Date: 19980820
Docket: IMM-3951-97
BETWEEN:
MUKHTAR AHMED CHAUHDRY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Monday, August 17, 1998)
WETSTON, J.:
[1] The first issue is with respect to whether or not there was sufficient notice. In considering this point I have reviewed the authorities in advance of this hearing, and I appreciate the additional references and comments with respect to those authorities. The issue of what constitutes sufficient notice in these types of cases is somewhat problematic, but I find in this case that the applicant had sufficient opportunity to address the issue of an IFA as he was notified at the pre-hearing conference.
[2] So, Mr. Barker, on that point I cannot accept your argument that the applicant did not have sufficient notice. Kaler v. M.E.I. (1994) 73 F.T.R. 217.
[3] Now the second point, in my view, is a more difficult point from the perspective of whether or not there was an error which should result in this Court setting the decision aside and sending it back to another board for re-hearing and reconsideration. With respect to the second point, I have reviewed the Saini decision (Saini v. M.E.I. 151 N.R. 239 CRCA) and Sharbdeen, (MEI v. Sharbdeen 1994 FCJ No. 731) and also of course the traditional authorities of Rasaratnam v. MEI (1992), FC 706 (RCH) and Thirunavakkarasu v. Canada (MEI) (10 NOV 93) A-81-92, the decision of Mr. Justice Linden in the Federal Court of Appeal. The finding of an IFA obviously involves two branches; the first one is whether there is a reasonable chance of persecution outside of this local region which I believe is central to the problems that have been faced by the aplicant in this case. The second branch is whether or not it is reasonable in his personal circumstances even if there is another location in Pakistan to which the applicant could flee. In my view, upon examining the reasons for the decision and the record before the board, which is not an extensive record, I do not agree that the finding of the board in this case can be supported on the evidence. The finding of an IFA in this case is simply too speculative and cannot simply be resolved by reference to the principle that the applicant has the onus of proof.
[4] The onus of proof obviously can be relied on in cases such as this for certain pruposes, but there is such a paucity of evidence in this case that the finding of the existence of an IFA outside the lcoal region is, in my view, entirely speculative.
[5] On that basis I would set aside the decision and return it to another panel for re-hearing and reconsideration. I have asked counsel whether or not there are any questions as to certification, and you both agreed there was not.
"Howard Wetston"
Judge
Toronto, Ontario
August 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3951-97
| STYLE OF CAUSE: MUKHTAR AHMED CHAUDRY |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY, AUGUST 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: MONDAY, AUGUST 17, 1998
APPEARANCES:
Mr. Douglas Barker
For the Applicant
Ms. Susan Nucci
For the Respondent
| SOLICITORS OF RECORD: Raymond & Honsburger |
Barristers & Solicitors
17th Floor
65 Queen Street West
Toronto, Ontario
M5H 2M5
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980820
Docket: IMM-3951-97
Between:
| MUKHTAR AHMED CHAUHDRY |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER