Date: 20060802
Docket: IMM-4990-05
Citation: 2006 FC 945
Ottawa, Ontario, August 2, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KENILE
AWOH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (IRB) dated July 20, 2005, in which it rejected the applicant’s
claim for refugee status under s. 96 and 97 of the Immigration and Refugee
Protection Act.
FACTS
[2]
The
applicant, Ms. Awoh, claims to be a citizen of Nigeria and is 22
years old. She claims refugee status based on her membership in a specific
social group, namely lesbians. She states that she has been subject to
humiliation and punishment for her sexual orientation and her participation in
lesbian relationships.
[3]
She
states that her father threw her out of the house upon learning of one such
relationship in February 2003, and she sought the assistance of the police
shortly thereafter, but they detained her without charges for two days before
releasing her. She states that she then went to stay with an uncle in another
city, who arranged for her transportation to Canada through the
use of an agent.
DECISION UNDER REVIEW
[4]
The Panel’s
decision was based on the claimant’s failure to establish her identity as well
as credibility concerns. With respect to her identity, the panel found it
implausible that the claimant could have received her birth certificate simply
by requesting a friend to obtain the said document without any further
documentation. The Panel also found that the legitimacy of the proffered
document was undermined by the fact that the birth registration was the same as
the issue date, when given other evidence (namely that she had previously had a
birth certificate), the date of birth registration should have been different. The
applicant came to Canada with a different birth
certificate, which the Panel found was not a formal, government-issued document
and as such was insufficient to establish identity. The Panel also rejected the
student library card as evidence of identity because it was issued in 2002 and
had an expiry date of 2006, despite the fact that the card itself states it
expires at the end of the academic session. Given these factors, plus the
documentary evidence of the availability of fraudulent documents in Nigeria, the Panel held that the
applicant did not establish her identity.
[5]
As for the
applicant’s credibility, the panel found a number of inconsistencies within her
viva voce evidence and between that evidence and the information given
on her Personal Information Form (PIF) and Record of Examination (ROE), namely:
·
In testimony, she
stated that her father had threatened to kill her, but there was no indication
of this on the PIF
·
The applicant stated
that she went to university in her testimony, but there was no mention of this
in the ROE
·
In testimony, the
applicant changed her university start date from October to December 2002, then
stated this was because of a strike, and the Panel found her explanation
unbelievable given that her PIF did not explain this
·
The end date of her
university studies was not given as the same date on the PIF and in her
testimony
·
In testimony, he
applicant did not indicate that she had decided to leave the country, as it was
her uncle’s decision and she did not know when he had decided, but in her PIF
she indicated that she knew when she was leaving on a specific date while
staying with her uncle
·
The claimant was not
credible as she had no documents to indicate arrival in Canada (passport, air tickets, etc.) and stated that she was
not even aware of the name on the false passport used to facilitate her entry
into Canada
·
During testimony, the
applicant changed the name of her first partner in high school from Kate to
Ephayan
·
During testimony, she
stated that she had not written to her parents to ask for documents because she
did not want them to know what she was doing, and later said she had sent a
letter to her parents and received no reply
·
The applicant testified
that she knew the police might treat lesbians badly, but also that she chose to
complain to the police when her father kicked her out of the house for being a
lesbian; furthermore, there was no reference to fear of police in her PIF
·
The applicant’s fear of
police mistreatment was speculative, and not supported by the documentary
evidence
ISSUES
[6]
There are
essentially two issues to be determined in this application for judicial
review:
a)
Did the
panel err in its assessment of the applicant’s claimed identity?
b)
Did the
panel err in finding that the applicant lacked credibility?
APPLICANT’S SUBMISSIONS
[7]
On the
issue of her identity, the applicant argues that the Panel erred by referring
to examples of other Nigerian cases and drawing a negative conclusion based on
the absence of similar evidence (i.e. affidavits) in the applicant’s case. Citing
the case of Valtchev v. Canada (M.C.I.) 2001 FCT 776, the applicant
argues that implausibility findings should only be made by the Panel in the
clearest of cases, and in this situation there was no justifiable reason for
them to reject her version of events with regard to how she obtained her birth
certificates. The applicant also submits that the Panel had a duty to alert the
applicant of its concerns about the identity documents in order to afford her
the chance to respond to them, and erred in law by not doing so. The applicant
submits that the Panel erred when it assumed that the expiry date for the
student card should be one year after its issuance, as this was merely
speculation.
[8]
With
respect to her credibility, the applicant submits that the panel erred by
drawing a negative inference based on the fact that she failed to mention her
fear that her father would kill her in the PIF. She relied for that
proposition on Singh v. Canada (M.E.I.), [1993] F.C.J. No. 1034. She
further contends that the difference in the end dates of her university
studies, and the apparent inconsistencies about her knowledge of when she would
be coming to Canada were only minor
inconsistencies, insufficient to support an adverse credibility finding. The
applicant submits that the Panel was not entitled to require the applicant to
state events in her PIF the same way she did in her testimony.
[9]
The
applicant argues that with regard to credibility as well as identity, the Panel
had an obligation to alert the applicant as to its concerns and provide her
with a chance to respond. The applicant argues that her lack of awareness of
the name used on her false passport has no bearing on her potential status as a
refugee, and as such the Panel erred by basing its findings on an irrelevant
consideration, and also failed to consider the ROE, in which the applicant
stated that she never saw the documents used to gain admission to Canada.
[10]
The
applicant submits that the Panel did not have good grounds for making an
adverse credibility finding based on her lack of spontaneity in answering
questions about her relationships, and that it unreasonably made such a finding
on the basis that she had only had two relationships. With regard to her
contact with the police, the applicant states the Panel failed to establish
that she knew the police might mistreat lesbians before she asked for their
help, and as such cannot make an adverse credibility finding on this ground.
[11]
The
applicant states that the Panel failed to assess the applicant’s evidence in
light of what it knew about other similarly-situated persons in that country,
and failed to sufficiently consider the documentary evidence of the mistreatment
of lesbian police cadets.
RESPONDENT’S SUBMISSIONS
[12]
The
respondent argues, as a preliminary issue, that the applicant did not file her
own affidavit, but instead filed the affidavit of Mr. Fines, a research analyst
for the applicant’s lawyer. The respondent states that this is hearsay, as Mr. Fines
does not have any connection with the hearing other than his employment with
the applicant’s lawyer, does not attribute an adequate source for his
knowledge, and as such does not comply with Rule 10(2)(d) do the Federal
Court
Immigration and Refugee Protection Rules, 2003, which does not
permit hearsay evidence in an application such as the present one.
[13]
The
respondent also contends that the appropriate standard of review for the
panel’s findings concerning identity documents is patent unreasonableness. The
respondent further submits that the Panel had legitimate reasons for rejecting
the identity documents offered by the applicant. Specifically with regard to
the birth certificate, the respondent argues that it was reasonable for the
Panel to conclude that there was no reason for the claimant to request a second
birth certificate if she already possessed one, and to reject the other birth
certificate which was undated and did not indicate issuance by any government
authority. With respect to the library card, the respondent states that it was
reasonable for the Panel to disbelieve its authenticity, as it states an expiry
date of 2006, yet also states that it must be renewed at the end of the session.
[14]
Finally,
the respondent submits that the Panel was entitled to make adverse credibility
findings based on the applicant’s failure to identify fear of her father on her
PIF if it was part of the reason for her to flee persecution. The respondent
contends that the other findings of inconsistencies were reasonable and
sufficient to undermine the applicant’s credibility. With regard to the
questions about her relationships, the respondent states that it was reasonable
for the Panel to expect a person who had only had two partners to properly
remember the names of those partners.
ANALYSIS
[15]
It
is soundly established in the case law of the Court of Appeal and of this Court
that the standard of review for credibility determinations by the IRB is patent
unreasonableness (see, e.g. Thavarathinam v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(F.C.A.), at para. 4, recently applied in Ogiriki v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 420 , Mohammad
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J.
No. 493 ). The same standard of review applies to the assessment of the
legitimacy of identity documents (see, e.g. Egbokheo v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 285 and Kosta v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1233.
[16]
As
explained by the Supreme Court of Canada, the standard of patent unreasonableness
implies that this Court will not interfere with a decision unless “there is no
line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it
arrived" (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247,
2003 SCC 20).
[17]
Turning
next to the preliminary issue raised by the respondent, it is true that the
applicant did not submit her own sworn affidavit but rather included the
affidavit of a research analyst employed by her counsel. But the failure of an
application to be supported by affidavits based on personal knowledge has been
held not to result automatically in dismissal of an application for judicial
review (Moldeveanu v. Canada (Minister of Citizenship and Immigration) (1999),
235 N.R. 192 (F.C.A.); Turcinovica v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 164; and Ling v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1525 (QL)).
[18]
In the present case,
the affiant Mr. Fines can be said to have personal knowledge of the applicant’s
documents, but not of the events described therein. The relevant documents
appended to that affidavit formed part of the Tribunal record, and as such are
before this Court in any case. With regard to the alleged breach of Rule
10(2)(d), in my opinion the affidavit submitted counts as a “supporting
affidavit” within the meaning given by the Rules; this is consonant with the
above jurisprudence, wherein it was held that submission of an affidavit other
than the applicant’s is not in itself sufficient to justify dismissal of the
case. To my mind the application cannot be dismissed on this basis.
[19]
In its
decision, the Panel considered the identity documents offered by the applicant,
namely a birth certificate and a library card, and provided specific reasons to
support its rejection. The applicant claims that the Panel erred by relying on
its general experience with Nigerian refugee in drawing a negative inference. In
the Valtchev case, cited by the applicant, Justice Muldoon granted
judicial review of a negative refugee determination where he found, amongst a
plethora of other errors, that the Panel erred as follows:
33. Once again, the tribunal engages in
speculation: it admits that it has no precise information surrounding
birth registration requirements in Bulgaria during the period in which the
claimant was born, yet it nonetheless impugns the applicant's version of
events.
[20]
To my mind, the present case is
distinguishable; the panel did state, at p 2. of its reasons, that it “does not
find it plausible that the claimant could obtain her birth certificate merely
by
writing to a friend from Canada. It has
seen an affidavit from a parent or a nearest blood relative in the past
hearings of a birth to be registered and a birth certificate to be issued.” The
Panel went on to give several other reasons for rejecting the birth
certificate. In my opinion this cannot be said to amount to reliance on
generalizations based on a lack of precise information as described in Valtchev.
The Panel was entitled to rely on its expertise and experience in assessing the
evidence of refugee claimants. Accordingly, its decision to reject the
identity documents of the applicant cannot be said to be patently unreasonable.
[21]
Additionally, the applicant raises
the argument several times in her memorandum that the panel failed to
meet its obligation to alert her to its concerns about the reliability of both
her documents and her testimony. This issue was considered by Justice Phelan in
Farooq
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 867, in which he stated:
5. The applicant argues that the Board
did not give him a chance to respond to the allegations that the FIR and the
warrant of arrest were fraudulent since it was first brought up to him in the
decision and was not mentioned at all during the hearing. I do not agree. It
appears from the Tribunal Record, at pages 403 and 404, that the applicant was
confronted with his answers in his PIF about the existence of charges against
him and the explanations provided were not found satisfactory. With regard to
the implausibilities drawn by the Board, in many decisions this Court has
decided that the Board was under no obligation to alert an applicant of its
concerns about weaknesses in his evidence that could give rise to
implausibilities (see, for example, Sarker v. Canada (M.C.I.) (1998), 45
Imm.L.R. (2d) 209, Khorasani v. Minister of Citizenship and Immigration,
IMM-3198-01, 2002 FCT 936, Danquah v. The Secretary of State of Canada, [1994]
F.C.J. No. 1704, IMM-105-94, November 17, 1994, and Appau v. Minister of
Employment and Immigration, [1995] F.C.J. No. 300, A-623-92, February 24,
1995).
[22]
In
the present case, the panel confronted the applicant specifically with regard
to the problems related to her identity documents (see, for example, pp. 44-48
of the hearing transcript), as well as to its other credibility concerns (see,
for example, pp. 33-34, 41-42, 49-50). Furthermore, based on the jurisprudence
of this Court, it cannot be said that the Panel erred either by failing to
alert the applicant of weaknesses in her testimony or by drawing conclusions of
implausibility therefrom.
[23]
With
regard to the documentary evidence of the mistreatment of lesbian police cadets,
the Panel clearly considered this evidence, addressed it with the applicant at
the hearing (p. 38 of the hearing transcript), and concluded that it was
insufficient to support the applicant’s refugee claim. To my mind, this was not
unreasonable by any measure.
[24]
For
all the above reasons, I am of the view that this application for judicial
review must be rejected.
JUDGMENT
THIS COURT ADJUDGES that this
application for judicial review is dismissed.
"Yves
de Montigny"
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