Hashmat v. Canada ( Minister of Citizenship and Immigration )
IMM-2332-96
Teitelbaum J.
9/5/97
6 pp.
Judicial review of Immigration and Refugee Board, CRDD decision applicant not Convention refugee-Applicant, native of Afghanistan, fearing persecution from Mujahadeen and Taliban, two warring factions, because refusing to co-operate with either-Availability of internal flight alternative (IFA) at issue before Board-Board concluding applicant would not suffer persecution in northern Afghanistan-Holding since applicant travelled overland from Kabul to Pakistan (from whence made way to Canada) with wife, daughter, could have made same trip northward and sought internal refuge-Concluding applicant would not suffer undue hardship in travelling to north, but even if undue hardship existing in journey to north, irrelevant now as applicant could return to northern city from Canada by travelling overland via Uzbekistan-Application allowed-Two-fold test for IFA principle set out in Thirunavukkarasu v. Canada (Minister of Employment & Immigration), [1994] 1 F.C. 589 (C.A.) applied-Whether applicant would suffer persecution in another region of country; whether objectively unreasonable for applicant to journey to safe haven-In analyzing what constitutes "objectively unreasonable" Linden J.A. holding "any barriers to getting there should be reasonably surmountable" eg. claimants should not be required to cross battle lines where fighting going on-Board erred when failing to consider how applicant, accompanied by wife, daughter, would suffer undue hardship in 220 km journey from Kabul to north-Documentary record revealing widespread rape of women, children in Afghanistan-Cullen J. in Rafizade v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 55 (F.C.T.D.) ruling against principle of "indirect persecution" established in Bhatti v. Canada (Secretary of State) (1994), 84 F.T.R. 145 (F.C.T.D.)-Theory of indirect persecution allowing granting of status to those who might otherwise be unable to individually prove well-founded fear of persecution-While analysis of fear of persecution must center on claimant before Board, potential suffering of applicant's wife, daughter, very real threat of rape, still very relevant to separate issue of whether applicant would undergo hardship in making way north, availing himself of IFA-Board not asking crucial question of whether objectively reasonable to run risk of journey northward with wife, daughter in tow-Board characterizing documentary evidence in misleading fashion-While Board emphasizing one portion of evidence to argue "many people continuing to travel relatively freely" same test revealing applicant would have had to cross land mines, battle fields, separate territories of highly unpredictable, brutal, suspicious warlords who extort bribes, kill with impunity-These facts not entering Board's interpretation of anticipated hardships-On how applicant to arrive in north, Board also making unreasonable conclusion applicant could now, from current location in Canada, make way from Uzbekistan to northern Afghanistan, bypass rigours of land journey from Kabul to north-No evidence before Board to justify conclusion applicant could obtain permission to travel overland to north, let alone begin journey in Uzbekistan-Immigration Act not allowing applicant to be removed to Uzbekistan as ostensible launch point into north because not his country of nationality, birth, former residence-Board making perverse finding of fact not in accordance with evidence-Immigration Act, R.S.C., 1985, c. I-2.