Date: 20071003
Docket: IMM-5190-06
Citation: 2007 FC 1008
Ottawa, Ontario, October 3,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MASOODHUR
RAHAMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated August 15, 2006. The Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection, pursuant to sections 96
and 97 of the Act respectively.
ISSUE
[2]
Did
the Board err by concluding that the applicant was not credible, and it was
therefore unnecessary to assess certain documents submitted by the applicant?
[3]
For
the following reasons, my answer to this question is negative.
BACKGROUND
[4]
The
applicant was born on October 7, 1981 in Bangladesh. He was
raised in a Muslim family with long standing ties to the Awami League. The
applicant was a member of the Awami League’s student wing while in university,
after which time he continued to be an active member.
[5]
In
1999, he became the target of goons of the Bangladesh Nationalist Party (BNP), which
was, at the time, the largest party in the national coalition government. The
applicant was beaten on several occasions. In 2005, the applicant was
threatened by the goons, who left burial garb at his home. He sought police
protection but they did not do anything for him. Later, his family residence
was attacked.
[6]
The
applicant fled to a nearby village where he stayed with a friend. He
subsequently moved to the capital, Dhaka, but the BNP goons were still looking
for him, so he fled to Canada using falsified travelling documents provided
to him by a smuggler. He claimed refugee protection at an inland office of
Citizenship and Immigration Canada.
DECISION UNDER REVIEW
[7]
The
Board’s decision was based on three hearings on separate occasions, in front of
the same panellist. The first was held in November 2005, and the second and
third were held on May 8, 2006 and May 31, 2006.
[8]
The
Board found that the applicant was not credible and, because he showed a
propensity to adduce false or fabricated evidence, the adverse finding of
credibility was extended to all relevant evidence. The Board therefore
concluded that it was unnecessary to conduct an assessment of human rights
conditions in Bangladesh.
[9]
The
applicant provided two newspaper articles in support of his account, the first reporting
his attendance at a protest, and the second detailing the attack on his home by
the BNP goons. A verification report was conducted prior to the second hearing
date by an investigator with the High Commission of Canada in Dhaka. The
investigator’s examination of the newspaper archives revealed that the
documents submitted were forgeries.
[10]
At
the second hearing, the applicant expressed surprise at learning that the
documents were falsified. However, at the third hearing, he candidly admitted
that he obtained the documents with the help of a friend in order to bolster
his refugee claim.
[11]
The
Board accepted the applicant’s submission that an admission that some evidence is false
does not necessarily mean that the rest is also false. However, because the
applicant did not admit the fabrication at first, the Board concluded that he
showed a propensity to adduce false or fabricated evidence in order to deceive
the Board.
[12]
The
Board found that the applicant was not a credible or trustworthy witness, and
generally lacked credibility. Further, the Board was not satisfied by the sufficiency
of the applicant’s account of events that precipitated his decision to leave Bangladesh, even if it
disregarded the falsified documents.
ANALYSIS
Standard of review
[13]
When
the Board makes a determination regarding the credibility of a refugee
claimant, the decision will be reviewed by the Court using the standard of
patent unreasonableness. As such, the Court will only intervene if the Board
has made a perverse and capricious finding of fact, without regard to the
material before it. This standard has been confirmed by the Federal Court of
Appeal in Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 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. […]
Adverse credibility
findings
[14]
The
applicant submits that the Board erred by overlooking other corroborating
documentary evidence of his story based on a general adverse finding of
credibility. It is my opinion that the Board did not commit a reviewable error
in choosing to extend its finding that the applicant was not credible to the
evidence as a whole. In admitting that he attempted to mislead the tribunal,
the applicant severely damaged his credibility. In the case at hand, both his
personal credibility and the credibility of the evidence are at issue; not only
was documentary evidence central to the claim found to be false, but the
applicant misled the Board by denying at first hand knowledge of the forgery.
[15]
In
Osayande v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 368, [2002] F.C.J. No. 511 (QL) at
paragraphs 19-21, the Court came to the same conclusion based on a very similar
set of facts:
The CRDD held that this evidence, if
genuine, "would have fully corroborated the claimant's allegations".
At the hearing, the respondent produced the real first page of The Observer
dated December 14, 1999. This document was identical to the exhibit introduced
by the applicant, except that the article about the applicant was missing. The
CRDD concluded that the newspaper produced by the applicant was fake. Upon
questioning the claimant was at a loss to explain. The CRDD concluded that the
story in the newspaper about the claimant being wanted by Nigerian authorities
"is a fabrication designed to deceive the Tribunal". In plain
English, the applicant was caught in a blatant lie designed to deceive the CRDD
with respect to the main issue. This showed the applicant, in no uncertain
terms, to be a liar.
It is trite law before this Court that an
administrative panel such as the CRDD need not make specific reference to all
evidence available before coming to a finding regarding the credibility of an
applicant. Further, findings of credibility are reasonably open to the panel to
make and will not be overturned by the court unless found to have been made in
a perverse or capricious manner.
In the present matter, the false
newspaper document, its falsity not in issue before this Court, was taken into
account by the CRDD, along with the other available evidence, and the tribunal
came to a finding that the applicant was not credible. Where a witness before
the CRDD is found to have severely damaged his own credibility in a specific
instance, such as supplying a false document to the CRDD, that can reflect on
other findings regarding his credibility.
[Emphasis added]
[16]
The
applicant submits that the tendering of fraudulent evidence and not admitting
it immediately may have been fatal to his personal credibility, but the Board
erred in failing to consider the human rights situation in Bangladesh, and refused
to analyze other relevant documentary evidence.
[17]
I
do not agree. If the credibility of the applicant is so severely eroded that
the Board does not believe that the applicant has a well founded fear of
persecution, there is no need to look at whether the country conditions can
support his claim.
[18]
The
Board’s adverse credibility findings are supported by the reasons; the question
of credibility is apparent on the face of the facts, and as such there is no
ground upon which this Court can intervene.
Consideration of
personal evidence
[19]
The
applicant cites Lahpai v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 88, [2001] F.C.J. No. 232 (QL) in
support of the position that it is insufficient to dismiss personal documentary
evidence or medical reports without explanation. The Court writes at paragraph
21 of Lahpai:
[…] when evidence is omitted, not only
from the decision, but from consideration at the hearing, and such evidence
squarely contradicts the findings of the Board on a central issue, the latter
must clearly refer to that material and state why it did not rely on it. […]
[20]
A
review of the record reveals that the documentary evidence not mentioned by the
Board consists of a letter from the applicant’s doctor confirming injuries
consistent with one aspect of an attack suffered by the applicant in 2001, and
two letters from members of the Awami League attesting to his association with
the party. While it may have been desirable for the Board to explicitly
consider the letters and give reasons for discounting them, I am of the opinion
that none of the letters squarely contradict the Board’s adverse finding of
credibility, which was the central issue.
[21]
Furthermore,
no evidence was submitted to corroborate the veracity of the letters. The
letters from the Awami League were not verified, and the injuries described to
the doctor did not demonstrate anything more than a speculative connection to
the persecution alleged by the applicant. I agree with the respondent’s
submission that it is insufficient for the applicant, who has admitted to
producing false documents in the same proceeding, to assert without question
that the documents are genuine. The Court found in Hamid v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 1293 (F.C.T.D.) (QL), at
paragraph 21, that there must be further corroboration in such circumstances:
Consequently, in my opinion, the
applicant's assertion that the Board is bound to analyze the documentary
evidence "independently from the applicant's testimony" must be
examined in the context of the informal proceedings which prevail before the
Board. 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. In the present case, the Board was not satisfied
with the applicant's proof and refused to give the documents at issue any
probative value. 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.
[Emphasis added]
[22]
It
has to be noted that in the case at bar, the applicant was given time to regain
his credibility but failed to do so.
[23]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
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