IMM-4605-96
B E T W E E N:
KASHMEER
SINGH MANDAR
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
REED, J.:
I have been persuaded that
the decision under review must be set aside. At the commencement of the
hearing of the applicant's claim for refugee status, the panel of the
Convention Refugee Determination Division of the Immigration and Refugee Board
indicated that the applicant's identity was not an issue. I quote from the
transcript:
COUNSEL
[for the applicant] Well, I don't know if identify is going to be
an issue. There is at least two pieces of identity documents. I'll leave that
to you. I really don't see identity as an issue. Now, the claimant is from a
neighbouring state to Punjab where traditionally most of the Sikhs live, so I..
and he has attempted to live in both these states, Rajasthan and Punjab. I
don't see IFA as an issue, but I think there is something unusual in the fact that
Mr. Mandar is a minority from the state of Punjab itself and I think probably
it would be appropriate to find out if he could go back to either Punjab or
Rajasthan today and what the nature of his fear is. I don't see anything else
as an issue.
TURLEY
[presiding member] Ms. Park?
RCO I
would add the possibility of Delhi as an IFA as the claimant indicated that he
spent an unknown period of time in Delhi. It's not clear from the PIF how long
he was there. And there are.. credibility may arise as an issue in the course
of the hearing and I bring it up specifically in relation to some items in the
port of entry notes.
TURLEY
Mr. Berman?
BERMAN
[panel member] In terms of identity we have identity
documents so at this point identity wouldn't seem to be an issue. Thank you.
Principle issue of course is the claimant's credibility.
As the hearing progressed questions were posed concerning
one of the documents that the applicant had produced to prove his identity -
his driver's licence. Questions also arose concerning the date on which he
entered Canada. A photograph that formed part of his file carried a stamp
indicating it had been taken by a photographer in Malton, Ontario, on October
27, 1994. The applicant claimed to have entered Canada on November 3, 1994.
At the end of the hearing, when making submissions with respect to the evidence
the RCO stated:
The
following issues were raised at the outset of the hearing, credibility,
internal flight alternative and the well-foundedness of the claim. It was
stated at the outset that identity wasn't an issue, but I raise it as an issue
as it is linked to my credibility submissions with respect to the documents
provided by the claimant.
The panel did not confirm that identity was now an issue. Counsel for
the applicant did not address this issue nor seek to submit further evidence
with respect to the applicant's identity. (The record indicates that the
applicant has a brother in Canada.)
In rendering its decision, the panel concluded that it had
concerns about the claimant's credibility and identified several aspects of the
evidence as being the source of those concerns. The panel concluded:
The claimant was unable to provide any
identity document which did not raise questions about whether it actually
belonged to him. The panel gives little weight to Exhibits C-2 and C-3.
....
The onus of proof is on the claimant
with respect to identity. He has failed to satisfy that onus even on a balance
of probabilities.
I have concluded that the applicant was not given adequate
notice that his identity was in issue. The panel, at the outset of the
hearing, indicated that it was not. The R.C.O., at the end of the hearing,
indicated that in his view it had become one. The panel did not endorse this
assertion. Applicant's counsel was entitled to assume that it was still not an
issue and that he did not need apply to reopen the hearing for the submission
of further evidence with respect to identity.
There are, as well, some difficulties with the factual
findings of the panel concerning identity. These probably arise because
identity was not addressed as an issue. The panel refers to exhibits C-2 and
C-3, the applicant's driver's licence and his birth certificate. The applicant
was questioned about his driver's licence because it showed a permanent
residence address different from where the claimant stated he lived. His
explanation for this discrepancy was a matter the panel could legitimately
believe or not. However, the panel gave no reason for disbelieving the birth
certificate.
The RCO in making submissions to the panel stated that the
birth certificate should be discredited because it contained no picture of the
applicant and because it was an English translation. These appear to be
dubious assertions. One has to ask whether it is usual for birth certificates
of this type to carry a picture of the individual. Secondly, the document does
not purport to be an English translation. It is issued in English but the
applicant had no opportunity, given the lack of questioning about the
authenticity of the document during the hearing, to explain whether or not
birth certificates issued in India may be issued in English.
In any event, one cannot assume that the panel accepted the
RCO's submissions. The panel gave no reasons for giving little weight to the
birth certificate. It seems to have simply ignored that document.
For the reasons given the decision under review is set
aside and the claim referred back for rehearing by a differently constituted
panel.
"B.
Reed"
Judge
Toronto, Ontario
October 3, 1997
FEDERAL
COURT OF CANADA
Names
of Counsel and Solicitors of Record
COURT NO: IMM-4605-96
STYLE OF CAUSE: KASHMEER
SINGH MANDAR
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
DATE OF HEARING: OCTOBER
3, 1997
PLACE OF HEARING: TORONTO,
ONTARIO
REASONS FOR ORDER BY: REED,
J.
DATED: OCTOBER
3, 1997
APPEARANCES:
Mr.
Lorne Waldman
For
the Applicant
Ms.
Ann-Margaret Oberst
For
the Respondent
SOLICITORS OF RECORD:
Lorne
Waldman
Barrister
and Solicitor
281
Eglinton Avenue East
Toronto,
Ontario
M4P
1L3
For
the Applicant
George Thomson
Deputy
Attorney General
of
Canada
For
the Respondent
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