Date: 20040310
Citation: 2004 FC 360
Ottawa, Ontario, the 10th day of March 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
Docket: IMM-3704-03
BETWEEN:
JOHN DOE 2004
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND
Docket: IMM-6432-03
BETWEEN:
JOHN DOE 2004
Applicant
and
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Was the applicant a student activist during the 1980s in a country that cannot be identified because of a confidentiality order? I do not know.
[2] Is the applicant wanted by the police in his country of origin? I do not know.
[3] Was the applicant found guilty, in absentia, of an offence in his country of origin and did he later acknowledge this conviction? I do not know.
[4] These are two applications for judicial review of two decisions by the Immigration and Refugee Board, dated April 25, 2003. One decision was on an application for permanent residence on humanitarian and compassionate grounds, dated September 11, 2000, under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the other decision pertained to the pre-removal risk assessment (PRRA), where the Board found that the applicant would not be at risk if he were to return to his country and that he would not be subjected to persecution, torture, a risk to his life or a risk of cruel and unusual treatment or punishment.
[5] The docket bearing number IMM-3704-03 concerns the application for permanent residence on humanitarian and compassionate grounds, and the docket bearing number IMM-6432-03 concerns a PRRA application. The following reasons apply to both cases.
[6] The known facts are that, in Canada, there had not been an impartial review on the matter of protection before the removal to the country of origin, nor on the application for permanent residence status for humanitarian and compassionate reasons.
[7] The Board did not accept the applicant's identity. Although the officer believed him in part, she was not persuaded that Mr. Doe had been found guilty of an offence in his country of origin and that he had been sentenced to six years in prison for crimes that he says he never committed. The Board came to the conclusion that the person being sought was someone [TRANSLATION] "else" and that it was this person who was found guilty of these crimes.
[8] It appears that this [TRANSLATION] "other" person has the same surname and first name as that of the applicant's father. The applicant and this other person were both born on the same day and lived in the same place with many of the same friends.
[9] The documentary evidence illustrates the fact that the police confused the two first names and, accordingly, the identity of these two persons. The applicant had obtained five affidavits from individuals who had known him during the years in question. All five of them said that there was only one person named "Mr. Doe". One of the affiants even mentioned that he had seen criminal records in his country and had noted the confusion about the identity of the person. The applicant and the five affiants volunteered to be questioned about this, but this offer was refused.
[10] Keep in mind that the burden of proof rests on the shoulders of the applicant. However, it is also reasonable to say that it would be impossible for him to produce the birth certificate of a person that does not exist. It is also important to point out that it is unlawful for the applicant to have somebody else's birth certificate.
[11] The applicant came to Canada with his brother's passport because, he said, it was impossible for him to obtain his own. The Board did not find the story of his journey to Canada credible, even after seeing the visa stamps in the passport as well as the plane ticket. The fact that the Board did not believe the applicant is patently unreasonable, because the immigration officer refused to believe something which was, obviously, [TRANSLATION] "as plain as day".
[12] As stated in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, when an applicant swears that the allegations are true, this creates a presumption:
It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant's credibility concerning the sworn statements made by him and referred tosupra. When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness . . . On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant's allegations above referred to.
[13] Despite the latitude that is given to the Board in the assessment of credibility, the Board has the duty to identify all unfavourable credibility findings in "clear and unmistakable terms" (see Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228). This normally includes the duty to give examples or illustrations of the reasons in order to explain why the applicant's testimony was not accepted, as discussed in Gonzalez v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1256.
In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted supra is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228.)
[14] The Board suggests that the applicant does not have a subjective fear of persecution. This may be the case, but the question must be asked while keeping an open mind for other possibilities since, in this case, a careful review of the evidence indicates that it would be absolutely impossible for there to be so many [TRANSLATION] "major coincidences". It is also impossible to find that the applicant had received a full and fair hearing. However, the applicant's credibility is called into question by the evidence in relation to sections 96 and 97 of the Act. This evidence is very important and cannot be disregarded in this matter.
[15] Moreover, there are additional objections raised by the applicant that need not be resolved in this proceeding and could be addressed subsidiarily. These objections include the question of whether the pre-removal risk assessment (PRRA) decision must be disclosed to the applicant so that he can make his own comments, and whether it is reasonable that the same immigration officer hear the two cases and that this officer rule on the PRRA, as well as on the application for consideration on humanitarian and compassionate grounds.
ORDER
[16] Since, in this case, section 167 of the Immigration and Refugee Protection Regulations ("Regulations") applies only to the PRRA, I order that the PRRA application be heard first. Once the PRRA has been decided, the application for consideration on humanitarian and compassionate grounds can, if necessary, be considered.
[17] I also order that the PRRA be heard by another immigration officer and that the hearing record be disclosed in accordance with section 167 of the Regulations. The applicant and the five affiants who filed affidavits may be present at the hearing and may also file evidence.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: IMM-3704-04,
IMM-6432-03
STYLE OF CAUSE: JOHN DOE 2004
and
SOLICITOR GENERAL OF CANADA
AND:
JOHN DOE 2004
and
MINISTER of CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 24, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: MARCH 10, 2004
APPEARANCES:
Denis Girard FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Denis Girard FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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