Date: 20030217
Docket: IMM-4571-01
Neutral citation: 2003 FCT 180
OTTAWA, ONTARIO, THIS 17th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
SARDAR MUMTAZ AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] Mr. Sardar Mumtaz Ahmed (the "Applicant) seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"). In its decision, dated September 19, 2001, the Board determined the Applicant not to be a Convention Refugee.
FACTS
[2] The Applicant is a citizen of Pakistan. He comes from the area of Kashmir that is controlled by Pakistan; it is also known as Azad Kashmir and Pakistan Occupied Kashmir ("POK").
[3] The Applicant entered Canada and claimed Convention refugee status in October 2000 on the basis of a well-founded fear of persecution at the hands of the Pakistan police, the Inter-Service Intelligence Agency, the current military government in Pakistan and militant members of the Muslim Conference and Pakistan Peoples Party. He claimed that his fear of persecution is based in his nationality as a Kashmiri and his political opinion as a member and activist in the United Kashmir Peoples National Party ("UKPNP").
[4] The Board expressed concerns about the Applicant's credibility and apparently concluded that there was insufficient evidence before it to show that he had a well-founded fear of persecution in Pakistan. However, it also went on to consider if the Applicant had a reasonable internal flight alternative ("IFA") in Pakistan. Ultimately, the Board concluded there was no more than a mere possibility that the Applicant would suffer persecution as a result of his continued participation in his UKPNP political activities outside his former area of residence, that is Azad Kashmir. The Board found that an IFA was available to the Applicant outside Azad Kashmir, in other areas of Pakistan.
[5] The Board based its conclusion in this respect on several findings of fact, in particular that a First Information Report ("FIR") had been registered against the Applicant at the Thorar police station and Rawalakot local courthouse in Azad Kashmir and the documentary evidence indicated that Azad Kashmir had a separate legal system. It found that the Applicant had no national profile in Pakistan and that his UKPNP activities were confined to his village of Dhaka and the Thorar-Rawalakot area.
[6] The Board also found that the FIR and a letter from a lawyer in Pakistan, both submitted by the Applicant, were non-credible based on a report dealing with fraudulent documents of this nature. Finally, it found that there was no evidence that other members of the UKPNP were subject to persecution by authorities outside Azad Kashmir.
APPLICANT'S SUBMISSIONS
[7] The Applicant argues that the Board found him to be generally credible with respect to the main elements of his claim and found that the evidence was consistent with the documentary evidence. He argues that the Board made a reversible error of law in reaching the conclusion that a viable IFA was available to him outside Azad Kashmir.
[8] The Applicant submits that this finding was based on speculation since the Board had earlier determined that he had a well-founded fear of persecution from the Pakistan police, state agents who are under the direct control of the ruling military regime.
[9] Relying on Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.), the Applicant argued that the Board must take into account the individual circumstances of a claimant when considering the reasonableness of an IFA. The Applicant argues that the Board failed to do this in concluding that he had a viable IFA outside Azad Kashmir.
[10] He submits that he met the burden of proof established in Thirunavukkarasu, supra, since he demonstrated on a balance of probabilities that there is a serious possibility of persecution throughout Pakistan, including Karachi or Islamabad, areas that the Board alleged provided an IFA.
[11] The Applicant also argues that the Board failed to take into account his fear of persecution from national state agents in other parts of Pakistan. In this regard, he relies on Khan v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 119 (F.C.T.D.) and Canada (Minister of Employment and Immigration) v. Sharbdeen (1994), 23 Imm. L.R. (2d) 300 (F.C.A.) in support of the argument that once he had established a well-founded fear of persecution at the hands of national state agents who control the entire area of the proposed IFA, it is unreasonable for the Board to find a viable IFA in other parts of the country where the same state agent is present. The Applicant says that the national operating state agents in his case are the Pakistan police force and the military government which has power throughout Pakistan.
[12] Further, the Applicant argues that the Board erred in failing to consider all the evidence before it, including the most recent curtailment of rights of political activists by the Pakistan military regime in the areas where the Board found a viable IFA. He refers to the recent reports from Amnesty International in March and April 2001 and the Human Rights Watch Report 2001. These reports, which were before the Board, detailed mass arrests of political activists in Karachi and Lahore.
[13] Finally, the Applicant argues that the Board erred in failing to give him the opportunity to enter further and new evidence after the hearing but before the Board made its decision.
RESPONDENT'S SUBMISSIONS
[14] The Respondent argues that this case turns on the standard of review. That standard, in relation to findings of fact, is that of patent unreasonableness; see CUPE Local 301 v. Montreal, [1997] 1 S.C.R. 793. Here the Respondent says that the Board's findings concerning the credibility of the Applicant should receive a high degree of deference and were not patently unreasonable.
[15] The Respondent further submits that credibility findings and the weight of the evidence are clearly within the jurisdiction of the Board. As long as the Board's conclusions were reasonably open to it, then a reviewing court should not interfere; see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[16] The Respondent argues that the IFA determination was reasonably open to the Board and in any event, was an alternative consideration made after the Board determined that the Applicant had failed to show that his fear of persecution was well-founded.
ANALYSIS
[17] The Board "found" the Applicant to be a Convention refugee on the basis of his political opinions, at least for the purpose of considering whether an IFA was available to him in his country of origin. It concluded that, notwithstanding the political activism of the Applicant and his stated intention to continue to promote his political goal of establishing an independent Kashmir, an IFA was reasonably available to him in other areas of Pakistan outside of POK.
[18] The dispositive issue arising from this proceeding is whether this conclusion is patently unreasonable, having regard to the standard of review applicable to decisions of the Board. In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL), Justice Pelletier (as he then was) described the standard of review in the following terms at paragraph 5:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. The issue here is the CRDD's assessment of the evidence, a matter clearly within its mandate and its expertise. The view which the CRDD took of the evidence was one which could reasonably be taken, just as the opposing view could also reasonably be taken. The evidence, as is so often the case, is ambiguous and equivocal. Some elements support the applicants' position, others undermine it. The CRDD's task is to consider all the elements (which does not require that specific mention be made of every piece of evidence which is reviewed) to weigh it and to come to a conclusion. As long as its conclusion is not one which is wrong on its face, it is not patently unreasonable. Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, (1996) 144 D.L.R. (4th) 1.
[19] The Board here relied extensively on documentary evidence before it, in reaching its conclusion that an IFA was available to the Applicant in Pakistan. I refer to page 6 of the reasons where the Board says as follows:
The panel reviewed the documentary evidence before it respecting the use of fraudulent judicial documents and letters from lawyers by asylum seekers from Pakistan. This documentary evidence indicates that there are well-organized gangs of traffickers in Pakistan who provide asylum seekers with forged and falsified documents. According to a report to the Board from the German Federal Office for the Recognition of Foreign Refugees nearly all documents presented as part of the Convention refugee determination process in Germany by asylum seekers from Pakistan are forged, falsified or issued as a favour on request or in return for payment. These include FIRs and letters from lawyers filed in support of refugee claims. The panel prefers the reliability and impartiality of the foregoing documentary evidence concerning the issuance of falsified FIRs and letters from lawyers in Pakistan to the documentary evidence provided by the claimant. The panel attaches no probative value to this documentary evidence provided by the claimant in support of his refugee claim.
[20] This material is referenced to a footnote, referring to "Exhibit R-1, Item 12, Response to Information Report PAK35362.E., 25 September 2000". This document is not contained in the certified tribunal record. The "List of Exhibits" at page 16 of the tribunal record indicates that "Exhibit R-1", contained only items one through 6. I conclude that the record is deficient since it does not contain material upon which the Board relied and considered of sufficient importance to mention, through footnotes, in its reasons.
[21] This documentary material, not contained in the record submitted to this court, was critical evidence, as it prompted the Board to assign no weight to the FIR, a police report about the Applicant, which may have been affective throughout all of Pakistan. This finding in turn allowed the Board to make the conclusion that an IFA was viable. When such important evidence is missing from the tribunal record, the Court is impeded from evaluating the context and content of the documentary evidence relied upon by the Board.
[22] A similar situation occurred in Kong v. Canada (Minister of Employment and Immigration) (1994), 23 Imm. L.R. (2d) 179 (F.C.T.D.), where the Court noted that an article quoted and relied on by the Board in its reasons was missing from the tribunal record. As stated by the Court at paragraph 21:
What is more, although the record which was sent to the Court is certified as a true copy of all the material which was before the Board, I can find no copy of the article from which the quote was taken included therein. Thus, I cannot consider the context from which the quote was taken. It would appear from one of the indexes on the file that there is more material than just this one article that is missing from the certified record. A certified record should include all the evidence which was before the Board. The absence of such can itself be grounds for a reversal of the decision.
[23] Furthermore, there are several other documentary sources relied upon and footnoted by the Board in its reasons that are missing from the certified tribunal record in this case. These materials relate to evidence that a registered FIR can result in a legal arrest anywhere in Pakistan and evidence that the judicial structure in Azad Kashmir is independent of other provinces in Pakistan.
[24] In Parveen v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm.L.R. (3d) 305 (F.C.T.D.), Justice Reed held that since the Respondent controlled the preparation of the record that was submitted to the Court, any contradictions that arose in consequence of deficiencies should generally be interpreted against the Respondent. Justice Reed said in paragraph 9:
I think it is sufficient to note that the respondent controls the record that is put before the Court. Thus, any disputes that arise as a result of deficiencies in the record should, in general, be interpreted against the respondent rather than in her favour. Indeed, I think an incomplete record alone could be grounds, in some circumstances, for setting aside a decision under review. [Emphasis added]
[25] In my opinion, the deficiencies in the record give rise to the apprehension that the Board rendered a conclusion in the absence of evidence to support it. The Board expressed an ambivalent opinion as to the establishment by the Applicant of a statutory ground for Convention refugee status. It stated at the beginning of its reasons, under the heading "DETERMINATION":
The panel determines that the claimant is not a Convention refugee. While the panel concludes that the claimant has a well-founded fear of persecution at the hands of the Pakistan police, it finds he has a viable internal flight alternative outside of Azad Kashmir.
The Board then stated the following contradictory opinion at a later point in its reasons:
In the event that the panel erred in finding that the claimant's fear of persecution in Pakistan today is not well-founded, it considered whether there was a viable internal flight alternative available to him in Pakistan, outside of Azad Kashmir.
[26] It then proceeded to consider whether an IFA was available and concluded that it was. The Board reached this conclusion primarily on the basis of certain documentary material. However, the certified tribunal record does not include the material in question.
[27] The absence of this evidence casts doubt upon the conclusion of the Board, that an IFA was reasonably available. One of the purposes of an application for judicial review is to test the reasonable basis for a decision of a statutory tribunal. In this case, the Board's conclusion is not justified by the evidence submitted, by the Respondent, to the Court.
[28] The application for judicial review is allowed. The matter is remitted to a differently constituted panel of the Refugee Protection Division, as the Board is now called, for redetermination in accordance with the law. Counsel advised there is no question for certification.
ORDER
The application for judicial review is allowed. The matter is remitted to a differently constituted panel of the Refugee Protection Division for redetermination in accordance with the law. Counsel advised there is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4571-01
STYLE OF CAUSE: SARDAR MUMTAZ AHMED v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 7, 2002
REASONS FOR ORDER AND ORDER : HENEGHAN J.
APPEARANCES:
Mr. Birjinder P.S. Mangat for Applicant
Mr. Brad Hardstaff for Respondent
SOLICITORS OF RECORD:
Mr. Birjinder P.S. Mangat for Applicant
Barristers & Solicitors
Suite 217, 3825 - 34 Street N.E.
Calgary, Alberta
T2E 6Z8
Morris A. Rosenberg, Q.C. for Respondent
Deputy Attorney General of Canada