Date: 20110106
Docket: IMM-630-10
Citation: 2011 FC 10
Ottawa, Ontario,
January 6, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MUMTAZ
BEGUM
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, R.S.C. 2001, C. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 23 December 2009 (Decision), which refused the Applicant’s
application to be deemed a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is an elderly widow and a citizen of Pakistan. She travelled to Canada on a visitor’s visa in
18 April 2006 and made a claim for refugee status on 27 December 2007. Her
daughter, who is a Canadian citizen, has started a sponsorship application for
her, which has yet to be decided.
[3]
The
claimant alleges that for the ten-month period before she came to Canada she
was harassed by a neighbour, who had offered to purchase her house and land in
Lahore for less than market value and whose offer she had refused. Moreover,
the Applicant alleges, he was a known member of the banned Sunni Muslim
extremist group Sipah-e-Sahaba (SSP). She did not report the harassment to the
police because she says the Pakistani police discriminate against women. Prior
to coming to Canada, she found a tenant for
her house.
[4]
The Applicant
says she is afraid to return to her house in Lahore because, while she has been in Canada, the above-mentioned
neighbour and the tenant have taken over the house and have threatened to kill
her. She fears returning to Pakistan because, with the exception of one
daughter who lives in Karachi, all of her children have
gone abroad. She also has cancer, among other ailments, and she says she will
not have access to adequate medical care in Pakistan. She also alleges that she has nowhere to
live and no one to care for her.
[5]
The
Applicant was represented by an immigration consultant at the hearing before
the RPD.
Her claim is based on two grounds. First, as a
woman, and especially as a single and widowed woman, she claims she is severely
discriminated against in Pakistan. Second, she fears
being harmed or killed by the men occupying her house and by members of the
SSP. The RPD found that she did not meet the definition of a Convention refugee
under section 96 of the Act or of a person in need of protection under section
97 of the Act. This is the Decision under review.
DECISION UNDER REVIEW
[6]
The
RPD rejected the Applicant’s claim for two main reasons: (a) she was not
entirely credible with respect to why she cannot return to Pakistan; and (b) she failed to
provide sufficient convincing evidence to demonstrate that she met the criteria
under sections 96 and 97 of the Act.
Credibility
[7]
The
Decision says that the Applicant claimed in her Personal Information Form (PIF)
that, before she left Pakistan, the neighbour who had
offered to buy her house had begun harassing her. He and his friends threw
garbage at her door, wrote religious slogans on her walls and congregated on
the sidewalk in front of her house.
[8]
At
the hearing, however, the Applicant said that she had left Pakistan to visit her daughter,
who was living in Canada and expecting a baby. The
Applicant had rented her house in Pakistan to a man who, together with the neighbour, has taken
over the house in her absence and is now refusing to pay rent. If she returned
to her house in Lahore, the men would kill
her. She stated that these men were connected with the SSP but that the SSP had
never bothered her personally.
[9]
When
asked why she had to leave Pakistan, she said that she was worried about what might happen to
her because she is elderly and requires chemotherapy. She fears being alone and
vulnerable to criminals. The RPD asked why she could not live with her daughter
in Karachi. She replied that her
daughter and grand-daughter now live with the grand-daughter’s husband and his
family. Both women work, so there is no one to care for her during the day. She
does not want a hired caregiver because she fears being attacked by servants,
as her daughter’s life has twice been threatened by servants.
[10]
The
RPD concluded that, based on her oral evidence at the hearing, the Applicant’s alleged
fear of the SSP, as stated in the PIF, is not credible. She fears the men who
have taken over her house, but the RPD found that these men were not members of
the SSP.
Section 96
[11]
In
its analysis of section 96 of the Act, the RPD found that the Applicant had failed
to establish a nexus or link between her circumstances and the test for
Convention refugee status. Specifically, she does not have a well-founded fear
of persecution based on her race, nationality, religion, political opinion or
membership in a particular social group. What the claimant fears is criminal
activity perpetrated either by the men who have control of her house or by
those who might wish to harm her should she return to Karachi to live in her
grand-daughter’s family home. Victims of crime cannot generally establish a
nexus between their fear of persecution and one of the five Convention grounds.
Section 97
[12]
The
RPD then turned to section 97, which required this Applicant to show that, in Pakistan, she would be subjected
personally to a risk to life or a risk of cruel and unusual punishment or to a
danger of torture. Only in this way could she prove herself to be a person in
need of protection.
[13]
The
RPD stated that a person in need of protection must demonstrate that the
enumerated risks are present for her everywhere in the country. If an Internal
Flight Alternative (IFA) exists in that country, the person must avail herself
of that alternative before seeking safety in Canada.
[14]
The
RPD concluded that, on a balance of probabilities, there was no serious
possibility of the Applicant being subject to the risks and dangers enumerated
in section 97. She had an IFA. She could go safely to Karachi, where she could live
with her grand-daughter’s family in a familiar linguistic and cultural
environment. There was no evidence that the men who controlled her house in Lahore would pursue her in
another city. The Applicant’s fear that she will be harmed by a servant while
her daughter and grand-daughter are at work is mere speculation. Moreover, it
is a generalized risk of harm; section 97 requires a personalized risk. Finally,
the Applicant’s fear that she will not have access to adequate health care is
not one of the considerations to be taken into account in a section 96 or
section 97 claim.
[15]
For
these reasons, the RPD found that the Applicant was neither a Convention
refugee nor a person in need of protection.
ISSUES
[16]
The
issues may be stated as follows:
a. Whether the RPD failed
to address the gender-based discrimination aspect of the Applicant’s claim;
b. Whether the RPD applied
the wrong test when determining whether or not the Applicant had established a
nexus to one of the Convention grounds;
c. Whether the RPD
incorrectly applied section 97, given the evidence concerning the availability
of an IFA.
STATUTORY PROVISIONS
[17]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[18]
The Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to the particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[19]
Whether
the RPD incorrectly applied section 97 of the Act, given the evidence
concerning the availability of an IFA, requires an application of the law to the
facts. Therefore, it is an issue of mixed fact and law and, as such, attracts a
standard of reasonableness. See Dunsmuir, above, at paragraph 51.
[20]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir,
above, at paragraph 47. Put another way, the Court should only intervene if the
Decision was unreasonable in the sense that it falls outside the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
[21]
Whether
the RPD failed to consider the discrimination aspect of the Applicant’s claim
raises an issue of procedural fairness. This is reviewable on a standard of
correctness. See Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005]
F.C.J. No. 2056 at paragraph 46, and Dunsmuir, above, at paragraphs 126
and 129.
[22]
Whether
the RPD applied the correct test in determining whether or not the Applicant
established a nexus to one of the Convention grounds attracts a standard of
correctness. See Golesorkhi v. Canada (Minister of Citizenship and Immigration), 2008 FC 511 at
paragraph 8.
ARGUMENTS
Applicant
RPD Failed to Assess
Discrimination
[23]
The
Applicant submits that she meets the definition of a Convention refugee, first
and foremost due to her membership in a particular social group: single women in
Pakistan who have no male
protector. As such, she is vulnerable to severe discrimination should she be
removed to Pakistan.
[24]
The
Applicant argues that the RPD decided the Applicant’s claim “without ever
mentioning a single word” about the discrimination of women in Pakistan. In Viafara Pastrana
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1526 at
paragraph 6, Justice Eleanor Dawson, relying on Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689 (Ward), stated: “the Supreme Court of
Canada confirmed that the Board must consider all of the grounds for making a
claim to refugee status, even if the grounds are not raised during a hearing by
a claimant.”
[25]
In
the instant case, there is no denying that the Applicant raised discrimination
in her PIF. The Decision itself acknowledges that she raised the issue, and the
documentary evidence supports her evidence that women are subject not only to
discrimination in their everyday lives but also in their dealings with the law
and the authorities. Police are at times implicated in rape cases, and they
often abuse and threaten female detainees. Especially vulnerable are single
and/or widowed women living alone. The Applicant suggests that she is one such
woman. Women count on a male protector for their safety.
[26]
In light
of this evidence, the Applicant submits that the RPD had a duty to assess the
Applicant’s risk of persecution based on severe discrimination against women in
Pakistan. See Abdulle v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1508 at paragraph
21; Chowdhury v. Canada (Minister of Citizenship and Immigration), 2005 FC 1242. This
fear is in addition to her fear of her menacing neighbour and tenant in Lahore, which the RPD did
address.
[27]
The
Applicant submits that she fits the definition of a Convention refugee for
another reason: she is a member of a particular social group, namely victims of
crime. In fact, it is because of her status as a single widow without a male
protector that she has become a victim of crime. The crime to which the
Applicant refers is the harassment she has suffered at the hands of her
neighbour and the subsequent illegal occupation of her house by the neighbour
and the tenant.
[28]
As
Justice John O’Keefe recognized in Racz v. Canada (Minister of
Citizenship and Immigration), 2004 FC 285 at paragraph 13, this Court has
found that, in certain circumstances, victims of crime can be classified as Convention
refugees:
13 A review of the officer’s decision
discloses that the officer appeared to rule out the applicant fitting within
the definition of convention refugee because his claim to be a convention
refugee was based on his membership in a particular social group–Victims of
crime. While it is true that the majority of the case law would support this
conclusion there have been a number of decisions of this Court that have held
that in certain circumstances members of the social group – Victims of crime
can be classified as convention refugees.
Justice O’Keefe further commented at paragraph
14 that, in that case, the applicant was “entitled to have [this issue]
considered by the officer” and “that failure to do so constitutes irreparable
harm to the applicant.”
[29]
Similarly,
Justice Marshall Rothstein stated in Pepa v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 834 (Pepa) at paragraph 9 that no
principle of law prohibits a person from being both a victim of a private
vendetta and a Convention refugee, provided the basis of the vendetta is the
victim’s race or any other Convention ground.
[30]
Moreover,
the RPD recognized at paragraph 11 of the Decision that “[v]ictims of crime … generally
cannot establish a link between their fear of persecution and one of the five
grounds in the [Convention] definition” (emphasis added).
[31]
Relying
on this jurisprudence, the Applicant argues that she is a victim of crime
because of her gender and her social status as a single widow without a male
protector, and that her membership in that particular social group makes her a
Convention refugee. The RPD’s finding that the Applicant was merely a victim of
crime does not prevent her from being a victim of persecution based on severe
discrimination. The RPD’s analysis failed to take this jurisprudence into
account.
RPD
Applied the Wrong Test for Nexus
[32]
When
assessing whether the Applicant was a member of a “particular social group” as
defined under section 96 of the Act, the RPD’s applied the wrong test. The
correct approach is set out in Zefi v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 636, which cites favourably the
decision of Justice La Forest in Ward, above.
The first step of the test asks if an issue of human rights is engaged, and the
second asks if the persecution is caused by membership in a certain group. The
Applicant asserts that the RPD failed to undertake the first step.
[33]
Moreover,
the RPD failed to consider the three categories of “particular social group” as
it is used in section 96 of the Act. According to Ward, above, at
paragraph 70, these include: (1) groups defined by an innate or unchangeable
characteristic; (2) groups whose members voluntarily associate for reasons
so fundamental to their human dignity that they should not be forced to forsake
the association; and (3) groups associated by a former voluntary status,
unalterable due to its historical permanence.
RPD Erred
in Finding an IFA
[34]
The
Applicant argues that the RPD ignored evidence explaining why, as a single
widow without a male protector, she could not relocate and live alone in Karachi. The documentary
evidence sets out the difficulty such women have in finding accommodations as
well as the constant discriminatory attitudes and practices they encounter in
day-to-day life. This evidence was highly relevant to the determination
regarding an IFA. The Applicant relies on Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), where at
paragraph 17 Justice John Evans of this Court states:
However,
the more important the evidence that is not mentioned specifically and analyzed
in the agency's reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact “without regard to
the evidence”: Bains v. Canada (Minister of Employment and Immigration)
(1993) 63 F.T.R. 312 (F.C.T.D.).
The Respondent
RPD Did Not Fail to Assess
Discrimination Claim
[35]
In the
Respondent’s view, the transcript demonstrates that the Applicant fears being a
single widow in Pakistan because, if she has no
male protector and no one to care for her, she will face discrimination.
However, according to the evidence, her claim is unfounded because she has an
IFA. Were she to return to Karachi to live in the home of her grand-daughter, the
grand-daughter’s husband would provide the male protection she needs. Moreover,
the family could hire a caregiver to look after her in the daytime when her
daughter and grand-daughter are working. In ignoring this evidence, the
Applicant has misconstrued the facts. The Applicant stated that she will not
accept a hired caregiver, but that refusal is rooted in her fear that the
caregiver will harm her. However, the RPD found that this fear is speculative.
Moreover, the Applicant’s fear of crime is a generalized fear that all people
in Pakistan face. To qualify as a Convention
refugee, however, the Applicant must show that the harm she faces is
personalized. See Prophète v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31.
[36]
The
Respondent argues that the Applicant’s allegation that she “meets the profile of
a category of people who suffer persecution”—that is, widowed women in Pakistan—is “insufficient.” The
Applicant must adduce evidence that she faces this risk of persecution and, in
this case, she has not. See Ward, above, at paragraphs 47 and 61.
[37]
Section
96 serves a limiting function. As Justice Michel Beaudry observed in Castro
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1282 at paragraph 25:
It
is trite law that for an applicant to succeed on a refugee claim under section
96 of IRPA, the claimant cannot only show that they have suffered or
will suffer persecution in their country of origin. This persecution must also
be linked to one of the Convention grounds set out in the definition of refugee
pursuant to subsection 2(1) of the Act. As explained in Canada (Attorney General) v. Ward, at paragraph 61:
...
the drafters of the Convention limited the included bases for a well-founded
fear of persecution to “race, religion, nationality, membership in a particular
social group or political opinion”. Although the delegates inserted the social
group category in order to cover any possible lacuna left by the other four
groups, this does not necessarily lead to the conclusion that any association
bound by some common thread is included. If this were the case, the enumeration
of these bases would have been superfluous; the definition of “refugee” could
have been limited to individuals who have a well-founded fear of persecution
without more. The drafters’ decision to list these bases was intended to
function as another built-in limitation to the obligations of signatory
states....
The
Applicant claims he has a well-founded fear of a group of individuals involved
in money laundering on the basis of being a victim of crime. This does not fall
under one of the enumerated categories of the Convention refugee definition and
as such, the Board’s decision in this regard is reasonable.
[38]
The
Applicant relies on Viafara, above, to argue that the RPD was obliged to
consider her discrimination claim; however, that case is distinguishable. In Viafara,
there was factual evidence to support the Applicant’s well-founded fear of
persecution. In the instant case, there is not.
[39]
Similarly,
the Applicant relies on Racz, above, to demonstrate that victims of
crime can be classified as Convention refugees. That case, too, is
distinguishable. It involved a motion for a stay of removal, which represents a
much lower threshold as to what constitutes reviewable error.
Applicant Has an IFA
[40]
The
Respondent argues that, under section 97 of the Act, an applicant in need of
protection must establish that the risk of harm extends to every part of their
country of origin. If they can find protection anywhere in that country, they are
expected to avail themselves of all reasonable options before seeking refuge in
Canada. See Morales v. Canada (Minister of
Citizenship and Immigration), 2009 FC 216 at paragraph 6.
[41]
The
RPD’s finding that the Applicant would not be at risk of harm from her
neighbour and her tenant if she were to move to Karachi was reasonable. The suggestion that a
caregiver could be hired to care for her during the day in her grand-daughter’s
house also was reasonable.
ANALYSIS
[42]
In
counsel’s submissions before the RPD he clearly asked that the Applicant’s
gender-based claim be considered. As well as referring to documentary evidence
on discriminatory practices in Pakistan against women, counsel also highlighted the Applicant’s
personal situation:
Being
a woman, being alone attracts threats, attracts attacks. Women alone cannot
live in Pakistan according to the Refugee Protection
Division index. Women alone are vulnerable in Pakistan
according to the Refugee Protection Division index.
She
does not have her husband, brothers or sons in Pakistan.
According to the Refugee Protection Division index, male patronage are (sic)
the basis of the mere existence of women in Pakistan.
Without male family members, women in Pakistan are almost dysfunctional.
I
submit Madam Chair, that this is a gender based claim. It does attract, I
submit Madam Chair, section 96 as well as 97 of the Immigration and Refugee
Protection Act. I submit that she should be accepted as a Convention
refugee and/or person in need of protection.
[43]
The
Applicant came to Canada to visit her daughter
who was going to have a baby. While in Canada she was diagnosed with cancer and has been
receiving treatment. Naturally, now that she is sick, she does not want to go
back to Pakistan, and she says that she
fears living alone there because she is sick, elderly, and female.
[44]
The
Applicant’s fears, and her desire to stay in Canada, are entirely understandable. But do these
fears make her a Convention refugee? The only way that she can suggest she
qualifies is by virtue of the fact that, in Pakistan she would be a sick and
elderly woman, living alone, and that similarly situated persons are
discriminated against in Pakistan.
[45]
So I
accept that the RPD was asked to consider a gender-based claim and that the RPD
was provided with the grounds for such a claim as they related to the
Applicant’s personal circumstances and to similarly situated persons. The
Applicant is advancing in years, she is sick, she has no obvious male protector,
and she is vulnerable. She also says that she fears her former neighbour and her
tenant who have taken over her house and threatened her. Obviously, then, her
ability to obtain protection in Pakistan should she return is at issue.
[46]
In
its Decision, the RPD found that the Applicant’s fears concerning the SSP were
not credible. This was a reasonable finding, given the evidence.
[47]
The
RPD’s findings on nexus to a Convention ground is also based upon its
conclusions that the Applicant had no subjective or objective fear of political
persecution from the SSP because her fears of Ali Basit, her neighbour, and
Javaid Akhtar, her tenant, were fears of criminal activity. The RPD also found
that she feared generalized crime if she were to move to Karachi to live with her
daughter and grand-daughter.
[48]
It
is possible that the RPD erred in so easily dismissing the Applicant’s claim
that she is a Convention refugee for the simple reason that the Applicant fears
“generalized crime … and, as such, she has failed to establish a nexus or link
to the definition of a Convention refugee on one of the five enumerated grounds
….”
[49]
In Dezameau
v. Canada (Minister of Citizenship and Immigration), 2010 FC 559, the RPD
rejected the female Haitian applicant’s section 96 claim of gender-based
persecution, having found that she had not been a victim of any attack based on
being a woman and that, although there was violence against women in Haiti, the
risk the applicant faced was not a risk based on her gender but rather a risk
faced by all citizens due to the violence in that country.
[50]
In
that case, Justice Yvon Pinard held that the tribunal had erred in finding that
a general risk of harm precluded the applicant’s claim of gender-based
persecution. He further held that the tribunal erred in finding that rape was
not a gender-related risk in Haiti
or that rape was a general risk faced by all Haitians. Finally, the tribunal
failed to conduct a proper inquiry into the applicant's claim as it did not
consider the applicant's risk of rape due to her membership in a particular
social group: women returning to Haiti from North America. At paragraphs 19, 23
and 29, Justice Pinard stated:
19 Since the applicant claimed that she
feared that as a woman she would be targeted for rape in Haiti, the Board is
expected to have considered the evidence with respect to her membership in a
particular social group, namely women in Haiti or more specifically, Haitian women
returning to Haiti from abroad. Failure to evaluate the
evidence in this way constitutes a reviewable error: Bastien v. Minister of
Citizenship and Immigration, 2008 FC 982. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at paragraph 70,
the Supreme Court of Canada explicitly recognized that gender can provide the
basis for a “social group”.
[…]
23 In
my opinion, the error of the Board was to use its finding of widespread risk of
violence to rebut the assertion that there is a nexus between the applicant’s
social group and the risk of rape. Contrary to the respondent’s submissions, a
finding of generality does not prohibit a finding of persecution on the basis
of one of the Convention grounds.
[…]
29
This is not to say that
membership in a particular social group is sufficient to result in a finding of
persecution. The evidence provided by the applicant must still satisfy the
Board that there is a risk of harm that is sufficiently serious and whose
occurrence is “more than a mere possibility”.
[51]
At
paragraph 39, Justice Pinard went on to say that, following a determination
that there is more than a mere possibility of harm occurring, the tribunal
should consider the availability of state protection.
[52]
According
to Dezameau then, whether or not the Applicant would have been able to
make out her section 96 of the Act is beside the point: “The Board is expected
to have considered the evidence with respect to her membership in a particular
social group.”
[53]
As
the Applicant in the instant case argues at paragraph 5 of her Memorandum,
there is documentary evidence to support her assertions that, as a member of
her particular social group, she faces discrimination and may also have difficulty
securing state protection against discrimination and/or persecution. Police are
at times implicated in rape cases, and they often abuse and threaten female
detainees. Single and/or widowed women living alone are especially vulnerable.
Clearly, should she return to her house in Lahore, the Applicant will find herself within
that social group. In fact, she will be even more vulnerable than others in her
group because she is sick. As the Applicant states, women count on a male
protector for their safety.
[54]
It
is true that the RPD does not specifically characterize her claim as
gender-based, but my reading of the Decision is that the RPD identified the
Applicant’s real fears, rejected that aspect of her claim that was based upon
the criminal activities and threats of Ali Baset and Javaid Akhtar, and then
dealt with her fears of being elderly, female and alone by concluding she has
an IFA that would resolve those fears and that would also place her beyond the
reach of Ali Basit and Javaid Akhtar. In my view, then, the RPD’s failure to
characterize and address the Applicant’s claim specifically as a gender-based
claim is not fatal to the Decision, provided the RPD’s IFA analysis addressed
her gender-based fears.
[55]
The
issue, then, is whether the RPD’s answer to the Applicant’s gender-based claim
is subsumed in the RPD’s IFA analysis and whether that analysis was reasonable.
[56]
The
RPD says in paragraph 11 of its Decision that the
panel
finds that the claimant does not have a well-founded fear of persecution for any
of the five grounds. Therefore, the panel will analyze the claim at hand within
the framework of ss. 97(1)(b) of the IRPA and consider whether
the claimant would be subjected personally to a risk to life, to a risk of
cruel and unusual treatment or punishment or to a danger of torture, if she was
to return to Pakistan.
[57]
After
saying this, the RPD then launches into its IFA analysis. At this point it
seems clear that the RPD is considering an IFA only from the perspective of section
97 risk. At paragraph 14 of the Decision, however, the RPD says that, with
respect to the first prong of the IFA test set out in Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.):
the
panel finds that there is not a serious possibility of persecution, or risk to
life, or to cruel and unusual punishment for the claimant if she were to return
to Karachi, Pakistan. There is no evidence that Ali Basit or
Javaid Akhtar would persecute the claimant or have the claimant persecuted if
she were to move to Karachi. In fact, this is what the claimant
alleges they want, for the claimant to leave her home to them.
[58]
So
there is some confusion here. Having ruled out a section 96 claim, and having said
that its analysis will address paragraph 97(1)(b) of IRPA, the RPD then
goes on to rule on IFA from the perspective of persecution and section
97 risks. I think it is clear from the Decision as a whole that the RPD
regarded its IFA analysis as being applicable to any section 96 claim the
Applicant might raise, even if it does not accept that she had established
persecution.
[59]
The
RPD’s findings on IFA seem to assume that all of the Applicant’s problems will
be solved if she moves to Karachi to live with her grand-daughter and her daughter. There was
evidence that the grand-daughter has a husband and, if the full context of the
transcript is taken into account, I think we can reasonably assume that he is a
mature male because the grand-daughter appears to have lived in a house with
her husband before her mother went to live with them and both women go out to
work in an office all day.
[60]
At
the hearing, however, Applicant’s counsel posed the following question to the
Applicant and received the following answer:
Counsel: My
question was, will your granddaughter’s husband keep you in their house if you
go back to Pakistan?
Claimant: Their
house only has one bed. Other people sleep on the floor.
[61]
It
is never clarified by the RPD or Applicant’s counsel whether the Applicant
could reside at the grand-daughter’s house and count on the protection of the
husband. However, as the Federal Court of Appeal made clear in Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 at
paragraph 12, once a claimant is warned that an IFA will be raised, the onus is
on the claimant to demonstrate that it would be unreasonable to require the
claimant to move. The transcript shows that the Applicant does not wish to go
to Karachi and that she has continuing fears (of servants, in particular) if
she is taken into her grand-daughter’s household, but she does not really
substantiate these fears or demonstrate that it would be unreasonable to
require her to go to Karachi and live with her family there.
[62]
If
the Applicant avails herself of the IFA in Karachi, she will be removed from her particular
social group, in that she will no longer be alone without a male protector. She
will reside with her grand-daughter and the grand-daughter’s husband, and she
will have a male protector. This is a solution that goes to the heart of her
fear in returning to Pakistan. With a male protector,
there is no serious possibility of the claimant being persecuted. True, she
will still be elderly, sick and widowed, but she would be that if she remained
here in Canada. Also, she would enjoy
better medical care here, but subparagraph 97(1)(b)(iv) of
the Act precludes claims based on inadequate health care in the country of
origin.
[63]
Although
the Applicant believes that her safety will be at risk if she is left alone
with servants during the day, the RPD found that this is mere speculation and a
generalized risk.
[64]
With
respect to the viability of the IFA, the Decision dedicates five paragraphs
(12-16) to this issue. It sets out the test from Thirunavukkarasu and
applies it to the facts. First, it finds that the there is no serious
possibility of the applicant being persecuted in the proposed IFA; she would
not face persecution at the hands of Ali Basit and Javaid Akhtar, either
directly or indirectly, should she relocate to Karachi. She would not be
persecuted as a member of her particular social group because she would not be
alone and would have a male protector. Second, the RPD finds that it would be
reasonable for the Applicant to live in Karachi: “She can safely fly there and live with her
daughter and granddaughter … and she would not face a linguistic or cultural
change.”
[65]
All
in all, then, I do not think that the IFA analysis can be considered unreasonable.
The fears and risks raised by the Applicant were fully addressed. Both her
gender-based claim under section 96 and her section 97 claim –were based upon
her fear of being an elderly and vulnerable single woman in Pakistan – were met
by pointing out to her that she has a viable and reasonable IFA in Karachi.
[66]
Whether
the Applicant will actually go to Karachi is another issue. She is sick and undergoing
treatment. We are dealing here with her section 96 and section 97 claims only.
There are other avenues available to the Applicant if she wishes to remain in Canada.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
Judge
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