Date: 20020514
Docket: IMM-202-01
Neutral citation: 2002 FCT 560
CALGARY, Alberta, Tuesday, the 14th day of May, 2002.
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
NAEEM AKHTAR
KANEEZ FATIMA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] The Applicants are husband and wife who each claim Convention Refugee protection as a result of their political activities in Pakistan. I find that the CRDD's rejection of the claims is based on a fundamental misunderstanding of the evidence and a lack of appreciation that each Applicant claimed on independent grounds.
[2] With respect to the misunderstanding, at the beginning of the analysis portion of the CRDD's reasons the following very critical statement is given:
The claimant stated in his Personal Information Form (PIF), filed on February 17, 2000, that he joined the PSF in 1976 and that he was an active member. In an amended PIF filed on November 10, 2000, just ten days before the hearing, the claimant stated that he was elected joint secretary of the organization. The claimant did not provide a reasonable explanation for the omission of the fact that he was a joint secretary of the PSF. The panel accepts that he was a member of PSF but not joint secretary. The panel finds the omission and late addition of the position is a fabrication aimed at raising the claimant's profile and embellishing the claim. The panel finds it reasonable that a claimant who bases his fear of persecution on political opinion would remember to record any political office he held in his initial PIF. A similar omission and late addition in the amended PIF that he was made PPP president of his ward is likewise not accepted by the panel. It is found to be another attempt to elevate the claimant's profile. The panel does not believe that the claimant was president of his ward. The panel finds the letter from Muhammad Ali Bagga, Sagoda City president of PPP (Exhibit C-6, item 7) to be crafted to support the claimant's position as ward president, a position the panel found he did not hold. The panel finds the omissions of any mention of political office by a claimant who alleges fear of persecution based on political opinion to be omissions of key elements of the claim. The panel finds that the claimant ceased to be a member of the PSF in 1982 when he left college. He did not have any problems because of his membership in the PSF after that time. The panel finds his detention in 1976 was a one-time act of a repressive military regime that does not amount to persecution (CRDD decision, p. 2).
[3] It is certainly obvious that key credibility findings were made on the CRDD's understanding of the PIF amendment issue. Counsel for the Applicants confirms that 10 days before the hearing, the PIFS were amended in some particulars, including the addition of the husband's political positions of Joint Secretary and President, but this was done simply for routine clarification and to have the PIF conform with evidence already submitted on the record. Indeed, on a previously filed visa application which is part of the Tribunal Record, the husband clearly noted the political positions he had held.
[4] Counsel for the Applicants also confirms that absolutely no mention of the amendment issue was made by the CRDD at the pre-hearing screening or during the hearing itself.
[5] As a result, I find that the negative critical comment displayed in the above quoted statement is manifestly unfair and made in reviewable error as being unsupported by the evidence. I also find a breach of due process occurred by the CRDD by not giving the Applicants an opportunity to answer the erroneous concern held by the CRDD on the amendment issue.
[6] With respect to the wife's application, in the decision the CRDD concluded that her application for refugee protection was based on that of her husband. Consequently, her claim was not independently considered. I am satisfied that, on the basis of the record, this conclusion is clearly wrong.
ORDER
[7] Accordingly, I set aside the CRDD's decision with respect to both Applicants and refer this matter to a different panel for redetermination.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
May 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020514
Docket: IMM-202-01
BETWEEN:
NAEEM AKHTAR
KANEEZ FATIMA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-202-01
STYLE OF CAUSE: NAEEM AKHTAR
KANEEZ FATIMA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 14, 2002
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: May 14, 2002
APPEARANCES:
Mr. Birjinder P. S. Mangat FOR APPLICANTS
Mr. W. Brad Hardstaff RESPONDENT
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SOLICITORS OF RECORD:
Mr. Birjinder P. S. Mangat
Calgary, Alberta FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT