Ottawa, Ontario, February 3, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Board) rendered on February 3, 2005. In that decision, the Applicant's claim to be a Convention Refugee was rejected on the ground that she had not produced sufficient credible evidence to establish her identity. In the result, the Board found it unnecessary to consider whether her claim for refugee protection as a person facing persecution or as a person otherwise in need of protection was well founded.
Background
[2] The Applicant arrived in Canada on June 25, 2003 carrying a false Korean passport. She claimed to have been born in China and asserted that she was a national of the People's Republic of China, albeit of Korean ethnicity. In the Applicant's Personal Information Form (PIF), she indicated that she had left China for South Korea by air on June 24, 2003 and then departed by air from South Korea to Canada the following day.
[3] At the time of completing her PIF on July 27, 2003, the Applicant had no identity documents but noted that her Chinese Resident Identity Card (RIC), which was still in China, could be later obtained.
[4] The Board convened its refugee protection hearing on October 26, 2004. The Applicant was represented by counsel throughout the hearing. The transcript of the hearing indicates that, at the outset, the Board advised that the Applicant's identity was "the central issue of this claim"; indeed, that was the focus of much of the questioning which was directed to the Applicant.
[5] In the hearing, the Applicant relied upon a number of documents in proof of identity, specifically the RIC, a marriage certificate, a copy of a Household Registration Form (called a "hukou") and a letter from her church. She was questioned about each of those documents and also about certain perceived discrepancies. Among other issues, the Applicant was asked to provide an explanation for the following:
a. A difference in the identification numbers recorded on the hukou and the RIC;
b. The fact that the identification number from the hukou dated July 20, 1999 contained eighteen (18) digits when other evidence, including the specialized knowledge of the Board, indicated that the eighteen (18) digit code was not introduced in China until October 1, 1999;
c. A discrepancy between the Applicant's recorded birth year in the church letter (1966) and the RIC (1967).
[6] There were a number of other credibility issues raised during the hearing including the Applicant's inability to recall any portion of her identity number (despite a part of it recording her birth date), a discrepancy concerning the name of one of the schools she claimed to have attended and an inability to state the birth date of her husband.
[7] At the end of the hearing, the Applicant's counsel indicated that the RIC was available for forensic testing; however, forensic testing was not requested by the Board. The Applicant's counsel also requested and obtained an adjournment of the hearing to adduce "rebuttal evidence" with respect to the discrepancy in the identification numbers recorded in the Applicant's identity documents. The Board allowed her two (2) weeks to submit further evidence.
[8] On November 8, 2004, counsel for the Applicant made a further written submission to the Board and tendered a notarized certificate ostensibly issued by the Qi Jia Town Branch office stating:
This is to certify that there were 15 digits on the old edition of the resident identification card. But in May 1999, the digits were raised to18 numbers.
Issued by: Qi Jia Town Branch Office of Tai Zi He Qu, Laio Yang City
Date: Nov. 5, 2004
Seal Qi Jia Town Branch Office of the Public Security Bureau of Liao Yang City.
Handwriting part: After investigation was done, the information in the certificate is true.
The Board's Decision
[9] The Board's decision discloses that the Applicant was not believed and the identity documents she relied upon were found not to be genuine. In coming to these conclusions, the Board reviewed and weighed much of the evidence and found the Applicant's explanations to be unreasonable and not credible. Among other things, the Board was concerned that the Applicant had given a different name for her middle school at the hearing than the name of school recorded in the PIF, she did not know her husband's date of birth, she said that her husband was three (3) years older when the documents she had submitted indicated that the age difference was only two (2) years, she could not recite any portion of her identification number from her RIC and she had no plausible explanation for the difference in her birth year as recorded in the church letter from that which was recorded in other documents or as given in her testimony.
[10] With respect to the conflicting evidence concerning the effective date of the change to an eighteen (18) digit identification number, the Board preferred and accepted the information it had from the United States Library of Congress over the notarized certificate tendered by the Applicant. In coming to that conclusion, the Board held:
The panel prefers the independent, internationally, unbiased documentary evidence to the documents submitted by the claimant, of which originals were not submitted. The Federal Court of Appeal in Adu stated:
The "presumption" that a claimant's sworn testimony is true is always rebuttable, and in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
In this case, the claimant's evidence is contradicted by reliable, unbiased documentary evidence. The panel finds the claimant's evidence in this respect is not credible.
[11] The Board then summed up its views of the evidence which it had before in the following passage:
Therefore, in view of the cumulative effect of the above documentary evidence, coupled with the (sic) all of above lack of credibility findings, absent any reasonable explanation with respect to the claimant's RIC, marriage certificate and hukou and the claimant's evidence that she travel with a snakehead, leads the panel to conclude that, on a balance of probabilities, all the documents submitted by the claimant are not genuine. Therefore, no weight is assigned to those documents.
Issue
1. Was the Board's decision concerning the Applicant's credibility patently unreasonable having particular regard to its treatment of the notarial certificate tendered by the Applicant and its failure to submit the RIC for forensic analysis?
Analysis
[12] From the outset, the key issue facing the Board in this case was that of the Applicant's identity. She claimed to be a Chinese national facing persecution because of her membership in a Christian church.
[13] The issue of identity is, of course, a critical threshold decision for the Board. It is obliged by section 106 of the Immigration and Refugee Protection Act to determine, as a matter of credibility, whether a refugee claimant "possesses acceptable documentation establishing identity". This point is reinforced by Rule 7 of the Refugee Division Rules which states:
| The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.
|
Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer. |
[14] The Board's decision concerning identity in this case came down to credibility. It simply did not believe the Applicant's testimony and it rejected her identity documents. The degree of judicial deference that is owed to credibility determinations of this sort was well stated by Justice Michael Kelen in Chen v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1194 where he stated at paragraph 5:
[5] Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
[15] A good example of the application of the above-noted principles to the specific issue of identity can be found in the decision of Justice Konrad von Finckenstein in Al-Khaliq v. Canada (Minister of Citizenship and Immigration) [2005] FC 625 where he held at paragraphs 18 to 21 as follows:
[18] The Applicant argues that both these documents were incorrectly rejected without evidence external to the document. He relies on Ramalingam v. Canada (MCI) [1998] FCJ No 10 and Ratheeskumar v. Canada (MCI) [2002] F.C.J. No 1697. He particularly refers to the following passage in Ramalingam:
6. In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitutes a reviewable error on the part of the Board.
[19] It is undisputed that it is the Board's function to weigh the evidence placed before it. One of the key points to be established in a hearing is the applicant's identity. Here the Board had doubts about the Applicant's identity, as he had forged Iraqi identity documents, could not produce credible witnesses attesting to his identity and the testimonials from other Islamic organisations did not establish his nationality.
[20] The Board rejected the marriage certificate for reasons external to the document (it failed to accord with the putative ID papers) and it rejected the birth certificate because its provenance was more than suspicious. This situation is quite different from the one encountered in Ramalingan, supra.
Conclusion
[21] One has to regard the matter in its context. The Applicant had no valid Iraqi ID document, he speaks Farsi, he has travelled extensively, he claims to be a reputed, widely known Islamic scholar, yet he could not produce any witnesses or documents that establish his Iraqi identity. The Board had the benefit of seeing and hearing the Applicants and witnesses in person. Credibility is the "heartland of its jurisdiction" (see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at paragraph 38) and should not lightly be interfered with. The cumulative effect of the many irregularities and inconsistencies pointed out by the Board support its finding of lack of credibility. The Applicant, either by his testimony or through documentary evidence simply was unable to establish his identity. I see no reason why the Board's finding, in light of the Applicant's arguments, should be disturbed.
[16] Many of the arguments advanced by the Applicant in this case were considered by Justice Kelen in the case of Gasparyan v. Canada (Minister of Citizenship and Immigration) 2003 FC 863 at paragraphs 5 to 7:
[5] The applicants submit that the panel erred by not testing the replacement birth certificate issued in 2001. If they had doubts about the authenticity of the document, then the panel ought to have conducted further analysis or testing. They also argue it was an error for the panel to rely upon newspaper articles to discredit the authenticity of the applicants' documents because those articles do not contain a specific reference to Armenia.
[6] The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para. 15; and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.
[7] The applicants have not demonstrated that the Refugee Division committed a reviewable error or made a patently unreasonable finding when it rejected the authenticity of the applicant's birth certificate. A panel is entitled to rely upon its knowledge regarding the availability of forged documents in a particular region to question their probative value: Komissarov v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 94, 2002 FCT 75. The panel's reliance upon newspaper articles that did not include a specific reference to Armenia is of no consequence. Moreover, the Refugee Division is not obliged to conduct further assessment of a document when there is enough evidence to discredit its authenticity: Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.160 at para. 4 (T.D.) (QL); Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 911, 2001 FCT 590 at para. 18; and Akindele v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 68, 2002 FCT 37 at para. 5. For these reasons, it was reasonably open for the panel to reject the principal applicant's identity documents.
[17] The question presented by this case is whether the Applicant has established that the Board's treatment of the identity issue was inconsistent with the principles set out above.
[18] The Applicant took the position before me that the Board's decision not to refer her primary identity documents for forensic analysis constituted a reviewable error. It was argued that because the Board has a practice, in cases similar to this one, of obtaining expert evidence to determine the authenticity of identity documents, its failure to do so here was "arbitrary" and "unfair".
[19] This is an issue which has been previously examined by this Court. While it is correct that the Board is not itself an expert in the field of forensic analysis, it also has no duty to submit suspect documents for expert assessment provided that there is sufficient evidence before it to cast doubt upon their authenticity: see Culinescu v. Canada (Minister of Citizenship and Immigration) [1997] FCJ 1200; Ibnmogdad v. Canada (Minister of Citizenship and Immigration) 2004 FC 321 and Kashif v. Canada (Minister of Citizenship and Immigration) 2003 FCT 179.
[20] Here, however, there was ample evidence before the Board to support its decision to reject the Applicant's identity documents as unreliable and, hence, the Board did not err in declining to seek further expert evidence on the issue.
[21] The Applicant also argued that the Board's decision to accept the United States Library of Congress report concerning the effective date of the change to the identification number regime in Chinawas patently unreasonable. The better evidence, she contends, was that contained within the home-town notarial certificate which asserted that the new numbering system was rolled out earlier in that area of China. This better evidence, it is suggested, was ignored by the Board.
[22] It is clear from the Board's decision that it did not ignore the notarized certificate tendered by the Applicant. Rather, it preferred the other "reliable, unbiased documentary evidence" before it on this point. This was a finding which the Board was in the best position to make.
[23] It is not the role of this Court to revisit credibility and other evidentiary findings which are properly based upon a weighing of the evidence. There is nothing about the decision of the Board to accept the United States Library of Congress evidence over the notarial certificate which can be characterized as patently unreasonable. Here, there were a number of clearly identified problems with the Applicant's evidence which had a bearing on the ultimate credibility finding. As counsel for the Respondent pointed out, the Board made a cumulative credibility determination after a thorough review of the evidence.
[24] To attempt to isolate the question before me to the Board's treatment of two pieces of conflicting evidence without recognizing that other evidence was also influential, would be to undermine the principle that the weight to be assigned to various pieces of evidence is within the province of the trier-of-fact: see Toneguzzo-Norvell, [1994] S.C.J. No. 4 and Mahendran v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549 (FCA) at page 4.
[25] In summary, there is nothing about the credibility and reliability findings made by the Board which can be characterized as patently unreasonable. Indeed, those findings are well supported by the evidence before the Board.
[26] Having concluded that the Applicant had failed to establish her identity, the Board determined that it need not go further to consider the Applicant's evidence of religious persecution. It has been held that it is a pre-requisite for a person claiming refugee status to establish his or her identity. Without that foundation, there could be no sound basis for testing or verifying the claims of persecution or, indeed, for determining the Applicant's true nationality: see Husein v. Canada(Minister of Citizenship and Immigration)[1998] FCJ 726 and Ibnmogdad, supra.
[27] Neither of the parties requested that a question be certified and no question will be certified.
ORDER
THIS COURT ORDERS that
1. this application for judicial review is dismissed; and
2. there is no question to be certified.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1535-05
STYLE OF CAUSE: JIN, HONG SHI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 23, 2006
ORDER BY: THE HONOURABLE MR. JUSTICE BARNES
APPEARANCES:
SOLICITORS OF RECORD:
Lewis & Associates FOR APPLICANT
Barristers and Solicitors
Toronto, ON
John H. Sims Q.C. FOR RESPONDENT
Deputy Attorney General of Canada