Date: 20060125
Docket: IMM-2515-05
Citation: 2006 FC 40
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
ABID ULLAH JAN
RIZWANA AFRIDI
MISHA JAN
LAIBA JAN
Respondents
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review brought by the Minister of Citizenship and Immigration (the AMinister@), on April 25, 2005, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the ABoard@) dated April 26, 2004, wherein the Board found that the principal respondent Abid Ullah Jan and his family members (collectively the Arespondents@) were Convention refugees pursuant to section 96 and Apersons in need of protection@ as defined in section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the AAct@). The Board also held that the principal respondent was not subject to exclusion under Article 1F(b) of the United Nations Convention relating to the Status of Refugees (the ARefugee Convention@).
[2] The family members= claim has been linked to that of the principal respondent.
[3] Abid Ullah Jan, his wife and two children are all citizens of Pakistan. Mr. Jan had worked as a journalist and political analyst in Pakistan, and previously headed a community development organization. He has been openly critical of the Musharraf regime, and has written on corruption in development projects.
[4] Mr. Jan arrived with his wife and two children in Canada on December 27, 2002. They requested asylum on that date, claiming that they feared persecution based on political belief and based on their social group. The respondent claimed that before he and his family left Pakistan he received threatening phone calls, was required to come to a military base for an interrogation, at which point he was tied to a chair, and was later confined for fifty to fifty-two hours, allegedly by secret service agents. The respondents claimed that they are persons in need of protection since, if returned to Pakistan, their lives could be threatened, or they would face a risk of cruel and unusual punishment or torture.
[5] However, at the Board=s hearing the issue was raised as to whether Mr. Jan should be excluded by virtue of Article 1F(b) of the Refugee Convention, which states that the Convention refugee protection does not apply to individuals who have committed serious non-political crimes. In 1992 Mr. Jan was detained upon landing in the United States and was charged with drug trafficking. He served 49 months for this crime. At the Board level the question of whether Mr. Jan had committed the crime of human smuggling was also raised.
[6] The respondent submits that the Minister is precluded from bringing this application for judicial review by reason of the unfair delay of approximately one year before the Minister initiated proceedings with respect to the Board=s decision. I do not agree.
[7] On April 26, 2004, the Board gave its decision orally on the exclusion and later that day the Board gave its decision orally on the inclusion. Following the receipt of the notice of decision on April 28, 2004, the applicant made four requests to the Board for the written reasons for the decision before receiving the written reasons on April 14, 2005. The requests were made on the following dates: a written request was made April 29, 2004, the day after receiving the notice of decision, two requests were made by telephone in September 2004 and a final written request was made on March 14, 2005. On April 14, 2005, the applicant received the written reasons and, on April 25, 2005, the leave application was filed in Court.
[8] Both the Act and the Refugee Protection Division Rules, SOR/2002-228, (the ARules@) make it abundantly clear that the delay to file a leave application in the present instance could only start upon receipt of the written reasons, which must be sent to both the claimants and the Minister.
[9] Subsection 61(3) of the Rules imposes the duty on the Board to give written reasons when it has allowed a claim for refugee protection after determining that section F of Article 1 of the Refugee Convention does not apply. Subsection 61(3) of the Rules reads as follows:
61. (3) If the reasons of the Division indicate that it has allowed a claim for refugee protection after determining that sections E or F of Article 1 of the Refugee Convention do not apply, the Division must provide the notice of decision and written reasons for the decision to the claimant and the Minister.
61. (3) Dans le cas où elle indique dans les motifs de sa décision qu=elle accueille la demande d=asile après avoir conclu que les sections E ou F de l=article premier de la Convention sur les réfugiés ne s=appliquent pas, la Section transmet au demandeur d=asile et au ministre, avec l=avis de décision, les motifs écrits de la décision.
[10] Furthermore, the first written request made by the Minister=s representative for the written reasons was made the day following the receipt of the notice of decision, thus within the time frame provided by section 62 of the Rules. Section 62 of the Rules reads as follows:
62. A request made by a claimant or the Minister, for written reasons for a decision allowing a claim must be in writing. The request must be received by the Division no later than 10 days after the claimant or the Minister, as the case may be, received the notice of decision.
62. La demande que peuvent faire le demandeur d=asile ou le ministre en vue d=obtenir les motifs écrits de la décision accueillant une demande d=asile est faite par écrit. La demande doit être reçue par la Section au plus tard dix jours suivant la date à laquelle le demandeur d=asile ou le ministre, selon le cas, reçoit l=avis de décision.
[11] The request was granted on March 21, 2005 and, on April 14, 2005, a copy of the written reasons for decision were received by the applicant.
[12] Paragraph 72(2)(b) of the Act provides that, subject to paragraph 169(f) of the said Act, the application for leave against the decision of the tribunal must be served and filed Awithin 15 days . . . after the day on which the applicant is notified of or otherwise becomes aware of the matter@.
[13] Paragraph 169(f) of the Act also provides that Athe period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later@:
169. In the case of a decision of a Division, other than an interlocutory decision:
[. . .]
(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later.
169. Les dispositions qui suivent s=appliquent aux décisions, autres qu=interlocutoires, des sections :
[. . .]
f) les délais de contrôle judiciaire courent à compter du dernier en date des faits suivants : notification de la décision et transmission des motifs écrits.
[14] On April 25, 2005, the applicant filed its application for leave and for judicial review and served it on the respondents the next day. Therefore, the applicant made its application for leave and for judicial review in due time.
[15] Turning now to the Board=s analysis of human trafficking, the applicant submits that the Board erred by applying an incorrect standard of evidence with respect to human trafficking, and that by virtue of this error alone the Court should quash the decision. I agree.
[16] The standard of evidence for human trafficking in this matter is whether Athere are serious reasons for considering@ that the principal respondent committed the crime. It is well established that this standard falls below that required under either criminal or civil law (see, for example, Lai v. Canada (M.C.I.), [2005] F.C.J. No. 584 (C.A.) (QL), Zrig v. Canada (M.C.I.), [2003] 3 F.C. 761 (C.A.), Ramirez v. Canada (M.E.I.), [1992] 2 F.C. 306 (C.A.), Moreno v. Canada (M.E.I.), [1994] 1 F.C. 298 (C.A.), Sivakumar v. Canada (M.E.I.), [1994] 1 F.C. 433 (C.A.), Sumaida v. Canada (M.C.I.), [2000] 3 F.C. 66 (C.A.) and Minister of Citizenship and Immigration v. Muto, [2002] F.C.J. No. 318 (T.D.) (QL)).
[17] In the case at bar, it appears on the face of the decision that the Board held that the Minister had failed to provide sufficient evidence to prove that the principal respondent had been accused of committing the crime of human trafficking or to prove that the woman accompanying him had been Aaccused@. In my view, this is a much more onerous standard of evidence that the Minister was not required to meet in order to allow the exclusion of the principal respondent for human trafficking. Such a misapplication of the applicable standard of evidence constitutes a serious error in law which warrants the intervention of this Court without the necessity of considering any additional arguments raised by the applicant against the impugned decision.
[18] Consequently, the application for judicial review is allowed, the Board=s decision dated April 26, 2004 is quashed in its entirety, and the matter is sent back to be reheard by a differently constituted panel of the Board.
[19] The question proposed by the applicant for certification, which was also proposed with a slight modification by the respondents, will not be certified, considering it is strictly linked to the question of drug trafficking, a crime for which the principal respondent has already served a sentence of 49 months. Given the above reasons, which have nothing to do with the Board=s analysis of drug trafficking, the proposed question is irrelevant and, therefore, not determinative.
JUDGE
OTTAWA, ONTARIO
January 25, 2006
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2515-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. ABID ULLAH JAN, RIZWANA AFRIDI, MISHA JAN, LAIBA JAN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 15, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: January 25, 2006
APPEARANCES:
Me Sherry Rafai Far FOR THE APPLICANT
Me Silvia R. Maciunas FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
Silvia R. Maciunas FOR THE RESPONDENT
Ottawa, Ontario