Date: 20061012
Docket: IMM-1437-06
Citation: 2006
FC 1219
Calgary, Alberta,
October 12, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
MUHAMMAD
IQBAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present Application, in
large part the Applicant bases his claim for protection on evidence that,
should he return to Pakistan he fears that he will be subjected to risk of
violence and eventual death at the hands of a member of a political party in
Pakistan and the Pakistani governmental authorities because fraudulent charges
are outstanding against him in Pakistan.
[2]
The
Refugee Protection Division (RPD) rejected the Applicant’s claim on the basis
of a negative credibility finding and the rejection of documentary evidence,
submitted to prove the risk, as not authentic. I find that the manner in which
these conclusions were reached constitutes reviewable error.
[3]
As stated
in R.E.R. v. Canada (Minister of Citizenship and
Immigration) 2005
FC 1339 at para. 9, all evidence with respect to an applicant’s claim for
protection must be considered before a global credibility finding is made:
First, it is only fair and reasonable for
parties to litigation to expect that the decision-maker will consider the
evidence in its entirety, with an open mind, before making findings about the
value to be placed on critical elements of the evidence. For the general
proposition that the evidence must be considered in its entirety see Owusu-Ansah
v. Canada (Minister of Employment and
Immigration) (1989),
98 N.R. 312 (F.C.A.). In the present case, I find that the RPD was in error in
not considering the whole of the evidence, including the wife’s rape evidence
and the cogent independent evidence about the apparent effects of the torture
and rape in the form of photographs and reports, before making the critical
finding of negative credibility against the principal Applicant (also see Gonzalez
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 422,
and Herabadi v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 1729).
[4]
In the
present case, first a global negative credibility finding was made and then key
pieces of independent corroborative evidence were rejected as a result. The
following passage from the RPD’s decision details this decision making process:
The claimant’s allegations that these are
false politically motivated criminal charges instigated by Ashan Saman and the
SSP are a significant element of the claimant’s refugee protection claim, and
they are of a serious nature. Again, the claimant testified that he first
became aware of these false charges against him approximately one month after
the FIR was registered on May 18, 2004, but the Board did not receive these
documents until June 22, 2005, approximately one year later, and subsequent to
the claimant’s first refugee protection claim hearing on March 1, 2004. The
Board’s administrative documents indicate that the claimant’s previous legal
counsel, the legal counsel that represented the claimant at his first refugee
protection claim hearing on March 1, 2004, continued to represent the claimant
at least until July 11, 2005. The claimant did not make any attempt to provide
an updated PIF or PIF narrative to the Board respecting the alleged politically
motivated false criminal charges against him even though he was aware of these
alleged charges in June of 2004. Therefore, I find the claimant’s delay in
providing these very significant documents of police and government interest in
him to be unreasonable.
[…]
Based upon my negative credibility
findings respecting the claimant’s allegations respecting he and his family
members past problems at the hands of Ahsan Saman and his SSP associates, I
find on a balance of probabilities that all of the foregoing court documents,
FIR’S Arrest Warrants, and Proclamation are not authentic and were fabricated
and procured by the claimant to embellish his refugee protection claim. In making this finding, I
refer to the documentary evidence before me on the easy accessibility of
fraudulent documents in Pakistan, including fraudulent police
and court documents and correspondence from lawyers.
[Emphasis added]
[5]
From the
passage quoted, it appears that the RPD had three reasons for rejecting the
Applicant’s corroborative evidence: the evidence was submitted with delay; the
Applicant is not credible; and the evidence itself is not reliable.
[6]
First, I
find that the evidence on the record does not substantiate the finding of delay.
The present Application concerns a redetermination decision. The Applicant’s
evidence is that he was not aware of the false charges placed against him until
June 2004, being approximately one month after the First Information Report was
registered against him. Therefore, this knowledge arose after the Applicant’s
first refugee protection claim hearing on March 1, 2004 and before the redetermination
was ordered on judicial review on February 24, 2005. It is not contested that
the Applicant submitted the documentary evidence in accordance with Rule 29 of
the RPD Rules which specifies that documents must be received no later than 20
days before the hearing date; they were submitted on June 22, 2005, within 20
days of the hearing which took place on July 12, 2005. Therefore, in my
opinion the RPD’s finding of delay is unsubstantiated, and, therefore, is capricious.
[7]
Second, the
issue of the rejection of the corroborative evidence exposes two reviewable
errors.
[8]
It appears
that the negative finding of credibility was an important factor in determining
that the documentation should be rejected because it is not authentic. Based on
the authority quoted above, it was incumbent on the RPD to make its global
credibility finding after considering all the evidence. To properly do so, it
was necessary for the RPD to first deal with the authenticity of the
documentary evidence in its own right. The RPD did not do this. In fact,
quite apart from the issue of the Applicant’s credibility, the RPD had no
evidence, other than a generalized suspicion, upon which to base its conclusion
that the documents submitted are fraudulent. The fact that there is “easy
accessibility of fraudulent documents in Pakistan” does not mean that the particular
documents before the RPD are in fact fabricated. On this basis alone, I find
that the rejection of the documentary evidence is a capricious finding.
[9]
I find
that the global finding of credibility is made in error of law because it was
not reached on the basis of all the evidence properly found to be admissible.
.
ORDER
Accordingly, I set aside the RPD’s decision and refer the
matter back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1437-06
STYLE OF CAUSE: MUHAMMAD
IQBAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF
HEARING: Calgary, Alberta
DATE OF
HEARING: October
12, 2006
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: October
12, 2006
APPEARANCES:
|
Ms. Jolene
Fairbrother
|
FOR THE APPLICANT
|
|
Ms. Camille
Audain
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Sherritt
Greene
Calgary,
Alberta
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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