Docket: IMM-1426-15
Citation:
2015 FC 1288
Ottawa, Ontario, November 18, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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MAQBOOL AHMED
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Respondent
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JUDGMENT AND REASONS
[1]
After a long career with a paramilitary
organization known as the Pakistan Rangers, Maqbool Ahmed came to Canada
seeking refugee protection, claiming to have a well-founded fear of persecution
in Pakistan because of his Ahmadi Muslim faith. The Board accepted his refugee
claim, and the Minister now seeks judicial review of the Board’s decision,
asserting that the Board erred by failing to inquire into whether Mr. Ahmed
should be excluded from the protection of the Refugee Convention for
having committed human rights abuses against Pakistani civilians.
[2]
At issue in this application is whether the
information that was before the Board relating to Mr. Ahmed’s paramilitary
career was sufficient to trigger an obligation on the part of the Board to
inquire into whether he was excluded from the refugee definition under Article
1F(a) of the Refugee Convention. Also at issue is whether the Board
treated the Minister unfairly by failing to provide him with notice of the
exclusion issue prior to deciding that Mr. Ahmed was a Convention refugee.
[3]
For the reasons that follow, I have concluded
that the Board erred by failing to provide the Minister with notice of the
potential exclusion issue, and by failing to inquire into the exclusion question.
Consequently, the application will be granted.
I.
Background
[4]
The documents provided to the Board in
connection with Mr. Ahmed’s refugee claim disclosed that Mr. Ahmed
joined the Sindh branch of the Pakistan Rangers in April of 1993. After his
basic training, he became a Sub-Inspector with the Rangers, a position he held
from August of 1993 to July of 1996, and then an Inspector from July of 1996 to
September of 2003. In both positions Mr. Ahmed performed law-enforcement
duties for the Rangers, and, as an Inspector, he supervised three
Sub-Inspectors. In September of 2003, Mr. Ahmed became a Deputy
Superintendent of the Pakistan Rangers. In that position he supervised three
Inspectors and nine Sub-Inspectors. He also served as a Basic Training
Instructor, but never participated in active combat.
[5]
The Board found that Mr. Ahmed and his
family were Ahmadi Muslims, and that their claims to have been subjected to
discrimination and abuse because of their religion were credible. The Board
further found that there was ample documentary evidence supporting the
proposition that Ahmadi Muslims suffer persecution in Pakistan. As a result,
the Board found that Mr. Ahmed and his family were Convention refugees.
[6]
The Board did not refer to Mr. Ahmed’s
service in the Pakistan Rangers in its decision, nor did it ask Mr. Ahmed
any questions regarding his time in the organization during the hearing. The
National Documentation Package that was available to the Board also did not
contain any information about the Pakistan Rangers’ alleged involvement in crimes
against humanity.
II.
Standard of Review
[7]
The Minister submits that in failing to inquire
into whether Mr. Ahmed was excluded from the refugee definition under
section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 and Article 1F of the Refugee Convention, the Board failed to
exercise its jurisdiction. The Board also acted unfairly by failing to provide
the Minister with notice of the potential exclusion issue as required by Rule
26 of the Refugee Protection Division Rules, SOR/2012-256. Given that
these are issues of jurisdiction and procedural fairness, the Minister submits
that the standard of review to be applied in relation to both issues is that of
correctness.
[8]
While I am not persuaded that the Minister’s
first issue is a “true question of jurisdiction”
that would attract the correctness standard of review, I agree that the
question of procedural fairness is one that is to be decided on the correctness
standard: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at
para. 43, [2009] 1 S.C.R. 339.
III.
Analysis
[9]
The purpose of the exclusion provisions under
Article 1F of the Refugee Convention is to ensure that refugee protection is
not accorded to those responsible for the persecution of others: Ezokola v.
Canada (Minister of Citizenship and Immigration), 2013 SCC 40 at para. 34, [2013]
2 S.C.R. 678.
[10]
It is the responsibility of the Board to ensure
that Canada meets its obligations under the Refugee Convention by not
providing refuge to individuals for whom there are serious reasons for
considering that they have committed crimes against humanity or are guilty of
acts contrary to the purposes and principles of the United Nations: Canada
(Minister of Citizenship and Immigration) v. Nwobi, [2014] F.C.J. No. 544 at
para. 19, 456 F.T.R. 30.
[11]
The RPD is an inquisitorial body: Chairperson's
Guideline 7 Concerning Preparation and Conduct of a Hearing in the Refugee
Protection Division. As such, it is required to determine whether section
98 of IRPA applies to the applicant before it: Velasquez v. Canada
(Minister of Citizenship and Immigration), 2013 FC 273 at para. 15, 429
F.T.R. 143. This obligation exists whether or not the Minister elects to
intervene in a given case: Velasquez, above at paras. 2 and 15.
[12]
Pakistan is a refugee-producing country. While
the primary focus of the country condition information in the Certified
Tribunal Record was on the oppression of religious minorities in Pakistan
(including Ahmadi Muslims), there was also evidence in the record indicating
that the State of Pakistan and Pakistani police are involved in human rights
abuses.
[13]
Mr. Ahmed provided details regarding his
paramilitary service with the Pakistan Rangers in the Basis of Claim form that
was provided to the Board. Amongst other things, he noted that he worked in the
Rangers’ “Field Security Wing”, that he was
involved in maintaining law and order, and that his duties included assisting
the police.
[14]
In my view, this information , coupled with the
evidence regarding human rights abuses committed by the State of Pakistan and
the Pakistani police, should have alerted the Board to the possibility that Mr. Ahmed
might be excluded from the refugee definition under Article 1F of the Refugee
Convention, so as to trigger the Board’s obligation to inquire into the
question. Its failure to do so makes the decision granting refugee protection
to Mr. Ahmed unreasonable.
[15]
It is true that there was no information in the
National Documentation Package for Pakistan specifically addressing the conduct
of the Pakistan Rangers. As noted, however, there was information in the record
regarding the abuses of other elements of the Pakistani security apparatus, and
it was open to the Board to seek additional information regarding the Pakistan
Rangers from the Immigration and Refugee Board’s Research Directorate in order
to determine whether that organization had also been suspected of any conduct that
could have led to Mr. Ahmed’s exclusion: Chairperson’s Guideline 7,
above at section 1.3.
[16]
I am also satisfied that it was unfair of the
Board to proceed with the hearing into the inclusion aspects of Mr. Ahmed’s
refugee claim without first providing notice of the possible exclusion to the
Minister in accordance with Rule 26 of the Refugee Protection Division Rules.
[17]
Rule 26(1) provides that where the RPD becomes
aware in advance of a hearing that there is a possibility that Article 1F of
the Refugee Convention applies to the claim, it must notify the Minister in
writing without delay, and provide the Minister with any relevant information
in its possession. Rule 26(2) imposes a similar obligation on the Board when a
concern with respect to exclusion arises in the course of a hearing.
[18]
Mr. Ahmed submits that in the course of
processing his application for refugee protection, the Minister was provided with
all of the information that the Minister now says triggered the obligation on
the Board to inquire into the exclusion issue. Not only was the claim referred
to the Board for a hearing, it was also open to the Minister to intervene in
the case if he deemed it appropriate to do so. Having failed to do so, Mr. Ahmed
says that the Minister should not now be able to come before the Court with
information regarding the Pakistan Rangers that it failed to provide to the
Board during his refugee hearing.
[19]
I am not, however, reviewing the decision of the
Minister to intervene or not intervene in this case. I am reviewing the failure
of the Board to provide notice to the Minister as required by Rule 26(1). Given
my finding that the information that was before the Board was sufficient to
trigger the Board’s obligation to notify the Minister of the potential
exclusion issue, I am satisfied that it was unfair for the Board to proceed to
a hearing into the merits of Mr. Ahmed’s refugee claim without having first
provided the Minister with the requisite notice.
[20]
The Minister has provided an affidavit in
support of his application for judicial review that includes new evidence
relevant to the issue of exclusion. This is a Human Rights Watch report that
details the human rights abuses that have allegedly been carried out by the
Pakistan Rangers. Mr. Ahmed objects to the admission of this evidence on
this application on the basis that it was not before the Board when it made the
decision in question. He argues that the Board cannot be faulted for failing to
act on evidence that was not before it when it made the decision under review,
submitting that it is not open to the Minister to now try to get evidence in
through the back door that he had neglected to introduce through the front
door.
[21]
It is true that applications for judicial review
are ordinarily considered on the basis of the record that was before the
original decision-maker. Additional evidence may, however, be admitted in
limited circumstances where, for example, there is an issue of procedural
fairness or jurisdiction: see Ontario Assn. of Architects v. Assn. of
Architectural Technologists of Ontario, 2002 FCA 218, at para. 30, [2003] 1
F.C. 331. Such is the case here.
[22]
Not every procedural deficiency will, however,
require a new hearing. The production of evidence that could have changed the
outcome of the hearing will assist in deciding whether the denial of procedural
fairness in a given case was sufficiently serious as to require a new hearing: Lin
v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 289
at para. 23, [1999] F.C.J. No. 1148.
[23]
In this case, the Human Rights Watch report
attributes very serious human rights abuses to the Pakistan Rangers. It does
not follow from this that Mr. Ahmed would necessarily be excluded from the
protection of the Refugee Convention. It is, however, incumbent on the
Board to inquire into the nature of Mr. Ahmed’s activities with the
Pakistan Rangers in order for it to be able to determine whether he had
voluntarily made “a significant and knowing
contribution” to the crimes or criminal purposes of the organization so
as to exclude him from the refugee definition: Ezokola, above at para.
84.
IV.
Conclusion
[24]
For these reasons, the application for judicial
review is granted and the matter is remitted to a differently constituted panel
for re-determination in accordance with these reasons. This case does not raise
exceptional circumstances that would entitle the respondent to his costs. I
agree with the parties that the case is fact-specific, and does not raise a
question for certification.
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