Date: 20040623
Docket: IMM-5550-03
Neutral citation: 2004 FC 899
OTTAWA, Ontario, this 23rd day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
TAHIR MAHMOOD AKHTAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF PROCEEDINGS
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (the Board) determining that the Applicant is not a Convention Refugee and is not a person in need of protection.
[2] There are several issues raised in this application but this case may be determined on the basis of the finding on identity. Since the matter is to be remitted to the Board, I will make no finding on the other issues raised.
BACKGROUND
[3] The Applicant claimed that he had been subject to persecution by the Pakistan Muslim League (PML) and the police because he was a member of the Pakistan People's Party (PPP).
[4] The Applicant's evidence outlined a series of assaults, arrests, mistreatments by either or both of the PML and the police. Many of the incidents occurred in and around various elections.
[5] The Member's decision makes no specific finding as to the existence of these facts although they appear to have been accepted as true. However the Member appears to have held that they did not constitute persecution.
[6] One can only surmise that the Member did not see the Applicant as needing protection because it was only leaders of the PPP who were targeted for abuse.
[7] The Member rejected the Applicant's evidence as to identity. This rejection was based on the Applicant's failure to produce his passport and airline ticket.
ANALYSIS
[8] The standard of review in respect of findings of fact, which I consider the issue of identity in this case to be, is patent unreasonableness.
[9] Read as a whole, the Member's decision can be summarized as follows:
(a) The Applicant was punched, slapped, kicked, threatened, arrested and abused because of his membership in the PPP.
(b) The Applicant was a mere member of the PPP and therefore could not be a target of the PML or the police as only leaders of the PPP are targeted for the type of abuse experienced by the applicant.
(c) The Applicant has not proved his identity as a member of the PPP or as a citizen of Pakistan.
[10] As each finding effectively contradicts the other, I find the decision to be patently unreasonable.
[11] If the Member did not find the Applicant credible, he failed to say so in clear and unmistakable terms as required by Hilo v. Canada (M.E.I.), [1991] F.C.J. No. 228 (F.C.A.).
[12] In rejecting the Applicant's evidence of identity due to failure to produce his passport and airline ticket, the Member either ignored and did not comment on the following critical evidence presented which was highly relevant to the Applicant's identity:
-his birth certificate
-his certificate of domicile
-his PPP membership card
-his secondary school certificate
-his intermediate school certificate
-his University of Punjab marks card
-his University of Punjab BA diploma
-two letters from PPP officials
-a letter from a Pakistani lawyer
-an arrest warrant
[13] While the Member referred to the fact that false documents are available in Pakistan, he made no finding that some or all of these documents were false. There was no evidence submitted on which this finding could be made.
[14] To ignore all of this evidence or to reject it without reasons breaches both the legal requirement to give reasons and the standard of review on factual findings of patent unreasonableness.
[15] This matter is so fact specific that it does not raise a certifiable issue.
ORDER
IT IS HEREBY ORDERED THAT:
a) this application for judicial review is granted, the Member's decision is quashed and the matter is remitted to the Immigration Review Board for a new determination by a differently constituted panel;
b) no question be certified.
(s) "Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5550-03
STYLE OF CAUSE: TAHIR MAHMOOD AKHTAR v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 25, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: June 23, 2004
APPEARANCES:
Ms. Chantal Desloges FOR THE APPLICANT
Mr. Greg G. George FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Chantal Desloges
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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