Date: 20060727
Docket: IMM-3656-06
Citation : 2006
FC 932
Ottawa, Ontario, July 27, 2006
PRESENT: The
Honourable Mr. Justice Lemieux
BETWEEN:
MAHMOOD
ASIF
applicant
et
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
respondent
REASONS FOR ORDER AND ORDER
[1]
These
reasons are being issued in English so that they may be understood by the
applicant.
[2]
The
applicant seeks a stay of the execution of a removal order issued against him.
[3]
The
underlying judicial proceeding is an application for leave and judicial review
from the May 19, 2006 decision of a pre-removal risk assessment officer (the
PRAA officer) who determined the applicant would not be at risk if returned to Pakistan.
[4]
The
applicant fled Pakistan on the 6th of July, 2000
arriving in Canada the following day.
[5]
His
refugee claim was dismissed for lack of credibility in October of 2001, with
leave to appeal denied by a judge of this court.
[6]
In his
personal information form, he explained that he was born in a village situated
in the district of Sialkot near Kashmir. His refugee claim was based on
political opinion as an active member of the PPP. His expressed fear was of
Islamic fundamentalists because he opposed them.
[7]
In support
of his PRAA application, the applicant filed the following documents:
·
A First
Information Report, Number 93/2000 dated May 9, 2000 (the FIR);
·
A Warrant
of Arrest dated February 4, 2001;
·
A Notice
of Proclaimed Offender dated January 5, 2002;
·
Extracts
of proceedings against the applicant in Magistrates Court based on his FIR; and
·
A letter
dated October 20, 2005 written by a police officer who confirms that FIR No.
93/2000 was issued against him.
[8]
The PRAA
officer reviewed these documents without the constraint of the new evidence
rule contained in the Immigration and Refugee Protection Act (the Act),
proclaimed in June of 2002. The reason for doing so was because the applicant
had filed in March of 2002 an application for a risk assessment under the
former Immigration Act.
[9]
The PRAA
officer asked the High Commission in Islamabad
to verify the authenticity of these documents with the authorities except that
no verification was asked of the extract of the proceedings in Magistrates Court.
[10]
The PRAA
officer, in her report, does not say how the verification was carried out. She
indicates it turned out FIR number 93/2000 was not registered in the
applicant’s name and the FIR in question concerned a proceeding which was no
longer alive. She indicates no warrant of arrest was registered against the
applicant.
[11]
She
provided the High Commission investigative results to the applicant and his
counsel for comment. Counsel indicated the Embassy document contained two
errors, namely a search was made of the wrong FIR i.e. one registered on the
28th of March, 2005 rather than registered on the 28th of March, 2000 and the
warrant of arrest mentioned in the verification was also wrong because it was
dated February 4, 2000 rather than February 4, 2001.
[12]
The PRAA
officer felt obliged to ask the High Commission to delve into the matter
again.
[13]
The PRAA
officer in her decision states a representative of the Embassy went directly to
the police station in Sadar, Wazirabad and verified FIR’s dated 93/2000;
93/2001 and 193/2000. She reports none of the FIRs were in the applicant’s
name. She indicates the FIR submitted by the applicant bore a date of May 9,
2000. She indicates there was no FIR registered on that date at the police
station.
[14]
Moreover,
she stated the verifications demonstrated no letter dated October 20, 2005 was
issued by a police officer at the station concerned and the police officer who
purported to issue the letter was not known there.
[15]
The PRAA
officer does not tell us in her decision how the Embassy official carried out
his verification at the police station.
[16]
In my
view, a stay should be issued.
[17]
The
serious issue I see is the lack of adequate reasons or explanation in the PRAA
officer’s decision how the second on-the-spot verification was carried out at
the local police station by the Embassy official.
[18]
The
underlying investigative report from the High Commission in Islamabad dated May 3, 2006
(applicant’s motion record, page 80) which was provided to the applicant and
his counsel for comment suffers the same defect. Did the embassy
representative conduct a record search himself or did he rely upon the word of
local police officials whom he visited?
[19]
The PRAA
officer, in her decision, acknowledged there existed a problem of police
corruption in Pakistan.
[20]
It may
well be the investigation on the authenticity of the documents was properly
carried out but I do not know this at this point in time.
[21]
I suggest
this matter be addressed by counsel for the Ministers when opposing leave.
[22]
I am
troubled for a second reason. No authenticity check was made of the extract of
proceedings in Magistrates
Court. The PRAA
officer simply cast that document aside because it was based on FIR 93/2000, a
document which the PRAA officer said she gave no weight.
[23]
The last
entry of the extract of proceedings before Magistrates Court is dated February 17, 2006
and states that the accused was declared a Proclaimed Offender and a perpetual
warrant of arrest of the accused had already been issued to the SHO concerned.
[24]
If the
documents relied upon by the applicant are not fakes, the applicant has
demonstrated a risk to his life or a risk of cruel and unusual treatment or
punishment.
[25]
In the
circumstances, the balance of convenience favours the
applicant.
ORDER
THIS COURT ORDERS that a stay of the applicant’s
removal from Canada is issued until disposition
of the applicant’s leave for judicial review and if leave is granted until the
judicial review is finally disposed of.
“Francois
Lemieux”
Email this Content