Date: 20030506
Docket: IMM-2217-02
Citation: 2003 FCT 556
Ottawa, Ontario, this 6th day of May 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
NARDEEP SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Singh arrived in Canada from India in February 2001 and claimed refugee status. He claimed persecution in the Punjab region of India based on grounds of his Sikh religion.
[2] He engaged counsel in March 2001 and ultimately appeared for his hearing before the Immigration and Refugee Board in May 2002. The Notice to Appear that he received a month prior to the hearing informed him that the proceedings would not unreasonably be delayed and that he should present three copies of any documents he wanted the Board to consider. He had been previously notified, in January 2002, that certain documents were required - identification documents, birth certificate, school records and other documentation that would substantiate his claim.
[3] On his appearance before the Board, he was accompanied by a law student who requested that the proceedings be adjourned because Mr. Singh had not been able to obtain any documents to support his claim. The Board reserved the question of an adjournment until Mr. Singh had given evidence as to the steps he had taken to try to obtain the necessary documentation. The Board found that Mr. Singh had not been diligent in trying to obtain supporting documentation. It did not believe his explanations for the absence of documents.
[4] It went on to find that there was no credible or trustworthy evidence to support Mr. Singh's allegations of persecution in India and rejected his refugee claim. There was no documentary evidence before the Board even as to Mr. Singh's identity. He stated that he had a passport back in India but could not adequately explain why it had not been produced.
Issues
[5] Mr. Singh argues that the Board should have granted him an adjournment to enable him to retrieve documents to support his claim. In the alternative, he argues that the Board should have presumed his oral evidence to be true. In other words, the Board erred in requiring documentary evidence.
[6] On the issue of an adjournment, the Immigration Act, s. 69(6), states that the Board should not adjourn "unless it is satisfied that an adjournment would not unreasonably impede the proceedings." In addition, the Act requires the Board to proceed expeditiously (s. 68(2)). The Rules of the Board (SOR/93-45, s. 13(4)) permit it to take into account a number of factors in deciding whether to allow an adjournment, among them "the efforts made by the parties to proceed expeditiously," "the amount of time already afforded the parties for preparation of the case" and "the efforts made by the parties to make an application for a postponement or adjournment of the hearing at the earliest opportunity."
[7] Considering these factors and the evidence before the Board, I cannot conclude that the Board erred in not allowing an adjournment. No reasonable explanation for the delay in securing documents was offered.
[8] In respect of the merits of Mr. Singh's claim, the Board drew an adverse inference from the absence of documents that would have established the certain basic facts, such as Mr. Singh's identity, place of residence and marital status. The Board referred to a Practice Direction of March 11, 1997 in which counsel are notified that the Board may make adverse inferences where there is no reasonable explanation for a lack of documentary evidence or where there has been a lack of reasonable diligence in obtaining that kind of evidence.
[9] Jurisprudence of this Court emphasizes the importance of documentary evidence in relation to identity: Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL) (T.D.); Bhuiyan v.Canada (Minister of Citizenship and Immigration), 2003 FCT 290 (QL) (T.D.), [2003] F.C.J. No. 406 (QL) (T.D.); Elazi v. Canada (Minister of Citizenship and Immigration), [2000] A.C.F. No. 212 (QL) (T.D.). It is true, generally speaking, that the Board may not discredit a claimant's testimony simply because of an absence of documentary evidence, particularly in situations where it would not be reasonable to expect the applicant to have it at his or her disposal: Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (QL) (T.D.), Ahortor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J./A.C.F. No. 705 (QL) (T.D.).However, the Board did not reject Mr. Singh's claim solely because of an absence of documentation. It did so because it he had had "ample opportunity to seek documentation in support of his claim" and because it did not accept his explanations for failing to produce that evidence. In the end, the Board concluded that there was insufficient evidence before it to support Mr. Singh's claim.
[10] Again, I find no error or unfairness in the Board's approach. Accordingly, the application for judicial review is dismissed. No question of general importance was proposed for certification and none is stated.
JUDGMENT
IT IS HEREBY ADJUDGED THAT:
1. The application for judicial review is dismissed. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-2217-02
STYLE OF CAUSE: NARDEEP SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 30, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: May 6, 2003
APPEARANCES BY:
Mr. Ricardo Aguirre FOR THE APPLICANT
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ricardo Aguirre
Barrister and Solicitor
281 Eglinton Ave. E.
Toronto, Ontario M4P 1L3 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON FOR THE RESPONDENT
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