Docket: IMM-5254-13
Citation:
2014 FC 992
Ottawa, Ontario, October 17, 2014
PRESENT: The
Honourable Mr. Justice Brown
|
BETWEEN:
|
|
SAFDAR SIDDIQUE
NAHEED SAFDAR
MINHA AND MUHAMMAD ZAEEM
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
brought by Safdar Siddique [the principal applicant], Naheed Safdar and Minha
and Muhammad Zaeem [the applicants] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA] of a decision by the
Immigration and Refugee Board of Canada, Refugee Protection Division [the RPD],
dated July 4, 2013, in which the RPD determined that the applicants were not
convention refugees or persons in need of protection.
[2]
This application for judicial review is allowed
for the reasons set out below.
II.
Facts
[3]
The principal applicant was born on August 14,
1974. His wife, Naheed Safdar was born on June 1, 1975. His son, Muhammad
Zaeem, was born on June 12, 2006, and his daughter, Minha, was born on February
22, 2009. They are all citizens of the Islamic Republic of Pakistan [Pakistan].
[4]
The principal applicant alleged he led a one-man
campaign against the recruitment efforts of extremist organization Lashkar-e-Taiba
[LeT]. According to the principal applicant, his campaigning led to three
beatings in April, May and June, 2011, and a murderous attack on him in August
2011, which caused the applicants to leave Pakistan in order to save their lives.
[5]
The applicants landed in Canada on October 4, 2011 as visitors. They applied for refugee protection on November 7,
2011.
[6]
On July 4, 2013, the RPD refused the applicants’
refugee protection application.
[7]
The applicants applied for leave and for
judicial review of that decision on August 8, 2013, which was granted on June
25, 2014.
III.
Decision under Review
[8]
The RPD concluded the applicants were neither
Convention refugees, nor were they persons in need of protection. The
applicants’ credibility and the availability of a reasonable Internal Flight Alternative
[IFA] in Karachi were determinant to the RPD’s conclusion. These two issues
were the focus of the judicial review.
A.
Credibility
[9]
The RPD found that the principal applicant was
not a credible or trustworthy witness and arrived at this conclusion after
considering a number of matters.
[10]
The RPD found that it was not reasonable for the
principal applicant not to have documented the results of his efforts to turn
local youths away from joining LeT, especially given that he had maintained
contact with people in Pakistan for the almost two years spent in Canada. The RPD drew negative inference from the lack of documentation in support of the principal
applicant’s claim.
[11]
The RPD found it unreasonable that the principal
applicant would continue to live his daily life and leave his children at risk
for four months after the alleged attacks, if he believed he and his family
were being targeted by LeT.
[12]
The RPD erroneously faulted the principal applicant
for not filing medical reports in respect of two of the beatings he received.
In fact both medical reports were filed before the RPD. The medical report
dealing with the third of the three beatings was ruled to have no probative
value, without reasons. During the hearing, the RPD expressed concern about
this particular medical report because it was scanned, presented on a paper
format that differed to other documents submitted, and was allegedly mailed by
the principal applicant’s brother but not accompanied by the mailing envelope.
[13]
With respect to the fourth attack on the principal
applicant, the RPD found that his assertion that the strangers chasing him with
guns on motorcycles during this alleged event were members of LeT, amounts to
speculation on his part because he had no direct contact with them.
[14]
Finally, the RPD concluded that the affidavits
of the principal applicant’s brother and classmate did not establish an ongoing
interest on the part of LeT. Consequently, the RPD concluded that the
applicants were not in fact targeted by LeT, and even if they were, such
threats do not appear to be present anymore.
B.
Internal Flight Alternative
[15]
The RPD applied the two part test to determine
the IFA set out in Rasaratnam v Canada (Minister of Employment &
Immigration), [1992] 1 FC 706 (CA) [Rasaratnam] and held that the
applicants had a reasonable IFA in Karachi. The RPD correctly laid out the two
part test as follows:
…the Board must be satisfied on a balance of
probabilities that there is no serious possibility of the claimant being
persecuted in the part of the country to which it finds an IFA exists.
b. Moreover, conditions in the part of the
country considered to be an IFA must be such that it would not be unreasonable,
in all the circumstances, including those particular to the claimant, for him
to seek refuge there.
[16]
First, the RPD noted that, according to the
evidence, while LeT had offices across Pakistan, its primary area of operations
is Jammu and Kashmir. The evidence convinced the RPD that LeT did not have a
strong presence in Karachi, a city of more than 13 million inhabitants.
Consequently, the RPD was satisfied that the first part of the Rasaratnam test
was met.
[17]
Second, because the principal applicant is
trained as a civil engineer technologist and was previously running a very
successful real estate development business in Lahore, the RPD concluded that
it was reasonable for the principal applicant to apply these skills in Karachi, therefore meeting the second part of the Rasaratnam test.
IV.
Issues
[18]
In my view, the case at bar raises only two
issues, of which the first is dispositive of this application:
•
Was the RPD’s assessment of the principal
applicant’s credibility reasonable in light of the evidence?
•
Was the RPD’s finding that the applicants had a
reasonable IFA in Karachi reasonable?
V.
Standard of Review
[19]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question”.
[20]
It is well established that reasonableness is
the standard of review applicable to determinations of fact and mixed fact and
law by the RPD, such as assessments of credibility and availability of an IFA
(see Ortiz Garzon v Canada (Citizenship and Immigration), 2011 FC 299 at
paras 24-25; Goltsberg v Canada (Citizenship and Immigration), 2010 FC
886 at para 16).
[21]
In Dunsmuir at para 47, the Supreme Court
of Canada explained:
A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
VI.
Submissions of the Parties and Analysis
Was the RPD’s assessment of the
principal applicant’s credibility reasonable in light of the evidence?
[22]
I agree that credibility is the heartland of the
RPD’s jurisdiction: Giron v Canada (Minister of Employment and Immigration)
(1992), 143 NR 238 at 239 (CA).
[23]
However, in this case the RPD made serious and material
mistakes in its report on facts central to the applicants’ claim. In my
view, these critical mistakes lead to an unreasonable result per Dunsmuir.
[24]
As noted above, the RPD found as a fact that
there were no reports to prove or to corroborate the applicants’ claims in
respect of two assaults against the principal applicant. These two findings
were completely incorrect. In fact, there were two reports: one from Dr. Kamran
Afzal, dated May 9, 2013, confirming that the principal applicant was at the
Ammar Medical Complex on May 16, 2011; and one from Dr Rukhshanda Sultana,
dated May 7, 2013, confirming that the principal applicant was at the Hameed Latif Hospital on June 19, 2011 at approximately 6:00 p.m.
[25]
The finding that the medical reports dealing
with these two attacks did not exist was egregious and therefore unreasonable.
[26]
I am asked to give no consequence to these very
serious mistakes. With respect, while fact-finders are not to have their
decisions parsed microscopically, the Court cannot overlook or excuse errors
such as these. These reports, if accepted, may prove or corroborate the principal
applicant’s claim that he was persecuted. These reports and his evidence of
being attacked were critical to his refugee claim. I do not decide their
weight, but clearly they must be weighed and decided by a different tribunal.
[27]
The mistake regarding these two reports puts the
Court on inquiry with respect to the evidence relating to the other alleged
attacks on the principal applicant.
[28]
The third attack on the principal applicant was
also documented and capable of being proved or corroborated by a medical report
filed by him. However, the RPD rejected the medical report which was filed,
ruling that it had no probative value. As with the other two medical reports,
this document was critical to the principal applicant’s claim to have been persecuted.
[29]
The RPD gave no reasons for excluding the third
report. In the circumstances, I am obliged to hold that this failure resulted
in an unreasonable decision in that it is not transparent. Neither the parties
nor the public are able to determine why this report, so critical to the principal
applicant’s claim to have been persecuted, was rejected. It could have been
because the RPD considered it a forgery, or inaccurate, but we are left to
speculate.
[30]
While these three findings are sufficient to
dispose of this application, I do want to note the RPD’s dismissal of a fourth
attack on the principal applicant. It is trite to say that the principal applicant
speculates on who the assailants were. The issue is whether that speculation is
reasonable. That is also a matter for the RPD to determine, on the evidence
before it, on a new hearing. If the RPD finds for the principal applicant on
the other three attacks, it might reasonably conclude that the same criminal
group conducted the fourth attack.
[31]
It is the Board’s responsibility to determine
credibility. On the basis of these findings, this matter must be remitted to another
panel of the RPD for re-determination because the rejection of the three
medical reports offered by the applicant was not reasonable.
[32]
In the circumstances, it is not necessary to
deal with the RPD’s finding that the applicant had a reasonable IFA in Karachi.
VII.
Conclusion
[33]
Therefore I conclude that this application for
judicial review is allowed. The matter should be remitted to a different panel
of the RPD for re-determination. No question for certification was proposed by
either counsel, and none is stated. There will be no costs.
Email this Content