Docket: IMM-4929-15
Citation:
2016 FC 736
Toronto, Ontario, June 29, 2016
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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SYED WASEEM
JAFRI
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NAYYAR WASEEM
JAFRI
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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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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the Refugee
Appeal Division (RAD) of the Immigration and Refugee Board of Canada dated
October 7, 2015 wherein the Applicants’ appeal was dismissed. The decision of
the Refugee Protection Division (RPD) that the Applicants were neither
Convention refugees nor persons in need of protection as there was a viable
Internal Flight Alternative (IFA) for the Applicants in Islamabad, Pakistan,
was confirmed.
[2]
The Applicants are husband and wife, both are
citizens of Pakistan. He is in his early 70’s and in poor health; she is in her
late 60’s. They allege fear of persecution in Pakistan due to their religious
identity as Shia Muslims.
[3]
The RPD found that the male Applicant’s
behaviour was inconsistent with his alleged fear of persecution as displayed by
lengthy delay in leaving Pakistan and a long delay in claiming protection in
Canada. The RPD also found that a viable IFA exists for the Applicants in
Islamabad, Pakistan.
[4]
In the proceedings before the RAD the Applicants
made a further submission, namely that they should be considered as refugees sur place because
they has no intention of staying in Canada and decided to claim protection in
Canada only after finding out that there was a higher risk for Shia should they
return to Pakistan.
[5]
The RAD confirmed the findings of the RPD on the
basis that, on the balance of probabilities, the Applicants could live safely
and reasonably in Islamabad. While the RAD mentioned the sur place claim it did not deal with it
since it held that the IFA issue was determinative.
[6]
Counsel are agreed that, having regard to the
decision of the Federal Court of Appeal in Huruglica (Minister of
Citizenship and Immigration v Huruglica, 2016 FCA 93) the standard to be
applied on judicial review in this particular circumstance is reasonableness.
[7]
Counsel are further agreed that the test to be
applied with respect to Internal Flight Alternatives is twofold.
1.
Is there, on a balance of probabilities, no
serious possibility that the claimant will be persecuted in that part of the
country where an IFA is said to exist; and, if no such possibility exists;
2.
Is it not unreasonable in the circumstances,
including circumstances particular to the claimant, for the claimant to seek
refuge in that IFA?
[8]
I find that the decision of the RAD is not
reasonable because it draws incorrect conclusions from the evidence and fails
to give proper consideration to other evidence, including:
•
It fails to give proper consideration to the
e-mail from the Principal Applicant’s son; that e-mail clearly states that the
risk to the Principal Applicant (dad) is personal, it is irrelevant that others
as well as dad, may be at risk;
•
It fails to give full and proper consideration
to the acts of extreme violence and murder respecting Shia in Rawalpindi, a
city adjacent the IFA, Islamabad;
•
It gives improper weight to the UNHCR and
Responses to Information Requests which discuss violence directed at Shia including
in the Islamabad area;
•
Failed to appreciate that, while the Principal Applicant
was not a “high” profile Shia, he did have a sufficient profile that may
attract radicals.
•
Failed to give full consideration to the fragile
health of the Principal Applicant who can receive care from his son in Canada
but will have no one to care for him in Islamabad.
[9]
While the RAD member did mention some of these
matters it appears that he did not appreciate the full significance of them and
was too willing to find reasons not to favour the Applicants. The approach was
not well balanced hence not reasonable.
[10]
No party registered a certified question.
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