BETWEEN:
NAVEEN KHOJA
ADNAN KHOJA
ANUM KHOJA
KIRAN KHOJA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated February 11, 2005 in which the Board decided that the Applicants are not Convention Refugees.
THE BACKGROUND
[2] The Applicants are citizens of Pakistan. Mahdi Muhammed Khoja is a fifty year old man (the Male Applicant) and his wife, Naveen Khoja is thirty-seven. They have three children: Adnan Khoja, a seventeen year old son, Kiran Khoja, a thirteen year old daughter and Anum Khoja, a twelve year old daughter (collectively the Applicants).
[3] The Applicants are members of a minority group in Pakistan known as Shia Ismaili Muslims. While in Pakistan, the Male Applicant worked as a musician and performed for a variety of minority religious communities in Pakistan, including his own community and others such as Christians and Hindus.
[4] In December 1994, Sunni extremists attacked an Ismaili function where the Male Applicant was performing. He was struck by a blunt weapon on his right knee. The Applicant filed a complaint with the police, but the harassment continued. Later in December, the police were able to prevent the disruption of a performance he was giving at a Christian event.
[5] On March 21, 1995, members of a Sunni fundamentalist group fired shots at the Applicants' residence, but no one was hurt.
[6] On May 21, 1995, the Applicants obtained visitors' visas and left Pakistan for the United States. The visitors' visas were renewed until May 1996. From then until May 2002, the Male Applicant remained in the United States on an H-1 visa (non-immigrant worker visa), and the rest of the Applicants remained in the country on H-4 visas which related to the Male Applicant's visa.
[7] However, the Male Applicant never actually worked for the company that sponsored him for the H-1 visa. He worked as a musician in the United States and, during that time, he wrote and performed a CD of songs reflecting Ismaili culture and beliefs (the CD). The Male Applicant testified that he has been informed that copies of this CD have reached Pakistan and that Sunni extremists are on the lookout for the Applicants.
[8] The Male Applicant's H-1 visa expired in May 2002. On that date, although he had applied for an Alien Employment Certificate, he had not yet received it. Nevertheless, the Applicants remained in the United States until they travelled to Canada in January 2003. They said they left at that time because the United States had instituted a program of registration for non-immigrants, and had begun to detain and deport Pakistanis.
THE DECISION
[9] The Board set out a number of reasons for its rejection of the Applicants' claims. They were:
· the Male Applicant's lack of credibility
· their lack of subjective fear of persecution
· their delay in claiming protection
· the lack of an objective basis for a fear of persecution
· the availability of an internal flight alternative in Pakistan
[10] The Board noted that the Applicants had lived illegally in the United Statesfrom May 1996 until January 2003. While they did have visas, they were based on the false premise that the Male Applicant was working for his sponsoring company. Further, the Applicants had no visas at all between May 2002 and January 2003. The Board drew a negative inference from the Applicants' failure to claim asylum on arrival in the United States.
[11] The Board concluded that the alleged persecution was not religious. It did not arise from the Male Applicant's Shia Ismaili faith. The Board stated that being a musician is not a basic human right and noted the Male Applicant had been able to practice his religion in Pakistan without interference. The Board found that the Male Applicant's difficulties stemmed from his role as a musician who performed at functions for a variety of faiths.
[12] The Board noted that the Male Applicants' performances in Canada have been confined to private functions and that he left Pakistan nine years ago. The Board found that there was less than a mere possibility that he would be recognized by the Sunni fundamentalists who opposed his music if he returned to Pakistan.
[13] The Board also found that an internal flight alternative is available in either Rawilpindi or Islamabad. These are cities with populations of 1.5 million and 0.5 million respectively. The Board held that it is unlikely that the Male Applicant would be recognized by Sunni extremists in either of these cities, which are hundreds of miles from where he originally performed. Further, the Board noted that the Male Applicant has fourteen years of education, including a Bachelor of Commerce degree, and stated that this education combined with his experience in the United States would likely create opportunities for him to work in the music industry or in related businesses in Pakistan.
[14] The Board noted that the Male Applicant had been evasive in responding to questions about his outstanding application for a United States Alien Employment Certificate. He did not directly answer questions about whether he was required to remain in the US while the application was being processed.
[15] Finally, the Board found that while there is sectarian violence against Shia Muslims in Pakistan, only a few hundred out of 28 million Shias in the country are victims of such violence each year. The Board also noted that the evidence shows that the targets of sectarian violence are high profile figures and that the Applicants do not fit this profile.
ISSUES
[16] The issues are as follows:
1. Did the Board err in law by failing to provide reasons for its credibility findings?
2. Did the Board err in law by ignoring the Applicants' reasonable explanations regarding their failure to claim refugee status in the United States?
3. Did the Board err in law in misinterpreting the definition of "Convention Refugee" in relation to its finding that playing religious music is not a basic human right?
4. Did the Board err in law in its finding about the availability of an internal flight alternative and state protection by ignoring and/or misinterpreting the profile of the Applicants?
5. Did the Board make two other factual errors?
Issue 1 - Credibility
[17] The Respondent acknowledged that the Board erred in its treatment of credibility by making bald assertions of implausibility instead of explaining its conclusions. However, because I have concluded that this error was not material on the facts of this case, I will consider the balance of the issues.
Issue 2 - Explanations
[18] The Board did not refer to the explanations the Male Applicant provided for his failure to seek refugee status during his years in the United States. However, the Board did not err in this regard because none of the explanations addressed the Board's concern which centered on the Male Applicant's failure to make a claim when he first arrived in the United States.
Issue 3 - Music and Religion
[19] The Applicants say that the Male Applicant's music is his form of religious expression. However, on the facts of this case, this submission is not borne out. In my view, the applicant was first and foremost an entertainer. He played the music that suited his audiences. This meant that at a Shia Ismailievent he would sing religious lyrics for that audience but at Christian and Hindu events he would sing their music. On the facts of this case, the evidence disclosed no link between the Male Applicant's role as an entertainer and his religious observance which he said was never impeded by threats or actions by Sunni radicals. Accordingly, I can find no error in the Board's failure to find a fear of persecution on a religious ground.
Issue 4 - Internal Flight Alternative (IFA)
[20] The Applicants say that the Board erred in its IFA assessment because it ignored the Male Applicant's alleged status as a famous musician. However, a review of the Decision reveals that this fact was not ignored.
[21] The Male Applicant also said that musicians were targeted for murder in Pakistan. However, this was not borne out by the documentary evidence. It showed that, although the local government in Peshawar province near the Afghan border was opposed to music, no musicians had been killed in that province and there was no suggestion that such killings had occurred elsewhere in Pakistan.
Issue 5 - Factual Errors
[22] I accept that the Board erred when it said that the Male Applicant lived without his music in Canada. Although playing was not his livelihood, he did entertain senior citizens. However, I have concluded that this was not a material error.
[23] The Male Applicant also said that the Board also erred when it said that there was no evidence about whether Pakistani people were being deported after they applied for labour certification in the United States. However, the Board did not err. The documentary evidence at page 196 of the Tribunal Record spoke only about deportations after Registration with the Immigration and Naturalization Service. It did not mention deportations after requests for labour certification.
CERTIFIED QUESTION
[24] The Applicants asked the Court to certify the following question:
Is playing religious music an expression of religion?
[25] The Respondent said that the answer to this question would not be determinative in this case. I agree on the basis that the evidence fails to establish a link between the Male Applicant's music and his religious observance. Accordingly, the question will not be certified for appeal.
CONCLUSION
[26] This application for judicial review will be dismissed.
Ottawa, Ontario
July 14, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2406-05
STYLE OF CAUSE: MAHDI MUHAMMED KHOJA ET AL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: March 7, 2006
REASONS FOR JUDGMENT: THE HONOURABLE MADAM JUSTICE SIMPSON
APPEARANCES:
|
Krassina Kostadinov |
|
|
Lorne McClenaghan |
SOLICITORS OF RECORD:
|
Lorne Waldman Associates, Toronto, Ontario |
|
| John H. Simms, Q.C. Deputy Attorney General of Canada
|