TB7-12302

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 : TB7-12302 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 July 26, 2018 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hadayt Nazami 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), is a citizen of Pakistan. He appeals a decision of the Refugee Protection Division (RPD) that found that he was neither a Convention refugee nor a person in need of protection. The RPD rejected the claim pursuant to both sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1 The RPD also found that the Appellant was asylum shopping and lacked subjective fear and as a result was not credible about his fears. [2] The Appellant asks that his appeal be allowed and he be granted protection and recognized as a Convention refugee. DETERMINATION [3] Pursuant to paragraph 111(1)(c) of the IRPA, the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination. Background [4] The Appellant's describes his circumstances in his Basis of Claim (BOC) narrative.2 [5] In brief; the Appellant describes his upbringing, education, work experience as a jail officer, and his religious affiliation as a Shia Muslim. As a jail officer, he provided support for less fortunate individuals in jail. Because of an incident on May 15, 2009, where he was attacked, he ceased providing his welfare support for prisoners. [6] In January 2012, a Shia prisoner was released because of his efforts. As a result, he was attacked while coming back from his agricultural land, and the police refused to take a First Incident Report (FIR). After this incident, the Appellant suffered a heart attack on February 22, 2012; he did not report to work, and was subsequently dismissed from his job on April 22, 2012. The Appellant managed his ancestral agricultural land after he recovered. [7] The Appellant describes several actions by the government, one of which resulted in the recovery of his stolen property taken in an incident in 2009. The Appellant refused to act as a witness in another case and moved to Lahore the first week of March 2016. On April 18, 2016, shots were fired at the Appellant and he did not report the incident to the police. Fearing that he could not stay in Pakistan, he flew to the United States of America (USA) on XXXX XXXX XXXX XXXX XXXX and did not file a claim for refugee protection. On XXXX XXXX XXXX XXXX he fled to Canada and made a claim for refugee protection [8] The Appellant's hearings were held on March 16, 2017 and May 5, 2017. In a decision of June 6, 2017, the RPD found that the Appellant was neither a Convention refugee nor person in need of protection. Admissibility of New Evidence [9] The Appellant submitted new evidence for consideration by the RAD. In that the RAD is returning this case to the RPD for re-determination, it will not make a decision on the new evidence. Memorandum of Appeal [10] The following issues are raised by the Appellant: * Whether the RPD erred in concluding that the Appellant was at target by criminals rather than the real perpetrators; members of extremist Sunni organizations. * Whether the panel erred in stating that his evidence was not plausible when making a negative credibility inference. * Whether the panel erred in its analysis of the Appellant's evidence from Imambargha. * Whether the panel erred in concluding there was state protection in Pakistan. * Whether the panel erred in its analysis of the delay in claiming in concluding the Appellant did not have subjective fear when the evidence shows the opposite. ROLE OF THE RAD [11] The Appellant made no submissions regarding the standard of review. The decision of the Federal Court of Appeal (FCA) in Huruglica 3 provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. [12] The FCA stated that with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to paragraph 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. For questions of fact, mixed fact and law, and law, I have applied the standard of correctness, as per Huruglica. In assessing issues involving credibility of oral testimony, the RAD may apply a modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage in making a particular finding as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [13] Accordingly, the RAD will conduct its assessment of the RPD's decision on the basis of the principles outlined above MERITS OF THE APPEAL Determinative Issue, Insufficient Reasons and Credibility [14] The RPD member drew two adverse inferences; one on the inconsistency between documentation submitted and documentation and the second, testimony in regards to his job function. The other adverse finding were based on the fact that the summons and evidence was inconsistent with his testimony as to the author and situation. The RPD also found that the Appellant would face no more than a mere chance of persecution, on a balance of probabilities, because of only two violent circumstances in seven years. [15] The Appellant submits that this error was not put to him during the hearing, nor was an explanation asked for regarding this inconsistency. The Appellant offers an explanation along with his efforts to correct the inconsistency. A letter submitted in new evidence from the Imambargha,4 authored by Syed Chan Peer, corrects this inconsistency. The Appellant also submits that the RPD did not deal with the substance of the letter, only this issue around job function. [16] The Appellant challenges the RPD finding that he disbelieved him when he testified that the inmates targeting him were in fact Sunni extremists. He submits that the RPD's reasoning on this issue was not put to him at the hearing and no opportunity was given him to testify to this issue. [17] The Appellant further submits that the RPD's findings that a Magistrate would not have been used for terrorism hearing were in error. The Appellant submits that his explanation, given during the RPD hearing, was not addressed as to its validity in the RPD decision. [18] The RAD finds that the RPD has made an error in law. Inconsistencies noted in the RPD decision need to be put to the Appellant in order to give an explanation. Such explanations can then be addressed and valued in a decision. In reviewing the RPD hearing, the RAD finds that the RPD did not account for the Appellant's explanation of why he was subpoenaed to appear before a Magistrate. [19] The RAD finds that these errors are sufficient to overturn any credibility findings made by the RPD, and therefore render other aspects of the decision invalid. Subjective Fear-delay and failure to claim [20] The RPD found that the Appellant did not provide reasonable explanation for his lack of subjective fear in his delay in leaving Pakistan and failure to claim in the USA. [21] The Appellant submits that the RPD erred by failing to fully understand and apply the explanation from him in regards to his stay in the USA. He submits that the Federal jurisprudence referred to is not applicable. His explanation at the hearing was that he was assisted by an agent who had a premade plan and this plan was ignored in the RPD's decision. [22] The RAD agrees with the Appellant on this issue. The Appellant gave an explanation that was not addressed in the RPD's decision. The RAD agrees with the RPD and that a delay in claim is not always considered a determinative issue in a refugee claim. The RAD finds that in this instance, given the explanation of the Appellant, it is not determinative. State Protection [23] The RPD found that the police showed at an operational level, that they could provide adequate protection. The RPD reasoned that the police called him to identify the perpetrators and summoned him as an identity witness in court, some five years after the robbery. Because of this, the RPD found that the Appellant had not rebutted the presumption of state protection and the claim fails. [24] The RAD finds that the issue of state protection was in adequately addressed in the RPD decision. References to support the National Documentation Package (NDP) documentation need to be addressed in order for this to be considered a fulsome finding. Disposition [25] The RAD refers the matter back to the RPD for re-determination according to paragraph 111(1)(c) of IRPA. (signed) "Robert S. Garner" Robert S. Garner July 26, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit RPD-1, RPD's Record, at pp. 22-27. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Exhibit P-2, Appellant's Record, at p. 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-12302