MB1-07314

RPD File / Dossier de la SPR: MB1-07314 MB1-07319 UCI / IUC: XXXX XXXXXXXX Private Proceeding/ Huis clos Reasons and Decision ? Motifs et décision Application to vacate - Demandes d'annulation Applicant(s) The Minister of Public Safety and Emergency Preparedness / Le ministre de la Sécurité publique et de la Protection civile. Demandeur(e)(s) Respondents(s) XXXX XXXX XXXXXXXX XXXX Intimé(e)(s) Date(s) of hearing December 4, 2017 August 19, 2019 January 27, 2020 February 3, 2020 February 10, 2020 Date(s) de l'audience Place of hearing Montreal, QC Lieu de l'audience Date of decision and reasons December 10, 2020 Date de la décision et des motifs Panel Harry Dortelus Tribunal Counsel for the Respondents Me Dan M. Bohbot Conseil(s) de l'intimé(e) / des intimé(e)(s) Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Natacha Jankovics Conseil du (de la) ministre REASONS FOR DECISION [1] The following is the decision related to the Minister of Public Safety of Canada's Application to Vacate the Refugee Protection, under section 109 of the Immigration and Refugee Protection Act (IRPA), and Notice of Intervention under Article 1F(b) of the Convention, of the Respondents, XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX. History of the case [2] The Respondents, XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX XXXXthereafter XXXXand XXXX XXXX are father and son and are citizens of Albania. [3] XXXX arrived in Canada in XXXX 1999, and his son XXXX arrived in Canada in XXXX of the same year. They both applied for asylum upon their arrival, and their story is based on the same narrative provided by XXXX1. [4] On August 31, 1999, the Respondents and five other relatives were granted asylum "without a hearing"2. [5] On December 16, 2011, the Minister submitted to the Refugee Protection Division (RPD), henceforth the Tribunal, an Application to Vacate the asylum claims of the Respondents under section 109 of the IRPA3, and on June 14, 2014, the RPD ruled in favour of the Minister. [6] The Respondents filed an application for a judicial review to the Federal Court4. [7] On January 29, 2015, Judge Marie-Josée Bédard of the Federal Court reversed the Tribunal's decision and ruled: Que l'affaire soit entendue de novo devant un autre panel de la SPR, sur la base d'un nouveau dossier ne contenant aucune transcription ni pièces de l'ancien dossier, le tout sans préjuger de la question de la juridiction de la CISR, sans préjudice aux droits des parties et à l'opportunité de soulever de nouveau toute question de compétence-juridiction, tout moyen de droit ou toute autre question, y compris toute nouvelle question qui n'aurait pas été soulevée lors de la première audience, et sans préjudice au retrait par le défendeur de la demande d'annulation de statut, le cas échéant, considérant la réévaluation à être faite5. [8] The following is the de novo decision of the Tribunal. Designated Representative [9] At the preparatory conference of XXXX 2019, the Respondents' counsel asked that a designated representative be named for both Respondents. The request was granted for XXXX XXXX XXXX XXXX, but it was denied for XXXX XXXX XXXX XXXX, based on their XXXX reports and evidence provided by the parties. [10] XXXX son, XXXX XXXX XXXX XXXX, was then named as his designated representative, and he spoke and acted on behalf of his father at the subsequent conferences and hearings. [11] During the hearings to vacate refugee status, the Respondent XXXX XXXX was unable or unwilling to testify; his demeanour shows that he was distracted and aloof. His designated representative, who was present in Albania at the time of the events and was about XXXX years old, spoke on his behalf. The Respondent XXXX XXXX was very alert and capable of following the procedures with attention, and he testified in a coherent manner. Proceedings [12] To respect the above Federal Court order, the exhibits in the previous file were put under seal. A preparatory conference was held with the parties on December 4, 2017, to determine which documents would be considered for this de novo hearing and to set a schedule for the case. A date was set by the parties for the Minister to present a new application to the Tribunal. [13] The Minister submitted its new Application to Vacate with a Notice of Intervention for an exclusion under Article 1F(b) of the Convention on January 26, 20186. [14] The Respondents have filed several motions to this Tribunal from the outset and throughout the proceedings. They were very unhappy and felt that they have been treated unfairly due to the Minister's applications, the length of the process, and the stress caused by the proceedings. Decisions on these motions were rendered in writing or orally, after taking into consideration their respective position on these matters7. Hearings were scheduled at that time for January and February 2020 regarding the Minister's applications to vacate and exclusion under section 1F(b) of the Convention. Postponement and Other Motions [15] One month before the date scheduled for the hearing, the Respondents filed a motion requesting a sine die postponement to the Tribunal, because they had filed a judicial review application to the Federal Court of the Tribunal's interlocutory decision regarding their motions8. The sine die postponement motion was rejected by the Tribunal9. [16] On the day of the hearing of the Minister's application, the Respondents fired their counsel and asked for another sine die postponement to the Tribunal; they provided no reasonable explanation and alleged it was a private matter between them and their counsel. [17] However, according to the Minister, the Respondents were still being represented by the same counsel (XXXX XXXX) in their pending judicial review application to the Federal Court regarding this Tribunal's interlocutory decision, which they did not deny. The Minister was ready to proceed, and the Respondents were being represented by the same lawyer to the Federal Court at their appeal regarding this Tribunal's interlocutory decision. [18] It appears, in our opinion, that by firing their counsel, who has been in this de novo case since at least XXXX 2017, the Respondents were trying to obtain a postponement by other means. [19] According to the Chairperson's Guidelines number 610: The IRB recognizes that parties have the right to be represented by counsel, but this right is not absolute. The opportunity to retain counsel is not unlimited. The parties and any counsel they choose to retain must be ready and able to appear and proceed according to the scheduling requirements of the division and the requirements of the legislation. If counsel is retained after a date has already been set for a proceeding, the party is responsible for making sure that counsel is available and ready to proceed on the scheduled date. The IRB does not generally allow applications to change the date or time of a proceeding if a party chooses to retain counsel who is not available on a date that has already been fixed. [Footnotes omitted. Our emphasis.] [20] With regards to their request that they needed a lawyer to proceed, the Respondents did not explain to the Tribunal why they had decided to fire their counsel on the day of the hearing. The Respondents' January 27 and February 2020 hearings had been scheduled five months earlier, in August 2019. They had ample time to prepare and retain counsel. The Respondents' motions to postpone sine die to retain a new counsel was rejected. [21] The Respondents also asked the Tribunal to recuse itself on several occasions, alleging that it was biased in favour of the Minister because their motions were never granted. They provided no other arguments. [22] The Tribunal understands that the Respondents were frustrated and that the present litigation between them and the Minister started back in 2011. Their motions were always examined, and the Tribunal always heard the position of both parties. [23] Their motion to recuse the Tribunal was rejected, because the Respondents did not establish that a well-informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the Tribunal would be more likely than not, consciously or unconsciously, to decide fairly in their case11. [24] Hearings were held on the Minister's application on February 3 and 10, 2020, and the parties submitted their observations orally and in writing within the provided delays. The Respondents remained very hostile to the Minister's application throughout the hearings, and they believed that they were not being treated fairly both by Canadian and Albanian authorities. [25] The parties were able to submit their final observations to the Tribunal after the hearings, respectively on March 6, 202012, and April 2, 202013. Vulnerable persons [26] In the interim decision regarding their motion, on August 19, 2019, the Tribunal had agreed that both Respondents were vulnerable persons based on their XXXX reports14, in accordance with the Chairperson's Guidelines number 8. Their counsel at the time asked for an informal setting and frequent breaks to allow her clients to testify easily, which was accepted. Counsel's motion to excuse the Respondents at their January 2020 scheduled hearings was rejected by the Tribunal15. [27] At the hearings on February 3 and 10, 2020, the Respondents refused to ask for any specific accommodation and continued to ask to be represented by a lawyer, which had already been decided by the Tribunal. Nevertheless, they were told that they could ask for breaks, and they were provided with breaks on demand. The Tribunal also allowed the Respondents to take their time in responding to the Minister's questions. THE PARTIES' POSITION The Minister [28] The same facts apply to both Respondents, XXXX XXXX and XXXX XXXX. [29] The Minister alleges that the Respondents, XXXXand XXXX, applied for asylum in XXXXand XXXX 1999 and were granted asylum without a hearing on August 31, 1999, and they both became permanent residents and Canadian citizens. [30] On XXXX XXXX XXXX 2002, the Royal Canadian Mounted Police (RCMP) notified the Canadian immigration authorities regarding an arrest warrant issued on XXXX XXXX XXXX 2000, by the Tirana Court of Appeal against XXXX for "voluntary homicide" and "creation of armed bands", and mentioning that XXXX was sentenced to life imprisonment16. [31] The Minister also alleges that it found, during an Internet search in XXXX 2007, that there was an Interpol mandate against XXXX for murder and organized crime and that XXXX was also wanted17; on XXXX XXXX XXXX 2007, the Canadian Border Services Agency (CBSA) obtained a judgment dated XXXX XXXX XXXX 2000, which describes the reasons why the Respondents asked for asylum in Canada18. [32] It is based on the facts in that judgment that the Minister made the first Application to Vacate, in December 2011, and the present de novo. The Minister also asked this Tribunal to exclude the Respondents XXXX and XXXX under Article 1F(b) of the Convention. [33] According to the Minister, the January 31, 2000, decision from the Tirana District Court still stands and shows: Même si les intimés n'avaient pas encore été condamnés au moment de leur arrivée au Canada, il demeure qu'ils avaient quand même déjà commis les actes susceptibles de faire l'objet d'un examen en vue de leur possible exclusion19. [34] With regards to its Application to Vacate under section 109 of the IRPA, the Minister alleges that the Respondents misrepresented and/or withheld material facts relating to a relevant matter in their 1999 asylum claims. [35] In her closing arguments, the Minister wrote that several of the co-accused have appealed the XXXX 2000 judgment and were fairly trialled, and the Respondents' subsequent appeals have failed and the decision of XXXX 2000, which found the Respondents guilty of murder, is still standing20. [36] According to the Minister, based on the evidence: En somme, à la lumière de tout ce qui précède, il est soumis qu'il est raisonnable de croire que les intimés ont omis des informations importantes à leur narratif et que si le tribunal avait eu connaissance de ces informations, ils n'auraient pas fait l'objet d'un processus accéléré et les résultats auraient été tout autre21. The Respondents [37] In the Respondents' oral testimonies, XXXX did not want to speak to the Tribunal, even through the interpreter. His designated representative and son, XXXX XXXX XXXX XXXX, spoke on his behalf. XXXX testified and was fully involved during the hearings. [38] Both XXXXand XXXX told this Tribunal that they had a hearing in 1999 after they applied for asylum in 1999. They reiterated in their written arguments that they had a "40-60 minutes hearing" where they had "elaborated in more detail and responded to all questions."22 [39] They contest the veracity of the events as described in the judgment. They said that they told everything in their PIF and they never had armed guards in their villa or had any tank to protect them. The family left XXXX at the end of XXXX 1997 after their home was attacked in the same month and they were told by two friends to leave Berat because their life was in danger. [40] The Respondents allege that they were never served with a notification to appear regarding the accusations, and it was while they were in Canada that they learned about the case against them in Albania. [41] They also claim that the entire judicial apparatus of Albania is corrupt23, and the judgment of XXXX 2000 has been contested by their family since 2006 through their lawyer there. They wrote that: They have gone through all internal instances in Albania and experienced firsthand that the Albanian justice system is politically controlled and non-functional. A case has been raised to the Human Rights Court in Strasbourg, which has been accepted to be heard, but no dates have been scheduled yet24. [42] The also argued in their final submissions that the XXXX 2000 judgment is not trustworthy, because their fundamental rights were violated, and it was politically motivated or rendered by a corrupt judicial structure. ISSUES [43] In the current case, first, the Tribunal must determine whether the decision was obtained as a result of directly or indirectly misrepresenting or withholding of material facts relating to a relevant matter. [44] If the answer is negative, the Minister's Application is rejected. [45] The second issue is whether the Respondents would have been excluded under Article 1F(b) of the Convention, based on the above findings. [46] Last, if necessary, the Tribunal will address the case under the residual evidence under section 109(2). DECISION [47] The Minister's application is rejected. [48] The Minister did not prove that the Respondents misrepresented or withheld material facts and/or there were serious reasons for considering that they have committed a serious nonpolitical crime before their admission in Canada to apply for asylum, in XXXXand XXXX 1999. ANALYSIS [49] Regarding the Application to Vacate, to succeed, the Minister must establish, on a balance of probabilities25, that the Respondents' first positive decision was obtained as a result of direct or indirect misrepresentation or by withholding of material facts relating to a matter relevant to their refugee claims, and, notwithstanding the misrepresentation or/and withholding of material facts, there was no other sufficient evidence at the time of the first determination to justify refugee protection26. [50] Regarding the exclusion under Article 1F(b) of the Convention, the Minister must establish serious reasons for considering that the Respondents have committed a serious nonpolitical crime before their arrival in Canada to apply for asylum27. a) Did the Respondents directly or indirectly misrepresent or withheld material facts relating to criminal judicial proceedings against them in Albania? Article 109 of the IRPA The law [51] According to section 109 of the IRPA: Vacation of refugee protection 109 (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. Rejection of application (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. [our emphasis] [52] To examine the Application to Vacate, the Tribunal must rely on the evidence presented by both parties to determine their credibility. It was determined by the Federal Court of Appeal in Coomaraswamy28 that both parties may provide new evidence at this stage. [53] However, to establish that there was sufficient "other evidence", untainted by the misrepresentation or withholding of evidence, to justify refugee protection, only the evidence available at the time of the decision to grant asylum must be taken into consideration by this Tribunal29. [54] According to the Federal Court, when considering misrepresentation or withholding of material facts under section 109 of the IRPA, it does not require a motive, intention, negligence, or mens rea of the individual30 [our emphasis]. [55] Based on these limits set by the Federal Court, whether the Respondents were aware of the incriminated judgment or the criminal procedures against them in Albania is irrelevant in order for us to conclude that they have misrepresented or/and withheld material facts when they applied for asylum, in XXXXandXXXX XXXX 1999. The Minister [56] In the present case, there are two conflicting versions. On the one hand, the Minister alleges that the content of the January 2000 Albanian judgment is reliable and had the IRB (Immigration Refugee Board) known the truth, the determination of the Respondents' refugee status would have been different. [57] In his final submissions, the Minister admitted that it is possible that the Respondents were not at the villa in XXXX XXXX at the time of the events of XXXX XXXX XXXX 1997, leading to the XXXX 2000 judgment, and the Minister said: The point that is contested is that they were aware of the court proceedings at the time of the initial determination (asylum claim)31. [58] To support his argument regarding the reliability of the XXXX 2000 judgment, the Minister notes though the Respondents were not present during the trial, other co-accused were present and several appeals were subsequently filed by the co-accused, and some of them, including their son and brother XXXX, were found not guilty. [59] Finally, according to the Minister, because as early as XXXX XXXX XXXX 1998, the Respondents were considered as fugitives, based on the XXXX 2000 decision, and therefore, There is credible evidence that XXXXand XXXX were convicted of offences that support the application of section 1F(b) based on the facts in the XXXX 2000 decision. The Respondents' response [60] On the other hand, the Respondents argued that they wrote in their Personal Information Forms (PIFs), at question 20, that they were wanted by the police in Albania32. [61] XXXXand XXXX (who testified on behalf of his father as his designated representative) both said that they had a hearing at the IRB and they divulged all pertinent information about their story in Albania. [62] The parties do not contest that the event occurred in XXXX XXXX on XXXX XXXX XXXX 1997, which led to the death of four police officers and a civilian and several injured. What is contested by the parties are the findings regarding the events of XXXX XXXX, as described in the XXXX 2000 judgment, and whether the Respondents failed to divulge the ongoing court proceedings at the first determination. The Judgment (Albania District Court of XXXX 2000)33 [63] According to the judgment, the event occurred on XXXX XXXX XXXX 1997, in XXXX XXXX, XXXX, Albania, when two competing political parties held a political rally in XXXX for the XXXX XXXX XXXX 1997, upcoming elections. [64] The Respondents were tried in absentia, a defence attorney was assigned to them by the Court, and an arrest warrant was issued in absentia against XXXXand XXXXon XXXX XXXX XXXX 1998. Following the conclusion of the investigation, the XXXX District Prosecutor applied for trial, and the first session of the trial was held on XXXX XXXX XXXX 1998. The decision was rendered on XXXX XXXX XXXX 2000. [65] The XXXX family was a prominent business clan and had several enterprises that hired about 100 people in XXXX, their village in Albania. They had hired guards to protect themselves because they had been victims of extortion due to their various economic enterprises in XXXX. With the help of the police, they used to set up roadblocks to check people and vehicles. [66] XXXX, his wife, XXXX XXXX XXXX XXXXson of XXXX XXXX along with five co-defendants, were accused of: "In collaboration with each other they created and participated in armed gangs that carried out the killing of police officers (a, b, c and d); the attempted murder of two police officers (e, f); the killing of citizen (y) and kidnapping of citizens (z)" under Albania Criminal Code (we omit the names, as it is not pertinent here). Three other defendants were also accused of lesser charges. [67] XXXX and his wife were found guilty, "as a member of an armed gang he committed the criminal offense of intentional murder" of the four police officers and other crimes and he was sentenced to life; XXXX was only found guilty of, "Creating and participating in armed gangs" and "Unlawful deprivation of freedom of the citizen XXXX" and sentenced to XXXX years. The events of XXXX 1997 as stated in the Judgment [68] The decision states, notably, that several incidents preceded the event of XXXX 1997. Notably, - The population was armed all over Albania and, all kind of weapon was available, rockets, canons, submarines, etc. "In that situation, the social order disintegrated completely, contingents of criminals broke from jail and began operating feely, state institutions were de facto nonexistent and the so-called 'Rescue Committees' who spouted all over the country began operating in total absence of the sate." - The XXXX were prominent businesspersons in XXXX and were subjected of extortion before the events of XXXX 1997. - Between XXXX 1997 until the day of the incident in XXXX XXXX 1997, the defendants XXXX organized armed guards in his residence initially by using members of his clan and then by XXXX XXXX XXXX by employing another group of persons from XXXX [...]" - On the day of the incident "preparations were made in the early morning hours; positions were taken in the terraces of the buildings opposite the villa, armed persons, a 12.7 light machine-gun was brought out of the villa and placed at the terrace of the building opposite the villa; a day before the incident the defendant XXXX, [...] took a military tank, brought in XXXX XXXX and placed it in front of the villa ready to engage." (M-13, page 78). [69] XXXX 1997: after political rallies, the police escorted sympathizers and added armoured vehicles for additional security: While crossing over the centre of XXXX XXXX, the situation was tense. On one hand, there were armed persons placed all over buildings around the centre, armed with all kinds of weapons like automatic rifles and heavy machine guns already installed at the terrace of a building across from the defendant's villa; armed persons, ready to engage in armed confrontations were inside the defendant's villa like many others on the outside, and military tank T-34 number 12 was placed in front of the villa; the tank was in possession of the villa's owners and in use by other persons serving inside the defendant's villa. On the other hand, the sympathizers who were escorting the political subjects and driving in approximately 10-15 vehicles were armed with all kinds of weapons too [...]34 [70] Regarding the incident which led to the death of four policemen and a civilian, the decision notes: [...] The Armoured Police Vehicle was leading the convoy followed by 10-15 vehicles of sympathizers and other police minivan was driving at the tail of the convoy. The Armoured Police Vehicle drove across XXXX XXXX Square first and it was approximately 200-300 metres away from the square in the direction of XXXX a fire exchange began between the armed people in the villa and in the buildings around the square with armed people driving sympathizers vehicle and drove back at the direction of the square. After hearing the gunshots and trying to offer assistance, the Police Armoured Police Vehicle turned around and drove back at the direction of the city square where the gun fire exchange was happening. When Police Armoured, Vehicle was only 20-30 metres away from the villa, it was hit on its treads with an antitank rocket coming from the villa. A few moments later, the defendant XXXX XXXX came out of XXXX XXXX villa climbed the tank and fired the tank's gun in the direction of the Police Armoured Police Vehicle twice. Police officers XXXX XXXX XXXX XXXX XXXX XXXXand XXXX were killed instantly [...] Police Officer XXXX XXXX XXXX [...] was killed by armed persons shooting from building located in the opposite direction. [71] The hostilities lasted for another 20 to 30 minutes, the villa was vacated, and the town of XXXX XXXX fell under the control "of the angry crowd of people who were injured or had their members killed during the incident and the angry crowd took control of the XXXX villa and destroyed it". It was in that setting, according to the judgment that the events of XXXX 1997, contested by the Respondents, occurred. [72] According to the Minister, the Respondents did not divulge that they were being prosecuted for murder and other crimes at the time of the first determination, but the Respondents said they that they learned about the case only after they were in Canada. [73] In our opinion, the relevant fact was that the Respondents had indicated clearly in their PIF at the time that they were wanted by the police, and they had provided details to explain the reason why they were wanted. Their knowledge of the criminal procedures or not is not relevant. It is whether the information they provided did not allow the IRB at the time to fully assess their asylum claim. [74] In their PIFs, dated XXXXand XXXX 1999, to the question, " Are you wanted by the police or military or any other authorities in any country?" both Respondents answered, "Yes", but they did not provide any details in the space reserved for that in case of a positive answer. [75] However, in the narrative provided with the PIF of XXXXin XXXX 1999, on which his father XXXX also based his claim in XXXX 1999, they wrote that XXXX was arrested eight times in the past in Albania and interrogated about things that XXXX did not know. They also wrote that they had a long family history of hostility with the communist regime in Albania, and they were treated as "Kulak" and pariahs because of their political opinions. XXXX wife was a prominent member of the Democratic Party and their son and brother XXXX was actively involved in politics, as a XXXX XXXX 1996 and 1997. [76] The Respondents wrote in the PIF that on XXXX XXXX XXXX 1997, XXXX XXXX then a known militant and a XXXX of the Social Democratic Union Party, was shot. On XXXX XXXX XXXX 1997, shots were fired at their home (the villa), XXXX was seriously injured, he went for treatment in XXXX, and he stayed there in hiding. [77] On XXXX XXXX XXXX 1997, their villa was shot at with bazookas and rockets. Finally, the family left XXXX and went to XXXX in late XXXX 1997, because they were told by two different friends that their life was in danger and they must leave XXXX. [78] With regards to the events of XXXX XXXX XXXX 1997, the Respondents wrote in the PIF that in their absence, while in hiding in Shkodra, they learned their villa had been attacked with bazookas and heavy weapons, and one of their friends who was staying at the villa had been killed. They had learned about the attack while watching the news35. [79] They disclosed the relevant facts in their PIFs. [80] They also testified that they had a hearing in 1999. XXXX XXXX the designated representative of XXXX, was also a claimant in 1999. He was about XXXX years old at the time of the events in Albania and XXXX years old at the time of the asylum claim. He testified convincingly, and he told the Tribunal that they had a hearing just like this one at the time of the first determination and explained everything to the IRB. XXXX testified to the same effect. [81] However, the Notice of Decision states, "The claim was granted without a hearing on the XXXXof XXXX 1999"36. [82] Though the claims were granted without a hearing, the Respondents mentioned that they had said "everything". There is no recording or written transcript to corroborate their testimony, and we do not know what additional information they had provided. [83] A thorough examination of the IRB Rules at the time of the initial determination37 and the Respondents' credible testimony confirm that they were most likely invited for a Conference with a Hearing Officer (HO). Under the said Rules, when examining a file, the HO was responsible: - The HO could summon the parties to "attend and participate in a preliminary conference with a refugee hearing officer regarding any matter concerning the claim"38. - To notify the Minister if he is of the opinion that matters involving Article 1E or F (exclusion)39. - During that Conference, the HO assessed the documents and the PIF of the person and "discuss any other matter with the person concerned that could assist in expediting the claim", among other things. - At the end of the Conference, the HO made a report where he suggested holding a hearing or if the HO is of the opinion that the person could be determined to be a Convention refugee without a hearing, shall forward the file to a member for final decision40. [84] About determination of claims without hearings, the above Rules stated if the member received a file for determination without a hearing, he or she must again verify if there is no need to notify the Minister or to make sure that the Minister was not invited before taking the final decision41. [85] Based on these observations, after the Tribunal's thorough examination of the IRB Rules at the time of the first determination, and after hearing the Respondents' testimonies and their written arguments where they said that they had a 45-60 minutes 'hearing', the Tribunal concludes that they at least participated in a Conference with a Hearing Officer, where they had provided additional information and the HO recommended that their claim be accepted without a hearing, and after verification, the member also concurred. [86] This evidence also added weight to their testimony regarding the fact that they had divulged all the relevant facts to the IRB at the time of first determination. [87] The events of XXXX XXXX occurred on XXXX XXXX XXXX 1997. An arrest warrant was issued against the Respondents on XXXX XXXX XXXX 1998, and the initial session of the trial occurred on XXXX XXXX XXXX 199842. The Respondents left Albania in XXXX 1999. They said in their PIF that they were wanted when they left, they explained why, and they provided all the facts in their narrative. [88] The HO and the member are two professionals with a knowledge of the refugee laws. Both of them decided that it was not necessary to notify the Minister of a possible exclusion under section 98 of IRPA, after examining the files and the declarations of the Respondents. There is no evidence that the Respondents misled the Tribunal at the time of the first determination, because the IRB had all the facts needed when deciding the case and did not see the need to notify the Minister regarding a possible 1F(b) exclusion. [89] These findings lead us to conclude that the first decision was not obtained as a result of misrepresentation because they did divulge all material facts regarding their claims. This would suffice to reject the application to vacate, but the Tribunal will address the exclusion on as a subsidiary issue. Article 1F(b) of the Convention b) Did the Respondents commit a serious nonpolitical crime before their admission in Canada in 1999? The law [90] According to section 98 of the IRPA: 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. [91] According to sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees: E. [...] F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) [...] (b) He has committed a serious nonpolitical crime outside the country of refuge prior to his admission to that country as a refugee. (c) [...] [92] The Convention and section 98 of the IRPA do not define what is a serious crime under Article 1F(b) of the Convention. [93] In the Febles43 decision, the Supreme Court of Canada states the goal of Article 1F(b) of the Convention, which is to exclude persons who have committed serious crimes. To do so, we need to strike a balance between those who are fleeing oppression in their country, and the protection of citizens in the receiving country from dangerous criminals. [94] In the Wahab44 decision, the Federal Court states that the RPD may consider all the evidence when assessing misrepresentation or withholding of material facts and provide explanation with respect to what relevant matter as such findings may enable the RPD "to consider if that person may be excluded under article 98 of IRPA" [95] The Minister highlighted the fact that the judgment says that the Respondents had hired guards to watch their villa in XXXX XXXX, as well as themselves in XXXX 1997 and said that the affidavits presented during the trial confirmed it. The Minister based her case on the content of the judgment (M-13). [96] There is no need to have a conviction when determining if there are serious reasons for considering that a person has committed a serious crime under Article 1F(b). However, a Court decision or a police report a foreign state is often considered reliable sources of information when assessing the facts surrounding criminal conduct. [97] There is also a presumption that a document emanating from a foreign state authority is presumed authentic45 unless proven otherwise. We usually give probative value to documents such as passports, identity documents, birth certificates, etc., as being proof of their content, because they are issued by a goverment. In our opinion, a judgment or a police report fall into the same category. [98] However, in the present case, the Respondents allege that the findings of the XXXX 2000 judgment is not reliable in concluding that they have committed a serious crime because it was politically motivated, made by a corrupt regime and their fundamental rights were not respected. [99] The Respondents have provided more credible evidence to reverse the above presumption regarding the judgment. [100] As indicated in our analysis under section 109(1), the Respondents' file was assessed by the Hearing Officer and by the IRB member and both did not find it necessary to notify the Minister for a possible exclusion under Article 1F (b), though the Respondent indicated that they were wanted by the authorities of their country and provided all the pertinent details. [101] We would have arrived to the same conclusion because when making a decision, the RPD does not decide in a vacuum but takes into consideration several elements, including the conditions in a given country at the time. Politic and Corruption [102] The Respondents said that their brother and son XXXX was a political XXXX in 1996 and 1997 and was shot at in XXXX 1997. XXXX was severely injured in XXXX when someone shot at them in their home on XXXX XXXX XXXX and their home was damaged with shots of bazookas at their villa on XXXX XXXX XXXX 1997. The judgment mentioned that the respondents were subjects of attacks in XXXX and XXXX 1997. The Respondents say it was politically motivated, but the judgment says it was because the respondents wanted to protect themselves because they were the victim of extortion. [103] They also described, in their PIFs at the time and during their testimonies, a very tumultuous and conflictual social and political environment in Albania akin to a civil war at the time, and their family was closely implicated due to their political and economic activities. [104] Either way, the Respondents were intitle to hire guards to protect themselves from their rivals in a country that was at the brink of civil war and chaos without functioning government institutions according to the XXXX 2000 judgment. [105] Various news articles contemporaneous to the events of XXXX XXXX XXXX 1997, and the trial show that this trial was politically motivated46. A news article with the header, "The Investigation of XXXX XXXX a Farce", and another one dated XXXX XXXX XXXX 1998, indicate that the trial was ordered and controlled by the politicians in power in Albania, and the accused were not interrogated by the investigators and many were called as witnesses, but they had refused to be manipulated47. [106] Another article dated XXXX XXXX XXXX 2000, with the title "The Court Assigns a Specialist From the Ministry of Order", indicates that the three witnesses were not present during the trial and the prosecution relied on their written statements, because two of them were abroad and another one was dead48. [107] Moreover, the expert witness of the government in XXXX XXXX XXXX XXXX XXXX XXXX, declared in XXXX 2000 that his expertise was incomplete; the prosecutor accepted it, and the Court admitted it into evidence in convicting the accused. [108] The Respondents provided several documents regarding corruption49 in the judicial system in Albania. That evidence shows that the judge who presided at their trial, XXXX XXXX XXXX XXXX, was dismissed in 2019 because of his contacts with organized crime. [109] These are independent accounts regarding the XXXX 2000 judgment, and this Tribunal gives them probative value. These documents show that three years after their trial, in 2001, the Chief investigator in the Prosecutor General's office, XXXX XXXX XXXX was arrested and charged in connection with a drug operation. [110] As a whole, the above evidence shows that the judicial system in Albania is corrupt and unreliable; which corroborates the Respondents' allegations regarding possible manipulation and corruption in the police and judicial system Albania then and now. Due Process [111] Though the Respondents were hiding and therefore could not be reached to be served with any legal procedure at the time, the evidence shows that they were never summoned to appear in Court. These were rare circumstances, because they were afraid for their lives at the time of the proceedings in 1998. [112] The Tribunal notes that the Canadian authorities have refused to extradite the Respondents to Albania following their conviction in absentia. A communication between the Canadian immigration authorities obtained by the Respondents when they applied for Canadian citizenship states the following: Note that Canada will not be proceeding further with extradition in this matter. The evidence submitted does not meet Canadian legal requirements for extradition as to substance and form. Further, Albania's judicial system is not adequate to meet Charter Requirements50. [our emphasis] [113] In the present case, the Respondents certainly did not have the opportunity to provide their side of the story, but it was not established that they were not served because the authorities failed to do so but because they could not be found since they were in hiding in Albania then abroad. [114] The Respondents have raised sufficient reasons to reverse the presumption that the facts stated in the XXXX 2000 Judgment are sufficient to conclude that they have committed serious nonpolitical crime in Albania. CONCLUSION [115] Based on these serious issued raised by the Respondents regarding their profile, the political and social conditions in Albania at the time of the events of XXXX 2017, and the fact that they have provided all the relevant information at the time of first determination; the Tribunal cannot rely solely on the XXXX 2000 judgment to conclude that the Respondents would have been excluded under article 1F(b) at the time of the first determination. [116] The Minister has not established, on a balance of probabilities, that the Respondents failed to disclose all the relevant facts related to a relevant matter at the time of the first determination, which would have warranted their exclusion under Article 1F(b) of the Convention. [117] Given our conclusions under subsection 109(1), there is no need to address the residual part of the evidence under subsection 109(2). DECISION [118] The Application to Vacate under subsection 109(1) of the IRPA is rejected. Harry Dortelus December 10, 2020 /jcbo 1 Exhibits M-3 and M-13: Personal Information Forms (PIFs) of XXXX and XXXX. 2 Exhibit M-7: Convention Refugee Claim Notice of Decision signed in September 1999. 3 Application to Vacate Refugee Protection, December 16, 2011. 4 Application for a judicial review to the Federal Court by XXXX and XXXX, June 30, 2014. 5 Federal Court judgment by Justice Bédard on January 29, 2015. 6 Minister's new Application to Vacate and an Application under section 1F(b) of the Convention, dated January 26, 2018. 7 Please refer to the written decision of the Tribunal dated February 12, 2018, regarding the petitions of the Respondents to reject the Minister's Application to Vacate and oral decision record dated August 19, 2019, regarding the written petitions filed by the Respondents. 8 Motion of the Respondents dated December 30, 2019, to postpone the Minister's applications until the Federal Court decision of their appeal of the Tribunal's decision on their interim motions. 9 Decision of the Tribunal dated January 2020 regarding the motion of the Respondents to postpone hearing pending Federal Court decision. 10 Chairperson's Guideline 6: Scheduling and Changing the Date or Time of a Proceeding. 11 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. 12 Minister's final observations, dated March 6, 2020, and received on the same date. 13 Respondents' response to the Minister's final observations dated April 2, 2020, and received on the same date. 14 XXXX report dated XXXX XXXX 2018; Conference and decision on the Bench, 19 August 2019. 15 Tribunal's oral decision dated August 19, 2019. 16 Exhibit M-10. 17 Exhibit M-12. 18 Exhibit M-13. 19 Minister application dated January 26, 2018, paragraph 23. 20 Minister's closing arguments, March 6, 2020. 21 Ibidem, paragraph 27. 22 Respondents' closing arguments, April 4, 2020. 23 Exhibits P-12 and P-13. 24 Respondents' response to the Minister's final observations dated April 2, 2020, paragraph 101. 25 Olutu, Charles v. M.C.I. (F.C.T.D., no. IMM-834-96), Dubé, December 31, 1996. 26 M.C.I. v. Pearce, Jennifer Juliet (F.C.T.D., no. IMM-3826-05), Blanchard, April 18, 2006, 2006 FC 492, paragraph 21; M.C.I. v. Wahab, Birout (F.C., no. IMM-1265-06), Gauthier, December 22, 2006, 2006 FC 1554. 27 Article 1F(b) of the Convention and Immigration and Refugee Protection Act (IRPA), article 98. 28 Coomaraswamy, Ranjan v. M.C.I. (F.C.A., no. A-104-01), Rothstein, Sexton, Evans, April 26, 2002, 2002 FCA 153, paragraph 17; Aluyi, Taiye Paddy v. M.C.I. (F.C., no. IMM-326-06), von Finckenstein, August 25, 2006, 2006 FC 1028, paragraph 9. 29 Immigration and Refugee Protection Act, subsection 109(2); Coomaraswamy, Ranjan v. M.C.I. (F.C.A., no. A-104-01), Rothstein, Sexton, Evans, April 26, 2002, 2002 FCA 153, paragraph 16. 30 M.C.I. v. Pearce, Jennifer Juliet (F.C.T.D., no. IMM-3826-05), Blanchard, April 18, 2006, 2006 FC 492, paragraph 36; M.C.I. v. Wahab, Birout (F.C., no. IMM-1265-06), Gauthier, December 22, 2006, 2006 FC 1554. 31 Minister's final arguments, dated March 6, 2020, paragraph 8. 32 Exhibits M-3 and M-6. 33 Exhibit M-13: XXXX District Court Decision dated 31 January 2000. 34 Exhibit M-13, page 72 (12). 35 Exhibit M-3: Narrative of XXXX, page 3. 36 Exhibit M-7. 37 Immigration and Refugee Board (IRB) Rules, DORS-93-45, s. 9(2), 18. 38 IRB Rules, DORS-93-45, s. 18. 39 IRB Rules, DORS-93-45, s. 9(2). 40 IRB Rules, DORS-93-45, articles 18(3). 41 IRB Rules, DORS-93-45, s. 19. 42 Exhibit M-13, pages 61 and 72. 43 Febles, Luis Alberto Hernandez v. M.C.I. (S.C.C., no. 35215), McLachlin, LeBel, Rothstein, Moldaver, Wagner (majority); Abella, Cromwell (dissenting), October 30, 2014, 2014 SCC 68, paragraphs 35 and 36; Jayasekara v. Canada (Minister of Citizenship and Immigration), [2009] 4 F.C.R. 164 (F.C.A.), 2008 FCA 404; Zrig v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 761 (C.A.). 44 M.C.I. v. Wahab, Birout (F.C., no. IMM-1265-06), Gauthier, December 22, 2006, 2006 FC 1554, paragraph 29. 45 Ramalingam [1998] FCA no 10, paragraph 5; Rasheed, Sohail v. M.C.I. (F.C., no. IMM-1956-03), Martineau, April 21, 2004, 2004 FC 587, paragraph 19. 46 Exhibit M-23: News articles. 47 Exhibit M-23, page 416. 48 Exhibit M-23, page 424. 49 Exhibits P-12 and P-13; R-25 (M-23) and R-26 (M-23). 50 Communication obtained by the Respondents from the Canadian authorities and submitted to the Tribunal on February 21, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ Immigration and Refugee Board of Canada Refugee Protection Division Commission de l'immigration et du statut de réfugié du Canada Section de la protection des réfugiés RPD.25.11 (September 17, 2018) Disponible en français RPD File No. / N° de dossier de la SPR : MB1-07314 MB1-07319