Date: 20000608
Docket: IMM-1517-99
BETWEEN:
AURANGZEB KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY J.
[1] The applicant seeks judicial review of a decision of the Immigration and Refugee Board of Canada, Convention Refugee Determination Division ("CRDD"), dated March 5, 1999, which found that the applicant was not a Convention refugee. The applicant was found to be credible and the CRDD agreed that he had a reasonable fear of persecution in Kashmir. He was not found to be a Convention refugee, however, because it was found that he had an internal flight alternative ("IFA") in the rest of Pakistan. The issue before the Court is whether the CRDD erred in finding that he had an IFA.
[2] The applicant raises ten issues in his memorandum of fact and law, filed in this application for judicial review. Determination of only three of those is sufficient to dispose of the application. Those three issues, as I paraphrase the applicant's descriptions, are as follows:
| A. Because Kashmir is a disputed, non-autonomous territory, did the CRDD err by finding that a Kashmiri from that portion of the territory subject to Pakistan's governance may have an IFA in Pakistan? |
| B. Did the CRDD err by finding, in the absence of evidence that the applicant would not be a subject of persecution by the Pakistani military within Pakistan, when it made no reference to his professed fear of persecution by the military authorities? |
| C. Did the CRDD make an erroneous finding of fact that was either perverse, capricious or without regard to the evidence when it concluded that the applicant had a Pakistani passport, and this created a rebuttable presumption, which the applicant did not rebut, that he was a citizen of Pakistan? |
Issue A: Status of Kashmir and an Internal Flight Alternative
[3] The Kashmir region is a disputed territory between India and Pakistan, divided by what is termed the "Line of Control". The area to the north and west of the line of control is controlled by Pakistan, while the southern two-thirds is controlled by India. Consideration of an IFA for persons from Kashmir depends upon the circumstances and the nature of the internal flight alternative.
[4] The Federal Court of Appeal reviewed the principles of IFA in Thirunavukkarasu v. MEI.1 In this case, Linden J.A. wrote:
| It should first be emphasized that the notion of an internal flight alternative (IFA) is not a legal defence. Neither is it a legal doctrine. It merely is a convenient, short-hand way of describing a fact situation in which a person may be in danger of persecution in one part of a country but not in another. The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee (see Mahoney J.A. in Rasaratnam, ([1992] 1 F.C. 706] supra, at page 710); it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country. As Mahoney J.A. stated in Rasaratnam, supra, at page 710: |
| [T]he 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. |
| Mr. Justice Mahoney continued, at page 710: |
| [S]ince by definition a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. |
| [emphasis added] |
The portion of Kashmir, Azad Kashmir, in which the applicant has a fear of persecution is controlled by Pakistan. The CRDD reached the following conclusions about the governing situation of that portion of Kashmir:
| The constitutional status of Azad Kashmir is described as anomalous. It is "neither a sovereign state nor a province of Pakistan but rather a local authority with responsibility over the area assigned to it under the 1951 ceasefire agreement." It has its own government that Pakistan considers independent although it is financially protected and administratively linked to Pakistan. There are two executive forums; the Azad Kashmir government in Muzaffarabad, the capital of Azad Kashmir, and the Azad Kashmir council in Islamabad. Pakistan retains jurisdiction over important areas and assigns Pakistani officials to all top civil and police administrative posts for three-year terms.2 |
[5] Azad Kashmir may be semi-autonomous, but the CRDD concluded that it is not a sovereign state. Notwithstanding the applicant's assertion that he is a citizen of Kashmir, the CRDD found that the applicant is a Pakistani citizen. This was based on the allegedly erroneous finding that the applicant had a Pakistani passport, a finding discussed below. He did indicate that he was a Pakistani national on his PIF and in the ordinary case it might be reasonable to conclude that he was a citizen of Pakistan. If the applicant were a Pakistani citizen, it is incumbent upon him to first seek refuge in his country of citizenship. If refuge can be found there, the applicant is not a Convention refugee. In my opinion, the CRDD's conclusion, if valid about his citizenship, would not be in error when it concluded that a Pakistani citizen from Azad Kashmir may have an internal flight alternative in Pakistan itself. But, as we shall see, the foundation for the CRDD conclusion about his citizenship is not supported by the evidence.
[6] In the circumstances of this case, the panel's decision that he has an IFA in Pakistan, based on an erroneous finding of fact without support in the evidence, constitutes an error warranting intervention of the Court.
Issue B: Possible persecution by the Pakistani military within Pakistan
[7] The applicant was found by the CRDD to be generally credible. The CRDD found that the applicant had a well founded fear of persecution by the authorities in Azad Kashmir based on his political opinion. The applicant avers that he testified that the authorities he feared were the Pakistani military, the Azad Kashmir government and his former party, the Jammu Kashmir Liberation Front ("JKLF"). The applicant submits that because one of the agents of persecution is the Pakistani military, a body that has authority throughout the country of Pakistan, it was an error in law for the CRDD to find that he would not face persecution in the rest of Pakistan. The applicant cites Sharbdeen v. MEI,3 where Mr. Justice Mahoney wrote for the unanimous Court of Appeal:
| Suffice it to say, we are of the opinion that the learned trial judge was correct in concluding that, having regard to all the circumstances here, the Refugee Division had erred in finding an IFA. Once a well-founded fear of persecution at the hands of the national army in a part of the country it controlled had been established, it was not reasonable to expect the Respondent to seek refuge in another part of Sri Lanka controlled by the same army. Such a finding would require an evidentiary base which the learned trial judge correctly found not to exist. |
One can only conclude that an individual has an IFA in the circumstances of this case if there is evidence before the CRDD that such an alternative clearly exists. This has been followed in Balasubramaniam v. MCI,4 also cited by the applicant. The applicant, Mr. Khan, argues that in this case there was no evidence of any reduced risk of persecution within Pakistan. Instead, the CRDD placed the onus on the applicant to show risk:
| With respect to the burden of proof, the onus is on the claimant to demonstrate that he does not have an IFA. The panel finds that the claimant has failed to show that areas of Pakistan outside Azad Kashmir would not provide the claimant with an IFA. ... |
| The Panel concludes that it would not be unreasonable, in all the circumstances, including those particular to the claimant, that he seek refuge in Pakistan in those areas outside of Azad Kashmir.5 |
[8] From a careful reading of the CRDD's decision, it is clear that the CRDD made no finding about the applicant's expressed fear of persecution by the Pakistani military, indeed that is not referred to in the decision as an agency of the authorities the applicant feared. The CRDD concluded that the applicant had a well-founded fear of persecution from "the authorities in Azad Kashmir" and that he fears the JKLF. The applicant did give evidence that he feared the Pakistani military and, in my opinion, the CRDD erred in not addressing the possibility of persecution at the hands of the Pakistani military. The applicant's claim hinged upon the question of IFA and, as the Court of Appeal has held, the question of persecution by national authorities is central to the determination of this issue. It was, in my opinion, a reviewable error that the CRDD failed to address this aspect of the applicant's claim.
Issue C: Error with regard to the applicant's passport
[9] The applicant argues that the CRDD made an erroneous finding of fact that was either perverse, capricious or without regard to the evidence when it concluded that the applicant had a Pakistani passport, which was the expressed foundation of its finding that he was a citizen of Pakistan. The applicant did not state to the CRDD or in his PIF that he had such a passport; instead, he stated in his PIF that he had never applied for a passport or travel document, and that he travelled to Canada on a British passport provided by his smuggler. The respondent concedes that the CRDD made an erroneous finding, but argues that it was a finding of fact that was of no consequence. The CRDD could have concluded that the applicant was a Pakistani citizen from his PIF.
[10] It is my opinion that the CRDD did err in this regard. It was a finding that is perverse and was made without any basis in the evidence. Because the applicant's citizenship is of critical importance in the CRDD's determination of an IFA, I conclude that the decision should not stand.
Conclusion
[11] For the above reasons, the impugned decision of the CRDD is set aside and the applicant's claim for Convention refugee status is sent back for redetermination by a differently constituted panel of the CRDD.
Certified Question
[12] Following the hearing, on November 12, 1999, the applicant submitted the following question for certification under subsection 83(1) of the Immigration Act:
| Since Kashmir is not within the internationally recognized boundaries of Pakistan, can an Internal Flight Alternative apply to Pakistan for Kashmiris? |
Since the application is allowed and the decision of the CRDD is set aside, this question does not arise for consideration as a basis for appeal to the Court of Appeal. No question is certified.
| Judge |
OTTAWA, Ontario
June 8, 2000
__________________2 CRDD decision, p. 5 [references to authorities omitted].
3 (1994), 23 Imm. L.R. (2d) 300, [1994] F.C.J. No. 371 (C.A.).