Date: 20080327
Docket: IMM-3745-07
Citation: 2008 FC 389
Montréal, Quebec, March 27,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
Muhammad
Khurram Saleem
A.K.A. Faisal
Javed
Applicant
and
The Minister
of Citizenship
and Immigration
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated August 15, 2007
concluding that the applicant is not a Convention refugee nor a person in need
of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act).
FACTS
[2]
Citizen
of Pakistan, the
applicant arrived in Canada in February 2006. His refugee claim is
premised on a fear that his uncle is trying to have him killed.
[3]
The
applicant states that his problems began in 1999 when his uncle killed his
father for refusing to support the Muslim League political party. The applicant
states that his uncle now wishes to kill him in order to obtain family property
in the applicant’s name; property that is alleged to be worth “millions of
dollars.” The applicant claims to have been targeted by his uncle’s “goons”
since August 2000.
[4]
On
account of this fear, the applicant left Pakistan for the United
States
in June 2001 under the false identity of Faisal Javed. He returned voluntarily
to his hometown of Lahore 28 days later. In October 2002, the applicant travelled
to the United
States
a second time, again using a passport issued in the name of Faisal Javed. He
was later deported when American authorities discovered he entered the United
States
under a false name.
[5]
On
February 7, 2006, the applicant entered Canada with a
Canadian visitor visa issued to him under the identity of Faisal Javed. On
April 7, 2006, the applicant presented a claim for refugee protection under the
name of Muhammad Khurram Saleem stating this name as being his true identity.
The applicant’s claim was heard before the Board on April 2, 2007.
Decision under review
[6]
On
August 15, 2007, the Board concludes that the applicant is neither a Convention
refugee nor a person in need of protection. The determinative issue before the
Board was the applicant’s identity, which the Board found was not successfully
established. As the Board stated at page 2 of its decision:
But unfortunately, after considering the
claimant’s testimony, his documents and the documentary evidence in Pakistan, I
came to the conclusion that the claimant did not successfully demonstrate that
his real identity is the one of Muhammad Khurram Saleem.
[7]
In
its decision, the Board notes that while the applicant possessed two genuine
passports, one in the name of Faisal Javed and the other in the name of
Muhammad Khurram Saleem, there was insufficient evidence to establish which of
the two passports reflected the applicant’s true identity. The Board held at
page 6 of its decision:
After reviewing the testimony of the
claimant, the different identity documents and the documentary evidence, doubts
remains as to the identity of the claimant. The fact that the claimant used a
passport under a false name to go in and out of Pakistan for a period of four
years, the fact that the claimant was able to renew that same passport in 2005,
the fact that he obtained numerous visas under that false name, the weak
explanations regarding why he had to leave three times the country under a
different name than his, the fact that the passport under his alleged real name
bares a different place of birth than what it is written in his PIF, the fact
that this passport is handwritten without many security features, the fact that
he never allegedly updated his old identity card under his alleged real name
between 2002 and 2005, all these elements lead me to conclude that the claimant
has not establish his identity on a balance of probabilities.
[8]
Accordingly,
having found that the applicant failed to sufficiently establish his identity
as Muhammad Khurram Saleem, the Board concludes at page 7 of its decision:
Because the claimant has not established
his identity on a balance of probabilities, I conclude to the general lack of
credibility of the claimant and find that there is no credible basis based on
paragraph 107(2) of the Act.
[9]
On
September 12, 2007, the applicant files this application for leave and judicial
review of the Board’s decision.
Issues
[10]
This
application raises two issues for consideration:
1. Did the Board
breach the rules of fairness in failing to grant the applicant sufficient
opportunity to establish his identity as Muhammad Khurram Saleem; and
2. Did the Board
err in concluding that there was a lack of probative evidence to establish the
applicant’s identity as Muhammad Khurram Saleem?
STANDARD OF REVIEW
[11]
The
first issue concerns matters of natural justice and procedural fairness, which
are questions of law subject to the standard of correctness. In such cases, the
Court must examine the specific circumstances of the case and determine whether
the decision maker adhered to the rules of natural justice and procedural
fairness (Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168 at
paragraph 15). In the event that a breach is found, no deference is due and the
decision will be set aside (Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392).
[12]
The
second issue concerns whether there was sufficient documentation establishing
the applicant’s identity. In light of the recent Supreme Court of Canada decision in Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), it is clear that the standard of patent
unreasonableness has now been abandoned, and that courts conducting a standard
of review analysis must now focus on two standards, those of correctness and
reasonableness.
[13]
The
jurisprudence is clear in stating that the Board’s credibility analysis is central
to its role as trier of facts and that, accordingly, its findings in this
regard should be given significant deference. The grant of deference supports a
reasonableness standard of review and implies, as the Court held at paragraph
49 of Dunsmuir, that courts will give “due consideration to the
determinations of decision makers” when reaching a conclusion. Accordingly, the
second issue will be reviewed on the standard of reasonableness.
ANALYSIS
Did the Board breach the
rules of fairness in failing to grant the applicant sufficient opportunity to
establish his identity as Muhammad Khurram Saleem?
[14]
On
March 30, 2007, the Minister of Public Safety and Emergency Preparedness (the
Minister) sent notice to the Board that it wished to intervene due to the
existence of a “serious identity issue in this case.”
[15]
As
the hearing was scheduled for April 2, 2007, the Minister’s notice did not
comply with subsection 25(4) of the Refugee Protection Division Rules,
S.O.R./2002-228 (the Rules), which requires that notice of intervention be
received by the Board and the claimant “no later than 20 days before the
hearing” as required under section 25(4). Section 25 of the Rules in its
entirety states:
|
25. (1) To intervene in a claim, the Minister
must provide
(a) to the claimant, a
copy of a written notice of the Minister’s intention to intervene; and
(b) to the Division,
the original of that notice and a written statement of how and when a copy
was provided to the claimant.
(2) In the notice, the Minister must state
how the Minister will intervene and give the Minister’s counsel’s contact
information.
(3) If the Minister believes that section E
or F of Article 1 of the Refugee Convention may apply to the claim, the Minister
must also state in the notice the facts and law on which the Minister relies.
(4) Documents provided under this rule must
be received by the Division and the claimant no later than 20 days before the
hearing.
|
25. (1) Pour intervenir dans une
demande d’asile, le ministre transmet :
a) au demandeur d’asile, une copie de l’avis d’intention
d’intervenir;
b)
à la Section, l’original de cet avis ainsi qu’une déclaration écrite
indiquant à quel moment et de quelle façon une copie de l’avis a été
transmise au demandeur d’asile.
(2) Le ministre indique dans
l’avis la façon dont il interviendra et fournit les coordonnées de son
conseil.
(3) S’il croit que les sections E ou F de l’article premier de la
Convention sur les réfugiés pourraient s’appliquer à la demande d’asile, le
ministre énonce également dans l’avis les faits et les règles de droit sur
lesquels il s’appuie.
(4)
Les
documents transmis selon la présente règle doivent être reçus par leurs
destinataires au plus tard vingt jours avant l’audience.
|
[16]
In
its decision, the Board addresses the Minister’s late notice and concludes that
rather than postpone the hearing, it would provide the applicant with
additional time after the hearing to submit further documentation supporting
his identity. The Board’s rationale for such a finding was addressed at pages
1-2 of its decision:
(…)
I realized it was less then the 20 days required by RPD rules but I decided not
to postpone the hearing and gave the claimant a month to submit more identity
documents. The fact that the claimant came to Canada
under one name and claimed protection under another was known by all the
parties and was raised already in April 2006 when an immigration officer asked
the Minister’s representative to intervene. The fact that the issue of identity
would probably be raised at that hearing should not have come as a surprise for
the claimant and his counsel.
[17]
The
applicant’s primary concern with the Board’s decision to proceed with the
hearing is that the amount of time allocated to him to provide additional
documentation was “extremely unclear, confusing and very difficult to
understand.” In support, the applicant cites varying references in the Board’s
decision, which affords him, respectively, with an additional “month” and an
additional “20 open days” to submit further documentation. Further, at the
hearing itself, the Board initially held that the applicant was to be given
“three weeks” to provide the documentation. Later, however, the Board member
made the following statement:
But
anyway, three weeks. We are the 2nd of April, so I’ll give you until
the week of the 23rd, until the 28th of April, to
provide me with these originals or anything that you would think that
could satisfy the Board.
[Emphasis added]
[18]
The
transcript shows that the applicant’s counsel agreed on the date of the 28th
of April as the deadline to provide more original evidence on the issue of
identity.
[19]
Having
reviewed the record, the Court finds that the key question is whether the Board
provided the applicant with adequate additional time to submit further original
documentation supporting his identity, and whether the timeline of when that
documentation was due was made known to the applicant at the hearing.
[20]
Accordingly,
while the Board’s decision could have been clearer in addressing when it
expected the applicant’s further submissions, it is what was outlined to the
applicant at the hearing, and not within the decision, that is relevant with
respect to a determination of whether the Board’s decision was fair in the
circumstances of this case.
[21]
Having
reviewed the hearing transcript, the Court finds that the Board’s decision
sufficiently addressed the issues of fairness facing the applicant and that,
accordingly, no error was committed. Again, while the Board could have been
clearer in stating an exact date as to when the applicant’s additional
information was expected, he was given, at the very least, 21 days between the
hearing date and April 23 to submit the original documentation. Whether he was in
fact given until April 23 or April 28 is inconsequential, as the Court finds
either to be sufficient time for the applicant to obtain and forward additional
original documentation supporting his identity.
[22]
Further,
the Court agrees with the Board that the applicant was already on notice that
his identity would be an issue the same way it was questioned years ago when he
was deported by the American authorities after they discovered that he had
entered the United
States
under a false name. He certainly was aware at the time of entering Canada with false documents
that his identity might raise some questions that would require a satisfactory
answer from him as to his true identity.
[23]
Consequently
the Minister’s intervention and concerns, although not timely, should not have
come as an undue surprise, considering that the applicant himself mentioned he
had two passports and that one was false.
[24]
Finally,
it must be noted that the applicant was represented by counsel at the hearing
before the Board, and he did not object to the delayed Minister’s intervention
although he had ample opportunity to do so or to clarify not only the Board’s
decision to continue with the hearing, but also the exact date when it expected
to receive the additional original documentation.
[25]
Accordingly,
the Court finds that the Board’s decision did not breach the rules of fairness
owed to the applicant as he was able to make his case and respond to the
intervention with respect to his identity, and therefore concludes that there
is no valid reason to set aside the decision on those grounds.
[26]
Did
the Board err in concluding that there was a lack of probative evidence to
establish the applicant’s identity as Muhammad Khurram Saleem?
[27]
Section
106 of the Act states that a relevant consideration in assessing a refugee
claimant’s credibility is whether that individual possesses and provides
acceptable documentation establishing his/her identity. The possession of such
documentation has been seen by this Court as crucial to the success of an
individual’s refugee claim in Us Saqib Najam v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 516, at paragraph 16:
16 The proof of a
claimant’s identity is of central importance to his or her claim. I agree
with the Respondent that if the identity of the claimant is not proven, the
claim must fail; that means the Board need not pursue an analysis of the
evidence in relation to other aspects of the claim. As Joyal J. states at
paragraph 13 of the Husein, supra decision:
[...] In my respectful view,
once the Board had concluded that identity had not been established or that the
main applicant had not proven who she allegedly is, it was not necessary for
the Board to analyze the evidence any further. Identity was central to the
case. The main applicant’s failure to prove that she belonged to a persecuted
clan effectively undermined any claim of a well-founded fear of persecution.
[Emphasis added]
[28]
In
the case at bar, the applicant argues the Board erred in concluding that he
failed to provide sufficient evidence of his identity, especially in light of
the fact that the passport he used in his refugee claim was found to be genuine
by the Minister. However, as noted above, the applicant was in the possession
of two “genuine” Pakistani passports, one in the name of Muhammad Khurram
Saleem, which the applicant used in his Canadian refugee claim and alleges is
his true identity, and one in the name of Faisal Javed, which the applicant
used twice in travelling to the United States in 2001 and 2002, and which he
successfully renewed in August 2005. Even the dates of birth indicated in these
two passports are not the same.
[29]
The
Court agrees with the respondent that the Minister’s finding that the passport
in the name of Muhammad Khurram Saleem was genuine did not prevent the Board
from concluding that the applicant had not succeeded in establishing his
identity. The question before the Board was the applicant’s true identity. The
genuineness of the passport used in his refugee claim did not provide a
definitive answer to this question. Further, the presence of another genuine
passport, which the applicant used in international travel over the course of
five years, called into question his true identity, and this question was not
sufficiently addressed by the genuineness of either documents.
[30]
The
applicant further argues the Board erred in setting
aside the genuineness of the passport in
the name of Muhammad Khurram Saleem, which was used in his refugee claim. The
applicant’s argument is based on the Board’s finding that because the passport
is handwritten and does not bear the same security features as the one in the
name of Faisal Javed, then “it is a type of passport obviously easier to
falsify than the more recent one.”
[31]
In
making such a finding, the Board did not set aside the genuineness of either
passport, but rather simply concluded that the handwritten nature of the Saleem
passport raises further questions as to how and for what purpose such a
document was obtained. It is entirely within the Board’s expertise as trier of
fact to weigh the evidence before it in determining the issue of the
applicant’s identity. Such a finding was within this expertise and will not be
set aside as unreasonable.
[32]
Moreover,
nowhere does the applicant address the compelling fact that the passport upon
which he seeks to establish his identity (the Saleem passport) lists a
different place of birth from that which the applicant testified to in both his
Personal Information Form (PIF) and in oral evidence before the Board. As noted
by the Board in its decision, while the applicant testified to having been born
in Lahore, his passport used in
his refugee claim states that he was born in Karachi.
[33]
When
confronted with this conflicting evidence, the applicant stated that he had
requested that officials alter his place of birth on the passport so as to hide
it from his uncle who might have prevented him from leaving Pakistan. The Board rejected the
applicant’s explanation as implausible, since if the passport was legitimate,
then it would be unlikely that officials would have acquiesced to the
applicant’s request. This finding is not challenged by the applicant. The Court
agrees with the Board’s rationale and finds this to be compelling evidence
further calling into question the applicant’s real identity.
[34]
The
applicant also argues that the Board erred in its assessment of the documents
produced at the hearing; documents the applicant suggests provide further
evidence supporting his identity as Muhammad Khurram Saleem. One of those
documents was a National Identity Card for Overseas Pakistanis (NICOP) and was
issued in the name of Muhammad Khurram Saleem in April 2007, right after the
hearing before the Board. Rather than forwarding the original NICOP to the
Board for consideration as requested, the applicant submitted a photocopy as
support to his claim. In relation to the copy, the Board stated at page 5 of
its decision:
Document
#2 (sent after the hearing) is a copy of a recently issued National Identity
Card for Overseas Pakistanis (NICOP). The original of that document was not
sent. This puts into question the authenticity of that document. … The claimant
does not provide any explanation as to why he did not send the original
document although he sent all the original of the other documents sent after
the hearing.
Accordingly, the Board
gave no probative weight to the copy as evidence of the applicant’s identity.
[35]
The
applicant argues the Board erred in giving the NICOP no weight, since such
cards have significant security features and the documentary evidence
recognizes them as being “conclusive proof” of an individual’s identity and
nationality. However, the applicant’s argument fails to address the fact that
the Board expressly stated at the hearing that the applicant was to forward all
original documentation supporting his identity.
[36]
By
failing to follow the Board’s request that all additional documentation filed be
original, the applicant opened the door to a finding that the copy did not
carry the same probative weight and was, accordingly, insufficient to establish
his identity as Muhammad Khurram Saleem. While the documentary evidence
provides that such cards contain significant security features, it is
impossible to assess the presence or absence of these features when not
provided with the genuine article. Accordingly, it was reasonable for the Board
to question the weight to be accorded to the NICOP in light of the fact that
the applicant only provided a photocopy. This is especially so given that the
Board had explicitly requested originals and that the applicant had admittedly previously
used false passports to enter Canada and also the United States.
[37]
Finally,
the applicant argues the Board erred in dismissing all of the additional
documents as having no probative value while only mentioning three documents in
the decision itself. However, it is clear from the jurisprudence that the Board
need not address every single piece of evidence where it has found that the
applicant’s underlying claim lacks credibility. Further, the Board was entitled
to take note of and give no weight to the documents it found to contain
alterations and those that “appeared to be tampered with.” It is within the
Board’s expertise to assess the weight to be given to the documentation before
it. Where an alteration appears on the face of the evidence, the Board is
entitled to give no weight to the document and need not seek further expertise
before doing so.
[38]
Accordingly,
for the reasons outlined above, the applicant’s application will be dismissed. The
Board’s conclusion that the applicant failed to establish his identity as
Muhammad Khurram Saleem was reasonable on the evidence and will not be
interfered with by this Court.
[39]
The
parties were invited to present questions of importance for certification but
declined.
JUDGMENT
For these reasons, the COURT:
DISMISSES this
application for judicial review.
“Maurice E. Lagacé”
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