Date: 20010614
Docket: IMM-4482-00
Neutral Citation: 2001 FCT 639
Between:
MOHAMED KAISER KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated August 8, 2000, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant, a 29-year-old citizen of Pakistan, claims to have a well-founded fear of persecution in that country on the grounds of political opinion and religion (Ahmadi sympathizer or convert). The Board dismissed the applicant's claim essentially because it did not believe that he was a Pakistan People's Party (PPP) activist who sought to bring Ahmadi voters to support the PPP. It also did not believe that an arrest warrant had been issued against him in Pakistan nor that the applicant was at risk of persecution in Pakistan, either for his political views or because others believe him to be an Ahmadi convert or sympathizer.
[3] The applicant's main argument is that the Board breached natural justice by relying on evidence which it failed to disclose to him before the hearing or documentation which was not properly in evidence.
[4] In Nrecaj v. Canada, [1993] 3 F.C. 630, at page 636, Gibson J. determined that the ability of a claimant to Convention refugee status "to make full answer and defence" to evidence adduced against his or her claim or to impeach his or her credibility necessarily entails the right to disclosure of all documentary evidence to be used at the hearing by the refugee hearing officer. At page 638, Gibson J. further provides that: "(t)o adequately meet the test of fairness, disclosure must be timely. It must be sufficiently timely to allow counsel to fully and effectively fulfill his or her role and to allow the party requesting disclosure to prepare." (See also De Yanez v. Secretary of State (February 17, 1994), IMM-1711-93 (F.C.T.D.).)
[5] In the case at bar, counsel for the applicant requested disclosure on two separate occasions, however, the Board only disclosed the evidence in question after it had been used to cross-examine the applicant. The applicant did not have a chance to review the evidence and prepare to meet the case against him.
[6] The five Responses to Information Requests were put into evidence as exhibits 9.1 to 9.5, while the attachments to these responses were neither disclosed to the applicant, nor were they ever put into evidence. Nevertheless, the Board relied on one of these attachments, The News International [Karachi] n.d. "Successful Candidates of National Assembly in Elections 97", to impugn the credibility of the applicant. At the hearing before the Board, the applicant objected twice to the use of the attachment in question.
[7] I am of the view that the documentary evidence at issue and the contradiction in the applicant's testimony that it was used to establish was significant enough to the Board's decision to cause me to have serious concerns as to whether, without the use of the evidence and the establishment of the particular contradiction, the decision would have been the same. Further, I am not certain that the Board would have gone as far as it did when it determined that there was no credible basis to the applicant's claim pursuant to subsection 69.1(9.1) of the Act.
[8] Given these circumstances, I consider that the intervention of this Court is justified. The application for judicial review is allowed, the impugned decision is set aside and the matter is remitted for rehearing by a differently constituted panel. In light of the above result, the questions proposed by the applicant for the purpose of certification need not be certified.
JUDGE
OTTAWA, ONTARIO
June 14, 2001