Ahmed v. Canada

Counsel:
Max Berger, for the applicant.
Kevin Lunney, for the respondent.

1. HANSEN J. (Reasons for Order and Order, orally):— This is an application for judicial review of the Immigration and Refugee Board’s (“the Board”) decision dated May 19, 1999 in which it was determined that the applicant is not a Convention refugee.
2. As the outcome of this judicial review is based on the issue of notice to the applicant of an internal flight alternative (“IFA”), it is not necessary to review the facts in detail.
3. The applicant, a 24 year old citizen of Pakistan who resided in the area of Gujrat, claimed Convention refugee status on the basis of a well-founded fear of persecution by reason of his political opinion and membership in a particular social group, namely the Peoples’ Party of Pakistan (“PPP”) and the Peoples’ Student Federation (“PSF”). He alleges he suffered persecution at the hands of the Muslim Student Federation (“MSF”) and the Pakistan Muslim League (“PML”) because of his political activities. He also states he cannot seek safety in any other part of Pakistan because the PML, and particularly members from his area are powerful throughout the country and are actively persecuting PPP members.
4. Given the localized nature of the problems being faced by the applicant, and his low profile in the political sphere, the Board rejected his claim on the basis that it had not been persuaded the claimant could not live safely in another area of Pakistan such as Lahore, Islamabad or Karachi. It should be noted that at page two of its decision the Board makes reference to all three locations as being possible IFA’s whereas later in the decision it refers only to Lahore and Islamabad.
5. At the judicial review hearing, counsel for the respondent acknowledged the applicant had not received notice of Islamabad and Karachi as possible IFAs. With respect to Lahore, counsel for the respondent asked the Court to infer from the transcript and the nature of the questions put to the applicant by his counsel that the applicant was given notice that Lahore was being considered as an IFA. Having had an opportunity to reread the transcript of the Board hearing, I am satisfied that the applicant did in fact have notice of Lahore being a possible IFA. In his final submissions to the Board, counsel for the applicant stated “… [s]ince the Panel only identified Lahore as the place on internal flight alternative…”.
6. With regard to the Board’s failure to give notice of Islamabad and Karachi as possible IFAs, I note the following: as stated by Mahoney J.A. in Rasaratnam v. Canada [See Note 1 below] and reaffirmed in Thirunavukkarasu v. Canada [See Note 2 below]

Note 1: [1992] 1 F.C. 706.
Note 2: [1994] 1 F.C. 589.

… a claimant is not to be expected to raise the question of an IFA nor is an allegation that none exists simply to be inferred from the claim itself. The question must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument.
[See Note 3 below]

Note 3: Supra note 1 at page 710.

1. As this requirement has not been met, the application for judicial review is allowed. The decision of the Board dated May 19, 1999 is quashed and the matter is remitted to a differently constituted panel for rehearing and redetermination.
2. Neither party had a question to submit for certification.

ORDER

8a IT IS HEREBY ORDERED that the application for judicial review be allowed, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board is quashed and the matter is referred back for redetermination by a differently constituted panel. [The Court did not number this paragraph. Quicklaw has assigned the number 8a.]

HANSEN J.