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.