Date: 20050224
Docket: IMM-290-04
Citation: 2005 FC 287
BETWEEN:
ZIA UDDIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] The Applicant, Zia Uddin, was found to be neither a refugee nor a person in need of protection because the member (Member) of the Refugee Protection Division of the Immigration and Refugee Board (RPD) did not accept the Applicant's identity, his evidence as to when he left Bangladesh, or his political identity on which his claim was based.
BACKGROUND
[2] The Applicant claimed that he was a citizen of Bangladesh who was beaten by police, and whose home (and those of his relatives) was searched by both police and political opposition gangs. He also raised numerous other incidents of threats, beatings and trespass.
[3] The Member never made a determination of the fundamental basis for the Applicant's claim which was that the alleged events occurred that this amounted to persecution based on political profile identity. Because this matter is to be remitted to the RPD for a new determination the Court will limit its comments to the grounds for the referral back.
ANALYSIS
[4] The principle applicable to this case is that found in Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.). The Court of Appeal cautioned that a board must be diligent not to be overzealous in finding instances of contradictions and should not be overly vigilant in undertaking a microscopic examination of a claimant's evidence provided through an interpreter.
[5] The Court recognizes that it is a difficult task to balance over-zealousness on the one hand and diligence at obtaining the truth on the other. Only in clear cases of crossing this line should a court interfere.
[6] In dealing with the Applicant's identity, the Member took, as particularly significant, that the Applicant had written his name as a single name and not as a first and last name. The Member accepted as implausible that in the Applicant's culture, people would have only one name. The transcript of this evidence is at best confusing.
[7] The Member also took exception to the Applicant's explanation that he had lost his "original" identity document but was later able to obtain a copy of that original with a different date.
[8] The Applicant explained cogently that the original birth certificate, which he had with him in New York, was lost. He then obtained another document, the date of issuance of that document being obviously later than the first.
[9] The explanation is consistent and credible. For example, the true original of any Canadian birth certificate rests with the relevant provincial authorities. What a person is given may be called an original copy and if it is lost, another original copy bearing a different issue date (not a different birth date) is obtained. The Applicant's explanation is of a similar system in Bangladesh.
[10] In the absence of any evidence to the contrary, the Member's rejection of all of the identity evidence is patently unreasonable.
[11] For these reasons, the application for judicial review is granted, the matter is referred back for a new determination by a differently constituted panel.
[12] Given these reasons, any issue concerning the interpretation of section 106 is not relevant. No question will be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-290-04
STYLE OF CAUSE: ZIA UDDIN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 25, 2005
REASONS FOR ORDER: Phelan J.
DATED: February 24, 2005
APPEARANCES:
Mr. Alp Debreli FOR THE APPLICANT
Mr. Kevin Lunney FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Alp Debreli
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT