hearing, this was a reasonable explanation. [11] After listening to the audio recording of the RPD proceedings, the RAD concurs with the RPD's credibility findings enunciated above. Given the inconsistencies within the oral testimony as well as between the oral testimony and the contents of the BOC, the RAD finds that the evidence with respect to follow-up calls is lacking in credibility. For example, as stated by the RPD, even if we accept the Appellants' explanation, the P.A. testified that he did not receive any calls upon their return to XXXX, yet the BOC indicates otherwise. Moreover, the RAD concurs with the RPD that after listening to the audio recording of the proceedings, the First Information Report filed with police makes no mention of any calls. Ongoing Interest - lack of follow-up [12] According to the P.A.'s testimony, the Appellants were warned that they would be killed if they did not comply with the extortion demands sometime prior to XXXX XXXX, 2014, when they received a second letter. According to the Appellants, they returned to their home in XXXX the very same place they received the demand letter, yet from XXXX XXXX, 2014 until they left Pakistan on XXXX XXXX, 2015, the RPD noted that the Taliban did nothing to force payment. Moreover, the RPD noted that it was the attack on a nearby school that was the precipitating incident because the Appellants had multiple entry Canadian visitor visas issued on August 12, 2014, allowing them to travel at any time throughout the threats from the Taliban. [13] With respect to the male Appellant having been shot, the RPD noted discrepancies with respect to the date of this incident and the circumstances surrounding this incident. The RPD did not accept the P.A.'s explanation that the police did not make an accurate statement of what was said. In any event, the RPD found that the police would have no reason to insert false information by changing the date, however even if this were a simple mistake, there is no reasonable explanation for the entirely different resultant on the car hitting a big tree versus rolling over. [14] The RPD had concerns surrounding the medical reports, in which it is indicated that the P.A. was admitted with a mild head injury, however, the reports do not enlighten on how those injuries were sustained. The Appellants at the hearing stated that there were no further threats after the XXXX XXXX XXXX after police provided security, however the male Appellant later said he received a threat over the phone while he was in Islamabad in XXXX 2014. When the Appellants' BOC forms indicated that the police did not help, the RPD found that this exaggeration went to the Appellants' general reliability. [15] The P.A. submits that the RPD erred with respect to the date of the car shooting incident as the BOC form clearly states that the incident took place on XXXX XXXX, 2014, the same date as it is indicated in the police report. Moreover, it is argued by the Appellant that the details of the accident are not, in fact, contradictory, but simply a difference in the degree of details in the two accounts. It is submitted that the Appellant lost control of the car, and it both flipped over and also hit a tree. [16] With respect to the hospital report, it is argued that the initial admission report confirms that the P.A. was unconscious on admission to the hospital, and that the CT scan confirmed that the P.A. had suffered a fracture to the XXXX XXXX. Moreover, it is agreed that the follow-up on XXXX is required however, it is argued that the RPD failed to recognize that the first time XXXX XXXX diagnosis was made while the P.A. was hospitalized. Finally, the P.A. submits that the RPD erred when it stated that the hospital reports did not indicate that the injuries were the result of a car accident, as the report indicates "RTA" (road traffic accident). The Appellant further argues that when they received two weeks of protection , it was only after bribing police. [17] After reviewing the audio recording of the proceedings, the RAD finds that there were contradictions surrounding the protection offered by the police, namely whether it was one or two weeks. Moreover, there was no evidence with respect to bribery, and when questioned in this regard, the P.A. expected that the police would provide 24/7 protection, which as commented by the RPD during the proceedings, would not be afforded to the P.A. in Toronto. As well, the RPD correctly noted that this evidence was not contained in the P.A.'s BOC form. The RAD also finds that there are contradictions surrounding the last time the P.A. received threats from the perpetrators. [18] With respect to the medical report, the RAD accepts that the RPD was over zealous in its findings in this regard. The RAD concurs that whether or not the car flipped over or hit a tree is irrelevant. The RAD further accepts that although not examined at the hearing, it is reasonable that "RTA" would denote a highway traffic accident. However, having said this, the RAD finds that these conclusions do not detract from the credibility findings made by the RPD surrounding the central allegations of this claim as these details do not confirm the cause of the accident.. The RAD's analysis of the Appellant's return to XXXX is as follows. Agent of harm [19] The RPD noted the fact that the caller who was extorting the Appellants in a phone call, indicated that a few days later he would be provided with the place and time of payments. Given that there was no follow-up as noted earlier, the RPD found that it was even less likely that it was the Taliban who were the agents of harm. [20] The RAD finds that there was insufficient persuasive evidence that it was the Taliban who were the alleged agents of persecution as opposed to any other criminal elements who were extorting the P.A. and his family. After reviewing the audio recording of the RPD proceedings, the RAD found that the P.A.'s responses in this regard to be vague and speculative, for example, "Yes, it could be other criminals but from Taliban we have big fear". Delay in leaving [21] The Appellants were first threatened shortly after XXXX XXXX, 2014. Following this, there were several phone calls in different cities and a further threatening letter. The Appellants returned to their hometown of XXXX where they remained a few months before leaving Pakistan. The RPD noted that despite having valid visitor visas for Canada, issued on August 12, 2014, the Appellants remained in Pakistan until XXXX XXXX, 2015. Their explanation for the delay was medical due to the incident that the P.A. sustained. However, the RPD did not accept this explanation as the P.A. continued his work and moved within Pakistan as well. [22] The RPD also noted contradictory testimony wherein the Appellants explained that they thought things would have calmed down, which was in direct conflict with their previous explanation that they kept getting calls to arrange the money and threats against their lives. Furthermore, the Appellants' testimony with respect to the school attack having precipitated their departure is also in conflict with the evidence of the alleged continuing threats. The RPD drew an adverse inference. [23] The P.A. submits that due to health and business reasons, he and his family could not leave Pakistan earlier. It is argued that the P.A. had a number of business transactions pending, without which he would not have the funds to be able to pay for his family's five round-trip plane tickets (at $1,800.00 each). The P.A. acknowledges that this testimony was not adduced at the RPD hearing. After listening to the audio recording of the proceedings, the RAD finds that the P.A. was evasive when responding to the reason he returned to XXXX. Finally, when questioned further, the P.A. acknowledged that even though he had returned to his own home, there was no further contact from the perpetrators. [24] After listening to the audio recording of the proceedings, the RAD finds that not only was this issue not raised, but the testimony reveals that the family indicated that they had to sell their house to facilitate their departure. The RAD further finds that the only reference to "business" was in terms of very important business related commitments. Although the RAD concurs that medical reasons were provided, the focus on the response was related to the foregoing business transactions. [25] Finally, when questioned further, the P.A. acknowledged that even though he had returned to his own home, there was no further contact from the perpetrators. [26] The RAD further finds that the delay in the Appellants' departure is significant if we are to believe the Appellants' fears of the extortion demands, as opposed to the attack on a nearby school. We find, given the delay and the contradictions surrounding this evidence, it calls into question the veracity of the Appellants' fears and the reason for their departure from Pakistan. [27] The RPD concluded that the Appellants acknowledged that there are many groups in Pakistan that threaten to harm people, especially business people, if they do not comply with their demands for money and this is confirmed in the country documentary evidence.2 The RPD concluded that the Appellants have not established that the agents of persecution were the Taliban, and therefore, there could be no implied or imputed political opinion. Furthermore, the RPD found that the Appellants could not establish an ongoing threat or risk of harm. However, the RPD found that even if it did not accept the foregoing as being a "generalized" risk, it examined the viability of an internal flight alternative, in Karachi, Islamabad or Lahore. [28] The P.A. submits that the RPD erred when it found "generalized" risk as opposed to "particularized" risk, particularly when business people are targeted and threatened with harm if they do not comply with extortion demands. [29] With respect to the first prong of the IFA test, the RPD noted that the Appellants stated that they were located in Islamabad and Lahore. However, this evidence was found to be unreliable and at best, it was a call on the P.A.'s cell phone Moreover, the RPD noted that the Appellants stated that they have left these places because their family did not want them there anymore. The RPD found that the agents of harm have not shown an ongoing interesting in harming the Appellants. Furthermore, the RPD noted that the Appellants were able to return to their very own home in their hometown of Peshawar without further incident. Accordingly, the RPD found that the agents of persecution did not have a profile of individuals who were interested in and could easily find and harm the Appellants. [30] On the second prong of the IFA test, the RPD found that given that the P.A. was well travelled and a well connected business person, it would not be unreasonable in the circumstances for the Appellants to relocate to any of the suggested IFA's, particularly Karachi. RAD's FINDINGS [31] The RAD does not find it necessary to conduct an analysis with respect to the issue of generalized risk. Although the RPD made mention of generalized risk, the RAD finds that it was not a determinative finding of the RPD. The RAD for the most part concurs with the RPD's findings with respect to the Appellants' credibility. [32] In addition to the foregoing issues, however, the RAD found further issues relating to credibility, which were dealt with in the hearing, but not in the RPD Reasons. For example, the P.A.'s brother-in-law submitted an affidavit, which contradicts evidence of the P.A., i.e. the amount of money being extorted and evidence that the P.A. was not offered protection, when in fact he had two officers assigned to him for a period of two weeks. No explanation was proffered to explain this contradictory evidence. [33] However, even if the RAD were to find the Appellants to be credible, the RAD finds that the RPD did not err when it found that there was a viable IFA in Karachi. [34] The P.A. argues that he was found outside of XXXX, however the RAD finds that this was simply a phone call on the same cell phone that had been utilized while in XXXX. In other words, the RAD finds that this does not indicate that the Appellants were located outside of XXXX. The information contained in the BOC does not suggest that the perpetrators were aware of the P.A.'s location. Furthermore, although the P.A. insisted that he had reported threatening calls to the police, this information is not contained in the police reports. Moreover, the RAD finds that following the Appellants' return, they were not located even though they returned to their own home. The RAD finds this is significant as the perpetrators were aware of their address in XXXX as the original extortion letter had been delivered to that address. [35] The RAD finds that the RPD properly assessed the viability of an IFA, applying the Federal court jurisprudence with the two-prong test. The RAD concurs that the Appellants would not, on a balance of probabilities, be located in an IFA. Moreover, the RAD finds that given the business profile of the P.A. and that there are no other impediments that it would not be unreasonable for the Appellants to relocate within Pakistan, particularly in Karachi. [36] After conducting an independent assessment of the entire record, the RAD finds that there were credibility issues surrounding the central allegations of this claim and it owes deference to the credibility findings surrounding the central allegations of this claim. However, the determinative issue is an internal flight alternative, and in this regard, the RAD finds that the Appellants have a viable IFA in Pakistan. [37] This appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the decision of the RPD. (signed) "Roslyn Ahara" Roslyn Ahara September 8, 2015 Date 1 Huruglica Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. 2 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Pakistan, version 30 January 2015, item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05321 TB5-05322 TB5-05323 TB5-05324 TB5-05325 TB5-05326