Date: 20010330
Docket: IMM-2850-00
Neutral reference: 2001 FCT 270
BETWEEN:
TARIQ MAHMOOD
Plaintiff
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
[1] This is an application for leave and judicial review from a decision by the Refugee Division (hereinafter "the tribunal") on May 4, 2000 that the plaintiff is not a Convention refugee.
MOST RELEVANT FACTS
[2] The plaintiff is a national of Pakistan, age 28. He alleged a well-founded fear of persecution for his political opinions.
[3] In September 1989 the plaintiff joined the Muslim Student Federation (hereinafter "MSF"), which is an organization led by the Muslim League Party (hereinafter "MLP"). At university the plaintiff was actively involved in charitable, social and educational activities.
[4] On October 12, 1999 the army took power in a coup d'état in which the elected MLP government was overthrown and its leaders arrested. The plaintiff, as well as young persons and MLP leaders, distributed pamphlets condemning the army.
[5] On October 25, 1999 a meeting was held at the plaintiff's house to launch a democratic and peaceful protest campaign seeking release of the MLP Prime Minister, Nawaf Sharif, and return of the elected government. A demonstration was planned for November 10, 1999 and notices were distributed to participants.
[6] On October 31, 1999 the president of his organization, Mohammad Basat, was arrested at his house and paramilitary troops arrived at the plaintiff's house when the latter was at the farm. The plaintiff was warned to hide. On the same day the police went to the plaintiff's house a second time. The police threatened the plaintiff's family and indicated that unless the plaintiff went to the police station by the following morning at the latest, he would be killed.
[7] The plaintiff fled to a friend's home at Parianwali. In the meantime the police continued their searches at the homes of the plaintiff's relations. The plaintiff's family hired a lawyer to determine what charges were being brought against the plaintiff. Since the police required that the plaintiff be present before disclosing anything, the plaintiff's family and friends arranged for a representative to send the plaintiff abroad. The plaintiff alleged that since his departure charges have been laid against him and his friends have been the victims of repression.
POINTS AT ISSUE
[8] The points at issue in the case at bar are the following:
1. did the tribunal err in concluding that the plaintiff was not credible?
2. did the tribunal err in law in assessing the documentary evidence filed at the hearing?
ANALYSIS
1. Did the tribunal err in concluding that the plaintiff was not credible?
[9] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated the following concerning the Court's intervention in a tribunal's conclusions on a plaintiff's credibility:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[10] In Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1 (F.C.T.D.), it was indicated:
To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[11] For its findings on the plaintiff's credibility, the tribunal relied essentially on the facts that occurred on October 12 and October 31, 1999.
[12] As regards the facts occurring on October 12, 1999, it is apparent that the plaintiff mistook the time the speech by General Musharaf was broadcast. Whether the speech was presented at 9:00 p.m. on the 12th, midnight or 2:00 a.m. on the 13th is not of much importance. It is a mistake which has no consequences and it was unreasonable for the tribunal to draw a conclusion unfavourable to the plaintiff's credibility from it.
[13] As regards the statement by party leaders reported on the Internet on October 31, 1999, there is very little information about the meeting which preceded it on the 30th and the conclusions drawn by the tribunal about the plaintiff's misunderstanding of this event and the conclusions unfavourable to his credibility are also unreasonable.
2. Did the tribunal err in law in assessing the documentary evidence filed at the hearing?
[14] The plaintiff maintained that the tribunal erred because it did not consider all the documentary evidence submitted, in particular the three letters attesting to his involvement in the MYW and MSF and the letter from his counsel enclosing an arrest warrant issued on January 20, 2000 against the plaintiff, charging him with five counts.
[15] It is well settled that a tribunal does not have to refer to all the documents entered in evidence. In Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (A-1307-91, June 11, 1993) (F.C.A.), the Federal Court of Appeal indicated:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[16] However, in some circumstances the tribunal may have a duty to mention and explain why it has not accepted the documentary evidence filed by a plaintiff. In Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. indicated:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v.Canada (Minister of Employment and Immigration) (1990) 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[17] In Yu v. Canada (M.C.I.), [1998] F.C.J. No. 1043 (F.C.T.D.), Teitelbaum J. concluded:
The applicant's second submission is that the Refugee Division erred by failing to mention the summons in its decision. In Gourenko v. Solicitor General of Canada (1995), 93 F.T.R. 264, Simpson J. wrote at page 264:
However, the question is when is a document so important that it must be specifically mentioned in the decision. Or put an other way, when will a failure to refer to a document be considered a reviewable error?
In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to the applicant's claim . . . In addition, if a document is directly relevant to the facts alleged by an applicant, one would expect to see that document addressed in the Refugee Division's reasons.
I am satisfied the Refugee Division erred by failing to mention the summons in its decision. Following Gourenko, supra, this was a timely document, there was no contention that it was not reliable, it is directly relevant to the applicant's claim and it is directly relevant to the facts he alleged. In my opinion, it should have some bearing upon the decision of the Refugee Division and it is unclear whether they considered it and it is unclear how much weight the Refugee Division would give to this document.
Even if the Refugee Division believed the applicant lacked credibility, they should have considered the summons and then set it aside because of the applicant's lack of credibility. This they failed to do.
[18] In the case at bar, on the evidence submitted by the plaintiff the tribunal indicated the following, at p. 5 of its decision:
The documentary evidence submitted by the claimant in support of his claim is insufficient to outweigh the concerns about the claimant's credibility.
[19] I am not persuaded that this passage suffices to explain why the tribunal did not take the personal documentary evidence submitted by the plaintiff into account.
[20] The plaintiff filed an arrest warrant issued against him, and the tribunal did not comment upon or challenge it.
[21] In the case at bar, the document was relevant, there was no contention that it was not reliable, it related directly to the plaintiff's claim and to the facts he alleged. I consider that the tribunal should have explained its reasons for dismissing the documentary evidence and I believe that the grounds relating to the plaintiff's credibility do not suffice to discredit the evidence of the arrest warrant submitted by the plaintiff.
[22] The instant application is accordingly allowed, the decision set aside and the matter referred back to the tribunal to be reconsidered by a panel of different members.
[23] Counsel submitted no serious question for certification.
Pierre Blais Judge
OTTAWA, ONTARIO
March 30, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2850-00
STYLE OF CAUSE: TARIQ MAHMOOD
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAR. 28, 2001
REASONS FOR ORDER BY: BLAIS J.
DATED: MAR. 30, 2001
APPEARANCES:
MARIO BLANCHARD FOR THE APPLICANT
JOCELYNE MURPHY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIO BLANCHARD FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada