TB5-08088

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 File No. / N° de dossier de la SAR : TB5-08088 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 16, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Raj Sharma Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),1 the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. BACKGROUND [3] The Appellant's claim for refugee protection was joined to that of her father XXXX XXXX XXXXhan and five other joined claimants. The principal claimant and two joined male claimants (XXXX XXXX XXXX and XXXX XXXX XXXX) were given positive decisions by the RPD. [4] The Appellant alleged before the RPD that her father (the RPD principal claimant) is a fifty-year-old civil servant who has worked for the Pakistani government for 26 years. He received an overseas posting at the Embassy of Pakistan in XXXX, XXXX in XXXX 2010. His wife and children, the joined claimants joined him in XXXX in XXXX 2010. He stated in his Basis of Claim (BOC) form narrative that "The posting overseas was a dramatic increase to my monthly salary, but also provided an opportunity for my children to study outside Pakistan." He alleges that he faced some employment discrimination because he is Kashmiri. He alleges that he was not politically active, or a member of a political party and he did not donate funds to any political parties in Pakistan. [5] On XXXX XXXX, 2014, police released a photograph of XXXX XXXX XXXX (XXXX), the principal claimant's adult son, in which he was carrying a cricket bat that appeared to resemble a large weapon. The principal claimant and his son XXXX attended the police station with Mr. XXXX XXXX XXXX, XXXX XXXX XXXX XXXX Embassy of Pakistan in XXXX and XXXX was cleared of all wrong-doing, no charges were laid and the 'wanted' notice was dropped. The photo and mistaken allegation of terrorism against XXXX gained media attention in XXXX. On XXXX XXXX, 2014, the principal claimant alleges that he was told that his services were no longer required at the Embassy. The claimant states in his BOC form narrative that he perceived the dismissal from his posting as, "now my family and I were being punished for no justifiable reason." The principal claimant alleges that he and his family did not leave XXXX as instructed by the ambassador. The principal claimant hired a lawyer in XXXX to write a letter to seek assurances from the ambassador that neither he nor his family would be considered terrorists and that no complaint against them would be forwarded to the authorities in Pakistan. The principal claimant feared return to Pakistan because he feared that he and his family members would be arrested upon return to Pakistan due to alleged threats by the Pakistani XXXX to XXXX. [6] The claimants were issued visitor visas to Canada in July 2014 and the principal claimant alleged that they wanted to visit Canada because they have friends in Canada and two of his children wanted to explore the possibility of studying in Canada. The Basis of Claim forms of the joined claimants were based on the narrative of the principal claimant. The claimants left XXXX to Germany on XXXX XXXX, 2014. The claimants left Germany to Canada on XXXX XXXX, 2014, and arrived on the same day. The claimants made a refugee claim on January 5, 2015. [7] The Appellant's refugee claim was heard on March 23, 2015. In a decision of March 29, 2015, the RPD accepted the claims of the principal claimant and two joined male claimants but rejected the remaining claimants including the Appellant's claim, finding that they were neither Convention refugees pursuant to section 96 of the Act nor persons in need of protection pursuant to section 97(1) of the Act. The Appellant is the only failed RPD claimant to appeal to the RAD. RPD Findings [8] The RPD in its Reasons found: a) The Appellant did not establish a nexus to a Convention ground or establish that she has a derivative claim as a result of her relationship to her father the principal claimant or her brothers the joined claimants XXXX or XXXX. b) The Appellant based her claim on that of her father and brothers and has not been personally targeted. [9] The Appellant submits the following issues: a) The RPD based its decision on an erroneous finding of fact. b) The RPD breached procedural fairness in examining the Appellant. ROLE OF THE RAD [10] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD. ANALYSIS OF THE MERITS OF THE APPEAL Decision on Erroneous Finding of Fact [12] The RPD found no evidence was provided regarding what interest or perception of political opinion would be imputed to the Appellant either because of her own views or Kashmiri identity or because of her relationship to her father or brothers. The Appellant submits the RPD ignored evidence the Appellant and the entire family were involved in activities and with people who were considered to be oppositional to Pakistan. The RAD finds the Appellant's argument has merit. [13] The RAD has reviewed the RPD record including the documentary evidence and the audio recording of the hearing. The Appellant further submits that the Federal Court in Oyarzo3 provides that the determination of imputed political opinion is not whether the Immigration and Refugee Board (Board) thinks the Appellant participated in political activities, but whether the state authorities would consider the Appellant's conduct as political activity. The RAD in considering the numerous media articles associated with the central issue in this appeal finds it is reasonable to believe that the Appellant as much as she may not have been an active participant in the protests surrounding her father's dismissal from the Pakistani embassy, is certainly directly associated with those activities. [14] The RAD notes the words of the Federal Court: The courts clearly hold that the ground of political opinion may correspond either to the claimant's actual opinions or to those rightly or wrongly attributed to him.4 In this regard, the imputed political opinions need not have been directly expressed by the applicant or be necessarily consistent with his deepest convictions. Even if, in such a case, the applicant may have more difficulty in establishing the relationship between this opinion and his fear of persecution, this does not prevent him from being protected. (Ward, supra, at pages 746-47). [15] The RAD finds the media coverage of this event was widespread and the testimony provided at the RPD hearing supported the notion that the attention brought on by the incident had upset the Pakistani authorities. The Appellant submitted that the incident was directly covered by media outlets in Pakistan, "stating that the XXXX family is not ready to go back as they have the backing of certain lobbies who have promised to help them in their continued stay".5 The RAD finds the "family" in this article and a number of articles of a similar nature would imply the Appellant is directly involved in the action to remain in XXXX. [16] A subsequent article6 submitted in evidence describes, "The Pakistani embassy is accusing the family of destroying Pakistan's supposedly soft image abroad". The RAD further notes the Appellant is clearly visible with her family members in a photograph7 appearing on a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX", dedicated to the XXXX family's' problems with Pakistani authorities. [17] The Appellant additionally submits that a news article submitted in evidence speculates about the involvement of a number of individuals who are known to oppose the Pakistani government in the plight of her father. The article suggests that perhaps the Appellant's father was involved in an "international agenda" and supporting the Indian government. The RAD finds it reasonable to believe that the Pakistani government might share the same concerns. [18] The RAD finds there is sufficient persuasive evidence in the record to suggest that the Pakistani authorities would find the Appellant to be a person of interest if she were to return to Pakistan. The Appellant further submits that the documentary evidence states there is some evidence that police in Pakistan may detain relatives of wanted individuals to compel suspects to surrender.8 The Appellant argues that it is reasonable to assume that the authorities could arrest her in order to compel her father to return to Pakistan. [19] The RAD finds that upon its review of the evidence it is impossible to separate the Appellant from the risk faced by her father .The RPD was wrong to say there was no nexus. It is clear that she has nexus as a member of a particular social group, her family members composed of her father and two brothers, who the RPD has previously found are at risk. [20] The RAD's own review of the objective evidence supports the argument of the Appellant in this circumstance. Breach of Procedural Fairness [21] The RPD questioned the Appellant first during the RPD hearing finding that she had "no interest or perception of political opinion". The Appellant submits that the RPD failed to provide her with a real opportunity to testify about her political opinion and this was a breach of procedural fairness and natural justice. The RAD finds the Appellant's argument has merit. [22] The RAD has reviewed the audio recording of the hearing as well as the record. The RAD notes the Appellant was asked to provide a description of what happened in XXXX to essentially confirm the details and basis of the claim. The RAD notes this approach is what one might expect while assessing the initial claimant in a joined claim. The RPD followed with a few questions in respect of how she came to be aware of this information and what she feared if she were to return to Pakistan. [23] The RPD subsequently assessed the other claimants. The RAD finds the questions asked of the Appellant when compared to the questions asked of her brothers limited her responses. She was not asked the same types of questions or given the similar opportunities to testify and provide details of her political beliefs. The RPD appeared to make a greater effort to explore the background and political beliefs of the male joined claimants. [24] The RAD notes that the Appellant testified that she feared arrest at the airport because of threats made by the Pakistani XXXX in XXXX to her father. The RPD found that this aspect of her fear was unfounded because this aspect of the principal claimant's allegation was found to be lacking in credibility. The RPD in its Reasons concluded that no further evidence was provided regarding what interest or perception of political opinion would be imputed to the Appellant or the other two minor claimants because of their Kashmiri identity or their relationship with their father or brothers. The RAD finds this finding is unreasonable because the Appellant was not provided with a fulsome opportunity to address this aspect of her appeal. [25] The RAD finds that the effect of the problem with the examination of the Appellant identified above resulted in the Appellant not receiving a fair hearing. On the basis of the foregoing, the RAD finds that the Appellant has established a breach of procedural fairness. [26] Accordingly, the RAD finds that this decision must be set aside. DISPOSITION AND REMEDY [27] Section 111(1) of IRPA allows the RAD to: (a) confirm the determination of the RPD; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. CONCLUSION [28] The RAD has reviewed the totality of evidence in the RPD record, including the findings of the panel and the submissions of the Appellant. The RAD finds that the RPD based its findings on a selective and narrow reading of the evidence before it. The RAD finds that the RPD did not support its findings with specific and clear reference to the totality of the evidence before it. The RAD finds that the Appellant would be at risk of arrest and interrogation if she were to return to Pakistan due to an imputed political opinion. [29] For these reasons, the RAD is setting aside the decision of the RPD and substituting a positive determination as per s. 111(1)(b) of IRPA that the Appellant is a Convention refugee as she would face a serious possibility of persecution should she return to Pakistan. This appeal is allowed. (signed) "Robert Bebbington" Robert Bebbington September 16, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1) (a) and 97(1)(b). 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Oyarzo v. M.E.I., [1982] 2 F.C. 779. 4 Astudillo v. Canada (Minister of Employment and Immigration) (1979), 31 N.R. 121 (F.C.A.), at page 122; Oyarzo v. Minister of Employment and Immigration, [1982] 2 F.C. 779 (F.C.A.); and Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 746 and 747. 5 Exhibit RPD-1, RPD Record, pp. 522-533. 6 Ibid, pp.514-515. 7 Ibid, p.546. 8 Exhibit RPD-1, National Documentation Package for Pakistan, 30 January 2015, item 2.1, pp. 15-16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08088