Ottawa, Ontario, November 3, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
1. Introduction
[1] The Applicant, Shahidur Rahman, seeks judicial review of the January 24, 2005, decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) wherein it was determined that the Applicant was neither a Convention refugee nor a person in need of protection.
[2] The Applicant seeks an order setting aside the impugned decision and remitting the matter for a new hearing before a differently constituted Board.
2. Factual Background
[3] The following are the significant events and reasons that led the Applicant to claim refugee status in Canada, as recounted in the Applicant's personal information form (PIF).
[4] The Applicant is a citizen of Bangladesh born in 1988. His father, who was a leader of the Bangladesh Awami League (AL), was killed by terrorists in 1994 two days before he was to testify in the murder trial of Bangladesh Nationalist Party (BNP) hooligans who had allegedly raped and killed his friend's daughter. Upon the death of the Applicant's father, his brother became a leader of the local AL.
[5] At a December 16, 2003, cultural function organized by the AL to mark Victory Day, the Applicant's brother spoke out against oppression, killing, rape and terrorism by the BNP and Jamat-E-Islami (JJ). On February 1, 2004, the police came to the family home, looking for the brother. He was arrested the next day and detained for a month.
[6] On May 14, 2004, hooligans, among whom a BNP member named Mujib, attacked the Applicant's home, threatened to kill the Applicant, hit his sister-in-law, restrained and threatened his brother and subsequently took his brother away. The Applicant states that he went to the police and lodged a complaint against the kidnapper "Mujib" who the Applicant knew to be a hooligan from the BNP. The police informed him they would look into the matter. He also informed the local AL General Secretary of the incident. On May 16, 2004, the Applicant was taken to an AL meeting and asked to describe the episode in order to compel the police to rescue his brother. A bomb blast occurred during the meeting and the Applicant escaped. Later that day, a police officer came to the Applicant's residence and took him to a separate room where he was forcibly interrogated. That same evening, the Applicant's uncle advised the Applicant's mother that a BNP goon would kidnap the Applicant at any moment. The uncle took the Applicant to Dhaka to hide him at a friend's house.
[7] Upon learning that the police had gone looking for the Applicant at his home, his uncle arranged for him to leave the country. The Applicant left Bangladesh on June 6, arrived in Canada on June 10 and claimed refugee protection on June 14, 2004.
[8] The hearing before the Board took place on January 4, 2005, and the negative decision was rendered on January 24, 2005. Leave to bring this application was granted on May 30, 2005.
3. Impugned Decision
[9] Identity and credibility were the determinative issues in this claim. The Board concluded that the Applicant failed to establish his identity, his itinerary and his whereabouts before reaching Canada. It also found that the Applicant failed to establish the well-foundedness of his fear.
[10] In addition to the Applicant's testimony, the following documentary evidence was produced before the Board: the Applicant's PIF, birth certificate and school transfer certificate, other personal documents and documents on country conditions in Bangladesh.
[11] First, the Board held that the Applicant had not met the burden of proof under section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). He provided no identity document featuring his picture. The Board afforded no probative value to the Applicant's birth certificate and school transfer certificate. The documents, on their face, contained irregularities. The Board determined that the Applicant was not credible in answering the questions pertaining to these documents.
[12] Second, the Board doubted the Applicant's credibility. The Board did not find him credible with respect to his version of the events which underlie his fear of persecution. The Board also found it implausible that his uncle would arrange to send the Applicant to Canada, where the Applicant knows no one and does not speak the language, when two of his sisters have been living in the United Kingdom for years. Finally, the Board held that the Applicant was not credible in attempting to explain his travel itinerary.
[13] Having considered the Guidelines on Child Refugee Claimants, and in light of its findings on the issues of identity and credibility, the Board concluded that the Applicant is not a Convention refugee nor a person in need a protection pursuant to section 96 and subsection 97(1) of the IRPA.
4. Issues
[14] In my view, this judicial review application raises the following issues:
A. Did the Board err in finding that the Applicant failed to establish his identity?
B. Are the Board's credibility and plausibility findings patently unreasonable?
5. Standard of Review
[15] There is no dispute as to the applicable standard of review in respect of the Board's identity and credibility findings. The standard is that of the patently unreasonable decision. See Gasparyan v. Canada(Minister of Citizenship and Immigration), 2003 FC.863 and Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No 732 (QL).
A. Did the Board err in finding that the Applicant failed to establish his identity?
[16] In respect to the Applicant's identity, the Board considered two documents, his birth certificate and his school transfer certificate.
[17] The Board noted certain anomalies on the birth certificate. The name of the city that issued the certificate was spelled in three different ways on the document. Two allegedly official stamps on the document also reflected a different spelling of the city's name. The word "General" was misspelled. Further, the document was entitled "Local Registrar of Birth's & Death's". The Applicant's birth was reported on May 18, 2004, and the certificate was issued on May 22, 2004, and, as a result, the Board noted that the document was likely obtained to facilitate the Applicant's claim. For the above noted reasons the Board afforded no probative weight to the birth certificate.
[18] The Board also considered the Applicant's school transfer certificate issued on May 22, 2004. This document also contained on its face an anomaly. The word father on the second line of the body of the document was spelled as follows, "Fatther's". It is hard to imagine that such an error could be made and remain unchecked on a form document issued by an educational institution. The Applicant could offer no explanation as to how the certificate was obtained and was unable to identify the principal of the school whose signature appeared on the certificate even though the Applicant was enrolled at the institution at the time the principal arrived. Moreover, he could not explain why he had not produced his Grade 7 certificate or marks sheet as proof of identity. The Board accorded no probative weight to the Applicant's school transfer certificate.
[19] The Applicant takes issue with the Board's finding with respect to the authenticity of his birth certificate. He suggests that a spelling mistake is not conclusive proof that the document is fraudulent. He submits that the Board speculated that he could not have attended school without submitting a birth certificate. He also argues that the school transfer certificate proves that he was a student of that particular school and his credibility should not have been impugned by the fact that he could not name the principal who took the position in December 2003.
[20] I agree with the Applicant that it was not open to the Board to find that a birth certificate was required to be admitted to school, since there was no evidence to support such a finding. In my view the Board engaged in speculation in concluding as it did on this point. This error however, is not determinative in respect to the Board's findings regarding the Applicant's identity documents. Given the significant anomalies on the two documents submitted by the Applicant to establish his identity, it was open to the Board to afford no weight to these documents and to conclude that the Applicant had not satisfactorily established his identity. The Board did not err in so doing.
[21] The Board is obliged to take into account, in assessing a claimant's credibility, whether acceptable documentation establishing identity is adduced. Section 106, of the IRPA provides:
| 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.
|
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. |
[22] The jurisprudence of this Court has established that an unfavourable inference in respect to a claimant's credibility can be drawn where the claimant possesses no acceptable documentation establishing identity, absent a reasonable explanation: Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25; Yogeswaran v. Canada (Minister of Citizenship and Immigration), 2001 FCT 48.
[23] Given the Board's expertise, considerable deference must be shown to its findings of fact in respect of documentation establishing identity. Having reviewed the record before the Board, the impugned decision and the parties' submissions, I conclude that the Board's findings in respect to the identity documents and its determination that identity had not been satisfactorily established are not patently unreasonable. On the evidence, it was open to the Board to reject the Applicant's explanations, and to impugn his credibility for not adducing acceptable identity documents. In doing so the Board did not err.
[24] Having found that the Board did not err in its finding with respect to the Applicant's identity, I agree with the Respondent's contention that this finding is determinative of the within application. I will now, nevertheless, consider the second issue raised by the Applicant.
B. Are the Board's credibility and plausibility findings patently unreasonable?
[25] The Board concluded that the Applicant lacked credibility. The Board found the Applicant's testimony unreliable and untrustworthy for the following reasons:
- the Applicant could not explain why his mother and uncle chose to send him to Canada, where he has no relatives, instead of the United Kingdom where two of his sisters live;
- in his PIF, the Applicant states that he "gathered some ideas about his brother's opponent political parties activities" at the December 16, 2003, meeting but his vague explanations were unable to identify these ideas;
- the Applicant was evasive in his answers to the Board's questions about his brother's arrest on February 2, 2004, and he could not provide basic information about it. He never discussed the problem with his brother;
- the Applicant gave conflicting evidence in attempting to explain how he knew Mujib to be a BNP goon;
- the Applicant could not explain why he told the Immigration Officer at the port of entry that Mujib did not belong to the BNP. This statement contradicts his oral testimony;
- the Board found it implausible that the hooligans who allegedly attacked the Applicant's residence on May 14, 2004, would have released the Applicant, who was an eye-witness;
- the Applicant testified that after May 14, 2004, attack, his sister-in-law was taken to the hospital . Moreover he could not provide any basic information with respect to the length of her stay at the clinic or the treatment she received;
- the Applicant could not explain why a First Information Report (FIR) was not produced or if one was indeed filed following the May 14, 2004, incident when he and his uncle reported the incident to the police;
- the Applicant could not provide any details about the president of the AL who allegedly signed a letter in support of his claim;
- the Applicant testified that the BNP goons worked with the police but failed to mention it in his PIF;
- the Applicant could not provide basic details about the alleged May 16, 2004, meeting with the AL;
- the Applicant could not explain why he had been asked to speak publicly about harassment by the BNP and the police when this allegedly endangered his life;
- the Applicant provided only general information about his father and brother's involvement in the AL;
- the Applicant provided no evidence to support his claim that he left Bangladesh on June 6, 2004, and arrived in the United States on June 7, 2004.
[26] The Applicant contests these findings. He submits that he gave plausible explanations to the Board. He argues that the Board drew unreasonable inferences and that the Board made reviewable errors when it concluded that his answers and explanations were vague. The Applicant contends that the Board dealt with irrelevant issues such as the fact that he did not know how his mother and sister-in-law were informed of the arrest of his brother. He suggests that crucial evidence, pertaining to the BNP goon Mujib who participated in the May 14, 2004, attack in his home, was misstated by the Board. Finally, the Applicant alleges that the Board erred by ignoring the evidence he gave to the effect that the police did not take the report he filed in regards to the attack in his home.
[27] Having reviewed the evidence before the Board and the transcript of the Applicant's testimony and having considered the parties' submissions, I am of the view that the inferences and conclusions drawn by the Board were open to it on the record. The Board had the opportunity to hear the Applicant and weigh his testimony. The Board is in the best position to assess the credibility of a claimant: Singh v. Canada(Minister of Citizenship and Immigration), 2003 FC 1146. While certain of the Board's credibility findings may be weak, on the whole, I am unable to conclude that they were perverse or made without regard to the evidence. The Board's credibility and plausibility findings are not patently unreasonable. Consequently, the Court's intervention is not warranted.
[28] For the above reasons, the application for judicial review will be dismissed.
[29] The parties had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the IRPA, and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1146-05
STYLE OF CAUSE: Shahidur Rahman v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 24, 2005
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Mr. Rezaur Rahman FOR THE APPLICANT
Ms. Elizabeth Kikuchi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman FOR THE APPLICANT
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario