Prompt:
Analyze this Federal Court of Appeal of Canada decision and explain its precedential value for immigration cases:

Canada (Attorney General) v. Rushwan Court (s) Database Federal Court of Appeal Decisions Date 2023-05-31 Neutral citation 2023 FCA 118 File numbers A-183-20 Decision Content Date: 20230531 Docket: A-183-20 Citation: 2023 FCA 118 CORAM: STRATAS J.A. RENNIE J.A. MACTAVISH J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ALYM RUSHWAN Respondent Heard at Ottawa, Ontario, on January 13, 2022. Judgment delivered at Ottawa, Ontario, on May 31, 2023. REASONS FOR JUDGMENT BY: THE COURT Date: 20230531 Docket: A-183-20 Citation: 2023 FCA 118 CORAM: STRATAS J.A. RENNIE J.A. MACTAVISH J.A. BETWEEN: ATTORNEY GENERAL OF CANADA Applicant and ALYM RUSHWAN Respondent REASONS FOR JUDGMENT BY THE COURT [1] This is an application for judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board (2020 FPSLREB 66) allowing a grievance brought by the respondent employee, Alym Rushwan, against his employer, Transport Canada. After his employer denied his request to be designated for standby duties, the respondent filed the grievance before the Board under paragraph 209(1)(a) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the Act). The Board found that, based on its understanding of the collective agreement’s relevant clauses, the employer had failed to equitably distribute the standby duties requested by the respondent as required by the agreement. [2] The interpretation of collective agreements is “the heartland of [the Board’s] expertise”, and its decisions on such matters are owed deference on an application for judicial review (Canada (Attorney General) v. Fehr, 2018 FCA 159, 296 A.C.W.S. (3d) 170 at para. 4). The Board’s decision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 100 [Vavilov]). [3] A reasonable decision is based on an internally coherent and rational chain of analysis that is justified in relation to the relevant facts and law (Vavilov at para. 85). This standard signals two types of fundamental flaws that may show a decision to be unreasonable: the absence of reasoning that is both rational and logical, or the lack of a justifying constellation of law and facts relevant to the decision (Vavilov at paras. 102 and 105). Put simply, to characterize a decision as unreasonable, a reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, transparency and intelligibility (Vavilov at para. 100). Two such shortcomings are present in the Board’s decision. [4] The first shortcoming, in which the Board adopted an incorrect approach to reviewing the employer’s decision, is not fatal to the decision. What is fatal, however, is the failure of the Board to explain how clause 30.02 of the collective agreement imposes an obligation on the employer to provide training to unqualified employees so that they may become qualified to join a particular standby list. Specifically, the Board found that the respondent was not qualified for the standby duties that he requested, but that the employer was nevertheless obligated to take positive measures to provide him the training necessary to become qualified. This conclusion effectively imposes a new duty on the employer under the collective agreement to distribute standby duties equitably among both qualified and unqualified employees. This interpretation is unsupported by the Board’s reasons and the text of the collective agreement. [5] The circumstances that led to the respondent’s filing of a grievance may be briefly stated. [6] The respondent was a TI-07 Marine Safety Inspector in the Compliance and Enforcement Unit with Transport Canada. In this role, the respondent facilitated the docking of ships at the Port of Vancouver. Before certain organizational changes, which are described below, the Vancouver office of Transport Canada consisted of five units: Compliance and Enforcement, Cargo Services, Technical Services, Inspection Services, and Office of Boating Safety. Each unit had a different mandate and was led by a different manager. [7] In the respondent’s unit, the Compliance and Enforcement Unit, marine safety inspectors were responsible for regulatory compliance, responding to marine emergencies, and performing pollution investigations. The Cargo Services Unit, in contrast, consisted of port wardens responsible for ship cargo services and loading. Port wardens issue certifications for cargo loading and for fitness to proceed to sea, and are qualified to inspect different types of cargo including grain, concentrate and timber. They also investigate complaints and work stoppages under the Canada Labour Code, R.S.C., 1985, c. L-2. [8] Prior to 2012, Transport Canada’s Pacific Region had two separate standby lists, distinguished by different training and certification requirements, to address specific port-related after-hours work. These included the Port Warden Standby List, assigned to the Cargo Services Unit, and the Second Standby List, assigned to the Compliance and Enforcement Unit. As a marine safety inspector, the respondent was listed on the Second Standby List. On July 10, 2012, Transport Canada announced its plan to eliminate the Second Standby List and proceed with only one standby system in the Pacific Region, namely, the Port Warden Standby List. [9] At the time that the Second Standby List for the Compliance and Enforcement Unit was eliminated, the respondent was not authorized to carry out cargo inspections as required for the port warden position; he lacked both the requisite training as well as the required formal recognition of competence by the employer. The respondent was therefore not eligible to be added to the Port Warden Standby List. This fact is uncontested. [10] The respondent nevertheless emailed the manager of the Cargo Services Unit seeking to be included on that unit’s Port Warden Standby List, which by then was the only standby list in the Pacific Region. In a responding email, the manager refused the respondent’s request, stating that the unit already had sufficient staff on its standby list based on the unit’s operational requirements. The substance of this response figures prominently in the Board’s reasoning, a point to which we will return. [11] Six months later, on December 17, 2012, the former Compliance and Enforcement Unit and the former Cargo Services Unit integrated into one division called the Compliance, Enforcement and Cargo Services Division. That same day, the manager of the new Compliance, Enforcement and Cargo Services Division emailed all staff in the division indicating that training for port warden positions would begin the next day. [12] The respondent began the training required to become qualified as a port warden, and was added to the Port Warden Standby List on April 29, 2013. The respondent’s grievance was therefore a confined claim for retroactive pay for the period of time during which he was unqualified to be on the Port Warden Standby List. [13] We turn now to the Board’s decision. [14] The Board reviewed Transport Canada’s evidence with respect to the department’s new budgetary constraints, noting that Transport Canada was required to reduce its spending by 10.7 percent over three years and that abolishing the Second Standby List had been considered an “important cost-saving measure” within the department (Reasons at para. 69). The Board also observed that budget cuts had motivated the merger of the two units that created the new Compliance, Enforcement and Cargo Services Division (Reasons at para. 70). [15] The Board then considered whether the employer had breached clause 30.02 of the collective agreement by not placing the respondent on the Port Warden Standby List. Article 30 of the collective agreements reads as follows: ARTICLE 30 STANDBY 30.01 Where the Employer requires an employee to be available on standby during off-duty hours, such employee shall be compensated at the rate of one-half (1/2) hour for each four (4) hour period or part thereof for which the employee has been designated as being on standby duty. 30.02 An employee designated by letter or by list for standby duty shall be available during his or her period of standby at a known telephone number and be available for return to work as quickly as possible if called. In designating employees for standby, the Employer will endeavour to provide for the equitable distribution of standby duties. 30.03 No standby payment shall be granted if an employee is unable to report for work when required. 30.04 An employee on standby who is required to report for work shall be compensated in accordance with clause 29.01. 30.05 Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than the employee’s normal place of work, time spent by the employee reporting to work or returning to his or her residence shall not constitute time worked. 30.06 (a) Payments referred to in clauses 30.01 and 30.04 shall be compensated in cash except where, upon request of an employee and with the approval of the Employer, or at the request of the Employer and the concurrence of the employee, the payment may be compensated in equivalent leave with pay. (b) Compensatory leave with pay not used by the end of a twelve (12) month period to be determined by the Employer will be paid for in cash at the employee’s hourly rate of pay as calculated from the classification prescribed in the certificate of appointment of his or her substantive position at the end of the twelve (12) month period. [16] The Board concluded that, although the respondent was ineligible for inclusion on the Port Warden Standby List due to his insufficient qualifications, the employer was nevertheless obligated to strive for an equitable distribution of standby duties by “address[ing] and possibly overcom[ing]” the respondent’s ineligibility (Reasons at para. 178). Relying on clause 30.02 of the collective agreement—and highlighting the clause’s specification that the employer “will endeavour” to provide for an equitable distribution of standby duties—the Board determined that the employer was obligated to take positive action and provide the approximately four months of training required to secure the respondent’s spot on the Port Warden Standby List (Reasons at paras. 179, 183, and 194). [17] Although it accepted that the budgeting pressures that drove Transport Canada’s reorganization were genuine (Reasons at para. 167), the Board based its conclusion on the employer’s email response to the respondent’s request to be added to the Port Warden Standby List. The employer’s initial reason for rejecting the respondent’s request was not based on the economic pressures at the time, nor was it based on the fact that the respondent was not authorized to inspect cargo; rather, the employer’s reason was based on the Cargo Services Unit’s operational needs. The Board found that this justification did not represent a legitimate operational objective (Reasons at para. 181). [18] The Board also noted that the employer’s decision to refuse to add someone to the Port Warden Standby List would not have saved Transport Canada any money (Reasons at para. 182). The Board reasoned that the standby duties had to be performed and the cost incurred in any event; the number of people on the list would not affect the department’s overall expenditures (Reasons at para. 182). In the Board’s view, the employer did not provide a reasonable and credible explanation for its refusal to add the respondent to the list; the Board went on to hold that, in denying the respondent’s request to be designated for standby duty because there was no operational need for his labour, the employer had not made the necessary effort to provide for an equitable distribution of standby duties as required by clause 30.02 (Reasons at para. 193). [19] This led to the first shortcoming. [20] The Board focused on the initial reasons offered by the employer for its decision to deny the respondent’s request. Indeed, the Board expressly considered itself as sitting in review of the employer’s decision as opposed to conducting a de novo hearing (Reasons at para. 174). [21] A hearing before an adjudicator of a grievance must, however, proceed as a de novo hearing (Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291, 486 N.R. 308 at para. 38). The Board’s task was therefore to interpret and apply the collective agreement to assess the employer’s decision; instead, the Board examined the reasons originally offered by the employer in denying the respondent’s request via email. The Board’s role on adjudication under paragraph 209(1)(a) of Act is not to assess the substantive reasonableness of an employer’s initial justification or explanation for its decision as if the Board were sitting in a judicial review capacity. The Board’s mandate under this provision, rather, is to determine whether the employer breached the collective agreement based on a de novo assessment of the relevant facts, law and argument. [22] This principle is well established in the Board’s jurisprudence. In Scanlon and Christianson v. Canada Revenue Agency, 2009 PSLRB 42, 97 C.L.A.S. 297 [Scanlon], the Board held that it would not consider whether an employer had sufficiently justified its decision to the affected employees (Scanlon at para. 49): Ultimately, as a legal matter, an employer is required to prove the reasonableness of its decision to an adjudicator and not the employees at the worksite. An explanation to employees about the reasons for a change may be important for the morale of a workplace, but it is not something that involves the Board. [23] Accordingly, the Board misunderstood its role on adjudication as one that required it to consider the legitimacy of the employer’s justification for refusing to add the respondent to the Port Warden Standby List. [24] Although the Board’s focus was misplaced, “[i]t would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep” (Vavilov at para. 100). As previously noted, any flaws or shortcomings capable of rendering the decision unreasonable must be sufficiently central to the merits of the decision (Vavilov at para. 100). Here, the Board’s reliance on the employer’s email does not strike at the core of the outcome, and does not, on its own, warrant setting aside the decision. [25] We turn to the second shortcoming in the Board’s reasons. It is far more significant and strikes at the core of the outcome. [26] This grievance was referred to adjudication under paragraph 209(1)(a) of the Act for the interpretation or application of a provision of the collective agreement. The Board’s role in this case was therefore limited to considering the terms of the collective agreement and their application. Specifically, the Board was required to determine whether the employer’s refusal to add the respondent to the Port Warden Standby List constituted a violation of the collective agreement. [27] The Board misconstrued the collective agreement by failing to consider, interpret and apply the whole of clause 30.02, which applies to employees designated “by letter or by list” for standby duty. The Board improperly based its reasoning on the last sentence in the clause, which states that when designating employees for standby, the employer must endeavour to provide for an equitable distribution of standby duties. [28] In so doing, the Board omitted the first step of the legal analysis, which required it to determine whether the respondent had been designated “by letter or by list” for the Port Warden Standby List. The Board’s failure to examine the first part of the clause led to an unreasonable interpretation of the latter portion of the clause. Again, it is uncontested that the respondent could not have been placed on the Port Warden Standby List at the time of his request. [29] During the period of time for which the respondent sought retroactive pay due to his allegedly wrongful exclusion from the Port Warden Standby List, the respondent was not qualified for port warden standby periods. As a result, the employer cannot have been required to equitably distribute standby duties to him pursuant to clause 30.02. Under the Board’s interpretation of the clause, management’s discretion to designate employees by letter or by list becomes redundant, because the employer would have no choice but to “endeavour” to distribute standby duties equitably to all employees, qualified or not. [30] Consequently, the Board rendered a decision that effectively amended the collective agreement. The Board imposed an obligation on the employer to provide training to qualify the respondent for duties that he was not otherwise required to perform in his position. [31] We reiterate that paragraph 209(1)(a) of the Act limits the Board’s jurisdiction to the interpretation or application of a provision of the collective agreement. The Act does not authorize the Board to create new terms and obligations when interpreting or applying a collective agreement. Here, nothing in the collective agreement can be read as imposing an obligation on the employer to train employees to qualify them for duties that they are not required to perform in the position they hold. The Board nevertheless introduced such an obligation into the agreement. [32] The Board reached this conclusion having considered its earlier decision in Scanlon, in which an adjudicator interpreted a provision identical to clause 30.02. In that case, the adjudicator held that the employer was required to make considerable effort to achieve the objective of the equitable distribution of standby duties (Reasons at paras. 163-164, citing Scanlon at para. 32). The Board concluded that, according to the adjudicator’s conclusion in Scanlon, Transport Canada must also have had a positive obligation to provide for an equitable distribution of standby duties under clause 30.02 by ensuring the respondent’s inclusion on the Port Warden Standby List. [33] This was the extent of the Board’s interpretation of clause 30.02. The Board did not consider whether any positive obligation under the clause applied to unqualified employees, and instead simply assumed that the employer’s obligation extended to the respondent (Reasons at paras. 119-125). This assumption is not one that can be made without explanation, as it is unsupported by either the text of the collective agreement or the decision in Scanlon. [34] The question that had been before the Board in Scanlon asked whether removing senior employees from a standby list, while leaving junior employees who were paid at lower rates on the list, violated the applicable collective agreement. There was no doubt in Scanlon that the provision applied to the grievors involved in the matter. The same cannot be said here. By relying almost exclusively on the adjudicator’s interpretation of clause 30.02 in that case, the Board failed to consider whether the clause applied to an employee who was not qualified to be on a standby list at the time in issue. [35] The Board’s unquestioning reliance on Scanlon, combined with its failure to consider whether clause 30.02 applied to both qualified and unqualified employees, renders the decision unreasonable. The Board failed to respond to the employer’s central argument that the clause could not apply to employees who were not qualified to be placed on the Port Warden Standby List. This omission constitutes a gap in a determinative point of the analysis. Responsive reasons, free of such gaps, are necessary to show that the decision maker actually listened to the parties and took into account the key issues or central arguments. Although decision makers are not expected to respond to every possible argument, the failure to consider key issues or central arguments raised by the parties may call into question whether the decision maker was alert to the matter before it (Vavilov at paras. 127-128). [36] A principled approach to reasonableness review puts reasons first (Vavilov at para. 84). Although administrative decisions need not be faultless in order to be upheld on judicial review, they must nevertheless be justified, intelligible and transparent (Vavilov at para. 95). In this case, it is impossible to discern a chain of analysis supporting the conclusion that clause 30.02 required the employer to assign standby duties to the respondent while he was not qualified to perform those duties. This amounts to a fatal flaw in the Board’s logic on a critical point of its analysis, rendering its decision unreasonable. [37] This application for judicial review will be allowed. The decision of the Board will be set aside. The matter will be remitted to the Board for redetermination. “David Stratas” J.A. “Donald J. Rennie” J.A. “Anne L. Mactavish” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-183-20 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. ALYM RUSHWAN PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 13, 2022 REASONS FOR JUDGMENT BY THE COURT: stratas j.a. rennie j.a. mactavish j.a. DATED: May 31, 2023 APPEARANCES: Karl Chemsi Marie-France Boyer For The Applicant Andrew Astritis For The Respondent SOLICITORS OF RECORD: Shalene Curtis-Micallef Deputy Attorney General of Canada For The Applicant Raven, Cameron, Ballantyne & Yazbeck LLP Ottawa, Ontario For The Respondent

Response:
## Analysis of Court Decision: Canada (Attorney General) v. Rushwan

### Key Issues
and took into account the key issues or central arguments. Although decision makers are not expected to respond to every possible argument, the failure to consider key issues or ce

### Standard of Review
decision accordingly attracts reasonableness review, in which this Court will only intervene where it encounters a fatal flaw that is central to the merits of the decision (Canada

### Legal Analysis
The court's analysis focuses on: oherent and rational chain of analysis that is justified in relation to the relevant facts and law (Vavilov at para. 85). This standard signals two types of fundamental flaws that may show a decision to be unreasonable: the absence of reasoning that is both rational and logical, or the lack of a justifying constellation of law a

### Precedential Value
As a Federal Court of Appeal decision, this ruling has significant precedential value and is binding on the Federal Court and administrative tribunals like the Immigration and Refugee Board. It establishes legal principles that must be followed in similar cases and provides authoritative interpretation of the relevant legislation.


Prompt:
Explain the purpose and application of this section of Asian Infrastructure Investment Bank Agreement Act:

# Asian Infrastructure Investment Bank Agreement Act SC 2017, c 33, s 176 An Act to provide for the membership of Canada in the Asian Infrastructure Investment Bank Assented to 2017-12-14 ### Short title 1 This Act may be cited as the Asian Infrastructure Investment Bank Agreement Act. ### Definitions 2 The following definitions apply in this Act. *Agreement* means the Agreement respecting the Asian Infrastructure Investment Bank set out in the schedule. (accord) *Bank* means the Asian Infrastructure Investment Bank. (Banque) ### Approval of Agreement 3 The Agreement is approved. ### Acceptance of Agreement and implementation 4 The Governor in Council may authorize the acceptance of the Agreement on behalf of Canada and take any measure that is necessary in the opinion of the Governor in Council, including making appointments, orders and regulations, for carrying out the obligations or exercising the rights of Canada under the Agreement, and in particular for granting the privileges and immunities set out in the Agreement. ### Amendment to schedule 5 The Governor in Council may, by order, amend the schedule to take into account amendments to the Agreement that are consistent with the purpose and functions of the Bank. ### Depository 6 The Bank of Canada is the depository in Canada for the assets of the Bank. ### Payments out of Consolidated Revenue Fund — Initial subscription 7 The Minister of Finance may make payments out of the Consolidated Revenue Fund to the Bank in respect of Canada’s initial subscription of shares in an aggregate amount not more than US$ 375,000,000, or any greater amount that is specified in an appropriation Act.

Response:
## Analysis of LEGISLATION-FED: Asian Infrastructure Investment Bank Agreement Act

### Purpose and Context
This legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.

### Key Provisions
The document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.

### Application to Immigration Cases
When applying this legislation to immigration cases, practitioners should consider both the explicit requirements and the underlying policy objectives. The provisions must be interpreted in light of the Canadian Charter of Rights and Freedoms, international obligations, and relevant jurisprudence. Particular attention should be paid to procedural fairness requirements and the proper exercise of discretionary authority.


Prompt:
What specific procedures does this Federal regulations from the Canadian government establish for immigration processes?

# Pitt Meadows Airport Zoning Regulations CRC, c 102 Regulations Respecting Zoning at Pitt Meadows Airport Enabling authority: AERONAUTICS ACT ## Short Title 1 These Regulations may be cited as the Pitt Meadows Airport Zoning Regulations. ## Interpretation 2 In these Regulations, *airport* means Pitt Meadows Airport, in the Corporation of the District of Pitt Meadows, in the Province of British Columbia; (aéroport) *airport reference point* means the point determined in the manner set out in Part I of the schedule; (point de repère de l’aéroport) *approach surface* means an imaginary inclined plane extending upward and outward from each end of a strip along and at right angles to the projected centre line thereof which approach surface is more particularly described in Part III of the schedule; (surface d’approche) *Minister* means the Minister of Transport; (ministre) *outer surface* means an imaginary surface located above and in the immediate vicinity of the airport, which outer surface is more particularly described in Part IV of the schedule; (surface extérieure) *strip* means the rectangular portion of the landing area of the airport, including the runway prepared for the take-off and landing of aircraft in a particular direction, which strip is more particularly described in Part V of the schedule; (bande) *transitional surface* means an imaginary inclined plane extending upward and outward from the lateral limits of a strip and its approach surfaces, which transitional surface is more particularly described in Part VI of the schedule. (surface de transition) 3 For the purpose of these Regulations, the airport reference point is deemed to be 9 feet above sea level. ## Application 4 These Regulations apply to all the lands and lands under water, including public road allowances, adjacent to or in the vicinity of the airport, the outer limits of which are described in Part II of the schedule, other than such lands as from time to time form part of the airport. ## General 5 No person shall erect or construct, on any land or any land under water to which these Regulations apply, any building, structure or object or any addition to any existing building, structure or object, the highest point of which will exceed in elevation at the location of that point any of the surfaces hereinafter set out that project immediately over and above the surface of the land at that location, namely, (a) the approach surfaces; (b) the outer surface; or (c) the transitional surfaces. ## Natural Growth 6 Where an object of natural growth on any land to which these Regulations apply exceeds in elevation any of the surfaces referred to in section 5, the Minister may make a direction that the owner or occupier of the land on which that object is growing remove the excessive growth. 7 [Revoked, SOR/81-201, s. 1]

Response:
## Analysis of REGULATIONS-FED: Pitt Meadows Airport Zoning Regulations

### Purpose and Context
This legislation establishes legal requirements relevant to immigration and refugee matters. It creates obligations for government officials, applicants, and other stakeholders in the immigration system. Understanding these provisions is essential for ensuring compliance with Canadian law in immigration contexts.

### Key Provisions
The document contains provisions related to immigration procedures, requirements, and enforcement mechanisms.

### Application to Immigration Cases
These regulations provide specific implementation details for broader legislative frameworks. Practitioners should ensure strict compliance with procedural requirements, timelines, and documentation standards. The regulations must be interpreted consistent with their enabling legislation and may be subject to challenge if they exceed the authority granted by the statute.


Prompt:
Analyze this Refugee Protection Division decision from the Immigration and Refugee Board of Canada and explain how it applies refugee definition:

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File No. / Nº de dossier de la SPR : MA6-00156 Private Proceeding Huis Clos Claimant(s) Demandeur(e)s d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) de l'audience May 8, 2008 Place of Hearing Lieu de l'audience Montréal, Quebec Date of Decision Date de la décision June 6, 2008 Panel Tribunal José wa Tshisungu Tshisungu Claimant's Counsel Conseil du demandeur d'asile Me Kathleen Gaudreau Tribunal Officer Agent du tribunal Donna Ramacieri [Filing of documents] Designated Representative Représentant désigné N/A Minister's Counsel Conseil du ministre Isabelle Bourgeau [1] XXXXX XXXXX XXXXX is a citizen of Haiti who is claiming refugee protection pursuant to section 961 and subsection 97(1)2 of the Immigration and Refugee Protection Act (the Act). [2] In support of his claim, he maintains that he was a police officer in Haiti. He alleges that in the line of duty, he was attacked, threatened with death, and was the victim of an assassination attempt by supporters of former president Jean Bertrand Aristide. The incidents allegedly occurred between XXXXX 2000 and XXXXX 2002. Fearing for his life, the claimant fled his country. ANALYSIS Identity [3] The claimant established his identity through his testimony and through a photocopy of his Haitian passport. The panel is satisfied with it. Exclusion of the claimant [4] The Minister's representative intervened in this case to request the claimant's exclusion under articles 1F (a) and (c) of the Convention. She alleged that, given his previous status as a police officer in Haiti from 1996 to 2002 and given the existence of documentary evidence showing that the Haitian police committed human rights violations, there are serious reasons for considering that the claimant may have been involved in or have been complicit in the commission of crimes against humanity or in acts that are contrary to the purposes and principles of the United Nations. [5] In response to these arguments, the claimant alleged that he held an administrative position with the Haitian police and did not have a high rank. He also alleged that there were no human rights violations at the locations where he worked. He concluded that he is innocent because he did not know anything about human rights violations in Haiti until he arrived in Canada. Issue(s) [6] Is the Haitian national police an organization directed to a limited, brutal purpose? [7] Do the activities of an individual who volunteers and pursues a career in an organization that commits human rights violations give serious reasons to consider that he could be complicit? Complicity factors [8] The jurisprudence sets out many factors to consider on the question of an individual's complicity in human rights violations. [9] In the instant case, we will consider six factors. Nature of the organization [10] The claimant was a member of the Haitian national police. The documentary evidence indicates that this organization is a state apparatus that Haiti established to ensure public order. The panel is of the opinion that any sovereign state has the right to create positions for the purpose of maintaining order. The panel concludes that it is not an organization directed to a limited, brutal purpose. Recruitment method and position held [11] The claimant willingly joined the Haitian national police. He served as a XXXXX at XXXXX, XXXXX and XXXXX XXXXX. He was promoted from XXXXX to XXXXX XXXXX XXXXX. [12] When questioned about his actual duties, he stated that he did two things: a) XXXXX b) XXXXX [13] The panel is of the opinion that it is a position of importance for two reasons. First, it enabled him to gather information on crime in the areas where he was working. Second, he exercised authority in assigning duties to police officers who were to report on their activities to him for assessment. Length of service in the organization [14] The claimant served for six years at several locations. The panel is of the opinion that it was enough time to immerse himself into and to understand the culture of the Haitian national police. The panel concludes that the claimant acquired a certain amount of information from this experience. Knowledge of human rights violations [15] The documentary evidence, particularly Exhibits M-3, M-6, M-10, M-20, M-38, P-37 and P-38, show that human rights violations were committed during the period when the claimant was a police officer in Haiti. [16] When questioned about his knowledge of the abuses, he alleged that he did not commit such acts where he worked, and furthermore, that he had not heard of such acts in Haiti. The panel cannot endorse this statement for the following reasons: [17] First, as a citizen, the claimant is able to analyze events and read. He holds a diploma (P-29) from the XXXXX XXXXX XXXXX XXXXX XXXXX [XXXXX XXXXX XXXXX XXXXX], which could have led him to a degree in XXXXX. In other words, he is an informed individual who is trying to plead wilful blindness. [18] Second, his duties led him to write many reports and talk with police officers. In the circumstances, he could not have been unaware of XXXXX abuses in Haiti. [19] Third, in Exhibit P-20, which was filed by the claimant, the author clearly mentions that he had some interesting conversations with the claimant as the person responsible for investigating police abuses. [20] When questioned about this exhibit, which contradicts his claim of ignorance, the claimant stated that their discussions were mainly about agronomy and that the author of Exhibit P-20 did not discuss any issues of law with him. [21] The panel rejects this denial of evidence filed by the claimant himself and concludes that the truth is quite opposite. Decision to resign from the police [22] The claimant never resigned from the police to distance himself from the abuses that were being committed by the organization. Questioned about this issue when confronted with Exhibits M-6 and M-30, he stated [translation] "It comes as a surprise to me that there were abuses. I was never aware of this. Police officers are professionals." The panel rejects his explanation on the grounds that it is implausible based on the claimant's level of education and the responsibilities he was assigned. [23] Consideration of all the factors, except the nature of the organization, attests to the claimant's complicity in the commission of human rights abuses by the police in Haiti. In fact, having willingly performed duties that gave him an overall picture of the situation, he remained in the Haitian national police while he was aware of the abuses that he never chose to dissociate himself from. He should have done so by resigning from the organization. CONCLUSION [24] The panel determines that the claimant is excluded from the refugee protection system. José wa Tshisungu Tshisungu José wa Tshisungu Tshisungu June 6, 2008 REFUGEE PROTECTION DIVISION / OCCUPATIONS / MILITARY GOVERNMENT / MINISTER'S INTERVENTION / EXCLUSION CLAUSES / HUMAN RIGHTS VIOLATIONS / VOLUNTARY REPATRIATION / ACCOMPLICES / MALE / NEGATIVE / HAITI 1 The Immigration and Refugee Protection Act, S.C. (2001), c. 27, reads in part as follows: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 2 The Immigration and Refugee Protection Act, S.C. (2001), c. 27, reads in part as follows: 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. --------------- --------------- --------------- --------------- RPD File No. / Nº de dossier de la SPR : MA6-00156 5

Response:
## Analysis of Refugee Decision: MA6-00156

### Key Issues
ibit P-20 did not discuss any issues of law with him. [21] The panel rejects this denial of evidence filed by the claimant himself and concludes that the truth is quite opposite. D

### Legal Analysis
The decision analyzes refugee protection criteria by examining: he claimant fled his country. ANALYSIS Identity [3] The claimant established his identity through his testimony and through a photocopy of his Haitian passport. The panel is satisfied with it. Exclusion of the claimant [4] The Minister's representative intervened in this case to request the claimant's exclusion under articles 1F

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.