Docket: IMM-4713-14
Citation:
2015 FC 314
[UNREVISED ENGLISH CER TIFIED TRANSLATION]
Ottawa, Ontario, March 12, 2015
PRESENT: The Honourable Mr. Justice Harrington
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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RANIA BELLA
INARUKUNDO
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee
Board of Canada, in which it determined that the respondent was a Convention
refugee.
[2]
The respondent is a citizen of Burundi. She alleges
a number of incidents justifying a subjective fear.
[3]
In his submissions, the applicant raises the
following problems:
a.
The applicant did not discharge the burden of
establishing her identity.
b.
The panel failed to observe the principles of
natural justice when it allowed a psychological report to be filed on the
morning of the hearing.
c.
The decision is unreasonable because it did not
consider the possibility of a scam orchestrated by Burundi refugee claimants,
as described in the information briefs prepared by the Canada Border Services
Agency (CBSA), and it concluded that there was no internal flight alternative.
I.
Standard of review
[4]
In this case, the appropriate standard of review
is reasonableness except for the procedural fairness issue, which must be
decided on a correctness standard.
II.
Respondent’s identity
[5]
The applicant submits that the respondent failed
to establish her identity. This is even more apparent when one considers the
possibility that a scam exists in Burundi involving the obtaining of American
visas. As part of this scam, refugee claimants obtain an American visa, stay in
the United States for a few days and seek refugee protection in Canada. That is
exactly what the respondent did in this case.
[6]
The respondent’s identity documents, such as her
passport, birth certificate and identity card were analyzed. Following these
analyses, the CBSA concluded that the passport was genuine. However, the
analysis of the other documents was [translation]
“inconclusive”. The applicant submits that, because the passport was obtained
on the basis of documents found to be [translation]
“inconclusive”, the respondent’s identity was not established and therefore the
panel’s decision is unreasonable.
[7]
In my opinion, this point of view is incorrect. See
Masongo v Canada (Citizenship and Immigration), 2008 FC 39 at para 12:
Rather, Mr. Masongo’s case is in line
with those which have held that a document purportedly issued by a foreign
authority is presumed to be valid unless there is evidence to the contrary (Ramalingam v. Canada (Minister of
Citizenship and Immigration), 1998 CanLII 741 (FC), [1998] F.C.J No. 10, 77 A.C.W.S. (3d) 156;
Osipenkov v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 59, 120
A.C.W.S. (3d) 111 and Sitoo v. Canada (Minister of Citizenship and
Immigration), 2004 FC
1513 (CanLII), [2004]
F.C.J. No. 1850).
[8]
Based on the facts in this case, the onus was on
the applicant to present evidence to the contrary to rebut the presumption of
the validity of the passport. However, the applicant failed to rebut the
presumption. With respect to the fraudulent activity in Burundi concerning the
issuance of false documents, Mr. Justice von Finckenstein concluded in Cheema
v Canada (Minister of Citizenship and Immigration), 2004 FC 224 au para 7:
The documents may well be forgeries, however evidence of widespread
forgery in a country is not, by itself, sufficient to reject foreign documents
as forgeries. As the Respondent noted evidence of widespread forgery merely demonstrates
that false documentation could be available to the Applicant.
See Jiang v Canada (Citizenship
and Immigration), 2006 FC 499, [2006] FCJ No 621 (QL).
[9]
Considering the facts in this case, I am of the
opinion that the decision with respect to the respondent’s identity is
reasonable.
III.
Procedural fairness
[10]
The panel allowed a psychological report to be
filed as evidence on the morning of the hearing, despite the opposition of the
applicant, who was given only a few minutes to review it. The applicant
contends that the panel must have considered the contents of the report because
it referred to the respondent’s rape in the reasons for its decision. However,
there is no explicit mention of the report in the panel’s reasons for decision.
Furthermore, there is a contemporaneous medical report regarding the rape incident
that confirms the respondent’ a physical condition.
[11]
Despite the fact that the report was filed outside
the time limits contemplated by rule 34 of the Refugee Protection Division
Rules, the panel had the discretion under rule 36 to accept the filing of a
document after the deadlines had expired. In any event, the report only confirms
the respondent’s subjective fear, a fear that was proved in another manner.
[12]
The applicant also argues that the Burundi
medical report is a forgery because it contains grammatical errors. However,
the description of the respondent’s injuries in the report is clear, and there
is no indication that the physician’s mother tongue is French. In my view, this
argument is tantamount to speculation pure and simple on the applicant’s part.
IV.
Reasonableness of decision
[13]
Last, with respect to the reasonableness of the
decision, the fact that the respondent obtained an American visa under false
pretences, because she was not intending to study there, does not support the
applicant’s argument that she was not a victim of persecution. In fact, since
the respondent’s subjective fear was proven, the panel’s decision is
reasonable.
[14]
Therefore, the application for judicial review must
be dismissed.
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