Federal Court Decisions

     IMM-2331-96

BETWEEN:

     SUHIL HASHMAT

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

INTRODUCTION:

     This is an application for judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (hereinafter the "Board"). In a decision dated June 14, 1996, the Board found that the applicant, a native of Afghanistan, was not a Convention refugee. The Board held that the applicant's fear of persecution on the basis of perceived political opinion was not well-founded because the applicant had an "Internal Flight Alternative" (hereinafter "IFA") in northern Afghanistan.

     The Board's Decision

     The Board accepted the applicant's evidence that he feared persecution from two of Afghanistan"s warring factions, namely the Mujahedeen forces of General Hekmatyar and the Taliban because he had refused to co-operate with either group (page 1, Board Decision). The Board therefore determined from the outset that the sole issue was the availability of the IFA to areas of Afghanistan not controlled by either sect (page 1, Board Decision). The applicant earned the enmity of the Hekmatyar when he did not assist them and fled their district of Kabul. Two years later, in 1995, the applicant was captured by the Taliban, a fundamentalist sect who had seized control of his neighborhood in Kabul. During three days of detention, the applicant was physically abused by his Taliban captors who berated him because he was not a "good Muslim", did not know their language, Pashtu, and served as a nurse in a hospital controlled by the former Communist regime. The Taliban agreed to momentarily release the applicant if he promised to help in the escape of two Taliban prisoners from the military hospital where he worked. Otherwise, the Taliban threatened to kill him and his family. The applicant reneged on this forced deal and fled with his wife and daughter to Pakistan. The applicant thereafter made his way to Canada, leaving his family behind in Pakistan. The applicant's claim for refugee status was heard by the Board on May 7, 1996.

     The Board concluded that the applicant would not suffer persecution in northern Afghanistan on any ground of persecution, including his ethnicity, perceived support for the former communist regime, secularism and ostensible "outsider" status in the clannish north. The Board held that northern Afghanistan, including its major city of Mazar-i-Sharif, was at relative peace under the control of a warlord named General Dostam¹. Many of General Dostam"s supporters were Tajik, the same ethnic background as the applicant. Reports also indicated that high-ranking former communists had fled to the north and were safe under the umbrella of the General, himself a former communist opposed to fundamentalist sects. Finally, the Board held that since the applicant had journeyed overland from Kabul to Pakistan with his wife and daughter, he could have made the same trip northward and sought internal refuge. The Board concluded that the applicant would not suffer undue hardship in travelling to the north. And even if undue hardship did exist in the journey from Kabul to Mazar-i-Sharif, the Board held that it was irrelevant given the fact that the applicant was now in Canada. The claimant could return to Mazar-i-Sharif from Canada by travelling overland via General Dostum"s ally state of Uzbekistan (page 6, Board Decision).

PARTIES' SUBMISSIONS:

     The applicant argues that the Board erred in applying the test for an IFA in this case. The Board misconstrued the documentary evidence when it found that the applicant could have availed himself of a safe haven in northern Afghanistan without undue hardship to himself and his family. The Board relied on outdated evidence to describe the state of affairs in northern Afghanistan because more current and accurate information existed in the record. Finally, the Board erred when it concluded that since the applicant was now in Canada, he could arrive safely in the north via Uzbekistan. As well, according to the applicant, it was unreasonable to conclude that there was no hardship in journeying with a wife and child in such a lawless climate. The Board therefore made an erroneous assumption not borne out by the evidence. In contrast, the respondent submits that the Board appropriately considered the documentary evidence concerning the situation in northern Afghanistan and did not make an unreasonable decision.

GROUND OF REVIEW:

1.      Did the Board err when it concluded that the applicant would not suffer persecution in northern Afghanistan?

     The Board invoked Thirunavukkarasu v. Canada (Minister of Employment & Immigration) (1993), 109 D.L.R. (4th) 682 (F.C.A.) (hereinafter Thirunavukkarasu), the leading case on the two-fold test for the IFA principle. Mr. Justice Linden stated at page 687 in Thirunavukkarasu:

...If there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

     The first branch of the test asks whether the applicant would suffer persecution in another region of the country. If the Board determines at the first stage that the applicant would not suffer persecution, it then goes on to consider whether it is objectively unreasonable for the applicant to journey to the safe haven. A determination that the applicant would run undue hardship in arriving at the internal destination means that it is objectively unreasonable.

     At the hearing, the applicant abandoned the issue of whether the applicant would suffer persecution in northern Afghanistan, the first branch of the IFA test.

2.      Did the Board err when it concluded that the applicant would not suffer undue hardship in journeying to northern Afghanistan?

     Undue Hardship

     In analyzing what constitutes "objectively unreasonable", the second branch of the IFA test, Mr. Justice Linden held at pages 688-689 in Thirunavukkarasu that an applicant cannot reject a particular region of a country merely because it is inconvenient, the weather is not to the claimant"s liking, or there is a scarcity of family, friends and suitable work. What is crucial is the hardship involved in reaching the safe haven. Justice Linden stated at page 688, "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 traveling there or staying there. For example, claimants should not be required to cross battle lines where fighting is going on....".

     I believe the Board erred when it failed to consider how the applicant, accompanied by his wife and daughter, would suffer undue hardship in the 200 kilometer journey from Kabul to the north. The documentary record reveals the widespread rape of women and children in Afghanistan. The Board correctly stated that the applicant is the sole claimant for refugee status and that the suffering of the applicant's family members does not directly inform his particular fear of persecution. Mr. Justice Cullen in Rafizade v. Canada (Minister of Citizenship & Immigration (1995), 92 F.T.R. 55 (F.C.T.D.) ruled against the principle of "indirect persecution" established in Bhatti v. Canada (Secretary of State) (1994), 84 F.T.R. 145 (F.C.T.D.)² The concept of indirect persecution is premised on the assumption that family members are likely to suffer great harm when their close relatives are persecuted. The theory of indirect persecution allows the granting of status to those who might otherwise be unable to individually prove a well-founded fear of persecution. In Rafizade, Mr. Justice Cullen held that analysis of the fear of persecution must center on the claimant before the Board and not distaff family members. However, by the same token, the potential suffering of the applicant's wife and daughter, the very real threat of rape, is still very relevant to the separate issue of whether the applicant would undergo undue hardship in making his way north and availing himself of an IFA. The Board failed to ask the crucial question of whether it was objectively reasonable to run the risk of the journey northward with a wife and daughter in tow.

     The Board has characterized the documentary evidence in a misleading fashion. While the Board emphasizes one portion of the evidence to argue that "many people continued to travel relatively freely..." (page 5, Board Decision), the same text reveals that the applicant would have had to cross land mines, battle fields and the separate territories of highly unpredictable, brutal and suspicious warlords who extort bribes and kill with impunity. These facts do not seem to have entered into the Board's interpretation of the anticipated hardships. It is true that the applicant did journey overland from Kabul to Pakistan, but there was a lull in the hostilities along this more heavily trafficked southerly route and the applicant could keep quiet about his political affiliations amidst the hubbub of the voyage. In the less populated and travelled north, silence on this issue would not go unnoticed by the local commanders and warlords insisting on bribes. The applicant testified to the Board, "If you keep quiet they"re going to know. They might think you have other purpose, that you might be a spy" (page 10 transcript, page 139 Board Record).

     The Board has erred because it has, in the oft-repeated phrase, compared apples and oranges to liken the shorter trip to Pakistan to the prospective journey northward to a dubious haven. More importantly, such a comparison was not warranted by the evidence. On the topic of how the applicant was to arrive in the north, the Board also made the unreasonable conclusion that the applicant could now, from his current location in Canada, make his way from Uzbekistan to northern Afghanistan and therefore by-pass the rigours of the land journey from Kabul to the north. The Board justifies this conclusion without citing any documentary evidence but by invoking the principles of pragmatism and the evidence before it. However, in this instance, the Board has committed a series of fatal assumptions and unsustainable conclusions. The Board seems to have imagined, without citing any documentary proof, that the applicant could simply traipse across the Uzbekistan border as if it were a distant version of the fabled forty-ninth parallel. Counsel for the applicant aptly argues that the Board has a misplaced faith in the porousness of the Uzbekistan border between Afghanistan and Uzbekistan. There was no evidence before the Board to justify its conclusion that the applicant could obtain permission to travel overland to the north, let alone begin his journey in Uzbekistan. The Immigration Act, R.S.C. 1985, c. I-2 would not allow the applicant to be removed to Uzbekistan as his ostensible launch point into the north because it is not his country of nationality, birth or former residence. I conclude that the Board made a perverse finding of fact not in accordance with the evidence.

CONCLUSION:

     In sum, I am satisfied that the Board acted unreasonably when it held that the applicant had an IFA in northern Afghanistan.

     The judicial review is allowed. This matter is returned for a hearing before a newly appointed Board in accordance with these reasons.

     The parties informed the Court that there is no question to be certified.

                                 "Max M. Teitelbaum"

                        

                                 J U D G E

OTTAWA

May 9, 1997

__________________

1. The warlord"s name is also spelled in some documents as "General Doestam".

² Mr. Justice Cullen cited Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1 (F.C.T.D) and Pour-Shariati v. Canada (Minister of Employment & Immigration) (1994), 89 F.T.R. 262 (F.C.T.D) to support his rejection of the principle.