Date: 20040908
Docket: IMM-6482-03
Neutral citation: 2004 FC 1229
BETWEEN:
SARDAR MUHAMMAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR INTERIM ORDER
PHELAN J.
[1] These are the reasons for an interim order permitting the Applicant to file an affidavit from his former counsel as to the receipt of a letter and enclosures from the Immigration and Refugee Board (the "Board"). In view of this interim order I will not address the merits of the judicial review until this interim matter is disposed of.
[2] The Applicant had filed a refugee claim alleging a well-founded fear of persecution or risk of harm in Pakistan based on his religion, Shia Muslim, and his involvement in the Tahreek Jafferia Pakistan (TJP), a Shia political and religious organization.
[3] A central issue in the Board's determination was the Applicant's identity as a Shia and member of the TJP. The Board had received correspondence from the Office Secretary of the TJP to the effect that two letters of reference from a local office of the TJP were "totally bogus".
[4] The Applicant explained this turn of events as arising because the SSP had intercepted the real report from the Office Secretary of the TJP and had substituted a false report. That explanation was at odds with other documentary evidence. The Applicant could not resolve the documented discrepancies and gave yet another explanation.
[5] Following the hearing, the Board received a letter dated May 28, 2003 purportedly from the Office Secretary of the TJP confirming that the Applicant was Shia. The Board considered the letter to be relevant and admitted the document as Exhibit $-4.
[6] The Board also had received, on August 10, 2002, an e-mail allegedly from the TJP to the Board's research staff. Through apparent inadvertence, that e-mail had not been disclosed to counsel. The e-mail was to confirm that the earlier letter from the local office of the TJP (the letter which the SSP supposedly stole and replaced) was a letter in favour of the Applicant and that it was "genuine and correct". This too became an exhibit.
[7] In essence, the Applicant now had two documents confirming the legitimacy of this TJP membership and one document which was allegedly false and sent by the SSP - the TJP's rival.
[8] The Board directed that these two pieces of correspondence (the May 28, 2003 letter and the August 10, 2002 e-mail) be sent to the Applicant's counsel and counsel was invited to make written submissions on this new disclosure. No submissions were received.
[9] The Board rendered its decision denying the claim. It had doubts as to the genuineness of both the August 10, 2002 e-mail and the May 28, 2003 letter. The Board had other doubts as to the Applicant's evidence and in the end determined that he was neither a Shia or a member of the TPJ.
[10] Before this Court, the Applicant filed his affidavit explaining the facts as he saw them. The critical passage is paragraph 10(g) where he attests to the fact that neither he nor his counsel have ever seen the May 28, 2003 and August 10, 2002. It is hardly surprising that the Applicant did not receive a copy, he was never an addressee. The wording is important:
Neither my counsel nor I have ever seen the May 28, 2003 and August 10, 2002 TJP information disclosed directly to the Board by Naqvi from Pakistan corroborating the information provided to the Board on June 2, 2003 dated May 28, 2003.
[11] The Respondent countered with an affidavit of a paralegal at the Department of Justice attaching the Board's covering letter to the Applicant's then counsel enclosing these 2 pieces of correspondence as well as a copy of the "Outgoing Correspondence Entry Screen". The purpose of all this evidence is to show that the Board sent the relevant documents to the Applicant's counsel of record.
[12] What is missing from all of this information is evidence, one way or the other, of receipt by the Applicant's counsel.
[13] The Applicant filed a reply argument but did not file any evidence from the former counsel.
[14] It is arguable that the Applicant has failed to prove lack of receipt by his former counsel and therefore the matter can be disposed of on that basis.
[15] The Applicant's counsel now argues that one can assume that the Applicant contacted his former counsel in order for him to be able to state what is in paragraph 10(g). This Court is not prepared to accept assumptions on a matter of this importance.
[16] The consequences to the Applicant of a failure to receive the documents and to respond are so severe, being the loss of his refugee claim, that I am prepared to afford the Applicant an opportunity to secure the only meaningful evidence of non-receipt - evidence from his former counsel.
[17] For these reasons, an Interim Order will issue.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6482-03
STYLE OF CAUSE: SARDAR MUHAMMAD v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, August 4, 2004
REASONS FOR INTERIM ORDER BY:THE HONOURABLE MR. JUSTICE PHELAN
DATED: September 8, 2004
APPEARANCES:
Mr. Robert I. Blanshay FOR THE APPLICANT
Ms. Pamela Larmondin FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Robert I. Blanshay
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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