Docket: IMM-3607-14
Citation:
2015 FC 588
Toronto, Ontario, May 5, 2015
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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SANJIDA MORIOM
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(A.K.A. SONIA
AKTER)
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Summary
[1]
This is an application for judicial review by
Sanjida Moriom [the Applicant] under subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the
Immigration and Refugee Board of Canada, Refugee Protection Division [RPD],
dated April 7, 2014, wherein the RPD found that the Applicant’s claim was
manifestly unfounded and determined that the Applicant was not a Convention
refugee or a person in need of protection. The application is dismissed for the
reasons that follow.
II.
Facts
[2]
The Applicant was born on April 29, 1992. She is
a citizen of Bangladesh. She alleged to have been an opposition political
activist with the women’s wing of the Bangladesh Nationalist Party [BNP]. She
alleged that a goon of the governing Awami League Party targeted her because of
her political involvement and her refusal to marry him. She also alleged having
been targeted by the Bangladesh police and other authorities.
[3]
In Canada, the Applicant initiated a refugee
protection claim under a false name and presented false information in support
of her claim. She claimed to be at risk in Bangladesh due to her gender and due
to her opposition political activities with the BNP.
[4]
The RPD rejected the Applicant’s claim for
refugee protection on April 7, 2014. She filed an application for leave and
judicial review of the RPD’s decision with this Court on May 1, 2014. Leave
was granted on January 28, 2015.
III.
Decision under Review
[5]
The determinative issue was the Applicant’s
credibility. The RPD found that her evidence was fraudulent and not
trustworthy.
[6]
The RPD noted that while the Applicant indicated
that her name was “Sonia Akter” and that she was
born on April 14, 1991 in her Port of Entry [POE] documents and in her original
Personal Information Form [PIF], she admitted at the hearing that her birth
certificate was fraudulently obtained from a friend in Bangladesh.
[7]
The RPD noted that neither the Applicant’s POE
nor her PIF provided information on her residency in the United Kingdom [UK] and
in the United States of America [US] for the purpose of education. Instead she
indicated she came directly to Canada from Bangladesh, that she had no aliases
and that she had a valid Bangladesh passport in her possession. The RPD noted
that in both these documents, the Applicant declared that the information she
provided was complete, true and correct.
[8]
The Canada Border Services Agency [CBSA]
provided a Five Country Conference [FCC] report dated December 12, 2012, which
is based on fingerprint comparisons between Canada and the UK and which
revealed an exact biometric match for the Applicant. This report stated that
the Applicant’s name was “Sanjida Moriom” and
that she was born on April 29, 1992. CBSA also provided a FCC report dated
December 27, 2010, which is based on fingerprint comparisons between Canada and
the US and which revealed an exact biometric match for the Applicant. This
report also indicated that the Applicant’s name is “Sanjida
Moriom” and that she was born on April 29, 1992.
[9]
The RPD noted that the Applicant admitted in her
revised PIF, submitted after the Minister’s disclosures, that she used a
fraudulent name and birthdate in her POE documents and in her original PIF. She
also admitted that she was in possession of a Bangladesh passport that
indicated her real identity and information disclosed by the Minister. She
admitted that she obtained a temporary visa to Canada using that passport, she
entered Canada from the US using that visa, and that she resided in the UK for
one year and in the US for six month before coming to Canada.
[10]
The RPD found that the Applicant’s evidence
differed substantially from the biometric results in respect of her name, date
of birth, her passport, her stay in the UK and in the US, as well as the route
she had taken to come to Canada. The RPD found that the Applicant’s revised PIF
confirmed that she had also given false information in her original PIF
regarding her travel history, residency history, previous applications for visa
and travel route to Canada. The RPD noted that the Applicant consistently
advised the Canadian immigration authorities in her POE documents and in her
original PIF that she does not have any other aliases. The RPD noted that the
Applicant admitted at the hearing that she lied about her identity because her
community in Toronto advised her to do so to enable her to succeed in obtaining
refugee status in Canada.
[11]
The RPD found that the Applicant deliberately
provided a fraudulent identity as well as other substantial information to
mislead the RPD and Immigration at the POE, and that she did so to advance a
fraudulent refugee claim in Canada. The RPD further found that the Applicant
had knowingly made a false declaration about her name, her birthdate, her
passport, and omitted evidence about her travels to the UK and the US in her
original PIF and her POE documents to advance her refugee claim in Canada and
had, as a result, seriously undermined her credibility as well as the merit of
her claim.
[12]
The RPD noted that the Applicant acknowledged
misrepresenting herself from the outset of the refugee claim process. The RPD
reiterated that the false declarations were made with the deliberate intention
of duping the Immigration and Refugee Board to secure a positive decision on
her refugee claim.
[13]
The RPD found that the Applicant’s claim was
clearly fraudulent, not trustworthy and “manifestly
unfounded” pursuant to section 107.1 of the IRPA. The RPD consequently
rejected the Applicant’s claim for refugee protection. In this case it is
important to set out the RPD conclusions in their entirety. It stated:
[15] Based on the evidence adduced, the
panel finds that the evidence the claimant had given her POE documents and in
her original PIF differs substantially from the biometric results provided by
the FCC with respect to her name, date of birth, her passport, her stay in the
UK/USA, the route she had taken to come to Canada. Her revised PIF and her oral
testimony confirms that she had also given false information in her original
PIF, with respect to her travel history, residency history, previous
applications for visa and travel route to Canada.
[16] Moreover, the claimant
consistently advised the Canadian immigration authorities in her POE documents
and in her original PIF that she does not have any other aliases. Despite
having retained a legal counsel at the time she prepared her original PIF, she
provided false information to the RPD and the panel. At the hearing, she
admitted that she lied about her identity because her community in Toronto
advised her to do so to enable her to succeed in obtaining refugee status in
Canada.
[17] Since the claimant was seeking
protection in Canada, it is reasonable to expect from a reasonably-educated
person, represented by a counsel, to provide trustworthy evidence in her
original PIF in which she declared that the information she had given was
complete, true and correct. Based on the evidence adduced, the panel finds that
the claimant deliberately provided a fraudulent identity as well as other
substantial information to mislead the RPD and Immigration at the Port of
Entry. The panel finds that she did that to advance a fraudulent refugee claim
in Canada.
[18] Based on the totality of the
evidence adduced, the panel finds that the claimant, a.k.a. Sanjida Moriom, has
knowingly made false declarations about her name, her birthdate her passport,
omitting evidence about her travels to the UK and USA in her original PIF and
her POE documents to advance her refugee claim in Canada. As a result, the
panel finds that the claimant has seriously undermined her credibility as well
as the merits of her claim.
[19] In this case, the claimant has
acknowledged misrepresenting herself from the outset of the refugee claim
process she applied for. The FCC Reports had demonstrated that the claimant’s
claim is based on false declaration of substantive nature. Also the false
declarations were made with the deliberate intention of duping the Immigration
and Refugee Board to secure a positive decision on her refugee claim. The
claimant deliberately elected to hide her real name, birthdate and her
possession of a valid Bangladesh passport, in her original PIF and in her POE
documents.
[20] Therefore, based on the evidence
adduced, the panel finds that the claimant’s claim is clearly fraudulent, not
trustworthy and manifestly unfounded. As a result, the panel rejects the
claimant’s claim for refugee protection. [Footnotes deleted]
IV.
Issues
[14]
At issue is whether the RPD erred in failing to
properly consider the evidence of corroboration.
V.
Standard of Review
[15]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
It is well established that reasonableness is the applicable standard of review
with respect to credibility findings of the RPD: Sun v Canada (Minister of
Citizenship and Immigration), 2015 FC 387 at para 17. In Dunsmuir at
para 47, the Supreme Court of Canada explained what is required of a court
reviewing on the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[16]
The Federal Court of Appeal has held that
credibility findings are the “heartland of the
discretion of triers of fact”: Giron v Canada (Minister of Employment
and Immigration) (1992), 143 NR 238 at 239 (FCA) [Giron]. The
tribunal is uniquely situated to assess the credibility of a refugee claimant
and is entitled to considerable deference upon judicial review.
VI.
Submissions of the Parties and Analysis
[17]
The Applicant argues that the RPD erred by
rejecting her claim on the sole basis of her numerous misrepresentations. In
doing so, the Applicant argues, the RPD failed to consider all the evidence
relevant to her case. She relies on case law including Tahmoursati v Canada
(Minister of Citizenship and Immigration), 2005 FC 1278 at paras 40-41 [Tahmoursati]
which held that the RPD is required to make it clear that it acknowledges
contradictory evidence that appeared to corroborate the Applicant’s lies and
for her finally revealing the truth:
[40] In assessing credibility, the
Board should have dealt with the evidence offered by the Applicant that he was
now coming clean and telling the truth. The evidence he offered does address
abuse by his father. The Board simply says that because the Applicant has told
lies in the past, he is continuing to tell lies and cannot be believed.
[41] This may be true, and it may not
be a patently unreasonable conclusion to reach on the evidence. But the Board
does need to make it clear that it acknowledges and has reviewed the
contradictory evidence that appears to corroborate the Applicant's explanation
for his lies and his finally revealing the truth. That evidence was too
important to leave to a blanket and perfunctory assertion that all of the
evidence had been considered. The inference is that such evidence was
disregarded because the Board found the Applicant's lies so repugnant (and they
were) that it wasn't prepared to believe anything he said or consider any
evidence he brought forward that might support his claim to be finally telling
the truth.
[18]
In my opinion, the Applicant’s argument fails
for several reasons.
[19]
To begin with, the RPD is presumed to have
considered the entire record before it: Herrera Andrade v Canada (Minister
of Citizenship and Immigration), 2012 FC 1490 at para 11. The Applicant is
obliged to and in my view has failed to rebut this presumption. I am not
convinced that the RPD rejected her claim without considering the full record.
What the RPD meant when it said that the Applicant, as a result of her
fraudulent misrepresentations, had “seriously
undermined her credibility as well as the merit of her claim” [emphasis
added] is that the rest of her evidence was indeed considered and found not
credible in light of the false evidence she gave. This finding alone disposes
of this application.
[20]
In addition however, the RPD expressly and
repeatedly stated that it had reviewed the “totality of
the evidence” and emphasized that its decision was “based on the
evidence”. I have no reason to believe the panel did not.
[21]
This Court must also apply the Supreme Court of
Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 22 [Newfoundland
Nurses]. There, the Supreme Court of Canada held that the adequacy of
reasons is not a stand-alone basis for quashing a decision and that any
challenge to the reasoning/result of a decision should therefore be made within
the reasonableness standard of review. The Supreme Court explained what is
required of a tribunal’s reasons in order to meet the Dunsmuir criteria:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’ International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382,
at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met. [Newfoundland Nurses at para 16. See also Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3.]
[22]
In my opinion, the RPD was under no obligation
to refer to any additional evidence in its reasons because its reasons are very
clear. They allow this Court to understand why the RPD made its decision. They
permit me to determine whether the RPD’s conclusions are within the range of
acceptable outcomes, and in my opinion they are. This finding also disposes of
this case.
[23]
On these bases I have determined there is no
merit to the Applicant’s allegation that the RPD failed to adequately consider
potentially corroborative evidence. I am reinforced in this conclusion in that
the Federal Court of Appeal has dealt with this issue, notwithstanding it may
continue to arise in this Court.
[24]
There appear to be two lines of authority. On
the one hand, Lawal v Canada (Minister of Citizenship and Immigration),
2010 FC 558 and other cases hold that an Applicant’s lack of credibility may be
extended to “all documentary evidence submitted to
corroborate” an Applicant’s version of events with the result that the
RPD does not have to consider all the documentary evidence in support of an
applicant’s story:
[22] Given all the inconsistencies and
implausibilities listed above, it was reasonable for the Board to make a
general finding of lack of credibility in this case. Such a general
finding of lack of credibility extends to all relevant evidence emanating from
the Applicant’s version: Sheikh v. Canada (Ministry of
Employment and Immigration), [1990] 3 F.C. 238 at para. 8 (F.C.A.). The
Applicant’s lack of credibility can also be extended to all documentary
evidence that he submitted to corroborate his version of the facts. As a
result, the Board did not have to consider all of the documentary evidence in
support of the Applicant’s story: Nijjer v. Canada
(Ministry of Citizenship and Immigration), 2009 FC 1259, [2009] F.C.J. No.
1696 at para. 26 [emphasis added].
[25]
On the other hand, Karayel v Canada (Minister
of Citizenship and Immigration), 2010 FC 1305 at paras 15-17, Tahmoursati
and other cases hold that despite an adverse credibility finding, the RPD must
show that it considered corroborative evidence, if only briefly:
[17] The Board is free to weigh
evidence as it sees fit. However, the Applicant must be assured when
reading the decision that the evidence was considered. There is nothing in
the present decision to show that the Board member turned his mind to the
evidence – even if only by one line of text to assign it no weight (Mladenov
v. Canada (Minister of Employment and Immigration), 74 FTR 161, 46
ACWS (3d) 302 at para 10). This is unfortunate.
[26]
In my view, these lines of reasoning were
resolved by the Federal Court of Appeal in Canada (Minister of Citizenship
and Immigration) v Sellan, 2008 FCA 381 [Sellan], where an issue was
certified for the Court of Appeal’s decision, and where it concluded:
[2] The Judge also certified a
question, namely: where there is relevant objective evidence that may support a
claim for protection, but where the Refugee Protection Division does not find
the claimant’s subjective evidence credible except as to identity, is the
Refugee Protection Division required to assess that objective evidence under s.
97 of the Immigration and Refugee Protection Act?
[3] In our view, that question should
be answered in the following way: where the Board makes a general finding that
the claimant lacks credibility, that determination is sufficient to dispose of
the claim unless there is independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim. The claimant
bears the onus of demonstrating there was such evidence.
[4] This leads to the question of
whether there was in the record before the Board any evidence capable of
supporting a determination in the respondent’s favour. In our view, there was
clearly no such evidence in the record. We are satisfied that had the Judge
examined the record, as he was bound to, he would no doubt have so concluded.
In those circumstances, returning the matter to the Board would serve no useful
purpose.
[Emphasis added].
[27]
Therefore and given Sellan, the issue
becomes whether there is independent and credible documentary evidence in the
record capable of supporting a positive disposition of the claim. In Sellan,
the Federal Court of Appeal reviewed the evidence, found there was none, set
aside the judge’s decision and dismissed judicial review. That is my conclusion
in this case as well. While there were letters from the Applicant’s father,
brother and former neighbour plus letters from senior members of the
Applicant’s political party in Bangladesh and certain photographs of the
Applicant with other members of her political party, I am unable to find these
are independent as required by Sellan.
[28]
In the result I find that the RPD’s finding on
credibility is reasonable, and that its finding that the Applicant’s claim is “manifestly unfounded” is within the range of
reasonable outcomes permitted by Dunsmuir. Accordingly the RPD did not
err in its treatment of the evidence.
[29]
Neither party proposed a question to certify,
and none arises.
VII.
Conclusions
[30]
The application for judicial review should be
dismissed and no question certified.
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