Date: 20000721
Docket: IMM-4162-99
Ottawa, Ontario, this 21st day of July 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
MUHAMMAD MUNER HAJI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This case raises the issue as to whether this Court can ignore errors made by the Convention Refugee Determination Division ("CRDD") if it finds that overall the decision is supportable on the basis of the evidence before the CCRD.
[2] Mr. Haji came to Canada via the United States from his native Pakistan in July 1992 claiming refugee status. His application was dismissed on March 31, 1994. An application for judicial review was dismissed for failure to file an application record. He was deported to the United States on April 15, 1997 but returned to Canada to make a new refugee claim on September 18, 1997. His second application was heard on May 18 1999 and was dismissed on July 30, 1999. His application for judicial review was heard on July 4, 2000.
[3] His second refugee claim was essentially a replay of his first claim with some additional material added in support of his claim. While the CRDD would have been entitled to raise the question of res judicata on the authority of Vasquez v. M.C.I. [1998] F.C.J. No. 1769, a decision of Mr. Justice Rothstein (as he then was), it did not do so.
[4] The CRDD heard the applicant"s claim and dismissed it in reasons which contain a number of factual errors:
| 1- the CRDD found that the applicant"s activity in the Anjuman Tajran-e-Ghalib Market Association did not involve political activity when the evidence before it was that the Market Association was used to make political statements. |
| 2- the CRDD found that the applicant had not mentioned the name of Sadat Ali Khan, the applicant"s persecutor, prior "to this time" which presumably referred to the time of the hearing when there was a clear reference to Sadat Ali Khan in the applicant"s Personal Information Form which was before the CRDD. |
| 3- The CRDD found that the applicant had been subject to two attacks on his business but since they were 8 years apart, they were not repetitive and were indications of criminal activity rather than persecution. The evidence before the CRDD was that the applicant"s had been attacked 3 times, 2 of which occurred in 1990 within 2 months of each other. |
| 4- The CRDD reproached the applicant for failing to attempt to produce a copy of First Information Report, a public document which would have explained how it was that an arrest warrant was apparently issued with respect to the applicant in 1997, seven years after he left Pakistan. The documents before the CRDD included a letter from the applicant"s lawyer indicating that he had attempted to obtain a copy of the First Information Report but the "Incharge" at the police station would not give him one. |
[5] In addition the applicant reproaches the CRDD that it has disbelieved his sworn testimony on a number of issues without giving clear reasons as to why it was doing so. The applicant says that the decision must be set aside as a result of these errors of fact, which the Respondent acknowledges are present.
[6] The Respondent says however, that the record contains findings of fact which would be sufficient to support the CRDD"s conclusion that the applicant was not a convention refugee. Most importantly, the CRDD found on the basis of the applicant"s own admissions that he left Pakistan for Abu Dhabi in order to escape his persecutors and in fear for his own safety. Yet three months later, the applicant returned to Pakistan where he reestablished himself. When questioned as to why he would do so if he left for reasons of personal safety, the applicant replied that his enemies were able to threaten him in Abu Dhabi and the local police would not render him assistance. The CRDD found this implausible and held that the applicant"s conduct was inconsistent with a fear of persecution. The CRDD"s disbelief of this evidence is one instance of the applicant"s complaint about the rejection of evidence without clear reasons being given.
[7] The Respondent also points to the evidence given by the applicant that his two sons were kidnapped and tortured as a result of his political activity. The CRDD chose to disregard this evidence because it was not referred to in the Personal Information Form submitted by the applicant for his first refugee hearing. Confronted with this fact, the applicant indicated that the did not know then that the could refer to incidents involving his children. The CRDD found that the incident involving the children was simply an attempt by the applicant to embellish his claim.
[8] Finally the Respondent points to the applicant"s failure to provide a First Information Report, which the documentary evidence establishes is a document maintained by the Court and not by the police. The CRDD may have overlooked the letter from the lawyer saying he could not obtain the First Information Report but given that it was a court document, the letter does not explain why the document could not be produced.
[9] The Respondent"s position is that the Court is in a position to examine the evidence and to conclude that while the reasons may be flawed, they support the CRDD"s conclusion that the applicant is not a convention refugee. When asked if that was not treating an application for judicial review as an appeal, counsel referred to two decisions where judges have taken the view which he urged upon me.
[10] In Miranda v. M.E.I. (1993) 61 F.T.R. 81 Joyal J. dealt with a decision of the CRDD which contained errors. He cautioned against examining a decision microscopically looking for the smallest errors. His position was that "the decision must be analyzed in the context of the evidence itself". Further on, he expressed himself as follows:
| For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. |
| I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error. |
| It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds for appeal were some 12 errors in the judge's charge to the jury. In rendering judgment, the Court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed. |
| This is the point I am trying to establish here. One may look at the decision of the Board, then one may balance it off against the evidence found in the transcript and the evidence of the claimant himself in trying to justify his objective as well as subjective fears of persecution. |
[11] Miranda has been cited many times for the proposition that a CRDD decision must be taken as a whole and that errors which are not material to the outcome are not grounds for disturbing a decision. But as pointed out by Rothstein J. in Asiamah v. Canada [1993] F.C.J. No. 1449 referring to Miranda and other cases to the same effect:
| ... all of which are decisions which refuse to interfere with the decisions which were being appealed. What is different about those cases, as compared to the case at bar, is that in those cases, there is a consistent finding that the tribunal's decisions were properly founded on the evidence, did not ignore evidence, or were supported by the evidence. That is not the case here. In this case, the panel's findings are based entirely on implausibilities. Where there are references to facts they are, by and large, not supported by the evidence. |
[12] This is a case where a number of findings are not supported by the evidence and where some, which the Respondent says are sufficient to dispose of the application, are supported by the evidence. Is it for the court to pick through the evidence and the reasons and to decide which findings are sufficient to justify the conclusion arrived at by the CRDD? At some point, is the court assuming the function of the CRDD in weighing evidence to justify a conclusion?
[13] The second decision relied upon by the Respondent is Gabeyehu v. M.C.I.[1995] F.C.J. No. 1493 in which Reed J. said the following:
| As a trial judge I am very conscious of the dangers of parsing too finely the words in which a decision is written. One should approach reasons given for a decision with a mind willing to understand, not with a mind nitpicking for holes to justify intervention. I am persuaded that the Board's reference, to the father not being under investigation, can be reasonably explained and that it is not a material error. |
[14] In my view, this is to the same effect as the passages quoted from Miranda that not every error is grounds for setting aside a decision. But in this case, the errors are numerous and their cumulative effect is unknown. There comes a point at which the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions reached by the Tribunal. It is clear that the CRDD based its decision on findings of fact made without regard to the material before it. For that reason, the decision must be set aside and the matter remitted to another panel for determination.
ORDER
THIS COURT ORDERS THAT the decision of the Convention Refugee Determination Division dated July 30, 1999, the reasons for which are dated July 28, 1999 is hereby set aside and the matter is remitted to be determined by a differently constituted panel.
"J.D. Denis Pelletier"
Judge
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