Date: 20070112
Docket: IMM-2436-06
Citation: 2007 FC 24
Ottawa, Ontario, January 12, 2007
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
IQBAL
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is challenging the legality of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated April 13, 2006,
to the effect that he is not a “Convention refugee” or a “person in need of
protection” within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[3]
In his
Personal Information Form (PIF), the applicant alleges as follows. The police
believed that his friend Manjit Singh was a militant. After this friend
disappeared in May 1999, the police threatened to kill him if he did not reveal
his whereabouts. He fled to Bahrain and remained there from 1999 to 2003. Believing
that the police would not pursue him anymore, he returned to India in 2003
because his mother was ill. Upon his return, though, the applicant was confused
with a militant who was also named Iqbal Singh and whose father’s name was the
same. He was detained twice, the first time in March 2004 and the second in
August 2004. Each time, the police tortured him and tried to make him confess
that he really was Iqbal Singh the militant. The police did not release him
until bribes were paid. In his second detention, the police told him that
militants were planning a bombing attack and they believed he knew about it. In
November 2004, the police raided his house again. They ordered the applicant to
report to them every month as of January 2005. If he failed to report, he would
be killed. That is when he decided to flee India.
[4]
The Board
rejected the applicant’s refugee claim, finding that his identity had not been
established and that he was not credible.
[5]
In support
of his refugee claim, the applicant gave the Board a number of identity papers.
The Board did not believe that the documentation submitted by the applicant was
authentic. The applicant today submits that the Board had photocopies of the
two passports and “probably” had the the originals of Manjit Singh’s driver’s
license and photos. In any case, the Board noted that the applicant’s false
passport, bearing the name of Tajinder Dhaliwal, contained the real surnames of
his parents. In addition, the person in the driver’s license photo did not
resemble the person in the two passports at all. The Board also pointed out
that the photocopied pages of the real 1997 passport did not corroborate the
applicant’s story of having travelled to Bahrain in 1997.
[6]
The Board
also emphasized in its decision that, throughout the process, the evidence
adduced by the applicant was rather vague. First of all, the applicant was
interviewed twice by Citizenship and Immigration Canada officials, but the
interview notes contain few details about the circumstances of his departure.
Moreover, the applicant was unable to provide details about Iqbal Singh and
could not specify the nature of the charges against him. He did not know
whether the bomb attack of which the police had accused him ever took place,
nor did he know the definition of the word “militant.” Although he testified
that he had studied with his friend Manjit Singh, he could not provide many
details about him. The Board noted that the applicant alleged he was persecuted
because he was erroneously considered to be a potential terrorist, but he does
not match the profile of a terrorist. As well, he was able to leave India
easily in 1999 and go back in 2003. This is incompatible with the behaviour of
someone who fears persecution or whose life is at risk.
[7]
The
applicant raised numerous grounds of review. The applicant’s arguments were
presented in a different order at the hearing, but for the purposes of these
reasons, I shall address them as follows. First, because he was unable to
question the immigration officers who interviewed him on his arrival in Canada,
the applicant submits that the Board should not have drawn negative inferences
from their notes. Second, the Board should have warned the applicant that
identity would be in issue. Third, the Board erred when it determined that the
identity of the applicant had not been established. Finally, the Board acted in
an arbitrary and capricious manner by misinterpreting the evidence before it
and drawing patently unreasonable inferences with respect to the applicant’s
credibility. This latter aspect in particular was elaborated on at the hearing
by the applicant’s counsel, but I do not find it necessary, for the
comprehension of these reasons for order, to repeat in detail each of the
assertions made on that subject by counsel for the applicant.
1. Did the Board commit a reviewable error by relying on
the port of entry interview notes?
[8]
On
September 23, 2005, the applicant filed a motion under section 38 of the Refugee
Protection Division Rules, SOR/2002-228 (the Rules), to call as witnesses
the immigration officer and interpreter who were present at the port of entry
interview, unless the Minister and the Board would agree not to rely on the
port of entry notes.
[9]
Section 38
of the Rules provides as follows:
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38.
(1) If a party wants to call a witness, the party must provide in writing to
any other party and the Division the following witness information:
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38.
(1) Pour faire comparaître un témoin, la partie transmet par écrit à l’autre
partie, le cas échéant, et à la Section les renseignements suivants :
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(a)
the witness's contact information;
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a) les coordonnées du témoin;
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(b)
the purpose and substance of the witness's testimony or, in the case of an
expert witness, the expert witness's signed summary of the testimony to be given;
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b) l’objet du témoignage ou,
dans le cas du témoin expert, un résumé, signé par lui, de son témoignage;
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(c)
the time needed for the witness's testimony;
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c) la durée du témoignage;
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(d)
the party's relationship to the witness;
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d) le lien entre le témoin et
la partie;
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(e)
in the case of an expert witness, a description of the expert witness's
qualifications; and
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e) dans le cas du témoin
expert, ses compétences;
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(f)
whether the party wants the witness to testify by videoconference or
telephone.
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f) le fait qu’elle veut faire
comparaître le témoin par vidéoconférence ou par téléphone, le cas échéant.
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(2)
The witness information must be provided to the Division together with a
written statement of how and when it was provided to any other party.
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(2)
En même temps que la partie transmet à la Section les renseignements visés au
paragraphe (1), elle lui transmet une déclaration écrite indiquant à
quel moment et de quelle façon elle a transmis ces renseignements à l’autre
partie, le cas échéant.
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(3)
A document provided under this rule must be received by its recipient no
later than 20 days before the hearing.
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(3)
Les documents transmis selon la présente règle doivent être reçus par leurs
destinataires au plus tard vingt jours avant l’audience.
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(4)
If a party does not provide the witness information as required under this
rule, the witness may not testify at the hearing unless the Division allows
the witness to testify.
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(4)
La partie qui ne transmet pas les renseignements concernant les témoins selon
la présente règle ne peut faire comparaître son témoin à l’audience, sauf
autorisation de la Section.
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[10]
The
applicant’s motion was denied on September 28, 2005. The coordinator found that
the applicant was raising policy questions over which the Board had no
jurisdiction. As well, the proposed questions were overly vague and did not
seem to be specifically related to the applicant. Finally, the motion was
premature because, once all of the evidence was considered, it might not be
necessary to hear the testimony of the immigration officer and the interpreter.
[11]
The
applicant basically submits that, because he could not question these
individuals, the Board should not have relied on the port of entry notes to
undermine the applicant’s credibility. In so doing, it ignored certain portions
of the interview and drew factual inferences that were patently unreasonable.
And apart from the foregoing, even assuming the Board did not err in its
findings of fact, the motion should not have been denied because the Minister
did not oppose it.
[12]
For his
part, the respondent submits that the applicant is estopped from challenging
the denial of his motion or from disputing the validity of the port of entry
notes. He emphasizes that the applicant did not object to the port of entry
notes being entered in evidence. Furthermore, counsel for the applicant did not
repeat his claim at the hearing. Finally, the respondent asks the Court to
follow the principles laid down in Singh v. Canada (Minister of Citizenship
and Immigration), 2006 FC 669.
[13]
In my
opinion, the comments I made in the Singh case, supra, at paragraph
14, are entirely apposite:
I find that the failure to observe the
rules of natural justice or procedural fairness cannot be presumed. The parties
had been advised before the hearing was held that immigration documents were
part of the documentation that could be examined by the Board. This certainly
included the port of entry notes. At the hearing, the applicant’s counsel did
not object to the Board using the content of the port of entry notes. Bear in
mind, the coordinator’s refusal to issue a summons to appear was not a final
decision. There was nothing to prevent the applicant’s counsel from reiterating
the same request at the hearing. In any event, it was not established in this
matter that the presence of the immigration officer and the interpreter was
required at the hearing under the circumstances.
[14]
In the
case at bar, applicant’s counsel did not object to the
port of entry notes being used by the Board and did not repeat his claim at the
hearing. The Board drew a negative inference from the fact that the interview
notes indicated the applicant had provided few specific details regarding his
departure and what he knew about his friend Manjit Singh and the alleged
militant named Iqbal Singh. Nevertheless, the Board did give him the
opportunity at the hearing to provide more details on these evidentiary
aspects.
[15]
I am of
the opinion, therefore, that the first ground of review is unfounded.
2. Did the Board commit a reviewable
error by failing to identify identity as one of the issues fundamental in his
refugee claim?
[16]
The
applicant submits that the File Screening Form dated March 17, 2005 does not
indicate that identity would be one of the issues addressed at the hearing.
Although the legislation actually has little to say on this subject, the
applicant submits that, under paragraph 170(e) of the Act, the Board should
have warned him that the question of identity would be key to the outcome of
the refugee claim.
[17]
It is true
that the presiding member did not clearly specify the questions on the agenda
at the outset of the hearing. Counsel for the applicant erroneously stated near
the end of the hearing that “[t]he identity was never an issue in this case.
The claimant was never detained and he has provided us with certain number of
identity documents” (Certified Tribunal Record, at p. 347). However,
contrary to the applicant’s submission, the issue of identity was in fact
mentioned in the File Screening Form (Certified Tribunal Record, at
p. 81). Under the designation “Identity,” the boxes “Affiliation:
Political/Religious/Social/Family” and “Other” are checked.
[18]
Furthermore,
the record shows that the applicant had an opportunity to offer arguments on
the issue of identity. At the hearing, indeed, the Board confronted the
applicant with its concerns, specifically, the fact that the real family names
of his parents appeared on his false passport (Certified Tribunal Record, at
p. 346) and that the person appearing in his driver’s license photo did
not seem to be the same person who appeared in the passport photos. As well, I
would emphasize that this refugee claim is essentially based on the fact that
the applicant was mistaken for someone with the same name. Thus, it is impossible
for me to accept any suggestion that the applicant did not have an opportunity
to prepare himself on this aspect of the evidence.
[19]
I am
therefore of the opinion that the second ground of review is also unfounded.
3. Did the Board commit a
reviewable error in its determination regarding the applicant’s identity?
[20]
The
applicant submits that the Board committed a reviewable error when it
determined that the applicant’s identity had not been established. According to
him, evaluating photographs is not part of the Board’s expertise and, pursuant
to paragraph 170(a) of the Act, it should have waited for the expert report
that had been requested. Moreover, the passport originals were not available.
The Board also ignored other documents entered in evidence that confirmed the
applicant’s identity, namely, the birth certificate, the father’s affidavit and
the sarpanch’s affidavit.
[21]
The
respondent, for his part, points out that the applicant did not object to the
hearing being held in the absence of the expert report (Ali v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1161). As
well, the false passport was not the only problematic document. He points out
that none of the other documents submitted by the applicant to help establish
his identity contained photos, and it was the applicant himself who chose not
to submit the original of his authentic passport. The respondent contends that
the applicant is essentially asking the Court to weigh the evidence that was
before the Board and re-evaluate it.
[22]
Section
106 of the Act provides as follows:
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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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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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[23]
Section 36
of the Rules provides as follows:
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36.
(1) A party who has provided a copy of a document to the Division must
provide the original document to the Division
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36.
(1) La partie transmet à la Section l’original de tout document dont elle lui
a transmis copie :
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(a)
without delay, on the request in writing of the Division; or
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a) sans délai, si la Section
le lui demande par écrit;
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(b)
if the Division does not make a request, no later than the beginning of the
proceeding at which the document will be used.
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b) sinon, au plus tard au
début de la procédure au cours de laquelle le document sera utilisé.
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(2)
On the request in writing of the Division, the Minister must without delay
provide to the Division the original of any document mentioned in
paragraph 3(2)(c) that is in the possession of an officer.
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(2)
Sur demande écrite de la Section, le ministre transmet à celle-ci, sans
délai, l’original de tout document mentionné à l’alinéa 3(2)c) qui est
en la possession de l’agent.
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[24]
In my
view, Ali, supra, applies in this case. At
paragraphs 12-13, Mr. Justice Shore states that:
In addition to the foregoing, it should
be noted that it is up to the refugee claimant to establish his or her
identity. Accordingly, it was not up to the Board to obtain the expert report
concerning the identity documents. On this point, the Court agrees with
Beaudry J. in Najam, supra at paragraph 20:
Subsection
36(2) says that the Board may request from the Minister the originals of the
documents but there is no positive obligation on the Board to do so. The burden
is on the Applicant to prove his case, which would include obtaining the
documents necessary to establish his identity.
Furthermore, there is no evidence on
record to show that Ms. Ali objected to the use of photocopies rather than
original documents. As a result, it is now too late for Ms. Ali to make that
complaint before the Court.
[25]
At the
hearing, the Board confronted applicant with all of its concerns regarding his
identity and gave him an opportunity to provide explanations. For all of these
reasons, I am of the opinion, based on the record presented, that the Board
could reasonably find that the identity of the applicant had not been
established to its satisfaction. In the instant case, the Board was not
required to wait for the expert report concerning the false passport. As well,
counsel for the applicant did not object to the use of passport photocopies at
the hearing. I would also emphasize that the photos were not the only
problematic evidence. The Board noted as well that the false passport contained
the real surnames of the applicant’s parents. The photocopied pages of his 1997
passport that were submitted before the Board do not corroborate his allegation
that he fled to Bahrain using his real name.
[26]
In the
hearing before this Court, applicant’s counsel tried to adduce evidence that
was not before the Board to corroborate the applicant’s identity and story,
namely, copies of the applicant’s original passport with all of the missing
pages, showing all of the dates on which he left and returned to India. Counsel
for the respondent objected, and rightly so, to the admission of evidence that
was not before the Board. In the case at bar, there is nothing that allows me
to believe that this evidence was not available at the time and that the
applicant was prevented from producing his complete passport. Let us not forget
that it was the applicant himself who deprived the Board of the best evidence
available by submitting only a partial copy of his passport.
[27]
Therefore,
the third ground of review also appears to me to be unfounded.
4. Did the Board commit a
reviewable error in its assessment of the applicant’s credibility?
[28]
The
applicant argued in great detail at the hearing that the Board misinterpreted
the evidence before it and made patently unreasonable findings of fact in its
appraisal of the applicant’s credibility. Among other things, he asserts that
the Board should have distinguished the events that took place prior to 2003
from those that occurred subsequently. He submits that he never alleged he was
accused of being associated with terrorists in 1999, nor that he was a person
in need of protection upon his return to India in 2003. He contends that the
central point in his claim concerned the events that occurred in 2004.
Accordingly, the Board should not have relied primarily on the events that
occurred prior to his return to India to assess his credibility.
[29]
For his
part, the respondent submits that there is no reviewable error in the
assessment of the evidence. It is clear from the applicant’s narrative that his
time in Bahrain was of special interest to the police. It was reasonable for
the Board to draw negative inferences from the fact that the applicant could
not answer questions about militant activities in the Punjab. It was reasonable
for the Board to infer that his behaviour was incompatible with that of a
person who fears persecution.
[30]
Credibility
and assessment of the evidence are questions within the exclusive purview of
the Board, and its findings in that regard cannot be overturned unless they
were made in a perverse or capricious manner or founded upon factual
conclusions that are not based on the evidence in the record (Aguebor v.
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.); R.K.L. v. Canada (Minister of Citizenship and Immigration),
2003 FCTD 116, 228 F.T.R. 43 at paragraphs 7-8).
[31]
In my
opinion, what Mr. Justice Dubé wrote in Herrera v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. no. 13 (QL), at paragraph 6, is
apposite here:
Although counsel for the
applicant submitted imaginative explanations, garnered from the transcript, for
each one of the implausibilities, that resourceful effort cannot
succeed. Even if each implausibility outlined by the Board could
somehow be redeemed, it was still open to the Board to take a global view of
the evidence and to conclude that the applicant was not
credible. The Board did provide reasons as to why it did not accept
the applicant's version of events after having heard the witness and assessed
his behaviour. A detailed analysis of several questions and answers
from a transcript may lead to different interpretations from different readers,
but in matters of appreciation of facts and credibility it is the
interpretation of the trier of facts that must be accepted, unless his findings
are unreasonable.
[32]
Given that
the applicant referred in his PIF to the events leading to his departure for
Bahrain, the Board was entitled to rely on the evidence relating to that period
to assess his credibility. Nor is this merely a peripheral detail, as the
applicant states in his PIF that the police interrogated him about his sojourn
in Bahrain after he returned:
I thought police would forget me because
I was returning India (sic) after long time but this could not be materialized.
I became again target (sic) by the police.
On 25th March 2004, I was at
my farm land. Police raided there. I was interrogated about the period which I
spent in Behrain (sic) and my activities.
[34]
The Board
also pointed out that there was a lack of precision in the port of entry
interview notes, the PIF and, particularly, his oral testimony. In this case, I
am satisfied that the Board’s decision was not based on erroneous findings of
fact that it made in a perverse or capricious manner or without regard for the
material before it.
[35]
Accordingly,
the fourth ground of review raised by the applicant must also be rejected.
CONCLUSION
[36]
For all of
these reasons, this application for judicial review must fail. No question of
general importance was raised in this case and none is involved.
ORDER
THE COURT ORDERS THAT the application for judicial
review is dismissed. No question is certified.
“Luc Martineau”
Certified
true translation
François
Brunet, LLB, BCL
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