MA8-11099

Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés Immigration and Refugee Board Refugee Protection Division No. dossier SPR / RPD file: MA8-11099 Huis clos Private Proceeding Demandeur(e)s d'asile Claimant(s) XXXXX XXXXXX Date(s) de l'audience Date(s) of Hearing August 25th, 2010 Lieu de l'audience Place of Hearing Montreal, Quebec Date de la décision Date of decision November 22nd, 2010 Tribunal Panel Me Michelle Langelier Conseil du demandeur d'asile Claimant's Counsel Me Harry Blank Agent du tribunal Tribunal Officer Annie Lemaine Représentant désigné Designated representative S/O Conseil du ministre Minister's Counsel Mélanie Leduc [1] The Minister of Public Safety and Emergency Preparedness of Canada, hereafter called the applicant, asks the tribunal, under section 109 of the IRPA and rule 57 of the RPD Rules, to vacate the decision granting refugee status, on XXXX, 2004, to XXXXX XXXXXX, hereafter called the respondent, citizen of Pakistan. FACTS [2] The respondent arrived in Canada on XXXX, 2002 and claimed refugee status the same day. He submitted documents in support of his identity, among which a National Identity Card, hereafter called a NIC, a passport1 and a birth certificate2. In support of his allegations of a fear of persecution, he submitted a First Information Report3, hereafter called a FIR and an Arrest Warrant4 . [3] The respondent was recognized as a Convention refugee on April 1st, 2004. However, on April 19th, 2004 a verification was done on the FIR and it was found to be fraudulent5; the arrest warrant was not expertised, as it was likely to be also fraudulent given that it related directly to the latter and bore the same case number. [4] Moreover, on July 29th, 2004 an expertise was done on the respondent's identity documents6 and verification was done with regards to the procedures of renewal of NICs in Pakistan7. I appeared that the respondent's NIC had been altered and the data contained was doubtful. [5] The applicant also verified the respondent's birth certificate; after receiving the result of the verifications on August 12th, 20088, the present application was filed on August 21st, 2008. ALLEGATIONS OF THE PARTIES [6] The applicant alleges that the respondent made material misrepresentations to the tribunal by alleging in his Personal Information Form (PIF) that a case had been registered against him in Pakistan9, that he is wanted by the Pakistani police or military10 and by filing fraudulent documents in support of his claim. The applicant also submits that the respondent made material misrepresentations to the tribunal with regards to his identity11. The applicant submits that there remains no credible and trustworthy evidence produced at the time of the first determination to justify refugee status and argues that had the tribunal known the facts alleged at the time of the hearing, he would have decided differently. [7] The respondent denies the applicant's allegations and alleges that he has told the whole truth and nothing but the truth in his hearing so as in his PIF. He repeats that there is a First Information Report against him, that his lawyer in Pakistan went himself to the police and was confirmed with that fact. [8] He produced further documents: a copy of his birth certificate12, an affidavit from a lawyer in Pakistan13 and newspapers articles en liasse14. ANALYSIS [9] The issues in the present case are as follows: was the respondent granted refugee status as a result of directly or indirectly misrepresenting or withholding of material facts relating to a relevant matter, and if yes, whether other sufficient evidence submitted at the time of his refugee hearing could have justified a positive decision on his claim for refugee status15. The burden of proof is on the applicant. [10] The applicant produced the results of the verification made on the First Information Report, bearing number XXXX. It states as follows16: "The FIR #XXX of year 2002 refers to a case registered against Mr. XXXX XXXX XXX XXXX, r/o village XXXX XXXX, XXXX XXXX, district XXXX XXXX, under Pakistan Penal Code, #13-20/65, for recovery of a pistol of 30 caliber. This individual was fined rs 300 by the court of M. XXXX XXXX XXXX, Civil judge on XXXX 02. I also checked if any FIR was registered in the police station on XXX02, the date indicated on the document, and learn (sic) that the only FIR registered on the date had reference number 258/2002 and was registered at request of Mr. XXXX XXXX s/o XXXX XXXX, r/o XXXX XXXX, XXXX XXXX, under Pakistan Penal Code 11-7/89, reporting kidnap of his sister named Ms. XXXX XXXX. This case was dropped during investigations as the case was found bogus. Based on the above we can positively conclude that the Arrest Warrant presented before you is a counterfeit document as the FIR number indicated on the document has proved to be counterfeit." [11] The explanations given by the respondent regarding the fraudulent First Information Report are as follow. He testified that when he received the report of verification, he contacted his Pakistani lawyer who told him that the FIR and the warrant of arrest are authentic, that there is really a case pending against him in Pakistan; even last month when he contacted him against he was told that "everything is correct and true". The lawyer wrote an affidavit to support the respondent's allegations17. [12] Asked whether he advised his Pakistani lawyer about the result on the verification by the Canadian authorities, the respondent answered yes, and that is why his lawyer in Pakistan went directly to the police station to verify. His lawyer told him that the police in Pakistan never tell the truth to anybody, but that the respondent should believe him because he is his lawyer and the information he is providing is the true correct information. [13] I give more probative value to the applicant's evidence than to that of the respondent, because the respondent has not credibly established that the documents are genuine and that the expertise is wrong. He testified that the FIR is true because his Pakistani lawyer told him so after verifying with the police, and at the same time he testified that his lawyer admits that the police in Pakistan never tell the truth. The respondent did not present credible evidence to contradict the applicant's evidence. Given this conclusion, I draw a negative inference on the respondent's overall credibility because he produced fraudulent documents. [14] The respondent's counsel argued that obviously the Pakistani police was aware that the Canadian authorities were enquiring on the respondent in particular, that his name was mentioned in the telephone conversation between the Canada Assistant Migration Integrity Officer in Islamabad and the Pakistani police officer and that it was in the interest of the Pakistani authorities to give false information to the Canadian authorities, in order to force the respondent's return to Pakistan. [15] I do not accept this argument. The Assistant Migration Integrity Officer did not mention the respondent's name. What the evidence18 states is that the Pakistani officer was asked who the FIR number XXXX 19 referred to, without suggesting any name. Then he was asked if an FIR was filed on XXXX, 2002, again without suggesting any name. It is then that the Pakistani officer found out that yes there was an FIR filed on that day, by XXXX XXXX (although the Pakistani officer was never advised that he was the subject of the verification). Therefore the evidence of the applicant establishes that on XXXX, 2002, an FIR was filed by the respondent, and not against him. [16] Moreover, if as respondent's counsel argues, the Pakistani police, being aware that the Canadian authorities were enquiring on him, gave false information, then it is illogical that his lawyer was advised by the Pakistani police that there is really a case against him. [17] I do not believe that the Pakistani authorities had knowledge that the respondent was subject of enquiry by the Canadian authorities; therefore I will not retain the respondent's counsel's argument. [18] For these reasons, I give more probative value to the documents produced by the applicant than to the respondent's testimony because I find him generally not credible. Consequently I am of the opinion that that the respondent made material misrepresentations to the first Tribunal, and that these misrepresentations relate to a relevant matter. [19] With regards to the identity, I agree with the respondent's counsel that the identity documents sent for verification were not properly photocopied and that created confusion on the part of the verifying party. However, while it is clear from the evidence produced by the applicant that the respondent's National Identity Card was altered20, I will not pursue my analysis on the issue of material misrepresentations on the identity because I have already determined that there are material misrepresentations on other issues. [20] When reading the reasons for the decision of the first tribunal, I find that he gave the claimant the benefit of the doubt, as quoted: "in the absence of any major discrepancies in his testimony"21. [21] When rendering his decision, the former panel did not know that some of the respondent's evidence is fraudulent. And that documentary evidence is material to the respondents' claim: it is evidence that he is wanted by the government of Pakistan after charges were pressed against him. This allegation is not peripheral to the claim of a well founded fear of persecution, it is the essence of it. [22] Therefore, I am of the opinion that had the first tribunal known the results of the expertise on the First Information Reports, his evaluation of the respondent's overall credibility, including conclusions on the probative value to give to other documents produced in his file would have been different. I am of the opinion that, on the balance of probabilities, he would not have given him the benefit of the doubt. [23] With regards to section 109(2) of the IRPA, I find that there remains no other sufficient evidence considered at the time of the first determination, to justify refugee protection. If the principal respondent had been found not credible on his allegations of persecution, the "other evidence" remaining consists of objective documentary evidence on the country conditions and religious unrest in Pakistan at the time of the first hearing22. [24] I find that the documentary evidence in itself does not constitute 'sufficient evidence' that could justify the tribunal's decision. I have read the objective documentary evidence that was available to the first panel and I find that it does not justify a finding of a well founded fear of persecution. As the first panel stated: "The efforts of the Pakistani government to quell the sectarian violence and to provide protection for its citizens in this situation meet the standard of being adequate and effective"23. [25] The decision of the first Tribunal was based on the country condition when applied to the respondent that was allegedly targeted. But clearly, if he is not targeted, the only fact that he is a Shi'a would not have been sufficient for the first tribunal to conclude, on the balance of probabilities, that he is at risk of persecution without adequate protection. [26] As the Federal Court stated in Fouodji24, general situation in a country is not sufficient evidence according to section 109(2), if it cannot relate to a claimant in particular : " According to subsection 109(2) of the Act, the existence of documentary evidence regarding the general situation of a country is not in itself sufficient to justify a person's refugee protection (see Annalingam v. Canada (M.C.I.), [2003] 1 F.C. 586 (C.A.), Coomaraswamy v. Canada (M.C.I.), [2002] 4 F.C. 501 (C.A.), application for leave dismissed by the Supreme Court of Canada on January 9, 2003 (29274) and Selvakumaran v. Minister of Citizenship and Immigration, 2003 FC 1445). " CONCLUSION [27] For all these reasons, I conclude that the principal respondent made false representations on material facts in his original claim for refugee status, and therefore he obtained refugee status as a result of directly misrepresenting material facts relating to relevant matters. [28] I also conclude that there remains no other sufficient evidence that was considered at the time of the first determination to justify refugee protection. [29] The Tribunal allows the application to vacate. The decision granting refugee status to XXXX XXXX is vacated. Michelle Langelier Me Michelle Langelier November 22, 2010 Date rc/sp REFUGEE PROTECTION DIVISION / APPLICATION FOR VACATION / MINISTER'S INTERVENTION / MISREPRESENTATION / FALSE STATEMENTS / IDENTITY DOCUMENTS / AUTHENTICITY / MALE / ALLOWED / PAKISTAN 1 See exhibit M-12 : copies of passport and NIC. 2 See exhibit M-10 : copy of birth certificate. 3 See exhibit M-3 which consists of the exhibits provided by the respondent in support of his asylum claim : the FIR was quoted P-9 and is found at pages 60-62 of M-3. 4 The Warrant of Arrest was originally quoted P-8 in support of the respondent's asylum claim, and is found at pages 43-45 of M-3. 5 See exhibit M-6 : results on the verifications made by the Canada mission in Islamabad, dated April 19th, 2004. 6 See exhibit M-7 : results on the expertise made by the Intelligence Unit date July 29th, 2004. 7 See exhibit M-8 : results on the verifications made by the Canada mission in Islamabad, dated December 6th, 2004. 8 See exhibits M-9 to M-11. 9 See the respondent's narrative as answer to question 41 of his PIF, lines 80-81. 10 See answer to question 37 of his PIF. 11 See paragraphs 10-17 of the applicant's application to vacate, filed on August 21st, 2008. 12 See exhibit R-1a) : birth certificate dated XXXX -2008. 13 See exhibit R-2 : affidavit of Mr. XXXX XXXX, advocate, dated XXXX 2010. 14 See exhibit R-3 en liasse. 15 As per section 109 (1) and (2) of the IRPA. 16 See exhibit M-6 page 72. 17 See exhibit R-2 : affidavit from XXXX XXXX, dated XXXX, 2010. 18 See exhibit M-8 page 72. 19 A copy of the FIR was produced as part of the applicant's evidence, as exhibit M-3 en liasse, documents presented to the first tribunal. The FIR is at page 60 and was initially filed as P-9. 20 See exhibit M-7 : result on the expertise done in July 2004. 21 See page 2 paragraph 1 of the decision of the first panel, rendered on April 26th, 2004. These reasons were sent to the parties after the hearing and they were given time to produce further submissions. To this date, I have not received any. 22 See exhibit A-4 : Pakistan Assessment, Country infornation and policy unit, April 2003. 23 See the first tribunal's decision at page 1 last paragraph. 24 Fouodji v. Canada, 2005 FC 1327 at paragraph 20. --------------- --------------- --------------- --------------- No. dossier SPR / RPD file: MA8-11099 8