Date: 20020213
Docket: IMM-5925-00
Neutral citation: 2002 FCT 162
Ottawa, Ontario, the 13th day of February 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
HABIB RASHAD ABOUBACAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Aboubacar claims to be a 32 year old citizen of Niger who has a well-founded fear of persecution in Niger due to his political opinion. He brings this application for judicial review from the October 23, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which determined that he is not a Convention refugee, and that there is no credible basis for his claim.
[2] Mr. Aboubacar testified that he was politically active and became involved as second-in-command in a plot to overthrow the government of Niger. He said that the authorities became aware of the plan and that several conspirators were arrested. Mr. Aboubacar stated that he fled Niger for his life and that he came to Canada seeking refuge.
THE CRDD'S DECISION
[3] The CRDD expressed serious concerns over Mr. Aboubacar's personal identity. It concluded that the absence of any reliable identity documents, together with Mr. Aboubacar's lack of credibility, resulted in insufficient credible evidence upon which the CRDD could conclude that Mr. Aboubacar is who he claims to be, or is from Niger.
[4] Mr. Aboubacar provided a Niger identity card to Citizenship and Immigration Canada which was forwarded to the RCMP for forensic examination. The resultant forensic report indicated that the results were inconclusive regarding authenticity and alteration, but stated that the card had the characteristics of a counterfeit document. Based on that report the CRDD found that Mr. Aboubacar's identification card was a fraudulent document, and afforded it no evidentiary weight. The CRDD held that in providing this document, Mr. Aboubacar's credibility had been seriously undermined in relation to both his personal identity and his overall credibility.
[5] Six days before the hearing Mr. Aboubacar's counsel filed a birth certificate document entitled "Extrait du registre des jugements suppletifs d'acte de naissance". The CRDD found that Mr. Aboubacar's explanation as to how this document was obtained was highly dubious. The CRDD also drew a negative inference from the filing of the document only days before the hearing. Based on that, and its prior conclusion that Mr. Aboubacar had provided a false identity card to establish his identity, the CRDD gave this second document no weight.
[6] The CRDD found a discrepancy in Mr. Aboubacar's various responses regarding his siblings. While in other respects Mr. Aboubacar's oral advice regarding his identity was largely consistent with that provided in his Personal Information Form ("PIF"), the discrepancy with respect to his siblings was said by the CRDD to cast further serious doubt on Mr. Aboubacar's personal identity.
[7] The CRDD found Mr. Aboubacar's allegations about the plot to overthrow the government in Niger were not credible because he was unable until late in his testimony, after repeated questioning and a break, to provide any detailed testimony as to how the plan was to be carried out. The CRDD also expressed serious doubts, due to a lack of detail and the fact that the entire scenario did not "ring true", about the existence of the revolutionary organization Mr. Aboubacar said he belonged to.
[8] In the result, the CRDD found that there was insufficient credible or trustworthy evidence upon which to make a finding that Mr. Aboubacar is a Convention refugee, and that there was no credible basis for his claim.
[9] The CRDD went on to find that, even if it were to accept that he is Hausa and a citizen of Niger, there is no reasonable chance Mr. Aboubacar would face persecution by reason of his Hausa ethnicity. The CRDD noted that the Hausa are in the majority of the population, and there was an absence of evidence to indicate that they are victims of societal or official discrimination as the dominant ethnic group in Niger.
THE ISSUES
[10] On Mr. Aboubacar's behalf it was asserted that the CRDD erred:
i) in substituting its opinion for that of the RCMP forensic laboratory so as to conclude that the identity card was a fraudulent document;
ii) in drawing a negative inference with respect to the birth certificate on the basis of its late production, particularly where no objection was taken to the admission of the document as an exhibit at the hearing and Mr. Aboubacar was not asked for an explanation for the delay in producing the document;
iii) engaging in a "nitpicking" exercise with respect to the remainder of the CRDD's credibility concerns; and
iv) determining that there was no credible basis for the claim without raising this issue in the screening form, or at any time during the hearing.
ANALYSIS
(i) Standard of Review
[11] The CRDD is the trier of fact and has jurisdiction to determine the credibility and weight of evidence.
[12] Paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 provides that:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. ... (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ... (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande. ... (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: ... d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
|
[13] This equates to a standard of review of patent unreasonableness with respect to findings of fact.
(ii) The Identity Card
[14] The RCMP's forensic report of the examination of Mr. Aboubacar's national identity card stated that the results were inconclusive with respect to both authenticity and alteration. However, under the heading "Remarks", the report stated:
AUTHENTICITY
1. Exhibit Q-1 is a make up of two color copies which has [sic] been glued together back-to-back to form the document. The booklet is very poorly produced and assembled, and shows characteristics generally found in counterfeit documents.
2. Exhibit Q-1 has been produced by a Xerox photocopier. To this date, Xerox USA was unable to provide the date and location to which the Xerox Copier was shipped.
ALTERATION
3. Exhibit Q-1 has not been altered.
4. There is evidence that the original document from which Q-1 was produced has been retouched. Residual lines and broken linework are indicative of retouching (CHART ATTACHED).
[15] In the chart attached to the forensic report, magnified images confirmed that the document was comprised of two Xerox coded color photocopies glued back-to-back, and that there were residual lines in the data indicative of retouching of the original.
[16] It was argued on Mr. Aboubacar's behalf that the CRDD erred by failing to quote in its reasons that portion of the report which stated that the examination was inconclusive as to authenticity and alteration, and that the CRDD erred by making a finding of fraudulence when the RCMP forensic laboratory failed to make such finding.
[17] In considering this finding of fact it is important to remember that only where evidence viewed reasonably is incapable of supporting a tribunal's findings will a finding of fact be patently unreasonable. See: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at paragraph 85.
[18] The forensic report stated that there was evidence that the document used to produce the identity card had been retouched, and that the identity card showed characteristics generally found in counterfeit documents.
[19] It is for the CRDD to determine the weight to be given to expert evidence such as the RCMP forensic report. In view of the above quoted statements in the forensic report the CRDD's decision to afford no weight to the identity document cannot be said to be so unsupported by the evidence as to be patently unreasonable.
[20] To the extent that Mr. Aboubacar relied upon the decision of Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (F.C.T.D.) to the effect that identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise, the forensic report was evidence capable of proving otherwise.
(iii) The Birth Certificate
[21] Mr. Aboubacar's counsel provided this document to the CRDD under cover of a letter which stated:
In reviewing this file today, I realised that I inadvertently failed to send in these documents previously. My apologies for the delay.
[22] In that circumstance, Mr. Aboubacar argued that the CRDD erred in drawing a negative inference from the late production of the document, particularly in circumstances where the CRDD made no mention of counsel's letter in its reasons, raised no objection to the document being tentered as an exhibit, and did not ask Mr. Aboubacar for any explanation for the delay in providing the document.
[23] In my view, the CRDD ought not to have disregarded a lawyer's explanation for the late filing.
[24] However, this was not the only basis on which the CRDD decided to give no weight to the birth certificate. The CRDD also found Mr. Aboubacar's explanation as to how he obtained the document to be highly dubious, and considered that Mr. Aboubacar had provided another false identity document.
[25] As the evidence was capable of supporting the latter two conclusions I do not find the CRDD's error in not referring to counsel's explanation to be a reviewable error. I am persuaded that even without having regard to the late filing of the birth certificate the CRDD would have disregarded it, and that there was a proper basis in the evidence to support that.
(iv) The Balance of the CRDD's Credibility Concerns
[26] The balance of the CRDD's credibility findings did not all flow from its concerns over the genuineness of the identity card. Rather they were based on:
i) a discrepancy between Mr. Aboubacar's testimony concerning his siblings; and
ii) a lack of details about the revolutionary group Mr. Aboubacar was involved in and its plan to overthrow the government.
[27] Mr. Aboubacar stated in his PIF that he had no brothers and one sister.
[28] In the port of entry notes Mr. Aboubacar is recorded as providing the name of one brother and no sister.
[29] At the hearing Mr. Aboubacar stated that he had a sister, and in response to question as to whether he had a brother stated that in his culture the word brother could refer to a cousin. Thus, Mr. Aboubacar explained that his prior reference in the port of entry notes to a brother was in fact a reference to his cousin.
[30] This explanation, however, fails to deal with the contradictory answers Mr. Aboubacar gave about whether or not he had a sister.
[31] It was not therefore patently unreasonable for the CRDD to conclude that such discrepancy cast further doubt on Mr. Aboubacar's personal identity.
[32] As for the CRDD's characterization of Mr. Aboubacar's evidence about the revolutionary group and its plans, in direct examination Mr. Aboubacar's testimony was as follows:
Q: In your narrative you referred to a big meeting. What was a big meeting for?
A: It's Sunday meeting. The final -- a final meeting to decide to make a decision what we're going to do.
Q: What was the decision?
A: The decision was we're going to - from here we're going to go and then overthrow this guy.
Q: And how did you plan to do that?
A: He didn't like us, the Hausa people, and all the people around him, he couldn't find one Hausa person amongst his close people.
Q: No, I'm trying to find out from you what was part of the plans that your group had to take out the president. How were you going to take him out?
A: We didn't intent [sic] to kill him, we tried to get a hold of him and lock him up somewhere. And not just him, we also intended to arrest some of the guys around him, some of his aides around him too, and lock them all up.
Q: So how were you going to do that?
A: Well we had our little plan.
[33] In response to questions from the Board Mr. Aboubacar testified:
Q: Could you tell me a bit more about what happened at the meetings that you held.
A: We talk about a lot of things happening in the country.
Q: Like what?
A: We talk about the little opportunities - like this people don't like this people because of - they're from this tribe or that tribe and this tribe, and there are very little opportunities that each tribe will have based on whether they like you or they don't like you. There's a lot of fighting going on, tribal fighting.
Q: Anything else?
A: And nobody seems to be happy. Everybody is educated.
Q: Could you tell me a bit more about the group's plans to overthrow the government. How was this going to happen?
A: See where I come from, if you plan to do something, have an intention to do something, once you start it you've got to execute it and finish it up.
Q: But how did you plan or intend to do this?
A: We knew our own little - we have our own little plan out there.
Q: Well, tell us abut the plan.
A: We had planned that we were going to go there at night one day and then get him by surprise and to arrest him. And then the leaders and elders of our tribe, that totally supportive and were strongly behind us and supporting us financially and otherwise.
Q: Did the president have his own security personnel?
A: Yes, he did have his personal security.
Q: How did you plan to get around these people in order to -
A: There's a lot of distrust and sabotage over there. It is very easy to work on those things. For instance, the previous one who was overthrown, he was betrayed by his own people. It is very easy to actually infiltrate and help people to betray their -- they guy they are supposed to take care of.
Q: Is there anything else you would like to tell me about your role in the Young Men's Group that you haven't had a chance to tell me yet?
A: I was a very key member of the group because it was in my house that all these meetings took place, and it was in my room that we all have to sit around and talk about stuff like that.
Q: Anything else you want to tell me?
A: We have these meetings in my house, in my room, and we take (inaudible) everybody should keep this as tight as possible. So everybody knows me as the person who is like one of the big leaders, planners of the whole thing.
[34] After a break, in re-direct examination Mr. Aboubacar's testimony was:
Q: And how were you going to execute your plan? How were you going to carry out your plan?
A: We have a lot of inside information from the security guys around the president, and we had a lot of information and we had actually infiltrated security, and we had some of them actually working for us, you know. So we were hoping to use them to let us know -- tell us exactly. So this we was able to infiltrate. They give us all the information about the head of state; how many people are around him at night, when he's going to sleep, what is the security arrangement, we knew all this information. So it gave us a very good idea of what to do. So we planned that at night. We knew exactly what we were going to tackle to try to get him.
So with this information we intended to take them by surprise because we had the inside information about a security network around him. But somehow it leaked out and we couldn't execute our plan. So in that case we all had to scatter and run because it was like a spur of the moment thing; everybody goes away, runs away.
[35] The conclusion of the CRDD that Mr. Aboubacar was unable to give details of the plot to remove the president from power in a detailed and spontaneous way is supported by the evidence, both as set out above and as a whole. It was open to the CRDD reasonably to conclude that Mr. Aboubacar's account of the alleged plot was not credible.
[36] After reviewing the transcript of Mr. Aboubacar's testimony in its entirety, together with his PIF, I am similarly satisfied that the CRDD's conclusion that Mr. Aboubacar was unable to provide detailed testimony as to how the revolutionary group functioned was supported by the evidence.
(v) The Failure of the CRDD to Raise the Issue of No Credible Basis
[37] The issue of a lack of credible basis for Mr. Aboubacar's claim was not raised as an issue during the hearing by the CRDD, nor was it raised in the screening process. Therefore, Mr. Aboubacar argued that he was afforded no opportunity to address this issue in order to show why a finding that there was no credible basis for his claim was not appropriate. Mr. Aboubacar submitted that as a matter of fundamental justice, notice ought to have been given at the conclusion of the evidence or during submissions once the CRDD recognized that a no credible basis finding might result.
[38] I find this submission to be without merit. In Mathiyabaranam v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1676, the Federal Court of Appeal wrote at paragraphs 9 and 10 that:
The question to be decided, then, is whether specific notice must be given to a claimant before the Board may make a finding of no credible basis at the end of the hearing to decide Convention refugee status. There is no express statutory requirement to give any extra notice of this matter. Any such requirement to give notice, therefore, must be based on the natural justice right that a person has to know the case to be met [See Note 9 below] in an administrative proceeding affecting his or her interests. In my view, as I shall explain, there is no right to receive any extra notice about the possibility of a finding of no credible basis. Hence, there has been no violation of natural justice in this situation.
Any claimant is aware or should be aware of the risk of a no credible basis finding even without any additional notice being given about this potential outcome. A refugee claimant must realize that he or she must establish, as part of his or her claim, a credible basis for his or her claim. You cannot establish a claim for refugee status without first establishing a credible basis for that claim; the one is totally dependant upon and included in the other. I cannot imagine what a claimant, if given special notice, could possibly add to his or her case. All of the available evidence should already have been placed before the Board as part of the claim for refugee status.
[39] Mr. Aboubacar argued that Mathiyabaranam was decided before the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and that its outcome would be different as a result of the decision in Baker, particularly in light of the importance the Supreme Court of Canada gave to the significance of a decision upon an applicant.
[40] However, in Baker, the Supreme Court of Canada noted that the duty of fairness is contextual and that at the heart of the analysis is whether, considering all of the circumstances, an individual was afforded a meaningful opportunity to present his or her case fully and fairly.
[41] This was the very issue the Court of Appeal directed itself to in Mathiyabaranam, and in my view nothing in the Baker decision casts doubt on the Court of Appeal's analysis. A credible basis determination is inherent in the definition of Convention refugee which requires a claimant to establish on credible evidence a well-founded fear of persecution.
[42] A claimant has no evidentiary burden separate from, or additional to, the obligation to establish on credible evidence the existence of a well-founded fear of persecution.
[43] To the extent that Mr. Aboubacar stressed the profound significance upon him of the finding of no credible basis and urged that this expanded the duty of fairness, I note that in Mathiyabaranam, the Court of Appeal was very mindful of the considerable importance to a claimant of a finding of no credible bases. The Court specifically dealt with this at paragraph 2 of its reasons. This issue has, therefore, been considered.
[44] For these reasons, the application for judicial review will be dismissed.
[45] Counsel for Mr. Aboubacar sought certification of a question as to whether in the light of the ruling of the Supreme Court of Canada in Baker, supra, there is an onus on the CRDD to invite submissions on the issue of no credible basis after hearing the evidence, but prior to making a decision that no credible basis exists.
[46] In view of the extensive analysis of the Federal Court of the Appeal in Mathiyabaranam, supra, I find the law on this point to be well-settled and no serious issue arises as to the importance of the Baker decision. Therefore no question will be certified.
ORDER
[47] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5925-00
STYLE OF CAUSE: HABIB RASHAD ABOUBACAR v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 29, 2001
REASONS FOR ORDER AND ORDER of The Honourable Madame Justice Dawson DATED: February 13, 2002
APPEARANCES:
Ms. Roxanne Hanniff-Darvvent FOR THE APPLICANT
Mr. Brad W. Hardstaff FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Roxanne Hannif- Darwent FOR THE APPLICANT Barristers & Solicitors
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada