Categories
All Countries Pakistan

2020 RLLR 56

Citation: 2020 RLLR 56
Tribunal: Refugee Protection Division
Date of Decision: October 9, 2020
Panel: R. Moutafova
Counsel for the Claimant(s): Peter J Wuebbolt 
Country: Pakistan 
RPD Number: TB8-13720
Associated RPD Numbers: TB8-13781, TB8-13786, TB8-13787
ATIP Number: A-2021-00655
ATIP Pages: 000177-000188


REASONS FOR DECISION

INTRODUCTION

[1]       [XXX] (father and a principal claimant), his wife [XXX] (mother and an associate claimant), and their two children [XXX] (the adult child-claimant) and [XXX] (the minor claimant), are citizens of the Islamic Republic of Pakistan (hereafter Pakistan). They are claiming refugee protection pursuant to s. 96 and s. 97(1) of the Immigration and Refugee Protection Act1, hereafter “the IRPA“.

[2]       The claims were heard jointly pursuant to Rule 55 (1) of the Refugee Protection Division Rules2.

[3]       The principal claimant was appointed as the designated representative for the minor claimant.

[4]       The Chairperson’s Guideline 43Women Refugee Claimant’s Fearing Gender-Related Persecution was used to help assess the circumstances of this claim that may affect findings of fact and findings of mixed fact and law.

Procedural history

[5]       The claims were heard on May 31, 2019, however the member of the Refugee Protection Division of the IRB did not render decision on the merits of the claims. The IRB decided to administratively re-hear the claims in a DeNovo hearing, presided over by another member of the Refugee Protection Division of the Board. This DeNovo hearing was held on September 17, 2020

DETERMINATION

[6]       The panel finds on a balance of probabilities that the claimants are Convention refugees on the grounds of their views on religion which places them as Members of a Particular Social Group. Their religious views are of moderate Sunni Muslims with humanitarian and liberal mindset, who do not support the Jihad and the fundamentalism in Pakistan, and who are against the religious extremists’ methods of suiciding attacks against their perceived enemies.

[7]       The reasons are as follows.

ALLEGATIONS

[8]       The complete story alleging the basis of the Claimants’ fear is captured in their Basis of Claim (BOC) forms4, and was expanded upon in testimony by the three adult claimants. In short, the claimants fear that they will be harmed or killed by religious extremists and fundamentalists in Pakistan stemming from their unsuccessful attempt to recruit the son of the family (the adult child-claimant) as a Jihadist solder and a suicide bomber.

[9]       Both parents are university educated individuals from Karachi. The family has only one son – the adult child-claimant, who is hafiz, a person who has memorised the Quran in Arabic language (the native language of the claimants is Urdu.). For this purpose, since the age of four he had attended a special religious school and had completed six classes, where he had studied also subjects from the general educational curriculum. He had obtained two Certificates for his achievements in the memorizing of the Quran.

[10]     Then he continued his education in a secular, international private school in Karachi. As a devoted Muslim, in performing his duties to volunteer and help those in need, and also to maintain his memory about the verses of the Quran, he attended the [XXX] 3 days at the end of each week. There he was teaching the Quran to younger children who were from poor families and were receiving free board, food and religious education in the [XXX] at the mosque. The adult child-claimant was also praying in this mosque with his father on the Fridays.

[11]     In the month of [XXX] 2017 several unknown and unintroduced men began appearing at the classes with the children (students) and began talking about Islam and about Jihad. They interpreted for the children some Qur’anic passages that refer to the Jihad and explained the meaning of the Quran as requesting the true Muslims to be part of Jihad. They spoke about the purpose in life as per the Qur’an and that being a better Muslim means fight against the non­believers like Christians, Ahmadi, Shia Muslims, etc. The men were not friendly, they tried to instill fear in the students and warned them to keep secret the meetings with the men and threatened them with death if they would dare to speak with anybody else about these teachings. The unknown men gave away written materials with information, purporting to be the right interpretation of the Qur’an and appealing to the readers to be true Muslims and followers of the Qur’an by joining Jihad.

[12]     These materials were found inadvertently by the mother of the adult child-claimant (the associate claimant) and alarmed her. She asked her son for explanation, but he was very scared and did not tell her anything about the source of the materials. She sent her husband (the PC) to the [XXX] to inquire what is happening and the source of the materials.

[13]     The father attended the [XXX] and was assured by the management that there is no danger of fundamentalism of the students there. However, the extremists continued to visit the classes in the [XXX] and the adult child-claimant became more and more scared with each visit. The mother continued to invite explanations from her son about the Jihad literature and he eventually confided what is going on. Thus, the parents prohibited their adult child-claimant to continue to teach in the [XXX], which was not taken well by the administration there.

[14]     The management of the [XXX] tried multiple times to pressure the claimants to send back their son and initially the claimants were providing medical-problem-excuses for their son not attending any more. Eventually they got the courage to state, that their son – the adult child­ claimant is not going to attend any mote and immediately they were threatened over the phone by the administrator of the [XXX]. They started receiving calls from unknow persons threatening that they will regret if disobey and do not send again the son back to the [XXX]. The claimants filed a complaint with the police on [XXX] 2018.

[15]     Further, the threatening phone calls continued and even on one occasion unknown people visited the family, angry from the disobedience to the orders the son to return to the [XXX]. They repeated the death threats against the entire family again.

[16]     Few days later, on [XXX] 2017 a stone with a life-threatening letter around it was thrown through the window of the claimants. The letter was accusing them as infidels, deserving to be killed, because they vive western education of their children and engage in un-Islamic activities. A second complaint was immediately filed with the police5, which did not investigate any of the complaints.

[17]     The adult child-claimant fell ill from fear. When recovered, he did not go any more to the [XXX], but he continued to attend his international high school. The commute to and back from the private school was arranged with a special school bus. Nevertheless, one day an unknown person attempted to pick up the boy after school. The security prevented the attempt and alarmed the administration and the family.

[18]     The Police refused to accept any more complaints and to be involved in a such religios issue, which they pretended to be a minor, unimportant dispute about the education of the son. Understanding that no protection is coming, the scared family moved immediately to Islamabad, where they stayed with a cousin. The threatening phone calls continued on the cell phone of the mother, insisting that the adult child-claimant get back to the [XXX]. The claimants arranged their travel to Canada and arrived on [XXX] 2018. They were planning that the PC would be able to make some alternative arrangements for their safe return and residence back in Pakistan.

[19]     The PC, who was working for the [XXX], and could not take a longer leave from his job, returned in Karachi on [XXX] 2018. He took precautious measures and stayed at his brother, visiting his home rarely only at night to pick documents and things of necessity.

[20]     Encouraged that everything seems calm, one night, on [XXX] 2018, the PC stayed in the house and on the next day, when leaving for his prayer, he saw many abusive slogans painted on the house. He left quickly for his brother, but on his way he was attacked and shot at by two individuals on a motorbike. The PC arrived back in Canada on [XXX] 2018 and the entire family applied for refugee protection three days later.

ANALYSIS

Identity

[21]     The panel finds, on a balance of probabilities, that all claimants have provided sufficient documentation to establish their personal identities and citizenship in Pakistan, based on their testimony and the certified true copies of their Government of Pakistan passports.6

Religious identity

[22]     The panel is satisfied that the mother and associate claimant are Shia Muslim and that the father and principal claimant are Sunni Muslim, based on the testimony of the adult claimants, the donation receipts from [XXX] and personal documents provided into evidence7. The claimants explained that they are cousins and the differences in their religious views have never been an issue, because the extended family has broad, liberal, humanitarian views on religion and on the individual liberty.

[23]     The panel accepts, on a balance of probabilities, that the adult child-claimant, is hafiz, a person who had memorised the Quran. He submitted two Certificates from the [XXX] from 2011 and 2012 for his achievements in memorization of the Holy Quran8. The claimant testified personally about his study experience and was able to demonstrate his knowledge by reciting verses from the Quran by heart in Arabic language. The panel is satisfied, on a balance of probabilities, that the adult child-claimant is a Sunni Muslim and hafiz.

NEXUS

[24]     The panel finds that the claimants are Convention refugees in that they have a well-founded fear of persecution from religious extremists due to their humanitarian and liberal religious views on Islam, and, thus, the nexus to the Convention is their membership in a particular social group.

CREDIBILITY

[25]     All three adult claimants provided testimony. The panel finds that the claimants are credible on the material aspects of their claims – specifically the panel finds that the adult child­ claimant is hafiz and that while teaching classes of poor children, boarding and studying in the local [XXX], he had been identified and targeted by extremists over a couple of meetings, who tried to pursue him to join Jihad and become a suicide bomber.

[26]     Generally speaking, the claimants’ testimony was direct, sincere, detailed and spontaneous. Overall, the panel did not find any contradictions, inconsistencies, omissions or implausibility regarding any aspects of their account which could have undermined the credibility of their statements. They provided many details of the events, that have led to their fleeing Pakistan. In coming to this finding on credibility the panel also considered the numerous claimant-specific documents tendered into evidence9 by the claimants to support their allegations, namely: school documents, reports to the police, First Information Reports to the police, affidavits from eye eyewitnesses of the kidnapping incident from the school, letters of support from family members, letters from [XXX] from Pakistan and from Canada about the affiliation of the claimants, birth and death certificates, employment history records.

[27]     The panel finds that the claimants were credible witnesses and did not find any discrepancies or inconsistencies between their testimony and the documents they submitted. The panel finds, that the evidence before the panel establish, on a balance of probabilities, that the adult child-claimant was a victim, together with the [XXX] boarding school children, of persuasion to join the Jihad and attempt to be recruited as a suicide bomber. When his parents intervened and stopped him from further attending the [XXX] and meetings with the religious extremists, the entire family was targeted for harm by the particular individuals, belonging to the religious extremists and fundamentalists in Karachi, Pakistan.

Objective basis of future risk

[28]     Based on the credibility of the claimants’ allegations, and the documentary evidence set out above, the panel finds that the claimants have established a future risk to their lives and that they will be subjected to violence at the hands of Islamic extremists in Pakistan, owing to their identities of mixed family of Shia and Sunni Muslim, who has liberal and moderate religious views and is against Jihad, promulgated by religious extremists and fundamentalists.

[29]     The objective documentary evidence that corroborate the allegations of the claimants are found in many documents: In item 1.18 of the NDP on Pakistan (NDP)10 the UK Home Office informs about the report of the UN Secretary General (UNSG) on Children and armed conflict, dated 16 May 2018, where is noted:

“The United Nations continued to receive reports of the recruitment and use of children, including from madrasas, and allegations of the use of children by armed groups for suicide attacks. In January [2017], TTP released a video showing children, including girls, being instructed in how to perpetrate suicide attacks.”

Further, the UK Home Office advises that According to the USSD human rights report for 2017:

“Nonstate militant groups kidnapped boys and girls and used fraudulent promises to coerce parents into giving away children as young as 12 to spy, fight, or die as suicide bombers. The militants sometimes offered parents money, often sexually and physically abused the children, and used psychological coercion to convince the children the acts they committed were justified. The government operated a center in Swat to rehabilitate and educate former child soldiers.”

[30]     The suicide attacks are already part of the contemporary mode of terrorism of the militant groups. Item 7.1 of the NDP about the Jaish-e-Mohammed (JeM) militant group in Pakistan from the Research Directorate of the Immigration and Refugee Board of Canada reports that JeM was the first jihadi organization to launch suicide attacks (…) in 2002. Sources indicate that the group’s attacks are aimed at killing the maximum number of people, including security force personnel and civilians, targeting the Pakistani state and sectarian minorities. Despite bans on JeM’s activities, the group continues to operate openly in different areas of Pakistan and has claimed to have 300 suicide bombers available to attack (…).

[31]     In a June 2010 article11, The Economist quoted a Lahore-based political analyst as saying that:

“[t]he Punjab government is not only complacent, there is a certain ambivalence in their attitude’ towards extremists…..They compete for the religious vote bank”‘ (The Economist 3 June 2010). The same source states that as the death toll grows, so do concerns that even the appearance of official tolerance gives these organisations legitimacy……The Federal Interior Minister, Rehman Malik, declared that an “operation” was needed to clear out the Punjabi groups. He claimed that 44% of Pakistan’s madrassas – Islamic seminaries – are based in south Punjab and that groups like (…..) Jaish-e­Mohammed are “part of the Taliban and al-Qaeda.”

Reavailment

[32]     The panel had concerns about the reavailment of the PC back to Pakistan after arriving in Canada and leaving his family here. The PC testified that he was having a lucrative employment in the [XXX] in Karachi and that he was not planning to seek refugee protection in Canada, when he fled Pakistan with his family after the incident, that looked like an attempt of kidnapping of his son. The PC testified that the family was planning to re-locate somewhere in Pakistan and he returned to maintain his job while obtaining re­ assignment or finding another solution for re-location. However, upon his return in Pakistan, although the precautionary measures, he became a victim of an assassination attack and his house was vandalized with abusive slogans with religious context. This made him re-assess the threats from the religious extremists and fundamentalists for the entire family and to find them real and inevitable. This is when he decided to seek protection from Canada.

[33]     The panel finds, on a balance of probabilities, that the explanations of the claimant were reasonable and credible and that in the circumstances, the PC’s individual return to Pakistan does not amount to re-availment demonstrating a lack of subjective fear.

State Protection

[34]     The claimants alleged that the state is unable or unwilling to provide them with adequate protection. The objective documentary evidence indicates that there is a lack of rule of law in Pakistan, including a lack of due process and a lack of government accountability. This means that abuse often goes unpunished, fostering a culture of impunity amongst perpetrators. The claimants have previously sought police protection in Pakistan, which was not provided to them due to unwillingness of the Police to be involved in such sensitive religious issue with violent agents of persecution/harm. The NDP contains numerous reports that outline deficiencies and inaction from state authorities in situations such as those, alleged by the claimants. There are reports that law enforcement authorities are often unwilling, or even when they are willing, are unable to protect from the attacks of religious extremists. Pakistani authorities have faced criticism for their failure to protect religious violence, for permitting militant organizations to operate with impunity, and for not investigating and punishing the groups responsible for violent attacks.12 The United States Commission on International Religious Freedom described the response of the Pakistani government as “grossly inadequate state protection for Shia Muslims.”13 That same report notes that “the government has proven unwilling or unable to crack down on groups that repeatedly plan, conduct, and claim credit for attacks, or prevent future violence.”14

[35]     Further the reports inform that:

“Pakistan’s police system suffers severe deficiencies in a number of areas, including equipment, technology, personnel, training, and intelligence capability. They are considered one of the most corrupt institutions in Pakistan. There have also been reports that the police have often failed to protect members of religious minorities, women and the poor.”15

[36]     In addition, the News International, a Pakistani newspaper, stated in a 3 March 2014 article that, according to the NISP, there are a total of 60 banned organizations in Pakistan, including JeM, and although the government has taken steps to ban certain organizations, “metamorphism” of these groups and “implementation gaps” remain a challenge for the government’s internal security mechanisms.

[37]     The panel, therefore, concludes that the claimants have rebutted the presumption of state protection with clear and convincing evidence.

Internal flight alternative (IFA)

[38]     The panel inquired as to whether the claimants could relocate to Hyderabad or Multan, or DG Khan and live safely. The male claimant testified that nowhere is safe for them in Pakistan and they would be at high risk of harm by the extremist organizations who would try to hurt him and his family.

[39]     The panel finds that there is a well-founded fear of persecution which exists throughout the country, and there’s a serious possibility of persecution throughout Pakistan for the claimants. The conclusion is based not only on the statements by the claimants above, but also on evidence in the NDP, which indicates that, in general, an internal flight alternative would not be available where there is a likelihood that persons such as the claimants would be persecuted by extremists for their perceived un-Islamic position with respect to Jihad.

[40]     There are reports within the documentary evidence that given the wide geographic presence and reach of religious extremists or anti-Shia militant groups, a viable internal flight alternative would generally not be available to individuals at risk of being targeted by such groups, as is the family of the claimants, which is of mixed reldigion: Sunni and Shia Muslim and which opposed involvement of their son in Jihad. The panel finds that there is a serious possibility of the claimants being persecuted throughout the country given their profile and the reach of the agents of persecution.

[41]     Given the objective documentary evidence cited above regarding state protection and the claimants’ testimony the panel finds that there is no viable IFA for these claimants in Pakistan at this time.

CONCLUSION

[42]     Based on the analysis above and to the relevant provisions of IRPA, the panel concludes that the claimants do have a well-founded fear of persecution on Convention grounds and, therefore, are Convention refugees, within the meaning of section 96 of IRPA.

[43]     Therefore, the panel accepts these claims for refugee protection.

(signed)           R. Moutafova

October 9, 2020

1 Immigration and Refugee Protection Act, S.C. (2001), c. 27, as amended.
2 Immigration and Refugee Board, Refugee Protection Division Rules, SOR 2012/256.
3 Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the IRPA.
4 Exhibits # 2.1, 2.2, 2.3.
5 Exhibit # 8: Disclosure – Personal documents.
6 Exhibit # 4.1.
7 Exhibit # 8.
8 Idem.
9 Idem.
10 Exhibit # 3 – NDP on Pakistan, version from 31 March 2020.
11 Idem, item 7.1.
12 Idem, item 1.8: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017.
13 Idem, items## 12.5 and 1.22.
14 Idem, item 12.5.
15 Idem.

Categories
All Countries Pakistan

2020 RLLR 44

Citation: 2020 RLLR 44
Tribunal: Refugee Protection Division
Date of Decision: September 25, 2020
Panel: D. Marcovitch
Counsel for the Claimant(s): John Savalgio 
Country: Pakistan
RPD Number: TB9-15066
ATIP Number: A-2021-00655
ATIP Pages: 000100-000105


REASONS FOR DECISION

[1]       The claimant, [XXX] claims as a citizen of Pakistan and seeks refugee protection pursuant to subsections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).1

ALLEGATIONS

[2]       The claimant’s allegations are fully set out in his Basis of Claim (BOC) form2 and amendment.3 In summary, the claimant is a [XXX] man who was born to a Sunni Muslim family in Sialkot, Punjab province on [XXX]. He alleges a fear of persecution from the Sunni extremist group Lashkar-e-Jhangvi (“LeJ”) as a result of his conversion from the Sunni sect to the Shia sect and his active Shia religious practices.

[3]       On or about [XXX] 2019, the claimant traveled from [XXX]. Then, on or about [XXX] 2019 the claimant travelled from [XXX] Canada, via [XXX] and arrived in Canada on [XXX] 2019. On or about June 11, 2019, the claimant’s refugee claim was referred to the Refugee Protection Board (the “Board”).

DETERMINATION

[4]       I find that the claimant is a Convention refugee pursuant to s.96 of IRPA.

ANALYSIS

Nexus

[5]       I find that the claimant has a nexus to the Convention ground of religion, based on his allegations of having converted from the Sunni to Shia sect and consequent persecution alleged.

Identity

[6]       I accept, on a balance of probabilities, that the claimant is a citizen of Pakistan on the basis of his Islamic Republic of Pakistan passport4 which was seized by Immigration, Citizenship and Refugees Canada (IRCC) when the claim was filed.

[7]       Further, I also accept on a balance of probabilities that the claimant converted from the Sunni sect to the Shia sect of Islam, based on his testimony and support letters from friends, [XXX] officials, religious leaders and family. I find on a balance of probabilities that the letters from the claimant’s father and the [XXX] of the [XXX] that the claimant’s father belonged to, establish that the claimant was formerly a follower of the Sunni Islam sect.

Credibility

[8]       I had certain issues with the claimant’s credibility stemming from the fact that he paid the equivalent of approximately [XXX] CAD to an agent, while he was still working in [XXX] in order to secure Visa’s to various countries around the world, including Canada. I note that the claimant spent this money after converting to the Shia sect, but prior to having any threats made against his life in Pakistan. I asked the claimant why he would have spent [XXX] CAD to get the Visa’s if there were no threat to his life. The claimant testified that he did so just to be safe in case he experienced problems related to his Shia conversion or feared for his safety. I find that such an explanation is unreasonable in these particular circumstances. I find that spending such a significant amount of money for a ‘just in case’ situation where he would not have used the Visa’s if nothing transpired on his return to Pakistan, is implausible. I find on a balance of probabilities that the claimant spent [XXX] CAD to get the assistance of an agent and associated travel visa’s because it was always his intention to leave Pakistan even though he had not yet experienced any persecution at the time the Visa’s were acquired.

[9]       However, having made the above noted findings, I recognize that the above noted issues neither go to the core of the claim, nor should the implausibility finding, without more, lead to a negative decision.

[10]     While the above noted issues certainly raise questions, by inference, as to the credibility of the claimant’s allegations concerning what happened to him after he returned to Pakistan from [XXX], I find on a balance of probabilities that the claimant has provided sufficient corroborative evidence of his faith and activities once he was back in Pakistan, that I am unable to deny the credibility the allegations that go to the heart of his claim.

[11]     I note that the claimant provided hospital records and a First Information Report (“FIR”) that corroborate his allegations of having been attacked and injured after he left his [XXX] on [XXX] 2019. The claimant’s allegations in his BOC regarding this attack and the details contained in the FIR largely corroborate each other. The primary difference is that the FIR does not mention the LeJ as the claimant’s attackers, but rather as local, unknown extremist persons.

[12]     I also accept, on a balance of probabilities, that the claimant fled [XXX] and went to [XXX] prior to leaving Pakistan based on the support letter from [XXX], who the claimant stayed with in [XXX].

Well-Foundedness

[13]     There is considerable documentary evidence5 before the panel that supports the claim that there are significant problems in Pakistan for Shia Muslims in general and Sunni to Shia Converts in particular.

[14]     I note that in a Response to Information Request at NDP Item 12.56 it is stated that, “[s]ectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties,” noting that Shia face threats from anti-Shia militant groups, including Lashkar-e­ Jhangvi (LeJ), which “seeks to have Shi’a declared ‘non-believers’ or apostates,” as well as from Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the Tehrik-e Taliban Pakistan (TTP) (Australia 20 Feb. 2019, para. 3.99).” I find that the claimant’s fear of persecution in Pakistan is well-founded.

State Protection

[15]     The UNHCR Eligibility Guidelines For Assessing the International Protection Needs of Members of Religious Minorities From Pakistan7 dated January 2017, states, that “[T]he government has been criticized for failing to protect Shi’ite Muslims from attacks, and for allowing militant organizations to operate with impunity by failing to investigate and punish those responsible for violent attacks against Shi’ites in Pakistan.”

[16]     Further, the same UNHCR document notes that “[E]ven where the police have been present they have reportedly been unable to stop attacks; analysts have described the authorities as indifferent, incompetent or even complicit in the violence and discrimination against Shi’ites.”

[17]     As a result, and given that authorities in Pakistan did not appear to assist/protect the claimant beyond taking the FIR, I find on a balance of probabilities that the claimant did not receive adequate state protection in the past and nor would he receive it in the future. I find that the claimant has rebutted the presumption of state protection.

[18]     The claimant testified that should he return to Pakistan today, he would be killed by the LeJ or other extremist religious militant groups due to his Shia religious activities. Based on the evidence adduced, I find on a balance of probabilities that the claimant came to the attention of the LeJ and is currently being pursued to stop his Shia activities. I find that while the claimant has only recently become an active and outwardly practicing Shia convert in Pakistan, I find that the evidence suggests that the LeJ has been looking for him in locations other than his home town of Sialkot and they also have his photograph as shown on the placard for the [XXX] mourning event on [XXX] 2019. I therefore find that there is no Internal Flight Alternative for this claimant because the LeJ tracked him down to a friend’s house in Lahore and have therefore shown a continuing interest in the claimant.  Further, even if the claimant were able to safely relocate in the short term to Hyderabad, I find that his active faith and sponsorship of [XXX] activities would create a serious possibility that he would eventually be found and persecuted in the future.

[19]     Therefore, based on the totality of the evidence adduced, I find that there is more than a mere possibility that the claimant will be persecuted by religious militant groups on account of being a Sunni to Shia convert and perceived to be active in Pakistan’s Shia Muslim community.

[20]     In light of my finding that the claimant is a Convention refugee, it is unnecessary to consider his claim under s.97(1).

[21]     This claim is accepted.

(signed)           D. Marcovitch

September 25, 2020

1 The Immigration and Refugee Protection Act, S.C.2001, c. 27, as amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c.17 (the “Act” or “IRPA”).
2 Exhibit 2.
3 Exhibit 7
4 Exhibit 1.
5 Exhibit 3, National Documentation Package (NDP) for Pakistan (March 31, 2020) and Exhibit 5.
6 Exhibit 3, NDP (March 31, 2020), tab 12.5: Situation and treatment of Shia [Shi’a, Shi’i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias (2017-January 2020). Immigration and Refugee Board of Canada. 15 January 2020. PAK106393.E.
7 Exhibit 3, NDP for Pakistan (March 31, 2020), item 1.8, at p. 54.

Categories
All Countries Pakistan

2020 RLLR 33

Citation: 2020 RLLR 33
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2020
Panel: Samantha Bretholz
Counsel for the Claimant(s): Tony Manglaviti 
Country: Pakistan 
RPD Number: MB8-20495
ATIP Number: A-2021-00655
ATIP Pages: 000016-000023


REASONS FOR DECISION

INTRODUCTION

[1]       [XXX] (the Claimant), a citizen of Pakistan, claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA)1.

ALLEGATIONS

[2]       The Claimant alleges that he was working in the United Arab Emirates (UAE) as a [XXX] while his wife and son were residing in Pakistan with his parents and siblings. The Claimant discussed how there was a general atmosphere of apprehension over [XXX] in the UAE, as foreign workers were beginning to be replaced with local Arab employees. On one of his biannual trips to visit his family in [XXX], Pakistan, he befriended [XXX] (the Mullah), a cleric at the mosque in his village, given that he was of the view that in the, not too distant, future he might be sent back to Pakistan from the UAE and he was looking to make connections in his home town. He developed a relationship with the Mullah and he introduced the Claimant to [XXX] ([XXX]) while on a subsequent trip to Pakistan in [XXX] 2018. The Claimant stated that [XXX] tried to pose himself as a scholar of Islam and contemporary issues, and they would speak about the greatness of Jihad.

[3]       The Claimant returned to the UAE in [XXX] 2018 to continue working. In [XXX] 2018, the Claimant stated that he received a call from [XXX] asking him to donate one million rupees for the Taliban Jihad. The Claimant refused, stating that the Jihad of [XXX] is sedition, and he would not pledge one penny to this cause. The Claimant stated that [XXX] responded by stating that the Taliban would have to now get involved to handle this case.

[4]       On [XXX], 2018, the Claimant stated that his family in [XXX] received a letter from the Taliban stating that if he did not pay, then they would kill him upon his return to Pakistan. In [XXX] 2018, the Claimant alleges to have received a call while in the UAE telling him to pay and that if he didn’t comply there were people in the UAE that would take care of him. The Claimant stated that the caller accurately described his daily movements, visits and schedule which led him to believe that he was being watched and followed in the UAE. Fearful that both his job was not secure and fearing for his life in Pakistan, the Claimant left the UAE for the United States of American on [XXX], 2018, to claim asylum.

[5]       Following his departure from the UAE, the Claimant alleges that the Taliban issued a fatwa (the Fatwa) against him stating that he was a kafir (an infidel), they have added his name to a “hit list” and information about him has been passed on to their expansive networks throughout Pakistan to find and kill him. Following the issuance of the Fatwa, the Claimant stated that police attended at his family’s home in [XXX] looking for the Claimant, and stated that he is to appear at the police station for the purposes of investigating a religious complaint. He further asserts that the police continue to attend at his family’s home every 3-6 months looking for him.

[6]       In an amendment to his Basis of Claim form (BOC)2, the Claimant advanced that in [XXX] 2020 his relatives stated that the Fatwa was being distributed at a mosque in Karachi, which is located at the other end of Pakistan, over [XXX] km away from [XXX].

[7]       The Claimant fears the Mullah, [XXX], the Taliban, the Pakistani police and now the general population who would glean favour for killing an infidel.

DETERMINATION

[8]       Having considered the evidence and the Claimant’s testimony in its entirety, the Panel concludes that the Claimant has established a serious possibility of persecution, based upon his imputed religious opinion.

[9]       For the reasons that follow, the Panel finds that the Claimant is a “Convention refugee” under Section 96 of the IRPA, and accepts his claim.

ANALYSIS

Identity

[10]     The Claimant’ s personal and national identity as a citizen of Pakistan is established, on a balance of probabilities, by way of a certified true copy of his Pakistani passport, including the United States Visa that the Claimant used to travel to the United States3.

Credibility

[11]     The Panel finds the Claimant to be a credible witness and believes, on a balance of probabilities, the key allegations of his claim. The Claimant testified in a straightforward, spontaneous, detailed, and sincere manner. The Panel did not find that the Claimant embellished his story or tried to exaggerate the allegations during his testimony.

[12]     The Panel also noted that there were no significant contradictions, inconsistencies, or omissions between the Claimant’s Basis of Claim BOC, his testimony at the hearing or the documentary evidence submitted. The testimony of the Claimant also included additional details which were not in the BOC and added to the credibility of the story.

[13]     The Claimant spoke and wrote in detail about his views of Islam. He is more open-minded, liberal and egalitarian given the years he has spent in a more moderate society, in the UAE. He described the various threats against him which began with demands, then led to telephone calls, visits by the police and ultimately culminated in the issuance and distribution of a fatwa.

[14]     The Panel believes, on a balance of probabilities, that the Claimant is targeted and continues to be targeted by the Mullah, [XXX], members of the Taliban and the police (collectively, the Agents of Persecution). Given that there was an announcement at the local mosque declaring that a fatwa was issued against the Claimant by the Taliban, the Claimant contends that he can become a target of any extremist who believes it is their duty to kill him in the name of religion.

[15]     In furtherance of the foregoing, the Claimant also disclosed a number of supporting documents, including a letter from the Taliban4, the Fatwa5, a letter from his Pakistani lawyer6, an affidavit from his father7 and his wife8, and a recent letter of public gathering with the Mullah and XXXX as guest speakers9, all of which are uncontradicted and which corroborate the Claimant’s testimony.

Objective Evidence

[16]     The objective documentary evidence provides that blasphemy and other offences relating to religion are criminalized in Pakistan under Articles 295 and 298 of the Pakistan Penal Code. Punishment for blasphemy is death10. “The introduction of the blasphemy laws in the [Pakistani] Penal Code has reportedly fostered an atmosphere of religious intolerance (…). The blasphemy laws have also come under strong criticism for fuelling extremist violence and targeted attacks against individuals from religious minority groups11.” “In 2017, the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred and discrimination against minority groups. The HRCP noted the government failed to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences12.”

[17]     While Pakistani’s blasphemy laws purport to protect religious sentiments, sources have expressed concerns over the use of the laws by individuals apparently for other motives. These motives might include, and consistent with the case at hand, personal or religious disputes. The effect of these laws violates the rights to life, freedom of thought, conscience and religion or belief, and freedom of opinion and expression13.

[18]     Further, the law has been described as vaguely formulated, and enforced by the police, prosecutors, and judiciary in proceedings that often violate the right to a fair trial, including the fundamental principle of presumption of innocence where prosecution proceed on the basis of unfounded accusations by complainants. Death sentences have been imposed, in violation of international law, on people convicted of blasphemy14.

[19]     Religious clerics, such as the Mullah in the foregoing case, hold significant power in the registration of blasphemy cases. Their opinions are frequently sought by complainants, and often also by the police as part of their investigation. Faced with pressure from religious clerics and their supporters, the police may forward a case to the prosecutor on the basis of insubstantial evidence. Police rely on fatwas from local clerics to determine whether the allegations amount to blasphemy, even though they have no legal evidentiary value15.

[20]     The laws have created an environment in which some people, including complainants and their supporters in blasphemy cases, believe themselves entitled to take the law into their own hands, while the police stand aside. The laws have been used as a cover for perpetrators of mob violence16.  There is a lack of a consistent, robust and timely response by the authorities to situations of such violence. The lack of response, and the failure to prosecute rigorously and promptly those responsible, leads to a climate of impunity for perpetrators of further such attacks17.

[21]     Given the foregoing, together with the numerous articles on blasphemy provided by counsel18, the Panel finds that the Claimant’s allegations are consistent with the objective evidence and therefore the Panel concludes that his subjective fear is objectively well founded. In addition to the articles on blasphemy, counsel also submitted numerous articles regarding the continued pervasiveness of the Taliban in Pakistan19.

[22]     The Panel concludes that the Claimant has met his burden of proof and has demonstrated that he would face a serious possibility of persecution based on a Convention ground if he returns to Pakistan.

State Protection

[23]     The Claimant fears religious fundamentalists/extremists, in particular the Taliban, the Mullah and [XXX]. The Panel notes that the documentary evidence provides that there is a general lack of rule of law in Pakistan20, including a lack of due process, poor implementation and enforcement of laws and frequent mob violence and vigilante justice with limited accountability21.

[24]     The power wielded by the religious clerics, combined with the high level of corruption within the police force and the lack of political will in Pakistan to address said corruption leads the Panel to conclude that adequate state protection would not reasonably be likely to be forthcoming to the Claimant, should he return to Pakistan. Therefore, the Panel finds that the Claimant has rebutted the presumption of adequate state protection.

Internal Flight Alternative (IFA)

[25]     The Panel finds that the Claimant has a credible fear of being persecuted by Muslim extremists, including the Taliban, throughout Pakistan and that, therefore, there is no possibility of a viable internal refuge anywhere in that country. The Panel is guided by the documentary evidence which provides that if the agents of persecution are armed militant groups, they may not be safe anywhere due to their wide geographical reach22. The Taliban is a major terrorist group in Pakistan focused on conducting terrorist attacks against the military and civilians in Pakistan23. Growing religious extremism in Pakistan threatens its security and stability, as well as freedom of expressing and other fundamental human rights24. Besides the militant groups’ ability to find the Claimant, there are examples in the documentary evidence where vigilante justice was perpetrated against people accused of blasphemy by religious clerics.

[26]     Given the totality of the foregoing, the Panel finds that the Claimant has a credible fear of being persecuted throughout Pakistan and that, therefore, there is no possibility of a viable IFA anywhere in that country.

CONCLUSION

[27]     Having considered the evidence, including the relevant documentary evidence and the Claimant’s testimony, the Panel determines that the Claimant would face a serious possibility of persecution should he return to Pakistan based on his imputed religious opinion.

[28]     The Panel, therefore, finds that the Claimant is a “Convention refugee” pursuant to section 96 of the IRPA.

[29]     The Panel, therefore, accepts his claim.

(signed)           Samantha Bretholz

December 7, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Document 2-Basis of Claim Form (BOC). Document 4-Exhibit C-1: Update to the BOC of [XXX].
3 Document 1-Package of Information from  the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Passport.
4 Document 4-Exhibit C-3: TTP Letter.
5 Document 4-Exhibit C-4: TTP Fatwa.
6 Document 4-Exhibit C-6: Lawyer Letter.
7 Document 4-Exhibit C-7: Affidavit from [XXX].
8 Document 4-Exhibit C-8: Affidavit from [XXX].
9 Document 4-Exhibit C-5: Notice Public Gathering.
10 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.13: DFAT Country Information Report: Pakistan, Australia, Department of Foreign Affairs and Trade, 20 February 2019.
11 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.8: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, United Nations High Commissioner for Refugees, January 2017, HCR/EG/PAK/17/01.
12 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.13: DFAT Country Information Report: Pakistan, Australia, Department of Foreign Affairs and Trade, 20 February 2019.
13 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 12.31: “As Good as Dead“: The Impact of the Blasphemy Laws in Pakistan, Amnesty International, 21 December 2016, ASA 33/5136/2016.
14 Ibid.
15 Supra, note 14.
16 Supra, note 14.
17 Supra, note 14.
18 Document 4-Exhibit C-11: Documents regarding Blaphesmy.
19 Document 4-Exhibit C-10: Documentary Evidence Taliban.
20 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 2.1: Pakistan. Country Reports on Human Rights Practices for 2019, United States, Department of State, 11 March 2020.
21 Ibid.
22 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.17: Country Policy and Information Note. Pakistan: Christians and Christian converts. Version 3.0, United Kingdom, Home Office, September 2018.
23 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.6: Pakistan: Country Report, Asylum Research Centre, 18 June 2018.24 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 12.4: Pakistan. United States Commission on International Religious Freedom 2019 Annual Report, United States, Commission on International Religious Freedom, April 2019.

Categories
All Countries Pakistan

2019 RLLR 40

Citation: 2019 RLLR 40
Tribunal: Refugee Protection Division
Date of Decision: September 13, 2019
Panel: K. Gibson
Counsel for the Claimant(s): John Savaglio
Country: Pakistan 
RPD Number: TB8-01706
Associated RPD Number(s): TB8-01741, TB8-01743
ATIP Number: A-2021-01124
ATIP Pages: 000231-000243


REASONS FOR DECISION

[1]       [XXX] (the “principal claimant”), his wife [XXX] (the “associate claimant”), and their four children [XXX], [XXX], [XXX] and [XXX] claim to be citizens of Pakistan and seek refugee protection pursuant to s. 96 and s.97(l) of the Immigration and Refugee Protection Act (IRPA).1

[2]       The panel heard these claims jointly pursuant to RPD Rule 55.

[3]       The principal claimant was appointed as designated representative for the claimants [XXX] and [XXX] as they are still minors. Claimants [XXX] and [XXX] are both adults over the age of 18 as of the date of the hearing in this claim.

[4]       The panel has considered Chairperson’s Guidelines: Proceedings Before the Immigration and Refugee Board of Canada Involving Sexual Orientation and Gender Identity and Expression (SOGIE GUIDELINES) in reaching a determination in these claims.2

ALLEGATIONS

[5]       The claimants’ allegations are set out in detail in their Basis of Claim (BOC) forms.3 In summary, the principal claimant, a 49-year-old man, alleges to be bisexual. He further alleges that his brother-in-law [XXX] and other members of Muslim extremist group Sipah-e-Sahaba Pakistan (SSP) discovered him being sexually intimate with his same sex partner in Pakistan in [XXX] 2017 and that his wife, members of her family and other members of the extremist group were all subsequently informed of the principal claimant’s sexual orientation. The principal claimant alleges to fear persecution in Pakistan by his wife’s family, members of SSP and by society in general on the basis of his sexual orientation. The associate claimant and her four children allege fear of persecution by the same agents of harm based on threats received after the discovery of the principal claimant’s sexual orientation.

[6]       The claimants left Pakistan and travelled to the United States on [XXX] 2017. They then traveled to Canada on [XXX] 2018 where they made a refugee claim at the port of entry.

ANALYSIS – PRINCIPAL CLAIMANT

Identity

[7]       The principal claimant’s personal identity and his Pakistani citizenship has been established on a balance of probabilities by his Pakistani passport, a copy of which is on file.4

Nexus

[8]       The principal claimant alleges fears based on his sexual orientation as a bisexual man. The panel therefore analysed his allegations under the Convention ground of particular social group, namely bisexual men.

Credibility

[9]       The principal claimant testified in a largely straightforward and spontaneous manner about his sexual orientation and the challenges he experienced in living as a bisexual man in Pakistan, and hiding this aspect of his identity from almost everyone, including his family, for much of his life. There were no inconsistencies in his testimony that go to the heart of the claim or that have not been satisfactorily explained.

[10]     The claimants provided several documents in support of their claims, including affidavits from three of the principal claimant’s brothers;5 a letter from relative [XXX] who hosted the family in [XXX] when they fled their home in Lahore prior w leaving Pakistan;6 photos of the principal claimant and his former same-sex partner and of the principal claimant at a Pride event in 2018;7 marriage and family registration certificates;8 a letter from the principal claimant’s former business partner who learned of the principal claimant’s sexual orientation and forced him to relinquish his share of the business;9 documents related to the principal claimant’s position with and co-ownership of his former business in Pakistan;10 a medical document for treatment the principal claimant received after he was assaulted on discovery of him with the former partner;11 and, a number of documents from The 519 Church Street Community Centre confirming that the principal claimant is a member, that he attended newcomer orientation and peer support group events there more than 20 times after his arrival in Canada.12

[11]     The panel is concerned about the lack of additional documentation related to the principal claimant’s former same-sex partner [XXX], given the very long duration and importance of this relationship, as no documents were provided other than a few photos taken in the 1990s. The principal claimant testified that they were together for 32 years, from when the principal claimant was a teenager until he left Pakistan in [XXX] 2017 just before his forty-eighth birthday. The principal claimant also testified that he and [XXX] communicated via WhatsApp for a few months after the principal claimant came to Canada before losing touch with one another around [XXX] 2018. When the panel asked the principal claimant as to why he does not have copies of these messages or a support letter from [XXX] he testified that they lost touch around [XXX] 2018 when [XXX] moved from Lahore to Karachi, and that the prior WhatsApp messages between them were lost when the principal claimant changed cell phones.

[12]     The panel considered the inherent difficulties often found in providing corroborating documentation in many sexual orientation claims, as highlighted in the SOGIE Guidelines, in weighing this concern. Given the consistency of the principal claimant’s testimony around this relationship and within his claim generally, and the detailed answers the principal claimant provided regarding the concerns raised, the panel accepts the principal claimant’s explanations regarding these concerns as reasonable and draws no negative inference as to his credibility.

[13]     The panel therefore finds that the principal claimant began questioning his sexual orientation as a child around age 13 or 14. The panel finds the principal claimant began a relationship with [XXX] in secondary school that continued after the principal claimant married the associate claimant in 2012, and that the associate claimant was at that time unaware of the principal claimant’s sexual orientation or the ongoing relationship with [XXX]. The panel finds that [XXX] the brother of the associate claimant, is a supporter of Muslim extremist group SSP, and that he and several other members of SSP discovered the principal claimant and [XXX] together in [XXX] 2017. [XXX] subsequently informed the associate claimant and her family members and threatened to kill the principal claimant.

[14]     Considering the entirety of the evidence, and in the absence of evidence to the contrary, the panel accepts the principal claimant’s allegations regarding his sexual orientation as true. The panel finds that the principal claimant is a bisexual man,

Prospective Risk of Return

[15]     A claimant must demonstrate that they would face a serious possibility of persecution based on a Convention ground if they were to return to their country or that, on a balance of probabilities, removal to their country would subject them personally to a danger of torture within the meaning of Article 1 of the Convention Against Torture or to a risk to their life or to a risk of cruel and unusual treatment or punishment.

[16]     In gauging the principal claimant’s prospective risk of return to Pakistan, the panel has taken into consideration his personal profile and particular situation at the present time.

[17]     The panel has also taken into consideration the objective evidence regarding the current situation in Pakistan particularly for bisexual men. The documentary evidence in the National Documentation Package (NDP) for Pakistan along with documents provided by counsel, show that LGBT individuals from privileged backgrounds do enjoy some degree of openness in certain circles provided that they lived discreetly.13 The evidence dearly states that consensual same-sex relationships are criminalized in Pakistan, but also indicates that these laws are rarely enforced.14 However, they are often used to threaten or blackmail people.15 There are also consistent reports of attacks and physical violence against men who are known to engage in homosexual relationships in Pakistan.16 Objective sources also confirm that there are no laws to protect against discrimination based on sexual orientation.17 They further provide that openly LGBT individuals would be subject to a high risk of societal violence.18

[l8]      Considering the entirety of the evidence, the panel finds that bisexual men may suffer discrimination and violence that could amount to persecution based on their sexual orientation in Pakistan at present. As the principal claimant has demonstrated that he is a bisexual man and therefore a member of this community, the panel further finds that he has established that his claim has an objective basis and his fear is well-founded.

State Protection and Internal Flight Alternative

[19]     Claimants must establish through clear and convincing evidence that the State would be unwilling or unable to provide adequate protection if they were to return to their country. Claimants must also establish that they have a well-founded fear of persecution throughout their country of nationality. The panel finds that the principal claimant has rebutted the presumption of state protection and that an internal flight alternative (IFA) would not be available to him.

[20]     According to the objective evidence, the LGBT community faces widespread discrimination and violence throughout Pakistan.19 There is a national law against same sex activities in Pakistan and although the authorities rarely prosecute cases, the law is in place and it may be applied.20 These laws also deter members of the LGBT community from acknowledging their sexual orientation or reporting abuses to the police. The evidence shows that treatment of members of the LGBT community is not limited to any particular area of Pakistan, but is widespread.21

[21]     The panel also notes that there are reports of corruption and impunity within the police forces. Reports indicate that the police are under-sourced, poorly trained, badly paid, low in morale, and viewed with suspicion by the courts and society because of their poor human rights record.22

[22]     Considering the entirety of the evidence and in consideration of all the elements noted, the panel concludes that there is clear and convincing evidence that at this time the State is unable or unwilling to provide the principal claimant with adequate protection in Pakistan. The panel finds that the presumption of State protection has been rebutted in these particular circumstances. The panel further finds there is a serious possibility of persecution for the principal claimant throughout Pakistan at this time, Therefore, a viable internal flight alternative is also not available at present for the principal claimant in his country of nationality.

ANALYSIS – ASSOCIATE CLAIMANT AND THE FOUR CHILDREN

[23]     The determinative issues in the associate claimant’s and the four children of the principal and associate claimants’ cases are credibility and the well-foundedness of their allegations regarding Pakistan.

Identity

[24]     The personal identities of the associate claimant and the four children and their Pakistani citizenship has been established on a balance of probabilities by their Pakistani passports, copies of which are on file.23

Nexus

[25]     The associate claimant and the four children allege fears based on their familial relationship to the principal claimant. The panel therefore analysed their allegations under the Convention grounds of particular social group, namely family of a bisexual man.

Credibility

[26]     A claimant’s sworn testimony is presumed truthful unless there are reasons to doubt the veracity of their allegations.24 After considering the principal claimant’s testimony in its entirety, the panel finds that material aspects regarding threat to the associate claimant and the four children are not credible. The areas of concern are outlined below.

[27]     The panel notes that the principal claimant provided the majority of the testimony at the hearing as his experiences are the most central to the present claims. However, the associate claimant and claimants [XXX] and [XXX] were all given opportunities to testify themselves, and each indicated they agreed with the testimony the principal claimant had provided.

[28]     The claimants allege that [XXX] repeatedly tried to pressure the associate claimant and oldest son [XXX] to abandon the principal claimant after his sexual orientation was discovered. The claimants also allege that [XXX] and other family members tried in [XXX] 2017 to forcibly abduct [XXX] who was then 18 years old, to take him to [XXX] home and away from his father.

[29]     At the hearing, the principal claimant testified that during the failed abduction attempt [XXX] threatened that if [XXX] continues to support the principal claimant then [XXX] is also implicated in the sin associated with his father’s sexual orientation. The panel asked the principal claimant why he didn’t mention this threat in his BOC. The principal claimant testified that the failed abduction attempt was mentioned in the BOC. The panel repeated its question. The principal claimant testified that if the abduction attempt were to take place then there must be solid reason behind that incident.

[30]     The panel finds the principal claimant’s testimony was evasive and failed to address the question. The claimants state in their BOCs that the abduction attempt was an effort to get the principal claimant’s family to abandon him. Threatening [XXX] instead when the abduction and other efforts to isolate the principal claimant were unsuccessful is a significant and distinct component to the claimants’ allegations. Threat migrating from the principal claimant to his family members is not a minor detail and the panel finds the failure to mention this in the BOCs is a material omission.

[31]     The panel further notes that the principal claimant wrote in his BOC that he and the associate claimant did not believe [XXX] meant to harm his son Haris in the abduction attempt and ‘that he had taken such actions in a fit of emotion because of his extremist religions background’.25 The BOC further states that the associate claimant did not want to implicate her only brother in any kind of criminal case regarding the attempted abduction.26 The panel notes that all the claimants used the narrative of the principal claimant in their BOCs.

[32]     The panel finds these BOC statements further undermine the credibility of the principal claimant’s testimony regarding [XXX] threatening [XXX] during the alleged failed abduction. The panel therefore finds the claimants failed to establish on a balance of probabilities that such an abduction attempt or threats to [XXX] ever took place.

[33]     The principal claimant in his oral testimony stated that the associate claimant and their other three chidlren would also be at risk from [XXX] as they, too, would be seen as supporting him in his so-called sin having not divorced or otherwise left the principal claimant The principal claimant also testified, however, that there had been no actual threats against the associate and remaining claimants. Everything in the BOC regarding the associate claimant and the four children and [XXX] indicates he pressured them repeatedly to leave the principal claimant but there is no mention of harm directed at them. As the panel has found the claimants failed to establish the threat against [XXX] took place, it further finds on a balance of probabilities that the other claimants were not threatened by [XXX] either.

Prospective Risk of Return

[34]     The panel considered whether the associate claimant and the four children would be at risk from SSP or otherwise in Pakistan based on their relationship with the principal claimant and given that his bisexual orientation was discovered by the associate claimant’s family and through them by the SSP. The panel finds the associate claimant and the four children failed to establish that they would face a serious possibility of harm or a danger of torture or a risk to life or risk of cruel and unusual treatment or punishment should they return to Pakistan.

[35]     At the hearing, the principal claimant testified that he believed the associate claimant and the four children would be at risk of harm al the hands of SSP should they return to Pakistan. The panel notes that the claimants did not allege any threats by SSP against the associate claimant or the four children in the BOC forms. The only allegations in the BOC involving the associate claimant and the four children involve claimant [XXX] and [XXX] and the panel has determined those allegations are not credible.

[36]     Even accepting that SSP is aware of the associate claimant and the four children and their relationship to and continuing support for the principal claimant as a bisexual man, the available country condition evidence does not indicate that this relationship would result in harm to these claimants. In reviewing the NDP evidence, along with submissions from counsel, the panel finds that the claimants have foiled to establish on a balance of probabilities that SSP and other extremist groups in Pakistan have any interest in the families of LGBT individuals or have engaged in acts of violence or other persecution against them.27

[37]     Given the country condition documents provided by the claimants, and the more than 4,700 pages of country conditions documents in the NDP, it is reasonable to expect that there would be clear reports of the SSP or other groups engaging in this type of harm if it was something they actually did. The absence of such reports is indicative of SSP and other groups not having the interest and ability to persecute families of LGBT individuals.

[38]     The panel has found that the allegations of threats against the associate claimant and the four children by [XXX] are not credible. The objective evidence also does not establish that wives or children of bisexual men typically face any risk of harm in Pakistan at present from SSP or other extremist groups. The panel therefore finds that the associate claimant and the four children do not face a serious possibility of harm should they return to Pakistan.

DETERMINATION – PRINCIPAL CLAIMANT

[39]     The panel finds that the principal claimant has established that he faces a serious possibility of persecution in Pakistan based on his sexual orientation as a bisexual man. The panel concludes that the principal claimant is a Convention refugee and therefore accepts his claim.

DETERMINATION – ASSOCIATE CLAIMANT AND THE FOUR CHILDREN

[40]     The panel further finds that the associate claimant and the four children of the associate and principal claimant have not established a serious possibility of persecution in Pakistan on a Convention ground nor have they established, on a balance of probabilities, that they would be personally subjected to a danger of torture, or face a risk to their lives, or a risk of unusual treatment or punishment upon their removal to Pakistan. The associate claimant’s refugee claim and those of the four children are rejected.

(signed)           K. Gibson

September 13, 2019

1 Immigration and Refugee Protection Act, S.C.1001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017.
3 Exhibits 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6
4 Exhibit 1, Pakistan passport no. [XXX], issued [XXX].
5 Exhibit 7, pp. 10-19; Exhibit 9, pp 8-10.
6 Exhibit 7, pp. 20-28.
7 Exhibit 7, pp. 36 39.
8 Exhibit 5, pp. 16-22.
9 Exhibit 6.
10 Exhibit 7, pp. 1-2.
11 Exhibit 5, p. 23.
12 Exhibit 7, pp. 3-9; Exhibit 9, pp. 12-13.
13 Exhibit 3, National Documentation Package (NDP) for Pakistan (March 29, 2019 version), items 1.6, 1.13, 1.22, 1.25, 2.1, 5.1, 6.1, 6.2, 6.3 and 6.5
14 Ibid.
15 Ibid
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid., item 10.1.
23 Exhibit 1, Pakistan passport no. [XXX], issued [XXX], [XXX] Pakistan passport no. [XXX]issued [XXX] Pakistan passport no. [XXX] issued [XXX]; Pakistan passport no. [XXX] issued [XXX]; Pakistan passport no. [XXX].
24 Maldonado, Pedro Enrique Juarez v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (CA); 31 N.R. 34 (F.C.A.).
25 Exhibit 2.1, BOC narrative para. 18.
26 Ibid.
27 Exhibit 3, NDP for Pakistan, supra note 13.

Categories
All Countries Pakistan

2019 RLLR 24

Citation: 2019 RLLR 24
Tribunal: Refugee Protection Division
Date of Decision: June 26, 2019
Panel: Keith Brennenstuhl
Counsel for the Claimant(s): Kristina Cooke
Country: Pakistan
RPD Number: TB8-27592
ATIP Number: A-2021-01124
ATIP Pages: 000151-000155


REASONS FOR DECISION

On June 26, 2019, the Refugee Protection Division (RPD) heard the claim of [XXX] who claims refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). On that same day, the panel rendered its oral positive decision and Reasons for decision. This is the written version of the oral decision and Reasons that have been edited for clarity, spelling, grammar and syntax with added references to the documentary evidence and relevant case law where appropriate.

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX], who 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.

ALLEGATIONS

[2]       The allegations are fully set out in the claimant’s Basis of Claim form. The claimant identifies her religion as the Shia sect of Islam. Her problems arose during her teaching of her grade 10 students, when she spoke out against terrorist acts that had happened the day before when a girls’ school was destroyed in a nearby province. She expressed her view that the real culprits were Madrasahs and that they were incubators for terrorism. She talked about terrorist organizations including the Lashkar-e-Jhangvi (LeJ) saying that people who gave them refuge were equally culpable for their terrorist acts.

[3]       Accused of preaching religion and speaking out against Sunnis, the principal terminated the claimant’s employment the next day. Rumours spread that she had been terminated because of her involvement in “immoral activities”.

[4]       Three days later, while waiting at a bus stop, two men on a motorbike drove by and fired two gunshots around her. She registered a First Information Report (FIR) at the police station. On the same night, she received a call on her cell phone from a man claiming to be a member of LeJ, saying the attack earlier that day had been a warning from them and that they would not tolerate a Shia pervert who was involved in spreading hatred in school against Sunni Islam.

[5]       She relocated to [XXX] and changed her cell phone number. A week later, she learned from her former neighbour that two men knocked at her door and had inquired about the claimant, indicating that the claimant was on their hit list. She contacted the police to update them on the situation but they had nothing to update her with or help to offer.

[6]       The claimant raised funds for an airline ticket and visa and fled Pakistan to the USA. Shortly thereafter she made her way to Canada where she made her refugee claim.

[7]       The claimant is afraid of returning to Pakistan because she has been targeted by the LeJ for spreading, what is perceived to be, anti-Sunni sentiments.

DETERMINATION

[8]       I find that the claimant is a Convention refugee as she has established a serious possibility of persecution should she return to Pakistan based on the grounds in section 96.

ANALYSIS

Identity

[9]       I find that the claimant’s identity as a national of Pakistan is established by the documents provided, including a certified true copy of her Pakistan passport.

Nexus

[10]     I find that the claimant has established a nexus to section 96 by reason of religion.

Credibility

[11]     The claimant’s evidence is, on the balance, internally consistent, inherently plausible, and consistent with the documentary evidence on country conditions in Pakistan. Furthermore, the allegations are corroborated by personal documents that I do not have sufficient reason to discount, including corroboration of the claimant’s identity as a Shia, and as a teacher, and that she was terminated from her teaching position on the false allegation of spreading hatred against Sunni Islam. The FIR supports her allegation that you were fired upon by two unidentified persons on a motorbike. I, therefore, find this evidence to be credible and that the allegations are probably true.

Objective basis of future risk

[12]     Based on the credibility of her allegations, and the documentary evidence set out below, I find that the claimant has established a future risk that she will be subjected to threats, violence and even death at the hands of Sunni militant groups if she were to return to Pakistan.

[13]     Country condition documents indicate that Shia Muslims face increasing threats in Pakistan. They are being systematically targeted and shot dead by Sunni militants who do not consider them as Muslims. There is a general lack of effective state protection for those Shia Muslims who are targeted by Sunni militant groups. The Pakistani government’s response to violent attacks against Shia is characterised as grossly inadequate; it is described as lacking political will to address violence against Shia. Militants targeting Shia Muslim act with “impunity” (National Documentation Package (NDP) for Pakistan (January 31, 2019), Item 12.5). Shi’ites, according to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan (Item 1.8) face a growing threat of sectarian attacks with attacks primarily targeting ordinary individuals. I should add that the claimant would have a heightened vulnerability in that she is a female educator as well. Anti­Shi’ites speech reportedly permeates all sectors of society, and extremist groups are reported to have publicly called for the killing of Shi’ite individuals and have used methods to instill fear and force them to flee. According to a document entitled Everything has shattered- rising levels of violence against Shi’a in Pakistan (Item 12.23), the Pakistani government completely fails to protect its Shia population and has not been able to successfully counter allegations that it is protecting militants.

Nature of the harm

[14]     The harm that the claimant would face if she were to return to Pakistan clearly amounts to persecution.

State protection

[15]     The objective evidence confirms that state protection, as it relates to sectarian violence against Shia, is ineffective as already canvassed earlier. I am satisfied, therefore, that the claimant will not be able to avail herself of adequate state protection in the face of persecutory acts from non-state actors if she must return to Pakistan.

Internal flight alternative (IFA)

[16]     I have considered whether a viable internal flight alternative exists for the claimant. According to the UNHCR Eligibility Guidelines, given the wide geographic reach of some armed militant groups, a viable IFA will generally not be available to individuals at risk of being targeted by such groups.

[17]     I am satisfied, given the claimant’s profile as a Shia’ female educator, she will face a serious possibility of persecution based on her profile and in particular her religious profile anywhere in Pakistan. Attacks by extremists targeting Shia in Pakistan is widespread (Item 12.23) and police often fail to protect religious minorities, including Shia, from attacks.

CONCLUSION

[18]     Based on the forgoing analysis, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

Categories
All Countries Pakistan

2019 RLLR 18

Citation: 2019 RLLR 18
Tribunal: Refugee Protection Division
Date of Decision: March 11, 2019
Panel: J. Bousfield
Counsel for the Claimant(s): Lisa Rosenblatt
Country: Pakistan
RPD Number: TB8-18500
Associated RPD Number(s): TB8-18564, TB8-18565, TB8-18566, TB8-18567
ATIP Number: A-2021-01124
ATIP Pages: 000128-000131


DECISION

[1]       MEMBER: This is the decision in the claims of [XXX], [XXX], [XXX], [XXX], and [XXX].

[2]       They claims to be citizens of Pakistan from Sialkot, and are claiming refugee protection pursuant to Section 96 and 97 (1) of the Immigration and Refugee Protection Act.

[3]       COUNSEL: I am sorry. Can I interrupt for just one moment? [XXX], I know you have a little bit of difficulty expressing yourself, but your English is quite good in terms of understanding.

[4]       CLAIMANT: Sometime.

[5]       COUNSEL: Do you need the Interpreter to translate the decision, or…

[6]       CLAIMANT: No. Yes. It is okay.

[7]       INTERPRETER: It is okay?

[8]       CLAIMANT: Yes.

[9]       INTERPRETER: So, I do not have to translate.

[10]     CLAIMANT: No.

[11]     COUNSEL: Yes. I do not think she needs the Interpreter to translate.

[12]     MEMBER: Okay.

[13]     COUNSEL: She is quite, quite, good at understanding English.

[14]     MEMBER: The principal Claimant was designated representative for the minor Claimants.

[15]     The Minister intervened in this case on credibility grounds, but withdrew the intervention shortly before the hearing. Minister’s Counsel did not appear at the hearing.

[16]     I am satisfied that the Claimants are citizens of Pakistan, and as to their personal identity based on their passports which can be found in Exhibit 1.

[17]     The details of the allegations appear in the answers to the principal Claimant’s basis of claim form, which is Exhibit 2.1, and were elaborated upon by her in oral testimony during the hearing this afternoon.

[18]     The central allegations of a much longer narrative are the following.

[19]     The Claimants are practicing members of the Ahmadi faith. They have suffered a history of persecution in Pakistan because of their faith, including severe restrictions on their freedom of worship, ostracism, vandalism, assault, verbal abuse, threats, and harassment. Their Ahmadi relatives have also been persecuted.

[20]     They therefore came to Canada on temporary resident visas in mid June 2018, and initiated these in-land refugee protection claims shortly after their arrival. They are afraid of further religious persecution if they return to Pakistan, and that they will not be able to freely practice their religion.

[21]     For the following reasons I find that the Claimants are Convention refugees.

[22]     The affirmed testimony of refugee claimants is presumed to be true, unless it is internally inconsistent, inherently implausible, or contradicted by country documents. In this regard, I am relying on the Federal Court of Appeal decision in Maldonado. There was no such fault with the principal Claimant’s testimony in the hearing this afternoon.

[23]     Furthermore, the Claimants Ahmadi religion and the rest of the allegations in the case are confirmed by a substantial number of personal documents that I do not have sufficient reason to discount, including their passports indicating that they are Ahmadis, a travel permission from the minor Claimants’ father, a reliable Ahmadi certificate, Ahmadi identity cards, Ahmadi donation receipts, other Ahmadi documents, claim specific news reports, and a letter from the [XXX]. These documents can be found in Exhibits 1, 7, and 9.

[24]     Furthermore, the principal Claimant displayed reasonable knowledge of the Ahmadi faith in response to the religious knowledge questions I asked her during the hearing. I therefore find that the principal Claimant is a credible witness, that the Claimants are practicing members of the Ahmadi faith, and all of the rest of the allegations in this case are also true on a balance of probabilities.

[25]     Based on the credible allegations and the documentary evidence on country conditions before me, which can be found in Sections 1, 2, and 12 of Exhibit 3, which is the National Documentation Package for Pakistan for January 31, 2019, as well as in Claimant Exhibits 7 and 9, I am following Jurisprudential Guide TB7-01837 which holds that practicing members of the Ahmadi faith, like the Claimants, have a well-founded fear of persecution in Pakistan by reason of their Ahmadi religion, that adequate State protection is not available to them, and that they do not have viable internal flight alternatives.

[26]     I therefore conclude that the Claimants are Convention refugees. The claims are therefore accepted. Thank you for coming.

[27]     COUNSEL: Thank you very much.

[28]     CLAIMANT: Thank you.

[29]     MEMBER: Good afternoon.

[30]     INTERPRETER: Thank you, Mr. Member.

[31]     COUNSEL: So, I will give you your documents back, the originals. If you want to take the kids out to the reception area, I will meet you.

———- REASONS CONCLUDED ———-

Categories
All Countries Pakistan

2019 RLLR 13

Citation: 2019 RLLR 13
Tribunal: Refugee Protection Division
Date of Decision: July 9, 2019
Panel: M. Vega
Counsel for the claimant(s): Ian Wong
Country: Pakistan
RPD Number: TB8-13766
ATIP Number: A-2020-01124
ATIP Pages: 000099-0000103


[1]       MEMBER: This is the oral decision in the case with respect to [XXX], file number TB8-13766. I have considered your testimony, Mr. [XXX], and I’m now ready to render a decision in this case. Okay.

[2]       You have made a claim to be a citizen of Pakistan and you are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you are a convention refugee for the following reasons:

[3]       Your allegations are found in your basis of claim form in summary and I won’t repeat them all. Basically, you were born into a Sunni family and you, yourself, partly because of your career as a [XXX], you became — and also because you were brought up to believe that — by your father that other — that religions were to be treated well, all of them, you become exposed to the Shia faith or the Shia sect of Islam and became friends with someone who was involved in the Shia faith and whose uncle was a guardian of one of the prominent imambargahs in Lahore.

[4]       And through this friendship you started answering questions, you started believing that this was the right path and that it was the right path for you. And you then converted in — first major interest known in 2016 and in 2017 you formally converted at the imambargah where this friend had taken you to.

[5]       And when this became known to your family, and this became known as a result of a beating that you received by extremist persons who had become aware of your being a convert to the Shia sect, and they beat you up.

[6]       And this was one of several encounters that you subsequently had with extremists associated to either the Sipah-e-Sahaba or the Lashkar-e-Jhangvi — and I’ll refer to the Lashkar-e-Jhangvi from now on as the LEJ and the Sipah-e-Sahaba as the SSP. Okay?

[7]       So basically, your family members became aware of your conversion. They were very angry with you. All the family was angry, as were your friends who were also Sunnis, including your employer who was not happy about it either.

[8]       It would appear that the only — but despite their anger, you still were able to find some assistance from these family members — from some, with the exception of your eldest brother who is very involved in politics as he’s — give me a second.

[9]       Your brother has continued to be involved and to contest elections as recently as 2018. In your basis of claim form, you had indicated that this brother, Shabazz (Ph), in 2015 he became a member — sorry. No, not that.

[10]     Your brother became the [XXX] of the [XXX]. He was very close to the Chief Minister of the Punjab. And he has continued to be in the [XXX] until, as I’ve already said, even recently in 2018.

[11]     Your brother was very upset about your having become a convert to the Shia Sect. He also has influence and power because of his political position. He became very also concerned that not only was your family at risk, as your brother was targeted and was beaten up when they couldn’t find you, and your mother — there was a threatening letter sent to you at your mother’s house, but he was also very concerned about his own political career and that this would affect the family’s honour and that it would also have repercussions on his career.

[12]     He asked — told your mother to disinherit you and she proceeded to do that in XXXX 2018, to fill out a disinheritance certificate and file it. And he also went as far as to tell the police, with whom he had friendships, to stop helping you.

[13]     Because at first the police were taking your information down. They even took a first information report, but then subsequently the police just took information but they did nothing with it and they stopped even doing anything that might assist you.

[14]     And so, you decided you couldn’t stay there and you came to Canada to live in the end of XXXX 2018. Okay?

[15]     So when you became known to be a Shia convert, that’s when your problems started for you. You were not — the fact that you were a Shia was problematic for you, but it was more so because you had converted from the Sunni faith.

[16]     So the nexus to the convention ground is that of your religion, because as a Shia — as Shias -­ the documentary material provides a lot of information with respect to how they are treated by the Sunni majority population and how their extremist groups, as you’ve encountered, that deal with them — with people that — with minority religions, but they deal very badly with minority religions, but they deal also very badly with any person who’s a convert from the Sunni Sect. In some ways, some would say they deal worse with the converts.

[17]     I’ll get to the documents in just a moment. I want to speak about your credibility. Your credibility, I found you to be — I found you to overall to have — to be a credible witness. Your documents corroborated much of what you say in your basis of claim form.

[18]     I did not find problems or discrepancies between what you said in your basis of claim form, in your documents, with what you said today orally. The only — we seemed to encounter problems towards the end, that you were having some problems or understanding.

[19]     Now I have to say, in cases where a person speaks English or understands enough English, I’ve had this happen. So it’s not an interpretation problem.  It’s a problem where the person understands enough to listen to the question and before the interpreter can even translate it, the person is already coming up with the answer. And then I find that the answer I get is confusing.

[20]     So because I find that it’s happened in many cases where they have that similarity to your case, I don’t find that you’re trying to trick me or to try — that you’re trying to make things up.

[21]     So I do believe that your allegations, your evidence, overwhelmingly indicates that you are a Shia convert. You have letters from the imambargah here in Canada. You have letters from the imambargah back in Pakistan, you have receipts, donation receipts.

[22]     When you spoke about issues to do with your family and to do with your faith, there was this sincerity in the way you said it and I find that I can accept your allegations as credible. Okay?

[23]     So the documentary material, we have a lot of information, both from your counsel’s packages as well as from the National Documentation Package. And what it says about the religious minorities in Pakistan is not very good for the religious minorities.

[24]     It states that the Shia population is about 25 percent of the Pakistani populations and that hey have suffered and often are the targets of violent attacks by Sunni fundamentalist groups throughout the country.

[25]     The LEJ is a banned extremist group that was connected and linked to the earlier group, the Sipah-e-Sahaba, which was also banned. These groups have caused problems in Pakistan, continue to do so, as well as to the Shia Sect of Muslims, as well as to other minority religions.

[26]     There’s a document in the package at item 1.8, from the United Nations High Commissioner for Refugees. It is called the UNHCR Eligibility Guidelines for assessing the international protection needs of members of religious minorities from Pakistan.

[27]     This document speaks of the type of violence that these fundamentalist groups carry out. And it speaks about the targeting of Shia Muslims as well as of other religious minority groups.

[28]     This document also speaks in the summary about how if a person has come to the attention of these militant groups, these groups have quite the network, and then these people who come to the attention of these terrorists, these people are not safe throughout the country because of the network that these militants have.

[29]     The documentary material also speaks about how Sunnis clerics make the situation worse by preaching over loud speakers hatred, prejudice and violence against Shias as well others.

[30]     There’s another document which is found at item 12.5. It’s a response to information request and it states there that according to human rights watch, the LEJ reportedly has had links to the Pakistani military and intelligence services in Pakistan and that they act, these groups that is – act with impunity in area where state authority is well established, such as in the Punjab Province.

[31]     It also states in other sources, in the same document, that the government efforts to address the violence against Shia Muslims has been insufficient. And this is according to the JINNAH, J-I-N­-N-A-H, Institute.

[32]     And another document at item 1.6, written by the Asylum Research Center, it’s also by the United Nation’s High Commissioner for Refugees — or rather the UNHCR commissioned this document and they called it, “The Pakistan Country Report September 2016”.

[33]     And it speaks in that document with regards to Sunni militants and other militant religious groups and how these groups target religious minorities, especially Shiites, Ahmadis, Sufis and Christians. And how the LEJ was also responsible for much of the violence.

[34]     Information from the Jamestown Foundation in the documentary material indicates that there’s nowhere in Pakistan that you would be safe without facing serious grounds for persecution on the basis of your religion.

[35]     And also, in my opinion, I want to say that given the fact that the choice in your career is that of a journalist, the documentary material also speaks about journalists. Because of the high-profile nature of their work and also because then your name becomes known, journalists are — as well as because they often write about sensitive issues and human rights issues, they are also in a position of risk back in Pakistan.

[36]     In your case, I found that because you have written under your own name — you’ve written under reporter — a reporter, but you’ve also written under your own name as part of your credentials and part of your inventory of writing, I find that for you to try to relocate throughout the country, as you have tried to do, would be difficult for you.

[37]     In your particular case, it’s not just that these organizations know you and could try to find you, but any assistance that was — that you tried to obtain on your own seems to have been sabotaged by your brother who is in a position of power and influence and he’s used that power and influence rather than to help you, he’s — and he even said that the reason the police had paid attention to you was because of him, but then when you asked him to stop helping you that makes it puts you in a worse situation and I believe that you would face a risk of persecution because of your brother’s influence.

[38]     Therefore I find that in your case there is not adequate protection for you provided by the government, in your particular situation, Mr. XXX, and therefore I find that you face a serious possibility of persecution in Pakistan by reason of your religion as a Shia Muslim anywhere in the country where you may go, because you have converted and I also — and as I’ve said there’s no state protection available to you and no internal flight alternative available either. I therefore find you to be a convention refugee and I accept your claim.

[39]     Do you understand, Mr. XXXX?

[40]     CLAIMANT: Thank you.

[41]     MEMBER: You’re very welcome. This hearing is —

– – – HEARING ADJOURNED – – –

Categories
All Countries Pakistan

2019 RLLR 10

Citation: 2019 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: K. Genjaga
Counsel for the claimant(s): John Savaglio
Country: Pakistan
RPD Number: TB7-09089
Associated RPD Numbers: TB7-09090
ATIP Number: A-2020-01124
ATIP Pages: 000075-000088


REASONS FOR DECISION

[1]       This is the decision in the claims of [XXX] (the principal claimant) and [XXX] who claim to be citizens of Pakistan and are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In deciding these claims, the panel considered the principal claimant and claimant’s testimonies, documentary evidence, and counsel’s oral submissions at the hearing. In addition, the panel considered the Chairperson’s Guidelines number 9 on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression2.

ALLEGATIONS

[3]       The principal claimant alleges in his Basis of Claim Form (BOC)3, BOC amendment4 and in testimony that he fears the Pakistan authorities, religious extremists and society in general if he were returned to Pakistan today. The principal claimant fears being arrested, tortured and even killed due to his sexual orientation of being a homosexual. The claimant relies on the BOC and BOC amendment of the principal claimant and fears she will be harmed for her role in assisting the principal claimant to escape Pakistan. While the details of the claim are in the BOC and BOC amendment, the following is a brief summary of the principal claimant’s allegations.

[4]       The principal claimant alleges he was born and raised in [XXX]. The claimant alleges that he grew up with three sisters and knew he was a homosexual from an early age.

[5]       The principal claimant alleges he fell in love with his childhood friend, [XXX]. The principal claimant alleges that he started a relationship with [XXX] when they were 16 years old.

[6]       When the principal claimant was in grade 12, he alleges that his parents found out about him secretly going to a hotel with [XXX] and confronted the principal claimant.

[7]       On [XXX], 2016, [XXX] father suspected that [XXX] and the principal claimant were involved in same sex activities and beat them both after he found them in his house in a locked room for over an hour. The claimant alleges that [XXX] father threatened to hand him over to the police if he did not stop his activities with [XXX] and phoned the principal claimant’s father to advise him of the suspected homosexual activities.

[8]       The next day, the principal claimant alleges his father warned him of the severe consequences he would face by the religious extremists if he did not abandon his homosexual activities. The principal claimant alleges his father cursed and beat him up after the principal claimant admitted his homosexual orientation. The principal claimant alleges that the claimant cursed him and said it was better if she had another daughter than him.

[9]       After some time, the principal claimant alleges he resumed his relationship with [XXX] and started to meet him in different guestrooms in [XXX]. The principal claimant alleges his father asked the local Sunni Masjid, [XXX] to try to convince him to change his sexual orientation.

[10]     On [XXX], 2016, the principal claimant alleges he and [XXX] were in a [XXX] guestroom in [XXX], when four bearded men entered with a key. The principal claimant alleges that these men started to punch and kick him and [XXX]. The principal claimant alleges he and XXXX were then handed over to the police and taken to the police station.

[11]     The principal claimant alleges that he and [XXX] were verbally abused, humiliated and physically assaulted by the police during their detention. The principal claimant alleges that the police called the principal claimant’s father who came down to the police station and bribed the Station House Officer to release the principal claimant. The police warned the principal claimant’s father that his son should not be seen in the area otherwise he may face serious harm in the future.

[12]     The principal claimant alleges that word spread through the neighbourhood quickly about his arrest and sexual orientation. The principal claimant alleges that his father was called to appear before a council of elders the next day to address the matter. The principal claimant alleges he went into hiding in [XXX] at his father’s friend’s house.

[13]     On [XXX], 2016, the principal claimant alleges that that the council of elders decided that he and [XXX] should be punished with death for their homosexual activities and to preserve the dignity of their Islamic faith. The principal claimant alleges that Sunni radical extremists were also in the council and who vowed to carry out the punishment.

[14]     The principal claimant alleges that at the insistence of the claimant, the principal claimant’s father contacted an agent to assist getting the principal claimant and the claimant out of the country for safety. The principal claimant alleges that the claimant had to accompany him because he was still a minor.

[15]     On [XXX], 2016, the principal claimant and the claimant came to Canada. In May of 2017, the principal claimant and the claimant made claims for refugee protection.

DETERMINATION

[16]     This is a split decision. The panel finds that the principal claimant is a Convention refugee based on the grounds of membership in a particular social group that being a homosexual. The panel finds that the claimant is not a Convention Refugee and not a person in need of protection. The panel’s reasons are as follows.

ANALYSIS

[17]     The determinative issues in this claim are identity, credibility, well-foundedness of the claim and internal flight alternative.

Identity

[18]     On a balance of probabilities, the panel accepts the claimants are citizens of Pakistan based on their testimony and copies of their Pakistani passports.5

Credibility

[19]     Credibility is an issue to be considered in all claims before the Immigration and Refugee Board (IRB). In order to determine whether the claim is well-founded, the panel must find, on a balance of probabilities, that the evidence is credible and trustworthy. A claimant’s testimony is presumed to be true unless there are valid reasons to doubt its truthfulness.6

The principal claimant’s claim

[20]     The panel found the principal claimant to be a credible witness on his sexual orientation and incidents that have happened to him in Pakistan. The principal claimant testified in a straightforward and clear manner. The principal claimant was able to provide details of events in his life in Pakistan and in Canada. His testimony was consistent with the BOC, Port of Entry documents and documentary evidence provided in support of his claim. There were no inconsistencies between the principal claimant’s testimony and the other material before the panel. The principal claimant did not embellish or exaggerate his claim. As a result, the panel believes the principal claimant’s story as it pertains to him.

[21]     In addition, the principal claimant has provided personal documentary evidence7 including certificate of domicile, driving license, national identity card, educational documents, educational documents of [XXX], family registration documents, certificate for the children below 18 years of age, affidavits in support from family and friends, photographs, 519 letters and donation receipts. As a result, the panel believes his story in support of his claim.

[22]     There is considerable objective documentary evidence8 put forward by the Board and counsel that highlights the problems that claimants who are homosexual may face in returning to Pakistan today.

[23]     In the United States. Department of State. Pakistan. Country Reports on Human Rights Practices for 20189 states,

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

Consensual same-sex sexual conduct is a criminal offense. The penalty for same-sex relations is a fine, two years’ to life imprisonment, or both. Lesbian, gay, bisexual, male transgender, and intersex persons rarely revealed their sexual orientation or gender identity. There were communities of openly transgender women, but they were marginalized and were frequently the targets of violence and harassment.

Violence and discrimination continued against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons. The crimes often go unreported, and the police generally take little action when they do receive reports. Outreach by NGOs in KP, however, improved interactions between police and the transgender community there.

According to a wide range of LGBT NGOs and activists, society generally shunned transgender women, eunuchs, and intersex persons, collectively referred to as “hijras”–a word some transgender individuals view as pejorative, preferring the term “khawaja sira”-

-who often lived together in slum communities and survived by begging and dancing at carnivals and weddings. Some also were prostitutes. Local authorities often denied transgender individuals their share of inherited property, and admission to schools and hospitals. Landlords frequently refused to rent or sell property to transgender persons. On May 9, Parliament passed the landmark Transgender Persons (Protection of Rights) Act, 2018, which addresses many of these problems. The law accords the right of transgender individuals to be recognized according to their “self-perceived gender identity,” guarantees basic rights, and prohibits harassment of transgender persons, and outlaws discrimination against them in employment, housing, education, healthcare, and other services.

A 2012 Supreme Court ruling allows transgender individuals to obtain national identification cards listing a “third gender.” Because national ID cards also serve as voter registration, the ruling enabled transgender individuals to participate in elections, both as candidates and voters. The Election Commission of Pakistan and the National Database and Registration Authority, with support from international donors, conducted an identification card and voter registration drive prior to the July general elections. Thirteen transgender candidates ran in the elections, although none were elected. Election observers and the transgender community reported incidents of harassment of transgender voters on election day, and the Sindh Home Department reportedly confiscated the Election Commission of Pakistan accreditation cards of 25 transgender observers citing security concerns. A Free and Fair Election Network report, which included observations of 125 transgender election observers, noted that in Islamabad, Lahore, and Karachi law enforcement officials were largely helpful and gave preferential treatment to transgender voters. In Peshawar and Quetta, by contrast, transgender voters faced harassment (emphasis is mine).

[24]     Under Sharia Law, homosexuals may face the death penalty in Pakistan for their activities.10 While homosexual activities are still considered to be a crime, some documentary evidence indicates the government rarely prosecutes individuals while other documentation indicates that there has been documented arrests of homosexuals in Pakistan for the past three years.11

[25]     The documentary evidence12 indicates that sexual minorities are not socially accepted with the major part of society denying their existence and there is little public acceptance of the notion that someone can love a person of the same sex. The documentary evidence13 indicates that individuals who are of non-heterosexual orientation are reluctant to reveal their sexual orientation or gender identity because then life becomes miserable as he or she can become the victim of teasing, bashing, beatings, threats and even being killed. The documentary evidence14 indicates that lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) persons are victimized by the state, by society, by religious extremist groups and even by their own families.

[26]     The documentary evidence15 indicates that sexual minorities may face a risk of discrimination, violence, social boycott and degradation in social class and rank. The documentary evidence indicates there is widespread and systemic state and societal discrimination against LGBTQI individuals in Pakistan including harassment and violence. The documentary evidence indicates Pakistan is homophobic society that has anti-homosexual statutes and that it suffers from serious levels of ongoing anti-homosexual violence. The documentary evidence also indicates that the Pakistani authorities do not provide adequate state protection to the LBGTQI persons suffering serious human rights abuses and are often one of the agents of persecution as they tend to share and support the homophobia found in Pakistani society as a whole.16

[27]     Therefore, the panel finds on a balance of probabilities that the principal claimant has come to the attention of the Pakistan authorities and local Sunni extremists and local religious clerics as being homosexual. Therefore, the panel finds on a balance of probabilities that there is more than a mere possibility that the principal claimant would face persecution if he returns to Pakistan today.

[28]     The panel finds that the principal claimant has rebutted the presumption of state protection because the state is one of the agents of persecution in this case and it would be unreasonable to expect him to seek state protection in this case.

[29]     The panel also finds that there is no Internal Flight Alternative for the principal claimant because the situation would be the same wherever he lives in Pakistan.

The claimant’s claim

[30]     The panel did not find the claimant’s testimony credible as it relates to events in Pakistan and the well-foundedness of her claim. The panel find’s that the claimant on a balance of probabilities will not face harm or persecution upon return to Pakistan. The panel noted that the objective documentary evidence17 does not support that the family members will face harm or persecution if their family member is homosexual. It states that gay activists who openly campaign for gay rights are likely to be at real risk in Pakistan from non-state actors. The claimant in this case is not a gay rights activist but a concerned mother and parent who assisted her son in coming to Canada for his safety.

[31]     The panel finds the claimant was evasive and did not want to answer the panel’s questions. The panel found the claimant very emotional throughout her testimony and kept on crying. The panel found that the claimant often did not listen to the questions being asked and was often rambling in her answers and in hysteria that she could not leave her son and go back to Pakistan which she repeated often. The panel does not find the claimant credible in the following areas;

Omission in the BOC narrative that the claimant and her husband were visited by Sunni radical extremists, mulvis or religious clerics and were abused and beaten in Pakistan

[32]     The claimant testified that while her son was in hiding in [XXX] that Sunni radical extremists, mulvis or religious clerics visited her home in Lahore and questioned her and her husband about the location of the principal claimant. The claimant testified that they were abused and beaten by these individuals in Pakistan. The panel asked the claimant how many times these people came. The claimant testified that they came many times to her home. The panel asked the claimant again to specify how many times these people came to her house in the four month period that the principal claimant was in hiding in Gujranwala. The claimant kept repeating they came too many times and they came several times.

[33]     The panel asked the claimant why the visits to the house and subsequent abuse and beatings were not mentioned in the BOC narrative. The claimant testified that the lawyer’s assistant said that there was no need to give more details of her problems in Pakistan. The panel asked the claimant if she told her lawyer about the visits, abuse and beatings by the Sunni radical extremists, mulvis, religious clerics or goons. The claimant testified that she did not. The panel asked why she did not tell the lawyer about these incidents she testified that she is uneducated and that she did not know that she had to tell him.

[34]     The panel does not find that the claimant has provided a reasonable explanation for the omission in the BOC narrative. It would be reasonable to expect that a claimant would state all incidences of harm or threats in the BOC narrative that she has experienced pertaining to her son’s activities. The claimant in this case did not file her own separate BOC narrative but instead relied on the BOC narrative of the principal claimant. The panel also noted that the claimant and her husband did not move or go into hiding after the arrest of the principal claimant or after the council of elders meeting. Instead they remained in their home for four months. The panel also noted that the council of elders did not issue punishments to the principal claimant’s mother or father for their son’s homosexual activities. Also, the panel noted that the recent affidavit18 of the claimant’s husband does not outline that he or his wife were abused or beaten by the extremists, religious clerics or the goons. The panel put this matter to the claimant and asked for an explanation. The claimant testified that her husband wrote about the principal claimant’s problems and did not write about the visits and beatings because he is also uneducated.

[35]     The panel finds that if the claimant truly feared for her life it would be reasonable to expect her to move or go into hiding as her son did after the principal claimant’s arrest and release from the police station. The panel noted that the claimant’s husband has submitted two affidavits19 outlining their family’s problems in Pakistan. It would also be reasonable to expect the claimant’s husband to put in the affidavits that he and his wife were abused and beaten by the religious extremists as a result of their son’s homosexual activities. The claimant’s husband did not do so. In contrast, the claimant’s husband indicated that the reason his wife came to Canada was to assist her son in travelling and reaching Canada safely because he was a minor at the time he left Pakistan. The panel noted that the claimant in her testimony also repeatedly stated that she came here to take care of her son and save his life. The panel noted that the principal claimant at the time he applied for Canadian visas was a minor and when he arrived in Canada in [XXX] of 2016 he was 18 years old.

[36]     The panel does not find the claimant credible in this area of her testimony. The panel finds on a balance of probabilities that the visits, abuse and beatings by the Sunni radical extremists, mulvis, religious clerics and goons did not happen as alleged and that the claimant is embellishing her claim so that she can stay here in Canada with her son.

Claimant’s family problems back in Pakistan since she has been in Canada

[37]     The claimant testified that since she has been in Canada, the local Sunni extremists and local religious clerics have approached her husband as recently as last week and asked him where the principal claimant is. The claimant alleges that her husband did not tell her that he was beaten and that she found out later from him and from her daughters. The panel asked the claimant when this occurred and when she found out about this matter. The claimant testified that her husband told her a week ago and that it happened about three to four months ago. The panel asked what her husband told her. The claimant testified that he said don’t come back here and that he has received life threats against the principal claimant and that is very good there in Canada. The claimant also testified that her daughters do not go outside anymore or to school because they get teased and harassed by local boys because their brother is homosexual.

[38]     The claimant also testified that when she and the principal claimant came to Canada her remaining family consisting of her husband and daughters moved to another location in [XXX]. The claimant testified that the Sunni radical extremists and the local religious clerics were able to locate her husband in the new location and again inquired about the location of the claimant and the principal claimant. The claimant testified that her husband was beaten again and that he had to move to a relative’s house. The panel asked the claimant when this happened. The claimant testified that this happened a week ago. The panel asked the claimant if she told the principal claimant about this. The claimant did not tell her son because he is a child and she did not want him to worry about this.

[39]     The panel does not find the claimant to be credible in this area of her testimony. The claimant provided conflicting testimony as to when her husband was beaten. The claimant first testified that he was abused earlier when the religious extremists would hold him by the neck with their hands to get him tell them where the principal claimant was. Later on her testimony she testified that he was beaten three to four months ago and most recently a week ago.

[40]     The panel noted that the most recent affidavit of her husband dated 2019/03/04 does not indicate that he was beaten by religious extremists. However, the panel noted the affidavit of the claimant’s husband contradicts the claimant’s testimony regarding actions taken against him by the religious extremists and also that the religious extremists have threatened to kill the principal claimant only and not the claimant. The panel put the matter to the claimant and the claimant testified that that her husband was uneducated and only put down the problems that the principal claimant experienced.

[41]     The panel noted that the claimant repeatedly testified that the principal claimant is her only son and she cannot be apart from him. The claimant testified that she came to Canada to safe her son’s life and assist him here in Canada.

[42]     The panel finds on a balance of probabilities that the claimant’s version of what has been happening to her husband in Pakistan since she has been in Canada is not credible. The panel finds that the claimant’s husband has not been beaten by the religious extremists as the claimant has alleged. Therefore, the panel finds on a balance of probabilities that the local Sunni extremists and local religious clerics are searching only for the principal claimant and not the claimant.

[43]     After reviewing the evidence in its totality, the panel finds that the claimant is not a credible or trustworthy witness with respect to the central allegations of her case that she is being pursued in Pakistan because her son is homosexual. In addition, the panel finds there is insufficient credible and trustworthy evidence before the panel upon which to reach a positive determination under s.96 ors. 97(1) of IRPA. Therefore, the panel finds that the claimant’s account of problems she faced in Pakistan lacks credibility. As a result, the panel does not believe her story in support of her claim.

Internal Flight Alternative (IFA)

[44]     In the alternative, even if the panel finds the claimant to be credible, which it does not, the panel also finds that there is a viable IFA for the claimant in Pakistan. The panel proposed at the beginning of the hearing Islamabad, Multan and Karachi as possible and viable IFAs for the claimant in Pakistan. During the course of the hearing and after hearing testimony from the claimant, the panel changed the proposed and viable IFAs to Faisalabad, Sialkot and Multan.

[45]     The panel asked the claimant if she could live in the IFAs proposed in other parts of Pakistan like Faisalabad, Sialkot or Multan and be safe. The claimant testified that she cannot because they will chase her and her husband to find out where her son is living. The panel asked the claimant what her husband tells these people when they approach him. The claimant testified that her husband has told them various lies like he does not where were they are and sometimes he tells them they have gone to Islamabad or Karachi. The claimant also testified that if her family goes somewhere else to live and her son goes out it, can be more serious. The claimant also testified that if she returns to Pakistan they will kill her because she escaped with him to Canada. The claimant testified that she has only one son and she can’t live without her son.

[46]     The panel finds that the claimant is similarly situated to other members of her family like the claimant’s husband and other family members who may have been harassed to disclose the location of the principal claimant. The panel noted that the claimant’s family has only moved to another location in Lahore when they were allegedly found. The panel finds that the claimant may be able to move to the potential internal flight alternatives of Faisalabad, Sialkot and Multan and be safe if her son remains in Canada. The panel noted that the claimant was a homemaker supported by her husband. The claimant testified that her husband worked from home as he was a tailor and the daughters helped him because he suffered from diabetes, high cholesterol and heart issues for which he was taking medications.

[47]     The panel does not see any reason why the claimant cannot return to Pakistan and live with her family without her son in the cities discussed as potential internal flight alternatives outlined above and be safe. The claimant testified that she cannot and the religious extremists and clerics and goons will locate them there. The panel asked why they could not go to the police and get help if they are harmed or threatened. The claimant testified that the police sides with them.

[48]     The panel finds on a balance of probabilities that the local religious clerics and local Sunni extremists would not pursue the claimant as they are interested in the principal claimant only and would not have an interest to seek the claimant even if she moves to any of the proposed internal flight alternatives. In addition, the panel finds that the claimant has not rebutted the presumption of state protection in this case as the family has not approached the police for protection in the various places they have lived in Lahore since the claimant has been in Canada when they allegedly encountered problems in Pakistan from the local religious clerics and local Sunni extremists.

[49]     The panel notes that the motivation to find the claimant, if any exists, would be to simply obtain information about her son’s location. The panel does not find on a balance of probabilities that the local Sunni extremists and local religious clerics would be interested to seriously harm the claimant as they have not done serious harm to the existing family that are still in Pakistan. In addition, the panel finds on a balance of probabilities that the claimant’s problems are localized to local Sunni extremists and local religious clerics in Lahore.

[50]     Therefore, the panel finds that the claimant has not established, on a balance of probabilities, that these individuals who she alleges are pursuing her would have the ability to locate her in any of the proposed IFAs which are outside the Lahore area. Moreover, the claimant has not established, on a balance of probabilities, that the assailants would have been motivated to seek her out elsewhere in Pakistan.

[51]     The panel further finds, based on the claimant’s testimony, that the claimant is a homemaker who relies on support from her husband who works from home as a tailor. The panel finds no reason why her husband could not find employment in any of the proposed IFAs. The panel noted that the claimant’s family moved to various places in Lahore only and finds that they should be able to relocate to another part of Pakistan without any difficulties.

[52]     Accordingly, the panel finds that Faisalabad, Sialkot and Multan meet the test of being viable IFAs for the claimant and her family as there would not be, on a balance of probabilities, any serious possibility of persecution or risk to life or risk of cruel and unusual treatment or punishment or danger of torture in the IFAs.

CONCLUSION

[53]     Based on the foregoing analysis, the panel concludes that the principal claimant is a Convention refugee under section 96 of the Immigration and Refugee Protection Act. The panel accepts his claim. The panel concludes that the claimant is not a Convention refugee nor a person in need of protection and rejects her claim.

(signed)           K. Genjaga

July 19, 2019

1 Immigration and Refugee Protection Act, S.C. 2001, c.27 as amended.
2 Chairperson’s Guideline 9 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Involving Sexual Orientation and Gender Identity and Expression. Effective date: May 1, 2017.
3 Exhibit 2.
4 Exhibit 10.
5 Exhibit 1.
6 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), 31 N.R. 34 (F.C.A.)
7 Exhibits 7, 8 and 9.
8 Exhibits 4 and 6.
9 Exhibit 4, item 2.1.
10 Exhibit 4, item 6.1.
11 Exhibit 4, item 6.1.
12 Exhibit 4, items 2.1, 6.1, 6.2, 6.3, 6.4, 6.5 and Exhibit 6.
13 Ibid.
14 Ibid.
15 Ibid.
16 Ibid.
17 Exhibits 4 and 6.
18 Exhibit 8.
19 Exhibits 7 and 8.