Date: 20060321
Docket: IMM-5448-05
Citation: 2006
FC 363
Ottawa, Ontario, March
21, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
CELESTIN
NIYONGABO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 (Act), of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
rendered on August 11, 2005 by Lamine Diallo, finding that the applicant was
not a Convention refugee nor a person in need of protection.
ISSUES
[2]
The
applicant raises the following issues:
1. Did the Board
commit a reviewable error in assessing the applicant’s establishment of
his identity?
2. Did the Board
commit a reviewable error in disregarding or failing to consider the evidence
before it?
[3]
For the
following reasons, the answers to these issues are negative and the application
shall be dismissed.
BACKGROUND
[4]
The
applicant is a citizen of Burundi, of mixed Tutsi-Hutu
ethnicity. He was born on December 25, 1980 in Bujumbura.
[5]
In the
context of the extreme tension between Burundi’s Hutu and Tutsi ethnic groups, the
applicant found himself rejected by both groups because of his mixed ethnicity.
[6]
A Hutu
criminal group told the applicant that he could prove his loyalty by killing
his maternal uncle, a Tutsi. The applicant instead warned his uncle that the
Hutu group wanted him dead. The Hutu group learned about this, and he and his
uncle ended up fleeing together to neighbouring Rwanda, with the intention of seeking asylum in
Canada.
[7]
The
applicant’s uncle got him a passport, a plane ticket and a visa to the United States. The applicant does not know
how his uncle obtained these documents.
[8]
The
applicant and his uncle flew from Kigali to Newark.
[9]
Three
weeks later, on March 24, 2004, the applicant came to Canada, where he immediately filed an asylum
claim. He was detained upon his arrival because he had no documents to
establish his identity.
[10]
On June
23, 2004, the applicant was released from detention following a detention
review decision where the member found that he had successfully established his
identity by submitting the death certificates of both his parents.
[11]
The
applicant’s asylum claim was heard on May 31, 2005.
DECISION UNDER REVIEW
[12]
The
Board’s reasons reveal that the applicant’s claim was dismissed because he was
not found to be credible and the documents filed when he came to Canada were unacceptable ones.
[13]
Regarding
the applicant’s identity, the Board noted that he had submitted a birth
certificate and an ID card from Burundi.
However, it also noted that expert analysis of the ID card revealed that it was
apocryphal, and that the picture showed signs of having been removed and then
stapled on the document.
[14]
The Board
also mentioned that in his United
States visa
applications from Rwanda, the applicant had claimed to be a Rwandan citizen and
that he was wanted in Kigali in relation to a fraudulent U.S. visa ring along with eighteen other
people.
[15]
The Board
was therefore unable to determine whether the applicant was really a citizen of
Burundi or Rwanda.
[16]
Citing
section 106 of the Act and section 7 of the Refugee Protection Division
Rules, SOR 2002-228 (the Regulations), the Board stated that the applicant
had failed to provide reasons for his inability to submit acceptable documents
establishing his identity.
[17]
The Board
also found that the applicant’s testimony was not credible, and stated that the
applicant’s demeanour and answers throughout the hearing indicated that he was
fabricating his allegations to obtain asylum in Canada.
[18]
The Board
concluded its reasons by stating that after considering the evidence before it,
the applicant’s lack of credibility led it to find that he had not established
that he was a “Convention refugee” pursuant to section 96 of the Act.
ANALYSIS
1. Did the Board commit a
reviewable error in assessing the applicant’s establishment of his identity?
[19]
The
applicant submits that the Board committed a reviewable error in determining
that the applicant had failed to establish his identity or to give a reasonable
explanation for his lack of documentation. He argues that this determination
contradicts the finding of the Immigration Division, which released him from
detention on June 23, 2004.
[20]
The
applicant submits that the Board never dealt with the fact that the Immigration
Division had accepted his identity.
[21]
The
jurisprudence of this Court is not unanimous on the issue of the applicable
standard of review to the Board’s findings regarding a claimant’s identity.
[22]
In Mayuma
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1509, [2004] F.C.J. No. 1805 (T.D.) (QL), I applied the standard of
patent unreasonableness. In Rasheed v. Canada (Minister of Citizenship and
Immigration),
2004 FC 587, [2004] F.C.J. No. 715 (T.D.) (QL), my colleague Justice Martineau
applied the standard of reasonableness.
[23]
However,
regardless of which standard is applied, I am not of the opinion that the Board
committed a reviewable error in this case.
[24]
Within the
Board, the Refugee Protection Division is an independent tribunal, and it would
be fettering its own discretion by finding itself bound by the findings of the
Immigration Division regarding a claimant’s identity.
[25]
The
applicant had the onus of establishing his identity on a balance of
probabilities (Yip v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 1285 (T.D.) (QL)). Considering the expert analysis of his ID
card that revealed that the picture had been tampered with, and the fact that
he had applied for a U.S. visa in Rwanda using a Rwandan passport, it was not
unreasonable for the Board to conclude that he had failed to establish his
identity (Mukharji v. Canada (Minister of Citizenship and Immigration), 2004
FC 721, [2004] F.C.J. No. 911 (T.D.) (QL)).
2. Did the Board commit a
reviewable error in disregarding or failing to consider the evidence before it?
[26]
The
applicant urges that the Board failed to give detailed examples explaining why
it could not accept the applicant’s testimony as truthful, and that it
committed a reviewable error in not addressing documentary evidence relating to
conditions in Rwanda and Burundi in its reasons.
[27]
The
Board’s determinations regarding a claimant’s credibility are findings of fact,
and in the context of a judicial review application this Court should not
intervene in the absence of a patently unreasonable error (Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.)
(QL)).
[28]
I do not
think the Board’s adverse credibility finding was patently unreasonable in this
case. The issue of the applicant’s identity cannot be hermetically separated
from that of the overall credibility of his allegations. His failure to
establish his identity on the balance of probabilities was fatal to the outcome
of his claim.
[29]
As the
Board noted in its reasons, it was unclear whether the applicant was a citizen
of Burundi or Rwanda. The applicant’s suggestion
that the Board should then have addressed conditions in both of these countries
in its reasons is inadmissible. He had the onus of establishing his identity
and the existence of a well-founded fear of persecution, and the Board cannot
be blamed in these circumstances for finding that he had failed to meet this
onus.
[30]
On the
issue of credibility, the tribunal record shows that the applicant changed his
story when confronted with the information obtained from the United States regarding his presence at the
U.S. Embassy in Kigali to obtain a U.S.
visa. The intervention of the Court is not warranted here.
[31]
Neither
party proposed questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS that the application for judicial
review is dismissed. No question is certified.
“Michel
Beaudry”
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