Date: 20071105
Docket: IMM-1656-07
Citation: 2007 FC 1119
Ottawa,
Ontario, November 5, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NELLY
CAROLINA HERNANDEZ SANTOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 of a decision of the
Immigration and Refugee Board (the Board), dated December 31, 2006, in which it
was determined that the applicant was neither a Convention refugee nor a person
in need of protection.
ISSUES
[2]
Two
issues are raised by the applicant:
a) Did the Board
err by not referring the applicant’s identity card to the RCMP for forensic analysis?
b) Did the Board err by
failing to consider relevant material evidence?
[3]
For
the reasons that follow, I find that the Board did not err. Therefore,
the judicial review application shall be dismissed.
FACTUAL BACKGROUND
[4]
The
applicant, Nelly Carolina Hernandez Santos, purports to be a citizen of Honduras, born on
August 16, 1980. She claims to be a Convention refugee and a person in need of
protection on three bases: she alleges that she is a victim of spousal abuse, a
target of the Mara Salvatrucha gang that killed her father and cousin, and a
single mother without male protection.
[5]
The
applicant left Honduras on September 16, 2005 and arrived in Canada on
October 7, 2005, travelling through the United States. She was
intercepted after having crossed the border on foot, and interviewed by an
immigration officer. She made a claim for asylum on November 12, 2005.
[6]
Only
a Republic
of Honduras
National Public Registry Identity Card was provided as proof
of the applicant’s identity. This card, which the documentary evidence reveals
is issued by the Government of Honduras to citizens at the age of 18, bears
both a photograph and a fingerprint of the cardholder.
[7]
The
applicant claims to have three children born in Honduras. According
to her account the first was born in 1996 as a result of the applicant’s rape at the
hands of a gang member named Enrique Portillo. The second and third children
were born in 1997 and 2000 respectively, while the applicant was in a common-law
relationship with a man by the name of Oswaldo Espinal. The applicant claims
that she left her children in the care of her cousin in Honduras when she left
for Canada.
DECISION UNDER REVIEW
[8]
The
Board identified an impressive list of issues which might be fatal to her
claim, but rendered its decision solely on the grounds of identity and
credibility. The Board decided that the applicant failed to provide sufficient
credible and trustworthy evidence to establish her personal identity, or the allegation
that she is the mother of three children in Honduras.
[9]
The
Board concluded that the applicant did not establish, on a balance of
probabilities, that she was the rightful holder of the national identity card,
and therefore had not established her identity. The Board did not question the
genuine nature of the document, but simply that the applicant was the rightful
cardholder. The Board gave the following reasons for doubting the identity of
the applicant:
a) The presiding
member did not find that the applicant was recognizable as the person in the photograph
on the identity card, though she admitted there was a faint resemblance.
b) The applicant
gave evidence inconsistent with the documentary evidence about the issuance of
national identity cards in Honduras. The Board found that
her statement that she did not have a birth certificate at the time she
obtained her national identity card to be contrary to the documentary evidence,
which stated that it is necessary to present a birth certificate in order to
receive the card. The Board preferred the evidence provided by the Embassy of
Honduras in Ottawa.
c) The identity
card was issued on February 17, 2005. The Board concluded that the issue date
on the card raised credibility questions, because the card was issued when the
applicant was 24 years of age; the documentary evidence stated that all
Hondurans receive that card at 18 years of age. The applicant explained this
discrepancy by saying that she lost the original one.
d) The Board
drew a negative inference from the applicant’s claim that she was originally issued
the card in the year 2000 in order to vote in an upcoming election. The
country information revealed that general elections were held in November 1997,
and again in November 2001. There was no national election in the year 2000.
e) There were
inconsistencies in the oral evidence regarding the existence of the applicant’s
birth certificate. Initially, she stated that she did not have a birth
certificate, and later stated that she had one, but did not know where it was.
[10]
The
Board found that, owing to the applicant’s lack of credibility on the matter of
identity, it was not necessary to refer the identity card to experts for a
comparison of the fingerprint on the card to that of the applicant.
[11]
The
Board also doubted whether the applicant was in fact the mother of three
children born in Honduras. She provided a birth certificate for each
child with Nelly Carolina Hernandez Santos listed as the children’s mother;
however, the Board identified other considerations that eroded the applicant’s
credibility with regard to her children:
a) Of
considerable importance was the fact that when the applicant was intercepted
past the Canadian border, she informed the officer that she had never used any
other names, was single, never married, and had no children. At the hearing,
when questioned about the statement, she explained the contradiction by saying
she had told the officer that she had no family, but denied ever telling
him that she had no children.
b) The Board
found that the applicant’s evidence surrounding the birth certificates of the
children to be implausible. While the first child’s birth certificate bore the
name of Enrique Portillo, and the second child’s birth certificate bore the
name of Oswaldo Espinal, the name of the third child’s father was not listed on
the birth certificate. The applicant explained that she had not listed
Espinal’s name on the youngest child’s birth certificate because Espinal had
beaten her while she was pregnant with the child. The Board found it
implausible that she would have refused to put Espinal’s name on the birth
certificate, and not refused to put Portillo’s name on that of the first child,
granted that the first child was conceived by rape, and Portillo was not present
at the time of his child’s birth.
c) The applicant
was asked at the hearing whether she had photographs of her children. She
described one sent to her three months earlier, but admitted that there were
none of her and her children. She could not provide any written correspondence
from her children, claiming that they communicated with her only by telephone.
[12]
The
Board made several other negative credibility findings, based on
inconsistencies in the written and oral evidence presented by the applicant:
a) There were
discrepancies in the applicant’s evidence concerning the existence and
whereabouts of her siblings. During the interview with Canada Border Services
Agency, she stated that she had a sister in Honduras, but that
she had not spoken to her in eight months. In her original PIF, she listed only
one sibling, a sister, who is also mentioned in the English version of her
original narrative statement. In the Spanish version of the original narrative
she claimed to have one brother and one sister. After retaining counsel the
applicant submitted an amended PIF in which she listed a second older sister.
At the hearing she tried to reconcile the discrepancies by implying that her
deceased father had told her that she may have other siblings. The Board did
not accept this explanation.
b) The
applicant’s unfamiliarity with the city of San Pedro Sula also
resulted in a negative inference of credibility on the part of the Board. She
claimed to have gone to San Pedro Sula to escape the father of
her first child, but described it as small city. The Board took judicial
notice of the fact that the city’s population is approximately one million.
ANALYSIS
Standard of Review
[13]
The
applicant submits that the Board breached her right to procedural fairness by
not referring the identity card for fingerprint comparison. A breach of
procedural fairness would be reviewable on a standard of correctness. However,
this Court has determined that the Board is not under any duty to refer
identity documents for expert or forensic analysis; rather determinations
relating to the validity of an identity documents are reviewable on either a
standard of patent unreasonableness or reasonableness simpliciter.
[14]
In
Ehioghiren v. Canada (Minister of
Citizenship and Immigration), 2006 FC 985 , [2006] F.C.J. No. 1244 (QL)
at paragraph 7, Justice Phelan wrote:
While there is some debate about whether
identity findings should be subject to review on a standard of patent
unreasonableness (see: Gasparyan v. Canada (Minister of Citizenship and
Immigration), 2003 FC 863, [2003] F.C.J. No. 1103 (QL); P.K. v. Canada
(Minister of Citizenship and Immigration), 2005 FC 103, [2005] F.C.J. No.
130 (QL); and Najam v. Canada (Minister of Citizenship and Immigration),
2004 FC 425, [2004] F.C.J. No. 516 (QL)) or reasonableness simpliciter
(see: Rasheed v. Canada (Minister of Citizenship and Immigration), 2004
FC 587, [2004] F.C.J. No. 715 (QL)), this case does not turn on that issue. For
purposes of this analysis, I have adopted the reasonableness simpliciter
standard although the Board's finding on identity is intermingled with
credibility findings based on the Applicant's PIF and his testimony.
See also Niyongabo v. Canada (Minister of Citizenship and Immigration), 2006 FC 363, [2006] F.C.J.
No. 459, at paragraphs 21-23.
[15]
Following
Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732 (F.C.A) (QL), determinations
regarding credibility are reviewed on the standard of patent unreasonableness.
[16]
Whether
the overall decision regarding the applicant’s identity is reviewed on the
standard of patent unreasonableness or reasonableness simpliciter, I am
not of the opinion that the Board committed a reviewable error in this case.
Did the Board err by not
referring the applicant’s identity card to the RCMP for forensic analysis?
[17]
The
Board did not err by refusing to send the ID Card to the RCMP to have the
fingerprint on the card compared to the applicant’s fingerprint.
[18]
The
respondent submits that the Board is entitled to assess the claimant’s identity
without the benefit of expert evidence, relying on the Court’s decision in Wang
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 590, [2001] F.C.J. No. 911 (QL) at
paragraphs 16-20. The respondent further cites Hossain v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 160 (F.C.T.D.), and Jin
v. Canada (Minister of Citizenship and Immigration), 2006 FC 126, [2006]
F.C.J. No. 181, in support of the argument that the Board is not required to
conduct a forensic assessment of the applicant’s identity card.
[19]
In
Hossain, above, at paragraph 4, Justice Tremblay-Lamer wrote:
[…] [T]he panel is not obliged to conduct
an assessment as long as there is enough evidence to cast doubt on the
authenticity of the document […]
[20]
In
Jin, above, at paragraph 19, Justice Barnes made a similar finding:
[…] While it is correct that the Board
itself is not an expert in the field of forensic analysis, it also has no duty
to submit suspect documents for expert assessment provided that there is
sufficient evidence before it to cast doubt upon their authenticity. […]
[21]
The
applicant’s submission suggests a distinction between the principles outlined
in the aforementioned cases, and the facts of the case at bar. In the present
case, the Board found that the identity card was in fact genuine; there was no
doubt as to the validity of the document. Rather, the issue what whether the
document-holder was in fact the person identified on the card.
[22]
It
is my opinion that this distinction is not determinative. The decision not to
obtain the expert evidence confirming the identity of the applicant was based
on well-reasoned findings impugning the applicant’s credibility. I see no
reason that the principle established in Hossain and Jin should
not find application in the present case.
[23]
I
am sympathetic to the applicant’s submission that she should have been given
time to produce evidence relating to the fingerprint on her own behalf. However,
I would note that the burden of establishing identity falls to the applicant,
and that the identity card was the only piece of evidence tendered to this end.
[24]
Further,
it is my opinion that the reasons given by the Board with regard to the
applicant’s lack of credibility are sufficient to dispose of the case, even if
her identity were established conclusively. I therefore find that the Board
did not err in failing to obtain expert evidence relating to the fingerprint.
Did the Board err by
failing to consider relevant material evidence?
[25]
The
applicant submits that the Board did not properly consider documentary evidence
that contradicted the evidence from the Embassy of Honduras in Ottawa, relating
to procedures associated with the issuance of identity cards in Honduras. There is
no indication that the Board failed to thoroughly consider the documentary
evidence. It is open to the Board to prefer country documentation indicating
that all Hondurans are issued identity cards at the age of 18 over
documentation indicating otherwise. Essentially, the applicant is asking this
Court to reweigh the evidence before the Board, which is not the role of the
Court.
[26]
Specifically,
the applicant takes issue with the Boards negative credibility inference drawn
from the fact that the card was issued when the applicant was 24, despite the
fact that it accepted the document to be genuine. If the document is indeed
genuine and issued by the Honduran government, it is unreasonable to doubt that
it was issued in violation of the usual practice. While I would accept that
this particular inference may be patently unreasonable, it cannot be isolated
from the other reasons given by the Board in such a way as to render the
entirety of the decision unreasonable. The Board provided ample reasons for
its negative finding of credibility.
[27]
For
these reasons, I find that the Court's intervention is not warranted.
[28]
The
Applicant submits the following question for certification:
Does the duty of fairness and natural
justice require an immigration tribunal to conduct or offer to counsel the
opportunity to submit an identity card for a forensic comparison where the
identity card is accepted as valid and genuine, in the proper name of the
holder and possesses a fingerprint of the true holder of that card, where the
tribunal questions whether the person before it is the true owner/holder of
that identity card and identity is the central issue?
[29] The respondent opposes such a
question. The Court agrees with the respondent's submissions that this question
does not transcend the interests of the parties and does not give rise to a
serious question of general importance.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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