Ottawa, Ontario, April 6, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR JUDMENT AND JUDGMENT
INTRODUCTION
[1] Without knowing who is before it, how may the Immigration and Refugee Board do otherwise than reject an application for refugee protection once it determines that the identity of an applicant is not proven?
Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence (Mr. Justice Andrew MacKay in Akinlolu v. Canada (Minister of Citizenship and de Immigration), [1997] F.C.J. No. 296 (QL)).
NATURE OF THE PROCEEDINGS
[2] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated August 16, 2005, concluding that the applicant is not a “Convention refugee” or a “person in need of protection”.
FACTS
[3] The applicant, Thierno Mamadou Balde, is a citizen of the Republic of Guinea. He arrived in Canada on October 26, 2004 and made a claim for refugee protection one month later. The facts he invoked in support of his claim may be summed up follows:
(a) In October 2002, he opened a cafeteria in the city of Coyah;
(b) On June 10, 2003, a demonstration was allegedly organized to contest the decision rendered by the prefect of Coyah to sell land that was used for meetings and as a playground for the youngsters in Coyah. This demonstration allegedly got out of hand and several youngsters were arrested and detained;
(c) On June 14, 2003, the applicant was allegedly arrested to have him report on which youngsters were responsible for the demonstration. Considering his lack of knowledge, he was tortured by the authorities and detained without a trial for one year, during which time he continued to be mistreated;
(d) On June 30, 2004, he allegedly managed to escape with the help of two corrupt guards paid by his brother. His brother helped him get to the village of Keitaya, where he received medical care for several days;
(e) On October 25, 2004, he allegedly left Conakry using his brother’s identity papers and arrived in Canada the next day.
IMPUGNED DECISION
[4] The Board first of all concluded that Mr. Balde had not established his identity because he did not submit acceptable documentation establishing identity within the meaning of section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[5] Moreover, the Board noted several inconsistencies and contradictions in Mr. Balde’s testimony, which led it to conclude that his story of persecution was not credible.
ISSUE
[6] Is the Board’s decision patently unreasonable?
ANALYSIS
Standard of review
[7] Because this case is based on a matter of credibility, the standard of review relates to a question of fact, and therefore this Court must show a high degree of deference toward the Board. In other words, for a decision to be returned to the specialized tribunal, the decision of the trier of fact must be considered patently unreasonable.
[8] It is trite law that a person who makes a claim for refugee protection must first of all establish his identity. It is essential that the refugee protection claimant show that he is the person he claims to be before his claim may be considered. This requirement is based on section 7 of the Refugee Protection Division Rules, SOR/2002-228, which provides as follows:
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Documents establishing identity and other elements of the claim
7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.
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Documents d'identité et autres éléments de la demande
7. Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer.
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[9] Moreover, under section 106 of the Act, the Board must take into consideration the lack of acceptable documentation establishing identity in its assessment of the applicant’s credibility:
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Credibility
106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
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Crédibilité
106. La Section de la protection des réfugiés prend en compte, s'agissant de crédibilité, le fait que, n'étant pas muni de papiers d'identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n'a pas pris les mesures voulues pour s'en procurer.
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[10] Because the question of determining whether the applicant has documents establishing his identity is essentially a question of fact and credibility, it is obvious that this Court will only intervene if the Board’s decision is patently unreasonable: Najam v. Canada (Minister of Citizenship and Immigration), 2004 FC 425, [2004] F.C.J. No. 516 (QL), Gasparyan v. Canada (Minister of Citizenship and Immigration), 2003 FC 663, [2003] F.C.J. No. 1103 (QL) ; Mbabazi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1191, [2002] F.C.J. No. 1623 (QL); Adar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 695 (QL).
[11] In this case, Mr. Balde submitted the following two documents to prove his identity as Thierno Mamadou Balde. The two documents show that he was born on December 6, 1972:
(a) A birth certificate;
(b) A national identity card.
[12] However, the Board also had in evidence a passport of the Republic of Guinea with Mr. Balde’s picture, bearing the name of Alpha Aguibou Balde, born on December 6, 1966, and containing a Canadian visa valid from August 28, 2004 to February 23, 2005.
[13] When confronted with the existence of this passport issued on March 30, 2004, when Mr. Balde was supposedly in jail, he confirmed that the application for a temporary resident visa filed on record actually did contain his picture, but he denied having showed up himself before the Canadian Immigration authorities. He claimed it was his brother, who looks a lot like him, who had undertaken these steps for him.
[14] When considering the contradictory identity documents, the Board, as a trier of fact, had to assume its role of assessing the evidence and deciding on the weight to be given to these documents.
[15] The Board decided that the Guinean passport in the name of Alpha Aguibou Balde had more weight than the birth certificate and the identity card, because of the inconsistency of the evidence and the implausability of the explanations given by Mr. Balde with regard to his alleged brother obtaining the passport.
[16] First of all, the Board noted that in the birth certificate of Thierno Mamadou Balde, it was mentioned that in 1972 his father was 58 years old and his mother was 42 (Applicant’s Record – page 83). However, in the birth certificate in the name of Alpha Aguibou Balde, who was allegedly his brother, it was mentioned that his father was born in 1941 and his mother in 1947 (Applicant’s Record – page 100).
[17] As stated by the Board in its Reasons, a brief calculation shows that Mr. Balde’s parents were respectively 31 and 25 years old in 1972 and not 28 and 42 years old, as mentioned in the birth certificate in the name of Thierno Mamadou Balde.
[18] The Board then seriously doubted that a visa officer could make such a gross mistake by not noting that the person he was dealing with was not the same person who was the bearer of the Guinean passport and the pictures submitted to obtain the visa.
[19] This was especially implausible considering that the visa officer interviewed the candidate and had on hand the [translation] “activities registration card for the direction générale de l'Office de promotion des investissements privés [directorate of the Private Investment Promotional Bureau]”, containing the photograph of the bearer.
[20] In this case, it cannot be concluded it was patently unreasonably for the Board to consider that the Guinean passport in the name of Alpha Aguibou Balde had more weight than a birth certificate that was inconsistent with that of his alleged brother and an identity card issued on the basis of this same document.
[21] The allegations in Mr. Balde’s memorandum mainly concern the way in which the Board dealt with the evidence submitted to it. As mentioned previously, it is up to the Board to decide on the weight to be given to the evidence and not to a court hearing an application for judicial review.
[22] First of all, Mr. Balde erroneously alleged that the Board relied on speculation to show that the age of his parents mentioned in his alleged birth certificate and that of his brother were different.
[23] As mentioned above, it was written in the birth certificate in the name of Alpha Aguibou Balde (Applicant’s Record – page 100) that his father was born in 1941 and his mother in 1947, which is inconsistent with the age of the parents mentioned in Mr. Balde’s alleged birth certificate (Applicant’s Record – page 83).
[24] Contrary to what Mr. Balde alleged, the Board was not obliged to confront him with this flagrant inconsistency because it stemmed from Mr. Balde’s personal documents: Contreras v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 906 (QL).
[25] Contrary to what Mr. Balde alleges, an assessment of the identity documents was not essential to the determination of the case, because the evidence submitted was contradictory and was sufficient in itself for the Board to draw its own conclusions.
[26] In Culinescu v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241, [1997] F.C.J. No. 1200 (QL), cited in Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 (QL), this Court stated that credibility is a question of fact entirely within the jurisdiction of the Board which may cast doubt on the authenticity or the probative value of a document if it has sufficient evidence to warrant such a conclusion. In this case, the Board based its conclusion on the various contradictions and implausibility in the identity documents it had.
[27] All in all, the Board did not make any patently unreasonable error in concluding on the basis of the evidence it had and on the applicant’s testimony, that he did not establish his identity as Thierno Mamadou.
[28] This conclusion reached by the Board established a fatal flaw and could in itself entail the rejection of Mr. Balde’s claim for refugee protection. This Court’s case law clearly shows that a claim for refugee protection must be rejected once the Board determines that the claimant's identity has not been proven: Ipala v. Canada (Minister of Citizenship and Immigration), 2005 FC 472, [2005] F.C.J. No. 583 (QL); Nwammadu v. Canada (Minister of Citizenship and Immigration), 2005 FC 107, [2005] F.C.J. No. 134 (QL); Ibnmogdad v. Canada (Minister of Citizenship and Immigration), 2004 FC 321, [2004] F.C.J. No. 327(QL); Najam supra; Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL).
[29] Alternatively, the Minister submitted that even if this Court comes to the conclusion the Board erred in concluding that Mr. Balde did not prove his identity, intervention by this Court would not be warranted considering, furthermore, the conclusion it reached as well about the lack of credibility.
[30] In spite of the negative conclusion it reached about Mr. Balde’s identity, the Board nevertheless continued its analysis of the evidence submitted, which allowed it to note several contradictions and inconsistencies in his story. It concluded that Mr. Balde was not credible.
[31] The conclusion concerning the lack of credibility was essentially based on the following facts:
(i) inconsistencies between the lease (Exhibit P-3) and Mr. Balde’s testimony. It was specified in the lease that Mr. Balde’s business was a “bar-café” which suggests that alcohol was served to clients. However, Mr. Balde testified to the fact that he was operating a cafeteria in which he served coffee, cigarettes, milk and sandwiches (Reasons – page 3, last paragraph);
(ii) the incompatibility of the statements in the medical report (Exhibit P-2) with the applicant’s testimony. In his report, the doctor explained Mr. Balde told him that he had been arrested and tortured by the Guinean police when he was taking part in a demonstration. However, Mr. Balde claimed to have been arrested at his business and detained because the authorities wanted him to indicate who organized the demonstration, in which he did not participate. When confronted with this inconsistency, Mr. Balde was obviously embarrassed and seemed to improvise (Reasons, page 4, paragraphs 1 to 3).
(iii) the inmplausability of the fact that Mr. Balde’s alleged brother had undertaken steps to obtain a Canadian visa even though he did not have any money to pay the airfare, and the contradiction between Mr. Balde’s testimony and the notes of the Immigration officer at the port of entry concerning his health problems. In his testimony, Mr. Balde explained that it was impossible for him to leave his country earlier because he had swollen feet, wounds to the feet and buttocks, and a fracture of the clavicle. However, when the Immigration officer at the port of entry asked him if he had physical or mental health problems, Mr. Balde answered “no” (Reasons – page 4, last paragraph and page 5, paragraph 1). (See also the Immigration officer’s notes at page 79 of the Applicant’s Record).
(iv) contradictions between the documentary evidence and Mr. Balde’s testimony. The newspaper article submitted by Mr. Balde was not in keeping with his story and directly contradicted certain elements of his story (Reasons – page 5, paragraphs 2-3 and page 6, paragraphs 1 and 2).
[32] Mr. Balde contested the inconsistency mentioned by the Board between the lease (Exhibit P‑3) and his testimony. According to him, the Board could not draw such a conclusion because in Guinea, bars in which alcohol is sold are called “Bar-Maki” and not “Bar-Café”.
[33] Without acknowledging the merit of Mr. Balde’s allegation, the Minister submitted that even if the Board made a mistake about the evidence on this point, it is insufficient to invalidate the conclusion concerning the lack of credibility, which was based on other valid conclusions.
[34] The statements made by the doctor in his report are not consistent with Mr. Balde’s testimony because, according to Mr. Balde, there was no interpreter available when he consulted the doctor.
[35] This contradiction cannot be based on the sole fact that Mr. Balde did not have an interpreter with him when he consulted the doctor. However, the Reasons show that when confronted with this contradiction at the hearing, Mr. Balde changed his story to try to match his testimony with what was written in the medical report.
[36] The explanation given to try to justify the contradiction between the medical report and Mr. Balde’s testimony even gave rise to another contradiction. He testified it was during the demonstration that he had been charged, although he alleged in his written testimony that he had been arrested four days after the demonstration of June 10, 2003.
[37] When confronted with these unconvincing explanations given by Mr. Balde, the Board was entitled to draw a negative conclusion from the incompatibility of the statements in the medical report with Mr. Balde’s testimony.
[38] The contradiction noted between Mr. Balde’s testimony and the notes of the Immigration officer at the port of entry concerning his health problems, explaining that he thought the Immigration officer was only referring to mental health problems, cannot be reconciled. In this case, it is too easy for Mr. Balde to try to explain after the fact a contradiction in the evidence that he himself adduced.
[39] In these circumstances, the explanation is clearly insufficient to show that it was unreasonable for the Board to consider this contradiction between Mr. Balde’s testimony and the notes at the port of entry in the assessment of his credibility.
[40] Concerning the alleged contradiction noted by the Board, between the newspaper article (Exhibit P-6) and Mr. Balde’s testimony, the Board did not make a mistaken analysis of the newspaper article, following the Board's own inherent logic.
[41] A reading of the newspaper article submitted in evidence by Mr. Balde following the hearing, and reproduced on page 5 of the Board’s Reasons, clearly shows that this evidence is not the same as Mr. Balde’s story and directly contradicts certain aspects of his testimony.
[42] As the Board noted, this article did not mention any peaceful demonstration to contest the sale of the land. Instead, it mentioned that [translation] “The revolt which led to the unfortunate incidents in Coyah started with a rumour. According to eyewitness reports, these rumours of police impropriety, which led to one death and caused injuries, were false”.
[43] Also, contrary to what Mr. Balde testified, the article does not mention that the inhabitants of Coyah and Manéah allegedly went to the Coyah police station to demand that the youngsters be released. Instead, the article mentions that a “group of youngsters” got out of control and attacked the police station, the prefect’s residence and the hospital of the prefecture.
[44] Furthermore, contrary to Mr. Balde’s testimony according to which the police opened fire on the crowd, injuring several persons and killing a girl, the article mentions that [translation] “The police were defenceless against the crowd of demonstrators and simply turned around and ran”.
[45] As well, the article mentions that [translation] “once things had quieted down, the authorities assessed the damage and tried to calm everyone”, while according to Mr. Balde’s testimony, the Conakry mobile squad came to disperse the crowd.
[46] Considering the obvious inconsistencies between Mr. Balde’s story and the documentary evidence, it most certainly cannot be concluded that the Board’s conclusion on this point is patently unreasonable.
[47] In this case, on the basis of the arguments in his memorandum, Mr. Balde did not show that the Board had committed a patently unreasonable error in the assessment of his credibility.
[48] There are sufficient elements in support of a conclusion to the effect there was a lack of credibility. Considering each one of these elements, added together, the Board, in its inherent logic, could not do otherwise than conclude that Mr. Balde was not credible.
CONCLUSION
[49] Considering the preceding, Mr. Balde’s application is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application be dismissed.
2. No serious question of general importance be certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5553-05
STYLE OF CAUSE: THERNO MAMADOU BALDE
v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 28, 2006
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
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Lia Cristinariu
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FOR THE APPLICANT |
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Caroline Doyon
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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LIA CRISTINARIU Montréal, Quebec
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FOR THE APPLICANT |
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JOHN H. SIMS Q.C. POUR LA PARTIE DÉFENDERESSE Deputy Attorney General of Canada
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FOR THE RESPONDENT |