MC0-08835

RAD File No. / No de dossier de la SAR : MC0-08835 MC0-08836 / MC0-08837 / MC0-08838 MC0-08839 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 19, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Stéphanie Valois Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX you are a citizen of Pakistan by birth and you have acquired South African citizenship. Your wife, XXXX XXXX XXXX, is a citizen of Pakistan and holds permanent resident status in South Africa. Your children are citizens of South Africa. You stated that you fear persecution in South Africa, as the population attacks individuals who, like you, are from abroad. You also stated that you face a risk to your lives in Pakistan due to a conflict with another family.1 [2] Sir, you are acting as the designated representative of your minor children.2 [3] The Refugee Protection Division (RPD) rejected your claims for refugee protection after concluding that you failed to establish a risk to your lives, if you were to return to live in Pakistan, that your family members who do not yet hold citizenship could obtain it, and that you could obtain confirmation that you are indeed a Pakistani citizen.3 [4] On appeal, you submitted that the RPD erred in its assessment and selection of the country of reference, as well as in its findings regarding your credibility, and that it failed or neglected to examine or assess relevant or determinative documentary evidence.4 [5] After analyzing your record, I am of the opinion that the RPD erred in choosing Pakistan as the country of reference and in its finding that you were not credible regarding the risk you would face if you were to return to live there. Based on your testimony and the documentary evidence, I have concluded that you have established a well-founded fear of persecution in South Africa if you were to return to live there. [6] In light of these conclusions, your appeal is allowed. ANALYSIS OF THE APPEAL [7] The role of the Refugee Appeal Division (RAD) is not to conduct a de novo consideration of the claims for refugee protection, but rather to determine if the RPD erred as alleged.5 I conducted my own analysis of your record by listening to the recording of the RPD hearing,6 reading the transcript7 as well as the documentary evidence and while considering the relevant law. I concluded that the correctness standard of review must be applied.8 A. The Refugee Protection Division's alleged errors [8] Subparagraph 3(3)(g)(ii) of the Refugee Appeal Division Rules (RAD Rules) provides that the person involved must state: (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.9 [9] In your memorandum, you submitted that the RPD made errors: - Regarding the choice of the country of reference, South African citizenship should be considered as a significant obstacle because Pakistani law prohibits dual citizenship, and because renouncing citizenship is detrimental and fraught with consequences. - It would not be reasonable for you and your family to take steps to regain your Pakistani citizenship, as you would find yourself in the same initial situation of danger that made you leave that country.10 - Regarding its findings involving your credibility, the omissions identified by the RPD cannot constitute grounds for rejection when the totality of the evidence indicates, on a balance of probabilities, that you are still threatened by the agent of persecution and his family and that, in the past, you were victimized by their actions: cruel and unusual treatment, unjust accusations and imprisonment, and risks to your life. - On this same topic, the RPD failed to consider the evidence regarding honour crimes, the lack of state protection in Pakistan, and the agent of persecution's ability to easily corrupt police forces, as was the case in his 1996 arrest.11 - Regarding your trips to Pakistan, it was unreasonable for the RPD to draw negative inferences when you explained the reasons for your visits and the means you took to protect yourself during those visits.12 - Regarding the 2017 attack in Pakistan, the RPD erred in assessing too harshly your testimony that you did not go to the hospital because you were afraid to go and that your cousin later convinced you to go to the police, since minor or secondary inconsistencies should not lead to a finding of an overall lack of credibility.13 B. The choice of Pakistan as a country of reference for you and your children [10] Based on my own analysis of your record, the RPD erred in selecting Pakistan as the country of reference for you and your minor children. The reasons are as follows. [11] According to jurisprudence, refugee protection will be refused if the evidence shows that, at the time of the hearing, it is within the claimant's control to obtain citizenship from a particular country where this person has no well-founded fear of persecution.14 [12] At the time of the RPD hearing, you and your children held South African citizenship and were not in possession of Pakistani passports. Even if you could take steps to obtain Pakistani citizenship for them and confirm your own,15 and considering the fact that you had reasons for not wanting to claim protection from that country, I am of the opinion, with all due respect, that the RPD erred in choosing Pakistan as the country of reference. C. Analysis of your credibility regarding the situation in Pakistan [13] Now, with respect to your credibility regarding your allegations involving the situation in Pakistan, you and your wife stated in your BOC Forms and testimonies before the RPD the reasons why you did not want to seek protection in that country because, in the past, you were personally and wrongfully accused of murdering the brother of a person who, along with other members of his family, wanted to get back at you and still wished to go after you. [14] In its determination, the RPD analyzed your allegations under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). Here, I am not of the opinion that it committed an error. [15] The RPD accepted that you were falsely accused of murder in Pakistan and that you experienced an injustice by being detained for two years on evidence that was not genuine.16 But it did not find it credible that you and your family would be at risk in that country due to XXXX XXXX XXXX family if you returned to live there at the time of the hearing. In reaching this conclusion, it relied on omissions in your BOC Form regarding the threats you allegedly received during your trips to Pakistan, except during the 2017 trip, and the fact that, in its view, you did not offer reasonable explanations for these omissions. It also found that these omissions cast doubt on your allegations regarding the attack you allegedly suffered in 2017.17 [16] When refugee protection claimants swear to the truth of certain allegations, they are presumed to be telling the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.18 The RPD can draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.19 [17] I agree with your argument that there were insufficient grounds to rebut the presumption of truthfulness regarding your allegations. Upon assessing all of the evidence, I am of the opinion that the RPD should have found that you had established, on a balance of probabilities, that you would face a risk to your life within the meaning of paragraph 97(1)(b) of the IRPA if you were to return to live in Pakistan, notwithstanding the fact that you obtained visas allowing you to visit Pakistan and that you went there for what were, nevertheless, short periods of time. It should be noted that you never stated that your lives were threatened by the Pakistani authorities, but by a person supported by family members who, in the past, accused you of murdering his brother. That said, and considering the omissions that were identified, I am of the opinion that the RPD did not err when it found your credibility undermined regarding what happened during your visits to Pakistan, except for the visit that took place in 2017. [18] With all due respect to the RPD's work, I see no reason to rebut the truthfulness of your testimony regarding the attack you claimed to have experienced while in Pakistan in 2017.20 I am aware that this testimony has not been corroborated by documentary evidence. But as long as the testimony benefits from the presumption of truth, it need not be corroborated. In other words, caution must be exercised before concluding that refugee protection claimants must present evidence to corroborate their allegations.21 [19] Drawing on the relevant case law, Professor Hilary Evans Cameron's treatise suggests that the notion regarding benefit of the doubt is fundamental to refugee law and should assist decision-makers faced with certain doubts after analyzing all the evidence: When the Court uses this wording, it highlights the fact that when all is said and done, the member may be left in doubt. Since the presumption of truthfulness decrees that this doubt may not harm the claimant unless the member can find valid reasons to support it, if she cannot quantify her suspicions, she will simply have to accept the evidence that she distrusts-she may even have to accept evidence that she strongly believes is untrue. 22 [20] While there may be some doubt regarding threats from the person who accused you of murdering his brother in the past, I have concluded that I do not have sufficient reason to doubt the credibility of your verbal and written testimony, which states that you were attacked in 2017 and that this person still wants to get back at you. [21] In your memorandum, you submitted that the RPD failed to consider and rule on the evidence involving honour crimes, even though that evidence was filed with your legal counsel's written submissions in XXXX 2019. You also submitted that the RPD failed to assess the lack of state protection in Pakistan and the agent of persecution's ability to easily corrupt the police forces, as was the case in your 1996 arrest.23 [22] I analyzed these issues. Documentary evidence indicates that the judicial system faces challenges that were highlighted by the Human Rights Committee, including lack of transparency in procedures for the appointment of judges, a shortage of judges and prolonged vacancies, insufficient budgetary allocations, considerable case backlogs, lack of quality continuing legal education for legal professionals, and corruption within the judiciary.24 The Human Rights Committee also expressed concern regarding the extent of prison overcrowding and reports of poor detention conditions in prisons, along with the high proportion of people held in pretrial detention, in some cases for a period exceeding the maximum penalty for the offence with which they were charged.25 Documentary evidence indicates that, due to a lack of space, detainees awaiting trial are often held in the same facilities as those who have been convicted and sentenced to prison.26 As for the police, documentary evidence indicates that they sometimes make arbitrary arrests in order to extort bribes.27 [23] Based on all of the evidence and with consideration for what happened to you in the past, I am of the opinion that you have established, on a balance of probabilities, that, in the future, you and your wife could, under paragraph 97(1)(b) of the IRPA, face a risk to your lives. I would add that, that even though you were eventually acquitted of murder charges, you could face false accusations and possible imprisonment in the future, potentially resulting in what constitutes cruel and unusual treatment. Due to major corruption problems in the judicial system and issues regarding police practices in Pakistan, I am of the opinion that any presumption that the authorities can protect you is rebutted and that internal flight alternatives are not applicable in your case. D. Your fear of persecution if you were to return to live in South Africa [24] According to the documentary evidence, South Africa is facing serious manifestations of xenophobia from a section of its population, which have serious consequences for those targeted. While the authorities have adopted an action plan to counter these manifestations, this plan does not address the fundamental issue of accountability or the possible conviction of those who violently manifest their xenophobia and have done so for many years.28 Thus, we are faced with a situation that can be described as impunity for those responsible. While South Africa's judiciary is considered independent, judges cannot intervene on their own initiative when charges are not brought against those responsible for these xenophobic manifestations. In addition, their decisions are not always implemented.29 [25] Although refugee protection claimants have to establish their case on a balance of probabilities, they do not, however, have to prove the persecution would be more likely than not. To conclude that a reasonable or serious possibility of persecution exists, a 50% chance (i.e., a probability) need not be established, but there must be more than a minimal possibility, as it is understood that there is no intermediate ground between the two.30 According to jurisprudence, a well-founded fear of persecution can be inferred from the experiences of those in comparable situations.31 [26] Due to the situation in South Africa today, I am of the opinion that any presumption that the authorities can protect you is rebutted and that no internal flight alternative is available to you. Based on all of the evidence, I therefore conclude that you, your wife and your children have, under section 96 of the IRPA, established a well-founded fear of persecution if you were to return to live in South Africa.32 CONCLUSION [27] For these reasons, I am setting aside the RPD's determination and substituting that which should have been made, namely that you, your wife and your minor children have a well-founded fear of persecution under section 96 if you were to return to live in South Africa, and that you and your wife would face a risk to your lives under paragraph 97(1)(b) of the IRPA if you were to return to live in Pakistan. [28] Your appeal is allowed. (signed) Alain Bissonnette Me Alain Bissonnette January 19, 2021 Date IRB translation Original language: French 1 Your and your minor children's Basis of Claim Forms (BOC Forms) are reproduced at pages 26 to 79 and the documents you submitted to the Refugee Protection Division (RPD) as evidence, along with your legal counsel's written submissions, are reproduced at pages 200 to 404 of the digital version of the RPD record. 2 Designation of a designated representative, August 10, 2020, page 7 of the digital version of the administrative documents. 3 RPD Reasons and Decision, July 14, 2020, pages 5 to 25 of the digital version of the RPD record. 4 Your memorandum, pages 3 to 14 of the digital version of your appeal record. 5 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, at paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, at paragraphs 23 and 24. 6 Recording of the first part of the RPD hearing on February 20, 2019, 00:01 to 02:56:40 (from 1 second to 2 hours, 56 minutes and 40 seconds). Recording of the second part of the RPD hearing on May 2, 2019, 00:01 to 02:20:23 (from 1 second to 2 hours, 20 minutes and 23 seconds). 7 Transcript of the first part of the RPD hearing on February 20, 2019, 44 pages. Transcript of the second part of the RPD hearing on May 2, 2019, 28 pages. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257. 10 Your memorandum, supra endnote 4, pages 8 and 9 of the digital version of your appeal record. 11 Ibid., pages 10, 11 and 12 of the digital version of your appeal record. 12 Ibid., page 12. 13 Ibid., page 13. 14 Canada (Citizenship and Immigration) v. Williams, No. A-241-04, Décary, Létourneau and Nadon, 2005 FCA 126, at paragraphs 19 to 23. 15 Umuhoza v. Canada (Minister of Citizenship and Immigration), No. IMM-8792-11, Shore, June 5, 2012; 2012 FC 689, at paragraph 28: "Making a finding of nationality is not, however, decisive in this case; the country proposed as an alternative to international protection must also be able to offer protection (Williams at para 22)". 16 See the police report, decision at first instance and determination on appeal (P-1, P-2, P-3 and P-4), which are reproduced at pages 342 to 378 of the digital version of the RPD record. 17 RPD Reasons and Decision, supra endnote 3, paragraphs 43 to 67. 18 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, at paragraph 21. 19 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, at paragraphs 22 and 27. 20 This information is included in your BOC Form, at paragraph 26, page 28 of the digital version of the RPD record. You also described this attack during your testimony, cf. Transcript of the second part of the hearing, supra endnote 7, pages 14 and 15. 21 Senadheerage v. Canada (Minister of Citizenship and Immigration), No. IMM-4471-19, Grammond, October 15, 2020; 2020 FC 968, at paragraphs 23 to 36. 22 Hilary Evans Cameron, Refugee Law's Fact-Finding Crisis. Truth, Risk, and the Wrong Mistake, New York, Cambridge University Press, 2018, 219 pages, pages 95 and 96. 23 Your memorandum, supra endnote 4, pages 11 and 12 of the digital version of your appeal record. The written submissions filed by your legal counsel are reproduced at pages 200 to 206 of the digital version of the RPD record. 24 Immigration and Refugee Board of Canada (IRB), National Documentation Package (NDP) on Pakistan, March 31, 2020, Tab 2.2, United Nations. Human Rights Committee, Concluding observations on the initial report of Pakistan, CCPR/C/PAK/CO/1, August 23, 2017, paragraph 31. 25 Ibid., paragraph 27. 26 Ibid., Tab 2.l, United States. Department of State, Pakistan 2019 Human Rights Report, March 11, 2020, 52 pages, page 7. 27 Ibid., page 10. 28 IRB, NDP on South Africa, March 31, 2020, see also Tab 2.3, Human Rights Watch (HRW), South Africa. World Report 2020, Events of 2019, January 2020, 7 pages, pages 1 to 4. 29 Ibid., Tab 2.1, United States. Department of State, South Africa 2019 Human Rights Report, March 11, 2020, 30 pages, pages 1, 7, 10, 20 and 21. 30 LF and EL v. Canada (Minister of Citizenship and Immigration), No. IMM-5088-15, Kane, May 12, 2016; 2016 FC 534, at paragraph 47. Paramsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraphs 24 and 25. 31 Hassan v. Canada (Minister of Citizenship and Immigration), No. IMM-4285-16, Elliott, May 17, 2017; 2017 FC 507, at paragraph 5, citing Salibian and Josile. 32 Information on this matter is included in your BOC Form, at paragraphs 28 to 31, pages 28 and 29 of the digital version of the RPD record and in your hearing testimony, cf. Transcript of the first part of the hearing, supra endnote 7, pages 16 to 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08835 MC0-08836 / MC0-08837 / MC0-08838 MC0-08839 RAD.25.02 (January 2020) Disponible en français 4 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