VB9-07859

RAD File / Dossier de la SAR : VB9-07859 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 31, 2020 Date de la décision Panel L. Krajcovic Tribunal Counsel for the person who is the subject of the appeal Kay Scorer Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Jennifer Mensink Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Public Safety and Emergency Preparedness (Appellant, hereinafter referred to as the Minister) appeals a decision of the Refugee Protection Division (RPD), dated September 19, 2019, which granted the claim for refugee protection of XXXX XXXX (Respondent). The Minister requests that the Refugee Appeal Division (RAD) allow the appeal, set aside the determination and substitute its own finding that the Respondent is not a Convention refugee or person in need of protection or, in the alternative, refer the matter back to the RPD for redetermination. DECISION [2] I allow this appeal and refer the matter back to the RPD for redetermination by a differently constituted panel, pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the IRPA). BACKGROUND [3] The Respondent's allegations are as follows. The Respondent fears persecution from the Taliban in Afghanistan. The Respondent and his family became a target of the Taliban because of his work in the XXXXandXXXX XXXX XXXX. [4] The Respondent fled Afghanistan for Pakistan in the late 1970s in response to the Soviet-Afghan conflict. In 2006, the Respondent was threatened by the Taliban in Pakistan because of his work in the XXXX XXXX. In 2008, he fled to Saudi Arabia. His family remained in Pakistan until 2016, when they were forced to return to Afghanistan and moved to Kabul. The Respondent remained in Saudi Arabia and made five trips to Afghanistan to work and see his family. The Respondent travelled to the United States in XXXX 2018 and to Canada in XXXX 2019, following which he was detained by the Canada Border Services Agency (CBSA) because he could not establish his identity. He signed his Basis of Claim (BOC) form on February 8, 2019. [5] The Respondent's refugee protection hearings took place on July 8, 2019 and July 31, 2019. The Respondent claimed that he was only a citizen of Afghanistan. The Minister intervened in person on the basis that the Respondent had nationality in Pakistan or both Pakistan and Afghanistan. The RPD found that the Respondent was a citizen of Afghanistan only and that he was a Convention refugee. The Minister appeals this decision. [6] The Minister's Written Statement indicates that the Minister is relying on new evidence, however no proposed new evidence is included in the Appellant's Record. The Respondent indicates that he is not relying on new evidence. Neither the Minister nor the Respondent request an oral hearing. As there is no new evidence, there can be no oral hearing pursuant to subsection 110(6) of the IRPA. ROLE OF THE RAD [7] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. I may defer to the RPD in assessing findings involving the credibility of oral testimony if I find that it had a meaningful advantage in the circumstances.1 In this case, I find that the RPD did not have a meaningful advantage. ANALYSIS The RPD decision [8] The RPD found that the Respondent is a citizen of Afghanistan and not a citizen of Pakistan. The RPD accepted the Respondent's explanation that he obtained his Pakistani passport illegally by falsely claiming that he was the son of a Pakistani citizen and that the documentary evidence supported this finding. The RPD found that the Respondent's Taskera and letters from the Consulate General of Afghanistan and an Afghani association in Canada supported the finding that the Respondent is a citizen of Afghanistan and no other country. The RPD found that the CBSA interviews with the Respondent, his wife and son, and his former employer confirmed his story. [9] The RPD gave some weight to the Minister's evidence that the Respondent has an active, valid Pakistani passport on which he travelled extensively. The RPD also gave some weight to the Minister's evidence that the Taskera was fake and contained discrepancies. However, the RPD found that the errors in the Taskera did not mean it was not issued in Khost, Afghanistan, but only that it contained errors. The RPD found that, considering all the evidence regarding identity, the Respondent had overwhelmingly established his identity as an Afghan citizen on a balance of probabilities. The Minister's submissions [10] The Minister submits that the Respondent has been recognized as an Afghani national by the Afghani government and a Pakistani national by the Pakistani government. The Minister submits that the RPD erred in finding that the Respondent was not a citizen of Pakistan despite the prima facie presumption that a passport holder is a national of the country of issue and in finding that the Respondent is only a citizen of Afghanistan and a Convention refugee. [11] The Minister submits that the Respondent is a holder of a Pakistani passport that was confirmed as genuine and verified as active with the Pakistani government authorities. The Minister submits that the Respondent travelled on his Pakistani passport for many years, to multiple countries and renewed it more than once. The Minister notes that the Respondent makes no claim against Pakistan. [12] The Minister submits that the articles referred to by the RPD Member do not support the Respondent's assertion that he improperly obtained the Pakistani passport as they relate to undocumented Afghanis and Afghanis who obtained Pakistani passports in fake names, whereas the Respondent had a valid Pakistani passport issued in his name, which he travelled extensively on, and lived and worked for years in Pakistan. The Minister submits that there is no objective evidence that the passport was obtained fraudulently. [13] The Minister submits that the Pakistani authorities' determination that the Respondent is a citizen of Pakistan is not open to the RPD to reassess, as only Pakistani authorities can make the determination that the Respondent is not a national of Pakistan. Citing paragraph 93 of the United Nations High Commissioner for Refugees (UNHCR) Handbook, the Minister submits that the Respondent has not rebutted the presumption of citizenship in Pakistan. [14] The Minister submits that the issuance of a Taskera has no bearing on the Respondent's Pakistani passport and his ability to return to Pakistan. The Minister submits that the Respondent resided in Pakistan for three decades, where he worked, his children went to school and the entire family had passports and National Identity Cards. Respondent's submissions2 [15] The Respondent submits that he is a citizen of Afghanistan only and does not hold valid Pakistani citizenship. The Respondent submits that paragraph 93 of the UNHCR Handbook acknowledges that there are many reasons why a refugee claimant may have fraudulent documentation and ultimately says that the examiner will have to decide on the credibility of the applicant's assertions in weighing all the other elements of his history to overcome this presumption, which is exactly what the RPD Member did. The Respondent refers to Federal Court jurisprudence for the proposition that the RPD's credibility findings are critical to the finding that the passport was obtained fraudulently and that he is an Afghani national. [16] The Respondent also submits that he provided a reasonable explanation for how he fraudulently obtained the Pakistani passport. The Respondent submits that his testimony regarding his Afghani nationality are corroborated by the articles speaking to displaced Afghanis obtaining fraudulent Pakistani identity documents. [17] The Respondent submits that he rebutted the presumption of nationality by his testimony, which was corroborated by ample supporting documents and ultimately accepted by the Member on a balance of probabilities, including the Taskeras and the letters from the Afghan Canadian Association and the Consulate General. The Respondent submits that the RPD Member accepted that he is only a citizen of Afghanistan based on the Taskera and corroborating evidence. Minister's reply3 [18] The Minister submits that the documentary evidence on Afghani citizenship only concerns the citizenship the Respondent holds in Afghanistan and does not displace or negate the Pakistani citizenship he is officially recognized to hold in Pakistan by Pakistani authorities. [19] The Minister submits that the objective documentary evidence does not support the situation of the Respondent who had a valid document issued in his name and who lived and worked in Pakistan for years and was able to travel extensively on that passport. The Minister submits that the availability of processes of Afghani refugees in Pakistan to acquire identification through fraudulent means does not confirm the credibility of the Respondent's assertions that his citizenship was obtained fraudulently. [20] The Minister submits that the objectively identifiable documentary evidence demonstrates that the Respondent is a citizen of Pakistan. ANALYSIS [21] The RPD found the Respondent credible and accepted that he obtained the Pakistani passport improperly. [22] The Minister submits that the RPD Member failed to consider numerous inconsistencies in the Respondent's testimony and his BOC form, including where and when he was threatened by the Taliban in Pakistan. [23] The Respondent submits that the RPD's credibility findings are critical to the finding that the passport was obtained fraudulently. The Respondent submits that the RPD Member considered the Respondent to be credible and therefore accepted his assertion that the Pakistani passport was improperly obtained. [24] I accept the Minister's submission and find that the RPD erred for the following reasons. After my review of the record, particularly the Respondent's refugee claim forms, the Respondent's interviews with the CBSA, and the audio recording of the hearings, I agree with the Minister that numerous discrepancies arose that the RPD Member failed to consider, some of which are material to the claim. They relate to discrepancies in the Respondent's evidence regarding his status in Pakistan, how he obtained the Pakistani passport and the threats in Afghanistan. These discrepancies were not put to the Respondent at the hearing. Further, in its memorandum, other than identifying the inconsistency regarding the threat in Pakistan and stating that there were numerous inconsistencies, the Minister does not specifically identify such discrepancies. As a result, the Respondent has not had an opportunity to explain the discrepancies in the evidence. I am unable to put these discrepancies to the Respondent in this proceeding. As there is no new evidence, I cannot hold an oral hearing. [25] As I am unable to confirm the decision or set it aside and substitute my own decision, I refer the matter back to the RPD for redetermination by a differently constituted panel. CONCLUSION [26] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, I refer this matter back to the RPD for redetermination by a differently constituted panel. (signed) L. Krajcovic L. Krajcovic October 31, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, paras. 70, 103. 2 Exhibit P-2, Respondent's Record, November 25, 2019. 3 Exhibit M-3, Appellant's (Minister's) Reply, April 9, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-07859 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