Ottawa, Ontario, March 20, 2006
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") with respect to a decision of Cliff Berry of the Refugee Protection Division (RPD) denying Hiran Mohammad's (Applicant) claim for refugee protection. In its decision dated April 29, 2005 (rendered orally on April 13, 2005 - p. 67 of the tribunal's record), the RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection as per section 96 and 97 of the IRPA.
[2] The Applicant is a citizen of Bangladesh and claims that he fears politically-motivated persecution. He is allegedly a member of the Bangladeshi Jatiya Party (JP).
1. Issues
[3] The issues are the following:
- Did the RPD commit a reviewable error in refusing a last-minute application for new witnesses to be heard on the phone?
- Did the RPD err in fact or in law in assessing the Applicant's credibility?
2. History of the case
[4] Hearings were held prior to 2003 in the presence of member Trudy Shecter (tribunal's record, p. 40 to 45). Another hearing was held on September 13, 2004 where Mr. Cliff Berry of the RPD decided that the matter should be heard de novo as Ms. Shecter was no longer a member of the RPD (tribunal's record, p. 54).
[5] On January 7, 2005, a first hearing was held on the merits, again before member Berry. On January 11, 2005, the Applicant filed a notice of application to re-open this hearing in order for him to provide further evidence (Applicant's record, p. 44). On January 28, 2005, this application was denied and the RPD gave counsel an additional 14 days to make submissions. On February 16, 2005, the Applicant's counsel sent the RPD a letter (tribunal's record, p. 60 - the letter is mistakenly dated February 16, 2004) requesting that an extra delay be granted. This request was allowed on February 21 or 22, 2005 (the date indicated differs on p. 68 and 69), the file was re-opened and a hearing was scheduled for April 13, 2005.
[6] In a last-minute letter dated April 12, 2005 (tribunal's record, p. 65-66), the Applicant Counsel requested that arrangements be made to hear two witnesses over the phone. These witnesses would allegedly help the Applicant to cast doubt on the reliability of the information used by the RPD in reaching its decision. Mr. Berry rejected the application from the bench (tribunal's record, p. 289) during the final hearing held on April 13, 2005. At the same date, the RPD rejected the refugee claim from the bench as well. Written reasons were rendered on April 29, 2005.
3. Impugned decision
[7] The Applicant's was found not to be credible because he submitted documents that were found to be forged. In the RPD's view, the Applicant would not have needed to submit false documents, and would not have tried to mislead the RPD, if he really had an involvement with the JP in Bangladesh.
[8] A letter dated January 22, 2002 was submitted to the RPD to prove that the Applicant was involved in the JP between 1995 and 2001 (tribunal's record, p. 136 and 137). It is signed by a Mr. Shahjahan, President of the Narsingdy District Branch of the JP. It is very short and states that the Applicant has been a member of the JP since January 1, 1995. The RPD determined that the letter was counterfeit. The following was taken into consideration :
- An e-mail of Mr. Philippe de Varennes of the Canadian Mission in Dhaka (tribunal's record, p. 100), dated March 19, 2003 was sent to the RPD. It states that Mr. Shafiqul Islam, President of the JP for the Narsingdy District, confirmed that Mr. Shahjaban is not known to him and that this person did not occupy his position in January 2002;
- A printout of the JP website (and a translation) that was allegedly found on the Internet in August 2004 (tribunal's record, p. 196-197), stating that the President of the Narsingdy District Branch of the JP is Mr. Shahjahan Sajoo;
- The RPD member and the Applicant's counsel called up the same webpage in January 2005 (see tribunal's record, p. 276) and found that the President of the Narsingdy District Branch is Mr. Shafiqul Islam;
- A letter from Sabbir Hossain, Vice-Chairman of the United Kingdom Branch of the JP (tribunal's record, p. 229), indicating that Mr. Shahjaban Sajoo was replaced by Mr. Shafiqul Islam as the President of the Narsingdy District Branch in October 2004;
- A letter dated February 24, 2005 from Mr. Shafiqul Islam (tribunal's record, p. 210-211) confirming that Mr. Shahjaban Sajoo was President of the Narsingdy District Branch from 2000 to October 2004, and that he was a JP candidate in the 2001 election.
[9] The RPD mentioned, in support of its conclusion that the letter dated January 22, 2002 is counterfeit, that it appears from verifications conducted in January 2005 and March 2003 that Shafiqul Islam was the President of the Narsingdy District Branch at both these points in time, which contradicts the version of the Applicant, who alleges that he became President only in October 2004.
[10] The letter dated February 24, 2005 from Mr. Shafiqul Islam was also dismissed for the following reasons:
- The Applicant testified that Mr. Shahjaban Sajoo was President of the Narsingdy District Branch from 1995 until sometime after August, which is inconsistent with the letter dated February 24, 2005 stating that Mr. Shahjaban Sajoo undertook his mandate in 2000 (tribunal's record, p. 210-211);
- Asked about the exact time when Mr. Shahjaban Sajoo took office as President, the Applicant could not say if Mr. Shahjaban Sajoo was or was not the President when he joined the JP in 1995 (tribunal's record, p. 296-297).
[11] Because of its findings on the Applicant's credibility, the RPD rejected the other documents submitted by the Applicant, namely:
- The printout of the JP website (and the translation) allegedly found on the Internet in August 2004 (tribunal's record, p. 196-197);
- The letter from Sabbir Hossain (tribunal's record, p. 229);
- A printout of the Election Commission Secretariat of Bangladesh (ECSB) (tribunal's record, p. 227-228) indicating that Mr. Shahjaban Sajoo was a JP candidate in the 2001 election (this document is not explicitly mentioned in the RPD's decision).
4. Analysis
A. Did the RPD commit a reviewable error in refusing a last-minute application for new witnesses to be heard on the phone?
[12] In the applicant's view, the Board violated the rules of natural justice in denying the last-minute application of the Applicant's counsel for new witnesses to be heard. The two witnesses are:
- a Sub inspector of the Narsingdy Police Station; and
- the School Headmaster of Nuralapur High School.
The Applicant wanted these people's testimony to cast doubts on the seriousness of the verifications conducted by Mr. De Varennes of the Canadian Mission in Dhaka.
[13] According to the transcripts of the hearing, the decision of the RPD is based on two reasons:
- the RPD had no information that these witnesses were prepared to testify from the Canadian Mission in Dhaka;
- these testimonies would not have been relevant to the settlement of the matter.
[14] In a decision also released today, I addressed in detail the issue of the hearing of witnesses before the RPD (Aslani c. Canada(Ministre de la Citoyenneté et de l'Immigration), 2006 CF 351, at para. 18 to 37). In this decision, I relied on the Refugee Protection Division Rules (RPD Rules) and the relevant jurisprudence and found that an administrative tribunal like the RPD should control its own procedures as long as these procedure are compatible with the law, the regulations, the other procedural rules and the principles of natural justice. In addition, I cited Justice Martineau's decision in Farzam v. Canada(Minister of Citizenship and Immigration), 2005 FC 1453, [2005] F.C.J. No. 1776 (F.C.), who raised important questions with respect to the feasibility of a telephone conference before a Court of justice. Even if that case was decided in a judicial context, and did not deal specifically with the powers of an administrative tribunal to hear witnesses over the phone, I concluded that Justice Martineau's concerns were relevant. Finally, I referred to Justice Von Finkenstein's decision in Al-Khaliq v. Canada(Minister of Citizenship and Immigration), 2005 FC 625, [2005] F.C.J. No. 843 to illustrate the importance for the RPD to verify the identity of witnesses prior to their testimony.
[15] Farzam v. Canada(Minister of Citizenship and Immigration), supra, is relevant in the case at bar and Justice Martineau's comments should be adapted to determine whether the decision of the RPD was well founded. In this decision, he examined in detail the principles applicable to the exercise of discretion by a judge to allow witnesses to be heard through telephone conference. At para. 46 to 50, he states:
¶ 46 Keeping in mind that the Plaintiff has raised this alternative, it was up to him to bring satisfactory evidence to the Court that teleconferencing is both feasible from a legal and technical point of view within the time frame of a trial of 12 days starting in Ottawa on October 24, 2005. In this regard, important questions remain unanswered. For instance, who will be the company who will provide the teleconferencing services, at what costs and conditions? At what time of the day in Canada and Iran will this teleconference simultaneously take place? Where will the Iranian witnesses be located? How will the taking of their oral testimonies through telephone be coordinated in view of the fact that counsel have already indicated that the examinations in chief and cross-examinations involve simultaneous translation and may require two days of hearing? Will there be a Court's representative present? How will the room be organized and how will the decorum of the Court be maintained? How will any exclusion order of the witnesses be enforced at trial in the telephone conference facilities in Iran? Since the Iranian witnesses will testify in Farsi, how will the Court deal with the taking of the evidence in Iran? Should a stenographer be also present in Iran to ensure that the questions and answers are properly recorded? Are there special arrangements that need to be taken with the provider of the teleconference services, the Canadian Embassy or the Defendant to assure the presence of the Iranian witnesses and any representatives of the Defendant in Tehran?
[...]
¶ 49 My final concern with the Iranian witnesses' testimonies by telephone or video conference is that of their reliability. In the present case, no evidence was tendered regarding Iranian laws as to administration of an oath and possible ensuing enforcement procedures. It is imperative that a witness who provides evidence in a jurisdiction other than Canada do so under oath in accordance with our laws, as well as in accordance with the local laws. [...] It must be made clear to the Iranian witnesses that they cannot escape responsibility for their actions should they have any thought that helping another member of their family, the Plaintiff in this case, requires some shading of the truth. In these circumstances, assuming that teleconferencing or video conferencing are possible means to take the evidence of the Iranian witnesses, I believe that there should be a member of the Iran legal system, either judge or lawyer present at the local facility to administer the oath and explaining the consequences of perjury to the Iranian witnesses prior to administering the oath. Unfortunately, there is no indication in Plaintiff's affidavit and material that this could be done at this late date since the trial will actually start after the issuance of the present reasons for order and order.
¶ 50 For these reasons, having balanced all relevant factors, the evidence before me fails to satisfy me that the issuance of an order that the evidence of the Iranian witnesses be taken by telephone is in the interest of justice and would secure, at this late date and in the absence of a detailed plan, the just, most expeditious and least expensive determination of the contested issues in this action [my emphasis].
[16] I am fully aware that the judicial and the administrative context are different, and I took this into account. Nevertheless, some standard of formalism should be observed before the RPD. In the matter at hand, the Applicant brought his application by a letter dated April 12, 2005, one day prior to the hearing, and did not provide any indication with respect to the way the phone conference would be conducted. I agree with Justice Martineau that it is for the party who request to call a witness to ensure that the requests are made in a timely manner, and that it is feasible both from a technical and legal point of view and that it is clearly relevant to the issues at stake. In this case, the relevance of the testimonies is doubtful. The proposed witnesses intend to contradict only some elements of Philippe de Varennes's e-mail, and would likely not seriously undermine his professionalism. As an aside, I note, given that the Applicant presented a letter from Mr. Shafiqul Islam, that he did not intend to call this witness or another prominent member of the JP to testify for him. Finally, in the present case, the RPD was concerned about the reliability of the testimonies, and this is not addressed in the Applicant's request. There were no indications in the application that the identity of the witnesses would be verified in any possible manner prior to the hearing. These are legitimate concerns, and the RPD had these in mind in rejecting the Applicant's last minute application.
[17] For these reasons, I am satisfied that the RPD's decision is correct. Also, postponement to make the necessary arrangements in order for the witnesses to be heard was not requested. Therefore, there is no decision to that effect under review.
B. Did the RPD err in fact or in law in assessing the Applicant's credibility?
[18] The standard of review applicable to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4).
[19] The Applicant submits that there is contradictory evidence in the present matter, and that some of the evidence was ignored by the RPD, namely:
- documentary evidence on Bangladesh; and
- a printout of the Election Commission Secretariat of Bangladesh (ECSB) (tribunal's record, p. 227-228) indicating that Mr. Shahjaban Sajoo was a JP candidate in the 2001 election.
[20] The Court should assume, unless there is evidence to the contrary, that the RPD took into consideration all the evidence (see e.g. Florea v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.F.); Lewis v. Canada(Minister of Employment and Immigration), 2004 F.C. 1195, [2004] F.C.J. No. 1436, at para 19 (C.F.)). The printout of the ECSB website was more likely than not taken into consideration, as the Applicant's counsel discussed this document with Mr. Berry at the hearing (p. 314-315, tribunal's record). As for the documentary evidence on Bangladesh, it was not relevant to the issue of credibility as addressed in the matter at hand. Therefore, it is understandable that the documentary evidence was not mentioned or analyzed by the RPD.
[21] The Applicant further contends that it was perverse for the RPD to find that the Applicant was not credible because he could not say if Mr. Shahjaban Sajoo was the President of the Narsingdy District Branch in 1995. In my view, this is not a patently unreasonable finding, taking into account the story of the Applicant, the problems he allegedly experienced in the mid-1990's and the depth of his alleged involvement in the JP (see the Applicant's narrative, p. 24-25), as well as the explanations he provided (tribunal's record, p. 296-297).
[22] Finally, the Applicant submits that it was erroneous to focus on the minor issue of the authenticity of the documents presented while ignoring the rest of the testimony of the Applicant. The Respondent contends that the RPD provided reasons to support its conclusion on the credibility of the Applicant, and that this determination is entitled to deference.
[23] Having considered the totality of the evidence, I am of the opinion that the decision should not be set aside. First, in the circumstances of this case, the finding that the Applicant attempted to mislead the RPD by presenting false documents is sufficient to justify its conclusion that the Applicant is not credible. It should be emphasized that these documents were central to the claim. Also, the only direct evidence submitted by the Applicant to prove his membership in the JP is the letter dated January 22, 2002 signed by a Mr. Shahjahan. No membership cards, no pictures and no material evidence were provided other than this letter. The RPD member relied on the independent inquiry of Mr. De Varennes of the Canadian Mission in Dhaka. It should also be noted that this e-mail raises concerns about the authenticity of other documents submitted by the Applicant. In this context, I think it was correct for the RPD to reject en masse all the documents presented by the Applicant
[24] Although the decision could have been structured in a better fashion, (I have noted that the decision was initially given orally) there is no patently unreasonable finding in the RPD's reasoning.
[25] Considering that questions of credibility are in the RPD's purview, unless a patently unreasonable conclusion is reached, I believe that this application for judicial review should be dismissed.
[26] Both counsels were invited to ask a question for certification but they declined.
JUDGMENT
THE COURT HEREBY ORDRES THAT:
- The application for judicial review is dismissed and no question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3143-05
STYLE OF CAUSE: HIRAN MOHAMMAD
Applicant
And
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: March 16, 2006
APPEARANCES:
Preevanda K. Sapru
Brad Gotkin
SOLICITORS OF RECORD:
Preevanda K. Sapru
Barrister & Solicitor
Toronto, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada