2022 RLLR 107
Citation: 2022 RLLR 107
Tribunal: Refugee Protection Division
Date of Decision: September 27, 2022
Panel: Alexandra Kotyk
Counsel for the Claimant(s): Christian Azzi
Country: Pakistan
RPD Number: TC1-11216
Associated RPD Number(s): TC1-11229, TC1-11230
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of principal claimant XXXX, associate claimant XXXX, and the minor claimant XXXX, who claim to be citizens of Pakistan and are collectively claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).[1]
[2] As this claim involves allegations of gender-based violence, the panel considered and applied the Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board.
DESIGNATED REPRESENTATIVE
[3] At the time of this hearing the claimant XXXX was a minor. The principal claimant is his mother and so served as the designated representative and confirmed her role at the start of the hearing.
ALLEGATIONS
[4] The claimants’ narrative is set out in in their Basis of Claim (BOC) forms.[2] In summary, they fear their family due to the principal claimant’s affair, secret divorce, and remarriage to her current husband. They allege that their family, who are part of the same extended family as the principal claimant was in an arranged marriage to her cousin and he is the father of the associate and minor claimants, holds significant power in Pakistan and will kill all three claimants in an attempt to regain their honour perceived to have been lost by the principal claimant’s actions.
DETERMINATION
[5] For the reasons outlined below, the panel determines that the principal, associate, and minor claimants are Convention refugees as they have established a serious possibility of persecution in Pakistan.
[6] The principal claimant fears persecution due to her membership in a particular social group as a woman who is perceived to have impacted the honour of her family and who has remarried against her family’ s wishes.
[7] The associate and minor claimants fear persecution due to their membership in a particular social group as family members of the principal claimant.
ANALYSIS
Identity
[8] The principal, associate, and minor claimant’s identities as nationals of Pakistan have been established, on a balance of probabilities, through certified true copies of their passports.[3] Their relationship to each other has been established, on a balance of probabilities, by their testimony and a copy of their Family Registration Certificate.[4]
Exclusion under 1F(b)
[9] The principal claimant testified that at the time she married her current husband he was already married to another woman. She testified that under Pakistani law men may have up to four wives. However, in Canada marriage to more than one person, or marriage to a person who is already married is a crime. When the panel became aware of the possibility of exclusion during the first sitting, July 7, 2022, the hearing was stopped and the Minister was notified. At the date of the second sitting, and September 22, 2022, the Minister had not responded. The panel has therefore made this analysis based on the information provided by the claimant and following a review of sections 290(1) and 293(1) of the Canada Criminal Code. The panel finds that the principal claimant has not participated in polygamy as second 293(1) defines this as someone who:
(a) practises or enters into or in any manner agrees or consents to practise or enter into any form of polygamy or any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage
[10] As the principal claimant testified that she divorced her first husband before marrying her second husband the panel finds on s balance of probabilities that she was only married to one person and so does not meet the definition of polygamy.
[11] The panel then assess if the claimant met the definition of bigamy, which says:
(1) Every one commits bigamy who
a) in Canada,
1. being married, goes through a form of marriage with another person,
n. knowing that another person is married, goes through a form of marriage with that person, or
[12] The panel finds that the principal claimant while she went through a form of marriage with a person she knew was married, this did not occur in Canada and so would not fall under this definition of bigamy.
[13] The panel also considered whether section 282 and 283 of Canada’s Criminal Code is applicable for parental kidnapping of the minor claimant. The minor claimant left Pakistan with his older brother, the associate claimant, after their mother and was over the age of 14. The panel therefore finds that these sections do not apply in this case.
[14] The panel finds that the principal claimant is not excluded under 1F(b).
Credibility
[15] The principal claimant testified that she and her children, the associate and minor claimants, will be killed should they return to Pakistan as she had an affair while still married, and divorced her ex-husband and remarried to her current husband without the consent of her family. She testified that her family, who is also the family of her ex-husband as he is her cousin, has a lot of power in Pakistan due to their senior government positions. The principal claimant testified how she began an affair with a co-worker and that she filed for khula, which is a divorce initiated by a woman and done through the courts.[5]
[16] When the panel asked the principal claimant how she was able to file for divorce without the knowledge of her ex-husband or family she testified she paid the lawyer extra to be confidential and used the mailing address of her current husband. She testified that she married her current husband in a religious ceremony but that the marriage was not registered with the state.
[17] The principal and associate claimants both testified to being threatened at gunpoint by unknown men on XXXX, 2020 who said that the principal claimant was bringing shame to the family and should stop. They also testified to the belief that their family could only have had a suspicion of the principal claimant’s affair at the time as if they had more proof they would not have been threatened, they would have been killed. The principal claimant testified that the fact that the claimants had not returned to Pakistan would be considered suspicious and she is certain they will now have learned of her affair and divorce but that she blocked all contact with her family members, so they have not been able to locate them in Canada.
[18] The claimants provided documents which corroborate their allegations. This includes the court documents confirming the principal claimant’s divorce and remarriage and police reports related to the threats on XXXX, 2020.[6] The claimants also provided documents in support of their family’s influence, namely a medical report identifying the principal claimant’s first husband’ s employment information.[7] The panel gives full weight to these documents as there is no reason to doubt their genuineness and they support what the claimants allege.
[19] The panel finds the claimants to be credible witnesses who testified in a spontaneous and straightforward manner and the panel did not note any relevant inconsistencies or omissions between their testimony and Basis of Claim narratives. The panel accepts the claimant’s testimony and finds on a balance of probability that the principal claimant had an affair, initiated a divorce and remarriage in secret, and the claimants have been threatened because their family believed these actions had brought dishonour.
Well-Founded Fear of Persecution
[20] The claimants’ allegations of honour crimes for having an affair, seeking a divorce, and remarrying without their consent are consistent with the documentary evidence before the panel. Violence in Pakistan continues against women and girls, including killings by relatives committed “in the name of so-called honour”.[8] Item 5.1 in the National Documentation Package establishes that women in Pakistan are considered to be the carriers of honour for the entire family. Honour killings usually take place when a man claims that a woman has brought dishonour to the family. The rationale is that the woman needs to be killed to restore the honour. Honour killings are committed primarily against women who are thought to be engaging in premarital or extramarital relationships. Perpetrators of such crimes are most often husbands, brothers, or fathers of the victims.[9]
[21] An incident in the name of “honour” was documented in which a man in Peshawar killed his two daughters because he thought they had boyfriends and felt “ashamed.”[10] Documentary evidence indicates that the family members in Pakistan carry out honour killings against relatives “perceived to have brought dishonour on the family by [… ] forming a romantic attachment not approved by the family.”[11] Due to the cultural, religious and traditional practices, including so called honour killings, Pakistan is ranked the sixth most dangerous country in the world for women.[12]
[22] The panel therefore finds that the claimants have established, on a balance of probabilities, a subjective fear of persecution in Pakistan that is objectively well founded.
State Protection
[23] The objective country evidence confirms that “the police are ranked as one of the most corrupt institutions in Pakistan.”[13] The objective country evidence confirms that the police are very unlikely to intervene in ‘family problems’ and are usually unwilling to investigate or register an FIR.[14] The police often treat honour killings as a private family matter and have been complicit with perpetrators of honour crimes to avoid filing cases or destroying evidence in the “name of the honour of the family and [the] victim.”[15]
[24] The principal and associate claimants testified credibly as to their interactions with the police after threats at gunpoint and stated that the police refused to help without a male member of their family, who are the agent of persecution, accompanying them to the station. The principal claimant also credibly testified to the authority of her family within Pakistan and that the police would put their own jobs in jeopardy if they refused to help her extended family.
[25] For these reasons, the panel concludes that the claimants have established that the Pakistani police would be unwilling or unable to provide them with adequate protection.
Internal Flight Alternative
[26] The panel finds that the claimants face a serious possibility of persecution throughout Pakistan.
[27] The panel has considered the specific circumstances of the claimants based on their credible allegations of persecution by their powerful family. In order for the agents of persecution to not learn of their whereabouts, the claimants would have to continue to cut all contact with their family. The Federal Court has found that it may be unreasonable for a claimant to cut all contact with their family and friends in order to avoid being found in an IFA and that this amounts to a claimant being forced to hide.[16]
[28] The panel finds that the principal claimant has established that the state would be influenced by her family and on a balance of probabilities would help them locate her and the other claimants should they return to Pakistan. Objective evidence confirms that the tenant registration system is strictly enforced throughout Pakistan and is accessible by police.[17] The principal claimant credibly testified that the police were aware of her family connections and would be influenced by this. Therefore, the panel concludes that the claimants have established that they face a serious possibility of persecution in the proposed IFAs.
[29] For all these reasons, the panel finds that there is no viable IFA for the claimants anywhere in Pakistan.
CONCLUSION
[30] The panel finds that the principal, associate, and minor claimants face a serious possibility of persecution in Pakistan and are Convention refugees pursuant to subsection 96 of the IRPA.
[31] Their claims are therefore accepted.
(signed) AK
September 27. 2022
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibits 2.1, 2.2, 2.3
[3] Exhibit 1
[4] Ibid
[5] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 1.6
[6] Exhibit 4
[7] Ibid
[8] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 1.6
[9] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022
[10] Ibid, item 1.6
[11] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, items 1.13 and 5.1
[12] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 5.21
[13] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 10.1
[14] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 5.5
[15] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 5.1
[16] Zamora Huerta v. Canada (Citizenship and Immigration), 2008 FC 586; I.M.P.P. v. Canada (Citizenship and Immigration), 2019 CF 259.
[17] Exhibit 3, National Documentation Package, Pakistan, 29 April 2022, item 3.18.