Mahmood v. Canada (Minister of Citizenship and Immigration), 2004 FC 1539

Date: 20041101

Docket: IMM-1619-04

Citation: 2004 FC 1539

BETWEEN:

                                                      RAJA EHSAN MAHMOOD

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARRINGTON J.

[1]                In this case I granted judicial review from the Bench and said I would be issuing written reasons. Here they are.

[2]                Mr. Mahmood is a citizen of Pakistan who favours an independent Kashmir. He was harassed by opposing forces and after delivering a speech in favour of an independent Kashmir received a visit from the Intelligence Agency warning him to refrain from such activities. In January 2002, the police raided his home. He went into hiding and then came to Canada.

[3]                He was found not to be credible both generally and specifically as to his identity.

[4]                In support of his identity, he produced a photocopy of the first two pages of his passport. The Board member found that when asked for the original, Mr. Mahmood said that it had been seized by Immigration Canada. This was a patently unreasonable finding of fact. His passport had been lost or seized before he had left Pakistan. It is now admitted that the Board member made an error in that finding.

[5]                There were other identity documents which were not discussed by the Board member. The record shows that their genuineness was suspect. However, the Board member did not comment upon them, and it does not fall upon this Court to determine what he might have found had he considered them.

[6]                The Board member went on to say that the determinant issue was credibility. However, he confused port-of-entry notes with notes of interview. Mr. Mahmood was criticized for saying that he had come to Canada with the sole intention of visiting. That was his sole intention on his first visit to Canada, and indeed he left afterwards.

[7]                Mr. Mahmood had also been in the United Kingdom and in the United States from September 2000 to March 2001. It was said he did not have a subjective fear of persecution because he did not seek refugee status at that time. What Mr. Mahmood had said, and the record is perfectly clear, was that although he had been arrested in 1995 and 1998 in Pakistan, this was part and parcel of political life there, and he did not feel persecuted. Although he was beaten in 1999, again this beating was not sufficient to cause him to fear persecution. It was only after a warrant was out for his arrest, after he had returned to Pakistan from the United Kingdom and the USA that he felt persecuted and fled.

[8]                He was also criticized for failing to mention in his PIF that he had been arrested in 1995 and 1998. Mr. Mahmood explained this by saying that he was led into confusion by the interpreter. More importantly, however, the record shows he had been interviewed earlier by Immigration officials and had mentioned the two arrests.

[9]                As mentioned at the hearing, I think this case is the inverse of Canada (Minister of Employment and Immigration) v. Dan-Ash (1988), 93 N.R. 33; [1988] F.C.J. No. 571. Hugessen J.A., speaking for the Court of Appeal, said:

... unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence. It is simply impossible for us to say that point would not have been reached in this case if the Board had properly instructed itself in the law. That being so, the decision cannot stand.

[10]            Likewise, there must come a point at which a Board member's errors will move even the most generous reviewer to reject his findings on evidence as being patently unreasonable. It is simply impossible for me to say that that point has not been reached in this case. The decision cannot stand.

"Sean Harrington"

                                                                                                   Judge               

Ottawa, Ontario

November 1, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-1619-04

STYLE OF CAUSE:                                       RAJA EHSAN MAHMOOD

AND

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                             MONTREAL, QUÉBEC

DATE OF HEARING:                                               OCTOBER 28, 2004

REASONS FOR ORDER :                                      HARRINGTON J.

DATED:                                                           NOVEMBER 1, 2004

APPEARANCES:

Jeffrey Nadler                                                    FOR APPLICANT

Diane Lemery                                                    FOR RESPONDENT

SOLICITORS OF RECORD:

Jeffrey Nadler                                                    FOR APPLICANT

Montreal, Québec

Morris Rosenberg                                              FOR RESPONDENT

Deputy Attorney General of Canada