Date: 20000526
Docket: IMM-1654-99
BETWEEN:
ZEESHAN AHMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] The applicant is a nineteen year old citizen of Pakistan who claims Convention refugee status on the basis of membership in a particular social group, namely an Ahmadi sympathizer.
[2] The applicant brings this application for judicial review from a decision of a member of the Refugee Division of the Immigration and Refugee Board (the "Board"), dated February 3, 1999, wherein the applicant was found not to be a Convention refugee.
PRELIMINARY MATTER
[3] A preliminary matter was raised at the hearing of this application based on the fact that no transcript of the hearing before the Board was prepared or provided. The Registrar of the Board advised that when the tape of the hearing was reviewed for the purpose of preparing a transcript the tape was found to be blank.
[4] Counsel for the applicant and the respondent were in agreement as to the legal consequence flowing from the lack of a transcript of the hearing. The jurisprudence is to the effect that, in the absence of any statutory provision requiring recording, the Court must determine whether the record before it allows it to properly dispose of the application for judicial review. If the record does allow the Court to properly dispose of the application, the absence of the transcript will not violate the rules of natural justice. (See City of Montreal v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793.)
[5] In the present case, there is no statutory right to a recording. Therefore, the issue to be determined is whether the record before the Court allows it to properly dispose of the application for judicial review. If there is a serious possibility that the absence of a transcript will deny the applicant a proper review, a new hearing must be ordered.
[6] While counsel were in agreement as to the applicable legal principle, they were not in agreement as to the result which should flow from application of that principle in the present circumstances where the transcript was not available.
[7] Counsel for the respondent pointed to the evidence before the Court found in the applicant"s Personal Information Form ("P.I.F."), the decision of the Board, the applicant"s affidavit in support of the application for judicial review, and the written submission of counsel for the applicant prepared shortly after the hearing and forwarded to the Board. Based on this evidence, counsel for the respondent submitted that the Court can properly consider the application for judicial review.
[8] Counsel for the applicant submitted that the Board had made findings of credibility of the applicant while providing in its reasons only a "sketchy basis" for those findings. In the result, it was submitted on the applicant"s behalf that a transcript would be required for a fair judicial review so that a new hearing should be ordered.
[9] After hearing argument on the preliminary issue, I advised counsel that I would hear counsel"s submissions on the merits of the judicial review. After hearing those submissions, I would deliver my judgment on the preliminary matter and, if in my view the record was adequate, on the merits of the application.
THE SUBSTANTIVE ISSUE
[10] The crucial paragraphs of the Board"s decision are as follows:
| DETERMINATION |
| The panel made a general finding of lack of credibility. The panel found the testimony of the claimant with respect to the central elements of his claim not to be credible. Accordingly, for the reasons given below, the panel determined there is insufficient credible and trustworthy evidence on which to base a positive decision. |
| ... |
| ANALYSIS |
| ... |
| The claimant was asked if he had any other connections with the Ahmadi community. He stated that his best friend, Yasir, was an Ahmadi. The claimant alleged that because of his friendship with Yasir some students from his college, who belonged to the fundamentalist Jamat-e-Islami, believed he had converted. The claimant alleged that the Jamat-e-Islami members had beaten him severely on several occasions including following him to Gujranwala, a[n] hour and a half flight from Karachi. |
| The panel did not find the claimant"s testimony credible. The claimant stated categorically that he was a practising Sunni Muslim and attended prayers at a Sunni mosque. According to the claimant, the members of the fundamentalist group thought his prayers to be a "sham". The panel was not satisfied with the claimant"s explanation. The claimant"s persecutors would know that an Ahmadi would not attend a Sunni mosque as it would violate the basic tenet of the Ahmadi faith; the belief that Prophet Mohammed was followed by Mirza Ghulam Ahmed. The aforementioned belief is tantamount to blasphemy for Sunni Muslims. The claimant"s continued presence in a Sunni mosque would confirm to the Sunni community that he had not converted. Accordingly, the panel did not find the claimant"s testimony to be credible. |
| ... |
| The claim before the panel was based on the link between the claimant and the Ahmadi community. The claimant did not persuade the panel that this key element was credible. Accordingly, it is the panel"s opinion that the claim fails. |
ANALYSIS
[11] With respect to the general finding that the applicant lacked credibility, it is fair to say that the finding is at least somewhat at variance with what, apparently, was the conclusion of the Refugee Claim Officer ("R.C.O."). I say this because in the written submission which counsel for the applicant made to the Board following the hearing, it is said "[d]uring the course of his closing observations, the R.C.O., Mr. Fainbloom, noted that the claimant was responsive to the questions put to him. He further noted that the claimant"s testimony was consistent, as well as consistent with his P.I.F.".
[12] Central to the Board"s decision was the fact that it was not satisfied with the applicant"s explanation that members of the fundamentalist group in question thought his prayers to be a "sham". The Board was of the view that the claimant"s persecutors would know that an Ahmadi would not attend a Sunni mosque as it would violate the basic tenet of the Ahmadi faith. The Board was also of the view that the applicant"s continued presence in a Sunni mosque would confirm to the Sunni community that he had not converted. Accordingly, the Board did not find the claimant"s testimony to be credible.
[13] With respect to those key findings, the applicant asserted that the Board ignored the applicant"s evidence that he was suspected of being an Ahmadi sympathizer. The applicant further submitted that the Board"s findings were purely speculative and not supported by any evidence on the record.
[14] The respondent maintained that the Board did not find the applicant"s explanation for the discrepancy between his alleged perception as an Ahmadi and his continued practice of the Sunni Muslim faith to be convincing. The respondent asserted that the Board, as the primary finder of fact, is entitled to reject uncontradicted evidence if it is not "consistent with the probabilities affecting the case as a whole". Moreover, the respondent submitted that the Board was entitled to make an adverse finding of credibility based upon the implausibility of the applicant"s story alone.
[15] I could find no basis on the limited evidence before me to conclude that the Board provided the applicant with a reasonable opportunity to respond to its concern which was apparently based on the Board"s understanding of the principles of the Sunni faith. However, it is not possible to assess this properly without a transcript of the hearing.
[16] Further, subsections 68(4) and 68(5) of the Immigration Act, R.S.C. 1985, c. I-2, as amended provide as follows:
(4) The Refugee Division may, in any proceedings before it, take notice of any facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information or opinion that is within its specialized knowledge.
(4) La section du statut peut admettre d'office les faits ainsi admissibles en justice de même que, sous réserve du paragraphe (5), les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
(5) Before the Refugee Division takes notice of any facts, information or opinion, other than facts that may be judicially noticed, in any proceedings, the Division shall notify the Minister, if present at the proceedings, and the
person who is the subject of the proceedings of its intention and afford them a reasonable opportunity to make representations with respect thereto.
(5) Sauf pour les faits qui peuvent être admis d'office en justice, la section du statut informe le ministre, s'il est présent à l'audience, et la personne visée par la procédure de son intention d'admettre d'office des faits, renseignements ou opinions et leur donne la possibilité de présenter leurs observations à cet égard.
[17] Counsel were in agreement that they could not recall the Board notifying the applicant of its intention and affording him a reasonable opportunity to make representations with respect to the Board"s information of the understanding that fundamentalists would likely have as to whether or not an Ahmadi would attend a Sunni mosque.
[18] I have concluded that without a transcript of the hearing, I am unable to properly review the general finding of a lack of credibility, nor can I properly consider whether the Board provided a reasonable opportunity to the applicant to address its concerns or complied with its obligation under subsection 68(5) of the Immigration Act.
[19] The application for judicial review must therefore be allowed.
[20] The decision of the Refugee Division of the Immigration and Refugee Board, dated February 3, 1999, is set aside and this matter is referred back to a differently constituted panel for redetermination.
[21] No certified question was proposed by counsel and none is formulated.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
May 26, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1654-99 |
| STYLE OF CAUSE: ZEESHAN AHMED |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: WEDNESDAY, APRIL 19, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: DAWSON J. |
DATED: TO SPECIFY
APPEARANCES: Mr. John Savaglio
For the Applicant
Ms. Andrea Horton
For the Respondent
| SOLICITORS OF RECORD: John Savaglio |
| Barrister & Solicitor |
| 1919 Brookshire Square |
Pickering, Ontario
| L1V 6L2 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
| FEDERAL COURT OF CANADA |
Date: 200004XX
Docket: IMM-1654-99
Between:
| ZEESHAN AHMED |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR JUDGMENT