Date: 19990115
Docket: IMM-1605-98
BETWEEN:
Muneer DARVESH
Farida BANO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM, J.
INTRODUCTION
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (Board) wherein the Board, on March 13,1998, determined the applicants are not Convention refugees in accordance with the Immigration Act (Act).
FACTS (as found in the Board"s decision)
[2] The applicants are husband and wife. Both are citizens of Pakistan. The applicants arrived in Canada on June 11, 1996 and made a refugee claim on July 3, 1996. They have a five year old son living in England with the female applicant"s parents. They have a one year old daughter who was born in Canada.
[3] The applicants resided in Dubai from 1992 to 1996, that is, to the time they arrived in Canada. In February 1996, the male applicant returned to Pakistan in order to help his brother who had been arrested, in Pakistan, in September 1995 under false charges for his involvement with the MQM, a political party existing in Pakistan.
[4] The applicant, by means of bribes, was able to obtain his brother"s conditional freedom in May 1996. After living in hiding, the applicant"s brother, in December 1996, escaped from Pakistan without going to Court.
[5] The applicants, at the time of the hearing, claim that they will be persecuted by the Pakistani policy and by other persons in authority as well as by members of the MQM Haqiqi by reason of their social group, their nationality, their race as well for their alleged political opinion. The male applicant fears being persecuted because of the fact that he is a Mahjair and for the fact that his brother left Pakistan in 1996 after being arrested and imprisoned. The male applicant alleges that if he were to return to Pakistan, he would be arrested and mistreated in order to force his brother to return to Pakistan.
[6] The applicants lived in Pakistan from 1986 to 1992 and in Dubai from 1992 to 1996. In March 1996, because of the fact the applicants were unable to renew their residence permit, the applicants had to leave the United Arab Emirate.
THE BOARD"S DECISION
[7] The Board concluded that the applicants are not Convention refugees for two reasons, absence of fear of persecution and the possibility of an internal flight alternative (IFA).
[8] At the hearing before me, the respondent does not deny that the Board erred when it found that the applicants did not have a fear of persecution if the applicants were to be returned to Karachi, Pakistan where the applicants are from. The respondent submits that the Board was correct in saying that the applicants have an IFA.
[9] The Board states:
| The panel determines that the claimants are not Convention refugees. |
| The panel does accept that the claimant has a subjective fear of persecution, but the testimony and documentary evidence does not lead the panel to believe that the claimant has an objective well-founded fear of persecution. Furthermore, the panel has determined that even if the claimant did have a well-founded fear of persecution in Karachi, there are internal flight alternatives available to the claimants within Pakistan. |
| Internal Flight Alternative (IFA) |
| The panel has determined that even if the claimant did have a well-founded fear of persecution in Karachi, he would be able to go elsewhere in Pakistan and live in relative security. The jurisprudence defines a two-pronged test for an internal flight alternative: |
| (1) (...) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. |
| (2) Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for him to seek refuge there. |
| Given that there is no warrant for the claimant"s arrest, the panel has determine that the claimant does not have a serious possibility of being persecuted elsewhere in Pakistan. The panel accepts that there is discrimination against Mohajirs in many areas of Pakistan, but that this does not amount to persecution. When asked about living elsewhere in Pakistan, the claimant"s answers regarding the difficulties he would face were primarily in relation to socio-economic considerations. Given that the claimant has lived previously in Jedda, Saudi Arabia, for four years and Dubai, U.A.E. for four years, the panel does not find it unreasonable to expect that the claimant would be able to adapt to another cultural milieu elsewhere in Pakistan. |
[10] It is important to note from the above that the Board is of the view that an IFA exists, in the present case, because the Board concluded from the male applicant"s answers regarding the difficulties he would face outside of Karachi would, primarily, be related to socio-economic considerations.
[11] I am satisfied that the Board seriously erred in this conclusion.
DISCUSSION
[12] In the case of Nagesu Kandiah et al. v. M.C.I., IMM-4310-97, August 31, 1998, F.C.T.D., Mr. Justice Gibson states the following , at page 3, as to the test for IFA:
| In Rasaratnam v. Canada (Minister of employment and Immigration), Mr. Justice Mahoney wrote at page 711: |
| In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there. |
| Thus, it is now well established that to find an IFA, a two-part test must be satisfied. On the facts of this matter, I can find no reviewable error on the part of the CRDD when it concluded that it was satisfied, |
| ... on a balance of probabilities, that there was no serious possibility of the [applicants] being persecuted in Colombo ... |
| I reach a different conclusion with respect to the CRDD"s determination that, |
| ... in all the circumstances including circumstances particular to [the applicants], conditions in Colombo were such that it would not be unreasonable for the [applicants] to seek refuge there. |
| In Thirunavukkarasu v. Canada (Minister of Employment and Immigration), Mr. Justice Linden commented with regard to the second branch of the test for an IFA: |
| An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. An barriers to getting there should be reasonably surmountable. |
[13] The evidence made by the male applicant, in regard to a possible IFA is found in pages 331 to 337 of the transcript of the hearing.
[14] The male applicant states he cannot live anywhere other than in Karachi because he is from Karachi (page 331) and that if he were to go to other areas in Pakistan, e.g. Punjab, his identity card would be checked and "the government has said that people who have come from one city to another they should be sent back to their city" (page 332).
[15] Furthermore, the following is said on pages 332 and 333:
| BY PRESIDING MEMBER (to person concerned) |
| Q. Excuse me sir. Are you aware of any documentation that supports that allegation that people are sent back to another city? |
| A. No, I don"t have any document about that. |
| - Okay. |
BY COUNSEL (to person concerned)
| Q. Not do you have any documents. Do you know of any documents that says that people who come from another city must be returned? |
| A. That time the statements were coming in the newspaper and the government was doing that. |
| BY PRESIDING MEMBER (to person concerned) |
| - Okay. (inaudible) to the panel is aware that you may have to identify yourself and it"s possible that once identified that your identity may be certified with your home city, but frankly, I don"t recall seeing any documentation that suggests that you could be forced to return to your home city. |
[16] It is clear from the above exchange that the male applicant states that he saw statements emanating from the government and reported in newspapers that persons would be sent back to their cities from whence they came, even if the Presiding Member does not recall "seeing any documentation that suggests that you could be forced to return to your home city".
[17] The fact that the Presiding Member does not recall seeing documentation
does not mean it does or did not exist.
[18] I am satisfied it was an obvious error on the part of the Board when it states in its decision that the applicants" fear in seeking an IFA is primarily socio-economic.
[19] I read the male applicant"s evidence as stating that his main fear is first being returned to Karachi, in addition to the socio-economic considerations.
[20] There appears to be no issue as to the credibility of the male applicant (see page 346). It therefore must be taken that what the applicant testified to under oath is to be taken as exact.
[21] Thus, I find it difficult to understand the Board"s failure to accept the fact that the applicants may be sent back to Karachi if and when it would be found out that the applicants were from Karachi.
[22] If, on the balance of probabilities, the applicants would be sent back to Karachi, where it appears the respondent accepts that the applicants would be persecuted, then, from the evidence, it would appear that the applicants may not have an IFA. This will be for a different Board to determine on the evidence placed before it.
CONCLUSION
[23] The judicial review application is allowed. The decision of the Board dated March 13, 1998 is set aside and the matter is referred to a newly constituted Board for redetermination.
[24] Neither party had a question to be certified.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
January 15, 1999