Docket: IMM-7687-13
Citation:
2015 FC 1024
Ottawa, Ontario, August 28, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SIRAJ AHMED
(AKA AHMED SIRAJ)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision
of Citizenship and Immigration Canada, dated October 23, 2013, wherein the Director,
Case Determination, appointed as the Minister’s delegate (the delegate),
refused the applicant’s request for reconsideration of the Minister’s opinion
issued against him on November 10, 2010, stating that he constitutes a danger
to the public under paragraph 115(2)(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
decision and returning the matter to a different delegate for redetermination.
I.
Background
[3]
The applicant is a citizen of Pakistan. In
October 1993, he entered Canada at the port of Vancouver and claimed refugee status.
[4]
On May 9, 1996, the applicant became a permanent
resident as a Convention refugee.
[5]
On February 2, 2001, an inadmissibility report
for serious criminality was issued against the applicant following his
conviction for aggravated assault. He was issued a warning letter.
[6]
On January 28, 2004, an inadmissibility report
for serious criminality was issued against the applicant following his
convictions in 2001 for trafficking in a controlled substance. A deportation
order was consequently issued. The applicant filed an appeal to the Immigration
Appeal Division of the Immigration and Refugee Board.
[7]
On August 30, 2007, an inadmissibility report
for serious criminality was issued against the applicant following his 2007
drug related convictions.
[8]
On July 7, 2008, a deportation order for serious
criminality was issued against the applicant.
[9]
On November 10, 2010, the applicant was found to
be a danger to Canada pursuant to subsection 115(2)(a) of the Act and not at
risk if removed to Pakistan.
[10]
On November 14, 2012, the applicant made a
request for reconsideration of his danger opinion. The submissions included a
new statutory declaration from him, which details his involvement in criminal
matters.
II.
Decision Under Review
[11]
In a decision dated October 23, 2013, the delegate
refused the applicant’s request for reconsideration of the Minister’s opinion
issued against him on November 10, 2010, stating that he constitutes a danger
to the public under paragraph 115(2)(a) of the Act.
[12]
First, the delegate conducted the danger assessment.
The delegate found that the applicant is inadmissible for serious criminality
under paragraph 36(1)(a) of the Act, based on his convictions in 2000, 2001 and
2007. The delegate found that the applicant’s criminal activities were both
serious and dangerous to the public and that there is a lack of evidence of
meaningful rehabilitation despite his efforts to pursue education and upgrade
his skills.
[13]
The delegate noted that the applicant’s
explanation of his role in the criminal offences differs from the Court’s
transcript and this demonstrates an attempt to minimize his role in the crimes.
The delegate observed some positive factors, such as the applicant’s compliance
with the conditions of release, his participation in rehabilitative programming
and his efforts to improve his employment opportunities. Ultimately, the delegate
found that, on a balance of probabilities, the applicant represents a present
and future danger to the Canadian public. It was determined that the new
evidence presented by the applicant did not lead the delegate to a different
decision.
[14]
Second, the delegate conducted the risk
assessment. The delegate noted that the test is whether the applicant, “if removed to Pakistan, will personally face a risk of
persecution, risk to life or risk of torture or cruel and unusual treatment or
punishment.” The applicant stated in his request for reconsideration
that in July 2011, his picture was in the paper because his house was
firebombed and burned in Pakistan. In submissions dated May 16, 2013, the
applicant stated he has become a target of the Tehrik-e-Taliban Pakistan (TTP)
due to his brother’s political involvement. He claimed there is a poster of him
placed on the wall of his mosque as a TTP target.
[15]
The delegate considered the following new
evidence and the risks alleged by the applicant:
- a First
Information Request (FIR) possibly related to the 1993 arrest warrant
issued against the applicant;
- the risk from
the MQM-Haqiqi faction;
- death threats to
his family from the Pakistan People’s Party (PPP), which was suspected to
be behind the house burning; and
- the risk due to
his brother’s political involvement which resulted in the TTP naming both
him and his brother on a hit list, as evidenced by their picture on a
poster outside a mosque.
[16]
Insofar as the FIR is concerned, the delegate
gave it little weight. The delegate first summarized the circumstances in Pakistan
which led to the applicant’s refugee claim. The delegate stated that the 1993
arrest warrant was included as an exhibit during the refugee hearing. The
applicant also provided a copy of a FIR dated May 1, 1990 detailing him as one
of three leaders of a violent demonstration. The delegate noted the
circumstances described in the FIR and determined they are similar to the basis
of the 1993 arrest warrant; however, the Personal Information Form (PIF) narrative
described an event taking place on May 5, 1991, over one year later. The delegate
found there is a lack of clarity regarding the sequence of events. The UK
Border Agency’s Country of Origin Report - Pakistan (2004 UK Report) dated June
18, 2004, was then reviewed and the delegate stated that most of the documents
presented by asylum seekers were falsified. Relying on this report and the
contradiction between the dates, the delegate gave the FIR little weight.
[17]
Insofar as the risk from the MQM-Haqiqi faction
is concerned, the delegate found that the risk is low. The delegate
acknowledged that, at the time the applicant left Pakistan, he was a high
ranking active member of the MQM and the MQM-Haqiqi had an interest in him. It
found, however that given the applicant’s prolonged absence from Pakistan and a
lack of continued high profile as an active member of the MQM, the applicant
would not likely be a target. The delegate drew support from the most recent
2013 UK Country of Origin Information Report detailing the political landscape
in Pakistan.
[18]
With respect to the newspaper article about the
burning of the applicant’s home in Qasba Colony, the delegate found that there
is insufficient evidence to establish that his home was deliberately targeted.
The delegate first observed a report from a CIC analyst who prepared the
Request for Minister’s Opinion on April 10, 2013, noting the Daily Ummat News
Karachi is one of 141 newspapers published in Sindh Province. The delegate
stated that, according to the 2004 UK Report, it is possible to pay to have a
newspaper article published depicting a situation of persecution. The delegate
found that there was insufficient evidence on file to lead him or her to
conclude that the applicant’s house was deliberately targeted.
[19]
Also, the delegate found that the fact that the
applicant normally speaks Pashto “decreases the weight
of his submission that he is a member of the Muhajir community.”
[20]
With respect to the risk allegedly faced by the
applicant due to his brother’s political involvement, two types of evidence
were submitted: photographs and hit posters. The delegate found that photographs
of him and his brother with political figures at what appears to be a public
event are not indicative of his and his brother’s allegiance to the MQM. In
light of the applicant’s prolonged absence, the delegate found that, although
the threat of violence from the TTP is credible, the applicant would not likely
be a target. Regarding the hit posters, the delegate noted that “hit list” photos
are typically taken during meetings, at public events or from news articles;
however, the photos on the posters are passport-style photos of the applicant
and his brother. The delegate held that the posters are not authentic.
[21]
Next, the delegate discussed the general situation
of violence in Karachi. The delegate referenced excerpts from documentary
evidence and acknowledged the state of violence in Karachi and that the MQM has
been blamed for human rights abuses. The delegate noted that MQM members have
been targeted by opposition groups and that it is possible that an individual,
even one who is not politically active, might be caught up in the general
violence. The delegate found however, that “this mere
possibility of risk due to the general violence in Karachi, a city of over 11
million people, does not, in my opinion, outweigh the danger that Mr. Ahmed
poses to the public in Canada.”
[22]
The delegate then determined the applicant’s
risk of return as a deportee. The delegate found that he is not at risk due to
an alleged outstanding arrest warrant against him in Pakistan. The delegate
acknowledged that if the warrant exists, the applicant could be arrested at the
airport upon his return. However, the delegate found that the applicant is not
likely the subject of an arrest warrant from 1993, as shown by his ability to
apply for a passport in his own name and his unrestricted travel into and
outside of Pakistan since 1993.
[23]
Therefore, the delegate found the applicant
would not personally face a risk to life, liberty or security of the person on
a balance of probabilities.
[24]
With respect to humanitarian and compassionate (H&C)
considerations, the delegate found that the applicant has not demonstrated a
degree of establishment in Canada that would cause him disproportionate
hardship should he be removed.
[25]
In conclusion, the delegate determined that the
need to protect Canadian society outweighs the possible risks that the
applicant might face if returned to Pakistan.
III.
Issues
[26]
The applicant raises the following issues for my
consideration:
1.
Did the delegate err by relying on outdated
evidence?
2.
Did the delegate exceed his or her jurisdiction?
3.
Did the delegate make unreasonable findings?
[27]
The respondent raises one issue: the applicant
has not demonstrated that there is a serious or arguable issue of law upon
which the proposed application might succeed.
[28]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Was the delegate’s risk assessment reasonable?
C.
Did the delegate exceed his or her jurisdiction?
D.
Did the delegate follow the proper steps for the
assessment under paragraph 115(2)(a) of the Act?
IV.
Applicant’s Written Submissions
[29]
First, the applicant submits that the delegate
erred in relying on outdated documents in forming its decision. He argues that the
delegate relied heavily on an Immigration and Refugee Board (IRB) document,
“Fraudulent Documents.” This document reports that it is possible to pay for a
newspaper article to be published depicting a situation of persecution. It
dates back to 2004. He argues that this document is outdated and that a 2011
IRB document now forms part of the current standard National Documentation
Package for Pakistan.
[30]
The 2011 IRB document indicates that “some newspaper articles may be fraudulent” and
estimates that one to five percent of the reports made by Pakistan’s 100,000
newspapers are false. It also notes that some FIRs may be “fraudulent”.
However, the applicant contends that a reading of the document reveals that
“fraud” is not a matter of falsified documents, but rather reflects police
officers’ poor forensic and investigatory techniques and low ethical standards.
This happens even in genuine cases. The applicant argues that the current
evidence indicates a different situation than that which existed in 2004.
[31]
The applicant argues that the delegate’s
reliance on the 2004 report is a reviewable error. First, the delegate used
this information to completely avoid analyzing the risk that the applicant
faces due to the outstanding arrest warrant and to discount his submission of
risk. Second, the delegate highlighted the discrepancy in dates between the FIR
and the applicant’s testimony during his refugee claim, even though the 2011
report shows that, even in genuine cases, there might be errors in FIRs. Third,
the delegate relied on the 2004 report to find that “it
is possible to pay to have a newspaper article published depicting a situation
of persecution” while ignoring the statement in the 2011 report that
this practice has become less frequent. The applicant argues, therefore, that the
delegate used this outdated report in a manner that prejudiced him.
[32]
Second, the applicant submits the delegate
exceeded its jurisdiction by going behind a refugee determination to disprove
elements that were essential to the initial grant of refugee protection. Under Nagalingam
v Canada (Minister of Citizenship and Immigration), 2008 FCA 153 at
paragraph 43, [2009] 2 FCR 52 [Nagalingam], a delegate’s role in
assessing a danger opinion is not to “remove or alter
the subject’s status as Convention refugee.”
[33]
Here, the delegate made a finding that the
applicant is not a Muhajir, even though the applicant’s identity was accepted
by the IRB and was central to its finding that he had refugee status. The delegate
found that Pashto, one of the languages the applicant normally speaks, “decreases the weight of his submission that he is a member
of the Muhajir community.” The delegate then used this finding to cast
doubt on the political affiliation claimed by the applicant, such as his membership
in the MQM. The delegate also erred in refusing to accept the applicant’s prior
criminal record and FIR from Pakistan. Therefore, the delegate exceeded its
jurisdiction by attempting to reassess key elements of the applicant’s refugee
status. This error prevented the delegate from properly analyzing whether the
applicant’s status might place him at risk in Pakistan as alleged.
[34]
Third, the applicant submits that the delegate’s
decision was unreasonable. First, the delegate made fundamental errors in
determining that the applicant was not at risk due to an outstanding arrest
warrant in Pakistan. The delegate discounted his outstanding criminal charge
because he or she concluded that the FIR was not genuine based on outdated
documentation. Second, the delegate did not cite any evidence that led him or
her to conclude that an individual cannot be issued a passport if he or she has
an outstanding criminal charge. Third, the applicant argues that the documentary
evidence and specifically, the 2012 UK Country of Origin Information Report
relied on by the delegate, notes the contrary: “even a
person that was the accused in multiple FIRs would not be barred from obtaining
a passport unless the central government had specifically ordered that a
passport not be issued to him or her … .” Fourth, the applicant argues that
the delegate erred in determining that he is not at risk for his political
association due to his prolonged absence and lack of high profile because the delegate
ignored the evidence that his brother is still in the public eye for his
political activities with the MQM.
[35]
Further, the applicant submits that the delegate
improperly conflated distinct steps of a danger opinion. He cites Nagalingam
for the steps the delegate ought to take under the proper process. He argues that
even after the delegate accepted the evidence that Karachi is a dangerous city,
he or she failed to engage in a proper balancing of that risk against the
danger posed by the applicant. The delegate came to a conclusion without doing
a step-by-step analysis.
V.
Respondent’s Written Submissions
[36]
First, the respondent points out that the
applicant does not contest the finding that he is inadmissible on grounds of
serious criminality under paragraph 36(1)(a) of the Act. It states the two main
issues are the delegate’s factual findings with respect to i) risk evaluation;
and ii) the balancing of any risk with the need to protect Canadian society. It
submits that the delegate’s factual conclusions are reviewable on the standard
of reasonableness (Nagalingam at paragraph 32).
[37]
Second, the respondent submits that the delegate’s
analysis was thorough and reasonable and that the applicant is asking this
Court to adopt a microscopic approach to the delegate’s decision. The Federal
Court of Appeal cautions against this approach in Ragupathy v Canada
(Minister of Citizenship and Immigration), 2006 FCA 151 at paragraph 15,
[2007] 1 FCR 490 [Ragupathy]. The respondent cites Hasan v Canada
(Minister of Citizenship and Immigration), 2008 FC 1069 at paragraph 10,
[2008] FCJ No 1342 [Hasan], for the process of determining a danger
opinion. It submits that, although the applicant challenges the delegate’s
analysis for steps four and five, it is ultimately the applicant’s onus to
establish current risk or hardship. The applicant cannot simply rely upon his
status as a Convention refugee (Hasan at paragraph 22).
[38]
The respondent also points out that the FIR
dated May 1, 1990, which names the applicant as one of three leaders of a
violent demonstration, is new evidence that the applicant submitted at his
reconsideration request. The delegate reasonably examined this evidence in the
context of the applicant’s submissions and the available information at the time
of the IRB refugee hearing.
[39]
Further, the applicant does not challenge the
discrepancies in dates as identified by the delegate, but rather challenges the
weight the delegate gave to the FIR. Here, the delegate did not err by relying
on the 2004 report because, unlike the 2011 report, it was more contemporaneous
to the dates of the applicant’s purported arrest warrant of 1993 and the 1990
FIR. As for the 2011 news article in the Daily Ummat, the delegate was
reasonable to find that this article was published at the applicant’s request
to further his interests, given the availability of fraudulent documents and
the significant period of his absence. The delegate reasonably found that in
light of the applicant’s prolonged absence and a lack of demonstrated continued
high profile as an active member of the MQM, the applicant has a decreased
likelihood of being a target of opposition party members.
[40]
The delegate also acknowledged the risk of the
applicant’s return as a deportee and the possibility of him getting arrested at
the airport. However, it reasonably found that he is not likely still the
subject of an arrest warrant from 1993 as shown by his ability to apply for a
passport in his own name and his unrestricted travel into and outside of
Pakistan since 1993.
[41]
In response to the applicant’s reliance on the
2012 UK Country of Origin Information Report, the respondent argues that this
report also notes that many FIRs are baseless and the registration of FIRs does
not prevent the issuance of a passport unless specifically ordered by the
central government. Here, the government did not issue such an order, which
suggests that it is not interested in the applicant. The delegate also properly
noted the applicant’s submission about his brother’s purported political
profile.
[42]
The respondent notes that the delegate was
reasonable to give no weight to the applicant’s submissions about the TTP and
to find that there was insufficient evidence to conclude that the applicant,
his brother and his family were targets of the TTP. While the delegate
acknowledged that the TTP was a credible threat to some groups in Pakistan, the
delegate reasonably concluded that the applicant would not likely be targeted
because of his limited involvement in the MQM since 1993.
[43]
Third, the respondent submits that the delegate
did not exceed its jurisdiction. Here, the delegate took into consideration the
applicant’s status as a Convention refugee. In the context of the new evidence,
the delegate thoroughly considered each area of risk raised by the applicant.
The delegate did not go behind the applicant’s status as a Convention refugee
in the analysis. The delegate assessed his risk based on the current record.
Here, there was no indication that the 1990 FIR was submitted to the IRB.
[44]
Fourth, the respondent submits that the delegate’s
danger opinion was reasonable. The delegate appropriately assessed the risk to
the applicant should he return and balanced the danger to the public against
the degree of any risk. Here, in support of the delegate’s conclusion that the
need to protect Canadian society outweighs the risk to the applicant, the
delegate found that:
i.
the applicant was inadmissible for serious
criminality;
ii.
his criminal activities were both serious and
dangerous to the public;
iii.
he represented a present and future danger to
the Canadian public; and
iv.
if removed from Canada, he would not face a risk
to life, liberty or security of the person on a balance of probabilities.
The respondent argues
this demonstrates that the delegate considered all possible risks.
VI.
Applicant’s Reply
[45]
The applicant submits that the respondent has
not provided support for the conclusion that the redetermination of key aspects
of the applicant’s refugee claim would not improperly exceed the delegate’s
jurisdiction.
[46]
Also, he argues that the delegate made negative
plausibility findings regarding the applicant’s brother’s political affiliation.
These findings should only be made in the clearest of cases. Here, the delegate
did not provide any documentary evidence in support of this conclusion.
[47]
Further, the applicant submits that the
respondent erred in noting the requirements of risk assessments pursuant to
sections 96 and 97 of the Act; rather, risk should be assessed pursuant to
section 7 of the Charter which comprises risk beyond the scope of
sections 96 and 97 of the Act.
VII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[48]
Where the jurisprudence has satisfactorily
resolved the standard of review, the analysis need not be repeated (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 45, 47, 48, 49, 53, 57 and 62,
[2008] 1 S.C.R. 190).
[49]
In Nagalingam at paragraph 32, the
Federal Court of Appeal found that the factual findings of a delegate should be
reviewed on a standard of reasonableness and a high degree of deference should
be afforded.
[50]
The standard of reasonableness means that I should
not intervene if the Board’s decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47).
Here, I will set aside the Board’s decision only if I cannot understand why it
reached its conclusions or how the facts and applicable law support the outcome
(Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
[51]
I wish to first deal with Issue 3.
B.
Issue 3 - Did the delegate exceed his or her
jurisdiction?
[52]
The applicant claims that the delegate exceeded
his or her jurisdiction by going behind the findings of the Refugee Board which
had found that the applicant was a Mohajir and a member of the MQM. The
delegate stated in the decision:
Mr. Ahmed’s Record of Landing indicates that
his mother tongue is Pashto. The documentary evidence indicates that the MQM
represents the mostly Urdu-speaking Mohajir community, originally Indian
Muslims who fled to Pakistan following the 1947 partition. Mr. Ahmed has
indicated that he speaks Urdu in other immigration documents and, based on his
participation in his refugee hearing using an Urdu interpreter, I do believe
that he is fluent in Urdu, the official language of Pakistan. However his
indication that Pashto is one of the languages he normally speaks decreases the
weight of his submission that he is member of the Muhajir community.
[53]
The above statement by the delegate indicates to
me that the delegate disagreed with the Board’s finding as to the identity of
the applicant as a Mohajir and a member of the MQM.
[54]
In Nagalingam, the Federal Court of
Appeal states at paragraphs 41 to 43:
41 Respectfully, I find that Justice
Kelen ignored the structure of section 115, as well as Canada’s overall
responsibilities with regards to the Convention, when finding that the absence
of risk for the appellant, if returned to Sri Lanka, was determinative of his
right to non-refoulement.
42 The scope of section 115 is such that
the principle of non-refoulement continually applies to a protected
person or a Convention refugee until one of the two exceptions listed therein
is engaged. Thus, to determine that the principle of non-refoulement no
longer applies simply because the conditions in the protected person’s or the
Convention refugee’s country of origin have improved is to short-circuit the
process.
43 The approach of Justice Kelen
essentially forces the Delegate to act beyond his jurisdiction, ruling on the
appellant’s status as a Convention refugee, rather than whether the nature and
severity of the acts committed deprive him of the benefits associated with that
status (i.e. not to be refouled). To this end, I agree with the
respondent that the Ragupathy approach ensures that the Delegate
maintains his jurisdiction as his role is not in any way to remove or alter the
subject’s status as Convention refugee (respondent’s memorandum at paragraph
71). Proceeding in this manner guarantees that the Delegate’s function will not
usurp the role of the Refugee Protection Division on a cessation determination
pursuant to subsection 108(2) of the Act.
[55]
For ease of reference, section 115 of the Act
reads as follows:
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115. (1) A
protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
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115. (1) Ne
peut être renvoyée dans un pays où elle risque la persécution du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques, la torture ou des traitements ou peines
cruels et inusités, la personne protégée ou la personne dont il est statué
que la qualité de réfugié lui a été reconnue par un autre pays vers lequel
elle peut être renvoyée.
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(2) Subsection (1) does not apply in the case of a person
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(2) Le paragraphe (1) ne s’applique pas à l’interdit de territoire
:
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(a) who is inadmissible on grounds of serious criminality and who
constitutes, in the opinion of the Minister, a danger to the public in
Canada; or
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a) pour grande criminalité qui, selon le ministre, constitue un
danger pour le public au Canada;
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(b) who is inadmissible on grounds of security, violating human or
international rights or organized criminality if, in the opinion of the
Minister, the person should not be allowed to remain in Canada on the basis
of the nature and severity of acts committed or of danger to the security of
Canada.
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b) pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux ou criminalité organisée si, selon le ministre, il ne devrait
pas être présent au Canada en raison soit de la nature et de la gravité de
ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
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(3) A person, after a determination under paragraph 101(1)(e) that
the person’s claim is ineligible, is to be sent to the country from which the
person came to Canada, but may be sent to another country if that country is
designated under subsection 102(1) or if the country from which the person
came to Canada has rejected their claim for refugee protection.
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(3) Une personne ne peut, après prononcé d’irrecevabilité au titre
de l’alinéa 101(1)e), être renvoyée que vers le pays d’où elle est arrivée au
Canada sauf si le pays vers lequel elle sera renvoyée a été désigné au titre
du paragraphe 102(1) ou que sa demande d’asile a été rejetée dans le pays
d’où elle est arrivée au Canada.
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[56]
In my view, the delegate exceeded his or her
jurisdiction by not accepting the IRB’s finding that the applicant was a member
of the Muhajir community and a member of the MQM party. The delegate then used
his finding to deny the applicant’s request. I find that this was unreasonable
and as a result, the decision must be set aside and returned to a different
delegate for reconsideration. I have no way of knowing what the conclusion of
the delegate would have been had the delegate accepted the finding of the IRB.
[57]
Because of my finding on this issue, I need not
deal with the other issues.
[58]
The respondent requested that since the responses
to information requests dated December 13, 2011 were not before the delegate,
it should not be part of the record. I agree.
[59]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.