Date: 20010323
Docket: IMM-4263-00
Neutral citation: 2001 FCT 237
BETWEEN:
AMNA AHMED and BUSHRA AHMED
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] The applicant Ansear Ahmed, a citizen of Pakistan, is a Shi'a Muslim and supporter of the Pakistan's People Party. Mr. Ahmed, his wife and two children seek refugee status by reason of their religion.
[2] The applicants lived in a village of 1,500 inhabitants, of whom only 20% are Shi'a Muslims. Their fellow citizens were mainly Sunni Muslims. Their village is situated in the Punjabi region of Pakistan.
[3] Mr. Ahmed's father taught Islam in the local Shi'a mosque ("Imambargah"). The family donated a substantial sum of money to enlarge the mosque.
[4] In March 1998, when the expansion renovations to the mosque began, Mr. Ahmed was twice attacked and injured by goons of the Sepah-e-Shahabah Pakistan ("SSP"), a Sunni militant group.
[5] In July 1999, other SSP partisans severely injured Mr. Ahmed's sister because she was teaching religion to young students. In August 1999, after certain PPP supporters reported these incidents to the police, Mr. Ahmed was arrested, detained for five days and tortured.
[6] After further complaints to the police, the SSP local president informed Mr. Ahmed that he and his cousin were on the SSP "hit list". Fearful of these threats, the applicant took his family to Lahore, some 100 miles from their village. While in Lahore, the local police in their village visited the family residence to look for Mr. Ahmed and his cousin.
[7] In late October 1999, the applicants sought refuge in Canada. One week after the family's arrival in Canada, Mr. Ahmed's cousin was killed in the applicants' village by SSP goons.
[8] Mr. Ahmed was closely questioned by panel members during his testimony. The credibility of some of his responses was challenged. In its decision, however, the panel remarked that "many of the explanations were given spontaneously" by both Mr. Ahmed and his spouse. They noted no inconsistencies between their testimony and their personal documentary evidence. There was no negative finding of credibility. The tribunal accepted the applicants' subjective fear of persecution in their local village.
[9] The tribunal nonetheless found that the applicants had an internal flight alternative available to them in Pakistan and determined that they were not Convention refugees.
[10] The tribunal's reasons in support of the internal flight alternative are stated as follows:
Now, while the panel agrees therefore that the village of Mangowal Sharki is not a safe place for the claimants, we come to the conclusion that Pakistan is a large country, it has a big population: close to a quarter of its population is composed of SHIAS. They live in peace with most of the Sunni population. Counsel for the claimant pointed out that SHIAS are endangered by extremists using violence in resorting not infrequently to murder. The panel must point out that retaliatory acts are known to have occurred mostly as acts of random violence. While they are most unfortunate and sad and point to a troubled country, they do not amount to persecution.
...
Moreover, the claimant testified that the police only acted against him because of pressure from the SSP who are powerful enough to dictate their desires to the police. It is not the police by themselves who are pursuing the claimant: they did not even write a First Information Report against him.
The panel finds that the claimant can live elsewhere in Pakistan, that a local SSP would not be a threat for the claimant outside of his village. The panel does not believe that the claimant acted in such a manner as to draw all branches of the SSP across the country of Pakistan, that they should all turn against him and look for him. Therefore the panel believes that the claimants have an Internal Flight Alternative available to them in Pakistan. [Emphasis added.]
[11] The applicants challenge the finding of an internal flight alternative on two principal grounds.
[12] First, the applicants argue that the tribunal did not take into account that persecution similar to that suffered in their village might reoccur elsewhere in Pakistan should they continue to exercise their right to practise their religion actively and openly. The panel acknowledged that retaliatory acts are possible. However, it characterized these acts as random violence not amounting to persecution. It is not obvious why the tribunal would conclude that the applicants' village was not a safe place for them and yet minimize similar harassments, beatings, arrests and detentions elsewhere as being random acts of violence not constituting persecution.
[13] Furthermore, the tribunal's optimism concerning the ability of the applicants to live at peace with the Sunni population does not take into account the following extract concerning religious minorities noted in the U.S. State Department 1999 country report on Pakistan (United States, 1999 Country Reports on Human Rights Practices (Bureau of Democracy, Human Rights and Labor U.S. Department of State, 2000)):
Government authorities afford religious minorities fewer protections than are afforded to Sunni Muslim citizens. Members of religious minorities are subject to violence and harassment, and police at times refuse to prevent such actions or to charge persons who commit them.
Sectarian violence between Sunnis and Shi'a continued to be a serious problem throughout the country. In Punjab in particular, a deadly pattern of Sunni-Shi'a violence in which terrorists killed persons because of their membership in rival sectarian organizations, or simply for their religious identification, continued.
[14] The applicants' second submission was that the tribunal did not identify a specific geographical location in Pakistan where the conditions are such as to make it a realistic and attainable safe haven: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), at paragraph 14; Rabbani v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141, at paragraph 16; Keerthaponrajah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 627 (QL) (T.D.); and Geelle v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 36 (F.C.T.D.).
[15] It is useful to recall the principles set out in Thirunavukkarasu when identifying where safety may be available in the home country of the refugee claimant (at paragraph 14):
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.
In my view, this statement invites the Refugee Division to identify a specific and realistic internal flight alternative.
[16] It is trite that where a tribunal makes a negative finding of credibility, it must state its reasons in clear and unmistakable terms.
[17] Where the tribunal believes the claimants' allegations that their lives are at risk in one part of their country, it seems reasonable to expect that an internal flight alternative, if one exists, should also be identified in clear and specific terms.
[18] In the particular circumstances of this case, I am satisfied that the tribunal's internal flight alternative analysis was deficient.
[19] The applicant was questioned on the possibility of his living in Lahore and it was open to the tribunal to reject that part of his responses which focussed on his perception of the need for a national identity certificate. Similarly, the tribunal could conclude that the applicants could find rental lodging from fellow Shi'a Muslims.
[20] However, the tribunal did not address Mr. Ahmad's spontaneous answer, as I read the record, that his determination in continuing to practise openly his Shi'a faith would put himself at ongoing risk. The tribunal failed to address this serious concern which appears to be supported by the documentary evidence, supra paragraph 13.
[21] The tribunal chose to believe the factual allegations in support of the applicants' claim for refugee status. The panel members accepted the applicant's testimony that he was attacked by religious opponents twice in March 1998, that his sister was seriously injured in July 1999 because of her religious teaching and that he was detained and tortured over five days in August 1999. Having accepted this testimony, the tribunal was required to explain the internal flight alternative in more than general terms. It is not sufficient, in my view, having concluded that the applicants suffered persecution in their village, to state merely that they would find a safe haven elsewhere in Pakistan because "close to a quarter of its population is composed of Shia's."
[22] The case law has consistently imposed on the Refugee Division the burden to explain its negative credibility findings in clear and unmistakable terms. The tribunal, should it choose to believe the incidents of persecution alleged by the claimants, must be equally clear in its reasons when it rejects their concerns for living in another part of their country of citizenship. The tribunal failed to do so in this case.
[23] Thirunavukkarasu, supra paragraph 14, is also instructive concerning the duty to warn the refugee claimant that the internal flight alternative issue is in play (at paragraph 10):
... there is an onus on the Minister and the Board to warn the claimant if an IFA is going to be raised. A refugee claimant enjoys the benefit of the principles of natural justice in hearings before the Refugee Division. A basic and well-established component of the right to be heard includes notice of the case to be met (see, for example, Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1114). The purpose of this notice is, in turn, to allow a person to prepare an adequate response to that case. This right to notice of the case against the claimant is acutely important where the claimant may be called upon to provide evidence to show that no valid IFA exists in response to an allegation by the Minister. Therefore, neither the Minister nor the Refugee Division may spring the allegation of an IFA upon a complainant without notice that an IFA will be in issue at the hearing. As was explained by Mr. Justice Mahoney in Rasaratnam, supra, at pages 710-711:
[A] claimant is not to be expected to raise the question of an IFA nor is an allegation that none exists simply to be inferred from the claim itself. The question must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument.
[24] The tribunal itself noted that it had failed to identify the internal flight alternative as an issue at the outset of the hearing. As the applicant chose not to rely on this issue in the proceeding before this Court, I need not deal with this matter of procedural fairness.
[25] Accordingly, this application for judicial review will be granted and the matter referred to a differently constituted panel for re-hearing and re-determination in a manner consistent with these reasons. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario