Date: 20041102
Docket: IMM-1665-04
Citation: 2004 FC 1484
BETWEEN:
MALIK Ali Zulfqar
BEGUM Najma
MALIK Wajiha
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[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 3, 2004, wherein the Board found that the applicants are not Convention refugees nor persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] This application for judicial review concerns three applicants: Mr. Ali Zulfqar Malik (the "applicant"), born in Pakistan in 1947, his wife Najma Begum, born in Pakistan in 1950, and their daughter, Wajiha Malik, born in Pakistan in 1988. All three are citizens of Pakistan and claim asylum on the basis of their religion, the Shia branch of the Muslim religion. The wife and daughter claim asylum for the same reasons as the main applicant.
[3] The Board was reasonably satisfied, on a balance of probabilities and despite a few doubts as to subjective fear, that the applicant had credibly established a well-founded fear of persecution at the hands of the Sipah-e-Sahaba (the "SSP") because of the relationship between the daughter and her Sunni boyfriend. This conclusion, stated the Board, was consistent with country documentation which supported the contention that the applicant and his family could be targeted because of the actions of the daughter. Moreover, the Board believed that the police in Lahore would be unwilling or unlikely to intervene in sectarian violence.
[4] However, the Board found that the existence of a viable Internal Flight Alternative ("IFA") was determinative to the claim, both for refugee protection or as persons in need of protection. This conclusion was based on the fact that the family had been able to function normally, albeit cautiously, by moving some seven miles from their home. The children were able to go to school, and the wife to the market. The Board did not believe the story of the attack. The applicant first stated that his wife had joined him in the United States of America on May 21st, then that the attack had occurred on May 25th. When confronted with this seeming contradiction, he corrected his statement and said that his wife had joined him on May 31st. The children were apparently safe staying with a friend near Lahore.
[5] The Board stated that it was entirely feasible for the applicant and his family to move to Karachi, approximately one thousand miles away, and to live in peace in that city, where his story would not be known and where the Shia and Sunni communities enjoy more harmonious relations. The applicant had been a chef for some forty years; he should have had no trouble finding employment in a city of some 11 million inhabitants. There was little probability that the SSP would pursue him there.
[6] The leading case on IFA is Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589, where Justice Linden, writing on behalf of the Court of Appeal, clarified the notion of IFA and defined its content at page 592:
. . . It should first be emphasized that the notion of an internal flight alternative (IFA) is not a legal defence. Neither is it a legal doctrine. It merely is a convenient, short-hand way of describing a fact situation in which a person may be in danger of persecution in one part of a country but not in another. The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee (see Mahoney J.A. in Rasaratnam, supra, at page 710); it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country. [. . .]
and at page 598:
. . . the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?
An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.
[7] Justice Linden also stated that the claimant, once duly advised by the Board that IFA was at issue, had the burden of establishing that an IFA was not available to him in his home country.
[8] The standard of review applicable to the determination by the Board that the claimant has an IFA is patent unreasonableness (see Mohammed v. Canada (M.C.I.), [2003] F.C.J. No. 1217 (T.D.) (QL) and Chorny v. Canada (M.C.I.) (2003), 238 F.T.R. 289).
[9] The Board concluded that the applicant had failed to establish that the IFA was not available, and for this reason found the applicant not to be a Convention refugee nor a person in need of protection. This decision, considering the evidence that was before the Board, is not unreasonable.
[10] The Board doubted the credibility of the attack on the house where the family was staying in Lahore, because of a contradiction in the applicant's testimony. As stated above, he first testified his wife had joined him on May 21st, then that the attack had occurred on May 25th. When confronted with this apparent contradiction, he changed the story and said his wife had joined him on May 31st. No details were given on the attack itself.
[11] The Board concluded that if moving seven miles from their original home allowed the family relative freedom and peace, it was doubtful that the SSP would pursue them one thousand miles away.
[12] In a similar case, Syed v. Canada (M.C.I.), [2000] F.C.J. No. 597 (T.D.) (QL), also involving Shias in Pakistan, my colleague Justice Blais concluded that the documentary evidence supported the contention that there were areas in Pakistan where the Shias could live in relative peace. This is not a case where the applicant has had trouble with the police or the authorities, as in the case of political activists opposed to the regime (Ahmed v. Canada (M.C.I.), [2003] F.C.J. No. 254 (T.D.) (QL)). Nor is it a case where the IFA was left vague and imprecise (Ahmed v. Canada (M.C.I.), [2001] F.C.J. No. 433 (T.D.) (QL)). On the contrary, the IFA is specified and considered for its feasibility for the applicant.
[13] The Board acknowledged the sectarian violence which continues to pervade Pakistan. However, the applicant in Karachi faces no greater danger than the rest of the Shia population, which in that city is relatively well integrated. The specific persecution against the applicant is related to his family concerns: the fact that his daughter allegedly married a Sunni man. The harassment by the SSP relating to his Imambargah activities did not amount to persecution. He had travelled in the United States in the year 2000, had not sought asylum, then had gone back to Pakistan. When pressed by the panel at the hearing, the applicant admitted that his troubles related to his daughter's marriage.
[14] There is no reason to believe that in a new environment, persecution would continue. More importantly, the applicant has failed to establish that such a threat exists. The arguments of the applicant are based on sectarian violence and the continued existence of the SSP, despite the ban. Given the limited circumstances of the persecution related to the marriage of his daughter, the absence of evidence of generalized persecution, and the fact that his family was not persecuted after moving some seven miles, I see no need for this Court to intervene in the conclusion that an IFA exists.
[15] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 2, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1665-04
STYLE OF CAUSE: ALI ZULFQAR MALIK, NAJMA BEGUM, WAJIHA MALIK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 22, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: November 2, 2004
APPEARANCES:
Ms. Styliani Markaki FOR THE APPLICANTS
Ms. Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Styliani Markaki FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec