Docket: IMM-9571-21
Citation: 2022 FC 1777
Ottawa, Ontario, December 20, 2022
PRESENT: The Honourable Madam Justice Strickland
| BETWEEN:
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| NAJEEB ULLAH
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| ASMA NAJEEB
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| MINAL NAJEEB
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| NAHEED KAUSAR
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| ABDULLAH NAJEEB
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| MUHAMMAD HUZAIFA
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| Applicant
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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 the application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada confirming a decision by the Refugee Protection Division [RPD] that the Applicants are neither Convention refugees nor persons in need of protection. Both the RAD and the RPD dismissed the Applicants’ refugee protection claims due to the availability of an internal flight alternative [IFA].
Background
[2] The Applicants are citizens of Pakistan, members of the Shia Muslim faith and a family of six comprised of Mr. Najeeb Ullah [Principal Applicant], his spouse Ms. Naheed Kausar, and their four children.
[3] The Principal Applicant moved to Saudi Arabia for work in 2003. His family joined him in 2014. In January 2019, the Applicants relocated back to Pakistan where the Principal Applicant opened a marriage hall business in Kamali, Toba Tek Singh, and claims that he became active in the Shia community. On February 14, 2019, the Principal Applicant held a majlis, a Shia religious gathering, at the marriage hall.
[4] On February 18, 2019, the Principal Applicant received a call from a man claiming to be from Lashkar-e-Jhangvi [LeJ], an extremist Sunni militant group. The caller allegedly accused the Principal Applicant of spreading his Kafir (infidel) Shia faith through his ill-gotten money and demanded a payment of Rs 2,500,000 if the Principal Applicant wanted to live and run his business safely in Pakistan. The Principal Applicant filed a police report that day describing the call. Two days later, on February 20, 2019, an unknown assailant with a motorcycle allegedly fired three shots at the Principal Applicant in front of the marriage hall. The Principal Applicant claims that he called the police who attended and agreed to register a first information report [FIR] and to investigate the matter. On the same day, the Principal Applicant received another call from an unknown number advising him to treat the shooting incident as a warning to fulfill LeJ’s demand. The Principal Applicant informed the police of this call, the police said that they would add it to the FIR.
[5] On March 5, 2019, the Applicants relocated to Lahore. They claim that the following morning, six armed individuals broke into the marriage hall office, assaulted the manager and the security guard, stole money, cellphones and a licensed rifle, and sought to obtain information about the Principal Applicant’s whereabouts. Based on a description of the individuals, the Applicants assumed that they were members of LeJ. The incident was reported to the police but no arrests were made.
[6] The Applicants had, on November 28, 2018, applied for Canadian visitor visas for the period December 30, 2018 - January 10, 2019, which the Principal Applicant claims were intended to permit the family to take a to a holiday to see Niagara Falls. The visas were issued on December 24, 2018. The Applicants flew to Canada on March 17, 2019 utilizing their visitor visas and sought refugee protection. The Applicants claim that they fled Pakistan due to fear of persecution on religious grounds from the LeJ.
[7] By decision dated July 12, 2021, the RPD denied the Applicants’ claim. The determinative issue was the availability of a viable IFA in Hyderabad. The Applicants appealed to the RAD. By decision dated November 26, 2021, the RAD dismissed the appeal and found that the RPD was correct in finding that the Applicants are neither Convention refugees nor persons in need of protection, as there exists a viable IFA in Hyderabad. The Applicants sought judicial review of the RAD’s decision.
Decision Under Review
[8] The RAD noted that the Applicants alleged that the RPD erred in its assessment of the availability of an IFA, their agent of harm’s lack of means to locate them, and the unreasonableness of their relocation to the IFA.
[9] The RAD found that that the objective country conditions evidence distinguished the extent and location of persecutory actions carried out against Shia Muslims. While the Applicants asserted that violent events had taken place in Sindh Province, where Hyderabad is located, the RAD found that these incidents were few and far apart, they took place to the north and, there was little or no indication of events occurring in the IFA. Further, the violence was concentrated in those areas because of Shia pilgrimage routes. The RAD found that the RPD’s justification in setting Hyderabad as the IFA was correct.
[10] The RAD disagreed with the Applicant’s characterization of their situation and found that LeJ’s interest in the Principal Applicant was primarily concerned with extortion, exacerbated by his Shia Muslim identity. Further, LeJ targets groups rather than individuals. And, the objective evidence indicated that where there is fear of persecution and/or serious harm at the hands of non-state actors, people will generally be able to relocate to escape that risk. The RAD found that LeJ’s police connections and political affiliations were insufficient to support a finding that resources would be deployed to find someone LeJ was interested in based on a past extortion opportunity. Additionally, the fact that individuals can potentially be located through social media is alone not sufficient to establish risk in an IFA. There was no evidence that in the Applicants’ circumstances, the agent of persecution would be motivated to pursue them to the IFA. The RAD found that the RPD’s conclusion in that regard was correct.
[11] As to the Applicants’ assertions of the unreasonableness and undue harshness for the Applicants to relocate to the IFA, the RAD set out the RPD’s findings as well as the Applicant’s allegations of error. The RAD acknowledged the existence of the means to track someone through modern technology but found that the RPD was correct to conclude that there was an absence of evidence indicating LeJ was motivated to act on that information, travel more than a thousand kilometers, and act against an individual of the Shia Muslim faith. Further, the RAD rejected the Applicants’ argument that its analysis should focus on whether there was adequate state protection in the IFA. Instead, it held that qualitative state protection was immaterial as the Applicants’ problems are specific to one area and primarily arose from an extortion effort, further motivated by the Principal Applicant’s Shia Muslim profile. Nor did the objective documentary evidence support the Applicants’ claims as to adverse treatment of Shia Muslims in the IFA.
Issues and Standard of Review
[12] The sole issue arising in this matter is whether the RAD’s decision was reasonable.
[13] The parties submit and I agree that the standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23 and 25). On judicial review, the Court “asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
(Vavilov at para 99).
Was the RAD’s Decision Reasonable?
Applicants’ Position
[14] The Applicants submit that the RAD improperly characterized the Principal Applicant as becoming a person of interest to LeJ for extortion purposes as their evidence establishes that it was his religion and related activities that led to him being targeted. They submit that the RAD’s mischaracterization of the reason for the Principal Applicant being targeted led the RAD to further err in failing to consider the objective documentary evidence establishing that LeJ has the means and the motivation to find the Applicants anywhere in Pakistan.
[15] The Applicants also submit that, while the RAD found that persons fearing persecution or harm at the hands of non-state actors will generally be able to relocate to escape risk, the RAD erred in fact in finding that LeJ is a non-state actor, and also in finding that LeJ targets groups as opposed to individuals.
[16] Finally, the Applicants claim that Hyderabad is not a viable IFA because Shia Muslims are still a minority religious community persecuted by Sunni extremist groups like the LeJ throughout the country. They argue that they could be tracked via social media, Pakistan offers inadequate state protection to Shia Muslims, and the Applicants would be required to cut themselves off from their family members or live in hiding in order to be safe.
Respondent’s Position
[17] The Respondent submits that the RAD did not err in its assessment of why the Principal Applicant was targeted. It found that he was principally targeted on the basis of extortion but recognized that this was exacerbated by his being Shia Muslim. This finding is supported by the Principal Applicants basis of claim [BOC] narrative. And, in any event, the RAD reasonably assessed the objective documentary evidence and found that LeJ would not have the means or the motivation to locate the Applicants in Hyderabad.
[18] Further, even if the Applicants’ claims about LeJ were true, the general country evidence was not probative in the circumstances. This is because it is unclear how LeJ would know the Applicants returned to Pakistan several years later or seek to track them across over a thousand kilometers and millions of people due to the extortion attempt years ago. Moreover, the RAD reasonably considered the ongoing sectarian violence in the Sindh province where Hyderabad is located, including specifically assessing one of the documents relied upon by the Applicants. The Applicant simply seeks to have the Court reweigh the evidence.
[19] The Respondent submits that the Applicants have not established an error with respect to the RAD’s conclusions about social media. Their arguments are speculative and ignore that the agent of persecution lacks motivation. Further, there was no probative evidence presented about how LeJ might utilize the Applicants’ family’s social media to track them. As the RAD found, the Applicants seek to apply general country conditions to their specific circumstances without a valid basis, or, to rely on evidence about areas not relevant to the IFA. There was an absence of evidence establishing that the Applicants would face a serious risk in Hyderabad and that it would not be reasonable to relocate there.
Analysis
[20] An IFA has been described as “a fact situation in which a person may be in danger of persecution in one part of a country but not in another”
(Thirunavukkarasu v Canada (Minister of Employment & Immigration), 1993 CanLII 3011 (FCA) at para 2 [1994] 1 FC 589 (CA) [Thirunavukkarasu] at 592). Because an IFA in another part of the same country is determinative of refugee status, the onus is on an applicant to prove, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the proposed IFA (Thirunavukkarasu, paras 5 and 9; Photskhverashvili v Canada (Citizenship and Immigration), 2019 FC 415 [Photskhverashvili] at para 28).
[21] The two-pronged test for establishing a viable IFA is well established. The decision-maker must be satisfied on a balance of probabilities, that:
there is no serious possibility of the claimant being persecuted in the proposed IFA; and
conditions in the proposed IFA are such that it would not be unreasonable, in all the circumstances, including the circumstances particular to the claimant, for the claimant to seek refuge there.
(Thirunavukkarasu at paras 5, 9; Rasaratnam v Canada (Minister of Citizenship and Immigration), 1991 CanLII 13517 (FCA), [1992] 1 FC 706 (CA) at 711; Souleyman v Canada (Citizenship and Immigration), 2020 FC 708 at para 17-18); Photskhverashvili at para 29).
[22] The onus is on the claimant to demonstrate that that at least one of the prongs has not been established. That is, the burden is on the claimant to establish that the IFA is not viable, either because there is a serious risk of persecution there or because it would be unreasonable for them to seek refuge there (Thirunavukkarasu at 590; Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA) [Ranganathan] at paras 13-15, [2001] 2 FC 164). The Applicants must provide actual and concrete evidence of the existence of conditions that would jeopardize their lives and safety in relocating to the IFA (Ranganathan, at para 15; Photskhverashvili at para 31). Failure to meet that onus means the IFA is determinative of the claim for refugee protection.
i.
Characterization of risk
[23] In my view, the RAD did not err in finding that the Principal Applicant became a person of interest for extortion purposes when he opened his marriage hall and that this was exacerbated by his religious identity. The Applicants’ evidence supported that factual finding.
[24] For example, in his General Application Form, the Principal Applicant indicated that he returned to Pakistan on January 29, 2019. In his BOC, he stated that he opened the marriage hall on February 12, 2019. He decided to hold a majlis, a Shia religious gathering, in the marriage hall as he considered it a sign of good luck for the family’s new beginning in Pakistan. He invited many Shias and some Sunni friends to attend on February 14, 2019, and states that through this gathering he was able to introduce himself as a businessman, not only to the Shia community but also to the majority Sunni community of that neighbourhood. He claims that on February 18, 2019, he received a call from a person claiming to be from LeJ who asserted that the Principal Applicant had returned to Pakistan to spread the Shia (Kafir or infidel) religion through the Principal Applicant’s ill gotten money “and threatened that I would be taught a lesson very soon. He then demanded Rs:2,500,00 from me if I wanted to live and run my business safely in the country”
.
[25] As to the alleged shooting incident, the Principal Applicant states in his BOC that a caller subsequently advised him to treat the incident as a warning “and fulfil the demands”
. A copy of the FIR concerning the incident was submitted in support the Applicants’ claim for refugee protection, in which the Principal Applicant states that he strongly suspected that LeJ was behind the attack “because the militants of that organization were trying to extort 2,500,000 from me”
. The Applicants also provided a copy of police report which they claim was made by the Principal Applicant’s father after the March 6, 2019 incident. This states it was suspected that the men who broke into the marriage hall were members of LeJ who had been threating the Principal Applicant “and demanding extortion from him”
. Similarly, an affidavit from the Principal Applicant’s brother states that after the majlis, the Principal Applicant “received an extortion demand from LEJ extremists”
and sought help from the police “against the extortionists”
. As to a call received by the Principal Applicant after the alleged shooting incident, this warned him “to comply with their demand”
. The record also includes the transcript of the Principal Applicant’s testimony at RPD hearing. Among other things, he stated that he had heard stories of the LeJ targeting people who have lived abroad and returned to Pakistan demanding extortion money, especially from people of the Shai faith. Further, that because he had not responded to the extortion demand and had filed a FIR, the LeJ had become his staunch enemy.
[26] Based on the evidence before it, the RAD reasonably found that extortion was the primary motivation of the agent of persecution, exacerbated by the Principal Applicant’s Shia faith. Accordingly, the RAD did not err by mischaracterizing the basis of the Applicants’ risk.
[27] And, regardless of that finding, the RAD also acknowledged the Applicant’s claim of activism by the Principal Applicant in the Shia community, the hosting of the majlis in the marriage hall and the Applicants’ assertion that the RPD had erred in failing to recognize this. However, the RAD found that the objective evidence distinguished the extent and location of persecutory actions carried out against Shia Muslims, referencing items from the National Documentation Package [NDP]. This included reference by the RAD to NDP Item 1.6, the Pakistan: Country Report, prepared by the Asylum Research Centre, dated June 18, 2018, in particular, the Pak Institute for Peace Studies’ 2018 security report, which noted one major attack claimed by ISIS but that most of the other sectarian-related attacks were of low intensity and mainly located around Quette, Dera Ismail Khan and Preshawar. And while the Applicants’ submissions alluded to violent events having taken place in Sindh Province, where Hyderabad is located, those seemed to be few and far apart, having taken place much more to the north and close to the Province of Blalchistan with little or no indication of actual events having taken place in the IFA. Further, the violence was concentrated in those areas because of the Shia pilgrimage routes to Iran and Iraq (referencing the NDP, Pakistan, April 16, 2021 and IRB January 15, 2020 PAK106393.E). Further, the RAD noted that the Australian Department of Foreign Affairs and Trade found “no evidence of systemic discrimination against Shi’a”
community in the public and private sector in Hyderabad.
[28] While the Applicants in their written submissions point to various portions of items in the NDP to support their submission that they will be targeted due to their Shia faith, and submit that the RAD erred in failing to consider this, the RAD’s reasons demonstrate that it did address this concern but concluded that the RPD correctly found that Hyderabad was a viable IFA. In my view, the Applicants simply disagree with the RAD’s assessment of the objective country conditions documentation. However, it is not the role of the Court to reweigh the evidence on judicial review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII), [2009] 1 S.C.R. 339, at para 61).
ii.
Profile
[29] Nor am I persuaded by the Applicants’ submission that, because they are being targeted on the basis of their religion, LeJ has the means and the motivation to locate them anywhere in Pakistan and that the RAD ignored this motivation.
[30] As I have found above, the RAD did not err in finding that the primary reason the Principal Applicant was targeted was for purposes of extortion, further, that the Applicants, as Shias, could safety relocate to the IFA. The RAD found that the agent of persecution would not be motivated to pursue the Applicants to the IFA based the extortion. It also referenced an NDP item which indicated that where there is a fear of persecution or serious harm at the hands of non-state actors, people will general be able to relocate to escape that risk (NDP, Pakistan, April 16, 2021, Item 1.16, referring to the United Kingdom Home Office, Country Policy and Information Note).
[31] In that regard, the Applicants argue that the RAD made factual errors in determining that LeJ is a non-state actor and that LeJ targets groups as opposed to individuals.
[32] In support of its view that the RAD erred in finding that LeJ is non-state actor, the Applicants rely on NDP Item 7.21, dated December 14, 2020 (Responses to Information Requests, 14 December 2020). This document provides general background information on LeJ. While the Applicants interpret this as indicating that LeJ is not exclusively a non-state actor, read in whole, the document clearly sets out that LeJ is a terrorist organization, it is responsible for terrorist attacks, and it has been subject to operations by the Pakistani security forces/counter terrorism department.
[33] I also note, for example, that the UK Home Office Country Policy and Information Note, Pakistan: Shia Muslims January 2019 indicates that there were no reports of systematic discrimination against Shia Muslims by the state. And while Shia Muslims are regarded as apostates or heretics by some extremist Sunni groups and individuals, such that some Shia face hostility and security threats from these groups, which include LeJ, the majority of targeted attacks, which usually take the form of bomb attacks at Shia dominated events and venues, occurred in the tribal regions. The report indicates that, in general, a Shia Muslim is not likely to face a real risk of persecution and/or serious harm from non-state actors, although the risk may vary depending on location. And, while there continued to be targeted attacks in Shia dominated areas, these are infrequent and do not generally amount to substantial grounds for considering there is a real risk of persecution and/or serious harm. Further, that despite government efforts, Shia Muslims continue to be targeted in parts of the country, particularly the border region.
[34] In my view, the objective documentary evidence does not support the Applicants characterization of LeJ as a state actor. The Applicants’ submission is really concerned with whether LeJ could and would enlist the assistance of state agents – the police – to locate them in the IFA. That is, whether LeJ had the means and motivation to pursue and persecute them in Hyderabad. This will be discussed further below.
[35] And while the Applicant refers to NDP items to suggest that not all attacks on Shia Muslim are group attacks, the NDP documentation supports that this is generally the case, with attacks being by the bombings targeting social gatherings and crowded areas and attacks on pilgrims, as the RAD found. Nor do the Applicants point to any specific incidents in Hyderabad targeting individual Shias, instead referencing NDP items that speak to incidents which include groups attacks by ISIL in northern Sindha and mass killings by LeJ in sectarian hotbeds, which do not include Hyderabad, but in one instance included a location in northern Sindh.
[36] Given this, I do not agree with the Applicants’ submission that the RAD made errors of fact or ignored country condition evidence that supports their view that LeJ is a state actor. Nor did the RAD err in finding that typically LeJ mounts group attacks against Shia Muslims and that such attacks have not occurred in Hyderabad. The Applicants have not established that the RAD ignored the county condition evidence that directly contradicts these findings.
[37] The main question is whether the LeJ had the means and motivation to find the Applicants in the IFA.
[38] The RPD found that LeJ did not. When asked how the agents of persecution would locate the Applicants, the Principal Applicant testified the LeJ would find them when they rented housing as they would have to register the new residence with the police and, in this way, their location would become known. The RPD acknowledged that a tenant registration system exists and that there is evidence that the police may be able to locate individuals in other provinces through that system. However, the RPD found that the purpose of the system is information gathering to track the movement of people involved in criminal activities and while the police do communicate with different provinces to find persons of interest, this usually takes place in high profile cases. The country condition documentation indicated that local police who receive tenant information do not routinely verify the information and only do so when there is a match between a tenant profile and a wanted criminal or terrorist database. The RPD found that there was no evidence before it that the Applicants were involved in criminal activities or that the police in Pakistan have any interest in them. Further, while there was some indication in the evidence that militant groups have links with law enforcement, it was speculative to assume that LeJ would seek to obtain police assistance to locate the Applicants who are not high profile individuals, as confirmed by the Principal Applicant’s testimony that he was “nothing special”
. Nor was there any evidence of police collusion or that police were under the control of LeJ in seeking to harm the Applicants.
[39] The RAD agreed with the RPD’s findings and found that LeJ’s police connections and political affiliations were insufficient to support the conclusion that resources would be deployed to find someone like the Applicants, that is, where the interest in them stemmed from an extortion opportunity for the continued operation of a past business.
[40] The Applicants do not challenge this finding. They assert, however, that their Shia Muslim profile would cause LeJ to use their police connections and political affiliations to locate them and that the RAD failed to recognize this.
[41] However, RAD found that the evidence did not support the agent of persecution had an interest in pursuing the Applicants to the IFA given that the initial objective was extortion – and even if further prompted by the Shia Muslim profile. The RAD found that RPD’s conclusion in that regard was correct.
[42] In my view, the RAD did not err in concluding that the Applicants failed to establish that the fact of their Shia Muslim religion would provide means and motivation for LeJ to seek them out. I would also note that very little evidence was provided to support that during the time the Principal Applicant was in Toba Tek, being from January 29, 2019 to when he left for Lahore on March 5, 2019, he developed a high religious profile. Other than holding the majlis – to which both Shia and Sunni were invited and which the Principal Applicant described as a business opportunity – and his general statement that he became “active”
in the Shia community in Toba Tek, no evidence was provided to suggest that the Principal Applicant held a religious profile in Pakistan that would motivate the LeJ to seek him out in the IFA.
iii.
Reasonableness of Relocation to IFA
[43] The Applicants submit that they are members of a minority religious community and will be persecuted by LeJ throughout the country. However, as I have found above, the RAD did not err in its assessment of Hyderabad as a viable IFA.
[44] In its analysis of the second prong of the IFA test, the RAD also found that qualitative state protection was immaterial as the Applicant’s problems were specific to one area and primarily the result of an extortion effort related to a business venture, further motivated by the Principal Applicant’s Shia Muslim profile. Further, that the Applicants’ assertion that Shia individuals are at risk across Pakistan failed to fairly assess the objective evidence; that the objective basis of the Applicants’ submissions failed to adequately indicate that the subject reference document spoke to scarce information on the treatment of Shia Muslims in Hyderabad, noting that it had a Sufi culture and is very accepting of minorities; and, that the Applicants’ references to other objective evidence were distinguishable as they cited information which was more applicable to areas other than to the IFA.
[45] The Applicants also assert that the RAD recognized that individuals can be tracked through social media and that being located is “only a click away”
, rendering distance between the agent of persecution and the IFA irrelevant. However, the RAD found, on a balance of probabilities, that the RPD was correct in concluding that there was an absence of evidence indicating motivation to act on that information, travel over a thousand kilometers and act against an individual member of the Shia faith.
[46] I would add that the Applicants also did not explain how they would be located by social media and, as stated by Justice Southcott in Adeyig v Canada (Citizenship and Immigration), 2021 FC 659:
[23] Finally, in relation to the first prong of the IFA test, the Applicants submit that the RAD erred in rejecting the Principal Applicant’s testimony that he and his family would have to remain in hiding and avoid social media and other communications technology in order to avoid detection in Abuja. The RAD concluded that the Applicants had not explained how the agents of persecution could use social media to locate them and again found an absence of clear and convincing evidence of such risk. The Applicants submit that it is self-evident how social media can be used to attempt to locate someone who has a presence on such platforms.
[24] On this point, I agree with the Respondent’s submission that it is not a reviewable error to expect a refugee claimant’s use of social media to be careful and, in the absence of more specific evidence as to how the Applicants’ careful use of social media would present a risk of the agents of persecution locating them, the RAD’s finding was reasonable.
[47] In sum, I see no error in the RAD’s analysis. The Applicants simply failed to meet their onus in establishing that relocation to the IFA would be objectively unreasonable.
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