Tag: PSG: SOGIE

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

REASONS FOR DECISION

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

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

ALLEGATIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

DETERMINATION

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

ANALYSIS

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

Identity

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

Credibility

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

The principal claimant’s claim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The claimant’s claim

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Internal Flight Alternative (IFA)

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

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

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

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

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

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

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

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

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

CONCLUSION

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

(signed)           K. Genjaga

July 19, 2019

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