Date:
20130125
Docket:
IMM-4378-12
Citation:
2013 FC 76
Ottawa, Ontario,
January 25, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
|
|
MOHAMMAD ASHAR MALIK
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Through
no fault of the participants, parties and the Immigration and Refugee Board
[IRB], the evidentiary record in this case is a mess because of the multiple
inputs and uncertain and unreliable sources of evidence. That state of affairs
results in a denial of natural justice which requires that the matter be heard
again. The facts of this case are extremely unusual.
[2]
The
Court’s primary concern is the interests of the child who is under the care of
the Children’s Aid Society. The Applicant was placed in the custody of the
Children’s Aid Society [CAS]. A Designated Representative [DR] was appointed to
act on the Applicant’s behalf. The Applicant was placed and remains in foster
care.
II. FACTS
[3]
The
Applicant is a citizen of Pakistan and was a child of 10 when he entered Canada and filed his PIF. His mother and a sister remain in Pakistan; his father and four
other sisters are in the United States where his father is a citizen. At the
time of the Applicant’s refugee hearing, the father was unable to come to Canada because he had been charged with drug-related offences and was required to surrender
his passport.
[4]
The
Applicant came to Canada en route to the United States to live with his father.
The Applicant was travelling with his father’s girlfriend when he was
apprehended by Canadian immigration authorities on June 21, 2011.
[5]
With
the assistance of the DR, the Applicant made a claim for refugee protection and
filed a PIF. The claim was based on belonging to a particular social group due
to the wealth of the Applicant’s father as well as the Applicant’s age and
gender.
[6]
The
PIF provides that the information was obtained by his counsel and his DR from
the Applicant and his parents. The PIF disclosed that the Applicant was subject
to a number of threats and at least one attempted abduction. These events
appear to be motivated by the perception that the father is a wealthy man
living in the United States.
[7]
The
PIF describes threats received by the mother, several beatings of the
Applicant, demands for money and threats of abduction. The family complained to
police but nothing was done. As a consequence, the family planned for the
Applicant to leave for the United States to be with his father. Despite the
state of the record, it is evident that neither the Applicant nor his family
intended that the Applicant remain in Canada much less that he would claim
refugee protection here.
[8]
At
the IRB hearing, aside from the Applicant, there was on his side his counsel,
the DR, the CAS case-worker and a CAS observer. The Applicant, after
identifying himself, left the hearing and was not present for any of the
testimony at the hearing.
[9]
The
testimony was a mish-mash of hearsay upon hearsay. The DR and CAS case-worker
testified as to their conversations with the Applicant, the father testified by
telephone. Significantly, the father was in the United States at the time of
all the events pleaded and had no direct knowledge of what happened in Pakistan. The mother did not testify.
[10]
The
IRB decision turned on credibility. The IRB acknowledged that this was an
unusual claim and “very hard to determine”. The IRB also acknowledged that
determining credibility was problematic.
[11]
Despite
recognizing the problems of determining credibility, the IRB concluded that
there were serious credibility concerns which were attributed to the father.
Even where the father acknowledged the limitations on his own knowledge of
events in Pakistan because he was not there, the IRB rejected the explanation
of inconsistencies between the father’s evidence and the PIF because the father
was said to be the source of the PIF narrative.
[12]
The
record contained a much confusing and fuzzy discussion about whether the
Applicant was grabbed and injured in an attempted abduction or whether he said
he was beaten.
[13]
It
will serve little purpose to go through all of the microscopic analysis of the
story attributed to the Applicant. It is sufficient to say that negative
credibility was based on the father’s second or third-hand knowledge and the
contents of the PIF prepared by persons acting on the Applicant’s behalf from
mixed sources of information. Even the DR and the CAS case-worker were confused
as to whether there had been an abduction or attempted abduction.
III. ANALYSIS
[14]
While
the decision on credibility and findings of fact are subject to the
reasonableness standard of review (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190), whether the hearing was fair is a matter of law to which the
correctness standard applies.
[15]
There
is no doubt that those assisting the Applicant were trying their best to assist
him. Their task was difficult due to the age of the Applicant and the somewhat
sketchy knowledge of the father.
[16]
The
IRB became lost in the inconsistencies, often minor but which in a usual case
are relevant to credibility; however, in this case the inconsistencies were the
result of circumstances beyond anyone’s control.
[17]
What
was missing in this case is the direct evidence of the Applicant. Children’s
evidence is contemplated by the IRB’s Chairperson’s Guidelines: Guideline 3
– Child Refugee Claimant’s Procedural and Evidentiary Issues (effective
date September 30, 1996) which
recognize the care which must be taken in hearing a child’s testimony. A new
hearing at which the Applicant gives evidence is a minimum procedural
protection which was not afforded the Applicant. He will be older now. He will
also be aware of the issues and prior evidence. The IRB can sort out what
impact on credibility any of these and other factors may have.
IV. CONCLUSION
[18]
Therefore,
this judicial review will be granted, the decision quashed and the matter
referred back to the IRB for a new determination before a different member.
[19]
There
is no issue for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the decision is quashed and the matter is to be referred back to the
Immigration and Refugee Board for a new determination before a different
member.
“Michael L. Phelan”
Email this Content