Categories
All Countries Pakistan

2021 RLLR 12

Citation: 2021 RLLR 12
Tribunal: Refugee Protection Division
Date of Decision: November 16, 2021
Panel: J. Schmalzbauer
Counsel for the Claimant(s): Aiden Connor Campbell
Country: Pakistan
RPD Number: VC1-03717
Associated RPD Number(s):
ATIP Number: A-2022-00665
ATIP Pages: 000038-000043

REASONS FOR DECISION

INTRODUCTION

[1]     This is the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX XXXXA.K.A XXXX XXXX (the “claimant”) as a citizen of Pakistan who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“).1

[2]     The panel, has taken into consideration and applied the Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, to address the issues that are critical to women refugee claimants, including the recognition of women being a particular social group.2

[3]     The panel has applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE) as this case involves sexual orientation, gender identity and expression, and the harm individuals may face due to their non­ conformity with socially accepted gender norms.3

DETERMINATION

[4]     The panel finds that the claimant is a Convention refugee, as she does have a well-founded fear of persecution due to her membership in a particular social group.

ALLEGATIONS

[5]     The following is a brief synopsis of the allegations that the claimant put forth in the Basis of Claim (BOC) form and narrative.4 The claimant is a twenty-six-year-old citizen of Pakistan who is claiming refugee due to her risk of persecution in Pakistan due to their gender identity. The claimant also fears persecution due to her agnosticism.

[6]     The claimant submits in her allegations of her conflict of wanting live as a woman but being unable to do so in Pakistan. She also submits her lack of adherence and belief in Islam was known by her family but unacknowledged and unspoken about.

[7]     The claimant left Pakistan in XXXX 2016 to study in Canada. During her time in school in Vancouver the claimant became more open bout her gender and started coming out to friends an living as XXXX XXXX. In 2019 the claimant told her parents, but they were not supportive and reuse to accept her gender identity and has not had further communication with her father since.

[8]     The claimant now lives opening on social media but is a self-described introvert that infrequently socializes and has few friends in Vancouver. The claimant filed for protection and filed and signed her BOC September 2020.

ANALYSIS

Identity/Country of Reference Pakistan

[9]     The panel is satisfied on a balance of probabilities, in the claimant’s identity and citizenship, considering the certified copy of the current Pakistan passport.5

Well-Founded Fear of Persecution

[10]   The claimant fears persecution due to her membership in a particular social group, as a person with non-conforming gender identity. The duty of this panel is to find if there is sufficient credible or trustworthy evidence to determine that there is more than a mere possibility that this claimant would be persecuted.

[11]   LGBTIQ+ is an umbrella term for the community of lesbian, homosexual, bisexual, non­ heterosexual, transgender, non-binary, intersex, and queer people. The rights of LGBTIQ+ people are the same as human rights. There is not a single right that is inherent to transgender persons the issue lies in the ability to enjoy those rights freely and fully. The inequality of opportunities and access can manifest themselves at different levels, i.e., legal restrictions and social practices.

[12]   The country condition evidence before this panel, report that transgender woman, face discrimination in housing, education, medical care. Transgender people face harassment, mistreatment, and exclusion from society. Numerous incidents of violence, honour crimes and sexual violence is experienced by transgender people in Pakistan. Although authorities recognize transgender people including documenting individuals as a third gender as requested, there is little to no evidence that this recognition has diminished discrimination in society for this minority group.6

[13]   The panel finds, the country condition evidence clearly establishes that in Pakistan the basic human rights of persons of diverse gender identities are disregarded at all levels of society. The targeting of individuals even believed to be gay is an accepted practice by society and the state, given the increasing levels of violence and the impunity given to the perpetrators by the state. The panel further find that LBGTIQ+ persons, because of the current situation in Pakistan, are unable to live openly without fear of reprisals from the general public or the state. Persons of diverse gender identities have substantive violations against their right to life (Article 6), their right to prohibition of torture and cruelty, and inhuman or degrading treatment or punishment (Article 7), their right to liberty and security of the person (Article 9), their right to freedom from discrimination (Articles 2 and 26) and their right to freedom of assembly and association (Articles 21 and 22).7 Given the significant infringements upon the basic human rights of these individuals, the panel finds this systemic and pervasive treatment of sexual minorities in Pakistan does amount to persecution.

[14]   The panel accepts the claimant’s personal identity as a transgender woman, who lives openly here in Canada and has been open with her friends and family. The panel further notes, the claimant is outspoken with her anti-religious and gender opinions. Given the claimant’s credibility as to her identity, and the unequivocal country condition evidence of the treatment of individuals similar to the claimant, the panel finds the claimant would face more than a serious possibility of persecution.

State Protection

[15]   The panel must determine whether the claimant has access to state protection. The objective evidence before the panel is the Pakistan authorities routinely – intimidate, harass, and mock transgender complainants. There are reports of persons being illegally arrested by the police using provisions of the law that criminalize same sex relationships and they have been charged with cases related to defying the order of nature (unnatural offence against the order of nature), public nascence [sic], unnatural offences and indecent assault.8It is reported in the evidence that sexual minorities are discriminated and victimized by police.9 On the whole, the panel finds that in the case of the claimant it would be objectively unreasonable for her to approach authorities for her protection and therefore state protection is sufficiently rebutted in this case.

Internal Flight Alternative

[16]   The evidence before this panel is that discrimination and persecution of transgender persons is pervasive throughout Pakistan. Although pocket communities exist in large centres10, the panel finds these are nothing more than ghettoization of this vulnerable minority community. Considering the country condition evidence there is nowhere in Pakistan where the claimant could relocate and not continue to face more than a mere possibility of persecution for her identity, therefore the panel finds that there is no viable internal flight alternative for the claimant.

CONCLUSION

[17]   For the foregoing reasons, the panel concludes that the claimant is a Convention refugee and therefore accepts her claim. As the claim is accepted pursuant to Section 96 of the Act, there is no need to assess the claim made under Section 97(1)(b).

(signed) J. Schmalzbauer

November 16, 2021

Immigration and Refugee Protection Act. S.C. 2001, c. 27.

2 IRB Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

Ottawa, Canada, March 1993, updated November 1996.

2 Exhibit 2.

3 IRB Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression (SOGIE), Ottawa, Canada, May 1, 2017.

4 Exhibit 2.

5 Exhibit 1.

6 National Documentation Package, Pakistan, 16 April 2021, tab 6.1: Treatment of sexual and gender minorities by society and authorities; state protection and support services available (2017-January 2019). Immigration and Refugee Board of Canada. 17 January 2019. PAK 106219.E.

7 United Nations (UN) General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

8 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.

9 National Documentation Package, Pakistan, 16 April 2021, tab 2.1: Pakistan. Country Reports on Human Rights Practices for 2020. United States. Department of State. 30 March 2021.

10 National Documentation Package, Pakistan, 16 April 2021, tab 6.1.

Categories
All Countries Pakistan

2021 RLLR 1

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

REASONS FOR DECISION

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

Identity

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

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

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

Credibility

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

Well-founded fear of Persecution

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

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

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

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

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

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

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

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

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

Exclusion – Article 1E

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

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

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

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

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

Article 1E reads:

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

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

Current Status of the Claimants in Italy

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

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

Current Status of the Principal Claimant in Italy

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

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

Status of the Female Claimant

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

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

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

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

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

Previous Status in Italy/EU – Principal Claimant

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

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

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

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

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

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

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

CONCLUSION

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

(signed) Roderick Flynn        

June 15, 2021 

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

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

Narrative”)

3  Exhibit 2.1 and Exhibit 2.2.

4 Narrative, para. 1.

5  Ibid., para. 48.

6 Ibid., para. 14.

7 Ibid, para. 46.

8 Ibid, para. 16.

9 Ibid, para. 46.

10 Ibid., para. 35, para. 43-46.

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

12 Exhibit 1.

13 Exhibit 4, p.1.-2.

14 Ibid, p.3.

15 Ibid., p.5-6.

16 Ibid., p.16.

17 Ibid, p.20-31.

18 Ibid, p.37-60.

19 Exhibit 3.1, NDP for Pakistan.

20 Ibid.

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

22 Ibid, para. 3.1.6.

23 Ibid, para. 5.1.1.

24 Ibid, para. 2.5.4.

25 Ibid, para. 8.4.11.

26 Ibid.

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

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

29 Minister’s Brief, para. 17.

30 Ibid, para. 20 and 26.

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

32 IRPA, s.98.

33 Ibid.

34 2010 FCA 118 (“Zeng”).

35 Exhibit 3.2, National Documentation Package for Italy

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

37 Ibid, p.4.

38 Ibid.

39 Ibid., p.2.

40 Minister’s Brief, para. 26.

41 Narrative, para. 35.

42 Ibid, para. 37.

43 Supra, note 35.

44 Ibid., p.5.

45 Ibid., Item 3.7, p.4

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

47 Supra, Note 44.

48 Ibid, p.5, bull et 3.

49 Ibid, p.2, para. 3.

50 Supra, note 46.

Categories
All Countries Pakistan

2020 RLLR 136

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

DECISION

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

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

DETERMINATION:

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

ALLEGATIONS:

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

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

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

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

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

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

ANALYSIS:

PERSONAL IDENTITY:

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

CREDIBILITY:

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

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

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

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

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

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

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

REAVAILMENT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

VIOLENCE:

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

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

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

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

STATE PROTECTION:

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

INTERNAL FLIGHT ALTERNATIVE:

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

CONCLUSION:

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

[38]     This will conclude the hearing for today.

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

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

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

[42]     CLAIMANT: Okay.

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

[44]     CLAIMANT: Yes, it is correct.

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

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

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

[48]     INTERPRETER:      Thank you very much everyone.

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

———- REASONS CONCLUDED ———-

Categories
All Countries Pakistan

2020 RLLR 117

Citation: 2020 RLLR 117
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2020
Panel: Megan Kammerer
Counsel for the Claimant(s): N/A
Country: Pakistan
RPD Number: VB9-05568
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000213-000227

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) in the claim of [XXX] as a citizen of Pakistan who is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

[2]       In hearing and assessing this claim, I have considered and applied the Chairperson’s Guideline on Women Refugee Claimants Fearing Gender-Related Persecution[2], which offers guidance in recognizing women as members of a particular social group and also with respect to other gender specific issues present in this claim.

ALLEGATIONS

[3]       The claimant is a former permanent resident of Canada who alleges that she has been emotionally and physically abused by her ex-husband in Pakistan. She states that this abuse began in 2014, was related to the claimant’s failure to sponsor her ex-husband to come to Canada, and continued until the claimant left Pakistan in 2016.

DETERMINATION

[4]       I find that the principal claimant has a well-founded fear of persecution on the basis of her gender and is therefore a Convention refugee under section 96 of the Act.

ANALYSIS

Identity

[5]       I find that the claimant’s identity as a national of Pakistan has been established through her testimony and the supporting documentation filed, including her passport.[3]

Credibility

[6]       When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true, unless there is a reason to doubt their truthfulness. In this case, there were some significant concerns with credibility. During testimony, the claimant made some inconsistent statements with respect to the abuse that occurred in Pakistan and was unable to adequately explain her delay in submitting her refugee claim. However, I do not find that these problems are significant enough to overcome the presumption of truthfulness.

Statements regarding the abuse

[7]       The claimant testified that she decided to leave her abusive ex-husband in 2016 and fled from Pakistan to Sri Lanka so that she could obtain travel documents from the Canadian High Commission for herself and her children. During an interview at the High Commission in Sri Lanka on [XXX] 2016, the claimant was asked about whether her ex-husband had hurt her “in any way” and whether he had abused her physically or verbally. The claimant replied that her ex-husband had hurt her verbally but not physically. When asked whether she was still in a relationship with him, the claimant replied that her ex-husband “is just not listening to me right now that we would be better off in Canada. His family does not like the way we got married. It is a love marriage.” When asked whether the claimant would continue to attempt to sponsor her husband, the claimant replied “Yes, he says he does not want to go now but he will agree with me and I will sponsor him.”[4]

[8]       During her hearing before me, the claimant testified that her ex-husband had abused her physically on many occasions between [XXX] 2014 and [XXX] 2015 as well as between [XXX] 2015 and [XXX] 2016. She testified that when she left Pakistan in [XXX] 2016 her intention was to leave and divorce her husband.

[9]       When asked about the discrepancy between her testimony and the statements she made to representatives at the Canadian High Commission in Sri Lanka, the claimant explained that she did not understand the question and so that is why she said that her husband only abused her verbally. She explained that when she was at the High Commission she was so upset that she had “no thoughts of my own” and “no idea what I am doing” and had misspoke. She also indicated at that point that she still hoped her ex-husband might change and they might reconcile.

[10]     I accept the claimant’ s explanation with respect to these inconsistencies. I note that trauma can have an impact on memory and understand that a victim fleeing abuse might not have yet full reconciled or decided whether or how to end her relationship. I also note that these statements were made at a time when the claimant was in turmoil, shortly after fleeing from Pakistan and learning that her permanent residency status in Canada might no longer be valid.

[11]     I also note that there are numerous statements in the GCMS notes disclosed by the Minister which are consistent with the claimant’s version of events recounted during testimony and that these statements pre-date her refugee claim, thus strengthening her credibility. For example, during that same interview which took place at the High Commission on [XXX] 2016, the claimant told officials that her husband and his family forced her to stay in Pakistan and that she had to leave the country without them knowing, that her husband first tried to prohibit her from leaving Pakistan in 2014, and that she was only able to obtain his permission to leave Pakistan to travel to Canada for one month in 2015 to go work on his permanent residency application. The official conducting the interview and drafting the note characterized this as “forcible confinement.”[5]

[12]     Likewise, in an interview conducted on [XXX] 2016, the claimant again told officials that “her husband and his family forced her to stay in Pakistan” which caused her to lose her PR status.[6] Similarly, on [XXX] 2016 the GCMS notes read: “Wife seeking to return to Canada in order to divorce and gain full custody of the children. Subject also the intention of pulling her sponsorship. Wife states that she fears the subject as he may try to get to Canada to kidnap the children.”[7]

[13]     These statements are consistent with the allegations of abuse that the claimant has made against her ex-husband and his family, which includes the allegation that her ex-husband and his family would not let her leave the family home.

[14]     Given the claimant’s explanation, as well as the additional statements about the abuse in the GCMS notes that pre-date the claimant’s refugee claim, I do not find that the inconsistent statements made about the nature of the abuse are sufficient to undermine the presumption of truthfulness.

Delay in submitting a refugee claim

[15]     The claimant arrived in Canada on [XXX] 2016 and was provided with a hearing date to appeal the decision that she had not met the residency requirements necessary to retain her permanent residency status. Her hearing before the Immigration Appeal Division took place on November 23, 2017, the claimant did not appear, and her appeal was thus held to be abandoned by way of decision dated December 11, 2017.[8] Despite this, the claimant did not submit a refugee application until [XXX] 2019.

[16]     The claimant testified that she was confused about the time of the hearing before the Immigration Appeal Division, as she had recently moved from Toronto to Calgary, and did not realize the hearing had been set for Eastern Standard Time rather than Mountain Standard Time. She explained that she missed the hearing and that when she received the decision notifying her that the appeal had been abandoned she retained counsel to help her explain why she had missed the hearing and appeal the abandonment decision. She further explained that she last spoke with her lawyer approximately one week ago and that he continues to be in contact with the Immigration and Refugee Board and that he has not yet received a response regarding her missed hearing. She states that she did not submit a refugee claim earlier because she was waiting to receive a response about the missed hearing from the IAD.

[17]     I asked the claimant if she had any corroborating documents from her lawyer regarding the appeal he is allegedly conducting on her behalf. She explained that she had asked her lawyer for a written statement but that he did not provide one. When asked why the claimant did proceed to file the refugee claim given that her lawyer continued to make inquiries with respect to her claim before the IAD, she explained that she needed legal status in order to remain in Canada and to obtain employment.

[18]     I do not accept the claimant’s explanation regarding her delay in submitting a claim for refugee status. I do not find it believable that her lawyer continues to make inquiries with respect to her abandoned IAD claim nearly three years after that claim was held to be abandoned and that she does not possess any documentation which corroborates this.

[19]     The claimant has not provided a reasonable explanation for why she did not submit a refugee claim until [XXX] 2019. However, I am not prepared to find that this delay undermines her credibility with respect to risk and subjective fear to such an extent that her claim must fail. There could be many reasons why a woman in the claimant’s position would not submit a refugee claim promptly.

Conclusion on Credibility

[20]     The claimant was not a compelling witness. She had to be prompted on several occasions to provide detail and at times she was notable to provide a reliable and cohesive account of her actions. Moreover, there were some inconsistencies between the way in which she described the abuse to different officials. However, as is set out in more detail below, her narrative about the abuse that she endured at the hands of her ex-husband and his family is believable and is supported in many different ways by the objective country evidence about Pakistan. Accordingly, I find that the claimant is a credible witness with respect to the allegations of abuse and her assessment of the risks that she would face if she were to return to Pakistan.

Nexus

[21]     The claimant alleges that she has been abused by her spouse. I find that the persecution the claimant fears has a nexus to the Convention ground of particular social group, namely female victims of domestic violence.

Potential Exclusion

[22]     The claimant gave birth to her daughter in Canada, but did not have her ex-husband’s permission to travel to Canada with their two sons, who are Canadian citizens. However, as is explained in the reasons that follow, the claimant has a defence pursuant to s. 285 of the Criminal Code[9], given that she has traveled to Canada to protect herself and her children from danger of imminent harm.

[23]     I also note that the claimant obtained a court order from a Canadian court on [XXX] 2018 providing her with sole custody of her three children. The claimant’s ex-husband was served and there is no indication that he responded. The claimant has provided a copy of this court order to me.[10]

[24]     I thus do not find that the claimant could be excluded under Article 1(F)(b) of the Act.

Well-Founded Fear of Persecution and Risk of Harm

[25]     The claimant is a former permanent resident of Canada who alleges that she fears her ex- husband will kill her if she returns to Pakistan.

[26]     The claimant received permanent residency status in Canada in [XXX] 2007, having been sponsored by her brother who lives in Canada. Between 2007 and 2016, she spent time living in both Canada and Pakistan.

[27]     The claimant testified that she met her ex-husband in 2007 in Pakistan and that they got married in Pakistan on [XXX] 2010. The claimant submitted an application to sponsor her ex-husband to become a permanent resident of Canada in [XXX] 2011. The sponsorship application was denied and the claimant initiated an appeal.

[28]     The claimant lived in Canada for various periods of time between her wedding and [XXX] 2014. She testified that when she returned to Pakistan on [XXX] 2014 her ex-husband had changed and he had suddenly become violent. She attributes this change to the fact that she had been unsuccessful at sponsoring him and that the application and subsequent appeal were taking a long time to process.

[29]     The claimant testified that she stayed in Pakistan with her ex-husband between [XXX] 2014 and [XXX] 2015. During this time, she lived with her ex-husband and his family. She testified that during this time he was emotionally and physically violent towards her on many occasions.

[30]     The claimant explained that she lived with her ex-husband and his parents. The claimant testified that his parents did not intervene to assist her. In fact, she says they were also frequently abusive. As explained in more detail below, this allegation is consistent with the objective evidence about domestic violence in Pakistan.

[31]     The claimant testified that during this period her husband refused to allow her to leave the family home. She testified that she attempted to contact the Canadian consulate in Islamabad and they told her they could not intervene because it was a family matter. In order to try to get help, she contacted a friend who called the police. The police visited the family home in approximately [XXX] 2014. When they arrived, the claimant’s ex-husband did not give the claimant permission to speak with them. He told the police that they had had a small misunderstanding at home and there was no need for their assistance. The claimant testified that the police did not try further to assist her and that after they left her ex-husband abused her physically. She says that after this incident she felt more scared to call the police. Again, the claimant’s description of this incident is consistent with the objective evidence on state protection in Pakistan, described more fully below.

[32]     The claimant testified that her ex-husband also abused their children.

[33]     The claimant returned to Canada in [XXX] 2015. She explained that she was able to negotiate with her ex-husband to allow her to leave the country because she told him she needed to make inquiries about the appeal of his permanent residence application. The claimant’s ex­ husband allowed her to travel to Canada for one month but told her she would not be allowed to bring their children with her to Canada.

[34]     The claimant stayed in Canada between [XXX] 2015 and [XXX] 2015. The claimant explained that she did not consider staying in Canada and leaving her husband during this period because her children were still in Pakistan.

[35]     The claimant testified that when she returned to Pakistan in [XXX] 2015 things were fine for about two days. After that, the physical and verbal abuse started again. The claimant estimates that the abuse occurred every other day. The claimant says that she contacted the Canadian consulate and once again they told her to contact the police and the courts in Pakistan to help her resolve this issue.

[36]     At one point the claimant left her husband to go stay with one of her friends. The claimant’s friend came and picked her up when her husband was out and the claimant was home alone. The claimant stayed with her friend for approximately 15-20 days, but says that ultimately her husband found her. She believes that he was able to trace her location using her cell phone because he has a friend who works for a mobile company.

[37]     The claimant returned home with her ex-husband and she testified that for a month or two the relationship was fine but then ultimately the abuse escalated once again. This is consistent with the dynamics of abuse.

[38]     Rather than ask the claimant to specifically describe the abuse that she endured at the hands of her ex-husband and his family, as such questions can often be retraumatizing and are unnecessary, I asked her to describe the impact that the abuse had on her. She explained that it caused her to feel stressed out, was mentally exhausting, and that all that she could think about was how she could escape the situation.

[39]     The claimant learnt she was pregnant again in 2016 and that the baby was a girl. She says that her ex-husband and his family began pressuring her to have an abortion because they wanted another boy. She says that she decided at that point she needed to leave her ex-husband.

[40]     The claimant left Pakistan with her children on [XXX] 2016. She traveled to Sri Lanka so that she could apply for Canadian passports for her children, who had been born in Canada, as well as obtain a valid permanent residency card as hers had expired in [XXX] 2016. She arrived in Canada on [XXX] 2016 and submitted a refugee claim on [XXX] 2019.

[41]     The claimant testified that she is worried that her ex-husband will kill her if she returns to Pakistan. She explained that in her culture “men do not leave things like this” because it “relates to honour.”

[42]     The claimant’s allegations are supported by the objective evidence. In Pakistan, women face direct, cultural, and structural violence through a deeply entrenched system of patriarchy in all aspects of public and private life.[11] The Women, Peace and Security Index 2019/20 places Pakistan at 164 out of 167 countries regarding women’s peace and security in the world. Other sources similarly indicate that Pakistan has been ranked the sixth most dangerous country in the world for women and that rates of violence against women, including domestic violence, are increasing in the country.[12]

[43]     The U.S. Department of State Report addresses domestic violence as one of the significant human rights issues in Pakistan. The report says that no specific law prohibits domestic violence and that domestic violence is widespread. Forms of physical violence including beating, physical disfigurement, shaving of women’s eyebrows and hair, and homicide. Family related disputes can result in death or disfigurement by burning or acid. Women who try to report abuse face serious challenges. Police and judges are sometimes reluctant to take action in domestic violence cases, viewing them as family problems. Authorities routinely return abused women to their abusive family members.[13]

[44]     Studies of domestic violence in Pakistan attribute it to deep-rooted patriarchal norms around femininity and masculinity. Such studies have found that if a wife makes a mistake, disobeys her husband, or is wrong, then the husband is viewed as having the justification to beat her.[14] The evidence also overwhelmingly indicates that in Pakistan women’s freedom of movement is restricted. In most households, women are expected to stay at home when they reach puberty and not allowed to have a job, go outside, or meet anyone. This is exacerbated in situations of domestic violence.[15]

[45]     Studies have found that while physical violence is often the most visible form of violence, subtle forms of psychological violence are probably more common. These include verbally abusive language, criticism, and threats, including threatening to “burn them” or “throw acid” on them.[16] In a study conducted in 2008, researchers found that 100% of women had reported having experienced psychological violence.[17]

[46]     The objective evidence indicates that women often not only face violence from their male partners, but also from their in-laws at home, given the tradition of extended families living together in Pakistan. Domestic violence in Pakistan encompasses broader family violence and includes violence perpetrated by members of the marital family, which has been shown to be extremely common. In fact, co-residence with in-laws has been found to be a driving factor for violence.[18]

[47]     Although the claimant has been living in Canada since 2016, and has not been in contact with her ex-husband during that time, she testified that she is still at risk and that he will punish her because she decided to leave him. She explained that this relates to honour and would be treated as a serious breach. I accept that the claimant’s ex-husband and his family adhere to deeply patriarchal values about the role of women and will punish women who defy this norm. In leaving her husband and taking their children to Canada, the claimant has defied her ex-husband’s assumed authority.

[48]     I find that the claimant faces a significant forward-looking risk of serious harm from her ex-husband should she return to Pakistan. I make this finding based on all the evidence before me, including the claimant’s credible testimony about the ways in which her ex-husband physically and psychologically abused her, as well as objective evidence which indicates that domestic violence is tied to deeply rooted patriarchal norms and that women who are perceived to transgress or challenge those norms are particularly at risk.

State Protection

[49]     In all refugee claims, the state is presumed to be capable of protecting their citizens unless there is clear and convincing evidence to the contrary. In this case, the claimant testified that she asked a friend to call the police on her behalf, and that while the police visited her home she did not receive any meaningful assistance. Her ex-husband refused to allow her to speak to the police and told them that they had had a minor family related dispute. The police did not pursue the matter further.

[50]     The claimant’s experiences with state authorities in seeking protection from domestic violence are supported by the objective documentary evidence in the National Documentation Package. The country condition documents indicate that domestic violence crimes are mostly unreported in Pakistan as it is still seen as a private matter and a matter of shame or dishonour. Pakistan has no comprehensive federal law to tackle violence against women. Although some states have passed legislation on domestic violence, these laws are not operationally effective protection mechanisms for victims.

[51]     Sources indicate that the challenges around implementing legislation on domestic violence in Pakistan are “enormous” and that police and judges are reluctant to take action in domestic violence cases as they view these as “family problems.” Sources also indicate that members of the police service are often verbally abusive when reports of domestic violence are made, and that the police are more likely to question the character of the woman than to help her. Rather than taking action to eradicate violence against women, police appear to enforce social norms to ensure that women do not oppose patriarchal rules. Women similarly have problems accessing the judicial system to obtain protection.[19]

[52]     In view of this evidence, I find that state protection for female victims of domestic violence in Pakistan is inadequate. While the authorities have made efforts to address domestic violence through legislation, these efforts have not been effective on the operational level. In this case, the claimant did make an attempt to obtain protection from the police, who did not even take the step of speaking directly with the claimant. The objective country information evidence demonstrates, however, that state protection is rarely available from authorities in Pakistan. I therefore find that the presumption of state protection has been rebutted in the case of the claimant.

Internal Flight Alternative

[53]     The final issue is whether the claimant has a viable internal flight alternative (IFA) in Pakistan. In order to determine whether an IFA exists, I must assess whether there is any location in Pakistan in which the claimant would not face a serious possibility of persecution and whether it would be reasonable to expect her to move there.[20]

[54]     At the outset of the hearing, I proposed Karachi and Islamabad as potential IFA locations for the claimant. The claimant testified that most of her family lives in Canada rather than Pakistan, and that she has no family at all living in Karachi or Islamabad. The claimant has remarried but her current husband lives in Canada and there is no indication that he would return to Pakistan with her. The claimant explained that it would not be easy as a single woman to live alone in one of those cities and that due to lack of support she would not be able to survive.

[55]     I accept the claimant’s testimony on this point and find that it would be objectively unreasonable, in the context of Pakistan, to require the claimant to relocate and live independently as a single woman. The OECD Report on Social Institutions and Gender Index describes how difficult it is for a woman to live alone in Pakistan. Both laws and customs limit the extent to which women can access property and financial resources. Women are discouraged from working outside the home and are often unable to access formal bank accounts because doing so requires two male guarantors. Only 36% of women own phones, compared with 80% of Pakistani men, and there are reports that women have been killed simply for owning phones, due to the social stigma around interaction with unrelated males.[21]

[56]     The claimant would be separated, single, and without family support in an IFA location. Given the objective evidence, the claimant would be at risk and would struggle to be able to support herself and open a bank account. In such circumstances, I do not find that relocation to an IFA location is a reasonable option.

CONCLUSION

[57]     For these reasons, I find that the claimant is a Convention refugee and I accept her claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996

[3] Exhibit 1.

[4] Exhibit 5, p. 10.

[5] Exhibit 5, p. 10.

[6] Exhibit 5, p. 8.

[7] Exhibit 5, p. 5.

[8] Exhibit 5, pp. 19-21.

[9] R.S.C., 1985, c. C-46.

[10] Exhibit 4.

[11] Exhibit 3, National Documentation Package (NDP), Pakistan, March 31, 2020, Item 5.21.

[12] Exhibit 3, NDP, Item 5.5 Response to Information Request (RIR) PAK106392.E.

[13] Exhibit 3, NDP, Item 2.1.

[14] Exhibit 3, NDP, Item 5.19.

[15] Exhibit 3, NDP, Item 5.19.

[16] Exhibit 3, NDP, Item 5.19.

[17] Exhibit 3, NDP, Item 5.19.

[18] Exhibit 3, NDP, Item 5.19.

[19] Exhibit 3, NDP, Item 5.5 RIR PAK106392.E.

[20] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

[21] Exhibit 3, NDP, Item 5.9.

Categories
All Countries Pakistan

2020 RLLR 84

Citation: 2020 RLLR 84
Tribunal: Refugee Protection Division
Date of Decision: February 17, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Birjinder P S Mangat
Country: Pakistan
RPD Number: VB9-03745
Associated RPD Number(s):
ATIP Number: A-2021-00800
ATIP Pages: 000157-000163

REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision of the claim of [XXX], who claims to be a citizen of Pakistan, and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).[1]

DETERMINATION

[2]       The panel finds that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his political opinion for the following reasons.

ALLEGATIONS

[3]       The claimant fears the authorities in Pakistan as well as non-state pro-Pakistan groups due to his involvement in the United Kashmir People’s National Party (UKPNP).

ANALYSIS

Identity

[4]       The panel finds that the claimant’s identity as a national of Pakistan is established by his testimony and the documentary evidence filed including his Pakistani passport.

Nexus

[5]       The panel finds there is a nexus between the claimant’s allegations and one of the five Refugee Convention grounds, namely political opinion, and has therefore assessed his claim under both s. 96 & 97(1) of the Immigration and Refugee Protection Act.

Well-founded fear of persecution

[6]       In order to be considered a Convention Refugee the claimant must demonstrate that the claimant has a well-founded fear of persecution which includes both a subjective fear and an objective basis for that fear. Based on the claimant’s testimony, supporting documents and the country condition documents the panel finds that he has a well-founded fear of persecution for the following reasons.

[7]       The panel finds the claimant to be a credible witness therefore believes what he has alleged. The claimant testified in straightforward and forthcoming manner and there were no relevant inconsistencies in his testimony or contradictions between his testimony and the other evidence before the panel. The claimant was able to spontaneously provided a detailed history of his involvement in the UKPMP both in his country and since coming to Canada. He was also able to provide detailed reasons as to why his involvement in this party is important to him and his values.

[8]       The panel finds that the claimant has established the following on a balance of probabilities:

  •      The claimant became involved in, PKNSF a student group that promoted Kashmiri independence in college and he received threats and beatings from pro-Pakistan groups because of this involvement;
  •      The claimant became an active member in the UKPNP in 2009 and he spoke to audiences and led protests in support of Kashmiri independence in Pakistan;
  •      During protests in 2009, 2013 and 2014 the claimant and others in his group were attacked with iron rods, sticks and stones by the police and workers of pro-Pakistan groups. The claimant was beaten on a number of occasions and on one occasion, the claimant was arrested and was held in solitary confinement, tortured, and threatened with death if he did not stop his political activities against Pakistan;
  •      The claimant reported the attacks on him to the security forces in Pakistan but was told that they would not help him;
  •      The claimant left Pakistan on [XXX] 2014 and spent a year working in Brazil. After being unable to extend his work visa in Brazil the claimant went to the US where he was detained and requested refugee protection with a hearing date set in [XXX] of 2021;
  •      On [XXX] 2019 the claimant came to Canada and made a claim for refugee protection;
  •      The claimant has remained an active member of the UKPNP since coming to Canada;
  •      If the claimant were to return to his country he would continue with his active involvement in political activities for the UKPNP party promoting Kashmiri independence in Pakistan;
  •      Individuals who promote Kashmiri independence in Pakistan are subject to illegal detention and punishment for their political opinion.

[9]       The claimant provided documentary evidence such as letters of support from members of the UKPNP, documentation confirming his membership in the UKPNP, and photos of him in attendance at various conferences, meetings and other events for the UKPNP both in Pakistan and in Canada. The claimant also provided various country condition evidence pertaining to the treatment of individuals who are similarly situated to the claimant to support his allegations. The panel finds that these documents are relevant and serve to corroborate his allegations and therefore places significant weight on them.

[10]     The panel finds that the claimant has established that he has a subjective fear of persecution by Pakistani authorities and other pro-Pakistan groups.

[11]     The country condition evidence, as outlined in the National Documentation Package at item 4.8[2] supports the claimant’s allegations as follows:

  • In Jammu and Kashmir, Pakistan has been engaged in ongoing conflict with India and separatist insurgency groups since partition in 1947.
  • Pakistan generally forbids individuals or political parties from taking part in activities that are prejudicial to the government of Pakistan and this is particularly the case in Kashmir.
  • Anti-government demonstrations are routinely oppressed, often violently and Pakistani security forces generally view pro-independence groups with suspicion. The Pakistan Intelligence Agency engages in extensive surveillance of pro-independence groups and those who do not support the Pakistani government. These people are subject to surveillance, harassment, imprisonment and torture by security forces.
  • Pro-independence activists, including members of the UKPNP are often detained without being given a reason for their arrest. They are punished, interrogated and frequently tortured in detention.

[12]     Therefore, based on the totality of evidence the panel finds that the claimant has established that he would face a serious possibility of persecution in Pakistan because of his membership in the UKPNP and his political activism which he continues today.

State protection and Internal Flight Alternative (IFA)

[13]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting its citizens. However, since the agent of persecution in this case is the state, the panel finds that state protection would not be reasonably forthcoming and that the claimant has rebutted the presumption of state protection.

[14]     In this case, given that the state is the agent of harm, is in control of all of its territories and has demonstrated the capacity and motivation to harm the claimant in the past, the panel finds that the claimant would face a serious possibility of persecution throughout Pakistan. The panel therefore finds that there is no internal flight alternative available to the claimant.

CONCLUSION

[15]     The panel finds that the claimant is a Convention refugee as he has established a serious possibility of persecution on account of his political opinion. The panel therefore accepts his claim.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Exhibit 3, National Documentation Package, Pakistan, 29 March 2019, tab 4.8: Treatment by state and non-state agents of individuals and political factions that support or advocate for Kashmiri independence. Immigration and Refugee Board of Canada. 30 November 2012. PAK103863.E.

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.