Citation: 2021 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: June 15, 2021
Panel: Rodrick Flynn
Counsel for the Claimant(s): Miranda Lim
Country: Pakistan
RPD Number: TB9-17419
Associated RPD Number(s): TB9-17487
ATIP Number: A-2022-00210
ATIP Pages: 000035-000044
REASONS FOR DECISION
[1] XXXX XXXX (“the principal claimant”) and his wife, XXXX XXXX (“the female claimant”) (collectively “the claimants”) are citizens of Pakistan and are seeking refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.1
ALLEGATIONS
[2] The specifics of the claimants’ allegations are set out in the common narrative2 attached to each of the Basis of Claim forms.3 In summary, the claimants indicate that they are bath members of the Ahmadi Muslim faith4 and fear persecution in Pakistan on the grounds of their religion5. The principal claimant was a resident of Italy from XXXX 20056 to XXXX 20197 and was issued an EC Long-Term Residence Permit (“the Permit”) in late 20188 before the claimants carne to Canada on XXXX, 2019.9 After growing up in Pakistan, the female claimant lived in Germany on a student visa from XXXX 2015 to XXXX 2019 on a series of term student visas.10
DETERMINATION
[3] The panel finds the claimants to be Convention refugees under section 96 of the IRPA, based upon their Ahmadi religion.
ANALYSIS
Identity
[4] The claimants’ respective identities as citizens of Pakistan are established by the various documents on file11, including a copy of their respective Pakistani passports12 which were submitted into evidence at the hearing.
[5] The claimants’ religious identities as members of the Ahmadi faith are established, on a balance of probabilities by their credible oral evidence concerning the nature and history of their faith and their participation in religious activities; as well as various documents entered into evidence. These records include:
- Canadian Ahmadi Certificates13;
- Ahmadi identity cards;14
- Ahmadi donation receipts from Canada;15
- Ahmadi donation receipts from Pakistan;16
- Ahmadi donation receipts from Italy and Germany;17 and
- various other confirmations of their participation and recognition in the Ahmadi faith.18
Credibility
[6] Both of the claimants gave oral evidence at the hearing. Generally, the panel finds them both to be credible witnesses, particularly with respect to their official marital status in Europe; their status in Italy and the EU and the Permit; and the most significant elements of their claims, including the reasons why they had left both Pakistan and Europe and came to Canada.
Well-founded fear of Persecution
[7] As the panel has accepted the claimants’ respective religious identities as members of the Ahmadi faith, and in view of the clear and consistent objective evidence from the National Documentation Package for Pakistan19 that Ahmadis face persecution on religious grounds throughout Pakistan from both state and non-state actors without adequate state protection, the panel finds that there is a serious possibility of persecution for the claimants should they return to Pakistan.
[8] The claimants have persuasively testified that they fear persecution and violence in Pakistan from various sources including the Pakistani government and religious extremists. This subjective fear is confirmed pervasively in the objective evidence.
[9] As summarized by the UNCHR in Item 1.8 of the NDP for Pakistan, at p.46, Ahmadis in Pakistan face systemic discrimination and persecution both state-sponsored and from numerous private actors (including religious extremists as raised in the claimants’ oral evidence).20
“Repressive and discriminatory legislation coupled with State-sanctioned discriminatory practices have reportedly fostered a culture of religious intolerance and impunity. Consequently, members of the Ahmadi community are reportedly left vulnerable to abuse, violence including killings, harassment and intimidation at the hands of members of the community.”
[10] The British Home Office Report on Ahmadi Muslims21 documents that in 1974, the Pakistani Constitution was amended to declare Ahmadis to be “Non-Muslims“.22 This was followed by a 1984 Amendment to Pakistani Penal Code, which are ” … commonly referred to as the anti-Ahmadi laws“.23
[11] The objective evidence also records that the systemic state-sanctioned discrimination against Ahmadis is not palliated by correspondingly adequate internal protection. As noted in the aforementioned British Home Office Report at para. 2.5.4:
“The perpetrators of violence against religious and sectarian minorities are rarely apprehended and sentenced. There is a pattern of appeasement amongst the police of, and in some cases collusion with, religious extremists pursuing hate campaigns against the [Ahmadi] community.”24
[12] Beyond police, the NDP also documents that despite the ostensible goal for the judiciary to be “… the last resort for a persecuted individual” to benefit from the rule of law25, the reality of like in Pakistan is that ” …the judiciary itself sometimes promotes tyranny“.26
[13] The panel is persuaded, based upon the objective evidence from the NDP, that as members of the Ahmadi faith, the claimants face a serious possibility of persecution on this ground, throughout Pakistan, without adequate state protection.
Exclusion – Article 1E
[14] The Minister has intervened in this matter in writing. In its “Notice of Intent to Intervene
-Exclusion 1E,”27 the Minister has taken the position that because the principal claimant obtained the Permit in Italy in 2018,28 he is a permanent resident of Italy, who, along with the female claimant, “…enjoy basic rights substantially similar to those of [Italy’s] nationals….”29
[15] According to the Minister, because of the Permit, the principal claimant has permanent status in Italy and rights substantially similar to nationals so as to warrant their exclusion under 1E. With respect to the female claimant, the Minister has offered that “more likely than not, [the female claimant] already has permanent resident status and/or has access to permanent resident status as she is the spouse of a permanent resident“.30
[16] According to the Minister, because the claimants both have this status in Italy, the claimants are excluded from refugee protection under the IRPA by operation of s.98 of the IRPA and Article IE of the Convention which read as follows:
“A person referred to in section E or F of Article 1 of the Refugee Convention31 is not a Convention Refugee or a person in need of protection”.32
Article 1E reads:
“This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”.33
[17] The potential exclusion of the claimants was the principal focus of the hearing. The leading case on exclusion under Article 1E is the decision of the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Zeng34 which has been applied by the panel.
Current Status of the Claimants in Italy
[18] The Minister contends that because the claimants have status in Italy – the principal claimant by the Permit and the female claimant by marriage to the principal claimant- they have rights in Italy which are substantially similar to nationals of that country.
[19] This determination for each claimant must be made on the evidence.
Current Status of the Principal Claimant in Italy
[20] The panel is satisfied, on a balance of probabilities, on the evidence before it, that the principal claimant was granted the Permit during 2018. However, the objective evidence of the NDP for Italy35 shows that the status and rights accorded under the permit are lost by a person spending more than 12 consecutive months outside of the European Union.36 Two Response to Information Requests in the NDP for Italy confirm that a Permit is “… voided if the person is absent from Europe for 12 consecutive months”.37 This objective evidence further stipulates that status accorded under the Permit can be revoked if the resident no longer meets the requirements38, such as an annual income requirement.39
[21] The evidence before the panel is that the claimants have been in Canada (without leaving) since XXXX 2019. Accordingly, based upon this objective evidence, the panel finds, on a balance of probabilities that, at the time of the hearing, having remained out of Italy for over 12 months, the principal claimant’ s status in Italy will have expired.
Status of the Female Claimant
[22] The Minister’s position is the female claimant acquired status in Italy under the Permit by marriage to the principal claimant. As noted in the Minister’ s Brief:
” … the Minister is of the opinion that the [female claimant] has permanent resident status in Italy via spousal sponsorship”.40
[23] However, in the panel’s view, this conclusion is not supported, on a balance of probabilities, by the evidence before it. Both the principal claimant and female claimant credibly testified that despite their religious marriage by proxy (from Italy and Germany respectively through the Whatsapp application) in XXXX 2016,41 attempts by the previously-married principal claimant to obtain proof from the Pakistani Consulate in Milan Italy (in the form of a “No Objection Certificate”) that he was free to enter into a civil marriage with the female claimant were refused.42 Similar efforts by the female claimant to register the marriage in Germany were also unsuccessful.
[24] The evidence before the panel is that the claimants’ marriage has not been officially registered with any European authority, including in Italy. Accordingly, the panel has no evidence before it to demonstrate, on a balance of probabilities, that any benefit would be extended to the female claimant as a spouse; or that there is any overt sponsorship or sponsorship of the female claimant under the Permit by operation of law.
[25] Accordingly, the panel is not satisfied, on a balance of probabilities, that the female claimant has permanent resident status in Italy or Europe or rights under the Permit.
Previous Status in Italy/EU – Principal Claimant
[26] The objective evidence from the NDP for Italy43 shows that the Permit, while conveying a wealth of substantive rights44, confers status which is vulnerable to being lost or taken away from individuals such as the principal claimant on a variety of listed grounds.45
[27] As noted by the Federal Court in Shamlou v. Canada (Minister of Citizenship and Immigration),46 (quoting with approval Lorne Waldman, Immigration Law and Practice) at para. 35:
“If the applicant has some sort of temporary status which must be renewed, and which could be cancelled, or if the applicant does not have the right to return to the country of residence, clearly the applicant should not be excluded under Art. 1E.” [emphasis added].
[28] In the panel’s view, the objective evidence clearly indicates that the principal claimant’s Permit could be cancelled on a number of grounds,47 including that ” … the bearer no longer fulfills the requirements for its issue”48 including a stipulated income requirement. 49 In the panel’s view, the principal claimant has provided credible evidence of chronic income instability during most of his time in Italy. The panel is satisfied, on a balance of probabilities, that the principal claimant is credible in his testimony s that because of the precarious status of his employment in Italy (comprised mostly by a series of contracts with various enterprises), aside from the issue of his absence (as noted above), he is vulnerable to having the Permit revoked on the grounds that he has not met the requisite income threshold.
[29] Per Shamlou50, on the totality of evidence, because the Permit is vulnerable to being cancelled on multiple grounds, the panel finds on a balance of probabilities, that the principal claimant did not have status in Italy substantially similar to that of an Italian/EU national.
[30] Further, as the panel has no evidence before it to indicate that the female claimant was conferred any rights, transitory or otherwise, under the Permit, it finds that she does not have status substantially similar to that of an Italian or EU national.
[31] Accordingly, the panel finds that the claimants should not be excluded under Article 1E of s.98 of the IRPA.
CONCLUSION
[32] For the reasons as above noted, the panel finds the claimants to be Convention refugees and accept their claims.
(signed) Roderick Flynn
June 15, 2021
1 Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended (hereinafter “the IRPA”).
2 Exhibit 2.1 and 2.2, “XXXX XXXX XXXX XXXX XXXX XXXX, (hereinafter “the
Narrative”)
3 Exhibit 2.1 and Exhibit 2.2.
4 Narrative, para. 1.
5 Ibid., para. 48.
6 Ibid., para. 14.
7 Ibid, para. 46.
8 Ibid, para. 16.
9 Ibid, para. 46.
10 Ibid., para. 35, para. 43-46.
11 Exhibit 4 includes multiple identity documents for both claimants, both photographic and non-photographic, including their National Identity Cards starting at p.66.
12 Exhibit 1.
13 Exhibit 4, p.1.-2.
14 Ibid, p.3.
15 Ibid., p.5-6.
16 Ibid., p.16.
17 Ibid, p.20-31.
18 Ibid, p.37-60.
19 Exhibit 3.1, NDP for Pakistan.
20 Ibid.
21 Ibid, “Country Policy and Information Note. Pakistan: Ahmadi Muslims.
22 Ibid, para. 3.1.6.
23 Ibid, para. 5.1.1.
24 Ibid, para. 2.5.4.
25 Ibid, para. 8.4.11.
26 Ibid.
27 Exhibit 7 (hereinafter “the Brief’ or “the Minister’s Brief’).
28 Narrative, para. 16; Minister’s Brief, para. 4.
29 Minister’s Brief, para. 17.
30 Ibid, para. 20 and 26.
31 Schedule to the IRPA, United Nations Convention on the Status ofRefugees.
32 IRPA, s.98.
33 Ibid.
34 2010 FCA 118 (“Zeng”).
35 Exhibit 3.2, National Documentation Package for Italy
36 Ibid, Item 3.7 “Response to Information Request (March 6, 2015). Italy: The permesso di soggiorno illimitata including its physical characteristics, requirements and procedures to obtain and renew the document, rights of holders of the document”, p.4. See also “Response to Information Request (28 February 2019). Italy: Grounds for revocation of the European Union (EU) residence permit for long-term residents (perrnesso di soggiomo UE per soggiomanti di lungo period also called perrnesso di soggiomo illimitata whether an individual who has lost their permit can apply to have it reinstated.”
37 Ibid, p.4.
38 Ibid.
39 Ibid., p.2.
40 Minister’s Brief, para. 26.
41 Narrative, para. 35.
42 Ibid, para. 37.
43 Supra, note 35.
44 Ibid., p.5.
45 Ibid., Item 3.7, p.4
46 (1995), 32 Imm. L.R. (2d) 135 (F.C.).
47 Supra, Note 44.
48 Ibid, p.5, bull et 3.
49 Ibid, p.2, para. 3.
50 Supra, note 46.