Category: Pakistan

Citation: 2021 RLLR 85
Tribunal: Refugee Protection Division
Date of Decision: February 18, 2021
Panel: L. Letheren
Counsel for the Claimant(s): John Savaglio
Country: Pakistan
RPD Number: TB9-34953
Associated RPD Number(s): TB9-35006 / TB9-35018 / TB9-35025
ATIP Number: A-2022-01778
ATIP Pages: N/A

DECISION

[1]    MEMBER: So these are the reasons for the claims made by XXXX XXXX, file number TB9-34953, who’s the principal claimant, the associate claimant, XXXX XXXX, TB9-35006, and the minor claimants XXXX XXXX, TB9-35018, and XXXX XXXX XXXX TB9-35025.

[2]    XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are citizens of Pakistan. The minor claimant, XXXX XXXX, is also a citizen of the United States of America. They’re all claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]    XXXX (ph), sorry, XXXX XXXX is the minor claimants’ father and he’s the designated representative for these minor claimants. These claims are being held together in accordance with the Refugee Protection Division rule number 55.

[4]    Your personal and national identities were established on a balance of probabilities by your testimony and the certified true copies of the passports that were included in the file. They demonstrate that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are citizens of Pakistan. XXXX XXXX is a citizen of Pakistan as well as United States.

[5]    Your allegations are fully set out in your basis of claim forms which are Exhibits 2.1, 2.2, 2.3, 2.4. You allege that you’re Shia Muslims. For the past 14 years the principal claimant, you’ve run a successful business and your financial situation allow you to make large donations to the imambargahs in your home area in Gujranwala. And that you’ve helped and managed and administer the Shia religious Majalis in your imambargah.

[6]    You’ve also made many charitable donations to insist in improving the welfare of the poor in your community. You testified that your donations to the poor were given irrespective of the religion of the people. You were well-respected by many people in your business community, and because of your connections within the business community, you were able to assist many Shia leaders to get permission for religious ceremonies in Gujranwala.

[7]    You testified that your activities drew negative attention from the radical Sunni in your community who accused you of spreading Shia Kafir among the vulnerable Sunni. You allege you were attacked and injured by men who identified themselves as soldiers of the Lashkar-e-Jhangvi or LeJ when you were working in your office in Gujranwala.

[8]    You and your family then moved to Rawalpindi for protection, and when your family were travelling in your car coming home from the market, shots were fired at you. You made police reports about both of these incidents but protections were not forthcoming, and as far as you learned, the police never did investigate these incidents.

[9]    The threats from the LeJ members continued until you left Pakistan, and you’ve learned from your father that the LeJ have come to see him looking for you, and to give you warning not to return to Pakistan. And this happened after you had moved to Canada.

[10]  You believe that you cannot safely return to Pakistan with your profile as a prominent financially-stable Shia Muslim who’s active in your Shia community.

[11]  I find that XXXX XXXX XXXX XXXX XXXX and XXXX XXXX are convention refugees as you have established a serious possibility of persecution should you return to Pakistan. For the principal claimant, XXXX XXXX, this is based on the grounds of section 96 of your religion as a Shia Muslim. The associate and the minor claimant, XXXX XXXX XXXX are members of a particular social group as they are family members of a prominent Shia who was targeted because of his religion.

[12]  The minor claimant, XXXX XXXX, is not a convention refugee or a person in need of protection, as she has not established that there’s a serious possibility of persecution on a convention ground or that on a balance of probabilities she would be personally be subjected to a danger of torture, or face cruel and unusual treatment or punishment or risk to her life if she returned to the United States.

[13]  Therefore the following reasons apply to my assessment of the remaining claimants. I found you, the principal claimant who provided testimony, to be a very credible witness. I did not find any inconsistencies between your testimony and the documents.

[14]  Your evidence demonstrates for the past 14 years you have run your own business XXXX XXXX XXXX XXXX The business has been successful and your financial situation has allowed you to make large donations to your imambargahs in your home area in Gujranwala.

[15]  Because of your prominence in your community you’ve helped to manage and administer the Majalis in your imambargah. You’ve made many charitable donations to assist in improving the welfare of your community. You testified that your donations to the poor were given irrespective of their religion. You were well-respected by many people in your community both Sunni and Shia members.

[16]  Your evidence is that your aim at doing the work in your imambargah and in your community was to reduce the misconceptions about Shia, and to present a peaceful image for both Shia and Sunni to live together. You promoted the peaceful relationships between the two groups in your community by organizing a number of religious ceremonies and, and inviting lecturers into your community to explain more about the commonalities between these groups as opposed to their differences.

[17]  As a result of this community involvement you were targeted by the LeJ. Members of the LeJ attacked you in your Gujranwala office. You were beaten and you were accused of spreading the Shia Kafir to the vulnerable Sunni. After you moved to Gujranwala — from Gujranwala to Rawalpindi and ended your religious and community activities, you continued to be threatened. Shots were fired at you and your family as you travelled through the city.

[18]  The LeJ made further threats to you and your family, and you had supporting documents submitted at Exhibits 4 and 5 to corroborate your allegations. You disclosed supporting letter from your imambargah in Pakistan and that document corroborated your allegations about your donations and your involvement, along with the threats you received.

[19]  You submitted police reports (indiscernible) reports, hospital records, and also you submitted many documents supporting your business activities. You had affidavits from several people who you had helped by making donations, and affidavits from your family members confirming your experiences, and that your father had been threatened since you left Pakistan.

[20]  These documents demonstrate your continued practice of the Shia faith in Canada. They also demonstrate the persecution you experienced. So I find on a balance of probabilities that these documents corroborate your testimony and support your allegations that you were targeted in Pakistan by the Lashkar-e-Jhangvi due to your profile as a well-established Shia businessman with significant prominence in your home community in Pakistan.

[21]  You established your credible evidentiary basis for subjective fears in returning to Pakistan. Based on your credibility of your allegations and because of your profile, I find that you, your wife and children became targets of the LeJ. The evidence demonstrates that you continue to be targeted even after you left Pakistan.

[22]  It established that you will continue to be an active Shia member if you were to return to Pakistan, and the feature if you would continue to demonstrate the importance to you of making donations and to assist those who are less fortunate. You expressed how important these activities are to you, as they integral to your beliefs.

[23]  Your testimony and the documentary evidence that we have demonstrates that well-founded fear of persecution and there’s a serious possibility that you and your family will be subjected to death threats and violence at the hands of Islamic extremists if you returned to Pakistan.

[24]  The evidence establishes that there’s been an increase in killings of Shias by militant groups, and targeted killings of Shia Muslim professionals and officials and prominent businesspeople in Pakistan. The risks you would face are corroborated by the package of country condition documents that are submitted at Exhibit 3; the national documentation package for Pakistan.

[25]  Item 7.12 of that national documentation package describes the LeJ as a band Sunni militant group, a Sunni terrorist outfit being one of the most violent extremist organizations in Pakistan. It’s been responsible for the killing of hundreds of Shias since its formation in 1996, and the group has been behind some of the most violent attacks of Shia Muslims in the recent years.

[26]  Item 1.8 of the national documentation package reports that the militant groups responsible for some of the most — are responsible for most of the attacks against Shias, are including the LeJ, and that sectarian violence against Shia continues to be a growing threat in Pakistan. There are reports of targeted killings of Shia professionals and officials, including doctors, politicians, prominent businesspeople, which is a profile that I find the principal claimant fits within.

[27]  Item 12.5 indicates that Shia have traditionally represented the highest proportion of casualties in sectarian violence throughout Pakistan, noting that Shia faced threats from many militant groups including the LeJ. The Shia community is very large in Pakistan, and so not all Shias from Pakistan have a well-founded fear of, of persecution.

[28]  However, the national documentation package supports your claim that due to the principal claimant’s prominence as a successful professional who’s made significant donations and being very active in the Shia community, you have a profile that would be likely attractive to the extremists like the LeJ.

[29]  Your evidence demonstrates on a balance of probabilities that you’ve established a well-founded fear of persecution should you return to Pakistan.

[30]  I find that you’ve also rebutted the presumption of state protection in your case. I accept that you contacted the police, that protection was not forthcoming. You filed reports to the police, your brother checked, checked back with the police and you’ve learned that nothing has ever been given as far as information with respect to the steps of the investigation into the incidents you reported.

[31]  The objective documentary evidence in the national documentation package shows that the government has been criticized for failing to protect Shia Muslims from attacks and for allowing militant groups to operate with impunity, failing to investigate and punish those responsible for the violent attacks against Shias in Pakistan. It describes the authorities as often being indifferent, incompetent, and even complicit in the violence against Shias.

[32]  Item 7.12 states that if someone is threatened by the LeJ, asking for protection from police is not effective because the Shia community is too large and the police cannot provide security to everyone. The courts are also ineffective because many of the witnesses don’t come forward to testify out of fear, and therefore they release suspects due to lack of evidence.

[33]  In light of all this evidence I find there’s a preponderance of objective documentary evidence that there’s a clear and convincing evidence before me that the state is unable and unwilling to provide you with adequate protection.

[34]  I considered whether it was safe for you to live in another area of Pakistan, and I suggested Lahore could be a viable alternative. I accept your evidence about the importance for you to be able to practice your faith and continue to contribute to your community.

[35]  You testified that through these actions, through your business transactions, through your need to register or your rental documents and other documents with the police you would be identified, and that those working in government administration, many of whom could be sympathizers to the LeJ would identify you and you would be discovered.

[36]  Item 1.8 of the national documentation package indicates that armed militant groups such as the LeJ have a wide geographic reach in Pakistan. Item 7.2 reports that the LeJ is responsible for violence throughout Pakistan, and that likely there’s no internal flight alternative available to those at risk of being targeted, or who have already been targeted by such groups.

[37]  The LeJ continued their threats even after you left Gujranwala, and since coming to Canada. This demonstrates that they have a continued interest in finding you and that they would find you and harm you if, if you returned to Pakistan.

[38]  Even if you were able to relocate for a short period of time in Lahore, your active faith and your, and your donations, your activities in your community would again make you a prominent figure in this community and this would create a serious possibility that you would eventually be found and persecuted in the future.

[39]  It would be unreasonable for the Board to expect you to restrict your religious practices and your freedom to assist your communities just because of your fear of this group. The LeJ has been persistent in its search for you, demonstrated a continued motivation, and I find that they have the capacity to find you, given their reach and influence in Pakistan.

[40]  The associate claimant and the minor claimant are also Shia. The associate claimant and the children may not have the same heightened profile as the principal claimant, but they are also at risk. In the past you were, you were with the principal claimant in a vehicle when you were under attack. The LeJ soldiers have indicated that they would harm all of you as a family.

[41]  You’ve credibly demonstrated on the evidence that there’s a serious possibility that you also would face risk if you returned to Pakistan and throughout Pakistan, including Lahore.

[42]  The Board therefore finds that on a balance of probabilities the claimants’ lives would be at risk throughout Pakistan. The Board’s determined that the claimants have no viable internal flight alternative in Pakistan, including Lahore.

[43]  Based on this analysis I conclude that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are convention refugees and I accept your claims.

[44]  The minor claimant, XXXX XXXX, is neither a convention refugee nor a person in need of protection. Her claim is therefore rejected by the Board.

———- REASONS CONCLUDED ———-

Citation: 2021 RLLR 79
Tribunal: Refugee Protection Division
Date of Decision: June 4, 2021
Panel: Laurie Letheren
Counsel for the Claimant(s): John Savaglio
Country: Pakistan
RPD Number: TC0-01196
Associated RPD Number(s): N/A
ATIP Number: A-2022-01778
ATIP Pages: N/A

DECISION

[1]       MEMBER: I’ve had an opportunity to review your testimony today as well as all of the documents you provided, and I am now ready to provide my decision and my reasons.  I have found that you are a Convention refugee on the basis of your religion, as a Shia Muslim who is persecuted because of your religion in Pakistan. And here are, the following are my reasons.

[2]       So, this is the claim made by XXXX XXXX, file number TC0-01196. You’ve established both your personal identity and your citizenship as a citizen of Pakistan through your documents and in particular, the certified true copy of your passport. The allegations that you made were set out fully in your Basis of Claim form at Exhibit 2. As well as the amendments you made to that form at Exhibit 4.

[3]       You allege that you are a Shia Muslim. You had some success, financial success as an XXXX when you worked in the U.A.E. where you worked for many years. And even though you were unable to openly practice your Shia faith in the U.A.E., you remained dedicated to your Shia faith and your community. And you made large donations to your Imam Bargah for its expansion back in Pakistan. You gathered donations from other members of the Shia community in the U.A.E. and with those, you were able to again make further large donations in 2018.

[4]       This resulted in some suspicion by the Government of the U.A.E. And you were questioned by the U.A.E. Intelligence about your Shia activities and you were ordered to leave the U.A.E. in July of 2019. And that you and your family did leave in, XXXX of 2019.

[5]       So, I find that although you lived in the U.A.E. for many years, your residency there was temporary. And you didn’t have a status in the U.A.E. that was substantially similar to that of its nationals. So, I therefore find that the circumstances of your claim do not engage any exclusions under Article 1-E of the Immigration and Refugee Protection Act.

[6]       So, according to your allegations and the testimony you gave today, you moved to Pakistan in XXXX of 2019.  You became very engaged in your Shia community.  And you were appointed as the XXXX XXXX of the Imam Bargah. You became very popular with the religious leaders and with members of your community. And you became very well known throughout your community.

[7]       This attracted the attention of the Sunni extremists and in particular, members of the Lashkar-e-Jhangvi who threatened you to the point where you feared for your life. And you left Pakistan in XXXX of 2019. You feel you can’t return to Pakistan with your profile as a prominent Shia who is very active in your community. And that because of this prominence and the interconnectedness of members of the LeJ and other Sunni extremist groups, you wouldn’t be safe anywhere in Pakistan. You would not be provided adequate state protection.

[8]       I found that you were a very credible witness. I didn’t find any inconsistencies between your testimony and what you have in your Basis of Claim form and the documents you filed. It did demonstrate that you worked in the U.A.E. as an XXXX for many years. And that you were able to provide XXXX XXXX to your Imam Bargah in the form of very substantial donations on your own. And then very substantial donations over a period of time through the donations you collected through other members of the Shia community in the U.A.E.

[9]       You sent that money to Imam Bargah in Sialkot (ph) which is a city in the Punjab Province. And you helped to maintain the Imam Bargah to expand it and to XXXX XXXX XXXX XXXX XXXX XXXX Of Imam Bargah. A great deal was done by your donations to assist this Imam Bargah.

[10]     After you returned to Sialkot, you were assigned the role of the XXXX XXXX XXXX of your Imam Bargah which involved XXXX XXXX and in these events you explained that it was a bit unique the type of Majaliss and organizing that you did. ln that you had both Sunni and Shia speakers who came together that you explained to speak about the common believes of the Sunni and Shia. And to attempt to moderate the differences between these two (2) Muslim sects in Pakistan.

[11]     You wanted to work towards the education of the people. And to try to debunk some of the misconceptions that the Sunnis have about Shia. You testified how important it was to you to do this because in the 80s and 90s, you didn’t have so many difficulties being a Shia and being a minority in Pakistan. You explained that through all this work that you did, you became very well known. And a prominent member of your Shia community. You were out in your community often, talking to the members. And you became a face that was recognizable.

[12]     So, as a result of all of this involvement, you were targeted by the anti-Shia extremist group the Lashkar-e­ Jhangvi or the LeJ. On one (1) evening after the Majaliss on September 10th, 2019 your car was stopped by armed men. You were beaten and assaulted by these men who told you that they had received from reports from their supporters, from the people who support and who believe in them, about your work. And the work that you were doing in the area. And they were accusing you of influencing impressionable Sunni. And trying to convert the Sunni to be Shia. And they called you a Kafir, and that you were spreading the Shia Kafir.

[13]     So, after this happened and you were hospitalized, your family and the leaders of the Imam Bargah suggested that you should be leaving Sialkot. And so, you and your family moved to an area of Rawalpindi. But the same day, you said around 4 o’ clock on September 11th, you received a call from a group identifying themselves again as the LeJ. They called you a Kafir and said you were on their hit list and they would shoot you the next time they saw you in Pakistan.

[14]     You reported this call to the police. And the police said you should take your own precautions, provide your own safety because they couldn’t do anything to assist you as they didn’t have enough information about the men who attacked you. In order to try to have some safety, you turned off your phones. And you tried to keep yourself hidden while you were in Rawalpindi.

[15]     On the same day, September 11th, 2019 your parents told you that some armed men attended at their home. They did some damage to their home. They explained they were trying to find you to make an example of you. And that they would, to tell you, warn you, that they would find you. And if they did, they would kill you. Your brother reported this incident to the police. And they told him to tell you, you should just leave Pakistan as it appeared that the LeJ were intent on finding you and that they would kill you.

[16]     So, you left for Canada in the next few days. Your family has reported that neighbours have told them that from time to time these same extremists have come around your neighbourhood in Sialkot asking for you. And that as recently as April 4^th 2021 some people came around asking about you. Said they still planned to kill you if you returned to Pakistan.

[17]     So, all of your supporting documents which are at Exhibits 5 and 6 corroborate your allegations. You disclosed letters from your Imam Bargah which corroborated the work that you did. The donations you made. And the persecution you experienced. You also submitted police reports, FIRs, and hospital reports which corroborated your testimony. You have many affidavits from several individuals who confirmed your involvement with the Shia community in Pakistan. As well as the threat and harms that you experienced by the LeJ. The affidavits from your brother confirm that members of the LeJ continue to ask about you and continue to threaten you. So, your documents do demonstrate as well that you continue to practice your Shia faith in Canada. Given the COVID restrictions, it’s not how you would ordinarily practice, but you are a member of the Shia community.

[18]     So, I find on a balance of probabilities that these documents corroborate your testimony and support your allegations. That you were targeted in Pakistan by the LeJ due to your profile as an established Shia, prominent in your community. You’ve established a very credible evidentiary basis for your subjective fears of returning to Pakistan.

[19]     And based on your credibility and your allegations, that you became a target of the anti-Shia extremist group, the LeJ, and that this continues. And also, your evidence is corroborated and supported by the documentary evidence that we have in our National Documentation Packages. They demonstrate that you have a well-founded fear of this persecution. That there is a serious possibility that you would be persecuted by the LeJ if you were to return to Pakistan.

[20]     The evidence in the NDP demonstrates there have been increased killings of Shia by militant groups. Targeted killings of Shia professionals and officials and those who are prominent members of the community. It also establishes the risk that you would face, especially at exhibits throughout the National Documentation Package. Such as at Item 1.8 that reports that militant groups are responsible for most of the attacks against Shia. And that groups such as the LeJ have continued to be growing and they are a growing threat. There are reports about targeting killings of professionals, Shia professionals and officials. And those who have a profile such as yours, to be prominent. Persons such as engineers who are perceived to be a financial influence. And could be influential throughout the Shia community.

[21]     Item 12.5 indicates that Shia have traditionally represented a higher proportion of the casualties of the sectarian violence throughout Pakistan. And in particular, by anti-Shia militant groups. Even though the Shia community is a very large community in Pakistan and not all Shias from Pakistan have a well-founded fear of persecution, the NDP does support your claim that due to your prominence and being someone who is now targeted, you would continue to likely be more, there’s a very high reason to anticipate that you would be targeted if you returned to Pakistan. So, I find that this objective evidence demonstrates on a balance of probabilities that you’ve established a well-founded fear of persecution should you return to Pakistan.

[22]     You’ve rebutted your presumption of state protection. You indicated that even though you registered the incident that happened with the first information report, you were told that the police would not be naming the LeJ even though they had clearly identified themselves to you. When you made further complaints about the threats at your parents’ home and the phone calls that you received, you were just told by the police to take your own precautions. That they couldn’t help you. And that perhaps in the end they suggested you should leave the country as it appeared that this group was motivated to kill you. And that they couldn’t provide you with the safety you needed.

[23]     This is also supported in the objective documentary evidence we have in the National Documentation Package. Which demonstrates that the government has been criticized for failing to protect the Shia community from their attackers. And for allowing militant organizations to operate with impunity. They failed to investigate or punish those that are responsible for violent attacks against Shias in Pakistan.

[24]     As well, Item 7.12 states that if someone has been asking for some protection from extremist organizations, the police are not effective. They cannot provide security. And courts are not effective. And often, as you indicated, these groups seem to be able to get their members released from courts due to what is often called lack of evidence. So, I find that both your testimony and the evidence, that there’s a preponderance of evidence to demonstrate that you have clear and convincingly demonstrated that the state is unable and unwilling to provide you with adequate state protection.

[25]     At the beginning, l suggested that you may have an internal flight alternative within the city of Lahore. But I accept your testimony about the influence and the interconnectedness of these extremist groups. As well as their connections within the police and other government organizations. They have a presence throughout and are connected throughout Pakistan.

[26]     Item 1.8 of the National Documentation Package indicates that armed militant groups such as the LeJ have wide geographic reach. Item 3.18 confirms what you were testifying about, the need to register any rental agreement you have with the police. As well as any kind of various interactions you would have with government officials. Just in doing your daily business.

[27]     And Items 7.9 and 7.10 discuss how the police and government in Pakistan work together with these extremist organizations. They continue, the LeJ continue to make threats even though you moved from your original location in Sialkot. And they also have demonstrated that they are continuing, have a continuing interest in finding you. And have indicated that if they were to find you, they would kill you.

[28]     They’ve therefore demonstrated their motivation to continue to locate you. Regardless of where you would be in Pakistan. You’ve indicated that even if you were to move to Lahore, you may only be protected for a short time. Because due to the importance of practicing your faith, being part of Imam Bargah and being a part of your community, you would eventually be located.

[29]     There’s a serious possibility that those within Lahore who support a group such as the LeJ would be able to inform them where you are. l find that it is unreasonable to expect you to restrict your religious practice or restrict any of your freedom because you fear this group.

[30]     So that, l therefore find that on a balance of probabilities, your life would be at risk throughout Pakistan. You have no internal flight alternative that is viable for you, including Lahore. You also would have no state protection.

[31]     So, therefore based on all of my analysis, all of your testimony, the evidence that we have, I conclude that you are a Convention refugee. And I accept your claim.

———- REASONS CONCLUDED ———-

Citation: 2021 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: June 15, 2021
Panel: Rodrick Flynn
Counsel for the Claimant(s): Miranda Lim
Country: Pakistan
RPD Number: TB9-17419
Associated RPD Number(s): TB9-17487
ATIP Number: A-2022-00210
ATIP Pages: 000035-000044

REASONS FOR DECISION

[1]       XXXX XXXX (“the principal claimant”) and his wife, XXXX XXXX (“the female claimant”) (collectively “the claimants”) are citizens of Pakistan and are seeking refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.¹

ALLEGATIONS

[2]       The specifics of the claimants’ allegations are set out in the common narrative² attached to each of the Basis of Claim forms.³ In summary, the claimants indicate that they are bath members of the Ahmadi Muslim faith⁴ and fear persecution in Pakistan on the grounds of their religion⁵. The principal claimant was a resident of Italy from XXXX 2005⁶ to XXXX 2019⁷ and was issued an EC Long-Term Residence Permit (“the Permit”) in late 2018⁸ before the claimants carne to Canada on XXXX, 2019.⁹ After growing up in Pakistan, the female claimant lived in Germany on a student visa from XXXX 2015 to XXXX 2019 on a series of term student visas.¹⁰

DETERMINATION

[3]       The panel finds the claimants to be Convention refugees under section 96 of the IRPA, based upon their Ahmadi religion.

ANALYSIS

Identity

[4]       The claimants’ respective identities as citizens of Pakistan are established by the various documents on file¹¹, including a copy of their respective Pakistani passports¹² which were submitted into evidence at the hearing.

[5]       The claimants’ religious identities as members of the Ahmadi faith are established, on a balance of probabilities by their credible oral evidence concerning the nature and history of their faith and their participation in religious activities; as well as various documents entered into evidence. These records include:

• Canadian Ahmadi Certificates¹³;
• Ahmadi identity cards;¹⁴
• Ahmadi donation receipts from Canada;¹⁵
• Ahmadi donation receipts from Pakistan;¹⁶
• Ahmadi donation receipts from Italy and Germany;¹⁷ and
• various other confirmations of their participation and recognition in the Ahmadi faith.¹⁸

Credibility

[6]       Both of the claimants gave oral evidence at the hearing. Generally, the panel finds them both to be credible witnesses, particularly with respect to their official marital status in Europe; their status in Italy and the EU and the Permit; and the most significant elements of their claims, including the reasons why they had left both Pakistan and Europe and came to Canada.

Well-founded fear of Persecution

[7]       As the panel has accepted the claimants’ respective religious identities as members of the Ahmadi faith, and in view of the clear and consistent objective evidence from the National Documentation Package for Pakistan¹⁹ that Ahmadis face persecution on religious grounds throughout Pakistan from both state and non-state actors without adequate state protection, the panel finds that there is a serious possibility of persecution for the claimants should they return to Pakistan.

[8]       The claimants have persuasively testified that they fear persecution and violence in Pakistan from various sources including the Pakistani government and religious extremists. This subjective fear is confirmed pervasively in the objective evidence.

[9]       As summarized by the UNCHR in Item 1.8 of the NDP for Pakistan, at p.46, Ahmadis in Pakistan face systemic discrimination and persecution both state-sponsored and from numerous private actors (including religious extremists as raised in the claimants’ oral evidence).²⁰

“Repressive and discriminatory legislation coupled with State-sanctioned discriminatory practices have reportedly fostered a culture of religious intolerance and impunity. Consequently, members of the Ahmadi community are reportedly left vulnerable to abuse, violence including killings, harassment and intimidation at the hands of members of the community.”

[10]     The British Home Office Report on Ahmadi Muslims²¹ documents that in 1974, the Pakistani Constitution was amended to declare Ahmadis to be “Non-Muslims“.²² This was followed by a 1984 Amendment to Pakistani Penal Code, which are ” … commonly referred to as the anti-Ahmadi laws“.²³

[11]     The objective evidence also records that the systemic state-sanctioned discrimination against Ahmadis is not palliated by correspondingly adequate internal protection. As noted in the aforementioned British Home Office Report at para. 2.5.4:

“The perpetrators of violence against religious and sectarian minorities are rarely apprehended and sentenced. There is a pattern of appeasement amongst the police of, and in some cases collusion with, religious extremists pursuing hate campaigns against the [Ahmadi] community.”²⁴

[12]     Beyond police, the NDP also documents that despite the ostensible goal for the judiciary to be “… the last resort for a persecuted individual” to benefit from the rule of law²⁵, the reality of like in Pakistan is that ” …the judiciary itself sometimes promotes tyranny“.²⁶

[13]     The panel is persuaded, based upon the objective evidence from the NDP, that as members of the Ahmadi faith, the claimants face a serious possibility of persecution on this ground, throughout Pakistan, without adequate state protection.

Exclusion – Article 1E

[14]     The Minister has intervened in this matter in writing. In its “Notice of Intent to Intervene

-Exclusion 1E,”²⁷ the Minister has taken the position that because the principal claimant obtained the Permit in Italy in 2018,²⁸ he is a permanent resident of Italy, who, along with the female claimant, “…enjoy basic rights substantially similar to those of [Italy’s] nationals….”²⁹

[15]     According to the Minister, because of the Permit, the principal claimant has permanent status in Italy and rights substantially similar to nationals so as to warrant their exclusion under 1E. With respect to the female claimant, the Minister has offered that “more likely than not, [the female claimant] already has permanent resident status and/or has access to permanent resident status as she is the spouse of a permanent resident“.³⁰

[16]     According to the Minister, because the claimants both have this status in Italy, the claimants are excluded from refugee protection under the IRPA by operation of s.98 of the IRPA and Article IE of the Convention which read as follows:

“A person referred to in section E or F of Article 1 of the Refugee Convention³¹ is not a Convention Refugee or a person in need of protection”.³²

Article 1E reads:

“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”.³³

[17]     The potential exclusion of the claimants was the principal focus of the hearing. The leading case on exclusion under Article 1E is the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Zeng³⁴ which has been applied by the panel.

Current Status of the Claimants in Italy

[18]     The Minister contends that because the claimants have status in Italy – the principal claimant by the Permit and the female claimant by marriage to the principal claimant- they have rights in Italy which are substantially similar to nationals of that country.

[19]     This determination for each claimant must be made on the evidence.

Current Status of the Principal Claimant in Italy

[20]     The panel is satisfied, on a balance of probabilities, on the evidence before it, that the principal claimant was granted the Permit during 2018. However, the objective evidence of the NDP for Italy³⁵ shows that the status and rights accorded under the permit are lost by a person spending more than 12 consecutive months outside of the European Union.³⁶ Two Response to Information Requests in the NDP for Italy confirm that a Permit is “… voided if the person is absent from Europe for 12 consecutive months”.³⁷ This objective evidence further stipulates that status accorded under the Permit can be revoked if the resident no longer meets the requirements³⁸, such as an annual income requirement.³⁹

[21]     The evidence before the panel is that the claimants have been in Canada (without leaving) since XXXX 2019. Accordingly, based upon this objective evidence, the panel finds, on a balance of probabilities that, at the time of the hearing, having remained out of Italy for over 12 months, the principal claimant’ s status in Italy will have expired.

Status of the Female Claimant

[22]     The Minister’s position is the female claimant acquired status in Italy under the Permit by marriage to the principal claimant. As noted in the Minister’ s Brief:

” … the Minister is of the opinion that the [female claimant] has permanent resident status in Italy via spousal sponsorship”.⁴⁰

[23]     However, in the panel’s view, this conclusion is not supported, on a balance of probabilities, by the evidence before it. Both the principal claimant and female claimant credibly testified that despite their religious marriage by proxy (from Italy and Germany respectively through the Whatsapp application) in XXXX 2016,⁴¹ attempts by the previously-married principal claimant to obtain proof from the Pakistani Consulate in Milan Italy (in the form of a “No Objection Certificate”) that he was free to enter into a civil marriage with the female claimant were refused.⁴² Similar efforts by the female claimant to register the marriage in Germany were also unsuccessful.

[24]     The evidence before the panel is that the claimants’ marriage has not been officially registered with any European authority, including in Italy. Accordingly, the panel has no evidence before it to demonstrate, on a balance of probabilities, that any benefit would be extended to the female claimant as a spouse; or that there is any overt sponsorship or sponsorship of the female claimant under the Permit by operation of law.

[25]     Accordingly, the panel is not satisfied, on a balance of probabilities, that the female claimant has permanent resident status in Italy or Europe or rights under the Permit.

Previous Status in Italy/EU – Principal Claimant

[26]     The objective evidence from the NDP for Italy⁴³ shows that the Permit, while conveying a wealth of substantive rights⁴⁴, confers status which is vulnerable to being lost or taken away from individuals such as the principal claimant on a variety of listed grounds.⁴⁵

[27]     As noted by the Federal Court in Shamlou v. Canada (Minister of Citizenship and Immigration),⁴⁶ (quoting with approval Lorne Waldman, Immigration Law and Practice) at para. 35:

“If the applicant has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence, clearly the applicant should not be excluded under Art. 1E.” [emphasis added].

[28]     In the panel’s view, the objective evidence clearly indicates that the principal claimant’s Permit could be cancelled on a number of grounds,⁴⁷ including that ” … the bearer no longer fulfills the requirements for its issue”⁴⁸ including a stipulated income requirement. ⁴⁹ In the panel’s view, the principal claimant has provided credible evidence of chronic income instability during most of his time in Italy. The panel is satisfied, on a balance of probabilities, that the principal claimant is credible in his testimony s that because of the precarious status of his employment in Italy (comprised mostly by a series of contracts with various enterprises), aside from the issue of his absence (as noted above), he is vulnerable to having the Permit revoked on the grounds that he has not met the requisite income threshold.

[29]     Per Shamlou⁵⁰, on the totality of evidence, because the Permit is vulnerable to being cancelled on multiple grounds, the panel finds on a balance of probabilities, that the principal claimant did not have status in Italy substantially similar to that of an Italian/EU national.

[30]     Further, as the panel has no evidence before it to indicate that the female claimant was conferred any rights, transitory or otherwise, under the Permit, it finds that she does not have status substantially similar to that of an Italian or EU national.

[31]     Accordingly, the panel finds that the claimants should not be excluded under Article 1E of s.98 of the IRPA.

CONCLUSION

[32]     For the reasons as above noted, the panel finds the claimants to be Convention refugees and accept their claims.

(signed) Roderick Flynn        

June 15, 2021 

¹  Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended (hereinafter “the IRPA”).

² Exhibit 2.1 and 2.2, “XXXX XXXX XXXX XXXX XXXX XXXX, (hereinafter “the

Narrative”)

³  Exhibit 2.1 and Exhibit 2.2.

⁴ Narrative, para. 1.

⁵  Ibid., para. 48.

⁶ Ibid., para. 14.

⁷ Ibid, para. 46.

⁸ Ibid, para. 16.

⁹ Ibid, para. 46.

¹⁰ Ibid., para. 35, para. 43-46.

¹¹ Exhibit 4 includes multiple identity documents for both claimants, both photographic and non-photographic, including their National Identity Cards starting at p.66.

¹² Exhibit 1.

¹³ Exhibit 4, p.1.-2.

¹⁴ Ibid, p.3.

¹⁵ Ibid., p.5-6.

¹⁶ Ibid., p.16.

¹⁷ Ibid, p.20-31.

¹⁸ Ibid, p.37-60.

¹⁹ Exhibit 3.1, NDP for Pakistan.

²⁰ Ibid.

²¹ Ibid, “Country Policy and Information Note. Pakistan: Ahmadi Muslims.

²² Ibid, para. 3.1.6.

²³ Ibid, para. 5.1.1.

²⁴ Ibid, para. 2.5.4.

²⁵ Ibid, para. 8.4.11.

²⁶ Ibid.

²⁷ Exhibit 7 (hereinafter “the Brief’ or “the Minister’s Brief’).

²⁸ Narrative, para. 16; Minister’s Brief, para. 4.

²⁹ Minister’s Brief, para. 17.

³⁰ Ibid, para. 20 and 26.

³¹ Schedule to the IRPA, United Nations Convention on the Status ofRefugees.

³² IRPA, s.98.

³³ Ibid.

³⁴ 2010 FCA 118 (“Zeng”).

³⁵ Exhibit 3.2, National Documentation Package for Italy

³⁶ Ibid, Item 3.7 “Response to Information Request (March 6, 2015). Italy: The permesso di soggiorno illimitata including its physical characteristics, requirements and procedures to obtain and renew the document, rights of holders of the document”, p.4. See also “Response to Information Request (28 February 2019). Italy: Grounds for revocation of the European Union (EU) residence permit for long-term residents (perrnesso di soggiomo UE per soggiomanti di lungo period also called perrnesso di soggiomo illimitata whether an individual who has lost their permit can apply to have it reinstated.”

³⁷ Ibid, p.4.

³⁸ Ibid.

³⁹ Ibid., p.2.

⁴⁰ Minister’s Brief, para. 26.

⁴¹ Narrative, para. 35.

⁴² Ibid, para. 37.

⁴³ Supra, note 35.

⁴⁴ Ibid., p.5.

⁴⁵ Ibid., Item 3.7, p.4

⁴⁶ (1995), 32 Imm. L.R. (2d) 135 (F.C.).

⁴⁷ Supra, Note 44.

⁴⁸ Ibid, p.5, bull et 3.

⁴⁹ Ibid, p.2, para. 3.

⁵⁰ Supra, note 46.

Citation: 2020 RLLR 136
Tribunal: Refugee Protection Division
Date of Decision: January 11, 2020
Panel: O. Adeoye
Counsel for the Claimant(s): Miranda Lim
Country: Pakistan
RPD Number: TB9-13712
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000128-000133

DECISION

[1]       MEMBER:    I have considered your oral testimony and documentary evidence before me today and I am prepared to render my decision orally.

[2]       So the claimant, [XXX], claims to be a citizen of Pakistan and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

DETERMINATION:

[3]       I find that the claimant is a Convention refugee on the Convention ground of his religion as per Section 96 of the Immigration and Refugee Protection Act.

ALLEGATIONS:

[4]       The claimant’s allegations are set out in full in his narrative and Basis of Claim Form which is attached to his Basis of Claim Form. So, I would not repeat them all here, but in brief the claimant alleges that he is a devout Ahmadi from Pakistan and that Mullahs and extremists from nearby towns and villages harassed his family and members of the Ahmadi community in general.

[5]       The claimant alleged that anti-Ahmadist laws were used at him and his family members and this increased in frequency.

[6]       He further alleges that he was physically assaulted, his firm was burned down and vandalised and that they were threats of extremist attacks again Ahmadi mosque, businesses, and other institutions in the city.

[7]       The claimant alleges that himself and his family members have faced lifelong discrimination and harassment in Pakistan because of their Ahmadi religion and that due to this persecution, his children all five of them don’t live in Pakistan anymore, they currently live in Canada and Germany.

[8]       The claimant left Pakistan on [XXX] 2019, and made a claim for refugee protection and made the claim for refugee protection in [XXX] 2019.

[9]       The claimant fears harm at the hands of the extremists and also the inability to practice his religion openly and freely without fear in Pakistan.

ANALYSIS:

PERSONAL IDENTITY:

[10]     I am satisfied on a balance of probabilities that the claimant has established his personal identity as a citizen of Pakistan based on a certified true copy of his Pakistani passport attached to Exhibit 1. I further find that the claimant is an Ahmadi based on the documentary evidence he submitted into evidence.

CREDIBILITY:

[11]     Overall, despite the claimant’s age, I found the claimant to be very credible witness on a balance of probabilities on what is core to his claim and also I found the claimant to be able to recall specific incidents that occurred over the years, this also includes incidents that relates to his persecution due to his religion as an Ahmadi from Pakistan.

[12]     I therefore believe what the claimant has alleged in support of his claim.

[13]     The claimant testified in a straightforward manner, there were no relevant inconsistencies in his testimonies or contradictions between this testimony and the other evidence before me that they were not satisfactorily explained.

[14]     The claimant provided sincere and heartfelt oral testimony about his beliefs and the persecution he faced in Pakistan. The claimant’s evidence is not internally inconsistent or implausible or contradicted by documentary evidence or country conditions in Pakistan.

[15]     In coming to my credibility findings, I also considered the numerous specific documents turn out into evidence by the claimant in support of his allegations.

[16]     The panel also does not have sufficient reasons to discount these documents which includes the claimant’s Ahmadi certificate, Ahmadi identity cards from Pakistan and Canada, Ahmadi donation receipts from Pakistan and Canada, Ahmadi executive appointment letter, Ahmadi [XXX] documents, various letters from the Ahmadi [XXX] contained in an old journal, photos with the Ahmadi [XXX], land ownership documents, claimant’s other identity documents.

[17]     Based on all the evidence before me which includes the testimony of the claimant which I found to be credible, I find on a balance of probabilities that the claimant has established his religious profile as an Ahmadi from Pakistan.

REAVAILMENT:

[18]     I had concerns about the claimant’s reavailment to Pakistan in 2008 and the panel therefore accepts the claimant’s explanation in regard to his re-availment and however finds that the claimant’s reavailment is not determinative of his claim.

[19]     I therefore find on a balance of probabilities that the claimant is credible, accept his allegations as credible and that the claimant has established his subjective fear.

WELL-FOUNDED FEAR, STATE PROTECTION AND INTERNAL FLIGHT ALTERNATIVE:

[20]     As it relates to the well-foundedness of the claimant’s fear of persecution, I find that claimant’s subjective fear has an objective basis based on the objective documentary evidence before me on which I would go over.

[21]     In this case, the claimant alleges that he suffered discrimination in daily life in Pakistan and that should he return to Pakistan he would continue to face the societal discrimination and be unable to openly and freely practice his faith without fear and will continue to be target for violence by extremist and Mullahs.

[22]     I find that these allegations are indeed supported by the mutual documentary evidence contained in the National Documentation Package.

[23]     According to the National Documentation Package, Ahmadis in Pakistan are discriminated against in law, also Pakistan laws prohibit Ahmadis from identifying themselves as Muslims.

[24]     Their freedom of religion has been curtailed by series of ordinances, acts and constitutional amendments.

[25]     Also when applying for passport Pakistanis are required to declare that the Mirza Ghulam Ahmad is an imposter prophet and therefore the followers are non-Muslims.

[26]     Ahmadis are also discriminated against by Pakistan society in general and sometimes are also targets for violence by extremists which include being accused of blasphemy.

[27]     According to Item 2.1 of the National Documentation Package, the executive summary sets out the current political and general human rights issues in Pakistan.

[28]     This report confronts that discrimination against religious minorities continued in 2008 in Pakistan and violence and social religious intolerance by militant organization and other non­governmental actors contributed to culture of lawlessness in some parts of the country.

[29]     Also, according to 2013 report, AHLC report attached to the National Documentation Package, the Pakistani government proactively victimizes Ahmadis socially, economically, and educationally.

[30]     According to 2015 report by FIDH, discrimination against Ahmadis is enforced through public policies limiting their access to education, professional opportunities and basic political and civil rights, such as pledging, which means if an Ahmadi applicant wishes to identify, that means an Ahamdi, okay, so I leave that.

VIOLENCE:

[31]     According to the HRCP that’s the Human Rights Commission of Pakistan, seven Ahmadis were killed in 2013 and 16 were assaulted, some were nearly fatal injuries on account of their faith also Al­-Jazeera reports that from January to August 2014, 13 Ahmadis were killed and 12 assaulted for practicing their faith in most were the result of targeted attacks on the individuals.

[32]     These documents clearly demonstrate that Ahmadis are discriminated against in law by society at large in Pakistan and as well are sometimes the targets for violence, abuse by Islamic extremists.

[33]     The document also suggests a recent trend of increasing violence against Ahmadis in Pakistan.

[34]     The aforementioned neutral sources support the claimant’s allegations that the claimant had a serious possibility of suffering serious harm if he were to return to Pakistan.

STATE PROTECTION:

[35]     I find that the claimant has established on a balance of probabilities that adequate State protection is not available to him. In this case above, the State is one of the agents of persecution.

INTERNAL FLIGHT ALTERNATIVE:

[36]     I find that there is no viable internal flight alternative for the claimant in Pakistan as the State is one of agents of harm.

CONCLUSION:

[37]     Therefore I determine that the claimant is a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act on the basis of his religion and I therefore accept his claim and I therefore find that the claimant is a Convention refugee.

[38]     This will conclude the hearing for today.

[39]     Madam Interpreter, so I said this will conclude the hearing for today, is there anything you need to summarize to him before I formally end the hearing?

[40]     INTERPRETER:      Yes, Member, I will summarise everything else and I will give him all the details of what you just said.

[41]     MEMBER:    Okay, can you go ahead.

[42]     CLAIMANT: Okay.

[43]     MEMBER:    Okay good, so I need to confirm your address, so I have [XXX] okay is that correct?

[44]     CLAIMANT: Yes, it is correct.

[45]     MEMBER:    [XXX], okay you will get a copy of the transcribed decision, so this will finally conclude the hearing, I am going to go off the record in the absence of any questions, concerns, okay, thank you everyone. Thank you Madam Interpreter.

[46]     INTERPRETER:      Thank you Member, thank you very much.

[47]     MEMBER:    Thank you so much, I will be going off the record.

[48]     INTERPRETER:      Thank you very much everyone.

[49]     MEMBER:    Thank you, bye, bye.

———- REASONS CONCLUDED ———-