VB2-00921

RPD File No. / N° de dossier de la SPR : VB2-00921/VB2-00922 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Applicant(s) The Minister of Public Safety and Emergency Preparedness Demandeur(e)(s) and et Respondent XXXX XXXX (a.k.a. XXXX XXXX) XXXX XXXX (Deceased) Intimé(e) Date(s) of Hearing November 6, 2012 Date(s) de l'audience Place of Hearing Calgary, AB Lieu de l'audience Date of Decision May 28, 2014 Date de la décision Panel Bindu Narula Tribunal Counsel for the Respondent(s) Birjinder P. S. Mangat Barrister and Solicitor Conseil(s) de l'Intimé (e) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister S. Mathyk-Pinto Conseil du ministre REASONS FOR DECISION [1] This is the decision with respect to the application pursuant to section 109 of the Immigration and Refugee Protection Act (the "Act")1 and section 57 of the Refugee Protection Division Rules by the Minister to vacate the positive determination of Convention refugee status that was granted to the respondent of the name, XXXX XXXX on October 22, 2001, by the Refugee Protection Division of the Immigration and Refugee Board. ALLEGATIONS [2] The Minister of Public Safety and Emergency Preparedness of Canada (applicant) has submitted that the respondent (Mr. XXXX XXXX) either directly or indirectly misrepresented or withheld material facts relating to relevant matters in his (second) refugee claim. Furthermore, the Minister also alleges that had the Refugee Protection Division known the truth when making the second claim, the outcome of his decision would not have been favourable for the respondent. [3] They also allege that because the respondent had made two claims, first one in 1999 (which was rejected) under the name of XXXX XXXX, and then the second claim under a second name XXXX XXXX in 2000 (which was accepted), the second claim would have been null and void given that under the Immigration and Refugee Protection Act multiple claims are not allowed. [4] The Minister alleges that the claimant, Mr. XXXX (respondent) declared during his claim in 2000: * He has never been to Canada before * Has had never been the subject of a Removal Order * He had not previously requested to be recognized as a Convention Refugee in Canada * He resided in XXXX, Pakistan from XXXX 1990 to XXXX 2000 * He had not travelled outside of his country of citizenship within the last five years * He had formally joined to XXXX XXXX XXXX XXXX XXXX (XXXX) in XXXX 1991 and actively participated in meetings. * In 1994 he was attacked by Sipah-e-Sahaba (SSP) terrorists with other Shia members and was admitted to the hospital for XXXX weeks as a result of a bullet wound to XXXX XXXX. * In XXXX 1996, he participated in a XXXX demonstration. He was arrested by the police with five other activists and tortured for XXXX days before his family bribed the police for his release. * He was offered the position of XXXX XXXX of the XXXX in 1997 but declined the offer. * He participated in a protest at the beginning of 1998 and was attacked again by the SSP. He spoke at a protest rally organized by the XXXX and was again arrested by the police. On this occasion he was tortured by Sunni fundamentalists and released XXXX days after his family bribed the police. * In XXXX 1999, the respondent and his son, XXXX XXXX (presently deceased) were attacked by members of the SSP at their home. * In XXXX 2000, Mr. XXXX held a religious gathering at his house and invited Shia and XXXX members. SSP fundamentalists entered the house with guns and beat Mr. XXXX until he was unconscious. He ended up in a local clinic for treatment. [5] On May 8, 2001 his son, XXXX XXXX completed his PIF and submitted it to the IRB. His son's PIF relied entirely on the respondent's narrative to support his claim for refugee protection. [6] The claims were heard on May 29, 2001 and August 1, 2001 and the respondent and his son were conferred as Convention refugees on October 22, 2001. On October 30, 2001, the respondent completed an Application for Permanent Residency. On May 25, 2006 the respondent was granted permanent residence status in Canada in the CR-8 category. During an interview in Pakistan by an local CBSA officer with the respondent, it is revealed that: * The respondent had made a refugee claim in 1990 or 1991 under the name of XXXX XXXX (along with his family) * He stayed in Canada for approximately a year and half and then went to the US from 1993 to 1998. * He joined the XXXX in 1998 when he returned to Pakistan from the US * The last time he was in Pakistan was in 2009 * The respondent completed a statutory declaration on January 26 2010 attesting to these facts. * The respondent applied to enter the US and was fingerprinted under the name XXXX XXXX XXXX XXXX XXXX on XXXX XXXX 1990. * On XXXX XXXX, 1990, the respondent was issued a Pakistani passport from the Consulate General of Pakistan in XXXX XXXX under the name of XXXX XXXX XXXX XXXX XXXX. * On May 13, 1992, the respondent entered Canada under the name XXXX XXXX XXXX with his family and made a refugee claim. [7] On June 30, 1992, the respondent completed and signed a PIF under the name XXXX XXXX XXXX. He declared on his PIF: * That his name was XXXX XXXX XXXX. * He joined the XXXX in 1974. * He became XXXX of the XXXX in his ward. * He was subjected to abuse from the police a number of occasions by members of the Muslim League and local police from 1988 until 1992 when he left Pakistan. [8] The claim was heard on June 15, 1993 and it was rejected on the basis of credibility. The panel members found the respondent and his wife to be evasive and not credible in their testimony. [9] The respondent made application for a Post determination claim in Canada and received a negative decision on October 12, 1995. A warrant was issued for XXXX XXXX XXXX on XXXX XXXX, 1995 as he did not confirm is departure from Canada as required by November 24, 1995. The respondent re-entered the United States sometime in XXXX 1996. DETERMINATION [10] The panel finds that the Minister's application for vacation of Convention Refugee (CR) status is allowed based on all the evidence before the panel. ANALYSIS [11] The panel has taken into consideration the respondent's testimony and his evidence, both counsels' submissions as well as documentary evidence that were submitted at the time of the original (second) hearing. The Panel's Findings: [12] Minister's counsel has presented the argument that because of the fact that the respondent, Mr. XXXX made a second claim for refugee protection he would have been excluded and not been allowed to make the claim from which he conferred his refugee status. [13] The panel finds that the Minister's argument is flawed in this particular area because as the respondent's counsel argued in 2000, Mr. XXXX made the (second) claim for refugee protection under the Immigration Act of Canada which states that under section 46.01 that: 46.01 5) A person who goes to another country and returns to Canada within ninety days shall not, for the purpose of paragraph (1) (c) be considered as coming into Canada on that return. (1) A person who claims to be a Convention Refugee is not eligible to have their claim determined by the Refugee Division if the person (c) has since last coming into Canada been determined2... [14] The law states therefore that one could make a claim for refugee protection and then after being rejected leave the country for ninety days and make another claim for protection. This law was changed under the Immigration and Refugee Protection Act. [15] The panel does not agree with Minister's argument that the second claim would not have been accepted given only one claim is allowed under the Immigration and Refugee Protection Act because under the previous Act, the Immigration Act, a claimant was technically allowed to make a claim and leave after being rejected only to enter again after three month (90 days) in order to make another claim. Nevertheless, the panel does find that even the Immigration Act did NOT allow for a claimant to make a claim under two different aliases. Nor did the Immigration Act permit that claimants misrepresent material fact. [16] The panel is still left with the task of reviewing the misrepresentation argument. Minister's counsel also argued that based on the evidence that Minister's Counsel has provided the Board, Mr. XXXX misrepresented three out of the five years of his alleged persecution. Minister's Counsel also argues that he hid from the Board that he had initially made another claim under another name, changed the dates of his family member's birthdates so as to hide the information presented in the initial claim. Minister's Counsel has argued that according to Mr. XXXX story, he misrepresented, amongst other material fact, his name, the time he spent in the US, his name, his time with the XXXX and the incidents he allegedly experienced at the hands of the extremists while in Pakistan. The panel does agree with Minister's Counsel in this regard. [17] The panel finds that when assessing what remains from the respondent's second claim which is untainted the panel finds that there is very little material fact left to assess .For example, even the evidence to support the fact that he is a Shia, a letter from the Imambargah,3 also states that he has been with the XXXX since 1991 when he joined the organization. According to his interview, he was in Canada making a refugee claim at the time. The panel finds then that his alleged religious affiliation, the core of his claim's evidence is also tainted with the misrepresentation of dates. [18] The panel has also looked into the torture that the respondent alleged during his psychological assessment with Dr. XXXX XXXX XXXX The respected doctor states that he believes that the claimant to be credible with regard to the torture he experienced in order to make him stop his religious practices in 1996 however, by his own admission, the respondent was in the United States in 1996 and did not return until 1998. He was in the US for about 1.5 years before he came to Canada to make his second claim. [19] The panel has therefore reweighed the initial untainted evidence that was provided to the original panel that conferred refugee status and determined that there is not enough credible evidence left to dismiss Minister's application. Therefore the panel finds that Minister's' application is allowed. [20] Having considered all of the evidence, the panel find that the Minister's application to vacate the status of Mr. XXXX XXXX is allowed pursuant to section 109 (1) of the Act. (signed) "Bindu Narula" Bindu Narula May 28, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 The Immigration Act of Canada (1985) R.S. 1985, c. I-2. 3 Exhibit 5, pg. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR: VB2-00921/VB2-00922