Date: 20191203

Docket: IMM-2300-19

Citation: 2019 FC 1551

Ottawa, Ontario, December 3, 2019

PRESENT:  The Honourable Mr. Justice Campbell

BETWEEN:

NILUFAR SULTANA, MOHAMMED KAIYUM, KARIMA KAIYUM AND JUBAIR KAIYUM

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

[1]  The present Application is a judicial review of a Pre-Removal Risk Assessment (PRRA) dated February 27, 2019 (the Decision), in which a Senior Immigration Officer (the Officer) denied the Applicants’ PRRA.

[2]  The Applicants are a family of citizens of Bangladesh consisting of a wife (the Principal Applicant), her husband (the Co-Applicant), and their two minor children. The Co-Applicant claims that he was harassed and attacked in 1993 by an individual named Sultan Shiekh (Shiekh), the vice president of a cricket club, and his followers, after the Co-Applicant made a public complaint against Shiekh’s illegal activities.

[3]  The Applicants made an asylum claim in the U.S. in 1993, the result of which is unknown. They returned to Bangladesh in January 2006 to visit the Co-Applicant’s ill father, went back to the U.S. in March 2006, and then entered Canada in August 2017. The Applicants were denied by the Refugee Protection Division (RPD), and their application for leave for judicial review was dismissed.

I.  The Decision

[4]  In their PRRA application, the Applicants claimed a new risk based primarily on new evidence of a false case brought against the Co-Applicant in June 2018. A key piece of new evidence (CTR, pp. 67-68) was a document here named “The September 15, 2018 Document” which appears in the Appendix to these reasons, together with an English translation.

[5]  The following is a critical passage from the Decision. The emphasized sentences had a strong detrimental impact on the Applicants’ claim:

As mentioned previously, I note that the applicants have adduced a copy of the Arrest Warrant with respect to a "false case" made against the male applicant in June 2018. I note a few points with respect to this document as well as others adduced pertaining to the most recent "false case” filed against Mr. KAIYUM. Firstly, as IRB report BGD105614.E states, while the accused and/or his/her legal representative "may obtain a copy of the order [which authorizes] the issuance of a warrant of arrest" a copy of the actual arrest warrant cannot be obtained by the accused or his/her lawyer. From submissions, I note that the applicants' lawyer in Bangladesh, Anis AHMED, states that he was able to obtain police and court documents, including arrest warrants. I find that the applicants have provided no explanation as to how their legal representative in their home country would have been able to obtain copies of arrest warrants pertaining to the male applicant, when the documentary evidence indicates that only the police would have access to this type of document. Furthermore, the same report states that "arrest warrants exhibit the seal of the court, memo number, date of issuance, and the signatures of the "Present Officers" (POs) of the court (18 Aug. 2016)." I note that the copy of the Arrest Warrant dated September 5, 2018 does not appear to possess an official seal of the court. Thus, I find that the above considerations detract from the reliability of the copy of the Arrest Warrant dated September 5, 2018. I therefore assign this document minimal weight in this application, given the above considerations.

(Decision, CTR at p. 15)

[6]  With respect to the Officer’s conclusion that the September 5, 2018 Document was an “arrest warrant” instead of the order authorizing the issuance of an arrest warrant, the Officer apparently identified the title of the document as more important than the contents. The title of the document is “Arrest Warrant”, whereas the following passage from its contents leads to the conclusion that the document is an order:

You are being ordered to arrest these accused and bring them in front of the court and do no error to it.

(See Exhibit A – The September 5, 2018 Document)

[7]  As a result, I find that the Officer’s conclusion was made in error of fact.

II.  Conclusion

[8]  The Officer’s error of fact had a significant impact on other features of the Decision.

[9]  First, the finding in paragraph 5 above that the “applicants have provided no explanation” introduced an erroneous inference of negative credibility.

[10]  Second, the erroneous inference resulted in the allocation of “minimal weight” to the September 5, 2018 Document as an expression of doubt as to the authenticity of the Document. As stated by Justice Ahmed in Oranye v. Canada (Minister of Citizenship and Immigration), 2018 FC 390 at paragraph 27, this form of decision-making is unacceptable:

Fact finders must have the courage to find facts. They cannot mask authenticity findings by simply deeming evidence to be of "little probative value." As Justice Mactavish so rightly put it in Sitnikova v. Canada (Citizenship and Immigration), 2017 FC 1082 (F.C.) at para. 20, which I will reproduce in its entirety:

This Court has, moreover, previously commented on the practice of decision-makers giving "little weight" to documents without making an explicit finding as to their authenticity: see, for example, Marshall v. Canada (Citizenship and Immigration), 2009 FC 622 at paras. 1-3, [2009] F.C.J. No. 799 and Warsame v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1202, at para. 10. If a decision-maker is not convinced of the authenticity of a document, then they should say so and give the document no weight whatsoever. Decision-makers should not cast aspersions on the authenticity of a document, and then endeavour to hedge their bets by giving the document "little weight". As Justice Nadon observed in Warsame, "[i]t is all or nothing": at para. 10.

[11]  And third, the Officer’s errors led to the rejection of the Applicants’ evidence effectively on the basis of an unsupported negative credibility finding:

Given all of the above and the evidence before me, I am unable to conclude that there is an active arrest warrant against the male applicant and/or his family members, or that he or his family members have been convicted and sentenced in Bangladesh. I am unable to conclude, from the information before me, that the police in Bangladesh are currently interested in the male applicant. There is little further independent and objective evidence on file that would persuade me to conclude that the applicants would face a

personalized risk of serious harm upon return to their home country.

(CTR at p. 16)

[12]  For these reasons, I find the decision under review is unreasonable.

JUDGMENT IN IMM-2300-19

THIS COURT’S JUDGMENT is that the decision is set aside and the matter is referred back for determination by a different decision-maker.

There is no question to certify.

"Douglas R. Campbell"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-2300-19
STYLE OF CAUSE:	NILUFAR SULTANA, MOHAMMED KAIYUM, KARIMA KAIYUM AND JUBAIR KAIYUM v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	November 20, 2019
JUDGMENT AND REASONS:	CAMPBELL J.
DATED:	DECEMBER 3, 2019

APPEARANCES:

Steven Charles Sumeya Mulla	For The Applicants
Melissa Mathieu	For The Respondent

SOLICITORS OF RECORD:

Waldman & Associates Barristers and Solicitors Toronto, Ontario	For The Applicants
Attorney General of Canada Toronto, Ontario	For The Respondent