Date:
20130204
Docket:
IMM-3082-12
Citation:
2013 FC 121
Ottawa, Ontario,
February 4, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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SALMAN MOHAMMAD ISHAQ SIDDIQUI
(a.k.a. SALMAN
SIDDIQUI)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a citizen of Pakistan who has never lived there, sought refugee
protection based on fear of a powerful family member. This is the judicial
review of the negative decision by a member [Member] of the Refugee Protection
Division [RPD].
II. FACTS
[2]
The
Applicant’s story is long and involved. At its core, he feared returning to Pakistan because of harm from paternal relatives there who do not accept him as he was born
out of wedlock. The family did not initially agree that his father could take
his mother as his second wife. The parents subsequently married.
[3]
The
Member did not accept the psychological evidence submitted by the Applicant on
the basis that the report did not contain the psychologist’s credentials and
that there had been no psychological assessment of the Applicant. The Member
concluded that there was an insufficient connection between the Applicant’s
psychological condition and the events underlying the refugee claim.
[4]
The
Member had a number of credibility concerns about the events relied on by the
Applicant. Some of these concerns related to inconsistencies in the chronology
of events and the failures to include in the PIF events relied on at the
hearing.
[5]
There
were numerous adverse credibility findings commencing with events at the
beginning of the chronology. The thread running through the Applicant’s story
is that he had lived a life under threat.
[6]
The
Member rejected the Applicant’s story that this threat began with an attempt by
the first wife to choke the Applicant when he was one and a half years old. The
basis of the adverse finding is that the Applicant had failed to mention the
incident in his PIF and only raised it at the hearing for the first time.
[7]
The
overall grounds for rejection of this application was credibility.
[8]
The
Applicant, in oral argument, raises three errors:
•
rejection
of the medical evidence;
•
the
adverse credibility finding; and
•
the
adverse finding that the claim was not well-founded.
[9]
Given
the result in this judicial review, I will limit my comments on the evidence.
Had it not been for the two matters discussed below, I would have had no basis
upon which to disturb this decision.
III. ANALYSIS
[10]
With
respect to the standard of review, a factual error may be a grounds for review
where that error is material. More importantly, the review of credibility
findings is based on reasonableness (Thomas v Canada (Minister of
Citizenship and Immigration), 2011 FC 572, 2011 CarswellNat 2052) and
considerable deference is owed to the decision maker in this regard.
However, there
are two factual errors which go to the root of key credibility findings which
require Court review.
[11]
In
regard to the medical evidence, the Member erred on the facts. The
psychologist’s credentials were provided in the evidence. The absence of
credentials was a principal reason for not accepting the report.
[12]
The
psychologist did in fact make an assessment of the Applicant. There was a
detailed report on anxiety and the similarities with post-traumatic stress
disorder (PTSD). The absence of an assessment was another reason for rejecting
the evidence.
[13]
There
may have been other grounds for rejecting the report or giving it little weight
but the reasons given do not accord with the facts. The psychologist’s report
goes to the issue of inconsistencies in the Applicant’s narrative and might
offer an explanation for these inconsistencies based on psychological
conditions.
[14]
The
second grounds for granting this judicial review is the finding that the
choking incident was first raised at the hearing. This is incorrect as the
incident is referred to in the PIF.
[15]
The
Applicant’s story is one of a life lived, at least from time to time, under
threat. This alleged incident is the first of a string of alleged and related incidents.
The rejection of the choking incident had a ripple effect on the credibility of
some other incidents.
[16]
There
may be good reason to doubt the choking incident or the weight given it, but
such rejection must proceed on an accurate factual basis.
[17]
The
Applicant’s narrative is convoluted and at times difficult to follow. It is
perhaps understandable that some matters would go off in the wrong direction.
However, the Applicant is entitled to have his story assessed on the facts as
they are.
IV. CONCLUSION
[18]
Therefore,
this judicial review will be granted, the RPD decision quashed and the matter
remitted to a different member for a fresh determination.
[19]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the Refugee Protection Division decision is quashed and the matter is
to be remitted to a different member for a fresh determination.
“Michael L. Phelan”
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