Date: 20030310
Docket: IMM-53-02
Neutral citation: 2003 FCT 290
Ottawa, Ontario, this 10 day of March, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ABDUL BASHAR BHUIYAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated November 29, 2001, wherein the applicant, Abdul Bashar Bhuiyan, was denied the Convention refugee status.
[2] The applicant is a citizen of Bangladesh who alleged the presence of a well-founded fear of persecution on the ground of political opinion. Broadly, his claim is based on the fact that as an executive member of the Bangladesh Nationalist Party ("BNP") and the Fakirapul Businessmen's Association, he spoke out against criminal activities, especially against the extortion committed by the Awami League. He was often threatened and physically and mentally harassed by the Awami League people. In March 2000, they even kidnapped and tortured him over a period of four days. He claimed that he was actively pursued and the police could not and would not protect him.
[3] The Board rejected the applicant's claim because of issues of identity, credibility and plausibility. It concluded that the applicant "never experienced the persecution alleged in his PIF and in his testimony, and that the story presented to the Board is a complete fabrication designed to obtain resident status in Canada without going through the proper channels".
[4] In respect of the applicant's identity, the Board gave no probative value to the applicant's birth certificate because on the face of it there were misspelling and discrepancies errors:
"P-2 is a Birth Certificate comprising 2 documents. One is entitled "Birth Certificate" by way of affidavit, the other one is entitled "Notarial Certificate." They are both supposedly issued by the same Notary Public, a certain Nazrul Islam [M]andol. These 2 documents, on the face of it, are highly questionable. There is a misspelling in the affidavit. The headline in bold face reads: "Birth Certificate ny way of affidavit" instead of "by way". The stamps at the bottom of the page list the address of the notary as 284, West Dhanmondi Road. However, on the other document entitled "Notarial Certificate", the printed address at the top reads 281, West Dhanmondi Road, while the stamp at the bottom of the page reads 284, West Dhanmondi Road. The worst problem on these apparently computer-generated documents is that the headline of the Notarial Certificate reads (in large bold face) "Ceritificate" instead of "Certificate". Gross misspelling and discrepancies of this nature are generally associated with fraudulent documents. In the present case, we refer to Hamid [Hamid, Iqbal v. M.E.I. (F.C.T.D., no. IMM-2829-94), Nadon, September 20, 1995.], which states that the IRB does not have to send documents for expertise when on the face of it they appear not genuine. Consequently, the panel does not give probative value to P-2. The panel concludes that the claimant did not discharge his burden of proof as to his identity."
[5] Having considered the serious problems of authenticity related to P-2, the Board stated without any other reasoning that it gave no probative value to the other documents, namely a medical report (P-3), a letter from the Nationalist Party (P-4) and a letter from the Fakirapul General Merchant Association (P-5).
[6] Without outlining the rest of the decision, I will address the above conclusions of the Board. The applicant submitted that the Board's rejection of all these documents was unfounded and unfair. He asserted that it has long been recognized that the Board has a duty to give clear and unmistakable reasons why it has rejected evidence submitted by a claimant. The applicant argued that in this case, the Board fell short of such duty to give reasons. He claimed that it was not sufficient to simply reject out of hand the other corroborating documents because another had spelling mistakes.
[7] The Board referred to Hamid v. Canada (M.E.I.), [1995] F.C.J. No. 1293 [F.C.T.D.]. In that decision, Justice Nadon stated the following:
"Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. [...] Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility."
[8] However, other case law more specific to the issue is worthy of consideration and may outweigh this finding. In Ramalingam v. Canada (M.C.I.), [1998] F.C.J. No. 10 (F.C.T.D.) the Board's finding regarding the validity of a birth certificate was at issue. In that case, Dubé J. held that "identity documents issued by a foreign government are presumed to be valid unless evidence is produced to prove otherwise". Further, he held:
"In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its conclusion and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitute a reviewable error on the part of the Board."
[9] More recently, in Osipenkov v. Canada (M.C.I.), [2003] F.C.J. No. 59, Layden-Stevenson J., on a similar issue, concurred:
"Regarding the first finding, the CRDD rejected the applicant's birth certificate as evidence of Jewish ancestry. The Board refers to the fact that the birth certificate was only a photocopy, when in fact it was a certified original copy. An apparently valid birth certificate issued by the state cannot be rejected without evidence, external to the document, upon which the CRDD could determine that the document was false."
[10] Here, the birth certificate was one done by way of affidavit of the applicant's parents, which was notarized by a "Notary Public appointed by the government of peoples Republic of Bangladesh for the whole of Bangladesh". In my opinion, this certificate has a probative value which cannot be rejected without proper explanation. The Board explained that gross misspellings and discrepancies are generally associated with fraudulent documents. The Board's justification for considering the affidavit as fraudulent, and the lack of explanation by the applicant, are sufficient to support the Board's conclusion. Furthermore, the Board's evaluation of the applicant's credibility is also in support of such conclusion. Moreover, I believe it noteworthy to add that, as mentioned during the hearing, the affidavit's deponents' signatures do not appear on the actual affidavit document. Identity documents are essential to the success of a refugee claim and the burden to show the validity of such documents is with the applicant. Here, the applicant was unable to do so.
[11] With regard to the other documents discarded by the Board, the Board acted appropriately. In Husein, v. Canada (M.C.I.), [1998] F.C.J. No. 726, the Court held that once the Board had concluded that identity had not been established, it was not necessary to analyse the evidence any further.
[12] Having decided that the identity documents were not valid and that the Board's conclusion in that regard was not reviewable, there is no need to comment on the other submissions concerning certain credibility findings. In any event, I have reviewed these findings and they appear to me to be reasonable.
[13] No question will be certified and none were proposed by counsel.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee, dated November 29, 2001, be dismissed and no question is certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-53-02
STYLE OF CAUSE: ABDUL BASHAR BHUIYAN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal
DATE OF HEARING: February 26, 2003
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
DATED: March 10, 2003
APPEARANCES:
Me Jean-François Bertrand FOR PLAINTIFF /
APPLICANT
Me Annie Van der Meerschen FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
BERTRAND, DESLAURIERS
83, St-Paul, West,
Montreal, Quebec H2Y 1Z1 FOR PLAINTIFF/APPLICANT
Department of Justice of Canada
Complex Guy-Favreau
200, René-Lévesque Blvd. West
East Tower, 5th Floor
Montreal, Quebec H2Z 1X4 FOR DEFENDANT/ RESPONDENT
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