Date: 20040702
Docket: IMM-3106-03
Citation: 2004 FC 927
BETWEEN:
Ejaz AKRAM
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated April 7, 2003, that the applicant is not a Convention refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Ejaz Akram (the applicant) is a citizen of Pakistan alleging that he has a well-founded fear of persecution in his country because of his actual and perceived political opinions. More specifically, he alleges a fear based on his membership in the Pakistan Muslim League and in the Pakistan Muslim League Nawaz Sharif. The applicant also alleges that he is a person in need of protection.
[3] The IRB determined that the applicant was not credible based on the many inconsistencies and implausibilities in his story, and also because his behaviour was inconsistent with his alleged fear.
[4] The applicant submits that the IRB erred in dismissing outright all of the evidence that he had filed before it; he further submits that the IRB's statement to the effect that it is easy to obtain false documents in Pakistan created an appearance of bias. At the end of its decision, the IRB indicated that the cumulative effect of its findings on the applicant's lack of credibility led it to assign no probative value to exhibits P-5, P-6, P-9, P-10 and P-11. The evidence thereby dismissed by the IRB included the First Information Report (FIR), the arrest warrant issued against the applicant and a few letters supporting the applicant's allegations. In my opinion, the IRB erred in dismissing all of these exhibits without further explanations. It is worthy of note that exhibit P-9 is a letter dated December 17, 2002, from an attorney supporting the applicant's allegations regarding the FIR and the arrest warrant issued against him. Exhibit P-10 is the FIR itself and exhibit P-11 is the arrest warrant. Since the IRB found that the applicant was not credible with regard to his allegation that an FIR and a warrant of arrest had been issued against him, the IRB ought to have explained how it reconciled this finding with exhibits P-9, P-10 and P-11. The IRB justified its dismissal of the relevant exhibits by the existence of exhibit A-3 which, it said, indicated that it is easy to obtain fraudulent documents in Pakistan. However, it is impossible to verify the contents of exhibit A-3, as it is only an index of documents in the tribunal record (Aliaj v. Canada (M.C.I.), [2003] FC 1356). In my view, accordingly, given the particular circumstances of this case, by dismissing outright all of the evidence submitted by the applicant and by breaching its duty to include in the tribunal record all of the evidence which it specifically referred to in making its decision, the IRB made serious errors.
[5] Furthermore, the IRB determined that there was a lack of subjective fear because the applicant had waited almost one month before leaving Pakistan. It is true that if the applicant continued to live his everyday life in his village, a one-month period could impair the credibility of his subjective fear. However, it is important to note that for the duration of that month, the applicant was living in hiding in Islamabad waiting for his agent to arrange his departure. The IRB also noted that the applicant did not claim refugee status immediately upon his arrival in Canada on November 22, 2001, but only revealed his intention to claim refugee status on December 6, 2001. The delay in claiming refugee status is sometimes a significant indication that there is no basis for the alleged fear of persecution; in this case, however, it is my opinion that the short delays alleged against the applicant are insignificant and they do not undermine the credibility of his subjective fear.
[6] In my view, all of these errors are sufficient to warrant the intervention of this Court. The decision at issue is therefore set aside and the matter referred to a differently constituted IRB panel for rehearing.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
July 2, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3106-03
STYLE OF CAUSE: Ejaz AKRAM v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 22, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: July 2, 2004
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario