Decision TB7-01837 (Jurisprudential Guide, in private), Heard at Refugee Appeals Division, Toronto, Ontario

Table of Contents:

Policy note for identification of TB&-01837 as a RAD Jurisprudential Guide

Full text of Decision TB7-01837 - Jurisprudential Guide

Policy Note for identification of TB7-01837 as a RAD Jurisprudential Guide

The Immigration and Refugee Protection Act ("the Act") requires the Immigration and Refugee Board ("IRB") to "…deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit."^{Footnote 1} Ensuring the fair and efficient determination of refugee claims before the Refugee Protection Division ("RPD") and appeals before the Refugee Appeal Division ("RAD") is of great importance to the Board. The fair and efficient treatment of claims and appeals is essential to the IRB dealing with a significant backlog in the refugee determination continuum. The issuance of Jurisprudential Guides is meant to facilitate decision-making in both Divisions in a manner that meets the twin requirements of fairness and efficiency, enabling the IRB to discharge its statutory obligation set out above.

As indicated in the IRB's Policy on the Use of Jurisprudential Guides (Policy 2003-01, as amended on December 1, 2016) ("the Policy"), RPD and RAD members are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so.

Decision TB7-01837 provides a detailed, clear, and sound analysis of state protection and internal flight alternative for Ahmadi claims from Pakistan. The application of this Jurisprudential Guide in cases with similar facts will result in a consistent, fair, and efficient treatment of this issue by both the RPD and the RAD.

Therefore, on July 18, 2017 pursuant to section 159(1)(h) of the Act, and after consultation with the Deputy Chairpersons of the RPD and RAD, the Chairperson of the IRB identified the following RAD decision as a Jurisprudential Guide:

• TB7-01837
  Scope: Whether the treatment experienced by Ahmadis from Pakistan amounted to persecution and whether state protection and an internal flight alternative are available.

Decision TB7-01837 thoroughly analyzes the determinative issues that arise when considering whether the state-sanctioned restrictions faced by Ahmadis in Pakistan amount to a denial of freedom of religion that constitutes persecution. In TB7-01837 the RAD provides a reasoned explanation as to why there is an absence of both state protection and a viable internal flight alternative for Ahmadi claimants from Pakistan.

This Jurisprudential Guide guides RPD members (including members dealing with Legacy claims), in appropriate circumstances, to adopt the RAD's approach to the analysis of state protection and internal flight alternative, or to explain why it is not applicable. It is intended to assist RPD members in narrowing the issues to be determined in hearings and will promote fairness, consistency, and efficiency in writing reasons.

This Jurisprudential Guide also guides RAD members, in appropriate circumstances, to adopt this approach to the analysis of state protection and internal flight alternative, or to explain why it is not applicable. It is intended to assist RAD members in narrowing the issues to be determined on appeals and will promote fairness, consistency, and efficiency in writing reasons.

The key determination in this Jurisprudential Guide is a determination of mixed law and fact. In order to ensure this Jurisprudential Guide remains relevant and useful to the work of the RPD and RAD, the Research Directorate of the IRB is required to monitor and report to the RAD Deputy Chairperson any developments in the country of origin information that could have an impact on the factual foundation that underlies this Jurisprudential Guide.

Source: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/notes/Pages/NoteTB7-01837.aspx

Full text of Decision TB7-01837 - Jurisprudential Guide

Private Proceeding

Reasons and Decision

Person(s) who is(are) the subject of the appeal:

XXXX XXXX

Appeal considered / heard at:

Toronto, Ontario

Date of decision:

May 8, 2017

Panel:

Edward Bosveld

Counsel for the person(s) who is(are) the subject of the appeal:

Elyse Korman

Designated Representative(s):

N/A

Counsel for the Minister:

N/A

Reasons for Decision

[1] XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.

Determination

[2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed.

Background

[3] The Appellant alleged before the RPD that she is a devout member of the Ahmadi religious minority in Pakistan, and that she fears persecution in her country of origin because of her faith.

[4] The Appellant's application for refugee protection was heard on November 3, 2016. By a decision of December 20, 2016, the RPD rejected the claim. The panel accepted the Appellant's national identity as a citizen of Pakistan and her religious identity as an Ahmadi. However, it cited a number of credibility concerns, found that the Appellant had no particular profile as an Ahmadi, and concluded that she also lacks subjective fear. The RPD acknowledged the existence of laws targeting the Ahmadi minority but found that "this does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee."^{Footnote 1}

[5] The Appellant submits that the RPD erred in finding that she can freely practice her religion in Pakistan, in making unsustainable credibility findings, in concluding that she lacks subjective fear or an objective basis for such fear, and in failing to conduct an analysis under section 97 of the IRPA. She also points out that the same RPD member has previously rendered very similar decisions which were overturned by the RAD in strongly-worded decisions.

Analysis

The Role of the RAD

[6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.

[7] The Appellant makes no specific submissions on the standard of review to be applied here.

[8] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.^{Footnote 2}  Such an appeal 

(i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.^{Footnote 3}

[9] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.^{Footnote 4}

[10] The RAD will review the RPD's decision on a standard of correctness, showing deference only where the RPD had a meaningful advantage in making a finding. Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached.

The RPD's Findings

[11] The Appellant argues that the RPD made various errors in rejecting her claim.

Credibility findings

[12] The RPD found credibility to be a key issue, and considered the Appellant's evidence about being harassed at school when she was a child. The RPD member questioned the Appellant at some length about the proportion of Ahmadis and non-Ahmadis in her elementary classes or those of her children. The RPD cited objective evidence that non-Ahmadi children were not allowed in area schools while the Appellant was in school, and concluded that the Appellant's evidence was not trustworthy. The RPD also found that it "stretches the imagination that in every class for each of her children's school years that all classes were half non-Ahmadi who harassed each of her children in each of their respective school years."^{Footnote 5}

[13] The Appellant submits on appeal that she never said half her classmates were non-Ahmadi; rather, she testified that in 1974, the Ahmadi-majority city of XXXX was declared open to non-Ahmadis, many of whom subsequently moved into the city. She argues that the only reference she made about the number of non-Ahmadi students was with respect to her son's class during his last year of school.

[14] While the RPD has a meaningful advantage over the RAD in assessing the credibility of oral testimony, the RPD's findings must nevertheless be based on the evidence. The RAD has reviewed the audio recording of the RPD hearing as well as the transcript provided by the Appellant. There is nothing in the evidence to indicate that the Appellant testified about half of her classmates being non-Ahmadi; when pressed by the RPD member, she estimated that about half of her son's classmates were non-Ahmadi in his last year of school.^{Footnote 6} The RPD's credibility finding here is not supported by the evidence and is therefore wrong.

[15] The RPD also considered the Appellant's testimony about one of her sons, a XXXX and XXXX, and found it "not credible that [he]… would be able to restrict his movements to seldom going out and only at night."^{Footnote 7} With respect, this is not a matter of credibility but rather a finding of implausibility, to which the RAD owes no deference. In any event, this finding too is based on misconstrued evidence. In fact, the Appellant testified that her son did not go out at night, though the transcript indicates that the RPD member may have misunderstood this:

Appellant: The situation in XXXX is pretty bad because the mullahs they take out processions against Ahmadis. They come and chant slogans against Ahmadis. The situation is not very safe in XXXX. So therefore, my son avoids going during the night.

RPD Member: Going out during the night?

Appellant: Yes.

RPD Member: How can he go out during the night when he is XXXX?

Appellant: He XXXX during the day but the danger is people coming from outside XXXX, so he avoids going out when it is dark.^{Footnote 8}

[16] The RPD's implausibility finding here is based on a misapprehension of the evidence and is therefore wrong.

[17] The Appellant alleged in her Basis of Claim (BOC) narrative that she feared being charged under Pakistan's blasphemy laws. The RPD found, however, that "at no point during the hearing did the claimant volunteer such fear."^{Footnote 9} In fact, the Appellant was asked by her counsel, "What could happen if the wrong person were to find out that you are Ahmadi?" The Appellant replied, "Anything could happen if such person would come to know about it and they can falsely put allegations of blasphemy on us."^{Footnote 10} The RPD's analysis here is again not based on the evidence.

[18] The RPD identified credibility as a "key issue in this claim," and "found much of the claimant's testimony to be implausible, giving rise to enough reason to rebut the presumption of truthfulness on her part."^{Footnote 11} However, the credibility findings are simply wrong, and the RPD has not provided any explanation of why it found much of the testimony to be implausible.

Subjective Fear

[19]  The RPD noted that the Appellant left Pakistan on more than one occasion to live with relatives in India, which is not a signatory to the refugee Convention. The RPD faulted the Appellant for failing to make inquiries about remaining in India. Further, she did not attempt to come to Canada until after two of her sons had arrived and been granted refugee status. The RPD found the Appellant to be lacking in subjective fear: she did not attempt to stay in India, she repeatedly returned to Pakistan, and when she arrived in Canada, she delayed in making a refugee claim for some months. Her explanation for the delay was that she did not want to jeopardize the visa application of her daughter-in-law's mother, who also sought to flee Pakistan. The RPD considered this an attempt to "manipulate the system" in Canada,^{Footnote 12} and further concluded that the Appellant was engaged in a "blatant abuse of the refugee protection system and must be dealt with under immigration law and not refugee law."^{Footnote 13}

[20] The Appellant submits that delay in departure is not usually determinative of a claim for refugee protection. Where that claim is based on a number of persecutory acts that take place over a long period of time, delay in departure is not a reasonable basis to doubt subjective fear. The Appellant explained to the RPD that she does not have status in India, nor does she have rights to status through her parents; in addition, her husband and children were in Pakistan. After her husband died in 1988, she struggled to raise four sons alone, and had no choice but to wait for them to establish themselves abroad so that they could bring her to safety. Her five visa applications illustrate her determination to leave Pakistan, and her delay in claiming in Canada was reasonable as she did not want to jeopardize the ability of her daughter-in-law's mother to flee Pakistan.

[21] In the RAD's view, the RPD was required to consider the cumulative and escalating nature of the feared persecution when assessing the Appellant's subjective fear. The Appellant experienced discriminatory and persecutory incidents throughout her life in Pakistan; she notes in her BOC narrative that the situation deteriorated over the years, especially after large-scale attacks on Ahmadis in 2010. One son left in 2008, and another in  2012. The Appellant applied for visas in XXXX 2013, XXXX 2014, XXXX 2014, and XXXX  2015, before finally receiving a visa in XXXX of 2016.^{Footnote 14} In Ibrahimov, the Federal Court wrote,

…when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution. Cumulative acts which may amount to persecution will take time to occur. If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay, undermines the very idea of cumulative persecution.^{Footnote 15}

[22] It was therefore an error for the RPD to fault the Appellant for failing to remain in India – where she has no status, has no right to status, and which is not signatory to the refugee Convention – or for returning to Pakistan, or for failing to leave Pakistan at an earlier date.

[23] The RPD also erred in rejecting the Appellant's explanation for her delay in claiming. The Appellant had considerable difficulty in obtaining a Canadian visa; she was concerned that, if she immediately made a refugee claim, this would prevent another family member from obtaining a visa. While the RPD clearly disapproved of what it viewed as a manipulation of Canada's asylum system, this does not change the fact that the Appellant was in status in Canada and that there was no risk to her in waiting a few months to claim. Conversely, she believed that there was a risk to another Ahmadi woman if the Appellant were to promptly file a refugee claim. While the RPD may have disapproved of the Appellant's motives, her actions here simply do not indicate a lack of subjective fear.

[24] The RPD erred when it found the Appellant to be lacking in subjective fear.

Objective Basis and Religious Persecution

[25] In the RAD's view, the key issue in the Appellant's refugee claim was her risk of persecution as an Ahmadi. The RPD's analysis of this issue is puzzling and problematic.

[26] The RPD noted the Appellant's testimony that "she would like to discuss openly or preach her Ahmadi religion but only discussed her religion with people she trusts, otherwise she hides her religion." The panel correctly observed that "any person wishing to manifest their faith openly should be able to do so," but then inexplicably concluded that "there is nothing in this claimant's evidence that would persuade this panel that the claimant had any desire to proselytise or hold religious conversations with non-Ahmadis."^{Footnote 16} The RAD simply cannot understand this analysis, which appears to be internally inconsistent: if the Appellant testified that she would like to openly preach her religion, how could the RPD find no evidence of any desire to proselytise or hold religious conversations?

[27] The RPD considered the Appellant's evidence that she stopped attending the main mosque in 2010 after two violent attacks on Ahmadi places of worship. It noted that her prayers were interfered with by abusive anti-Ahmadi messages broadcast over loudspeakers from the Sunni mosque. As discussed above, it was aware of her testimony that she wished to openly discuss her faith but could not. The RPD referred to objective evidence that religious minorities in Pakistan, including minorities, are "subject to societal abuses, discrimination and/or persecution at the hands of extremists and/or the authorities." It also observed that "Ahmadi Muslims continue to be victimized, with the May 2014 murder of a Canadian-American Ahmadi conducting humanitarian work and the recent mob attack on an Ahmadi home serving as a graphic reminder of their vulnerability…."^{Footnote 17} Despite all of this evidence, it somehow concluded that there is not a serious possibility that the Appellant will be persecuted for a Convention ground.

[28] The UNHCR Handbook states, with respect to religion, that:

71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72. Persecution for "reasons of religion" may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.^{Footnote 18}

[29] The Handbook also speaks to the difference between discrimination and persecution:

It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.^{Footnote 19}

[30] In Rajudeen, the Federal Court of Appeal adopted this definition of religious persecution: "To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."^{Footnote 20}

[31] Having accepted that the Appellant is Ahmadi, the RPD was obligated to consider whether the treatment of Ahmadis in Pakistan, including the Appellant,  constitutes persecution on the basis of religion.

[32] There is important evidence in the record with respect to Ahmadis which was not discussed by the RPD. The constitution of Pakistan was amended in 1974 to declare Ahmadis as "non-Muslim;" ten years later, the criminal code was amended to make it a crime for Ahmadis to refer to themselves as Muslims or to practice or propagate their faith as Muslims. When applying for an identification card or passport, all Pakistanis must sign an oath rejecting the founder of the Ahmadi religion and declaring that Ahmadis are non-Muslims. Ahmadis have faced prosecution under Pakistan's blasphemy laws, and the mere accusation of blasphemy leads to mob attacks and lynchings. Ahmadis have been arrested for reading the Quran and for using Quranic verses on rings and wedding cards. Ahmadis face severe societal discrimination, and societal attitudes have become increasingly hostile in the past decade. Some anti-Ahmadi groups have organized rallies where they described the killing of Ahmadis as a religious obligation. There have been numerous acts of violence against Ahmadis and the police have a poor track record of providing protection.

[33] Ahmadis are marginalized and excluded from the political system because, in order to register as a voter, they are required to sign a declaration about the finality of the prophet Muhammad, with which they cannot agree. Students applying for university must, if identifying themselves as Muslim, sign a similar declaration, which excludes Ahmadis. University teachers have called for the killing of Ahmadis, and students who objected to this were expelled. The Pakistani government proactively victimizes Ahmadis socially, economically, and educationally, to the point where livelihoods become difficult.^{Footnote 21}

[34] In this case, as in previous decisions, the RPD wrongly applied a too-narrow definition of persecution. The RPD focused on physical violence, and appeared to conclude that the Appellant will not be harmed or killed because of her religion. However, the RPD did not undertake a serious analysis of whether the restrictions faced by Ahmadis, including the Appellant, amount to a denial of the fundamental right to freedom of religion.

[35] Freedom of religion includes the right to manifest one's religion in practice, including in public, a freedom not enjoyed by Ahmadis in Pakistan. They face measures which lead to consequences of a substantially prejudicial nature, including the prohibition against describing themselves as Muslims, difficulty in applying for documents and for entrance to educational institutions, interference in mosque attendance and prayer, and a prohibition on proselytizing. Even if Ahmadis faced no threat of physical harm – and the evidence indicates that there is indeed such danger – there is considerable evidence to support the argument that they experience religious persecution.

[36] The RAD finds that the Appellant faces serious restrictions on the practice of her religion. She  need not establish that she will be physically harmed. The evidence shows that she may not describe herself a Muslim; that she must deny her faith – choosing to either be Muslim or Ahmadi, but not both - to obtain documents or gain admission to government institutions; that she wishes to speak publicly of her faith, but is prohibited from doing so; that her prayers are deliberately interfered with by hate-spewing loudspeakers; that she could not attend a particular mosque because of the threat of violence; and that she risks prosecution under the blasphemy laws.

[37] The RPD stated that "the mere existence of laws targeting a specific religious group in this case Ahmadi does not necessarily give good grounds for fearing persecution. If that were the case every Ahmadi would be a refugee."^{Footnote 22} While the mere existence of persecutory laws may not be enough to establish a refugee claim, the RPD is required to look beyond the existence of those laws and to consider whether and how they are implemented, and what other measures and practices may impact on a refugee claimant's freedom of religion.

[38] It is not for the RPD, or the RAD, to determine whether "every Ahmadi would be a refugee," though it is not uncommon for an entire group to be considered at risk of persecution in a particular country due to their profile, whether that be for reasons of sexual orientation, ethnicity, or religion. However, in considering claims such as that of the Appellant, the RPD is obligated to correctly apply the definition of religious persecution to the evidence, and to avoid restricting that definition to physical harm.

[39] Having considered the evidence, the RAD finds that the Appellant faces a serious possibility of persecution on account of her Ahmadi religion. As the state is one of the leading agents of persecution, the Appellant cannot expect adequate state protection. As the persecutory laws, measures, and practices exist in all areas of Pakistan, the Appellant cannot avail herself of a viable internal flight alternative.

Conclusion

[40] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed.

Signed:

Edward Bosveld

Date:

May 8, 2017