PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Refugee Protection Division (RPD) rejected the Applicant's refugee claim because it did not believe that he held an executive office position in the local chapter of his political party. That decision is the matter under judicial review.
I. Background
[2] The Applicant's case turns on his activities as the alleged treasurer of the local section of the Pakistan People's Party (PPP). While he held this position in the PPP, he was a merchant sailor and away from home for a considerable amount of time.
[3] It was his evidence that he was active in the 1997 election and consequently became a target for opposition parties. This persecution continued in 1999 and included being arrested and beaten by police. The actions against him supposedly increased after the U.S. invasion of Afghanistan when extremists were in control of Pakistan. He had spoken out against a "jihad" against the U.S. By 2004 he claims that he had been physically attacked by fundamentalists, and that the police refused to assist him and became agents of his persecution.
[4] The RPD found the Applicant not to be credible on the central element of his claim - that he was a PPP office holder in his locale. His story was not believed because:
· it is not likely a party would choose as an office holder a person who was absent so often;
· the Applicant had not shown himself to be a leader - the RPD called it "did not present as leadership material";
· his evidence of his duties as treasurer was superficial; and
· no weight was given to documents provided by the Applicant, namely a FIR (First Incident Report) to the police and his arrest warrant.
[5] The real issues in this judicial review are:
· whether the RPD's negative determination as to credibility was patently unreasonable; and
· whether the RPD erred in its treatment of the documentary evidence as corroborating evidence.
II. Analysis
[6] I accept that while Giron v. Canada(Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) is generally good law, it has been clarified by Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), [1993] F.C.J. No. 732 (QL). The result is that on issues of credibility of RPD findings, the standard of review is patent unreasonableness.
[7] With deference to the RPD, the Court is troubled by aspects of the decision. In particular, the RPD made a finding that the Applicant did not "present as leadership material". There is no explanation of what this criterion of leadership really meant or on what it was based. This is a highly subjective finding and made without any objective criterion.
[8] It may well be that the Applicant did not exhibit leadership qualities, at least in the eyes of the RPD, but at minimum there must be an articulation of what those envisioned qualities are. This is particularly the case when one is considering such a finding against the backdrop of local political/social conditions.
[9] The Court's disquiet is increased somewhat by the RPD's reference to his position being that of "vice-president" whereas the evidence was that of "treasurer". The reference to vice-president may have been a typographical error since the context in which it arose was a discussion of the function of a treasurer. Nevertheless, this reference, in the context of a finding of lack of apparent leadership qualities, casts a further shadow on the notion of what leadership qualities are needed for the assumed office. Potentially the more senior the office, the more apparent the leadership qualities.
[10] The Court is unable, on the evidence described, to find any way in which the "leadership" finding could be made or maintained. In that regard, it is patently unreasonable.
[11] Further, the RPD, in rejecting the corroborating documents, made no reference to the Applicant's PPP membership card. It is trite law that a tribunal need not refer to every piece of evidence. However, where an important document is not referenced, that fact against other factors in a case, including the relationship to core issues, may cast doubt on the decision.
[12] The RPD alluded to the problem of false documents in Pakistan without finding that any documents were false. However, the suggestion of fraud lingers and stands out where a critical piece of evidence of the Applicant's political status is not mentioned. The RPD should have referenced the party membership evidence when it was finding against the Applicant on his political involvement and status.
[13] Taken as a whole, this decision cannot be sustained. The application for judicial review will be granted, the decision of the RPD quashed and the matter referred back for a new determination by a differently constituted panel of the RPD. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be granted, the decision of the RPD quashed and the matter referred back for a new determination by a differently constituted panel of the RPD.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4358-05
STYLE OF CAUSE: AKBAR FAZAL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
| Ms. Lori O'Reilly
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| Mr. Rick Garvin
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SOLICITORS OF RECORD:
| O'REILLY LAW OFFICE Barristers & Solicitors Calgary, Alberta
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
|