Date: 20050830

Docket: IMM-883-05

Citation: 2005 FC 1161

Ottawa, Ontario, August 30, 2005

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

MAHAMAT ACHTA ALI

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION L'IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                "[T]he perception that an applicant is not credible on a fundamental element of his claim in fact amounts to a finding that there is no credible evidence sufficient to justify the refugee claim in question"(Satinder Pal Singh v. Minister of Citizenship and Immigration Canada, IMM-3590-95, October 18, 1996, per Pinard J.).

[2]                "If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (Canada (Director of Investigation and Research, v. Southam Inc., [1997] 1 S.C.R. 748, paragraph 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (seeSoutham, at paragraph 79)." Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609.

NATURE OF JUDICIAL PROCEEDING

[3]                This application for judicial review, brought under subsection 72(1) of the Immigration and Refugee Act[1](Act), concerns a decision by the Refugee Protection Division of the Immigration and Refugee Board (Board) dated January 20, 2005. In its decision, the Board found that the claimant, Mahamat Achta Ali, a citizen of the Republic of Chad, did not meet the definition of "Convention refugee" as set out in section 96 or that of a "person in need of protection" as set out in subsection 97(1) of the Act.

FACTS

[4]         The alleged facts, as described by the Board, are as follows. After the death of her father, Mahamat Ali, on April 1, 2000, Youssouf Mahamat, Ms. Ali's paternal uncle, assumed responsibility for her entire family. According to tradition, the uncle became responsible for their upbringing and future.

[5]         In December 2003, Ms. Ali's uncle summoned her to inform her that he had given her hand in marriage to Saleh Tahir, an ethnic Zakawa and a colonel in the Chadian army. Ms. Ali's uncle told her that her fiancé was very rich and had promised to take her on a pilgrimage to Mecca. Ms. Ali burst into tears but did not oppose her uncle's decision because of her upbringing.

[6]         After the announcement of the upcoming marriage, Saleh Tahir began to visit the house, always accompanied by his bodyguards. In January 2004, Mr. Tahir proceeded with improvement work on Ms. Ali's uncle's concession. On February 25, 2004, without Ms. Ali's knowledge, her uncle organized the fathia, the religious union between Mr. Tahir and herself, in the neighbourhood mosque. That same evening, Ms. Ali was informed of the celebration of her marriage and her impending departure for her husband's home. This time, Ms. Ali told her uncle that she did not consent to the marriage and would rather die. On March 4, 2004, Ms. Ali's uncle called her aunts and a few neighbours to prepare Ms. Ali for her move to her husband's home. Ms. Ali was driven directly to a villa in the Sabangali district. Two hours later, her husband appeared and explained that, according to Zakawa tradition, after their religious union, she could not return to visit her relatives until after her first pregnancy.

[7]         On March 20, 2004, Ms. Ali took advantage of her husband's inattention and fled. She went directly to a taxi stand and paid to be driven to Moussoro, her mother's place of birth. On March 24, 2004, Mr. Tahir's bodyguards located Ms. Ali at her grandparents' home and arrived there around midnight. They told her grandparents that they were under orders to return Colonel Tahir's legal wife to N'Djamena, since he had all rights over her. After arguing for some time, Ms. Ali's grandparents told the bodyguards that they were not in agreement and asked them to return the next day in daylight to pick up Ms. Ali. The bodyguards acquiesced. Two hours later, Ms. Ali's cousin, Mahamat Saleh Issa, arrived at the home of Ms. Ali's grandparents. On being informed that Mr. Tahir's bodyguards had come to the house, he said that he would take Ms. Ali to N'Djamena and try to find a way to end her ordeal. Thus, Ms. Ali left Chad fraudulently on May 13, 2004, arrived in the United States the next day and applied for refugee protection at the Lacolle border crossing on May 16, 2004.

IMPUGNED DECISION

[8]         The Board dismissed the claim for refugee protection because of Ms. Ali's dubious identity documents and her lack of credibility.

ISSUE

[9]         Was it patently unreasonable for the Board to conclude that the applicant had not established her identity and lacked credibility?

ANALYSIS

[10]       It is settled law that, on issues of credibility, the Board's error must be patently unreasonable in order for the Court to intervene (Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.),[2] Pissareva v. Canada (Minister of Citizenship and Immigration),[3] Singh v. Canada (Minister of Citizenship and Immigration)[4]). The issue of identity is also assessed according to the patent unreasonableness standard (Gasparyan v. Canada (Minister of Citizenship and Immigration),[5] Najam v. Canada (Minister of Citizenship and Immigration),[6] P.K. v. Canada (Minister of Citizenship and Immigration)[7]).

[11]       Ms. Ali contends that the Board erred in its assessment of her passport and other identity documents (birth certificate, certificate of Chadian nationality, student identity card, her father's death certificate), because the Board rejected the documents without having in its possession the originals or the expert report prepared concerning them. The Court accepts the respondent's opinion that the expert report and the original identity documents were not essential for deciding the case, since a number of other elements that certainly did not require reference to the report or the originals were more than sufficient in order to conclude that the identity documents had no probative value. For example, there were significant differences between the signatures on Ms. Ali's Personal Information Form and on her passport; Ms. Ali's international vaccination card indicated that she had been vaccinated on May 3, 2004, and yet she maintained in her testimony that she had not been vaccinated; Ms. Ali's father's occupation was listed differently in the different documents, for which Ms. Ali could not provide a reasonable explanation; Ms. Ali told the immigration officer at the port of entry that she had not given her brother any documents for the purpose of obtaining her passport, but in the hearing she stated that she had provided her birth certificate and photographs for that purpose. In its reasons, the Board noted numerous other inconsistencies concerning each of the documents submitted by Ms. Ali.

[12]       In addition to the foregoing, it should be noted that it is up to the refugee claimant to establish his or her identity. Accordingly, it was not up to the Board to obtain the expert report concerning the identity documents. On this point, the Court agrees with Beaudry J. in Najam, supra at paragraph 20:

Subsection 36(2) says that the Board may request from the Minister the originals of the documents but there is no positive obligation on the Board to do so. The burden is on the Applicant to prove his case, which would include obtaining the documents necessary to establish his identity.

[13]       Furthermore, there is no evidence on record to show that Ms. Ali objected to the use of photocopies rather than original documents. As a result, it is now too late for Ms. Ali to make that complaint before the Court.

[14]       Apart from the issue of identity problems, the Court notes that Ms. Ali's lack of credibility with respect to her claim in general is not contested in this case.

[15]       Finally, although she provided few details on this point, Ms. Ali contends that the Board failed to consider objective documentary evidence on Chad. There is no requirement to do so when the refugee claimant is deemed not credible (see, for example, Kazadi v. Canada (Minister of Citizenship and Immigration)[8]).

[16]       In summary, the Court is satisfied that the Board was entitled to draw its own conclusions based on the evidence before it and that it did so in an entirely reasonable manner. The Court sees no reason to intervene in the present case.

CONCLUSION

[17]       For these reasons, the Court answers the question in the negative. Consequently, the application for judicial review is dismissed.

ORDER

THE COURT ORDERS that

1.         The application for judicial review be dismissed;

2.         No question be certified.

"Michel M.J. Shore"

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-883-05

STYLE OF CAUSE:                                       MAHAMAT ACHTA ALI

                                                                        v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 MONTRÉAL, QUEBEC

DATE OF HEARING:                                   AUGUST 23, 2005

REASONS FOR HEARING      

AND HEARING:                                           THE HONOURABLE MR. JUSTICE SHORE

DATED:                                                          AUGUST 30, 2005

APPEARANCES:

Michel LeBrun                                                   FOR THE APPLICANT

Sherry Rafai Far                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

MICHEL LeBRUN                                           FOR THE APPLICANT

Montréal, Quebec

JOHN H. SIMS, Q.C.                                      FOR THE RESPONDENT

Deputy Attorney General of Canada