Date: 20040507
Docket: IMM-2550-03
Citation: 2004 FC 676
Montréal, Quebec, May 7, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
FARKHAN MALIK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Malik has claimed refuge in Canada based on his religious and political beliefs. He alleges a well-founded fear of persecution were he to be returned to his homeland, Pakistan. A panel of the Refugee Protection Division of the Immigration and Refugee Board determined that he was neither a refugee nor a person in need of protection. He was found not to be credible. This is a judicial review of that decision.
[2] Mr. Malik's counsel very ably led the Court through the testimony and documentation. There is no clear division between politics and religion in Pakistan. Mr. Malik is a Shia Moslem, which is very much in the minority. His claim is that he, in the footsteps of his father, professed his faith openly, and was encouraged by his Imam to support the Pakistan People's Party, to the annoyance of Sunni extremists. One thing led to another. His father was shot, badly wounded, and had to have his leg amputated. A photo of a one-legged man formed part of his evidence. Because of this activism, false charges of statutory rape were laid against him and eventually he had to flee.
[3] A thread runs through the file such that had the panel concluded that he was a refugee, or otherwise in need of protection, that decision would stand. However, to ask me to set aside a contrary decision is to ask me to subject the decision not simply to significant searching or testing, but to an exacting review. Findings of fact, including inferences drawn therefrom, should be left to the near exclusive determination of the panel which in these matters is entitled to deference unless the decision was patently unreasonable (Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at par. 22).
[4] If the matter rested there, I would have no hesitation in dismissing the application. However, the panel dealt at some length with respect to the claimant's father being shot and having a leg amputated. The panel doubted that the event actually occurred. It said that if the photo exhibited was indeed that of his father, there was no doubt he only had one leg. Reference was made to a report of the medical doctor who was in attendance. The doctor stated it was a "medico-legal" case. The panel indicated that it was aware, through "specialized knowledge", that in all such cases a report is made by the police and the victim is given a copy. The claimant, the victim's son, was not aware that there was such a document which led the panel to this conclusion "The tribunal does not believe the event occurred as the claimant testified orally or in writing." It went on to say that because of many discrepancies it did not address the issue of the accusations of the claimant having been charged with sexual abuse, a charge the claimant said was absolutely false and politically motivated.
[5] The "specialized knowledge" was not specialized knowledge at all, but rather a document prepared by the research directorate of the Immigration and Refugee Board dated 26 February 1999 which reported a letter it received from the director of a clinic in Rawalpindi, Punjab. The letter notes that there are both public and private hospitals. Public health is primarily dealt with by the four provincial governments. Leaving aside the serious questions as to whether the letter accurately reflected the situation when the doctor issued his report with respect to Mr. Malik's father in August 2002, and whether the letter can be relied upon to describe the situation in areas other than the Punjab, the letter does not say what the panel thought it said. While injuries caused by gunshot wounds are of a "medico-legal" nature within the context of the letter, the letter only says that the patient is given copy as a condition precedent of being treated in a private hospital. It does not state that the patient is given a copy if treated in a public hospital. Mr. Malik's father was treated in the "District Headquarters Hospital" Gujarat. According to the letter from the director of the Valley Clinic, if anything,"District Head Quarters Hospital(s)" are public hospitals.
[6] The Board's position paper, or more accurately called a "Response" was, as it says, prepared after researching publicly accessible information then currently available to the research directorate within time constraints. "This Response is not, and does not purport to be conclusive as to the merit of any particular claim to refugee status or asylum."
[7] There is no justification for the panel's finding, which was a major factor in its determination that Mr. Malik was not credible. Having found him not to be credible, it did not even consider the sexual abuse charges, which were documented, and the possibility that they were trumped up. Consequently, the decision cannot stand.
ORDER
THIS COURT ORDERS that judicial review of the decision dated March 14, 2003, Refugee Protection Division file no. MA1-12756 is set aside, and the matter is referred back for redetermination before a differently constituted panel, and a different refugee protection officer. There is no question of general importance to certify.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2550-03
STYLE OF CAUSE: FARKHAN MALIK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 5, 2004
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE HARRINGTON
DATED: May 7, 2004
APPEARANCES:
Michael Dorey FOR APPLICANT
Sherry Rafai Far FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Dorey FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec