Date: 20071218
Docket: IMM-6588-06
Citation: 2007 FC 1331
Ottawa, Ontario, December 18,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
TENZIN
(a.k.a. TENZIN XX)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, who claimed to be Tibetan, was denied his refugee claim because
identity as a Tibetan was not established to the satisfaction of the
Immigration and Refugee Board (Board). This judicial review is based on the
contention that the Board refused to consider certain evidence of identity and
that the Board relied on a transcript of the Board hearing without notice to
the Applicant that the Board would rely on the transcript in rendering its
decision.
II. BACKGROUND
[2]
The
Applicant claimed to be a Tibetan who had lived in India under
falsely obtained documents. He claimed to be a monk who had left Tibet in 1996. He
obtained a Resident Identity Card (RIC) and an Indian Identity Certificate (IC)
by stating that he had been born in India.
[3]
At
his refugee hearing he produced the RIC and IC, and acknowledged that they were
falsely obtained. He also produced a “Green Book”, an identity document only
issued to Tibetans by the Tibetan Government in Exile. Further, he tendered photocopies
of his marriage certificate, photographs of him as a monk and with the Dalai
Lama, and a “hukou”, a registration document issued to each Chinese household
containing the details of each registered family member.
[4]
The
Applicant’s refugee claim was rejected because he had not established his
Tibetan national identity. In the course of the Board’s discussion of the use
of fraudulently obtained documents, the Board said “the panel will not address
the acceptability of any document issued in India, including
the Green Book … and the pictures that according to the claimant were taken in India”.
[5]
The
Applicant argues:
(a) that
the Board erred in refusing to consider relevant evidence; and
(b) that
there was a denial of natural justice in that the Board relied on a transcript
of the Board’s proceedings; the existence of which was not disclosed to the
Applicant.
III. ANALYSIS
A. Failure
to Consider Evidence
[6]
The
Applicant asks this Court to draw the conclusion that because the Board used
the phrase “will not address the acceptability of any documents …”, the Board
failed to consider the documents. This is too narrow a perspective on these
words, when those words are viewed in the context of the whole decision.
[7]
Reviewing
this matter as a whole, the Board found that there were so many inconsistencies
in the Applicant’s story, so many false documents and illogical explanations
for such documents, that the story lacked credibility. The Board concluded that
it could not and need not specifically deal with other identity documents
because the substrata of the Applicant’s story was not credible.
[8]
It
is evident that the Board considered these other identity documents and
concluded that it did not have to make any further specific findings of
acceptability on these documents given the unacceptability of other documents
and explanations.
[9]
The
Board is not obligated to engage in a further and more specific assessment of a
document when there is sufficient evidence to discredit its authenticity,
either that the document is false in form or context or that it was obtained
falsely.
[10]
It
is irrelevant whether the standard of review is patent unreasonableness or
reasonableness simpliciter. On the evidence before the Board, it was
reasonably open to the Board to reject the Applicant’s identity documents and
his claimed identity.
B. Denial
of Natural Justice/Use of Transcripts
[11]
The
Applicant contends that the use of the transcript of the hearing by the Board
was somehow unfair and prejudicial. The Applicant says that he was not aware
that the proceeding was being recorded and that the Board did not advise him of
its existence or its use in the Board’s decision on the merits.
[12]
The
Applicant cannot point to any particular unfairness or prejudice. The Applicant
does not say that the transcript is inaccurate or that its existence per se
created unfairness by interfering with evidence or submissions.
[13]
The
best that the Applicant can offer is that there is no way of knowing whether
the transcript in the certified tribunal record is the same transcript that was
relied upon by the Board. Absent any evidence that the Board’s certification of
the tribunal record could be in error or that a mix-up in transcripts could even
occur, the Applicant’s submission is wholly speculative.
[14]
There
is no substance to the Applicant’s claim of a denial of natural justice.
IV. CONCLUSION
[15]
This
application for judicial review will be dismissed. The Applicant proposed a
question for certification related to the use of the transcript. In the absence
of any evidentiary foundation for the Applicant’s assertion, the proposed
question was academic and will not be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review will be dismissed.
“Michael
L. Phelan”
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