Citation: 2020 RLLR 33
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2020
Panel: Samantha Bretholz
Counsel for the Claimant(s): Tony Manglaviti
Country: Pakistan
RPD Number: MB8-20495
ATIP Number: A-2021-00655
ATIP Pages: 000016-000023
REASONS FOR DECISION
INTRODUCTION
[1] [XXX] (the Claimant), a citizen of Pakistan, claims refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA)1.
ALLEGATIONS
[2] The Claimant alleges that he was working in the United Arab Emirates (UAE) as a [XXX] while his wife and son were residing in Pakistan with his parents and siblings. The Claimant discussed how there was a general atmosphere of apprehension over [XXX] in the UAE, as foreign workers were beginning to be replaced with local Arab employees. On one of his biannual trips to visit his family in [XXX], Pakistan, he befriended [XXX] (the Mullah), a cleric at the mosque in his village, given that he was of the view that in the, not too distant, future he might be sent back to Pakistan from the UAE and he was looking to make connections in his home town. He developed a relationship with the Mullah and he introduced the Claimant to [XXX] ([XXX]) while on a subsequent trip to Pakistan in [XXX] 2018. The Claimant stated that [XXX] tried to pose himself as a scholar of Islam and contemporary issues, and they would speak about the greatness of Jihad.
[3] The Claimant returned to the UAE in [XXX] 2018 to continue working. In [XXX] 2018, the Claimant stated that he received a call from [XXX] asking him to donate one million rupees for the Taliban Jihad. The Claimant refused, stating that the Jihad of [XXX] is sedition, and he would not pledge one penny to this cause. The Claimant stated that [XXX] responded by stating that the Taliban would have to now get involved to handle this case.
[4] On [XXX], 2018, the Claimant stated that his family in [XXX] received a letter from the Taliban stating that if he did not pay, then they would kill him upon his return to Pakistan. In [XXX] 2018, the Claimant alleges to have received a call while in the UAE telling him to pay and that if he didn’t comply there were people in the UAE that would take care of him. The Claimant stated that the caller accurately described his daily movements, visits and schedule which led him to believe that he was being watched and followed in the UAE. Fearful that both his job was not secure and fearing for his life in Pakistan, the Claimant left the UAE for the United States of American on [XXX], 2018, to claim asylum.
[5] Following his departure from the UAE, the Claimant alleges that the Taliban issued a fatwa (the Fatwa) against him stating that he was a kafir (an infidel), they have added his name to a “hit list” and information about him has been passed on to their expansive networks throughout Pakistan to find and kill him. Following the issuance of the Fatwa, the Claimant stated that police attended at his family’s home in [XXX] looking for the Claimant, and stated that he is to appear at the police station for the purposes of investigating a religious complaint. He further asserts that the police continue to attend at his family’s home every 3-6 months looking for him.
[6] In an amendment to his Basis of Claim form (BOC)2, the Claimant advanced that in [XXX] 2020 his relatives stated that the Fatwa was being distributed at a mosque in Karachi, which is located at the other end of Pakistan, over [XXX] km away from [XXX].
[7] The Claimant fears the Mullah, [XXX], the Taliban, the Pakistani police and now the general population who would glean favour for killing an infidel.
DETERMINATION
[8] Having considered the evidence and the Claimant’s testimony in its entirety, the Panel concludes that the Claimant has established a serious possibility of persecution, based upon his imputed religious opinion.
[9] For the reasons that follow, the Panel finds that the Claimant is a “Convention refugee” under Section 96 of the IRPA, and accepts his claim.
ANALYSIS
Identity
[10] The Claimant’ s personal and national identity as a citizen of Pakistan is established, on a balance of probabilities, by way of a certified true copy of his Pakistani passport, including the United States Visa that the Claimant used to travel to the United States3.
Credibility
[11] The Panel finds the Claimant to be a credible witness and believes, on a balance of probabilities, the key allegations of his claim. The Claimant testified in a straightforward, spontaneous, detailed, and sincere manner. The Panel did not find that the Claimant embellished his story or tried to exaggerate the allegations during his testimony.
[12] The Panel also noted that there were no significant contradictions, inconsistencies, or omissions between the Claimant’s Basis of Claim BOC, his testimony at the hearing or the documentary evidence submitted. The testimony of the Claimant also included additional details which were not in the BOC and added to the credibility of the story.
[13] The Claimant spoke and wrote in detail about his views of Islam. He is more open-minded, liberal and egalitarian given the years he has spent in a more moderate society, in the UAE. He described the various threats against him which began with demands, then led to telephone calls, visits by the police and ultimately culminated in the issuance and distribution of a fatwa.
[14] The Panel believes, on a balance of probabilities, that the Claimant is targeted and continues to be targeted by the Mullah, [XXX], members of the Taliban and the police (collectively, the Agents of Persecution). Given that there was an announcement at the local mosque declaring that a fatwa was issued against the Claimant by the Taliban, the Claimant contends that he can become a target of any extremist who believes it is their duty to kill him in the name of religion.
[15] In furtherance of the foregoing, the Claimant also disclosed a number of supporting documents, including a letter from the Taliban4, the Fatwa5, a letter from his Pakistani lawyer6, an affidavit from his father7 and his wife8, and a recent letter of public gathering with the Mullah and XXXX as guest speakers9, all of which are uncontradicted and which corroborate the Claimant’s testimony.
Objective Evidence
[16] The objective documentary evidence provides that blasphemy and other offences relating to religion are criminalized in Pakistan under Articles 295 and 298 of the Pakistan Penal Code. Punishment for blasphemy is death10. “The introduction of the blasphemy laws in the [Pakistani] Penal Code has reportedly fostered an atmosphere of religious intolerance (…). The blasphemy laws have also come under strong criticism for fuelling extremist violence and targeted attacks against individuals from religious minority groups11.” “In 2017, the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred and discrimination against minority groups. The HRCP noted the government failed to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences12.”
[17] While Pakistani’s blasphemy laws purport to protect religious sentiments, sources have expressed concerns over the use of the laws by individuals apparently for other motives. These motives might include, and consistent with the case at hand, personal or religious disputes. The effect of these laws violates the rights to life, freedom of thought, conscience and religion or belief, and freedom of opinion and expression13.
[18] Further, the law has been described as vaguely formulated, and enforced by the police, prosecutors, and judiciary in proceedings that often violate the right to a fair trial, including the fundamental principle of presumption of innocence where prosecution proceed on the basis of unfounded accusations by complainants. Death sentences have been imposed, in violation of international law, on people convicted of blasphemy14.
[19] Religious clerics, such as the Mullah in the foregoing case, hold significant power in the registration of blasphemy cases. Their opinions are frequently sought by complainants, and often also by the police as part of their investigation. Faced with pressure from religious clerics and their supporters, the police may forward a case to the prosecutor on the basis of insubstantial evidence. Police rely on fatwas from local clerics to determine whether the allegations amount to blasphemy, even though they have no legal evidentiary value15.
[20] The laws have created an environment in which some people, including complainants and their supporters in blasphemy cases, believe themselves entitled to take the law into their own hands, while the police stand aside. The laws have been used as a cover for perpetrators of mob violence16. There is a lack of a consistent, robust and timely response by the authorities to situations of such violence. The lack of response, and the failure to prosecute rigorously and promptly those responsible, leads to a climate of impunity for perpetrators of further such attacks17.
[21] Given the foregoing, together with the numerous articles on blasphemy provided by counsel18, the Panel finds that the Claimant’s allegations are consistent with the objective evidence and therefore the Panel concludes that his subjective fear is objectively well founded. In addition to the articles on blasphemy, counsel also submitted numerous articles regarding the continued pervasiveness of the Taliban in Pakistan19.
[22] The Panel concludes that the Claimant has met his burden of proof and has demonstrated that he would face a serious possibility of persecution based on a Convention ground if he returns to Pakistan.
State Protection
[23] The Claimant fears religious fundamentalists/extremists, in particular the Taliban, the Mullah and [XXX]. The Panel notes that the documentary evidence provides that there is a general lack of rule of law in Pakistan20, including a lack of due process, poor implementation and enforcement of laws and frequent mob violence and vigilante justice with limited accountability21.
[24] The power wielded by the religious clerics, combined with the high level of corruption within the police force and the lack of political will in Pakistan to address said corruption leads the Panel to conclude that adequate state protection would not reasonably be likely to be forthcoming to the Claimant, should he return to Pakistan. Therefore, the Panel finds that the Claimant has rebutted the presumption of adequate state protection.
Internal Flight Alternative (IFA)
[25] The Panel finds that the Claimant has a credible fear of being persecuted by Muslim extremists, including the Taliban, throughout Pakistan and that, therefore, there is no possibility of a viable internal refuge anywhere in that country. The Panel is guided by the documentary evidence which provides that if the agents of persecution are armed militant groups, they may not be safe anywhere due to their wide geographical reach22. The Taliban is a major terrorist group in Pakistan focused on conducting terrorist attacks against the military and civilians in Pakistan23. Growing religious extremism in Pakistan threatens its security and stability, as well as freedom of expressing and other fundamental human rights24. Besides the militant groups’ ability to find the Claimant, there are examples in the documentary evidence where vigilante justice was perpetrated against people accused of blasphemy by religious clerics.
[26] Given the totality of the foregoing, the Panel finds that the Claimant has a credible fear of being persecuted throughout Pakistan and that, therefore, there is no possibility of a viable IFA anywhere in that country.
CONCLUSION
[27] Having considered the evidence, including the relevant documentary evidence and the Claimant’s testimony, the Panel determines that the Claimant would face a serious possibility of persecution should he return to Pakistan based on his imputed religious opinion.
[28] The Panel, therefore, finds that the Claimant is a “Convention refugee” pursuant to section 96 of the IRPA.
[29] The Panel, therefore, accepts his claim.
(signed) Samantha Bretholz
December 7, 2020
1 Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
2 Document 2-Basis of Claim Form (BOC). Document 4-Exhibit C-1: Update to the BOC of [XXX].
3 Document 1-Package of Information from the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Passport.
4 Document 4-Exhibit C-3: TTP Letter.
5 Document 4-Exhibit C-4: TTP Fatwa.
6 Document 4-Exhibit C-6: Lawyer Letter.
7 Document 4-Exhibit C-7: Affidavit from [XXX].
8 Document 4-Exhibit C-8: Affidavit from [XXX].
9 Document 4-Exhibit C-5: Notice Public Gathering.
10 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.13: DFAT Country Information Report: Pakistan, Australia, Department of Foreign Affairs and Trade, 20 February 2019.
11 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.8: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, United Nations High Commissioner for Refugees, January 2017, HCR/EG/PAK/17/01.
12 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.13: DFAT Country Information Report: Pakistan, Australia, Department of Foreign Affairs and Trade, 20 February 2019.
13 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 12.31: “As Good as Dead“: The Impact of the Blasphemy Laws in Pakistan, Amnesty International, 21 December 2016, ASA 33/5136/2016.
14 Ibid.
15 Supra, note 14.
16 Supra, note 14.
17 Supra, note 14.
18 Document 4-Exhibit C-11: Documents regarding Blaphesmy.
19 Document 4-Exhibit C-10: Documentary Evidence Taliban.
20 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 2.1: Pakistan. Country Reports on Human Rights Practices for 2019, United States, Department of State, 11 March 2020.
21 Ibid.
22 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.17: Country Policy and Information Note. Pakistan: Christians and Christian converts. Version 3.0, United Kingdom, Home Office, September 2018.
23 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 1.6: Pakistan: Country Report, Asylum Research Centre, 18 June 2018.24 Document 3-National Documentation Package, Pakistan, 31 March 2020, tab 12.4: Pakistan. United States Commission on International Religious Freedom 2019 Annual Report, United States, Commission on International Religious Freedom, April 2019.