2015 FC, 2015 FC 1288

Date: 20151118 Docket: IMM-1426-15 Citation: 2015 FC 1288 Ottawa, Ontario, November 18, 2015 PRESENT: The Honourable Madam Justice Mactavish BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and MAQBOOL AHMED Respondent 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 SCC40 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 providingrefuge to individuals for whom there are serious reasons for considering that they have committed crimes against humanity or are guiltyof acts contrary to the purposes and principles of the United Nations: Canada (Minister of Citizenship and Immigration) v. Nwobi, 2014FC 520 , [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 theRefugee Protection Division. As such, it is required to determine whether

section 98 of IRPA applies to the applicant before it: Velasquezv. Canada (Minister of Citizenship and Immigration), 2013 FC 273 at para. 15, 429 F.T.R. 143. This obligation exists whether or not theMinister 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 CertifiedTribunal Record was on the oppression of religious minorities in Pakistan (including Ahmadi Muslims), there was also evidence in therecord 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 wasprovided to the Board.

Amongst other things, he noted that he worked in the Rangers’ “Field Security Wing”, that he was involved inmaintaining 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 Pakistanand the Pakistani police, should have alerted the Board to the possibility that Mr. Ahmed might be excluded from the refugee definitionunder

Article 1F of the Refugee Convention, so as to trigger the Board’s obligation to inquire into the question. Its failure to do so makesthe 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 theconduct of the Pakistan Rangers.

As noted, however, there was information in the record regarding the abuses of other elements of thePakistani security apparatus, and it was open to the Board to seek additional information regarding the Pakistan Rangers from theImmigration and Refugee Board’s Research Directorate in order to determine whether that organization had also been suspected of anyconduct 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’srefugee claim without first providing notice of the possible exclusion to the Minister in accordance with Rule 26 of the RefugeeProtection 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 ofthe Refugee Convention applies to the claim, it must notify the Minister in writing without delay, and provide the Minister with anyrelevant information in its possession. Rule 26(2) imposes a similar obligation on the Board when a concern with respect to exclusionarises 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 allof the information that the Minister now says triggered the obligation on the Board to inquire into the exclusion issue.

Not only was theclaim 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 regardingthe 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 failureof the Board to provide notice to the Minister as required by Rule 26(1).

Given my finding that the information that was before the Boardwas sufficient to trigger the Board’s obligation to notify the Minister of the potential exclusion issue, I am satisfied that it was unfair forthe Board to proceed to a hearing into the merits of Mr. Ahmed’s refugee claim without having first provided the Minister with therequisite notice. [20] The Minister has provided an affidavit in support of his application for judicial review that includes new evidence relevant tothe issue of exclusion.

This is a Human Rights Watch report that details the human rights abuses that have allegedly been carried out bythe Pakistan Rangers. Mr. Ahmed objects to the admission of this evidence on this application on the basis that it was not before theBoard when it made the decision in question.

He argues that the Board cannot be faulted for failing to act on evidence that was notbefore 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 theback 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 originaldecision-maker.

Additional evidence may, however, be admitted in limited circumstances where, for example, there is an issue ofprocedural fairness or jurisdiction: see Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218, atpara. 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 changedthe outcome of the hearing will assist in deciding whether the denial of procedural fairness in a given case was sufficiently serious as torequire a new hearing: Lin v.

Canada (Minister of Citizenship and Immigration) (1999), (FC), 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 notfollow 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 todetermine 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.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, and the matter is remitted to a differently constituted panel for re-determination in accordance with these reasons. "Anne L. Mactavish" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1426-15 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v MAQBOOL AHMED PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 12, 2015 judgment and REASONS: MACTAVISH J. DATED: November 18, 2015 APPEARANCES : Tamrat Gebeyegu For The Applicant Michael Korman For The Respondent SOLICITORS OF RECORD : William F.

Pentney Deputy Attorney General of Canada Toronto, Ontario For The Applicant Otis & Korman Barristers and Solicitors Toronto, Ontario For The Respondent