Date: 20030711
Docket: IMM-3650-02
Ottawa, Ontario, this 11th day of July, 2003
Present: The Honourable Mr. Justice Pinard
Between:
SUHEIL, Mohammed Aamer,
Applicant(s)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board dated June 12, 2002, determining the applicant not to be a Convention refugee, is dismissed.
JUDGE
Date: 20030711
Docket: IMM-3650-02
Citation: 2003 FC 845
Between:
SUHEIL, Mohammed Aamer,
Applicant(s)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the ABoard@), dated June 12, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Pakistan. He claims to have a well-founded fear of persecution because of his Shi=a religion.
The applicant submits that the Board erred in stating that he submitted his documents one day before the hearing. The applicant further submits that the Board made an abusive use of a secret rule of evidence when it referred to the requirement to file documents twenty days in advance of the hearing. These arguments are unfounded.
Whether the documents were filed one or two days prior to the hearing is irrelevant, because either way the applicant clearly failed to meet the 20-day deadline imposed by the relevant Practice Notice (Practice Notice: Disclosure and Filing Before the Hearing of Relevant Evidence).
The rule governing the production of documents is neither secret nor unavailable to the general public. In fact, the copy of the Practice Notice supplied by the respondent was taken from the Board=s internet site on September 30, 2002, at which time the site had last been updated on June 27, 2002, long before the applicant submitted his affidavit stating that the rule was not to be found on the internet.
Rule 39 of the Convention Refugee Determination Division Rules, SOR/93-45, which governed the Board at the time of the hearing, reads as follows:
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39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously. |
39. Les présentes règles ne sont pas exhaustives; en l'absence de dispositions sur des questions qui surviennent dans le cadre d'une procédure, la section du statut peut prendre les mesures voulues pour assurer une instruction approfondie de l'affaire et le règlement des questions de façon expéditive.
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The Practice Notice indicates that the Refugee Division did, in fact, take such measures with respect to the filing of relevant evidence:
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Unless disclosure has occurred in a pre-hearing conference, a party may be directed by order of the Refugee Division to serve on any other party to the proceedings and to file at the registry not less than 20 days before the date set for the hearing, or such earlier date as may be specified in the order of the Refugee Division,
[. . .]
b) a copy of any document, report, or other material that the party intends to produce at the hearing. |
À moins qu'il y ait eu communication lors d'une conférence préparatoire, la Section du statut peut rendre une ordonnance enjoignant chaque partie de signifier aux autres parties et de déposer au greffe, au moins 20 jours avant la date fixée pour l'audience, ou plus tôt si la Section du statut le précise dans son ordonnance,
[. . .]
b) une copie de tout document, rapport ou autres pièces que la partie entend présenter en preuve à l'audience.
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The respondent has indicated that the practice under the old Act was to send an order of the Board requiring disclosure of relevant documents according to the above guidelines at the same time as the Notice to Appear for the hearing itself, which was done in this case. It is of note that the order is no longer required under the new Immigration and Refugee Protection Act, S.C. 2001, c. 27, because the 20-day disclosure rule is expressly included in Rule 29 of the Refugee Protection Division Rules, SOR/2002-228.
The applicant=s failure to comply with the Rules of Practice with respect to the documents does not appear to have affected his case unduly, since the Board accepted the documents despite the error.
The applicant also argues that the Board incorrectly assessed the evidence before it, and ignored reasonable explanations for each issue raised in the reasons for its decision. The respondent correctly counters that the applicant has not provided specific examples and has not met his burden of establishing that the Board=s decision was patently unreasonable. Indeed, the Board rejected the applicant=s claim on the ground that he was not a credible witness. The Board supports its decision with the following reasons:
- the applicant=s testimony on the subject of the duties of members of the Imambargah executive was vague and lacked spontaneity;
- the applicant=s testimony regarding his donation to the embroidery school and his explanation for being the only contributor or member of the Imambargah executive to be targeted by the Sunni extremists were implausible;
- the applicant stated during his testimony that the first time he heard that the police had a case against him was in November 2000, whereas his Personal Information Form (APIF@) mentions September 2000. This is an incredible contradiction regarding an important fact;
- it is strange that the applicant did not make a copy of the first letter containing death threats which he received, before handing it in to the police. Therefore, both death threat letters, the second of which was filed with the Board, were pure fabrication;
- in his PIF, the applicant claimed that terrorists opened fire on him while he was riding his motorcycle. When pressed, he admitted that he did not know if they were terrorists or not. Therefore, he added the incident to make the Board believe he was the object of persecution.
Upon reviewing the transcript of the hearing before the Board, I do not consider the intervention of this Court is warranted. Although I might have assessed some of the facts differently, it is not incumbent upon this Court to substitute its own appreciation of the facts to that made by the Board. In my view, the Board=s assessment of the facts as a whole has not been shown to be patently unreasonable.
For all the foregoing reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
July 11, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3650-02
STYLE OF CAUSE: SUHEIL, Mohammed Aamer v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 20, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: July 11, 2003
APPEARANCES:
Me Dan M. Bohbot FOR THE APPLICANT
Me Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Dan M. Bohbot FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario