Misbah v. Canada (Minister of Citizenship and Immigration)

Misbah v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2006-08-02
Neutral citation
2006 FC 949
File numbers
IMM-6356-05
Notes
Digest
Decision Content
Date: 20060802
Docket: IMM-6356-05
Citation: 2006 FC 949
Ottawa, Ontario, August 2, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MOHAMMED MISBAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant is a 40-year-old male citizen of Bangladesh whose refugee application, based on political opinion, support and membership in the Awami League, was denied by the Immigration and Refugee Board (Board). This is the judicial review of the Board’s decision.
[2] The Applicant claimed he feared persecution from the opposing political parties, the BNP and the Jamaat-e-Islami. He said that he joined the League in August 2001, became an executive member of his branch in June 2002 and was appointed Secretary of Youth Affairs in January 2004.
[3] The Board’s conclusion was that the Applicant’s claim lacked credibility. In particular, the Board drew negative inferences from his failure to file corroborating documents.
[4] The Board’s findings on credibility are subject to the patent unreasonableness standard of review in respect of acceptable documentation. (See P.K. v. Canada (Minister of Citizenship and Immigration), 2005 FC 103, [2005] F.C.J. No. 130 (QL))
[5] The Court will not substitute its opinion for that of the Board. The only substantive issue in this judicial review is in relation to the refusal to admit a certain document filed less than 20 days before the Board hearing.
[6] The Applicant attempted to admit a letter of August 22, 2005 from the Awami League of Canada as to the Applicant’s political activities.
[7] In particular, the letter attempted to address inconsistencies between the Applicant’s Personal Information Form (PIF) and letters filed earlier. The notable prior inconsistencies included conflicting statements as to whether the Applicant was a member of Ward 38 or Ward 45, and whether the Applicant joined the League in Canada either “just after entering Canada” (he entered September 2004), on August 20, 2005 or earlier than August 20, 2005.
[8] The August 22, 2005 letter, which the Applicant attempted to have admitted, was rejected by the Board under Rule 30 of the Refugee Protection Division Rules which reads:
30. A party who does not provide a document as required by rule 29 may not use the document at the hearing unless allowed by the Division. In deciding whether to allow its use, the Division must consider any relevant factors, including
(a) the document's relevance and probative value;
(b) any new evidence it brings to the hearing; and
(c) whether the party, with reasonable effort, could have provided the document as required by rule 29.
30. La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser celui-ci à l'audience, sauf autorisation de la Section. Pour décider si elle autorise l'utilisation du document à l'audience, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) la pertinence et la valeur probante du document;
b) toute preuve nouvelle qu'il apporte;
c) si la partie aurait pu, en faisant des efforts raisonnables, le transmettre selon la règle 29.
[9] The Board held:
At the outset of the hearing, the claimant attempted to introduce a letter allegedly from the Toronto branch of the Awami League and dated just days before the hearing. The claimant was examined by his counsel with respect to his reasons for failing to produce this letter in a timely way. The claimant’s explanation raised serious questions about the reliability of the information contained in the letter. More seriously, the claimant’s testimony with respect to the date he joined the local branch and activities he allegedly performed as a member was inconsistent with the information in the letter. In the circumstances, I declined to admit the letter both because the claimant might have produced it in a timely manner and because it was obviously so unreliable.
[10] The Applicant says that the Board only considered factors (a) and (c) of Rule 30 and that the Board is required to consider all three (3) of the Rule 30 factors.
[11] On this latter point, the Applicant is correct, as held by O’Keefe J. in S.B. v. Canada (Minister of Citizenship and Immigration), 2005 FC 791, [2005] F.C.J. No. 985 (QL). On the former point, the Applicant must fail.
[12] The Board did consider “any new evidence it brings to the hearing”. Read as a whole, the quotation cited above shows that the so-called new evidence would bring inconsistencies with the Applicant’s testimony. The conclusions as to unreliability could only be reached on the basis of considering what the new evidence would bring to the hearing.
[13] In considering Rule 30, the Court was struck by the difficulty in the wording of Rule 30, particularly factor (b). It is somewhat circular to decide whether to admit evidence by first considering the evidence that it brings to the hearing. The Board may wish to consider this Rule and whether factor (b) is useful and whether the Board is concerned more about a “new matter or new issue”.
[14] Lastly, the Board did have regard for the psychological evidence of Dr. Pilowsky, both as to what this letter evidence said and also what it did not say.
[15] Therefore, this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
“Michael L. Phelan”
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6356-05
STYLE OF CAUSE: MOHAMMED MISBAH
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 12, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Phelan J.
DATED: August 2, 2006
APPEARANCES:
Mr. Micheal Crane
FOR THE APPLICANT
Mr. Ian Hicks
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. MICHEAL CRANE
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
MR. JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT