Docket: IMM-4136-13
Citation:
2014 FC 1194
Toronto, Ontario, December
10, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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MUHAMMAD IDREES
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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
I.
Overview
[1]
Muhammad Idrees [the Applicant], is a citizen of
Pakistan applying for judicial review of a decision of the Refugee Protection
Division [RPD, Board] of the Immigration and Refugee Board of Canada which
determined he is not a Convention refugee or a person in need of protection
according to the criteria specified in sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] due to the
existence of an Internal Flight Alternative [IFA] in Karachi. The Application
was commenced pursuant to section 72(1) of IRPA.
II.
Facts
[2]
The Applicant fears that he will be harmed,
kidnapped, or killed by Taliban extremists if forced to return to Pakistan due
to the fact that he is a young Muslim male from the Tirah region, where the
Taliban have looked to find fighters for their cause, and that he faces a risk
of retribution by the Taliban because he refused to report to fight or to help
them financially in their war effort after his family received a demand letter.
[3]
In December 2010, while the Applicant was
studying at a university in Peshawar, Pakistan, his cousin’s family received a
letter from Taliban extremists demanding that the family pay a substantial sum,
or send his cousin to fight for the Taliban in Afghanistan.
[4]
His cousin’s family and his own family lived in
a village located close to the Pakistani-Afghan border in the Khyber Pakhtunkhwa Province (formerly the North-West Frontier). His cousin’s family did not
comply with the demand in the letter, but rather filed a report with the police.
Shortly thereafter, the Taliban extremists kidnapped his cousin. The family
then paid the ransom money, with the help of the Applicant’s father, and the
Applicant’s cousin was released.
[5]
On March 19, 2011, while the Applicant was in
his village on university break, his family received a similar letter,
demanding that he either be sent to fight for the Taliban or that his family
pay an amount even greater than had been demanded the year earlier for his
cousin. As a result, he left the village the next day and returned to Peshawar, where his roommate knew a man who was able to obtain a visa for him to come to Canada.
[6]
On July 29, 2011, the Applicant flew to Toronto and made a refugee claim. Before his RPD hearing, he was given notice that an issue
at the hearing would be whether Karachi was available to him as an IFA.
[7]
The Applicant’s hearing at the RPD was held on
May 14, 2013. The Applicant, responding to questions from the Member, confirmed
that in the two year period since the demand letter was received, his family
had not: paid the demand; received anything else from the persons who demanded
the money; been approached for payment; and/or been harmed. The Applicant
believed that the reason that his family had suffered no repercussions was that
his family currently had no adult male family members in Pakistan: his father and brother were in Saudi Arabia, and he was in Canada.
[8]
The Applicant testified that he believed the
Taliban would still be interested in him, and that he would not be safe from
them in Karachi (the proposed IFA) because they have an integrated network
capable of locating him. Furthermore, he believed that even if the Taliban were
not interested in him, he would not be safe in Karachi due to violence there
between Sindh and Pashtun people. The Applicant is of Pashtun ethnicity.
[9]
In submissions before the RPD, Applicant’s
counsel addressed the issue of a potential IFA in Karachi. First, addressing
the risk in moving to Karachi, counsel relied on the documentary evidence of
Taliban activity to submit that the Taliban have a very integrated network in Pakistan, including a stronghold in Karachi. Second, addressing the reasonableness of the Applicant
seeking refuge in Karachi, counsel relied on the documentary evidence to submit
that targeted killings are endemic in Karachi and have recently spiked, and
that due to the very serious violence between the Sindh and Pashtun in that
city, the Applicant’s Pashtun ethnicity would create a new area of risk if he
moved there.
[10]
The RPD released its decision on May 28, 2013,
refusing the Applicant’s claim on the basis that he had an IFA available to him
in Karachi.
III.
Issue
[11]
This matter raises the following issue:
1.
Did the RPD err in finding that the Applicant
had an IFA in Karachi?
IV.
Decision
[12]
The RPD released its decision on May 28, 2013,
finding that the claimant was neither a Convention refugee nor a person in need
of protection pursuant to sections 96 and 97(1) of IRPA.
[13]
The Board Member [Member] found that an IFA was
available to the Applicant in Karachi, and that this was determinative of his
claim. She outlined the two-prong test for determining whether a valid IFA
exists, which required her to consider (1) the possibility of persecution or
risk in the IFA location, and (2) the reasonableness, in all the circumstances,
of the claimant seeking refuge there.
[14]
Regarding the first prong of the IFA test, the
Board Member found that there was not more than a mere possibility that the
Applicant would be targeted by members of the Taliban in Karachi, and that he
could live safely in Karachi without fear of persecution or other cruel and
unusual treatment. She based her conclusion on the following findings:
a.
There was no credible evidence to indicate that
members of the Taliban were still interested in targeting the Applicant or would
pursue him in Karachi. For example, there was no evidence that they pursued him
before he left Pakistan, or that they approached his two younger brothers, who
still lived in the village. Furthermore, the Applicant testified that despite
not paying the demand, his family had not been threatened or harmed since
receiving the letter.
b.
Criminal activity that occurs generally in Karachi cannot be attributed, in a significant way, to the Taliban. The Taliban is
primarily involved in attacks on government forces in northern Pakistan, mainly in rural areas along the Afghanistan border. The violence in Karachi is mainly due
to political and ethnic rivalry and occurs primarily in the poor sections of
the city.
c.
There was persuasive documentary evidence
indicating that persons such as the Applicant would not be targeted by the
Taliban in Karachi. The Applicant does not fit the profile of someone the
Taliban primarily targets for harm.
[15]
Regarding the second prong of the IFA test, the
Member found that the Applicant could seek refuge in Karachi because it would
not be unduly harsh for him to reside there. Her reasons were the following:
a.
It would be easier for the Applicant to readjust
to life in a different locale in his home country than in Canada, where he was able to adjust to life in a new country with an unfamiliar culture and
language.
b.
The Applicant’s work history and educational
background suggest that it would not be unduly harsh for him to reside in Karachi, a city of some 23 million inhabitants.
c.
The Applicant is fluent in Pashto and Urdu.
V.
Relevant Provisions
[16]
The relevant provisions of sections 96 and 97 of
IRPA are attached as Annex A.
VI.
Submissions of the Parties
[17]
The Applicant submits that the RPD erred in
finding that the Applicant had an IFA available to him in Karachi, as the RPD’s
findings on the two prongs of the IFA test were inconsistent with the
documentary evidence.
[18]
With respect to the first prong of the test - in
which the Member concluded that there was no serious possibility of the
claimant facing persecution or risk to life or cruel and unusual treatment or
punishment or danger of torture in the proposed IFA – the Applicant submits
that the Member made an error of fact in finding that the crime in Karachi
cannot be attributed to the Taliban. He contends that the Member failed to
understand that the Taliban’s terrorist activity in the Northern areas and the
criminal activity in Karachi are interlinked, as the Taliban contract and
control many of the gangs that commit the targeted killings. Instead, she
found that there was general crime in Karachi, stating that the violence in Karachi is “mainly due to political and ethnic rivalry and occurs
primarily in the poor sections of the city” (Decision, Applicant’s
Record [AR], p 11, para 21).
[19]
The Applicant submits that the country
documentation shows that the Pakistani Taliban has shifted its focus out of the
tribal belt and is now more focused on major cities, including Karachi. The country documentation shows that the Pakistani Taliban is financed through criminal
activity that occurs in Karachi. The Applicant argues that since the
documentation clearly shows that the Taliban is active in Karachi, the RPD’s
analysis on the first prong is unreasonable, because the Taliban’s reach is far
greater than just the rural areas and northern Pakistan, as the Board found.
The evidence, rather, shows that many groups are under the control of the
Taliban (AR, pp 98-99, 163-164 and 200-201). Overlooking this evidence rendered
the Board’s conclusion unreasonable regarding the risks to the Applicant from
the Taliban in Karachi.
[20]
With respect to the second prong of the IFA test
– in which the Board concluded that the Applicant could reasonably seek refuge
in Karachi – the Applicant submits that the Board did not consider the unique
circumstances of the Applicant as a Pashtun person who would be destined to
Karachi and who has already been targeted by the Taliban. While the Member
acknowledged ethnic violence and targeted killings in Karachi, she did not
consider the effect the sectarian violence would have on the circumstances of
this particular individual, as a member of the Pashtun ethnic group. As with
the first prong of the IFA test, the Applicant states that the Board missed key
evidence, including evidence regarding the level of ethnic violence between the
Pashtun and Sindh, causing Pashtun people to leave Karachi, in the Board’s
Response to Information Request about violence in Karachi. The Applicant
submits that the Board failed to acknowledge or analyse this evidence.
[21]
Specifically, the Pashtun in Karachi live in
ethnic enclaves that are protected by the Taliban and its affiliated groups.
Due to the particular circumstances of this Applicant, he cannot live in these
Pashtun areas, lest he put himself amongst the agents of persecution; nor can
he live in non-Pashtun areas, where he risks being targeted for his Pashtun ethnicity
and will not be protected by the Taliban.
[22]
In contrast, the Respondent submits that the
RPD’s IFA finding was reasonable. The onus was on the Applicant to show that Karachi was not a viable IFA for him, and he failed to satisfy his legal burden in that
regard. The Applicant’s fears in Karachi are generalized and speculative.
Contrary to what the Applicant claims, the RPD considered his personal
circumstances, recognized the issue, and concluded that the violence in Karachi could not be attributed in a significant way to the Taliban.
[23]
First, the Respondent argues, it was reasonable
for the Member to find that the Applicant had failed to show that members of
the Taliban continued to have any interest in him or would pursue him in Karachi. In reaching this conclusion, the RPD considered that despite never paying the
demand money, the Applicant’s family, including his two younger brothers, had
not been approached, threatened or harmed by the Taliban since the Applicant
left Pakistan in May 2011.
[24]
Further, the Member was not persuaded that the
problems in Karachi were attributable in a significant way to the Taliban or
that the Applicant fit the profile of someone the Taliban primarily targets.
The Respondent contends that the Board Member indeed considered the documentary
evidence, but found that the Taliban is primarily involved in attacks on
government forces in northern rural areas and that violence in Karachi is mainly due to political and ethnic rivalry occurring in the poor sections of the
city.
[25]
Second, the Respondent submits that the test to
show that an IFA is unreasonable is a very high one, requiring actual and
concrete evidence of the existence of conditions which would jeopardize the
life and safety of the Applicant, and that test was not met in this case. Generalized
and random criminality and terrorist violence unconnected to an applicant’s
claim of a well-founded fear of persecution is insufficient to negate the
viability of an IFA (Velasquez v MCI, 2011 FC 804; Velasquez v MCI,
2009 FC 109).
VII.
Analysis
[26]
An IFA finding is a question of fact and is
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at paras 51, 53; Velasquez, 2009, above, at para 14).
[27]
To find that there is a viable IFA in a
particular location, the Board must be satisfied, on a balance of
probabilities, that both prongs of the two prong test set out above are met. That
is, first, there is no serious possibility of the claimant being persecuted in the
IFA region, and second, that in all the circumstances, including circumstances
particular to the applicant, conditions in the IFA location are such that it is
reasonable for the applicant to seek refuge there (Rasaratnam v Canada (MEI),
[1992] 1 FC 706 at para 10 (CA); Thirunavukkarasu v Canada (MEI), [1994]
1 FC 589 at paras 12-15 (CA)). Ultimately, the onus is on the Applicant to demonstrate
to the Board that Karachi is not a viable IFA.
[28]
I find that the Board’s finding on the first prong
of the IFA test – that the Applicant would not be persecuted by the Taliban in Karachi – was reasonable. It was open to the Board to find that there was no credible
evidence that the Taliban were still interested in the Applicant or that the
Taliban would pursue him in Karachi. It was also open to the Board to find that
the crime in the city was not attributable, in a significant way, to the
Taliban. As Applicant’s counsel pointed out for the Court, the documentary
evidence suggests that the Taliban have a presence in Karachi and are linked to
criminal activity there. However, there is also much evidence of ethnic
violence in Karachi, and there is insufficient evidence to link the bulk of the
ethnic violence, or indeed, the majority of the other violence in the city, to
the Taliban in particular. Although it would have been preferable for the
Member to acknowledge the evidence that there is at least some Taliban activity
in Karachi and that the Taliban’s networks extend through the Sindh province,
in which Karachi is located, the Member’s finding that the crime in Karachi is
not linked to the Taliban in a significant way is not contradicted by
the evidence.
[29]
However, I am not satisfied that the Board
adequately considered the second prong of the IFA test: whether in all the
circumstances, including circumstances particular to the Applicant, conditions
in Karachi were such that it was reasonable for the Applicant to seek refuge
there. My conclusion is similar to that in Sabir v MCI, [1998] FCJ No
1556 at para 12, where Justice Campbell found that since Karachi was raised by
the Convention Refugee Determination Division [CRDD] as a potential IFA, and
since the Applicant had raised ethnic persecution in Karachi in response, the
CRDD made an error by not making a finding on that point.
[30]
In this case, the Board raised Karachi as a
potential IFA and the Applicant submitted significant evidence to the Board of
ethnic violence in Karachi, including against persons of Pashtun ethnicity. In
analyzing the first prong of the IFA test (whether there is a serious
possibility the Applicant would be persecuted in Karachi), the Member
acknowledged the violence but discarded it on the basis that it could not be
attributed in a significant way to the Taliban.
[31]
In my view, whether the violence in Karachi is
perpetrated by the Taliban is relevant only to the first prong of the test as
it speaks to the presence and activity of the Taliban in the city, and so the
violence in Karachi – although it was discarded in the first prong of the test
– should have been considered in the second prong. To determine whether it is
reasonable for the Applicant to seek refuge in Karachi requires consideration
of the broader circumstances beyond the persecution that caused the Applicant
to flee his original location. The Board Member recognized this in the
beginning of her decision, where she wrote:
…If there is a safe haven for claimants in
their own country, where they would be free of persecution, they are expected
to avail themselves of it before they seek safety in Canada, unless they can
show it is objectively unreasonable or unduly harsh for them to do so…. [T]he
claimant cannot be required to encounter great danger or undergo undue hardship
either in travelling there or in remaining there. (RPD Decision, AR, p 8, para
10)
[32]
However, the Board Member failed in her analysis
to take account of the broader circumstances, including the personal
circumstances of the Applicant, when considering whether Karachi was a viable
IFA for him. In analyzing the second prong of the IFA test (reasonableness of Karachi as an IFA), the Member did not consider the ethnic violence against the Pashtun in
that city. Thus, in finding that it was reasonable for the Applicant – of
Pashtun ethnicity – to seek refuge in Karachi, she did not consider his safety
in staying there, although this was clearly raised in the evidence before her
and in counsel’s submissions (Certified Tribunal Record, pp 28, 207-210,
589-590, 605).
[33]
I recognize that this Court has found the
Board’s finding of a viable IFA in Karachi to be reasonable in the following
recent cases: Abid v Canada (Citizenship and Immigration), 2012
FC 483 at para 23; Gillani v Canada (Citizenship and Immigration), 2012
FC 533 at paras 19, 35; Rana v Canada (Citizenship and Immigration),
2012 FC 453 at para 44; Begum v Canada (Citizenship and Immigration),
2011 FC 10 at para 65; Malik v Canada (Citizenship and Immigration), 2010
FC 229 at paras 13, 18. However, in none of those cases did the applicant
submit to the Board that inter-ethnic violence in Karachi made it an unsafe
location for him or her. Further, only one of those cases (Begum) dealt
with an applicant who had submitted to the Board that she could not live safely
in Karachi for reasons other than the persecution she was fleeing (i.e. for
reasons relevant to the second prong of the IFA test, rather than the first). Unlike
in our case, it was clear in Begum that the Board had addressed under
the second prong of the IFA test the safety concern raised by the applicant to
determine whether it was reasonable for her to take refuge in Karachi: See
paras 54, 61-64.
[34]
The Respondent argues that the personal history
of this Applicant and his family shows that the Taliban are not still
interested in the Applicant. While this may be true, and persecution by the
Taliban is relevant to the first prong of the test, it does not address the
Board’s failure to consider the Applicant’s risk of ethnic violence in
determining whether it is reasonable for him to seek refuge in Karachi.
[35]
It may be that the Board ultimately finds
against the Applicant or the second prong of this test, but it is not the role
of this Court to undertake that analysis, which is wholly within the domain of
the Board.
[36]
In the absence of a finding on whether it was
reasonable under the second prong of the test for the Applicant to seek refuge
in Karachi despite the evidence of ethnic violence there, it was unreasonable
for the Board Member to find that Karachi was a viable IFA for the Applicant.
VIII. Conclusions
[37]
I find that the Board erred in finding that the
Applicant had a viable IFA in Karachi, having failed to properly consider the
second prong of the IFA test.
[38]
The parties proposed no questions for
certification and none arise.
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