Docket:
IMM-9787-12
Citation: 2013 FC 1247
Ottawa, Ontario, December 12, 2013
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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MUSTAFA IBRAHIM ELHASSAN
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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]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board [the Board] dated
August 28, 2012, whereby it was decided that Mustafa Ibrahim Elhassan was
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the Act. The determinative issues before the Board were
the identity of the claimant and his credibility.
[2]
For the reasons that follow, I find that the
intervention of this Court is warranted. It was unreasonable for the Board to
question the identity of the Applicant since the authenticity of his birth
certificate has not been impeached.
FACTS
[3]
The Applicant presented the following facts in
his Personal Information Form (PIF). He claims to be a Sudanese citizen born
in Omdurman in 1970. He is suspected by authorities of being a supporter of
Abdul Aziz, former deputy governor of Kadugli of Nubian ethnicity and who
protested the election of the current regime.
[4]
On June 10, 2011, following a conflict between
the Khartoum regime and the opposition, a friend of the Applicant, suspected by
the authorities of supporting Abdul Aziz, fled the Nubian region along with his
family, and sought shelter with the Applicant in Omdurman.
[5]
On June 29, 2011, the Applicant received a phone
call mid-morning from his uncle informing him that security forces had raided
his home and taken away his friend, together with his family. He was told that
the officers were still in his home and were looking for him as a supporter of
Abdul Aziz. Some time around mid-day, the Applicant received a phone call from
his sister informing him that the security forces were still in his home and
cautioning him not to return. The Applicant took shelter with a friend and
remained there until July 14, 2011. On that day, he left Sudan with a fake Dutch passport provided by his uncle. He arrived in Canada on July 15, 2011, and
claimed refugee status on July 19, 2011.
[6]
The Applicant submitted a birth certificate to the
Board. He testified that he had a citizenship card in Sudan but that his uncle was too afraid to send it to him. He also testified that some
people in Sudan had a “personal card”, but that he never had one.
THE IMPUGNED
DECISION
[7]
The Board found that the Applicant had failed to
produce enough evidence to establish his personal identity and, alternatively,
that his claims were not credible.
[8]
On the issue of identity, the Board noted that
the only document submitted was a birth certificate. The Board’s assessment of
this document is the following:
The panel notes that
this document contains no photograph of the claimant, and no security
features. It consists of a hand-written fill-in-the-blank form. For these
reasons, this document has little probative value. Together with the
cumulative credibility problems noted below, the panel gives this document no
weight in terms of establishing his identity.
Tribunal Record,
p. 5.
[9]
The Board then went on to assess the Applicant’s
description of his citizenship card. The Applicant testified at the hearing
that he was issued a citizenship card in 1989 but that his uncle was too afraid
to send it to him. The Board’s conclusion was that the Applicant never had the
citizenship card. The Board found that the Applicant’s oral evidence was
inconsistent with the objective evidence for the following reasons:
• The
Applicant’s description of the document was incomplete;
• The
Applicant denied that the citizenship card was necessary to write exams; and
• While the Applicant testified
that he has the old citizenship card, the objective evidence does not indicate
that there is a new citizenship card, and the only card described in the
objective evidence is different in color from the “new card” described by the
Applicant.
[10]
The Board also noted that the Applicant
presented contradictory statements. He first said that he had obtained the
citizenship card in 1989. He then stated that he had to present the
citizenship card in order to receive his secondary school diploma in 1988. When
confronted with the inconsistency, the Applicant said that this was an error
and he had in fact graduated in 1989. The Board noted that the Applicant
stated in his PIF that he finished school in 1988.
[11]
The Board also took issue with the Applicant’s
failure to mention the citizenship card in his PIF at Question 22 (“What other identify
documents do you have or could you obtain?”) and rejected his explanation for
failing to obtain the document from his uncle. In the Board’s view, if the
Applicant’s uncle was able to provide him with a fraudulent Dutch passport, it
does not make sense that he would be too afraid to mail legitimate documents.
[12]
Finally, the Board found that the Applicant’s
oral evidence concerning the “personal card” was inadequate. The Applicant’s
description of the card and minimum age requirement was found to be
inconsistent with the objective evidence. The Board rejected the Applicant’s
explanation that the card had changed, because this is not reflected in the
objective evidence and because the Applicant failed to present this argument
earlier during the hearing.
[13]
Under the heading “Credibility”, the Board noted
that the Applicant had failed to mention in his PIF that the security forces
had ordered him to surrender by the evening of June 29, 2011, and that the
security forces had approached his uncle concerning his whereabouts. The Board
also found that the Applicant had presented inconsistent statements regarding
the time when he first found out that the security forces were looking for him.
He testified that he learned this information when his sister called him at
around 12:30. However, the Applicant stated in his PIF that he learned this
information at 10:30.
ISSUES
[14]
This application raises the following two
issues:
a)
Did the Board err in finding that the Applicant had not established his
identity?
b)
Did the Board err in finding that the Applicant lacked credibility?
ANALYSIS
[15]
There is no disagreement between the parties
that the standard of reasonableness applies to both issues. This Court has
consistently held that credibility findings are findings of fact which attract
a significant degree of deference. The Board’s credibility findings should not
be overturned unless they are unreasonable: Aguebor v Canada (Minister of Employment) (1993), 160 NR 315, 42 ACWS(3d) 886, at para 4; Rahal
v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at para 22.
[16]
It is also well established that the Board’s
identity findings are to be reviewed on the standard of reasonableness: Liu
v Canada (Minister of Citizenship and Immigration), 2012 FC 377, at para 8.
[17]
The standard of reasonableness refers both to
the process whereby a decision is made and to the substance of that decision. As
noted by the Supreme Court of Canada in Dunsmuir v New Brunswick, [2008]
1 SCR 190, 2008 SCC 9, at para 47, “…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”.
a)
Did the Board err in finding that the Applicant had not established his
identity?
[18]
Subsection 100(4) of the IRPA provides,
in part, that “[a] person who makes a claim for refugee protection inside
Canada …must provide the Division [Refugee Protection Division]…with the
documents and information …required by the rules of the Board…”. Rule 7 of the
Refugee Protection Division Rules, in turn, states:
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Providing Basis of Claim Form — inland
claim
7. (1) A claimant referred to in
subsection 99(3.1) of the Act must provide the original and a copy of the
completed Basis of Claim Form to the officer referred to in rule 3.
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Transmission du formulaire — demande
ailleurs qu’à un point d’entrée
7. (1) Le demandeur visé au paragraphe
99(3.1) de la Loi transmet l’original et une copie du Formulaire de fondement
de la demande d’asile rempli à l’agent visé à la règle 3.
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[19]
Section 106 of the IRPA requires the
Board to consider a claimant’s lack of documents to establish identity in
assessing a claim for refugee protection:
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Credibility
106. The Refugee Protection Division must
take into account, with respect to the credibility of a claimant, whether the
claimant possesses acceptable documentation establishing identity, and if
not, whether they have provided a reasonable explanation for the lack of
documentation or have taken reasonable steps to obtain the documentation.
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Crédibilité
106. La Section de la protection des
réfugiés prend en compte, s’agissant de crédibilité, le fait que, n’étant pas
muni de papiers d’identité acceptables, le demandeur ne peut raisonnablement
en justifier la raison et n’a pas pris les mesures voulues pour s’en
procurer.
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[20]
There is no doubt that the onus is on a claimant
to establish his identity with documentary evidence, and if no such documents
are provided, to explain what steps were taken to obtain them: Qiu v Canada
(Minister of Citizenship and Immigration), 2009 FC 259, at para 6; Zheng
v Canada (Minister of Citizenship and Immigration), 2008 FC 877, at para 14
[Zheng]. If identity is not established, the Board need not assess the
substance of the claim: Hussein v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 726, at para 13; Zheng, above, at para
15; Jin v Canada (Minister of Citizenship and Immigration), 2006 FC 126,
at para 26; Li v Canada (Minister of Citizenship and Immigration), 2006
FC 296, at para 8.
[21]
Documents issued by a government authority that
appear genuine on their face are presumed to be authentic unless there is a
valid reason to doubt their authenticity. In the case at bar, the Board did
not explicitly rule on the authenticity of the Applicant’s birth certificate
but nevertheless found this document to have little probative value. This
finding is problematic for a number of reasons.
[22]
While it was not entirely inaccurate to
characterize the birth certificate as a handwritten “fill-in-the-blank form”,
it was clearly unreasonable to conclude that the document contains no security
features. It is apparent on the face of the birth certificate that it bears
the official emblem of Sudan and an official stamp. As submitted by the
Applicant, official stamps are recognized as security features in the
jurisprudence of this Court, and the following quote from Ru v Canada
(Minister of Citizenship and Immigration), 2011 FC 935, at para 49 [Ru]
is but one illustration of that jurisprudence:
My review of the
Marriage Certificate reveals that the English translation says that the
original does bear an official seal or stamp. Likewise, the Birth Certificate
also appears to have an official stamp. As Justice Tremblay-Lamer pointed out
in Zheng [Zheng v Canada (Minister of Citizenship and Immigration),
2008 FC 877], above, at paragraphs 18-19, official stamps are recognized as
security features…
[23]
Moreover, I agree with the Applicant that a
document that is presented as an authentic document cannot be given “little
probative value”. If the Board believed the birth certificate to be
inauthentic, it should have been discarded entirely. This error is compounded
by the fact that most of the credibility findings which were relied upon by the
Board to give little probative value to the birth certificate are themselves
unreasonable, as will be discussed below.
[24]
Finally, the cumulative credibility problems
referred to by the Board relate to Mr. Elhassan’s testimony regarding his
citizenship document, other Sudanese identity documents and the agent of
persecution. Such credibility problems are completely unrelated to the birth
registration document, and it is clearly incorrect to assess the validity of a
document on the basis of concerns that are completely unrelated to the document
itself: see, for ex., Ru, above, at para 53. Indeed, such reasoning is
circular and must be rejected: the birth certificate is given little probative
value because Mr. Elhassan is found not to be credible, and in part because he
is unable to establish his identity. A reasoning of this kind is hardly the
hallmark of reasonableness.
b)
Did the Board err in finding that the Applicant lacked credibility?
[25]
It is well established that the Board’s
credibility findings are owed a high degree of deference, unless these findings
were made capriciously or without supporting evidence, or if the Board failed
to provide sufficient reasons in clear terms as to how it arrived at its
conclusions. In the case at bar, the Board made a number of credibility
findings, some being entirely reasonable but others clearly not so.
[26]
In the first category the discrepancies between
the Applicant’s PIF narrative and his testimony are noted by the Board. The
Applicant informed the Board for the first time during the hearing that
Sudanese security forces had instructed him to present himself to them in Khartoum by the evening of June 29, 2011 and that they had approached his uncle asking about
his whereabouts. The Applicant tried to explain that his PIF was only meant to
be a summary of his story, but the Board reasonably questioned that
explanation, stressing that the very core of his claim was the pursuit of Sudanese
security forces and that these were not insignificant details. The Board also found
that the Applicant had provided inconsistent evidence as to when he became
aware security forces came looking for him, stating in his PIF narrative that
his uncle telephoned him around 10:30 in the morning, whereas he responded at
the hearing that he came to know about it when his sister telephoned him around
12:30.
[27]
Other findings, however, are much more
debatable. For example, the Board found that the Applicant never had a
citizenship card because he was only able to point to 6 of the 9 particulars contained
in this document. Despite the fact that Mr. Elhassan correctly identified that
the citizenship card has a green exterior with white interior and contains his
photograph, a stamp, the Minister’s signature, and his mother’s name, the panel
drew a negative inference with respect to Mr. Elhassan’s credibility because he
forgot to refer to his fingerprint, details of his tribe and his father’s
name. It was unreasonable to expect an individual to recall every single
detail on a piece of identification. Even the most familiar piece of
identification contains information that is difficult to completely recall.
[28]
The Applicant also testified that he did not
have to provide any documents to sit for his tests or exams in school. Yet, in
order to discount his testimony, the Board relied on objective evidence dating
from 2007 according to which a person will not be able to sit for exams at
schools or university without a certificate of nationality. In doing so, the
Board shifted the burden of proof and required the Applicant to provide
corroborating documentation to show that this system only started subsequent to
the Applicant finishing his studies. Having said that, the Board could rightly
point out that the Applicant shifted his testimony and provided inconsistent
evidence when asked what documents he presented to obtain his secondary school
certificate.
[29]
I need not go through a minute examination of
all the credibility findings made by the Board. As already mentioned, some
adverse credibility findings are eminently reasonable, while others are
microscopic and unfair. Had it not been for the errors committed in assessing
the Applicant’s identity, I might have been inclined to quash the application
for judicial review and to find in favour of the Minister. However, as stated
by the Board, identity was the determinative issue in this case, and the flaws
undermining and contaminating that analysis unavoidably coloured the
credibility assessment. Had the Board properly applied the relevant principles
in resolving the identity issue, it may well have found in favour of the
Applicant with respect to his credibility.
[30]
For those reasons, this application for judicial
review is granted. No question is certified.
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