Calgary, Alberta, October 12, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present Application, in large part the Applicant bases his claim for protection on evidence that, should he return to Pakistan he fears that he will be subjected to risk of violence and eventual death at the hands of a member of a political party in Pakistan and the Pakistani governmental authorities because fraudulent charges are outstanding against him in Pakistan.
[2] The Refugee Protection Division (RPD) rejected the Applicant’s claim on the basis of a negative credibility finding and the rejection of documentary evidence, submitted to prove the risk, as not authentic. I find that the manner in which these conclusions were reached constitutes reviewable error.
[3] As stated in R.E.R. v. Canada (Minister of Citizenship and Immigration) 2005 FC 1339 at para. 9, all evidence with respect to an applicant’s claim for protection must be considered before a global credibility finding is made:
First, it is only fair and reasonable for parties to litigation to expect that the decision-maker will consider the evidence in its entirety, with an open mind, before making findings about the value to be placed on critical elements of the evidence. For the general proposition that the evidence must be considered in its entirety see Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). In the present case, I find that the RPD was in error in not considering the whole of the evidence, including the wife’s rape evidence and the cogent independent evidence about the apparent effects of the torture and rape in the form of photographs and reports, before making the critical finding of negative credibility against the principal Applicant (also see Gonzalez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 422, and Herabadi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1729).
[4] In the present case, first a global negative credibility finding was made and then key pieces of independent corroborative evidence were rejected as a result. The following passage from the RPD’s decision details this decision making process:
The claimant’s allegations that these are false politically motivated criminal charges instigated by Ashan Saman and the SSP are a significant element of the claimant’s refugee protection claim, and they are of a serious nature. Again, the claimant testified that he first became aware of these false charges against him approximately one month after the FIR was registered on May 18, 2004, but the Board did not receive these documents until June 22, 2005, approximately one year later, and subsequent to the claimant’s first refugee protection claim hearing on March 1, 2004. The Board’s administrative documents indicate that the claimant’s previous legal counsel, the legal counsel that represented the claimant at his first refugee protection claim hearing on March 1, 2004, continued to represent the claimant at least until July 11, 2005. The claimant did not make any attempt to provide an updated PIF or PIF narrative to the Board respecting the alleged politically motivated false criminal charges against him even though he was aware of these alleged charges in June of 2004. Therefore, I find the claimant’s delay in providing these very significant documents of police and government interest in him to be unreasonable.
[…]
Based upon my negative credibility findings respecting the claimant’s allegations respecting he and his family members past problems at the hands of Ahsan Saman and his SSP associates, I find on a balance of probabilities that all of the foregoing court documents, FIR’S Arrest Warrants, and Proclamation are not authentic and were fabricated and procured by the claimant to embellish his refugee protection claim. In making this finding, I refer to the documentary evidence before me on the easy accessibility of fraudulent documents in Pakistan, including fraudulent police and court documents and correspondence from lawyers.
[Emphasis added]
[5] From the passage quoted, it appears that the RPD had three reasons for rejecting the Applicant’s corroborative evidence: the evidence was submitted with delay; the Applicant is not credible; and the evidence itself is not reliable.
[6] First, I find that the evidence on the record does not substantiate the finding of delay. The present Application concerns a redetermination decision. The Applicant’s evidence is that he was not aware of the false charges placed against him until June 2004, being approximately one month after the First Information Report was registered against him. Therefore, this knowledge arose after the Applicant’s first refugee protection claim hearing on March 1, 2004 and before the redetermination was ordered on judicial review on February 24, 2005. It is not contested that the Applicant submitted the documentary evidence in accordance with Rule 29 of the RPD Rules which specifies that documents must be received no later than 20 days before the hearing date; they were submitted on June 22, 2005, within 20 days of the hearing which took place on July 12, 2005. Therefore, in my opinion the RPD’s finding of delay is unsubstantiated, and, therefore, is capricious.
[7] Second, the issue of the rejection of the corroborative evidence exposes two reviewable errors.
[8] It appears that the negative finding of credibility was an important factor in determining that the documentation should be rejected because it is not authentic. Based on the authority quoted above, it was incumbent on the RPD to make its global credibility finding after considering all the evidence. To properly do so, it was necessary for the RPD to first deal with the authenticity of the documentary evidence in its own right. The RPD did not do this. In fact, quite apart from the issue of the Applicant’s credibility, the RPD had no evidence, other than a generalized suspicion, upon which to base its conclusion that the documents submitted are fraudulent. The fact that there is “easy accessibility of fraudulent documents in Pakistan” does not mean that the particular documents before the RPD are in fact fabricated. On this basis alone, I find that the rejection of the documentary evidence is a capricious finding.
[9] I find that the global finding of credibility is made in error of law because it was not reached on the basis of all the evidence properly found to be admissible.
.
ORDER
Accordingly, I set aside the RPD’s decision and refer the matter back to a differently constituted panel for redetermination.
“Douglas R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1437-06
STYLE OF CAUSE: MUHAMMAD IQBAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: October 12, 2006
APPEARANCES:
|
Ms. Jolene Fairbrother
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Ms. Camille Audain |
SOLICITORS OF RECORD:
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Sherritt Greene Calgary, Alberta
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John H. Sims, Q.C. Deputy Attorney General of Canada
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