Docket: IMM-3263-16
Citation:
2017 FC 415
Ottawa, Ontario, April 27, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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ASMA ASIM
MAIDA MAJEED
MUHAMMAD MOHID
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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
I.
Introduction
[1]
Mrs. Asma Asim and her two children, Maida
Majeed and Muhammad Mohid [the Applicants], are citizens of Pakistan who claim
refugee status due to a fear of an unknown extremist group. The Refugee
Protection Division [RPD] denied their refugee claim on the basis that they had
an internal flight alternative [IFA] within Pakistan. This application is a
judicial review of their rejected refugee claim.
II.
Background
[2]
Prior to their arrival in Canada, the Applicants
lived in Lahore where Mrs. Asim’s eldest son attended a Madrassa on weekends.
Shortly after beginning school at the Madrassa, the parents noticed extremist
texts in their son’s belongings and discovered that extremists were preaching
to the students. The parents removed their son from the Madrassa and received
threatening phone calls as a result. On March 16, 2016, two persons attempted
to forcibly escort the son to their car and were scared off by a security
guard. The parents, fearing for their son’s safety, fled to Islamabad.
[3]
While in Islamabad, the son became ill and was
taken to a clinic by his father. While there, two men entered and the son
identified one of them as a preacher from the Madrassa. The father scuffled
with the two men until a police van happened upon the scene. The two men fled. Mrs.
Asim travelled with her two children to the United States on March 29, 2016, and
entered Canada on April 12, 2016, claiming refugee status.
[4]
On June 30, 2016, the RPD rejected the
Applicants’ refugee claim. In its reasons, it found that while the basic facts
as alleged were credible, the Applicants had an IFA within Pakistan which was,
amongst others, in Faisalabad where Mrs. Asim was born. When relocation was
suggested as an alternative to fleeing Pakistan, no significant problems were
expressed by the Applicants.
[5]
The RPD noted that Faisalabad is a large city of
3.5 million people and despite evidence of general insecurity there was nothing
to suggest that the Applicants would face any greater risk than the general
population. The RPD noted that the Applicants lived without issue in Lahore
until the events with the Madrassa despite similar concerns over general
instability in that city.
[6]
The RPD had insufficient evidence to find that
the eldest son would be so affected by his trauma in Lahore as to make
relocation to Faisalabad unreasonable. While Canada may be a preferred location
to settle, the RPD did not find this sufficient to render the IFA unreasonable.
[7]
The RPD found that there was less than a mere
possibility of persecution in Faisalabad should the Applicants move there.
Furthermore, without knowing which extremist group may be threatening the
Applicants, there was insufficient evidence to indicate that those threatening
the Applicants would or could seek them out on a national scale.
[8]
Finally, the RPD noted that the Applicants have
family remaining in Pakistan, including the principal applicant’s husband and
her brother-in-law. There was no evidence of contact by the extremist group
with the Applicants’ family that suggested that the extremist group was
attempting to find the Applicants. Further, the Applicants’ previous servant
accessed their home to obtain important documents and no evidence was found of
an attempted break in. The RPD could find no credible evidence that the group
was looking for the Applicants. Having found the Applicants did not face more
than a mere possibility of persecution and that they were unlikely to face a
risk to their life, a risk of cruel and unusual punishment or danger of
torture, their refugee claim was rejected.
III.
Issue
[9]
The only issue raised by the Applicants is
whether the RPD’s assessment of the IFA was reasonable?
IV.
Analysis
[10]
The Applicants argue that the RPD conflated the
two branches of the IFA test. It is submitted that the reasonableness of the IFA
does not depend on a lack of personalized risk to the Applicants. This
erroneously imports a section 97 form of analysis to the IFA test. The
Applicants’ position is that since the board’s decision is based solely on this
test, it must be sent back for redetermination. According to the Applicants, the
work on the Committee on the Rights of the Child, Comment Number 14 (2013), at
page 4, confirms that the RPD’s assessment of internal flight test is flawed.
[11]
The Applicants submit that the documentary
evidence contradicts the RPD’s conclusion that the children could attend school
in Faisalabad as schools in Pakistan are often seen as soft targets by
extremist groups. The Applicants say this was ignored by the RPD and though the
RPD acknowledges the physical and mental suffering experienced by the eldest
son due to the attempted kidnapping, it erroneously concluded that he would not
suffer further problems in Faisalabad. The fact that he stopped attending
school in Pakistan and resumed his studies in Canada is sufficient to find the
decision unreasonable.
[12]
The Applicants rely on Chandidas v Canada
(Minister of Citizenship and Immigration), 2013 FC 257, for the position
that the RPD failed to take the best interests of the child into consideration.
They presented that the RPD assessed the reasonableness of their return to
Pakistan through a hardship lens rather than taking the best interests of the
child into account. The Applicants argue it was an error for the RPD to omit
the child claimants’ guidelines and that there is no indication it was taken
into account.
[13]
Finally, the Applicants state that the RPD
concluded there was no evidence they would be found in Faisalabad contrary to
sworn testimony. Mrs. Asim testified that the men who entered the clinic in
Islamabad had clearly followed them. The RPD`s conclusion to the contrary is
therefore unreasonable.
[14]
The errors alleged to have been committed by the
RPD are reviewable on a standard of reasonableness (Abdalghader v Canada
(Minister of Citizenship and Immigration), 2015 FC 581 at para 21 [Abdalghader];
Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]).
[15]
I am unable to agree with the Applicants and
will dismiss the application.
[16]
The two-prong test applicable to an IFA analysis
is well established. 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; and
- the conditions
in that part of the country are such that it would not be unreasonable for
the applicant to seek refuge there (Chowdhury v Canada (Minister of
Citizenship and Immigration), 2014 FC 1210 at para 22 [Chowdhury];
Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 FC 589 (FCA) [Thirunavukkarasu]).
[17]
The RPD’s reasons demonstrate that it did not
blend the test for IFA. It conducted its analysis in reverse order (reasonable
to seek refuge followed by persecution), but that does not make the decision unreasonable.
The RPD first determined that it would be reasonable for the Applicants to
relocate to Faisalabad. It then found that the Applicants would not face more
than a mere possibility of persecution if they were to relocate there.
[18]
The Applicants bear the burden and failed to
show how they would be personally subjected, on a balance of probabilities, to
a risk to life or a risk of cruel and unusual punishment in the entire country
and specifically in Faisalabad (Abdalghader, above, at para 22; Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA)).
The threshold is high for what makes an IFA unreasonable and has not been met
in this case (Khokhar v Canada (Minister of Citizenship and Immigration),
2008 FC 449 at para 41).
[19]
The Federal Court of Appeal has said that the IFA
must be realistically accessible and that barriers to travel should be
reasonably surmountable (Thirunavukkarasu, above, at paras 14-15).
[20]
In finding Faisalabad as an IFA, the RPD
reasonably concluded that there was no serious possibility of the Applicants
being persecuted there. Under the circumstances, conditions in the country were
such that it would not be unreasonable for them to seek refuge there. The board
even divided its reasoning into two sub-headings: 1) “is
it reasonable?” and 2) “is it safe?”
which corresponds to the two parts of the IFA test.
[21]
The RPD considered all of the circumstances, and
assessed the reasonableness of the Applicants’ moving to Faisalabad as
demonstrated in the following findings:
a)
The principal applicant indicated that it would
not be unreasonable for her and her family to relocate to Faisalabad. The board
noted “when asked, the principal claimant did not express any significant
problems they may encounter if they were to relocated to this city, other than
that they would continue to fear the unknown extremist group” (at para 9) [emphasis
added];
b)
The principal applicant stated that she and her
husband could re-establish their real estate business in any city and that the
children can attend school (at para 10);
c)
The board then considered the general security
problems in Faisalabad, which are similar to that across the country. Reasons
must be considered in context and in this case, the board noted that the Applicants
lived without incident in Lahore before the Madrassa incident and this was despite
the same general security concerns, so Faisalabad is not an unreasonable city
for them to live in (at para 10);
d)
The board assessed whether the extremist group
would persecute the Applicants in Faisalabad. It did a thoughtful consideration
of whether the extremist group would or could find the Applicants in a city of
3.5 million people;
e)
The RPD noted that the principal applicant’s
husband, brother-in-law and other family members have not been contacted by the
extremist group. Nor has their home been broken into. The Applicants failed to
put forward sufficient credible evidence that they would be persecuted. Their
only evidence is a chance encounter in Islamabad;
f)
The principal applicant’s husband and father are
still in Pakistan and are safe though they do say he is in hiding they remain
in constant contact with him though they do not know what efforts he makes to
remain hidden from the group and the RPD concluded that there is a lack of
interest in them.
[22]
The RPD took the eldest son’s mental and
physical health into consideration under its reasonableness analysis. No
psychological assessment was provided to the RPD, even though it can be central
to the reasonableness of a proposed IFA (Verma v Canada (Minister of Citizenship
and Immigration), 2016 FC 404).
[23]
Contrary to the Applicants’ arguments, the RPD’s
treatment of the documentary evidence regarding the terrorists’ targeting of
schools is reasonable. The documentary evidence from online news sources, when
reviewed, relates to incidents in Islamabad, graffiti in Faisalabad, and incidents
unrelated to schools as well as some related to schools. The RPD reasonably concluded
there was no barrier to attending school as the children had already attended
public school as well as religious school.
[24]
The RPD concluded that there was insufficient
evidence to find that the son would be so affected by internal relocation as to
make Faisalabad unreasonable. The Applicants simply failed to meet the onus
which was upon them.
[25]
It was open to the RPD to weigh all the evidence
and come to a different conclusion than that suggested by the Applicants. Given
the lack of evidence, its conclusion on the effects of relocation on the eldest
son was reasonable. Paragraph 12 of the reasons seems to be a clerical error as
the sentence is incomplete, but that is not fatal to this decision.
[26]
The Applicants’ argument that the RPD imports an
s. 97 personalization analysis to country conditions is without merit. The RPD
is trying to discover if, for any reason, it would be unreasonable for the
Applicants to move to Faisalabad. It found no reason based on general country
condition or any other grounds.
[27]
The RPD concludes that on a balance of
probabilities the extremist group is not actively seeking the Applicants. It
states at paragraph 17 that “there is insufficient
evidence to establish the claimants would face more than a mere possibility of
persecution should they relocate [to Faisalabad].” Its determination
falls well within the spectrum of reasonable outcomes.
[28]
The Applicants take issue with how the RPD
approached the guidelines on child claimants and their best interests. While
the RPD must take the particular circumstances of children into consideration
at the initial refugee determination stage, it does not warrant a substantive
analysis of their best interests. The RPD considered the position of the eldest
son who was subjected to threats and attempted abduction including his
psychological state.
[29]
Further analysis on his best interests are
better left to an application for humanitarian and compassionate relief (see Kim
v Canada (Citizenship and Immigration), 2010 FC 149). In addition, the
mother was the principle applicant and the appointed representative as the
children did not give evidence at the hearing. Therefore, this argument must
also fail.
[30]
I see no reason to intervene as I find the RPD reasonably
concluded that the family would not be at risk if they lived in Faisalabad. Nor
do I find any error in the manner in which the RPD assessed the IFA.
[31]
I find that given the evidence before the board,
the RPD rendered a decision that falls “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, above, at para 47). There is no reviewable
error.
[32]
No question was presented for certification and
none arose.
[33]
The application is dismissed.
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