Docket: IMM-5637-10
Citation: 2011 FC 1025
Ottawa, Ontario, August 29,
2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
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ZAFAR IQBAL
WAJIA PARVEEN
USMAN ZAFAR IQBAL
FILZA IQBAL ZAFAR
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Wajia
Parveen (the main applicant), her husband, Zafar Iqbal, and their two children seek
judicial review of the decision of the Refugee Protection Division of the
Immigration and Refugee Board (RPD) rejecting their application pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA).
Background
[2]
For
reasons that will become evident later on, the Court feels that it should
review in some detail the story of the applicants.
[3]
All
four applicants are citizens of Pakistan; more particularly they
are from Azad Kashmir, a separately administered region of Pakistan. The main applicant
is her husband’s second wife. His first wife and their two daughters remain in Pakistan.
[4]
The
main applicant is a social worker.
Her social work focussed on promoting rural development and social services for
women in Azad Kashmir, more particularly in the Bagh District. She completed
her social work training in 1989 and was very active for more than 10 years
before she founded the “A.K. Women Association” in 2000 (hereinafter A.K.). Ms.
Parveen received significant recognition for her work in promoting women’s
welfare, including receiving the Presidential Award on March 23, 2000, which
she described as Azad Kashmir’s highest award (Certified Tribunal Record (CTR)
in her Personal Information Form (PIF), at p 56). It appears that during that
period and until the events described hereinafter that took place in 2008, she
was regularly harassed and humiliated because of her work but she does not
claim that this amounted to persecution until May-June 2008.
[5]
She
met her husband in 1999 and married him with the express consent of her
husband’s first wife on December 30, 2000. At the time she had made it clear
that it was one of the conditions of her marriage that she would be able to
pursue her work with the A.K.
[6]
Zafar
Iqbal is also from the Bagh District, although he left and worked outside of Pakistan for many
years before 2008, that is, since 1991, shortly after being forced into an
arranged marriage to a woman who bore him three children (one son, two
daughters) but with whom the relationship never worked. During the hearing Mr.
Iqbal explained that he did not divorce his first wife because of the serious
stigma associated with divorce in Pakistan, particularly in the
tribal system. He simply separated from her and continued to take care of her
and her children financially until he left for Canada.
[7]
It
appears that the brother of Mr. Iqbal’s first wife, Mr. Tahir Nazir, objected
to his second marriage. However, this aspect of their story was not explored
during the hearing and it is far from clear for what reason he raised such
objection (for example, was it because of the activities or the status of Ms.
Parveen?).
[8]
Be
it as it may, in May 2002 the main applicant obtained her temporary resident
visa in the United Arab Emirates (UAE) and joined her husband who was working
there, it being understood again that she would regularly go back to Kashmir to
pursue her social work.
[9]
While
the main applicant and her husband were in the UAE, they were advised by
Mr. Iqbal’s first wife that Mr. Nazir had enlisted Usman in a Madrassa.
Fearing that Usman would be brainwashed into joining the Jihad and with the
consent of his two wives, Mr. Iqbal brought his son to the UAE in September
2003. This apparently further enraged Mr. Nazir, who sent him threatening
messages promising revenge.
[10]
Apart
from these threats from Mr. Nazir, it appears that the couple had no particular
problem until 2005.
[11]
On
October 8, 2005, Azad Kashmir was devastated by a terrible earthquake. The main
applicant and her husband returned to assist with aid efforts and to be with
their families given that they had lost many members of their families in the
disaster. It is well documented that the post-earthquake work provided a means
for religious extremist organizations to garnish public support by
participating in relief and reconstruction work. According to the main applicant,
one especially active organization in her region was the Awami Action Forum
(AAF) which was led by the Mullah in charge of the mosque next to her mother’s
house in Bagh.
[12]
Apparently,
these organizations were objecting strongly to women participating in aid work
and post-earthquake reconstruction. In addition to taking work away from
unemployed men, it was viewed as “un-Islamic” for women to work next to men.
[13]
The
main applicant, presumably through the A.K., worked with the international
non-governmental organizations (NGOs) for about a month before returning to the
UAE.
[14]
It
is to be noted that the Mullah heading the AAF is reported in the newspaper clipping
filed before the RPD to have issued threats if the United Nations (UN) did not
stop hiring women to work next to men, a behaviour religious extremists found
obscene. The documentary evidence also indicates that a UN spokesperson stated that
the UN and other NGOs had temporarily ceased their activities because the
situation had become “life threatening” after a fire destroyed the house of one
of the aid workers.
[15]
It
is to be noted that the main applicant was in Bagh from January to June 2007. After
a few months in the UEA, she returned there with her daughter at the end of
October 2007. She remained in Bagh until she left for Canada in June 2008.
[16]
Sometime
in early 2007, her husband got into a dispute with his sister’s husband in
respect of their common business venture in the UAE. As it
could not be resolved, he decided to leave the partnership altogether and he looked for different work for a
couple of months after the main applicant left for Kashmir at the end
of October 2007. Having failed to find any work because
his brother-in-law was refusing to issue a document which was required by potential employers, Mr. Iqbal and his son returned to Bagh
on December 10, 2007. Shortly thereafter he opened a hardware store there.
[17]
Mr.
Iqbal testified that when he returned to Bagh, he had lost the support of his
brother-in-law (his sister’s husband) and his other cousins who sided with the
latter because of the business dispute. It appears that both the said
brother-in-law and Mr. Nazir blamed the main applicant for the bad influence
she had on her husband, particularly what Mr. Nazir perceived as anti-Islamic
views (refusing to send his son to the Madrassa) as well as the familial
strife. It also appears that in February 2008 Mr. Nazir took Usman to the Madrassa again. Mr. Iqbal
intervened and asked him to stop.
[18]
According
to the applicants, Mr. Nazir used the main applicant’s
work since her return and her husband’s refusal to
send his son to a Madrassa to convince the head of the AAF, the Mullah in the
applicants’ village, that he should intervene to stop her “un-Islamic”
activities. Both applicants also testified that Mr. Nazir was known for his
links with unidentified jihadi organizations. He apparently had the “big beard
and all”,
characteristic of these extremists.
[19]
The
main applicant noted that she was very involved in motivating local women to
defend their rights and to play a more significant role in the development of
the area devastated by the earthquake. This involved telling them that more of
the money sent for the reconstruction should be used for projects such as rebuilding
the girls’ school in their area whereas most of
these funds were used to build mosques.
[20]
It
appears that until April 26, 2008 the main applicant only suffered the same
kind of intimidation and harassment as before (see for example p 610 of the
CTR) .On April 26, 2008 Mr. Nazir, having succeeded in convincing the local
Mullah heading the AAF to act, visited the applicants’ house with the Mullah and
some of his followers in order to ask the main applicant to stop her
activities, particularly to stop saying things against the religious
organizations. When she explained that she was solely trying to bring people’s
attention to serious issues, they threatened her
and her husband of “dire consequences”.
[21]
A
month later, on May 25, 2008, Mr. Nazir and other extremists came to
Mr. Iqbal’s shop to discuss why he opposed sending his son to the Madrassa
and appears to be against Jihad. The discussion turned into violence. They
destroyed his shop. However, Mr. Iqbal was apparently able to flee to the
police station to report the attack. But, the police refused to file a
complaint and advised him that he should try to get along with these people who
are influential in the region. Mr. Iqbal, after discussing the matter with his
wife, fled with Usman to Rawalpindi where one of the main
applicant’s sisters lived. The next day, the same group came to the main
applicant’s house to enquire about her husband. They issued threats saying that
her husband would soon “meet his end”. Upon hearing of these threats Mr. Iqbal
decided to leave Pakistan with Usman on May 30, 2008. He arrived in Canada on June 5,
2008 with his son.
[22]
On
June 2, 2008, the main applicant wrote to the Deputy Commissioner of the police
for the Bagh District and personally went to see him to deliver her letter. In
the said letter, she summarizes the difficulties encountered because of Mr.
Nazir’s personal enmity with her husband and how he incited the head of the AAF
and spiritual leader of the Bagh mosque against her, saying that she was westernizing
and misguiding the women of the area. She reports the events of April and May
2008 and seeks some protection from the police
against these religious extremists. She apparently was
only able to see the said gentleman for fifteen minutes and he told her to give
her letter to his private secretary after having
advised her that she should calm herself and not
get involved with these people, “because they have been patronized by the
Government and patronized by the army and the ISI” (CTR, p 621).
[23]
The
main applicant explained that in May 2008 she decided to stay in Bagh because
she felt that the recent threat had only been against her husband and, although
she was afraid, she had to face those difficulties, for that was exactly what she
was asking the women in her area to do. She strongly felt
it was her duty to remain there. This is why she sought
protection from the Deputy Commissioner instead. When this help failed to
materialize, she organized a meeting of her Association at a hotel in Bagh on
June 14, 2008. One of the issues to be discussed was her own situation and what
should be done about it. Allegedly, the Mullah heard about the meeting and a
protest was organized outside the hotel; the participants shouted that she was
trying to westernize the women in the area. She was counselled to leave the
meeting through the back door and she did. Later that night, a group which
included Mr. Nazir and the head of the AAF attacked her house, throwing
stones and breaking windows while shouting death threats. Although they did not
actually enter her house, she believes that if she had gone out as they were
asking her to do, they would have killed her. She indicated that at that moment
she realized that the situation had escalated and reached a point where she was
viewed as a threat to the AAF. Fortunately, the group dispersed, threatening
that sooner or later the family would meet its end (Applicant’s PIF, CTR p 59).
The next morning she left with her young daughter for Rawalpindi.
[24]
A
few days later, she learned from her sister living in Bagh that on June 19 the Mullah
had organized a protest against the A.K., focussing on her westernized ways and
activities and seeking a ban of the organization. This protest was later
reported in a newspaper which also mentioned her name (CTR, p 400).
[25]
The
main applicant then left for Canada with her daughter to join her husband. All
the applicants claimed refugee status the next day, on June 23, 2008.
[26]
The
hearing before the RPD took place in two sessions; the first being devoted
almost exclusively to the questioning of the main applicant by the Tribunal
officer and the RPD.
[27]
With
respect to the current situation of her association in Kashmir, the main
applicant referred to a letter from her sister sent on September 4, 2008 which
described how it was then not only difficult but almost impossible to continue
with the activities of the A.K. She went on to explain the more current
situation given that she has kept in close contact with those currently heading
the A.K. (her sister and two women she had trained) by telephone. It
appears that since the date this letter was sent, the A.K. has been able to
survive by no longer promoting the type of ideas she was fighting for when she
was there in 2008 (especially with respect to the involvement of women in the
reconstruction work). It now limits itself to operating a health dispensary or
clinic in Thob, and a few centres where they teach new
skills to women in the area. Allegedly, after her departure and the protest
against the A.K., some of these centres were closed because families prevented
the women from going there and the volunteers were asked to leave the space that had been loaned to the association.
[28]
Although
her sister still receives threats, she has not been physically harmed. That
said, the main applicant still feels that she is on the AAF’s hit list because
she was repeatedly used by the AAF as an example of western conspiracy. After
her departure, they described her as an agent of the West who now lives in
luxury in Canada. If she were
to return, she might be viewed as a threat to the AAF’s authority and power and
she would be eliminated wherever she went in Pakistan because of
the close links between the AAF and other jihadi organizations and the support
given to them by the Pakistan Army and Inter-Services Intelligence (ISI). It is
worth mentioning that the main applicant does not know if a fatwa was actually
issued against her. She confirmed that there is no evidence that a First
Information Report (FIR) or warrant has been issued against her.
[29]
Finally,
although Mr. Iqbal also testified at the second hearing, his testimony added
little to that of the main applicant except that he mentioned that the AAF
included as its members other extremist groups. Also, when asked, assuming that
the agents of persecution did not exist, what else would prevent them from
living in one of Pakistan’s large cities other than Azad Kashmir, he
mentioned that the society had now become even more conservative and that his
wife would not be able to continue her social work. It is also clear that he
had little direct knowledge about the detailed activities of the AAF. For
example, when asked whether the AAF trained for suicide missions, he speculated
and readily admitted that his affirmative answer was entirely based on what he
had heard from other people.
[30]
Usman,
who was then 18 years old, did not testify at either hearing. In that respect,
it is worth noting that the RPD repeatedly said to the applicants’ counsel that
his presence and that of his sister were not necessary at the hearings.
[31]
In
its decision, the RPD rejected the claim on two bases. First, it noted that because
of the contradictions, vagueness and fundamental implausibilities outlined in
the decision, it did not believe the claimants’ story and therefore did not
find them credible. It expressly noted that this finding is fatal to their
claim for protection.
[32]
Secondly,
the RPD dealt with the existence of a viable internal flight alternative (IFA) and
concluded that there is no serious possibility for the claimant being
persecuted or at risk of being harmed or subjected to cruel or unusual
punishment or torture mainly because the AAF and Mr. Nazir have no means or
even intent to find them in large cities such as Karachi unless the applicants tell
them where they are.
Issues
[33]
The
applicants argue that the RPD’s findings in respect of both credibility and the
IFA are flawed and unreasonable. These questions of fact and mixed facts and
law respectively are reviewable on the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, 51, [2008] 1 S.C.R. 190; Ambat v Canada (MCI), 2011 FC 292
at para 15, [2011] FCJ no 377 (QL)).
[34]
Although
the applicants also raised a constitutional argument based on sections 7 and 12
of the Canadian Charter of Rights and Freedoms and argue that it should
be considered at this stage, they gave me no valid reasons why I should not, on
the basis of judicial comity, follow the reasoning and conclusion of Justice
Pierre Blais in Kikina Biachi v Canada (Minister of Citizenship and
Immigration) 2006 FC 589, at para 21-24, 152 ACWS (3d) 498. I thus find
that it would be premature to deal with these issues at this stage where the
RPD only look at the validity of the applicants’ claim under sections 96 and 97
of IRPA.
[35]
Normally,
when the Court is satisfied that there is no reviewable error with respect to
the RPD’s conclusion that there is a viable IFA it does not review the other
findings. However, here the sweeping statement made with respect to the
applicants’ story appears to have an impact on the RPD’s analysis with respect
to the IFA for, as mentioned, it specifically states that it is fatal to their
claim. Moreover, it will also certainly have a negative impact on all the other
processes open to these applicants under IRPA. The Court will thus review both questions.
i)
Credibility of the applicants and their story
[36]
The
principles applicable to the assessment of credibility by the RPD are well
summarized by my colleague Justice Luc Martineau in Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116, at para 7-14, [2003] FCJ
no162 (QL) [Lubana].
[37]
Given
that the determination of a claimant’s credibility is the heartland of the
RPD’s jurisdiction, the Court must be particularly careful in its application
of the standard of review. In this case, the Court has read and re-read the
decision in light of the evidentiary record several times to ensure that it was
not simply substituting its own views of the evidence to that of the RPD and
that the findings discussed were indeed not part of the acceptable outcomes
justifiable on the facts and the law.
[38]
As
mentioned in Lubana, it is certainly easier for the Court to judge the
reasonability of findings based on implausibility, especially when they are relying
on common sense and rationality.
[39]
It
is also worth repeating again, as Justice Muldoon wrote in Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776, at para 7, [2001] FCJ no 1131
(QL), that
:
[7] A tribunal may make adverse findings of
credibility based on the implausibility of an applicant's story provided the
inferences drawn can be reasonably said to exist. However, plausibility
findings should be made only in the clearest of cases, i.e., if the facts as
presented are outside the realm of what could reasonably be expected, or where
the documentary evidence demonstrates that the events could not have happened
in the manner asserted by the claimant. A tribunal must be careful when
rendering a decision based on a lack of plausibility because refugee claimants
come from diverse cultures, and actions which appear implausible when judged
from Canadian standards might be plausible when considered from within the
claimant's milieu. [see L. Waldman, Immigration Law and Practice
(Markham, ON: Butterworths, 1992) at 8.22]
[40]
It
is also an important principle that when the RPD wishes to rely on its
specialized knowledge, it must advise the claimant of how its knowledge on a
particular point may be contrary to the evidence of the claimant and give him
or her a chance to comment (Rule
18 of the Refugee Protection Division Rules, SOR/2002-228 [RPD Rules]). In this
particular case, it appears, from a reading of the transcript, that the RPD did
indeed, at least on one occasion, raise a point on which the applicants had
testified and which appeared to be contrary to its specialized knowledge. Indeed,
Mr. Iqbal was able to explain how the RPD’s belief was not accurate (see CTR, p
677).
[41]
That
said, and to start with, the RPD does not specify whether it found that the
whole story is not credible or only certain portions of it. This makes it
particularly difficult for the Court, especially considering some specific documentary
evidence that is not discussed at all in the decision.
[42]
The
RPD starts its analysis with what appears to be the main implausibilities affecting
the applicants’ story.
[43]
First,
it notes that it is not plausible that “the two senior claimants could have
aroused so much hostility given their very intermittent and sporadic presence
in Pakistan”. Before
reaching that conclusion the RPD simply reviews, based on the list of
residences attached to each claimant’s PIF, how long each one had been in Azad
Kashmir. With respect to the main applicant, it concludes that between 2002 and
her departure for Canada in 2008, she spent less than two years in Pakistan. Thus, she
was not running the A.K. two-thirds of the time. As for her husband, he lived primarily outside of Pakistan from 1995
until his departure for Canada in 2008.
[44]
This
finding is presumably based on common sense. However, with all due respect, it
makes little sense to look at time spent in Pakistan without
considering the specific context, especially considering that the situation in
Bagh was far from ordinary after the earthquake. The issue of women’s rights,
including their right to get involved in the reconstruction work, was a
particularly volatile issue in 2007, as evidenced by the fact that the UN and
other international NGOs themselves felt that it had become life threatening.
[45]
As
indicated in her list of residences accepted and used by the RPD, Ms. Parveen
was in Bagh for most of the year 2007. She was a well-known local, a leader, to
use the wording chosen by the RPD during the hearing, who was advocating the
same principles put forth by the international NGOs. In that specific context,
the finding referred to above is simply not reasonable.
[46]
Even
with respect to Mr. Iqbal, time alone cannot rationally be a basis to consider
his story implausible considering that the Madrassa issue had been festering
since 2002, whether or not he was physically in Pakistan. It had to
be considered through the lens of a religious extremist as it is uncontested
and accepted that, whether or not the Mullah and the AAF were violent, they
were clearly extremely religiously conservative, as was Mr. Nazir. This is not
disputed by the RPD; in fact, it is used as the basis for the other implausibility
findings made with respect to Mr. Iqbal which will now be discussed.
[47]
In
effect, as further support to reject Mr. Iqbal’s story and no doubt given the
weakness of its first finding, the RPD states that, in a traditional
patriarchal society, it is not plausible that a Muslim extremist like Mr. Nazir
would attempt to usurp the role of Mr. Iqbal vis-à-vis his only son. It also
found it to be implausible that a Muslim extremist would object to Mr. Iqbal
taking a second wife considering the Koran and the Sharia law allow him to do
so.
[48]
Here,
the RPD is relying either on general common knowledge – facts that it can take
judicial notice of, or specialized knowledge, albeit pretty general concepts
that are not contested per se by the applicants. However one
characterises the information used to justify the RPD’s findings, the Court is
convinced that they are flawed.
[49]
In
effect, if one characterises these general concepts as specialized knowledge as
mentioned, Rule 18 of the RPD Rules would apply.
[50]
The
RPD never mentioned these concepts and certainly did not give Mr. Iqbal an
opportunity to comment or to better explain both situations. In fact, Mr. Iqbal
was never asked any question whatsoever in respect of Mr. Nazir’s objection to
his second marriage, including why his brother-in-law objected to it. Were
family politics involved? Was he objecting to the character of the second wife
as opposed to the principle of taking a second wife?
[51]
If
it is simply general knowledge (certainly these concepts are well-known to the
Court), they are insufficient to justify the inference drawn from them, for
they are taken totally out of context and without regard to the particular
situations of the applicants that can explain the differences between these
applicants’ situation and the generalized norm (see for example Sadeghi-Pari
v Canada (Minister of Citizenship and Immigration), 2004 FC 282, [2004] FCJ
no 316 (QL) where, in a similar context, Justice Richard Mosley found that,
without such analysis, the findings of implausibility were capricious and
should be set aside).
[52]
To
better illustrate the Court’s thinking, one could ask the following question; are
the stories of Romeo and Juliet or West Side Story implausible because in both
instances the families objected to the marriage of the main characters who were
good Christians and the Bible gives them a sacred right to get married?
Obviously not, because we all understand that, in both stories, the problems
were family politics and the background of the main characters.
[53]
Be
it as it may, it is certainly not the type of clear case that can justify
putting aside the claimants’ stories without further examining their
personalized situation.
[54]
With
respect to the situation involving Usman, the Court notes that in the story put
forth, Mr. Iqbal was clearly the one having the final say with respect to his
son. Is it not because of this that Mr. Nazir kept harassing him? Also, in 2002
when the issue first arose, Mr. Iqbal had been living outside of the country
for several years. Is it not also general knowledge that close male relatives may
have authority in the absence of the father?
[55]
Certainly,
the testimony of Usman would have been particularly helpful with respect to Mr.
Nazir’s attempts to enrol him in the Madrassa. He could also have confirmed or
clarified some issues for the RPD with respect to visits made to his house. In
the particular circumstances, it is really quite unfortunate and difficult to
understand that the RPD so clearly indicated that his presence was not
necessary and that it never put Mr. Nazir’s authority over his nephew into
question.
[56]
Turning
now to paragraphs 24, 26, 28 ,29 and 34; the RPD makes various comments
relating to the power or nature of the AAF as compared with other well known
groups of religious extremists and in light of their behaviour since the
applicants’ departure, how the pictures of the protest against the A.K. appear
to show a quiet gathering with a speaker addressing an attentive small crowd, how
it is described as a local organization in the newspaper article and how it was
described initially by Mr. Iqbal in his testimony. From these comments, one
understands that the RPD is not convinced that the AAF is a violent
organization capable of murder as feared by the applicants.
[57]
The
RPD is certainly entitled to reach this conclusion. The fact that one’s
subjective fear is not objectively established is sufficient to dismiss a claim
under section 96 of IRPA. However, these two concepts are distinct and must
be dealt with as such. One cannot automatically conclude that a claimant’s
testimony is not credible as a whole simply because his or her genuine subjective
fear is not well-founded objectively. For example, the fact that the main
applicant believes that she could have been killed on June 14, 2008 does not
necessarily mean that the AAF would actually have done so. It is for the RPD to
assess this. However, by the same token, simply because the RPD was not
satisfied, after weighing all the evidence, that the AAF is a violent extremist
organization capable of murder, it does not mean that the applicant’s story as
a whole is not credible, especially if the AAF was able to make her believe,
subjectively, that her life is really in danger.
[58]
Although
there may well be cases where a specific testimony in respect of one’s
subjective fear could justify a more general finding of non-credibility,
adequate justification must be given in the decision which must be transparent
to be reasonable. Here the RPD does not appear to distinguish those concepts.
[59]
With
respect to problems with the main applicant’s testimony, the RPD deals at
length (paras 31, 32, 33) with what it apparently considers to be a major
contradiction. In effect, the RPD says, with respect to the event of the night
of June 14, 2008, “if her assailants intended to kill her as she said why did
they not?”. It notes that when asked about this, Ms. Parveen offered two explanations:
first, maybe because they heard her daughter crying, or later, after taking
more time to think about it, because they had to go to the mosque to pray. Both
were clearly pure speculation about what this group may have been thinking. The
RPD indicates that neither explanation is satisfactory because “if ruthless Islamic
fundamentalists had intended to kill the principal claimant as she alleges
neither crying nor a call to prayers would have stopped all of them.” On that
basis, the RPD concludes that “her description of the events of 14 June to be
contradictory and her credibility is eroded.”
[60]
Again,
as mentioned, although there may be other explanations, the RPD
could have found that the behaviour of the group as described by the main applicant
indicates that in fact it may not have intended to kill her. This would only be
contrary to the applicant’s testimony that she believed that if she had
gone out as they asked her to do, they would have killed her. But there
is no explanation as to how it makes her factual story not credible. Does one
need to be killed or severely injured to establish as a fact that a group of
individuals did throw stones at one’s house and make death threats? When one is
asked to speculate about what somebody else had in mind, one should not be
blamed for offering an unsatisfactory theory. It is certainly difficult to
imagine that it could be a reasonable basis for dismissing the whole factual
basis of one’s claim as non credible.
[61]
Finally,
although the RPD refers to vagueness in its conclusion at paragraph 35, the
parties could only identify one such issue in the decision. At paragraph 27, the
RPD notes that the principal applicant was asked several times to name other
extremist groups in addition to the AAF who pose a threat to her and her
husband. She said that one was the Mohammedian Group, a small local
organization, and she was unable to recall the name of the other group.
[62]
In
fact, the said applicant testified that she would get back to it as soon as she
could remember the name which was escaping her at the time the question was
asked. She then identified the Jaish-E-Mohammad (CTR p 623). The RPD appears to
have ignored that evidence, certainly in paragraph 29 where it refers to a list
that includes this organization, noting the absence of the AAF. There is no
indication that the RPD considered the objective evidence to support the
allegation that at least that organization is a violent extremist organization.
[63]
It
is not necessary to comment further on the other points raised in the decision
because, in light of the importance of the errors described above, the Court is
not satisfied that the RPD would or could have concluded as it did simply on
the basis of these other points. The decision does not refer to any other
contradiction between what was said at the two hearings and what was said or
written by the applicants at any time before the said hearings. Its conclusion
that the applicants are not credible and that this finding is fatal to their
claims cannot stand up to a probing examination. It is unreasonable.
ii) Internal
Flight Alternative
[64]
I
have not been persuaded by the applicants that there was, in the record before
the RPD, any particular piece of documentary evidence that was ignored by the decision
maker when it stated that a) there was no evidence to establish that the
principal claimant could not engage in social work in a proposed IFA (large
cities outside Azad Kashmir) and b) there was no evidence that the ISI or the
Pakistan Army would collaborate with jihadi groups in Azad Kashmir over issues
such as the present one.
[65]
Although
it is not a basis on which I rely to set aside the decision under review, I
must mention that I am somewhat puzzled by the fact that the RPD, without any
discussion of P-37, went as far as concluding that the AAF was, as a matter of
fact, a “small local conservative religious association led by a local prayer
leader” (see para 29). This is quite different than concluding that the
claimant has not, upon weighing all of the evidence, established that the AAF
has influence outside of Bagh, or even Azad Kashmir.
[66]
That
said, it is clear that the RPD’s conclusion that an IFA was available to the
claimants was deeply coloured by its flawed conclusion with respect to
credibility. Thus, I am not satisfied that, in the particular circumstances of
this case, this ground stands as a sufficiently independent ground for
upholding the decision (see Gobalasingam v Canada (Minister of
Citizenship and Immigration), 2005 FC 696, at
para 12-13, [2005]
FCJ no 880 (QL)).
[67]
This
is especially so considering that the RPD does not discuss state protection at
all and it appears from comments made by the decision-maker during the hearing that
he would not deal with the availability of state protection (see CTR, pp
663-664) and need not hear evidence in that respect from the main applicant.
Was this an acknowledgement that its availability anywhere in Pakistan was doubtful
with respect to women such as the main applicant?
[68]
In
the circumstances, the Court has concluded that this matter should be reconsidered
by a different panel.
[69]
The
parties have agreed that this matter does not raise any question that would
warrant certification. It turns on its own facts.
ORDER
THIS COURT
ORDERS that the application is granted. These claims for protection shall
be reconsidered by a differently constituted panel.
“Johanne
Gauthier”
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