Date: 20080211
Docket: IMM-2994-07
Citation: 2008 FC 176
Ottawa, Ontario, February 11,
2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MUZZAFAR IQBAL SHEIKH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Although
many issues were raised, this judicial review turns on the treatment given by
the Immigration and Refugee Board to three documents.
[2]
Mr.
Sheikh seeks status as a refugee on the grounds that he has well-founded fear
of persecution in Pakistan because of his political opinions and religious
beliefs. He claims that he has been a member of the PPP which brought him
threats from local Mullahs and attacks from members of the Muslim League. He
left Pakistan after
learning that an arrest warrant had been issued against him.
[3]
The
IRB Panel said there were many credibility issues and serious discrepancies in
various documents. It focused its attention, however, on a First Information
Report filed against Mr. Sheikh one month before his departure from Pakistan, a warrant
for his arrest and a subsequent letter of explanation from the police station
involved.
[4]
As
the other credibility issues and concerns with respect to documents were not
identified, and no reasons were given, they cannot serve as the basis for the
holding that Mr. Sheikh was not credible.
[5]
The
First Information Report (FIR) is the laying of a complaint at a police
station. It bears number 241/03. The arrest warrant, apparently issued by a
magistrate, bears the same number FIR 241/03. The IRB asked the Canadian
High Commission in Islamabad to investigate. The response provided was that:
According to telephonic information
obtained from Mr. Asghar Ahmad, assistant moharar (assistant report registrar)
the FIR241/2003 does not/not exist as totalled registered FIRs in the year 2003
were 161 only.
[6]
The
Panel quite properly challenged the authenticity of the FIR and warrant, and
gave Mr. Sheikh an opportunity to respond. He provided a letter on the
letterhead of the police station in question which certifies that in 2003 an
FIR 41, not 241, was issued against him. The addition of the figure “2” was a
clerical error which had since been corrected, as had the warrant for arrest.
The letter went on to say:
Telephonic enquiry made by the office of
Canadian High Commission Islamabad was done giving reference of FIR number
only. Accordingly the answer from this office was negative. Later when the name
of the accused was matched with the serious number of FIR’s it transpired that
the above clerical mistake had occurred.
The letter appears to be signed by the same
Asghar Ahmad.
[7]
The
Panel did not accept this letter of explanation. It was of the opinion that had
the identification number of the FIR and warrant for arrest been erroneous, the
claimant’s Pakistani lawyer would have come to that realization at the outset.
This lack of credibility so permeated the matter that the Panel did not believe
a word Mr. Sheikh said.
[8]
This
finding was patently unreasonable. If the lawyer inquired by name, how was he
to know that the wrong number had been put on the form? The statement in the
letter that the High Commission only inquired by FIR number, and not by name,
has not been challenged. Indeed, such a query is more consistent with Canada’s privacy
concerns.
[9]
Although
not mentioned in the reasons for the decision, the transcript shows the Panel
expected that a corrected FIR and corrected Warrant for Arrest would be
produced in addition to the letter. Although the overall burden is upon an
applicant to make out his case, one cannot anticipate how demanding a Panel
might be. The letter appears to be perfectly satisfactory on its face, and a
document apparently emanating from a foreign authority is prima facie valid
(Ramalingam v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 10, 77 A.C.W.S. (3d) 156, Osipenkov
v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 57, [2003] F.C.J. No. 59).
[10]
The
Panel could easily have caused another inquiry to be made of the police station
in question. Natural justice requires that one be informed of specific concerns
and be given an opportunity to meet them (Adegbayi v.
Canada (Minister of Citizenship and Immigration), 2004 FC
1348, [2004]
F.C.J. No. 1615; Khwaja v. Canada (Minister of
Citizenship and Immigration), 2006 FC 522,
[2006]
F.C.J. No. 703; Guo v. Canada (Minister of
Citizenship and Immigration), 2006 FC
626, [2006]
F.C.J. No. 795; and Skripnikov v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 528, 61 Imm. L.R. (3d)
62). Either there are a First Information Report and a Warrant for Arrest or there
are not. If there are, then the decision to dismiss Mr. Sheikh’s claim without
considering same is patently unreasonable.
[11]
One
should not infer that a certain situation or a certain document exists or does
not exist when the true state of affairs is readily ascertainable (Myle v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1073, [2007] F.C.J. No. 1389).
ORDER
THIS COURT
ORDERS that
for the reasons given above, this application for judicial review is
granted. The matter is referred back to a different member of the Refugee
Protection Division of the Immigration and Refugee Protection Board for redetermination.
There is no serious question of general importance to certify.
“Sean Harrington”
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