Date: 20040322
Docket: IMM-689-03
Citation: 2004 FC 425
Ottawa, Ontario, March 22, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
US SAQIB NAJAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Us Saquib Najam ("Applicant") seeks judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), reasons dated January 8th, 2003. In that decision, the Board found the Applicant not to be a Convention refugee nor a person in need of protection.
ISSUES
[2] Is the Board's decision to deny protection on the basis of the Applicant's failure to prove his identity patently unreasonable?
[3] For the reasons below, I will answer in the negative to the question and I will therefore dismiss this application.
FACTS
[4] The Applicant is a citizen of Pakistan. He fears that he will be persecuted should he return to his country by reason of his political opinion.
[5] The Applicant alleges that he was an active member of the Jammu Kashmir Peoples National Party. For this reason, he says he was threatened and attacked by members of the Muslim Conference and Hizbul Mujahideen.
[6] He further alleges that he was illegally arrested and detained by the police who abused and threatened him and told him to stop his political activities.
[7] Ultimately, the Applicant decided to flee his country. He left Pakistan on August 26th, 2001. After having transited through the United States, he arrived in Canada on August 27th, 2001 and made a claim for refugee status.
CONTESTED DECISION
[8] In its decision rendered January 8th, 2003, the Board concluded that the Applicant was not a Convention refugee nor a person in need of protection as he had failed to establish his identity. The Board based its decision on the following facts, summarized by the Respondent as follows.
[9] The Applicant filed a birth certificate issued in May 2002. However, he did not file the birth certificate that was issued at the time of his birth in 1979. At the hearing, the Applicant testified that his parents were in possession of his original birth certificate issued in 1979. However, when he was asked why he did not ask his parents to send him this birth certificate, he initially answered that he only needed a birth certificate in the year 2002. When asked the same question a second time, he said he did not have much experience in obtaining documents. He then contradicted himself by saying that he did not believe his parents were, in fact, in possession of his 1979 birth certificate.
[10] At the hearing, the Applicant filed a duplicate National Identity Card (duplicate NIC). He testified that his original NIC had been seized by Canadian Immigration authorities. The Applicant was confronted with the fact that his duplicate NIC did not bear the Urdu phrase, that translated into English reads, "Free Government of the State of Jammu and Kashmir". The documentary evidence clearly established that the National Identity cards issued to residents of Azad Kashmir contain a rubber-stamped inscription consisting of that phrase. The Applicant responded that maybe this phrase could be found on his original NIC, although he had never seen such a phrase.
[11] At the hearing, the Applicant was asked why his duplicate NIC was issued in the district of Mirpur although he was a resident of the district of Bhimber. The Applicant stated that Bhimber did not become a district until 1996. He was then confronted with the fact that his duplicate NIC was issued in 2001. The Applicant then stated that the district of Bhimber did not take over the issuing of NIC cards, which continued to be done by the district of Mirpur. The Applicant was then asked whether the district of Bhimber had a NIC office. He answered in the affirmative. He then went on to say that the district of Mirpur was responsible for issuing National Identity cards although the application forms were available in Bhimber. He then contradicted himself when he stated that the forms were available at the post office but not at a NIC office. When confronted with his contradictory answers about the NIC office, he responded he did not understand the question.
[12] In light of the Board's conclusion that the Applicant's testimony in relation to the documents tendered to establish his identity was confusing and contradictory and that no original identity documents were produced, and in light of the Board's knowledge of the documentary evidence related to false documents from Pakistan, the Board concluded that the Applicant had failed to establish his identity.
ANALYSIS
[13] Section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") reads:
| 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. (my emphasis)
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106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer. (je souligne)
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[14] Section 106 of the Act makes it clear that identity issues go to the credibility of the Applicant. The standard of review in credibility cases being the patently unreasonable nature of the Board's decision, it is logical to conclude that the question of whether the claimant possesses acceptable documentation establishing identity is to be reviewed by this Court only if the Board came to a patently unreasonable finding. That is indeed the view adopted by Joyal J. in Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (T.D.) (QL). In that case, the Board had found the principal claimant not to be credible on the issue of identity. At paragraphs 8 and 9, Joyal J. states:
In refugee claims, the determination of credibility is a question of fact which is within the Board's jurisdiction. Although in the area of plausibility, the unreasonableness of a decision may be more obvious, the Board is still in the best position to gauge the credibility of a claimant. Contradictions or discrepancies in the evidence are accepted bases for a finding of lack of credibility. The Court should not interfere in the Board's conclusion unless it be patently unreasonable.
The Board, in rendering its decision, must respect certain conditions in order to "shield" itself from judicial review. A negative finding of credibility must be addressed in "clear and unmistakable terms", in regards to the totality of the evidence. A claimant must be given an opportunity to explain the contradictions and, in assessing the evidence, the Board must be wary of applying western standards of rationality upon a claimant's particular situation. Nevertheless, it is upon the applicant that rests the burden of demonstrating that the inferences drawn by the Board were unreasonable in regards to the material before it. (my emphasis)
[15] In Thamothampillai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1186 (T.D.) (QL), Dawson J. reaches the same conclusion at paragraph 6:
There is no doubt that the CRDD's finding that the applicants could not establish their respective identities was central to its conclusion on credibility and to the disposition of the claims.
[16] The proof of a claimant's identity is of central importance to his or her claim. I agree with the Respondent that if the identity of the claimant is not proven, the claim must fail; that means the Board need not pursue an analysis of the evidence in relation to other aspects of the claim. As Joyal J. states at paragraph 13 of the Husein, supra decision:
[...] In my respectful view, once the Board had concluded that identity had not been established or that the main applicant had not proven who she allegedly is, it was not necessary for the Board to analyze the evidence any further. Identity was central to the case. The main applicant's failure to prove that she belonged to a persecuted clan effectively undermined any claim of a well-founded fear of persecution.
[17] I will now look at the two identity documents the Applicant provided the Board with, his National Identity Card and his birth certificate.
[18] In relation to the duplicate NIC filed by the Applicant at the hearing, the Applicant argues that he had to rely on a rough copy sent by his family from Pakistan because his original NIC had been seized by Canadian Immigration authorities. He argues that, according to section 36(2) of the Refugee Protection Division Rules, SOR/2002-228 ("Rules"), the Board had a duty to provide him with a true copy of the original at the hearing. Section 36(2) reads:
| (2) On the request in writing of the Division, the Minister must without delay provide to the Division the original of any document mentioned in paragraph 3(2)(c) that is in the possession of an officer.
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(2) Sur demande écrite de la Section, le ministre transmet à celle-ci, sans délai, l'original de tout document mentionné à l'alinéa 3(2)c) qui est en la possession de l'agent.
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[19] The documents mentioned in paragraph 3(2)(c) of the Rules are "identity or travel documents of the claimant and ... any other relevant documents that are in the possession of the officer".
[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.
[21] As for the clearer copy of the Applicant's NIC that he received by fax from his family after the Board's decision was rendered, it includes, he says, the Urdu phrase "Free Government of the State of Jammu and Kashmir". No translation of this document was filed. This clearer copy cannot however be taken into consideration by this Court, as it was not before the Board at the time of the hearing yet was existing at that time. The Applicant was confronted by the Board that the Urdu phrase was missing. He was represented by counsel - no objection was made and no postponement was asked so that he may provide a true copy of his NIC.
[22] Various decisions state that it is not the duty of this Court to examine new evidence that was not before the Board (Asafov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 713 (T.D.) (QL), Arduengo v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 468 (T.D.)). The Applicant argues he was confused and surprised by the questions about the missing phrase on his duplicate NIC. He says he never paid any attention to whether there was such a phrase on his duplicate NIC. That fact and the stress associated with attending at the hearing rendered him unable to reply clearly to the questions. The problem is that there is no evidence in the Applicant's Record that these explanations were given to the Board as reasons for his inconsistent and implausible testimony. Accordingly, these explanations cannot be considered by this Court.
[23] The Applicant argues that his counsel submitted an Information Request that confirmed his evidence to the effect that the district of Bhimber never had a district registration office. However, the Applicant initially testified that the district of Bhimber did have its own NIC office. After a number of questions, he contradicted himself and suggested Bhimber did not have a NIC office. It was reasonable for the Tribunal to be concerned about the contradictory responses of the Applicant.
[24] The Applicant argues he submitted a true copy of his birth certificate that was disregarded by the Board simply because it was issued in 2002. He states it should be noted that Pakistanis are not obliged to have a birth certificate as a means of identity. The problem is that the Applicant did not file any evidence before the Board to support a contention that Pakistanis are not obliged to have birth certificates as a means of identity. Therefore, this explanation cannot be considered at this stage.
[25] Having read the description of inconsistencies and implausibilities referred to by the Board about the Applicant's identity documents, I find it was reasonable for the Board to conclude it could not believe the Applicant was who he said he was and therefore find him not credible. The patently unreasonable standard of review having not been met by the Applicant, I dismiss this application.
[26] The parties declined to submit a question of general importance and none will be certified.
[27]
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question of general importance is certified.
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-689-03
STYLE OF CAUSE: US SAQIB NAJAM v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: March 9, 2004
REASONS FOR ORDER THE HONOURABLE
AND ORDER: MR. JUSTICE BEAUDRY
APPEARANCES:
Viken Artinian FOR APPLICANT
Gretchen Timmins FOR RESPONDENT
SOLICITORS OF RECORD:
Jeffrey Nadler FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec