Date:
20121002
Docket:
IMM-1128-12
Citation:
2012 FC 1164
Ottawa, Ontario,
October 2, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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MERHAWI NEGASH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the January 13, 2012 decision of the Refugee
Protection Division of the Immigration and Refugee Board (“the Board”) in which
the Board determined that the Applicant was neither a Convention refugee nor a
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicant states that he is an Eritrean citizen. He arrived in Canada in October 2010, and made a claim for refugee protection in December 2010 on the grounds of
religious persecution for his membership in the Pentecostal Church in Eritrea.
[4]
The
Applicant grew up in the Orthodox Church, of which his parents are active
members. In his late teen years, he began attending a Pentecostal church, much
to the chagrin of his parents and the priests of the Orthodox Church. He was
expelled from the Orthodox Church, and his parents sent him to live with his
grandparents in another region of Eritrea. He later returned to live with his
parents, on the condition that he forfeit his ties to the Pentecostal Church.
[5]
After
his return, the Applicant again began attending Pentecostal services without
his parents’ knowledge. In June 2010, the Applicant was arrested in a raid of
a Pentecostal gathering he was attending. He alleges that he was beaten while
in custody. He was released almost three weeks later, agreeing to provide the
police with information about subsequent Pentecostal gatherings.
[6]
After
his release, the Applicant describes being watched. Out of concern for his
safety, the Applicant’s mother gave him her dowry, and sent him to live in Khartoum, Sudan. Once there, the Applicant met Jemal, the Sudanese agent who assisted him
in procuring travel documents and relocating to Canada.
II. Decision
under Review
[7]
The
Board determined that the Applicant had not established his identity on a
balance of probabilities and that this finding, along with other reasons,
demonstrated that the Applicant’s allegations and testimony were not credible.
[8]
The
Applicant submitted two documents to establish his identity: a baptismal
certificate and a birth certificate. The Board rejected the baptismal
certificate because the Applicant testified at the hearing that it was
erroneous. The Board had several concerns about the authenticity of the birth
certificate, namely that only the mother’s name was included, and that it was
prepared only in English, in contrast to the baptismal certificate that was
prepared in both English and Tigrinya. In addition, the size of the paper
on which the birth certificate was printed was different from that of the other
documents emanating from Eritrea, and the certificate was issued when the
Applicant was 23 years old. The Applicant was unable to explain where it came
from and how it was procured. The Board further relied on what it claimed was
a “made up legal phrase” on the face of the certificate: “This Birth
certificate is issued for the purpose of any legal effect.”
[9]
The
Board drew a negative inference regarding the Applicant’s credibility from his
“inability to provide basic information regarding the travel documents he used
to travel to Canada”. On one immigration form, the Applicant stated that the
passport was a fraudulent, Dutch passport issued to a certain Berhe Habte, and
that it was no longer in his possession when he made his claim for refugee
protection. When asked at the hearing whether the passport was an Eritrean
passport, the Applicant responded that he did not know, and then that it may
have been Sudanese.
[10]
In
addition, the Board identified several inconsistencies between the Applicant’s
testimony at the hearing and his Personal Information Form (PIF) and other
documents submitted in support of his application. Specifically, the Board was
not satisfied that the Applicant submitted sufficient evidence to demonstrate
his membership in Full Gospel Pentecostal Church in Eritrea.
[11]
Furthermore,
the Board drew a negative inference as to the Applicant’s credibility based on
his inability to give basic information about his three-month stay in Khartoum
and his conflicting accounts as to how he funded his payment of $10,000 to
Jemal, the agent who helped him come to Canada. The Applicant omitted “salient
information” on his PIF regarding how he funded his trip, notably that many
members of a Catholic church in Khartoum provided him with around half of the
amount required. On the PIF, the Applicant stated only that he paid Jemal with
the money he procured from the sale of his mother’s dowry.
[12]
The
Board determined that the documents submitted by the Applicant to demonstrate
his membership in the Pentecostal Church and the persecution both that he faced
in, and that he would face if he returned to, Eritrea were “self-serving and
unsupported by more reliable 3rd party documents.” It thus gave them “no
weight.” One such document was a letter from the Applicant’s friend, who
claims to be an “underground” member of the Pentecostal Church in Eritrea. However, the friend used the address of the Pentecostal Church as the return
address on the envelope of the letter he sent to the Applicant. The Board drew
a negative inference as to the Applicant’s credibility from his “unreasonable
explanation” of this discrepancy.
[13]
The
Board thus concluded that the claimant’s allegations and testimony were not
credible, and, consequently, that he had not established that there was a serious
possibility that he would be persecuted based on his religion or other grounds
listed in section 96 of IRPA or that he would face a personal danger of torture
or personal risk to his life or cruel and unusual treatment or punishment if he
were removed to Eritrea.
III. Issues
[14]
The
issues raised by the Applicant can be articulated as follows:
(a) Was
the Board’s determination with respect to the Applicant’s identity reasonable?
(b) Was
the Board’s credibility finding reasonable?
IV. Standard
of Review
[15]
Both
credibility findings and the treatment of evidence are areas within the Board’s
specialized expertise, and are thus owed significant deference. The Board’s
decisions on such matters is reviewable on the reasonableness standard (Mico
v Canada (Minister of Citizenship and Immigration), 2011 FC 964, [2011] FCJ
No 1187 at para 20; Aguirre v Canada (Minister of Citizenship and
Immigration), 2008 FC 571, [2008] FCJ No 732 at para 14).
[16]
Reasonableness
is concerned “mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Determination
of the Applicant’s Identity
[17]
The
Applicant contends that the Board’s decisions with respect to the birth
certificate and the baptismal certificate submitted by the Applicant to establish
his identity are speculative and conjectural. He submits that the Board’s
comments about the birth certificate did not clearly explain why it did not
accept the document as proof of the Applicant’s identity. The Applicant
further alleges that the Board’s decision was based on its purportedly
erroneous interpretation of the word “confirmed” on the face of the
certificate.
[18]
I
am unable to accept the Applicant’s arguments. The many concerns raised by the
Board with respect to the authenticity of the Applicant’s birth certificate
demonstrate a justifiable, intelligible and transparent decision-making process
that led to the reasonable conclusion that the document did not establish the
Applicant’s identity on a balance of probabilities. Moreover, the Applicant
was given an opportunity to address the Board’s concerns at the hearing, and
was unable to give a satisfactory answer. The Board’s decision on this point
was reasonable.
[19]
With
respect to the baptismal certificate proffered by the Applicant to establish
his identity, the Board did not rely on an interpretation of “confirmation” as
posited by the Applicant. Rather, the Board’s reasons underline the fact that
the Applicant admitted at the hearing that the document was erroneous. There
was thus nothing unreasonable about the Board’s conclusion that the Applicant
failed to establish his identity on a balance of probabilities.
B. Credibility
Findings
[20]
The
Applicant contests the Board’s adverse credibility findings on three grounds. First,
he submits that the Board erroneously discounted the documents submitted to
establish his membership in the Pentecostal Church because they were
“self-serving” and unsupported by third-party documents. Second, and
relatedly, the Applicant argues that the Board unreasonably expected a document
from the Pentecostal Church in Eritrea to support his claim of membership
therein. Third, the Applicant contends that the Board’s credibility findings
were made with respect to peripheral issues, and thus were not sufficient to
dismiss the Applicant’s entire case.
[21]
As
the trier of fact, the Board is entitled to weigh the evidence, and to assess
both its reliability and its probative value. While the Board’s reference to
the Applicants’ submitted letters as “self-serving” is questionable, it is well
established that it is “not necessary for every element of the tribunal’s
reasoning to pass the reasonableness test. The question is whether the reasons
as a whole support the decision” (Tenorio v Canada (Minister of Citizenship
and Immigration), 2007 FC 63, [2007] FCJ No 98 at para 7; Voice
Construction Ltd. v Construction & General Workers’ Union, Local 92,
2004 SCC 23, [2004] 1 S.C.R. 609 at para 31; Law Society of New Brunswick v
Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras 55-56).
[22]
A
review of the record, including the transcript of the hearing, reveals a myriad
of inconsistencies and omissions that the Board considered in coming to its
conclusions. The Board further gave the Applicant a number of opportunities to
address its concerns with respect to the evidence, and the Applicant was unable
to give satisfactory explanations. Taken as a whole, I find that the Board’s
reasons support the reasonableness of its decision.
VI. Conclusion
[23]
The
Board reasonably considered the evidence before it. Its conclusion that the
Applicant failed to establish his identity on a balance of probabilities and
its negative credibility finding were within the range of possible, acceptable
outcomes and are defensible with respect to the facts and the law.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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