Date: 20041018
Docket: IMM-9955-03
Citation: 2004 FC 1433
Ottawa, Ontario, October 18, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
MUKUTA PICHOUX NYEMBA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), with regard to a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel), dated November 18, 2003. In that decision, the panel determined that the applicant did not qualify as a "Convention refugee" under section 96 or as a person in need of protection under section 97.
ISSUE
[2] Did the panel make a patently unreasonable error in finding that the applicant lacked credibility?
[3] For the following reasons, I answer that question in the negative, and I would therefore dismiss this application for judicial review.
BACKGROUND
[4] The applicant, 29 years of age, alleges that she is a citizen of the Democratic Republic of Congo (DRC). She claims to have a well-founded fear of persecution based on her perceived political opinion. She says that she fears for her life and would be at risk of cruel and unusual treatment or punishment if she were to return to her country.
[5] The applicant stated that she was arrested on March 24 2003, she and her friend Biticha Sasa, while they were shopping at Ngobila Beach in Kinshasa. Since her friend was a collaborator with the people of the "Rebellion" stationed in Brazzaville, the Congolese authorities assumed that the applicant was also in contact with the "Rebellion".
[6] The applicant alleged that she was detained for 35 days and that she was raped on the night of April 13 and 14, 2003. She stated that she had to be hospitalized as a result of this rape. She stated that she had managed to escape on April 30, 2003, during a follow-up visit at the hospital, with the involvement of her family, who bought off the guards.
[7] The applicant stated that she left her country the day of her escape, arriving in Canada on May 3, 2003, and claiming protection on May 9, 2003.
IMPUGNED DECISION
[8] The panel determined that the applicant had failed to establish her identity. The applicant filed two pieces of identification: a birth certificate which had not been authenticated with the dry seal required by the DRC, and a driver's licence which was not valid in her country. Since the panel did not have any tangible evidence establishing the applicant's identity, it made a negative finding on her credibility and dismissed her refugee claim.
ANALYSIS
[9] The appropriate standard of review in relation to issues bearing on the assessment of proof of identity is the standard of patently unreasonableness (Gasparyan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1103 (F.C.T.D.)(QL) at paragraph 6 and Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 (F.C.T.D.)(QL) at paragraph 55):
The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para.15; and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.
Accordingly, as long as the panel's findings are not unreasonable, they are not open to judicial review. In other words, the Court must show considerable deference.
[10] In this case, the birth certificate filed by the applicant does not have the dry seal. However, the documentary evidence clearly shows that all documents issued by the Congolese authorities have a seal. The seals are proof of payment of the administrative fees payable to obtain a document (exhibit 2.2 of the Montréal regional index binder on the DRC, "RDC40199F" dated October 2, 2002). The evidence establishes that this practice has been in effect since June 30, 1998 (exhibit 2.4 Montréal regional index binder on the DRC, "RDC38431F"). Given that the applicant's birth certificate had been issued in August 2002, i.e. almost two years after the implementation of this system, it is reasonable to believe that this document should have had the dry seal. The panel was therefore correct to question the authenticity of the document.
[11] As for the international driver's licence filed by the applicant in order to establish her identity, the panel did not assign it probative value. The reasons for this determination were not patently unreasonable. This driver's licence was not valid in the applicant's native country and that was written on the licence itself.
[12] The only two documents establishing the claimant's identity were not found to be adequate. Further, the panel asked whether the applicant had in her possession other documentary evidence which could have corroborated her story or at least established her route from the DRC to Canada. Unfortunately, she did not file any others.
[13] Section 106 of the Immigration and Refugee Protection Act provides:
| 106. Credibility - 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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106. Crédibilité - 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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[14] The negative inferences made by the panel regarding the applicant's credibility regarding her documents do not warrant the intervention of this Court.
[15] The applicant's counsel contended before the Court that the refugee protection officer had on two occasions told the chairperson that she did not question that the applicant was a native of Congo. However, after reviewing the transcripts, I noted that the applicant had been confronted regarding the dry seal that should have appeared on her birth certificate. I also noted that counsel representing the applicant at the hearing had the opportunity to plead that issue. In my opinion, therefore, there has not been a breach of procedural fairness. In my view, the decision-maker while deliberating was entitled to review the relevant documentation, the birth certificate, and make the findings that it deemed appropriate.
[16] The parties declined to submit serious questions of general importance. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9955-03
STYLE OF CAUSE: MUKUTA PICHOUX NYEMBA
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 6, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: October 18, 2004
APPEARANCES:
Éveline Fiset FOR THE APPLICANT
Simone Truong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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