Date: 20040116
Docket: IMM-6179-02
Citation: 2004 FC 69
Ottawa, Ontario, this 16th day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
GEORGE PAPASKIRI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[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 8, 2002, which determined the applicant not to be a Convention refugee.
[2] The applicant is seeking to set aside the Board's decision of October 16, 2002.
Background
[3] The applicant's claim was heard on August 19, 2002 and the Board's notice of decision, dated November 8, 2002, was received by the applicant on November 25, 2002.
[4] The applicant is a citizen of Georgia and seeks Convention refugee status on the grounds of a fear of persecution in Georgia based on his ethnicity as a Abkhazian. His mother was Georgian and his father was Abkhazian. According to the laws of the former USSR and cultural norms, he is considered to possess the same nationality as his father, Abkhazian.
[5] The applicant, in his affidavit, claims he is easily identified as Abkhazian by his swarthy complexion, dark hair, accent and surname.
[6] To support his claim to be an Abkhazian, the applicant produced the following documents at his hearing:
1. Birth Certificate stating nationality and place of birth;
2. ID Card issued in 1997 stating place of birth as Abkhazia;
3. Mother's Housing Order showing home address in Abkhazia;
4. Mother's Displaced Person's ID - to confirm she was from Abkhazia;
5. Mother's "Labour Veteran" award issued in Abkhazia;
6. Father's Military ID issued in Abkhazia;
7. Extract from a book by an Abkhazian author, Ivan Papaskiri to demonstrate that his name was Abkhazian.
[7] The refusal of his claim was based on the applicant's failure to credibly establish his ethnic identity, and a failure to establish that he has a serious possibility of being persecuted in Georgia on the basis of any Convention ground. The Board also noted in its decision that the applicant did not make a claim for refugee status or any other form of protection in the other countries he passed through on his way to Canada, namely Holland, Mexico and the United States.
Issues
[8] The applicant stated the issues as follows:
1. Did the Tribunal err in its assessment of the applicant's credibility in an overzealous search for inconsistencies?
2. Did the Tribunal err by unreasonably dismissing or ignoring documentary evidence of the applicant's nationality?
3. Did the Tribunal err by failing to give reasons for dismissing the applicant's reasonable explanation as to why he did not have his original birth certificate?
4. Did the Tribunal err by unreasonably requiring him to produce more personal ID documents than he already had?
Applicant's Arguments
[9] The applicant claims that in the determination of his Abkhazian identity the Board refused to give weight to the documents he provided and did not refer to the documentary evidence in the reasons for the decision.
[10] The applicant submits that the Board rejected the authenticity of the applicant's documents because it did not find his oral testimony to be credible.
[11] The applicant states that the Board's determination with respect to credibility was based on three findings:
1. ". . . the claimant was unable to satisfactorily explain why key personal
identity documents were lost and therefore unable to be proffered in support of his claim of ethnic persecution."
2. ". . . in describing a September 1995 incident while a student in Moscow,
the claimant testified orally that he was taken from outside his school by agents of persecution. In his PIF, however, it states that he was taken from his class."
3. ". . . the claimant testified orally that he was beaten by two strangers right
in front of his building in March 2000. He elaborated that at that time, he was buying bread, and on his way back he was beaten. In his PIF, however, it states that he was beaten when he was going to buy bread."
[12] Although the Board cited other unnamed discrepancies in his evidence, the applicant argues that it is likely and reasonable that the Board would make reference to the most egregious discrepancies in its reasons. Therefore, inferring from this argument that the unnamed discrepancies are less significant, the applicant focussed on responding to the discrepancies named by the Board.
[13] The applicant claims the Board does not explain why his explanation concerning the lost documents is unsatisfactory. Relying on Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), the applicant argues the Board erred in making a critical determination without explanation.
[14] The explanation given by the applicant for the loss of his original birth certificate was that the document had not been needed for three years due to the use of his Soviet internal passport as the primary identity document used by persons of age in the USSR. The applicant claims that this explanation is entirely plausible and reasonable and the Board needed to elaborate as to why that explanation was unsatisfactory. The applicant also argues that the Board dismissed his reissued birth certificate but did not indicate that the document was a forgery.
[15] The applicant did not produce his Georgian external passport, which he testified he lost in Mexico in 2000 while en route to Canada. This passport did not contain any information pertaining to nationality or ethnicity and thus the applicant submits the presence of the passport
at the hearing would not have been of assistance in determining his nationality.
[16] The applicant argues that the Board was overzealous in its search for inconsistencies in his testimony. The two minor discrepancies noted by the Board, in the applicant's view, could not support the Board's negative credibility finding.
[17] The applicant submits that it was perverse for the Board to refuse to give the identity documents he produced any weight. The applicant also submits there was no basis for the Board to disregard the medical reports that corroborated the fact that the applicant had been beaten up by nationalists in Georgia because of his nationality.
Respondent's Arguments
[18] The respondent submits that in light of the Board's findings concerning the widespread fraud regarding documentation from the former Soviet Union and the credibility concerns noted within the applicant's testimony, the Board was justified in questioning the authenticity of the documents produced by the applicant.
[19] The respondent submits that the Federal Court of Appeal has confirmed that the Board need not always consult an expert when dealing with fraudulent documents. As in Owusu v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 33 (C.A.), in this case
there were other doubts concerning the veracity of the applicant's evidence and therefore a reasonable inference could be made regarding the weight to be given to the documentation.
[20] The respondent also highlights the fact that the Board clearly stated their concerns regarding the veracity of the documents along with the unsatisfactory explanation as to why key personal identity documents were lost. The respondent submits that this meets the Board's obligation to give reasons for findings regarding credibility.
Analysis and Decision
The Standard of Review
[21] The Board, as a specialized tribunal, is owed a high degree of deference by a reviewing Court on matters within its expertise. The Board's expertise in matters related to Convention refugee determination entitles it to deference both on questions of fact and on legal determinations as well as questions of mixed fact and law: Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.).
[22] The appropriate standard of review for credibility findings is patent unreasonableness, as guided by Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) and Chen v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 165 (F.C.A.).
Loss of Original Birth Certificate and Georgian Passport
[23] The Board refused the applicant's claim for refugee status primarily because he could not establish his identity as an Abkhazian. The Board did not accept the applicant's explanation for the loss of his original birth certificate or Georgian passport.
[24] The applicant testified that he used his original birth certificate up until he received his Russian passport in 1994. He stated that there was not any need to use his original birth certificate once he received his Russian Passport. When the applicant went to obtain a Georgian passport in 1997, he could not find his original birth certificate. The birth certificate was required in order to obtain the Georgian passport. As a result, the applicant applied for and received a restored birth certificate to replace the lost original birth certificate. The Board stated that the applicant was unable to satisfactorily explain the loss the original birth certificate.
[25] The applicant testified that he lost his Georgian passport when he was being taken from
Tijuana, Mexico into the United States. He testified that the agents were rushing him and he was only to have one small bag when he arrived in the United States so as to look like a tourist. The applicant was only given ten minutes to pick out what he would take with him and he was told to leave the rest of his belongings behind. The applicant testified that in the ensuing rush, he must have left his Georgian passport behind in his luggage. Again, the Board did not consider his explanation to be satisfactory.
[26] The Board stated at page 3 of its decision, when dealing with the applicant's personal identity documents:
. . . For example, he supplied a restored recent birth certificate, but his original birth certificate was lost. This would be the principal personal identity document with respect to ethnic identity in the former Soviet Union. The claimant's Georgian passport also got lost. The documentary evidence refers to the untrustworthiness of recently issued identity documents generated in the former Soviet Union. It goes on to suggest that in the Israeli, American and Canadian official experience, such documentation has been found to be fraudulent in many cases. This, in my view, provides sufficient and valid reason to reject the truthfulness of the claimant's allegations on ethnic identity when viewed in conjunction with the balance of the evidence in the case which, for reasons cited below, has been unreliable. Indeed, the claimant provided a number of additional documents purporting to situate the claimant and his family as Abkhazian. Counsel referred to these documents in some details in his submissions. Again, based on the aforecited documentary evidence and the failure of the clamant to credibly establish his account, I find the claimant's evidence as a whole to be unreliable, including his personal documentary evidence. The claimant has failed to establish his alleged Abkhazian ethnicity. . . .
[27] The Board gave no reasons for rejecting the applicant's explanations for the loss of the birth certificate nor for the loss of his Georgian passport. I do not know why the Board rejected the explanation. The Board then went on to state that recently issued identity documents from the former Soviet Union had been found to be fraudulent in many cases. The Board found that this, along with the other evidence in this case which was found to be unreliable, was a sufficient and valid reason to reject the claimant's allegations on ethnic identity.
Inconsistency Between Statements in Applicant's PIF and his Oral Testimony
[28] 1995 Incident in Moscow re: School
In his PIF, the applicant testified that he was taken from his class by the agents of persecution while in his oral testimony he testified that he was taken from outside his school.
The applicant explained that he thought that this was an error in translation.
[29] The Beating by Two Strangers in Front of his Building in March 2000
In his oral testimony, the applicant stated that he was beaten by two strangers right in front of his building on his way back from buying bread. In his PIF, he stated that he was beaten when he was going to buy bread. The applicant explained that the incident occurred in five minutes on his way back and that it was all one incident. The Board did not accept this explanation.
[30] In dealing with the inconsistencies between the applicant's PIF and his oral testimony, the Board stated at pages 4 to 5 in its decision:
There were other discrepancies in the claimant's evidence. When taken by themselves, these and the aforementioned discrepancies might not necessarily lead to a rejection of the claimant's account as a whole. However, when taken in conjunction with the claimant's evidence with respect to his identity documentation, I conclude that the . . .
The Board did not list what the other discrepancies were in the applicant's evidence and consequently, I cannot consider these inconsistencies.
[31] I wish to first deal with the non-credibility findings based on the inconsistencies between the statements in the applicant's PIF and his oral testimony. These deal with the fact that in his oral testimony the applicant stated that the persecutors took him outside the school while in his PIF he stated he was taken from his class. In his PIF he stated that he was beaten when he was going to buy bread while in his oral testimony he stated he was beaten on his way back from buying bread.
[32] I agree with the statements with respect to credibility findings contained in Aguebor, supra, at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[33] In relation to the differences between the statements contained in the PIF and the applicant's oral testimony, these differences, in my opinion, were determined by a microscopic examination of issues irrelevant to the outcome of the case. The Board did not find or suggest that the incidents did not take place but only that they took place at a different location or point in time. The Federal Court of Appeal in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) at page 169 ruled that it is an error of law to take such an approach.
[34] The Board then went on to reject the applicant's ethnic identity as his personal identity documents were not reliable due to the reference in the documentary evidence to the untrustworthiness of recently issued identity documents issued in the former Soviet Union, and due to the unreliability of the balance of the evidence. As already indicated, the Board gave no reasons for believing any of the documents were fraudulent other than the above reference to the questionable genuineness of documents from the former Soviet Union. In my view, the Board must indicate that something indicates that the documents in question may be fraudulent. It is not sufficient to say that many documents from the former Soviet Union are fraudulent. It was patently unreasonable for the Board to base its credibility finding on the reference to the fraudulent nature of the Russian documents without any reference to any particular problem with the documents in issue in this case.
[35] As well, I am not satisfied with the Board's findings with respect to the loss of the applicant's original birth certificate and his Georgian passport. It was patently unreasonable to dismiss the applicant's explanations without any reasons. My decision might have been different if the Board had explained its reasoning for rejecting the applicant's testimony. It was also patently unreasonable for the Board to base its non-credibility findings on the conflicts between the oral testimony and the statements in the PIF without stating why the Board did not accept the applicant's explanations for the discrepancies.
[36] Based on the above, I would grant the application for judicial review.
[37] Neither party wished to submit a serious question of general importance for certification.
ORDER
[38] IT IS ORDERED that the application for judicial review is granted.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
January 16, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6179-02
STYLE OF CAUSE: GEORGE PAPASKIRI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, January 6, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, January 16, 2004
APPEARANCES:
David P. Yerzy
FOR APPLICANT
Pamela Larmondin
FOR RESPONDENT
SOLICITORS OF RECORD:
David P. Yerzy
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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