Date: 20050125
Docket: IMM-3740-04
Citation: 2005 FC 103
Ottawa, Ontario, the 25th day of January 2005
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
PARMJIT KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] A very significant line exists between a finding in respect of identity and that of the narrative of the claim itself.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA. The decision was made on January 26, 2004 and the reasons were signed on March 26, 2004.
BACKGROUND
[3] A Sikh Indian citizen, the Applicant, Mrs. Parmjit Kaur, alleges a well-founded fear of persecution based on her political opinion and her membership in a particular social group.
[4] The facts, as alleged, are described by Mrs. Parmjit Kaur in her Personal Information Form (PIF). Mrs. Parmjit Kaur's husband was arrested and tortured in May 1994 and September 1995 for having helped the militants. He was released on both occasions with the intervention of the village council and the payment of a bribe. In November 1996, he was re-arrested and never returned subsequently. Mrs. Parmjit Kaur then moved to her parents' house. She joined Doaba Istri Sabha, a women's group dedicated to helping poor families and children of militants. Mrs. Parmjit Kaur and other women would travel to different villages to collect money in order to assist needy persons by distributing goods to them. On January 18, 2000, Mrs. Parmjit Kaur was arrested and accused of helping children of militants and of encouraging them to become militants. She was beaten and released the next day with the intervention of the village council, after the payment of a bribe. On April 12, 2001, the police raided the house in which she lived and the police found 42,000.00 rupees which she had collected for her charitable work. She was re-arrested and questioned with respect to her husband at which time she was tortured and raped. Police took photographs of her as well as her fingerprints and forced her to sign blank sheets of paper. After three days, she was released again with the intervention of the village council and the payment of a bribe. Subsequently, she found out that the police had raided her house in her absence. To avoid detection, she hid at the house of relatives in Delhi. Finally, she fled her country with the help of an agent and arrived in Canada on June 7, 2002, where she claimed refugee status at the airport.
DECISION UNDER REVIEW
[5] The Board concluded that Mrs. Parmjit Kaur did not prove her identity and that in addition, her narrative was not found to be credible, due to contradictions and ambiguity.
ISSUE
[6] 1. Was it patently unreasonable for the Board to find that the Applicant did not prove her identity?
ANALYSIS
[7] The appropriate standard for reviewing the Board's assessment of identity documents is patent unreasonableness [Gasparyan v. Canada (Minister of Citizenship and Immigration), Najam v. Canada (Minister of Citizenship and Immigration), Mayuma v. Canada (Minister of Citizenship and Immigration)]. The Court adopts Justice Kelen 's comments in Gasparyan, supra at paragraph 6:
The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.
The Court also endorses Justice Beaudry's comment in Najam, supra at paragraph 14:
Section 106 of the Act makes it clear that identity issues go to the credibility of the Applicant. The standard of review in credibility cases being the patently unreasonable nature of the Board's decision, it is logical to conclude that the question of whether the claimant possesses acceptable documentation establishing identity is to be reviewed by this Court only if the Board came to a patently unreasonable finding.
[8] It is worth reproducing the Board's findings on the identity issue. At pages 1 and 2, the Board writes:
To establish her identity, the claimant submitted the following documents: her birth certificate, her school leaving certificate, a two pages photocopy of her family ration card and an affidavit from the village Sarpanch. Except for the affidavit, none of these documents carry the claimant's picture. Furthermore, the claimant did not present the passport she used to come to Canada. She explained that the agent who arranged her trip took it from her, in the plane. However, she did submit an airline ticket, a boarding pass and luggage tickets. The problem with these documents is that they were issued to a Mrs. Kulwinder, which is not the claimant's name. The fact that she did not present her passport adversely affects her credibility. Particularly, in this case, I find the airline ticket and the boarding pass extremely important because they would have allowed the panel to establish the whereabouts of the claimant at the time of the incidents on which her claim is based. However, in this case, they do not because the name appearing on the airline ticket is not the claimant's. The importance of travel documents has been confirmed by Justice Nadon in the case of Elazi and by Justice Blais in the case of Museghe.
In light of all of the above, I find that the claimant did not present acceptable original documents establishing her identity in conformity with the Subsection (sic) 106 of the Immigration and Refugee Protection Act (IRPA) and Rule 7 of the Refugee Protection Division (RPD).
The question at this point is who is the claimant? Yes, she did submit a birth certificate, photocopies of her family ration card, a school certificate, but as I mentioned earlier, none of these documents carry her picture. When assessing the probative value of these documents, one must take into account the documentary evidence which states that throughout India, it is very easy to obtain false documents of any kind on payment of a bribe. In light of the documentary evidence and the claimant's lack of credibility, I find that she did not provide acceptable original documents establishing her identity in conformity with the IRPA and RPD Rules.
[9] In Ramalingam v. Canada (Minister of Citizenship and Immigration), Justice Dubé stated that identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise. The Court agrees with that statement but would qualify it by saying the following. If the Board finds, on the face of the documents, a number of inconsistencies, omissions or contradictions that are problematic enough to reasonably lead it to doubt the validity or authenticity of these documents, it is justified in concluding that the refugee claimant has not proven its identity [R.K.L. v. Canada (Minister of Citizenship and Immigration)]. The Board is not obliged to obtain expert evidence to show that a document is invalid [Allouche v. Canada (Minister of Citizenship and Immigration)].
[10] No explanation was given as to why the birth certificate, the school leaving certificate, the two pages photocopy of the family ration card and the affidavit from the village Sarpanch (with a picture) is given any weight and therefore, is not considered valid. The Board only mentions that "except for the affidavit, none of these documents carry the claimant's picture". The absence of a picture on certain documents does not, without any other evidence, invalidate these documents nor does it prove that they are fraudulent. At best, identity documents with pictures increase the probative value of the documents. Documents without pictures still have residual probative value of the documents. In Kathirkamu v. Canada (Minister of Citizenship and Immigration), little probative value was given to the birth certificate and the postal identity card, however, no explanation was provided as to why the Board rejected this evidence. Justice Russell concluded it was an error to find that apparently validly issued identity documents were fraudulent if there was no evidence to establish this. The Court comes to the same conclusion in the present case.
[11] Apart from the apparently insufficient number of pictures on Mrs. Parmjit Kaur's identity documents, the only other reason, given by the Board for concluding Mrs. Parmjit Kaur did not prove her identity, is the fact that she did not present the passport with which she travelled; and the name appearing on the airline ticket, luggage tags and boarding pass is not that of Mrs. Parmjit Kaur's but is rather that of a different name, Mrs. Kulwinder.
[12] As to the passport issue, Mrs. Parmjit Kaur explained that the agent, who arranged her trip, took it from her in the plane. In Attakora v. Canada (Minister of Employment and Immigration) (F.C.A.), the Federal Court of Appeal stated the following with respect to the identity documents of refugee claimants:
Does the Board think that only persons who arrive here with their travel documents in order can be refugees? Or that those who arrive with false documents have some obligation to preserve them?
[13] The Court also agrees with Justice O'Reilly's statement in Teneqexhiu v. Canada (Minister of Citizenship and Immigration) at paragraph 5:
The fact that Mr. Teneqexhiu had to resort to false documents in order to leave Albania and make his way to Canada is not a firm basis on which to impugn his credibility or the reliability of other documents: Takhar v. Canada (Minister of Employment and Immigration), [1999] F.C.J. No. 240 (QL) (T.D.), at para. 14. (Emphasis added)
[14] As for the airline ticket, luggage tags and boarding pass not bearing Mrs. Parmjit Kaur's name but rather someone else's, they bear the name with which she travelled, which is consistent with her story. The Board referred to the Elazi v. Canada (Minister of Citizenship and Immigration) decision to show the importance of submitting travel documents to the Board to allow "the panel to establish the whereabouts of the claimant at the time of the incidents on which her claim is based". The Elazi decision does not state that travel documents be made to the actual name of a claimant. It simply signifies that the Board is warranted in drawing a negative inference if the claimant does not present any of the travel documents which would assit in confirming the travel itinerary of the claimant. At paragraph 15, Justice Nadon stated:
There can be no doubt, as Reed J. stated, that the passport "would have provided some objective evidence of her travels through the various countries which she asserts took place". It goes without saying that the forged passport in the case at bar and the air ticket could have provided credible evidence of the plaintiff's identity and his journey to come to Canada.
[15] Consequently, according to the Elazi decision, the fact that Mrs. Parmjit Kaur presented her airline ticket, luggage tags and boarding pass, assists her version of the facts
[16] In conclusion, in relying solely on a few identity documents with a picture, in the absence of a passport and travel documents under someone else's name, to conclude that an asylum seeker has not satisfactorily proven his or her identity is patently unreasonable. If fraudulent, suspicious or contradictory statements had been noted by the Board in respect of identity documents, its anlysis would have been justified; however, in the absence of a more compelling assessment in regard to Mrs. Parmjit Kaur's identity, the Board's finding on the identity issue cannot stand.
[17] Furthermore, he Board states that "the claimant did not present acceptable original documents establishing her identity in conformity with the Subsection (sic) 106 of the Immigration and Refugee Protection Act (IRPA) and Rule 7 of the Refugee Protection Division (RPD)". It later concluded that "[i]n light of the documentary evidence and the claimant's lack of credibility, I find that she did not provide acceptable original documents establishing her identity in conformity with the IRPA and RPD Rules". Section 106 of 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.
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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.
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The reasons of the Board, in respect of the claimant's absence of bona fide original identity documents "in conformity with the Subsection (sic) 106 of" IRPA would lead one to think that section 106 provides the criteria for proving one's identity. In reality, section 106's primary focus is on credibility. What section 106 basically states, is that the claimant has the burden of proving his or her identity and if he or she fails to do so in a satisfactory manner, this can affect credibility; such wording is preferable to avoid confusion about the purpose of section 106 of IRPA.
[18] Finally, the Court finds that, despite its conclusion that the Board erred in its manner of assessment of Mrs. Parmjit Kaur's identity and should therefore reexamine the matter on that basis, the Court has no difficulty in respect of the overall credibility finding of the Board in regard to the Court's required standard of judicial review. It is worth noting that the latter finding, is not contested by Mrs. Parmjit Kaur. The Board stated that the evidence contained major discrepancies in respect of the core of her claim, namely her involvement with the Doaba Istri Sahba organization (contradictions as to the date and context in which she joined the organization; unreliable corroborating evidence of her implication in the organization; an absence of any general documentary evidence, confirming the existence of the organization; the difficulty of Mrs. Parmjit Kaur to provide information in respect of the organization, other than the name of its founder). The Board also concluded that Mrs. Parmjit Kaur's behavior did not correspond to that of a person with a subjective fear for her life (despite her, having been arrested twice and having been raped, it is noted that she fled her country one year after the events). Finally, the Board found that Mrs. Parmjit Kaur was an uncooperative witness whose answers were often evasive and, at times, confusing; and to certain questions, she did not respond whatsoever.
CONCLUSION
[19] For these reasons, the Court answers the question at issue in the affirmative. Consequently, the application for judicial review is granted.
ORDER
THE COURT ORDERS that this application for judicial review be granted. There is no question to be certified.
"Michel M.J. Shore"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3740-04
STYLE OF CAUSE: PARMJIT KAUR
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 20, 2005
REASONS FOR
ORDER AND ORDER: The Honourable Mr. Justice Shore
DATE OF REASONS FOR
ORDER AND ORDER: January 25, 2005
APPEARANCES:
Mr. Jean-François Bertrand FOR THE APPLICANT
Ms. Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
BERTRAND, DESLAURIERS FOR THE APPLICANT
Montreal (Quebec)
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
[1998] F.C.J. No. 10 at paragraph 5 (F.C.T.D.) (QL).
(2003) 26 Imm. L.R. (3d) 292, [2003] F.C.J. No. 162 (QL) at paragraph 11.
[2000] F.C.J. No. 339 (QL) at paragraph 5.
2003 FCT 409, [2003] F.C.J. No. 592 (QL) at paragraph 34.
(1989) 99 N.R. 168 (F.C.A.), [1989] F.C.J. No. 444 (QL).
2003 FCT 397, [2003] F.C.J. No. 560 (QL).
(2000) 191 F.T.R. 205, [2000] F.C.J. No. 212 (QL).
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