Docket: IMM-7067-04
Ottawa, Ontario, this 4th day of May, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
Esmail Ebrahim Ali AL-KHALIQ
Rayhanah Esmail AL-KANAANI
Mohtadi Esmail AL-KHALIQ
Fatemah Esmail AL-KHALIQ
(Applicants)
- and -
THE MINISTER OF CITIZENSHJIP AND IMMIGRATION
(Respondent)
REASONS FOR ORDER AND ORDER
Background
[1] The Principal Applicant fled Iraq with his spouse, his son and his daughter on or about February 18, 2003. He is a Shiite Muslim cleric who had been imprisoned and tortured by the former Baath regime of Saddam Hussein on several occasions. This resulted from his association with and support of the Shiite religious leader Abdul Majid Al-Khoei, who was assassinated in April of 2003, shortly after the Applicants left the country. The Principal Applicant moved his family between Najaf, Hilla and Al-Hurr to avoid the authorities. By this point he believed he would be assassinated as so many other religious leaders had been. He wanted to leave Iraq with his family at that point but did not have the resources to do so. In exchange for assistance from the Al-Khoei Charity Organization, he conducted voluntary work which including guiding lay people on the Hajj pilgrimage to Mecca. In 2001 the Principal Applicant moved his family to stay in the suburbs of Karbala and Najaf, before moving to Khanaqin, a border city close to the Kurdistan region and Iran. The family remained in Khanaqin until smuggling agents provided them with false passports to leave Iraq, on or about February 18, 2003. Despite the overthrow of the Hussein regime and the capture of Saddam Hussein, the Principal Applicant claims he is at risk in Iraq because he is a prominent Shiite cleric, many of whom have been assassinated since the regime change.
[2] The Applicant now seeks judicial review of the decision of the Immigration and Refugee Board (the "Board") dated July 12, 2004 wherein the Board denied his claim for refugee status.
Decision
[3] The Board found that there were serious reasons to doubt that the Applicant is a national of Iraq and only Iraq and consequently, the associated claimants as well. As a result, the Board rejected his refugee claim.
Applicant's Contentions
[4] The Applicant disputes the decision arguing:
a) the Board was patently unreasonable in rejecting the supporting telephone testimony of a fellow cleric;
b) the Board employed its specialized knowledge without giving the Applicant advance warning;
c) the Board erred in rejecting the Applicant's identity documents; and
d) the Board erred in rejecting other supporting documentation.
Standard of Review
[5] It is undisputed between the parties that findings of credibility are assessed on a standard of patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).
Analysis
Testimony of fellow cleric
[6] Sayed Moustafa Al-Qawini, the founder of the Islamic Educational Centre of Orange County, California, testified by phone from California. He testified that he went to school with the Applicant and that the last time he saw the Applicant was in Mecca, Saudi Arabia in January of 2003, where he was with a group from Iraq. He also testified that the Applicant was a prominent scholar in Iraq. When asked about the Applicant's writings he could not recollect a single tract, notwithstanding the Applicant's alleged prominence.
[7] The Board attached no weight to Mr. Al-Qawini's testimony as:
a) he was reached on a cell phone that was not the cell phone listed on his business card and asked to be immediately called back on another unknown land line in San Diego;
b) he had only met the Applicant once since their joint youth;
c) he made no statement as to the Applicant's nationality; and
d) although a fellow scholar, Mr. Al-Qawini could not recall one writing of the Applicant.
[8] In light of these facts, the Board concluded that I) it was not sure it was speaking to Mr. Al-Qawini and ii) his testimony was not credible and did not establish the Applicant's identity.
Given the evidence before the Board, there was nothing patently unreasonable about its conclusion. In particular, the absence of knowledge about the Applicant's writings justified the Board's decision.
Specialized knowledge
[9] The law on specialized knowledge is well established. It is, of course, based on Rule 18 of the Refugee Protection Division Rules which provides:
Refugee Protection Division Rules, SOR/2002-228
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
[10] Further, in Gonzalez v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 781 (C.A.), Urie J. described the kind of information that constitutes specialized knowledge at page 782:
The information was not the sort of information of which judicial notice could be taken in proceedings before a court nor was it of the general character well known to the Board and to the public referred to in the Maslej case. If the kind of information used in this case, which appears to be of a type which an applicant might well be in a position to contest, is to be relied upon by the Board in a hearing...natural justice requires that the applicant be entitled to respond to it just as he would to evidence adduced at the hearing.
This notion was further developed by: Noel J. in Kabedi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 545, who stated at paragraph 10:
Based on the jurisprudence set out in Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) ("Yassine") and in Mobile Oil Canada Ltd. Et al. vs. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, a reviewable error constituting a breach of natural justice will ordinarily void the hearing and the resulting decision; however, an exception to this strict rule has been recognized where the other elements of the claim support the original finding and where re-determination of the claim would likely result in the same decision.
[11] In this case, the Board had specialized knowledge of the procedures employed by the Canadian Border Security Service to analyse Iraqi documents and disclosed it to the Applicants.
[12] As the specialist was not available at the date of hearing, (which was chosen at the Applicant's request as further delay would have put his legal aid certificate in jeopardy,) the Board took three steps;
1) it made available a sanitized transcript from another hearing by the same witness on Iraqi documents;
2) it gave the Applicant an opportunity to comment on this transcript; and
3) it considered response evidence regarding specialized ink from both the Applicant and the expert witness which was submitted subsequent to the hearing.
[13] All of these steps were accepted by the Applicant without objection. In sum, Rule 18, to the extent it is applicable under these circumstances, was complied with and the reasoning of Noel J. in Kabedi supra applies; a redetermination would likely result in the same decision.
Iraqi identity documents
[14] The Board rejected the Applicant's Iraqi ID card and drivers license relying on the expert assessment of the Crown witness, Ms. Gosen. As mentioned in the previous section, she had testified at another hearing involving the same Board Member as to the techniques she employs to test Iraqi documents and a sanitized version of that testimony was available at the hearing. Her testimony reveals that she has no actual samples of Iraqi ID cards or Drivers Licenses but relies on manuals from the German Border security who have examined over 400 ID cards. The Applicant suggests that without actual samples available, the expert's evidence should not have been accepted.
[15] It is well established law that the Board is entitled to assign the weight it sees fit to documentary evidence. Here the Board:
a) considered the written evidence from the expert;
b) considered the testimony (albeit from another case but by the same witness as to her techniques);
c) allowed the Applicant to adduce further material regarding ink and paper of Iraqi ID documents; and
d) considered written commentary by the expert on the materials referred to in c).
[16] All of this, in my view, constitutes a reasonable weighing of the evidence. It was certainly not patently unreasonable.
Other supporting documentation
[17] The Board also found other documentary evidence tabled by the Applicant not to be credible. In particular, the Board:
a) did not accept a birth certificate as it was a photocopy, was issued to the Department of Education, there was no explanation of how it was obtained by the sender and the sender had a UK fax number and not an Iraqi one. The original birth certificate, which was delivered from Baghdad subsequent to the hearing, was also a photocopy with handwritten annotations and a rubber stamp. Again, no explanation was provided as to how it came into the hands of the sender; and
b) did not accept a marriage certificate as it did not display the same register number as the putative identity cards for the Applicant and his wife.
[18] The Applicant argues that both these documents were incorrectly rejected without evidence external to the document. He relies on Ramalingam v. Canada (MCI) [1998] FCJ No 10 and Ratheeskumar v. Canada (MCI) [2002] F.C.J. No 1697. He particularly refers to the following passage in Ramalingam:
6. In this instance, the Board challenged the validity of the birth certificate without adducing any evidence in support of its contention and, clearly, the matter of foreign documents it is not an area where the Board can claim particular knowledge. That, in my view, constitutes a reviewable error on the part of the Board.
[19] It is undisputed that it is the Board's function to weigh the evidence placed before it. One of the key points to be established in a hearing is the applicant's identity. Here the Board had doubts about the Applicant's identity, as he had forged Iraqi identity documents, could not produce credible witnesses attesting to his identity and the testimonials from other Islamic organisations did not establish his nationality.
[20] The Board rejected the marriage certificate for reasons external to the document (it failed to accord with the putative ID papers) and it rejected the birth certificate because its provenance was more than suspicious. This situation is quite different from the one encountered in Ramalingan, supra.
Conclusion
[21] One has to regard the matter in its context. The Applicant had no valid Iraqi ID document, he speaks Farsi, he has travelled extensively, he claims to be a reputed, widely known Islamic scholar, yet he could not produce any witnesses or documents that establish his Iraqi identity. The Board had the benefit of seeing and hearing the Applicants and witnesses in person Credibility is the "heartland of its jurisdiction" (see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at paragraph 38) and should not lightly be interfered with. The cumulative effect of the many irregularities and inconsistencies pointed out by the Board support its finding of lack of credibility. The Applicant, either by his testimony or through documentary evidence simply was unable to establish his identity. I see no reason why the Board's finding, in light of the Applicant's arguments, should be disturbed.
ORDER
THIS COURT ORDERS that this application be dismissed.
___________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7067-04
STYLE OF CAUSE: Esmail Ebrahim Ali AL-KHALIQ, Rayhanah Esmail AL- KANAANI, Mohtadi Esmail AL-KHALIQ, Fatemah Esmail AL-KHALIQ
Applicants
and
THE MINISTER OF CITIZENSHIPAND IMMIGRATION
Respondent
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: APRIL 27, 2005
REASONS FOR ORDER AND ORDER BY: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
DATED: MAY 4, 2005
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Embarkation Law Group Vancouver, B.C. |
FOR THE APPLICANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENT |