Kazadi v. Canada (Minister of Citizenship and Immigration), 2005 FC 292

                                                                                                                                  Date: 20050224

                                                                                                                      Docket: IMM-4740-04

                                                                                                                        Citation: 2005 FC 292

BETWEEN:

                                                CHRISTIAN KABUNDA KAZADI

                                                                                                                                            Applicant

                                                                           and

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

de MONTIGNY J.

[1]                This is an application for judicial review to set aside the decision by the Immigration and Refugee Board (the Board) dated April 28, 2004, determining that the applicant is not a "Convention refugee" or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27).

[2]                Christian Kabunda Kazadi is a citizen of the Democratic Republic of Congo. He was doing business between Kinshasa and Kasaï-oriental, where he went to purchase corn or beans for resale to Kinshasa merchants.

[3]                The applicant alleges that he went to Kisangani on August 28, 2003, where he encountered two friends with whom he had purchased 100 bags of beans to sell to Ms. Nyota, the mistress of General Kalume in Kinshasa. On September 8, 2003, while he and his friends were negotiating the terms of payment for those bags of beans with Ms. Nyota, General Kalume caught them and began to beat her. The applicant submits that he and his friends then intervened, leading to their arrest and detention. They were then accused of conspiracy to usurp power through the General's mistress.

[4]                On September 24, 2003, the applicant escaped from prison with the help of his friend's uncle, now a British citizen, who was on vacation in Kinshasa with his two sons. The uncle in question then agreed to bring the applicant with him, leaving one of his sons in Kinshasa so that he could use his passport. He finally arrived in Canada on October 30, 2003, and he claimed refugee status two weeks later.

[5]                In its decision, the Board first determined that the applicant had not succeeded in establishing his identity. Not only had the applicant declared that he had travelled with a false passport, which he had given back to his smuggler with his plane ticket and his boarding pass, but also the documents filed in support of his identity had no probative value. Some of those documents did not have photographs, did not identify the applicant, or in the Board's opinion had simply been forged.

[6]                Second, the Board noted several contradictions and omissions in his testimony and on his Personal Information Form, which are not necessary to review now. Suffice to say that the Board could not understand how a commander of the Detection of Unpatriotic Activities Police could have facilitated his escape when his three brothers and two friends were still in prison, given the fact that the applicant had declared that he was the most targeted of the group.

[7]                The applicant submitted that the Board had erred in refusing to assign any probative value whatsoever to the documentation that had been submitted to it, since such documents issued by a foreign government are presumed to be authentic in the absence of evidence to the contrary. It was submitted that the Board should have asked for an expert's report if it doubted their validity. Finally, it was alleged that the Board could not rely on travel documents to impugn the applicant's credibility.

[8]                It is well established that persons claiming refugee status must first establish their identity. It is in fact essential that the applicant be able to establish that he really is the person that he claims to be before his claim can be considered. That requirement also comes from section 7 of the Refugee Protection Division Rules, which provides:

[9]                Section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, establishes further that the Refugee Protection Division take into account the lack of acceptable documentation in assessing the applicant's 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.

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]            Since the question of whether the applicant has documentation establishing his identity is essentially a question of fact and credibility, of course this Court will not intervene unless the Board's decision is patently unreasonable (Najam v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 425 (F.C.) (QL); Husein v. Canada (M.C.I.), [1998] F.C.J. No. 726 (F.C.) (QL); Gasparyan v. Canada (M.C.I.), [2004] F.C.J. No. 1103 (F.C.) (QL)).

[11]            In this case, the Board was perfectly justified in considering that the documents submitted by the applicant to attest to his identity were not credible. Those documents did not bear the applicant's photograph, contained many spelling errors and sometimes were several years old; specifically with respect to the birth certificate, the Board was indeed entitled to determine that the document was forged based on its dubious appearance (irregular lettering, dots sometimes very close together, sometimes very far apart, alignment very variable). That finding was quite substantiated by other findings unfavourable to the applicant with regard to the credibility of his story.

[12]            The Board was not bound to request an expert's report in order to assess the probative value of these documents, considering their many discrepancies on their very face. That is what this Court has decided many times, and Mr. Justice Joyal's comments in Culinescu v. Canada (M.C.I.) ([1997] F.C.J. No. 1200 (F.C.) (QL)) illustrate this well:

In the case at bar, the applicants contend that the panel committed an unreasonable error in finding that their claims concerning legal proceedings were implausible. Their argument is based on the fact that there was no evidence that contradicted their testimony or that could have caused it to be implausible. They submit that it was the Board's duty to have the documents they filed in evidence studied by experts, especially if it doubted their authenticity.

The Board had no such duty. It is enough that there be sufficient evidence before it to cast doubt on the authenticity of the order to stand trial to find that the applicants' testimony was implausible.

-         See also: Akinele v. M.C.I., [2002] F.C.J. No. 68 (F.C.) (QL)

-         Hossain v. M.C.I., [2000] F.C.J. No. 160 (F.C.) (QL)

-         Tshimanga v. M.C.I., [1999] F.C.J. No. 891 (F.C.) (QL)

-         Tcheremnykh v. M.C.I., [1998] F.C.J. No. 1310 (F.C.) (QL)

[13]            Finally, the Board was entirely justified in making a negative inference regarding the applicant's credibility based on the fact that he did not have a passport, plane ticket or boarding pass to establish his identity and to confirm his route. It relied moreover on this Court's decision in Elazi v. M.C.I. ([2000] F.C.J. No. 212 (QL)), referring to the following passage:

I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is to easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods.

Minimizing the importance of the passport and air ticket as documents to be produced or ignoring their non-submission for all sorts of reasons in my opinion only serves to encourage all those whose only purpose is to take advantage of a system which is intended solely to enable genuine refugees to come to Canada.

[14]            The applicant attempted to rely on a later decision by Martineau J. (R.K.L. v. M.C.I., [2003] F.C.J. No. 162 (QL)), in which he stated that in his opinion, a refugee claimant lying about the validity of his passport is irrelevant in determining if he is truly a refugee. It is however important to point out that the Court explicitly made a distinction with Elazi, where the very identity of the applicant was called into question. That is precisely the situation that faced the Board.

[15]            Finally, the Board also noted that the applicant had not taken the steps necessary to obtain acceptable documentation and that he had not tried to obtain his card attesting to a loss of identification left in Kinshasa even though he had been able to obtain unsigned letters from two individuals in the Democratic Republic of Congo in an attempt to establish his identity.

[16]            All said and done, the Board did not make a patently unreasonable error in finding, based on the record before it and the applicant's testimony, that he had not satisfactorily established his identity. That finding, in itself, amounted to a fatal flaw and could have led to the dismissal of the applicant's claim.

[17]            The Board nevertheless continued its analysis of the evidence submitted, which led it to identify several omissions in his Personal Information Form (PIF), contradictions between his testimony and his PIF, and implausibilities in his story. Based on that it determined that the applicant was not credible.

[18]            In his written submissions and at the hearing, the applicant's counsel did try to explain those contradictions and omissions. He did not persuade me, however, that the Board made patently unreasonable findings based on the facts that were before it. Case law has consistently recognized that a tribunal can rely on the contradictions in the evidence submitted (Kumar v. M.E.I., [1993] F.C.J. No. 219 (F.C.A.) (QL); Wen v. M.E.I., [1994] F.C.J. No. 907 (F.C.A.) (QL); He v. M.E.I., [1994] F.C.J. No. 1107 (F.C.) (QL); Alizadeh v. M.E.I., [1993] F.C.J. No. 11 (F.C.A.) (QL); Mostajelin v. M.E.I., [1993] F.C.J. No. 28 (F.C.A.) (QL)), or on omissions of important facts in the PIF (Basseghi v. M.C.I., [1994] F.C.J. No. 1867 (F.C.) (QL); Grinevich v. M.C.I., [1997] F.C.J. No. 444 (F.C.) (QL); Mostajelin v. M.E.I., supra; Lobo v. M.C.I., [1995] F.C.J. No. 597 (F.C.) (QL); Kutuk v. M.C.I., [1995] F.C.J. No. 1754 (F.C.) (QL)), to find that the applicant lacks credibility.

[19]            As a specialized tribunal, the Board has an established expertise in the areas that fall within its jurisdiction. Further, it has the benefit of seeing and hearing the refugee claimant and is therefore in a better position than this Court to assess his credibility. That is why the power of judicial review must be used cautiously, and only in the most egregious cases. After hearing the parties and carefully reviewing the record and the memoranda filed by each of the parties, I am not persuaded that this is one of those exceptional cases warranting the intervention of this Court.

[20]            Finally, I cannot conclude these reasons without saying something about the documentary evidence on the situation in the Democratic Republic of Congo submitted by the applicant's counsel, which he emphasized at length at the hearing. That evidence cannot in itself be of any help to the applicant. Even if the situation in a given country may be particularly difficult, especially in terms of human rights or of safety in general, the personal situation of the applicant must also be such that he fears (objectively and subjectively) persecution, torture, or threats. It is precisely this link between the general situation in the DRC and the applicant that is missing, given the little credibility that the Board assigned to his story (Rahaman v. M.C.I., [2002] 3 F.C. 537 (F.C.A.); Canada (Secretary of State) v. Jules, [1994] F.C.J. No. 835 (F.C.) (QL)).

[21]            For all of these reasons, I would dismiss this application for judicial review.

                                                                                                                             "Yves de Montigny"                     

                                                                                                                                                   Judge                                

Certified true translation

Kelley A. Harvey, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                           IMM-4740-04

STYLE OF CAUSE:               CHRISTIAN KABUNDA KAZADI v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       January 26, 2005

REASONS FOR ORDER:                de Montigny J.

DATE OF ORDER:                           February 24, 2005

APPEARANCES:

Ella Lokrou                                                                                                     FOR THE APPLICANT

Suzon Létourneau                                                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Stewart Istvanffy

Montréal, Quebec                                                                                           FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario                                                                                          FOR THE RESPONDENT