TB5-05318

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 : TB5-05318 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 August 25, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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 XXXX (the Appellant), claims to be a citizen of Pakistan, and he appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the Refugee Protection Division for re-determination. [3] The Appeal is allowed. BACKGROUND [4] The Appellant alleged before the RPD that he is a citizen of Pakistan. He was from a Sunni family, and he secretly converted from Sunni to Shia, the minority sect of Islam in Pakistan. The conversion took place in 2010 when he was in the United Arab Emirates where he used to reside and work. In XXXX 2014, he returned to Pakistan. Shortly agfter his return he started to teach Shia to children, and received threatening phone calls from the XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX, 2014, he was assaulted and threatened to be killed if he doesn't recant his Shia faith. [5] The Appellant left Pakistan on XXXX XXXX, 2014 arrived in Canada on XXXX XXXX, 2014 via the UAE. [6] His claim was heard by the RPD on April 2, 2015 and by a written decision dated April 15, 2015, the RPD rejected the claim, finding the claimant not credible. [7] The Appellant did not provide new documents for consideration as new evidence pursuant to subsection 110(4) of IRPA1." The Appellant did not request an oral hearing before the RAD. [8] The Appellant requests that the RAD allow the Appeal and set aside the decision of RPD and find that the Appellant is a Convention refugee. In the alternative, the Appellants request the claim be referred back to the RPD to be reheard by a differently constituted Panel. APPELANT'S ISSUES: [9] The Appellant's issues are as follows: I. What is the appropriate standard of review? II. Did the RPD err in its credibility findings, and/or was its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of his claim, unreasonable? III. Based on the RAD's independent assessment of the RPD decision and the evidence adduced at the RPD hearing, is the Appellant a Convention refugee or a person in need of protection? [10] I will rephrase the Appellant's last two issues as is the Appellant a Convention refugee or a person in need of protection? STANDARD OF REVIEW [11] I agree with the Appellant's submission that the Federal Court decision in Huruglica2 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The jurisprudence on the appropriate standard of review is evolving but at present the decision of Justice Phelan is widely followed. That decision states3: [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." ANALYSIS [12] The RPD's determination is essentially based on a lack of credibility. The Appellant suggests that the RPD's credibility assessment is flawed. Following Huruglica, I recognize and respect the RPD's credibility finding. Moreover, I am allowing the appeal and therefore I need not dwell on the minutia of credibility analysis. [13] In this case, the RPD found that the Appellant is not credible but accepted that the Appellant had converted to Shia sect of Islam from the majority Sunni sect. The Appellant's alleged fear of persecution stems from this fact alone. It is trite law that a liar may also be a Convention refugee or a person in need of protection. Canadian jurisprudence states that where a claimant is found not credible, the Board must still objectively assess the facts and determine if the claimant has a well-founded fear of persecution.4 [14] The RPD accepted that the Appellant had converted to Shia sect for financial reasons; to stop paying the Zakat, a form of tax paid by Sunni's to the government. The RPD did not consider the risks posed due to the act of conversion and stopped its analysis after finding that the Appellant is not credible. [15] The RPD identified internal flight alternative (IFA) as an issue along with delay (subjective fear) as issues but did not explore these issues sufficiently for the RAD to make a determination whether the Appellant has a viable IFA in Pakistan, or whether the Appellant has established a well-founded fear of persecution due to a Convention ground. Thus, the RAD has inadequate information to make a determination if the Appellant is a Convention refugee or a person in need of protection. [16] Moreover, since no new evidence was submitted or accepted, the RAD cannot hold an oral hearing to explore those unanswered issues sufficiently from the Record to make a determination. Therefore, the RAD remits the matter back to the RPD for redetermination by a differently constituted panel. [17] The RPD is also instructed to explore whether a viable IFA is available to the Appellant should the Panel make findings similar to the one being quashed by the RAD. [18] Under most circumstances where the RPD has several concerns about the credibility of the person, the RPD may end the hearing. This case however is different because the RPD found the Appellant converted but was not credible on sincerity of the conversion; the allegation of teaching and assault. Despite that, the RPD is required to follow through on one key element of the claim it found credible: to explore further whether the Appellant is a Convention refugee or a person in need of protection. CONCLUSION [19] This appeal is allowed. (signed) "Attam Uppal" Atam Uppal August 25, 2015 Date 1 Appellant's Record, page 9. 2 Huruglica v. MCI. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., at paras 54 and 55. 4 Katalayi, Tshibola v. M.C.I. (F.C.T.D., no. IMM-179-97), Wetston, October 31, 1997, at para. 6-7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05318