Date: 20060802
Docket: IMM-6356-05
Citation: 2006 FC 949
Ottawa, Ontario, August 2,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MOHAMMED
MISBAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a 40-year-old male citizen of Bangladesh whose
refugee application, based on political opinion, support and membership in the
Awami League, was denied by the Immigration and Refugee Board (Board). This is
the judicial review of the Board’s decision.
[2]
The
Applicant claimed he feared persecution from the opposing political parties,
the BNP and the Jamaat-e-Islami. He said that he joined the League in August
2001, became an executive member of his branch in June 2002 and was appointed
Secretary of Youth Affairs in January 2004.
[3]
The
Board’s conclusion was that the Applicant’s claim lacked credibility. In
particular, the Board drew negative inferences from his failure to file corroborating
documents.
[4]
The
Board’s findings on credibility are subject to the patent unreasonableness
standard of review in respect of acceptable documentation. (See P.K. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 103, [2005] F.C.J. No. 130 (QL))
[5]
The
Court will not substitute its opinion for that of the Board. The only
substantive issue in this judicial review is in relation to the refusal to
admit a certain document filed less than 20 days before the Board hearing.
[6]
The
Applicant attempted to admit a letter of August 22, 2005 from the Awami League
of Canada as to the
Applicant’s political activities.
[7]
In
particular, the letter attempted to address inconsistencies between the
Applicant’s Personal Information Form (PIF) and letters filed earlier. The
notable prior inconsistencies included conflicting statements as to whether the
Applicant was a member of Ward 38 or Ward 45, and whether the Applicant joined the
League in Canada either “just after entering Canada” (he entered September
2004), on August 20, 2005 or earlier than August 20, 2005.
[8]
The
August 22, 2005 letter, which the Applicant attempted to have admitted, was
rejected by the Board under Rule 30 of the Refugee Protection Division Rules
which reads:
|
30. A party who does not
provide a document as required by rule 29 may not use the document at the
hearing unless allowed by the Division. In deciding whether to allow its use,
the Division must consider any relevant factors, including
(a) the
document's relevance and probative value;
(b) any
new evidence it brings to the hearing; and
(c) whether the party, with
reasonable effort, could have provided the document as required by rule 29.
|
30.
La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser
celui-ci à l'audience, sauf autorisation de la Section. Pour décider si elle
autorise l'utilisation du document à l'audience, la Section prend en
considération tout élément pertinent. Elle examine notamment :
a) la pertinence et la
valeur probante du document;
b) toute preuve nouvelle
qu'il apporte;
c) si la partie aurait pu, en faisant des efforts raisonnables, le
transmettre selon la règle 29.
|
[9]
The
Board held:
At the outset of the hearing, the
claimant attempted to introduce a letter allegedly from the Toronto branch of the Awami League
and dated just days before the hearing. The claimant was examined by his
counsel with respect to his reasons for failing to produce this letter in a
timely way. The claimant’s explanation raised serious questions about the
reliability of the information contained in the letter. More seriously, the
claimant’s testimony with respect to the date he joined the local branch and
activities he allegedly performed as a member was inconsistent with the
information in the letter. In the circumstances, I declined to admit the letter
both because the claimant might have produced it in a timely manner and because
it was obviously so unreliable.
[10]
The
Applicant says that the Board only considered factors (a) and (c) of Rule 30
and that the Board is required to consider all three (3) of the Rule 30 factors.
[11]
On
this latter point, the Applicant is correct, as held by O’Keefe J. in S.B.
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 791, [2005] F.C.J. No. 985 (QL).
On the former point, the Applicant must fail.
[12]
The
Board did consider “any new evidence it brings to the hearing”. Read as a
whole, the quotation cited above shows that the so-called new evidence would
bring inconsistencies with the Applicant’s testimony. The conclusions as to
unreliability could only be reached on the basis of considering what the new
evidence would bring to the hearing.
[13]
In
considering Rule 30, the Court was struck by the difficulty in the wording of
Rule 30, particularly factor (b). It is somewhat circular to decide whether to
admit evidence by first considering the evidence that it brings to the hearing.
The Board may wish to consider this Rule and whether factor (b) is useful and
whether the Board is concerned more about a “new matter or new issue”.
[14]
Lastly,
the Board did have regard for the psychological evidence of Dr. Pilowsky, both
as to what this letter evidence said and also what it did not say.
[15]
Therefore,
this application for judicial review will be dismissed. There is no question
for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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