Docket: IMM-5681-15
Citation:
2016 FC 1072
Ottawa, Ontario, September 21, 2016
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
RABIA TAQADEES
FIZA NADEEM
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The principal Applicant, Rabia Taqadees, and her
daughter, 11-year old Fiza Nadeem, are both citizens of Pakistan and Shia
Muslims. They claim persecution associated with their faith.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada determined that the Applicants are not
Convention refugees or persons in need of protection under section 96 or 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. They
appealed this determination to the Refugee Appeal Division [RAD], which
dismissed the appeal. This result was set aside on a previous judicial review
in Taqadees v Canada (Minister of Citizenship and Immigration), 2015 FC
909. The RAD subsequently re-determined, but again dismissed, the appeal. The
Applicants now seek judicial review of this redetermination.
[3]
As explained in greater detail below, this
application is dismissed, because I have not found the RAD to have erred as argued
by the Applicants.
II.
Background
[4]
Ms. Taqadees alleges that, after she and her
husband began hosting Shia religious activities in her home in early 2012, she
began receiving threatening notes and phone calls. She requested assistance
from the police but claims that they did not file a report and that the threats
then became more frequent. Ms. Taqadees alleges that she was subsequently
attacked by several masked men who demanded she cease her religious activities.
Again she reported this incident to the police, but they did not file a report.
[5]
In April 2012, the Applicants moved to the home of
a friend in a different area, but her friend began to receive threatening phone
calls. The Applicants then acquired visas to travel to Canada and left in
December 2012. They claimed refugee protection in March 2013, resulting in the
decision of the RPD which rejected their claim, the Applicants’ subsequent
appeal to the RAD, and the RAD’s redetermination that is the subject of this
judicial review. The decisions of both the RPD and the RAD turned on findings
that the Applicants had not established that the agents of persecution belonged
to an extremist group and that the Applicants have a viable Internal Flight
Alternative [IFA] in Karachi.
III.
Issues
[6]
The Applicants submit that the issues for the
Court’s consideration are:
a)
Whether the RAD applied the appropriate standard
of review to the RPD’s decision;
b)
Whether the RAD was unreasonable in confirming
the RPD’s credibility and IFA finding; and
c)
Whether the RAD erred in applying an incorrect
test for a well-founded fear of persecution.
IV.
Analysis
A.
Whether the RAD applied the appropriate standard
of review to the RPD’s decision
[7]
The Applicants have argued both: (a) that the
RAD erred by applying a reasonableness standard to its review of the RPD’s
decision; and (b) that the RAD erred by conducting an independent assessment of
the claim which it should not have done without holding a new hearing. While at
first blush these may appear to be inconsistent positions, I understand the
Applicants to be arguing that the RAD failed to apply the correctness standard
prescribed by the Federal Court of Appeal in Canada (Citizenship and
Immigration) v. Huruglica, 2016 FCA 93 [Huruglica] and that, in the
application of that standard, the RAD should have been guided by the direction
in Huruglica as to when the RAD can refer a matter back to the RPD for
redetermination.
[8]
The RAD’s decision was issued before the Federal
Court of Appeal released its decision in Huruglica. The RAD stated that
it would follow the guidance of Justice Phelan’s decision in Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799, as to the
relevant standard of review; it would come to an independent assessment of
whether the Applicants were Convention refugees or persons in need of protection,
while respecting credibility findings of the RPD or other findings where the
RPD had a particular advantage in reaching its conclusions.
[9]
In submitting that the RAD failed to apply the
correctness standard prescribed by Huruglica, I do not understand the
Applicants to be arguing that the RAD erred by applying Justice Phelan’s
articulation of the standard of review rather than that of the Federal Court of
Appeal. Nor would I consider this to be an error by the RAD (see Canada
(Minister of Citizenship and Immigration) v. Ali, 2016 FC 709, at para 34).
[10]
Rather, the Applicants argue that the RAD’s
decision demonstrates that it actually applied a reasonableness standard to its
review of the RPD’s decision. First, they point to language in the decision in
which the RAD finds that the application of a standard of review is not
necessary in this case. While this is an unusual statement by the RAD, I find
it comprehensible when placed in context. The RAD stated that it can confirm
the RPD’s determination by making its own findings on the IFA issue and that
the application of a standard of review is not necessary because it was
conducting its own assessment of the viability of an IFA based upon the record.
I interpret the RAD to be stating that it would focus not upon the RPD’s
analysis of the IFA issue but rather would assess that issue independently.
Contrary to the Applicants’ position, this does not indicate that the RAD was
applying a deferential reasonableness standard but rather expressly indicates
that it was conducting an independent assessment, as required by the
jurisprudence.
[11]
The Applicants’ second submission related to the
standard of review relies upon the manner in which the RAD addressed their
submission that the RPD disregarded the guidelines entitled Women Refugee
Claimants Fearing Gender-Related Persecution [the Gender Guidelines] issued
by the Chairperson under section 65(3) of IRPA. The Applicants argued before
the RAD that the objective evidence showed that women in Pakistan are strictly
discriminated against and would therefore be more at risk because of their
gender. The RAD noted that the Gender Guidelines make specific reference to the
consideration of an IFA, which prompts the RPD to contemplate whether a woman
can safely travel and reside in a suggested IFA and to take into account
religious, economic and cultural factors.
[12]
The RAD noted that the RPD did not make explicit
reference to the Gender Guidelines but concluded from the RPD’s reasons that it
had considered the factors set out in the Guidelines. The RAD concluded that
the RPD assessed whether the Applicants would be able to live in Karachi and
looked at their ability to practice their religion and the ability of Ms.
Taqadees to gain employment and earn an income.
[13]
The Applicants argue before the Court that the
RAD’s analysis of this issue demonstrates the application of a reasonableness
standard rather than an independent analysis engaging the Gender Guidelines. In
my view, the RAD’s decision must be considered more broadly to assess whether
it applied the correct standard of review and, following such consideration, I
cannot conclude the RAD to have erred. In addition to its express statement, as
noted above, that it would conduct its own assessment of the viability of an
IFA based on the record, its reasons demonstrate a review of the documentary
evidence which referred to violence against Shia and the availability of an IFA
in various parts of Pakistan. The RAD concluded that, considering the country
conditions, the particular IFA identified, and the profile of the Applicants,
they had not provided sufficient evidence to find that Karachi was not a
reasonable IFA. The RAD’s decision demonstrates that it not only stated it
would conduct an independent assessment of the IFA but that it did so.
[14]
With respect to the portion of the RAD’s
decision addressing the Gender Guidelines, the RAD was responding to the
Applicants’ specific argument that the RPD had disregarded those Guidelines. As
such, the RAD cannot be faulted for analysing this issue in those terms, that
is whether the RPD considered the factors set out in the Gender Guidelines. In
the larger context of the decision, I cannot conclude that this represents an
error by the RAD in its application of the standard of review.
[15]
It is still necessary to consider the
Applicants’ argument that the RAD, in its own independent assessment, committed
a reviewable error by failing to apply the Gender Guidelines. That issue is
considered below in assessing whether the RAD was unreasonable in confirming
the RPD’s IFA finding.
[16]
As noted above, the Applicants have also argued
that the RAD erred by conducting an independent assessment of the claim which
it should not have done without holding a new hearing. I find no merit to this
argument. As the Respondent correctly points out, section 110 (3) of IRPA
provides that, subject to certain circumstances resulting from the introduction
of new evidence, the RAD must proceed without a hearing on the basis of the
record before the RPD.
[17]
The Applicants rely on paragraph 103 of
Huruglica, in which the Federal Court of Appeal held that it is only when
the RAD is of the opinion that it cannot provide a final determination of the
merits of a refugee claim without hearing the oral evidence presented to the
RPD that the matter can be referred back to the RPD for redetermination. The
Applicants note that the RAD stated in its decision that it found their
evidence surrounding the affiliation of the agents of persecution with an
extremist group to be confusing. They argue that, having found the evidence
confusing, the RAD should have referred the claim back to the RPD. I do not
read this portion of the RAD’s reasons as indicating that it was of the opinion
that it cannot provide a final determination of the merits of the claim. Rather,
the RAD considered the Applicants’ evidence and found that it did not establish
that the agents of persecution belonged to an extremist group.
B.
Whether the RAD was unreasonable in confirming
the RPD’s credibility and IFA finding
[18]
The RPD found Ms. Taqadees to be a poor witness
and, in particular, found that she lacked credibility related to the identity
of the agents of persecution. While she said that she feared religious
extremists and testified that they belong to an organization called the Tehreek
e Tahafuz e Islam, the RPD found Ms. Taqadees’ testimony on this issue
confusing and concluded that she had not established that the agents of
persecution were associated with any organization at all.
[19]
The RAD considered the findings of the RPD
related to evidence of the alleged agents of persecution. It assessed the
evidence in this area and found that the RPD did not make an overall
credibility finding but dealt only with the portion of credibility that was
central to the determinative issue of the IFA. It noted that RPD had found Ms.
Taqadees lacking in credibility in her allegation that the agents of
persecution belonged to an extremist organization. The RPD considered her
evidence on this issue to be confusing, noted the omission of the names of any
extremist groups in her Basis of Claim [BOC] form, and found that her evidence
as to the name of a group appeared to materialize during her testimony. The RAD
considered the evidence and the Applicants’ arguments but did not identify an
error in the RPD’s credibility finding. The RAD found, based on the confusing
evidence and omission of from the BOC, that that it was not established that
the agents of persecution belonged to an extremist group.
[20]
The Applicants argue that the RPD’s credibility
finding was not made in clear terms and that no deference is owed to it by the
RAD. They also say that the RAD should have considered whether it could grant
an oral hearing. I have rejected this argument in my above analysis of the
Applicants’ submissions on standard of review and again find no authority for the
proposition that the Applicants were entitled to an oral hearing. With respect
to the deference owed to the RPD’s finding, it may have been available to the
RAD to show such deference, given that the finding is one of credibility.
However, the decision demonstrates that the RAD proceeded to analyse the
evidence and reach its own conclusion that the Applicants had not established
that the agents of persecution belonged to an extremist group. This finding was
based on the confusing testimony and the omission from the BOC of any
identification of an extremist group and cannot be characterized as
unreasonable.
[21]
Turning to the viability of the IFA, the RPD
first considered whether there was a serious possibility of the Applicants
being persecuted in Karachi. It concluded that they would be safe from
persecution there, as the Applicants had not established that the agents of
persecution belonged to a group that would have an agenda or organizational
capacity to seek them out in Karachi.
[22]
The RPD then turned to whether to whether it
would be unreasonable for the Applicants to seek refuge in Karachi and
considered the testimony and submissions that Karachi is generally unsafe, that
they could not openly practice their religion there, and that Ms. Taqadees
would not be able to find employment there. The RPD considered documentary
evidence and accepted that Shia Muslims were victims of sectarian violence all
over Pakistan. However, taking into account the size of the Shia population, it
did not find that such attacks were happening at a rate such that the
Applicants could not find safety in the populous city of Karachi. The RPD also
referred to Ms. Taqadees’ experience as a teacher and did not find enough
convincing evidence to conclude that she could not earn a livelihood there. It
therefore found that the Applicants had a viable IFA in Karachi.
[23]
Following a review of the RPD’s reasoning and
its own analysis, the RAD found that Karachi was a viable IFA for the
Applicants. The Applicants argue the RAD’s findings are unreasonable, as the
documentary evidence describes widespread violence against Shia Muslims, and submit
there is nothing in the RAD’s analysis suggesting that Karachi is safer for
Shia Muslims than anywhere else in Pakistan, other than that it is a large
city. They also argue that the RAD failed to consider the visible nature of Ms.
Taqadees’ practice of the Shia faith.
[24]
The applicable two-part test for the viability
of an IFA was recently expressed in Sargsyan v Canada (Minister of
Citizenship and Immigration), 2015 FC 333 [Sargsyan], at para 12, as
follows:
[12] The two-prong test applicable in
an IFA analysis is:
1. The RPD must be satisfied, on a balance of probabilities, that there is
no serious possibility of the Applicant being persecuted in the part of the
country in which it finds an IFA exist; and
2. That the
conditions in that part of the country are such that it would not be
unreasonable for the Applicant to seek refuge there …
[25]
Following its identification of the above test,
the RAD reviewed the RPD’s IFA analysis and proceeded with its own review of
the documentary evidence. It acknowledged the evidence establishing sectarian
violence against the Shia minority in Pakistan and considered the discussion as
to the possibility of an IFA contained in the UNHCR Eligibility Guidelines
for Assessing the International Protection Needs of Members of Religious
Minorities from Pakistan. The RAD found that, while this document indicates
that there may not be a viable IFA for religious minorities targeted by an
extremist group, it does not rule out the possibility of a viable IFA for
individuals such as the Applicants. The RAD noted that, regarding Shia Muslims
in particular, the UNHCR stated that an IFA will generally not be available in
certain areas of Pakistan but that whether relocation to other urban centres
such as Karachi may constitute a viable alternative should be considered on a
case-by-case basis.
[26]
The RAD then concluded that, considering the
country conditions, the particular IFA identified, and the profile of the
Applicants, it had not been provided with sufficient evidence to find that
Karachi was not a viable IFA. The RAD stated that, despite the fact that
Pakistan is far from perfect on the issue of religious intolerance, it found on
a balance of probabilities that the Applicants can live safely and reasonably
in Karachi. Reiterating that the viability of relocation to an IFA varied in
different parts of Pakistan and that the viability of relocation to an urban
center such as Karachi should be considered on a case by case basis, the RAD
found that the Applicants had not produced any evidence to show that they
belong to a high profile Shia sect such that they would be targeted.
[27]
I find no basis to conclude that the RAD’s analysis
of the IFA issue is unreasonable. It considered the documentary evidence, the
particular IFA proposed, and the Applicants’ particular circumstances, and
reached a conclusion which is supportable based on the evidence.
[28]
I have also considered the Applicants’ argument
that the RAD erred in failing to apply the Gender Guidelines in its IFA
analysis. In the RAD’s independent assessment of the viability of the IFA, it
does not expressly refer to the Guidelines, nor does it expressly refer to the
Applicants’ gender or to the circumstances of women generally in Pakistan.
[29]
While failure to engage with the Gender
Guidelines or their principles in a meaningful way may represent a reviewable
error, I do not find this to be the case in the present application. The portion
of the Guidelines that speaks to determining the reasonableness of a woman's
recourse to an IFA reads as follows:
C. Evidentiary Matters
When an assessment of a woman's claim of
gender-related fear of persecution is made, the evidence must show that what
the claimant genuinely fears is persecution for a Convention reason as distinguished
from random violence or random criminal activity perpetrated against her as an
individual. The central factor in such an assessment is, of course, the
claimant's particular circumstances in relation to both the general human
rights record of her country of origin and the experiences of other similarly
situated women. Evaluation of the weight and credibility of the claimant's
evidence ought to include evaluation of the following considerations, among
others:
….
4. In determining the
reasonableness of a woman's recourse to an internal flight alternative (IFA),
decision-makers should consider the ability of women, because of their gender,
to travel safely to the IFA and to stay there without facing undue hardship. In
determining the reasonableness of an IFA, the decision-makers should take into
account factors including religious, economic, and cultural factors, and
consider whether and how these factors affect women in the IFA.
[30]
The Respondent argues that these provisions are
inapplicable, because the Applicants’ claim is not one of gender-based
violence. I note that the above portion of the Gender Guidelines is framed as
related to an assessment of a woman’s claim of gender-related fear of
persecution. However, neither of the parties has cited authorities addressing
the extent to which the Guidelines’ requirement, to consider the effect of
gender upon the reasonableness of an IFA, applies in the context of claims of
persecution unrelated to gender. In the absence of more fulsome argument on the
point, I am not prepared to conclude that the requirement to consider the
ability of women, because of their gender, to safely travel to and stay in an
IFA applies only in the context of claims of gender-based violence. Where the
evidence raises concern about the reasonableness of an IFA because of the
claimant’s gender, I would expect this concern, including how religious,
economic and cultural factors may affect women in the IFA, to be taken into
account in the assessment of whether it would be reasonable for the claimant to
seek refuge there.
[31]
The difficulty with the Applicants’ reliance on
the Gender Guidelines in the case at hand is that they have raised no relevant
evidentiary support for their position. The Applicants argue that their
evidence showed that women in Pakistan are strictly discriminated against and
that they would be more at risk because of their gender. However, when asked at
the hearing of this application to identify the evidence on which they rely,
the Applicants referred to documentary evidence on conditions in Pakistan faced
by women who are victims of domestic violence or other forms of gender -related
violence. This evidence does not appear to have any relevance to the
Applicants’ circumstances.
[32]
I have concluded above that the RAD conducted an
independent assessment of the viability of the IFA. It also addressed the
Applicants’ submission that the RPD had disregarded the Guidelines. In the
absence of any evidence that the Applicants’ gender affects the reasonableness
of the IFA, I cannot conclude that a failure to refer to the Gender Guidelines,
or otherwise to refer to gender as a factor, in the RAD’s independent
assessment of the evidence related to the IFA represents an error that would
make the RAD’s decision unreasonable.
C.
Whether the RAD erred in applying an incorrect
test for a well-founded fear of persecution.
[33]
The Applicants note that, in reaching its
conclusions as to the viability of Karachi as an IFA, the RAD stated that it
found, on a balance of probabilities, that the Applicants can live safely and
reasonably in Karachi. The applicants argue that the reference to “balance of probabilities” indicates that the RAD
applied an elevated test, rather than requiring the Applicants only to
demonstrate that they would face a serious possibility of persecution in the
IFA.
[34]
Reading the decision as a whole, I do not find
the RAD to have erred on this issue. As noted above,
the RAD correctly cited the first prong of the test, as expressed in Sargsyan, that the RPD must be satisfied, on a balance of probabilities, that there
is no serious possibility of the Applicant being persecuted in the part of the
country in which it finds an IFA exists. In referring to the burden on a
refugee claimant, the RAD also correctly referred to the statement of the
Federal Court of Appeal in Thirunavukkarasu v Canada
(MCI) [1993], FCJ No 1172, that a claimant need
only show that there is a serious possibility of being persecuted in the new location.
I interpret the RAD’s reference to finding on a balance of probabilities that
the Applicants can live safely and reasonably in Karachi, which followed the
RAD’s review of the evidence, to be a reference to the standard of proof to be
applied to the evidence, and not an incorrect statement of the legal test to be
applied to the likelihood of persecution.
V.
Conclusion
[35]
Having found no reviewable errors by the RAD,
this application for judicial review must be dismissed. Neither of the parties
has proposed any question of general importance for certification for appeal,
and none is stated.
Email this Content