Date: 20060406
Docket: IMM-5553-05
Citation: 2006 FC 438
Ottawa, Ontario, April 6, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
THIERNO MAMADOU BALDE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDMENT AND
JUDGMENT
INTRODUCTION
[1]
Without
knowing who is before it, how may the Immigration and Refugee Board do
otherwise than reject an application for refugee protection once it determines
that the identity of an applicant is not proven?
Where the determination of the panel
ultimately turns on its assessment of credibility, an applicant for judicial
review has a heavy burden, as the reviewing Court must be persuaded that the
determination made by the panel is perverse or capricious or without regard to
the evidence before it. Thus, even where the reviewing Court might itself have
come to a different conclusion on the evidence it will not intervene unless the
applicant establishes that the decision of the panel is essentially without
foundation in the evidence (Mr. Justice Andrew MacKay in Akinlolu v. Canada
(Minister of Citizenship and de Immigration), [1997] F.C.J. No. 296
(QL)).
NATURE OF THE PROCEEDINGS
[2]
This is an
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Board) dated August 16, 2005,
concluding that the applicant is not a “Convention refugee” or a “person in
need of protection”.
FACTS
[3]
The
applicant, Thierno Mamadou Balde, is a citizen of the Republic of Guinea. He
arrived in Canada on October 26, 2004 and made a claim for refugee protection
one month later. The facts he invoked in support of his claim may be summed up
follows:
(a) In October 2002, he opened a
cafeteria in the city of Coyah;
(b) On June 10, 2003, a
demonstration was allegedly organized to contest the decision rendered by the
prefect of Coyah to sell land that was used for meetings and as a playground
for the youngsters in Coyah. This demonstration allegedly got out of hand and
several youngsters were arrested and detained;
(c) On June 14, 2003, the
applicant was allegedly arrested to have him report on which youngsters were
responsible for the demonstration. Considering his lack of knowledge, he was
tortured by the authorities and detained without a trial for one year, during
which time he continued to be mistreated;
(d) On June 30, 2004, he
allegedly managed to escape with the help of two corrupt guards paid by his
brother. His brother helped him get to the village of Keitaya, where he
received medical care for several days;
(e) On October 25, 2004, he
allegedly left Conakry using his brother’s identity papers and arrived in
Canada the next day.
IMPUGNED
DECISION
[4]
The Board
first of all concluded that Mr. Balde had not established his identity because
he did not submit acceptable documentation establishing identity within the
meaning of section 106 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act).
[5]
Moreover,
the Board noted several inconsistencies and contradictions in Mr. Balde’s
testimony, which led it to conclude that his story of persecution was not
credible.
ISSUE
[6]
Is the
Board’s decision patently unreasonable?
ANALYSIS
Standard of review
[7]
Because
this case is based on a matter of credibility, the standard of review relates
to a question of fact, and therefore this Court must show a high degree of
deference toward the Board. In other words, for a decision to be returned to
the specialized tribunal, the decision of the trier of fact must be considered
patently unreasonable.
[8]
It is trite
law that a person who makes a claim for refugee protection must first of all
establish his identity. It is essential that the refugee protection claimant
show that he is the person he claims to be before his claim may be considered.
This requirement is based on section 7 of the Refugee Protection Division
Rules, SOR/2002-228, which provides as follows:
|
Documents
establishing identity and other elements of the claim
7. 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.
|
Documents
d'identité et autres éléments de la demande
7. 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.
|
[9]
Moreover,
under section 106 of the Act, the Board must take into consideration the lack
of acceptable documentation establishing identity in its assessment of the
applicant’s credibility:
|
Credibility
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.
|
Crédibilité
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.
|
[10]
Because
the question of determining whether the applicant has documents establishing
his identity is essentially a question of fact and credibility, it is obvious
that this Court will only intervene if the Board’s decision is patently unreasonable:
Najam v. Canada (Minister of Citizenship and Immigration), 2004 FC 425,
[2004] F.C.J. No. 516 (QL), Gasparyan v. Canada (Minister of Citizenship and
Immigration), 2003 FC 663, [2003] F.C.J. No. 1103 (QL) ; Mbabazi v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 1191, [2002]
F.C.J. No. 1623 (QL); Adar v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 695 (QL).
[11]
In this
case, Mr. Balde submitted the following two documents to prove his identity as
Thierno Mamadou Balde. The two documents show that he was born on December 6,
1972:
(a) A birth certificate;
(b) A national identity card.
[12]
However,
the Board also had in evidence a passport of the Republic of Guinea with
Mr. Balde’s picture, bearing the name of Alpha Aguibou Balde, born on
December 6, 1966, and containing a Canadian visa valid from August 28, 2004 to
February 23, 2005.
[13]
When
confronted with the existence of this passport issued on March 30, 2004, when
Mr. Balde was supposedly in jail, he confirmed that the application for a
temporary resident visa filed on record actually did contain his picture, but
he denied having showed up himself before the Canadian Immigration authorities.
He claimed it was his brother, who looks a lot like him, who had undertaken
these steps for him.
[14]
When
considering the contradictory identity documents, the Board, as a trier of
fact, had to assume its role of assessing the evidence and deciding on the
weight to be given to these documents.
[15]
The Board
decided that the Guinean passport in the name of Alpha Aguibou Balde had more
weight than the birth certificate and the identity card, because of the
inconsistency of the evidence and the implausability of the explanations given
by Mr. Balde with regard to his alleged brother obtaining the passport.
[16]
First of
all, the Board noted that in the birth certificate of Thierno Mamadou Balde, it
was mentioned that in 1972 his father was 58 years old and his mother was 42
(Applicant’s Record – page 83). However, in the birth certificate in the
name of Alpha Aguibou Balde, who was allegedly his brother, it was mentioned
that his father was born in 1941 and his mother in 1947 (Applicant’s Record –
page 100).
[17]
As stated
by the Board in its Reasons, a brief calculation shows that Mr. Balde’s parents
were respectively 31 and 25 years old in 1972 and not 28 and 42 years old, as
mentioned in the birth certificate in the name of Thierno Mamadou Balde.
[18]
The Board
then seriously doubted that a visa officer could make such a gross mistake by
not noting that the person he was dealing with was not the same person who was
the bearer of the Guinean passport and the pictures submitted to obtain the
visa.
[19]
This was
especially implausible considering that the visa officer interviewed the
candidate and had on hand the [translation]
“activities registration card for the direction générale de l'Office de
promotion des investissements privés [directorate of the Private Investment
Promotional Bureau]”, containing the photograph of the bearer.
[20]
In this
case, it cannot be concluded it was patently unreasonably for the Board to
consider that the Guinean passport in the name of Alpha Aguibou Balde had more
weight than a birth certificate that was inconsistent with that of his alleged
brother and an identity card issued on the basis of this same document.
[21]
The
allegations in Mr. Balde’s memorandum mainly concern the way in which the Board
dealt with the evidence submitted to it. As mentioned previously, it is up to
the Board to decide on the weight to be given to the evidence and not to a
court hearing an application for judicial review.
[22]
First of
all, Mr. Balde erroneously alleged that the Board relied on speculation to show
that the age of his parents mentioned in his alleged birth certificate and that
of his brother were different.
[23]
As
mentioned above, it was written in the birth certificate in the name of Alpha
Aguibou Balde (Applicant’s Record – page 100) that his father was born in 1941
and his mother in 1947, which is inconsistent with the age of the parents mentioned
in Mr. Balde’s alleged birth certificate (Applicant’s Record – page 83).
[24]
Contrary
to what Mr. Balde alleged, the Board was not obliged to confront him with this
flagrant inconsistency because it stemmed from Mr. Balde’s personal documents: Contreras
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 906
(QL).
[25]
Contrary
to what Mr. Balde alleges, an assessment of the identity documents was not
essential to the determination of the case, because the evidence submitted was
contradictory and was sufficient in itself for the Board to draw its own
conclusions.
[26]
In Culinescu
v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241,
[1997] F.C.J. No. 1200 (QL), cited in Hossain v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 160 (QL), this Court stated
that credibility is a question of fact entirely within the jurisdiction of the
Board which may cast doubt on the authenticity or the probative value of a
document if it has sufficient evidence to warrant such a conclusion. In this
case, the Board based its conclusion on the various contradictions and
implausibility in the identity documents it had.
[27]
All in
all, the Board did not make any patently unreasonable error in concluding on
the basis of the evidence it had and on the applicant’s testimony, that he did
not establish his identity as Thierno Mamadou.
[28]
This
conclusion reached by the Board established a fatal flaw and could in itself
entail the rejection of Mr. Balde’s claim for refugee protection. This Court’s
case law clearly shows that a claim for refugee protection must be rejected
once the Board determines that the claimant's identity has not been proven: Ipala
v. Canada (Minister of Citizenship and Immigration), 2005 FC 472, [2005]
F.C.J. No. 583 (QL); Nwammadu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 107, [2005] F.C.J. No. 134 (QL); Ibnmogdad v.
Canada (Minister of Citizenship and Immigration), 2004 FC 321, [2004]
F.C.J. No. 327(QL); Najam supra; Husein v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 726 (QL).
[29]
Alternatively,
the Minister submitted that even if this Court comes to the conclusion the
Board erred in concluding that Mr. Balde did not prove his identity,
intervention by this Court would not be warranted considering, furthermore,
the conclusion it reached as well about the lack of credibility.
[30]
In spite
of the negative conclusion it reached about Mr. Balde’s identity, the Board
nevertheless continued its analysis of the evidence submitted, which allowed it
to note several contradictions and inconsistencies in his story. It concluded
that Mr. Balde was not credible.
[31]
The
conclusion concerning the lack of credibility was essentially based on the
following facts:
(i) inconsistencies
between the lease (Exhibit P-3) and Mr. Balde’s testimony. It was specified in
the lease that Mr. Balde’s business was a “bar-café” which suggests that
alcohol was served to clients. However, Mr. Balde testified to the fact that he
was operating a cafeteria in which he served coffee, cigarettes, milk and
sandwiches (Reasons – page 3, last paragraph);
(ii) the
incompatibility of the statements in the medical report (Exhibit P-2) with the
applicant’s testimony. In his report, the doctor explained Mr. Balde told him
that he had been arrested and tortured by the Guinean police when he was taking
part in a demonstration. However, Mr. Balde claimed to have been arrested at
his business and detained because the authorities wanted him to indicate who
organized the demonstration, in which he did not participate. When confronted
with this inconsistency, Mr. Balde was obviously embarrassed and seemed to
improvise (Reasons, page 4, paragraphs 1 to 3).
(iii) the
inmplausability of the fact that Mr. Balde’s alleged brother had undertaken
steps to obtain a Canadian visa even though he did not have any money to pay
the airfare, and the contradiction between Mr. Balde’s testimony and the notes
of the Immigration officer at the port of entry concerning his health problems.
In his testimony, Mr. Balde explained that it was impossible for him to
leave his country earlier because he had swollen feet, wounds to the feet and
buttocks, and a fracture of the clavicle. However, when the Immigration officer
at the port of entry asked him if he had physical or mental health problems,
Mr. Balde answered “no” (Reasons – page 4, last paragraph and page 5,
paragraph 1). (See also the Immigration officer’s notes at page 79 of the
Applicant’s Record).
(iv) contradictions
between the documentary evidence and Mr. Balde’s testimony. The newspaper
article submitted by Mr. Balde was not in keeping with his story and directly
contradicted certain elements of his story (Reasons – page 5, paragraphs 2-3
and page 6, paragraphs 1 and 2).
[32]
Mr. Balde
contested the inconsistency mentioned by the Board between the lease (Exhibit P‑3)
and his testimony. According to him, the Board could not draw such a conclusion
because in Guinea, bars in which alcohol is sold are called “Bar-Maki” and not
“Bar-Café”.
[33]
Without
acknowledging the merit of Mr. Balde’s allegation, the Minister submitted that
even if the Board made a mistake about the evidence on this point, it is
insufficient to invalidate the conclusion concerning the lack of credibility,
which was based on other valid conclusions.
[34]
The
statements made by the doctor in his report are not consistent with Mr. Balde’s
testimony because, according to Mr. Balde, there was no interpreter available
when he consulted the doctor.
[35]
This
contradiction cannot be based on the sole fact that Mr. Balde did not have an
interpreter with him when he consulted the doctor. However, the Reasons show
that when confronted with this contradiction at the hearing, Mr. Balde changed
his story to try to match his testimony with what was written in the medical
report.
[36]
The
explanation given to try to justify the contradiction between the medical
report and Mr. Balde’s testimony even gave rise to another contradiction.
He testified it was during the demonstration that he had been charged, although
he alleged in his written testimony that he had been arrested four days after
the demonstration of June 10, 2003.
[37]
When
confronted with these unconvincing explanations given by Mr. Balde, the Board
was entitled to draw a negative conclusion from the incompatibility of the
statements in the medical report with Mr. Balde’s testimony.
[38]
The
contradiction noted between Mr. Balde’s testimony and the notes of the
Immigration officer at the port of entry concerning his health problems,
explaining that he thought the Immigration officer was only referring to
mental health problems, cannot be reconciled. In this case, it is too easy for
Mr. Balde to try to explain after the fact a contradiction in the evidence that
he himself adduced.
[39]
In these
circumstances, the explanation is clearly insufficient to show that it was
unreasonable for the Board to consider this contradiction between Mr. Balde’s
testimony and the notes at the port of entry in the assessment of his
credibility.
[40]
Concerning
the alleged contradiction noted by the Board, between the newspaper article
(Exhibit P-6) and Mr. Balde’s testimony, the Board did not make a mistaken
analysis of the newspaper article, following the Board's own inherent logic.
[41]
A reading
of the newspaper article submitted in evidence by Mr. Balde following the
hearing, and reproduced on page 5 of the Board’s Reasons, clearly shows that
this evidence is not the same as Mr. Balde’s story and directly
contradicts certain aspects of his testimony.
[42]
As the
Board noted, this article did not mention any peaceful demonstration to contest
the sale of the land. Instead, it mentioned that [translation] “The revolt which led to the unfortunate
incidents in Coyah started with a rumour. According to eyewitness reports,
these rumours of police impropriety, which led to one death and caused
injuries, were false”.
[43]
Also,
contrary to what Mr. Balde testified, the article does not mention that the
inhabitants of Coyah and Manéah allegedly went to the Coyah police station to
demand that the youngsters be released. Instead, the article mentions that a
“group of youngsters” got out of control and attacked the police station, the
prefect’s residence and the hospital of the prefecture.
[44]
Furthermore,
contrary to Mr. Balde’s testimony according to which the police opened fire on
the crowd, injuring several persons and killing a girl, the article mentions
that [translation] “The police
were defenceless against the crowd of demonstrators and simply turned around
and ran”.
[45]
As well,
the article mentions that [translation]
“once things had quieted down, the authorities assessed the damage and tried to
calm everyone”, while according to Mr. Balde’s testimony, the Conakry mobile
squad came to disperse the crowd.
[46]
Considering
the obvious inconsistencies between Mr. Balde’s story and the documentary
evidence, it most certainly cannot be concluded that the Board’s conclusion on
this point is patently unreasonable.
[47]
In this
case, on the basis of the arguments in his memorandum, Mr. Balde did not show
that the Board had committed a patently unreasonable error in the assessment of
his credibility.
[48]
There are
sufficient elements in support of a conclusion to the effect there was a lack
of credibility. Considering each one of these elements, added together, the
Board, in its inherent logic, could not do otherwise than conclude that Mr.
Balde was not credible.
CONCLUSION
[49]
Considering
the preceding, Mr. Balde’s application is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application be dismissed.
2. No serious question of general importance be
certified.
“Michel
M.J. Shore”
Certified
true translation
Michael
Palles
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