MB9-13259

RAD File / Dossier de la SAR : MB9-13259 MB9-13260 / MB9-13261 / MB9-13262 MB9-13263 / MB9-13264 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision March 6, 2020 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the persons who are the subject of the appeal Me Daniel Epstein Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Nadine Saade Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. XXXX XXXX XXXX (Principal Respondent), his wife XXXX XXXX XXXX and their children XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX are citizens of Pakistan. They are the Respondents in this case since the Minister has appealed a positive decision of the Refugee Protection Division (RPD). (a) The RPD granted their request for refugee protection as Ahmadi Muslims from Pakistan. The RPD granted their request without holding a hearing because Ahmadi Muslims are a group who are known to be persecuted in Pakistan on a balance of probabilities. (b) The Minister has appealed that decision arguing that the Principal Respondent failed to disclose that he was XXXX XXXX in the XXXX XXXX XXXX. The Minister alleges that the XXXX XXXX XXXX is known to commit human rights abuses, thus opening the Principal Respondent to a 1F Exclusion. The Minister also argues that there are reasons to doubt that the Respondents are Ahmadi Muslim because their identity documents state that their religion is Islam. (c) The determinative issue is whether the RPD should have assessed the possibility of a 1F exclusion. (d) The appealed is allowed because the Minister's evidence raises credibility issues with respect to the Principal Respondent's role within the XXXX XXXX XXXX XXXX XXXX This issue was not considered by the RPD. Since there was no hearing held before the RPD, I am returning the issue for redetermination so that the matter may be fully canvassed in a de novo hearing. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE [3] Pursuant to the Immigration and Refugee Protection Act (IRPA)1, the Minister has entered new evidence into the record. That new evidence consists of: (a) A recording of an interview between the Respondents and the Canada Border Services Agency (CBSA);2 (b) An email from the United States Consul General;3 (c) An information request pertaining to the Respondents' 2012 Canadian Visa Application;4 (d) An email from the High Commission of Canada in Islamabad;5 (e) Five articles and reports speaking to the role XXXX XXXX XXXX XXXX XXXX XXXX in committing human rights abuses.6 [4] I find that the information presented by the Minister raises issues that are central to the decision with respect to the refugee protection claim and that would justify allowing or rejecting the refugee protection claim. [5] However, I am electing not to hold a hearing before the Refugee Appeal Division (RAD) because my analysis has led me to return the matter back to the RPD for redetermination where a hearing will be held and where the determinative issues should be fully canvassed before the first instance of the Board. ANALYSIS [6] My role is to look at all the evidence and decide if the RPD made the correct decision.7 [7] Section 98 of the IRPA provides that a person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. [8] Article 1F, set out in the Schedule to the IRPA, provides that: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. [9] Relevant case law confirms that claimants are not entitled to have their inclusionary claims determined once excluded.8 The 1F exclusion must be evaluated prior to determining if the Respondents' religious beliefs as Ahmadi Muslims in Pakistan entitle them to refugee protection. The RPD's decision does not consider the possibility that the Principal Respondent should be excluded for reasons related to his XXXX XXXX XXXX. [10] The Chairperson's Instructions governing the streaming of less complex claims at the Refugee Protection Division indicate that the RPD will not decide a claim without a hearing if a notice has been sent under the RPD Rules notifying the Minister of a possible exclusion, inadmissibility or integrity issue. There is no evidence that such a notice was sent to the Minister. [11] The Principal Respondent's Basis of Claim (BOC) form indicates that he worked as XXXX XXXX for the XXXX XXXX XXXX XXXX XXXX.9 The National Documentation Package XXXX XXXX does not figure as part of the RPD record, leading me to conclude that the Principal Respondent situation in XXXX was never considered by the RPD. The RPD should have at least considered the situation in XXXX as the Principal Respondent indicated that he resided there from 1990-201810 and he indicated that his work as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX11 on his immigration forms. The directorate within which he worked XXXX XXXX XXXX XXXX XXXX is not specified in his BOC. [12] The interview with CBSA provided by the Minister as new evidence raises a number of issues related to the credibility of the Principal Respondent's profession in XXXX. The Principal Respondent indicated in his BOC form that he worked for the XXXX XXXX XXXX XXXX as a XXXX. In the CBSA interview, he clarified that he worked for XXXX XXXX XXXX in XXXX XXXX XXXX. He indicated that he was trained at the XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX but was not an XXXX XXXX XXXX XXXX. The CBSA officer confronted the Respondents with a Canadian visa application submitted in 2012 indicating that the Principal Respondent is a XXXX XXXX. The Respondents explained that the response was provided by the visa agent who filled out the forms for them and that it was an error. The Minister submitted into evidence correspondence with the United States Consulate indicating that the Principal Respondent indicated on his American Visa application that he is XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The CBSA interview and the response from the United States Consulate contradict the Principal Respondent's BOC stating that he was XXXX XXXX. The information request relating to the Principal Respondent's Canadian visa application lists his occupation as XXXX XXXX.12 This question raises an issue with respect to his credibility. The documentary evidence submitted by the Minister speaks to XXXX XXXX having been committed against the general population and detainees in XXXX XXXX XXXXThe evidence before me indicates that the RPD should have considered the possibility of a 1F Exclusion. For this reason, I find that the claim was decided without a hearing in error. Since there was no hearing before the RPD, I am returning this case to the RPD for redetermination so that the alleged facts at the heart of the claim may be fully explored. CONCLUSION [13] The appeal is allowed. I send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD [14] The matter is to be redetermined by a differently constituted panel of the RPD. The panel is to explore whether the Respondents are subject to an exclusion pursuant to Article 1F of the Convention. The credibility of the Respondents is to be fully assessed for each element at the basis of their claims. (signed) Ayanna Roberts Ayanna Roberts March 6, 2020 Date AR/dd 1 Subsections 110(3) and 110(5) of the IRPA. 2 Appellant's Record. Exhibit A-1. 3 Appellant's Record. Exhibit A-2. Pages 16-20. 4 Appellant's Record. Exhibit A-3. Pages 21-32. 5 Appellant's Record. Exhibit A-4. Pages 33-34. 6 Appellant's Record. Exhibits A-5 to A-10. Pages 35-295. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Décary, Létourneau, Pelletier, June 30, 2004. 9 RPD Record. Basis of Claim form of XXXX XXXX XXXX. Narrative. Page 16. 10 RPD Record. IMM0008 of XXXX XXXX XXXX. Page 168. Question. 12. 11 RPD Record. IMM 5669 of XXXX XXXX XXXX. Page 180. Questions 8 and 10. 12 Supra, at note 4. See page 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-13259 MB9-13260 / MB9-13261 / MB9-13262 MB9-13263 / MB9-13264 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français