Date: 20071024
Docket: IMM-495-07
Citation: 2007 FC 2005
Ottawa, Ontario, October 24, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
AFZUL ABDUL KHA MIAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Afzul Abdul
Kha Miah says that he is a citizen of Bangladesh who has a well-founded fear of
persecution based upon his political opinion. Specifically, he fears
persecution as a result of his membership in the Awami League.
[2] Mr.
Miah's claim for refugee protection was first heard by the Refugee Protection
Division of the Immigration and Refugee Board (RPD or Board) in February of
2004. The Board accepted Mr. Miah's identity, nationality and membership in
the Awami League, but dismissed his claim to protection under both sections 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
because it found he lacked subjective fear. This decision was set aside by
this Court on the consent of the parties because it was contrary to the
decision of the Federal Court of Appeal in Li v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1. The order
of this Court that set aside the decision directed only that the matter be
reconsidered by a differently constituted panel of the RPD.
[3] Mr.
Miah's claim for refugee protection was then reheard by a new panel of the RPD
on December 21, 2006. At that time, the Board rendered an oral decision
dismissing the claim “because central to this claim is your identity as a
citizen of Bangladesh and a member of the Awami League and I find that you have
not established on a balance of probability that you are who you say you are or
that you are a member of the Awami League...”. More specifically, the
presiding member of the Board stated “… when I look at what there is on file to
establish your identity, I find I have only photocopies of identity documents.
... BGD100388.E [footnote omitted] says many false documents exist and
that it is very easy to get a document. It is because of corruption and all
sorts of other reasons why that is possible. I cannot accept photocopies as
good evidence.”
[4] This
application for judicial review is allowed upon the narrow ground that I find
that the Board's decision was made without regard to the evidence and was
therefore patently unreasonable. (See: Kazadi v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 349 at
paragraph 10, and the authorities cited therein with respect to the applicable
standard of review).
[5] As
to the evidence concerning identity that was before the RPD, Exhibit R-1
consisted of the entire package of documentary evidence that was before the RPD
at the first hearing. That, according to the reasons of the Board given in
respect of that hearing, included:
·
two affidavits attesting to identity;
·
an original Bangladeshi birth certificate; and
·
an identity document issued by the state of Virginia, which was
produced by Mr. Miah at the port of entry.
[6] During
the course of the first hearing, the Board did not retain the original birth
certificate in its records. Instead, the birth certificate was copied and the
original returned to Mr. Miah. The photocopy of the original document was
retained as part of the tribunal record. A photocopy of the Virginia identity
document was also entered into the tribunal record. The page of the tribunal
record that contains this photocopy also bears two stamps added by Immigration
Canada, one of which states “THIS PHOTOCOPY CONFORMS TO THE ORIGINAL DOCUMENT
WHICH HAS NOT BEEN ALTERED IN ANY WAY”.
[7] At
the second hearing before the Board, Mr. Miah testified that subsequent to the
first hearing he had been unable to locate his birth certificate in his home.
[8] The
second hearing before the RPD was a de novo hearing. I am satisfied
that, because the first decision was set aside, no issue estoppel arose. See,
for example, Municipal Enterprises Ltd. v. Nova Scotia
(Attorney General), [2003] N.S.J. No. 26 (C.A.) at paragraphs 8, 9, 39 and
40. This means that the RPD was not bound by the finding of the prior panel
with respect to identity. However, the evidentiary record before the RPD
remained intact and was not quashed.
[9] Thus,
it can be seen that when the presiding member of the RPD stated that all
that was on file in order to establish Mr. Miah's identity were photocopies,
she failed to have regard to the fact that the original Bangladeshi birth
certificate had previously been produced before the RPD, but that it was
memorialized in the Board’s record by way of a photocopy. The Virginia
identity document was also recorded by way of a photocopy that bore the stamp
of some authentication by Immigration Canada. In my view, the Board was
obliged to at least recognize and consider that an original birth certificate
had been tendered into evidence before it. This was not a case where the
claimant had never produced any original identity documents.
[10] While
the Board was critical of Mr. Miah for failing to obtain a replacement birth
certificate, and stated that it drew an unspecified negative inference from this
failure, it seems to me that, at best, any negative inference could go only to
the existence of subjective fear and could not impair the effect that flowed
from the fact Mr. Miah had previously tendered an original birth certificate to
the RPD.
[11] It
follows that the application for judicial review is allowed.
[12] The
Minister opposed certification of any question, and I agree that this decision
turns solely upon the relatively unique facts that were before the Board. No
question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated January 26, 2007 is hereby
set aside.
2. The matter is remitted for redetermination before a
differently constituted panel of the Refugee Protection Division of the
Immigration and Refugee Board.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-495-07
STYLE
OF CAUSE: AFZUL
ABDUL KHA MIAH, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: WINNIPEG,
MANITOBA
DATE OF HEARING: OCTOBER 17, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: OCTOBER 24, 2007
APPEARANCES:
DAVID MATAS FOR
THE APPLICANT
MELISSA DANISH FOR
THE RESPONDENT
SOLICITORS OF RECORD:
DAVID MATAS FOR
THE APPLICANT
BARRISTER &
SOLICITOR
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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