Ottawa, Ontario, January 12, 2007
Present: The Honourable Mr. Justice Martineau
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is challenging the legality of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 13, 2006, to the effect that he is not a “Convention refugee” or a “person in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] The applicant is a citizen of India. He states that he fears persecution by reason of his religion and nationality. He entered Canada on December 25, 2004 with a false Indian passport in the name of Tajinder Dhaliwal. He immediately claimed refugee status and declared to the immigration officers that his real name was Iqbal Singh.
[3] In his Personal Information Form (PIF), the applicant alleges as follows. The police believed that his friend Manjit Singh was a militant. After this friend disappeared in May 1999, the police threatened to kill him if he did not reveal his whereabouts. He fled to Bahrain and remained there from 1999 to 2003. Believing that the police would not pursue him anymore, he returned to India in 2003 because his mother was ill. Upon his return, though, the applicant was confused with a militant who was also named Iqbal Singh and whose father’s name was the same. He was detained twice, the first time in March 2004 and the second in August 2004. Each time, the police tortured him and tried to make him confess that he really was Iqbal Singh the militant. The police did not release him until bribes were paid. In his second detention, the police told him that militants were planning a bombing attack and they believed he knew about it. In November 2004, the police raided his house again. They ordered the applicant to report to them every month as of January 2005. If he failed to report, he would be killed. That is when he decided to flee India.
[4] The Board rejected the applicant’s refugee claim, finding that his identity had not been established and that he was not credible.
[5] In support of his refugee claim, the applicant gave the Board a number of identity papers. The Board did not believe that the documentation submitted by the applicant was authentic. The applicant today submits that the Board had photocopies of the two passports and “probably” had the the originals of Manjit Singh’s driver’s license and photos. In any case, the Board noted that the applicant’s false passport, bearing the name of Tajinder Dhaliwal, contained the real surnames of his parents. In addition, the person in the driver’s license photo did not resemble the person in the two passports at all. The Board also pointed out that the photocopied pages of the real 1997 passport did not corroborate the applicant’s story of having travelled to Bahrain in 1997.
[6] The Board also emphasized in its decision that, throughout the process, the evidence adduced by the applicant was rather vague. First of all, the applicant was interviewed twice by Citizenship and Immigration Canada officials, but the interview notes contain few details about the circumstances of his departure. Moreover, the applicant was unable to provide details about Iqbal Singh and could not specify the nature of the charges against him. He did not know whether the bomb attack of which the police had accused him ever took place, nor did he know the definition of the word “militant.” Although he testified that he had studied with his friend Manjit Singh, he could not provide many details about him. The Board noted that the applicant alleged he was persecuted because he was erroneously considered to be a potential terrorist, but he does not match the profile of a terrorist. As well, he was able to leave India easily in 1999 and go back in 2003. This is incompatible with the behaviour of someone who fears persecution or whose life is at risk.
[7] The applicant raised numerous grounds of review. The applicant’s arguments were presented in a different order at the hearing, but for the purposes of these reasons, I shall address them as follows. First, because he was unable to question the immigration officers who interviewed him on his arrival in Canada, the applicant submits that the Board should not have drawn negative inferences from their notes. Second, the Board should have warned the applicant that identity would be in issue. Third, the Board erred when it determined that the identity of the applicant had not been established. Finally, the Board acted in an arbitrary and capricious manner by misinterpreting the evidence before it and drawing patently unreasonable inferences with respect to the applicant’s credibility. This latter aspect in particular was elaborated on at the hearing by the applicant’s counsel, but I do not find it necessary, for the comprehension of these reasons for order, to repeat in detail each of the assertions made on that subject by counsel for the applicant.
1. Did the Board commit a reviewable error by relying on the port of entry interview notes?
[8] On September 23, 2005, the applicant filed a motion under section 38 of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), to call as witnesses the immigration officer and interpreter who were present at the port of entry interview, unless the Minister and the Board would agree not to rely on the port of entry notes.
[9] Section 38 of the Rules provides as follows:
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38. (1) If a party wants to call a witness, the party must provide in writing to any other party and the Division the following witness information:
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38. (1) Pour faire comparaître un témoin, la partie transmet par écrit à l’autre partie, le cas échéant, et à la Section les renseignements suivants :
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(a) the witness's contact information;
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a) les coordonnées du témoin;
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(b) the purpose and substance of the witness's testimony or, in the case of an expert witness, the expert witness's signed summary of the testimony to be given;
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b) l’objet du témoignage ou, dans le cas du témoin expert, un résumé, signé par lui, de son témoignage;
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(c) the time needed for the witness's testimony;
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c) la durée du témoignage;
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(d) the party's relationship to the witness;
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d) le lien entre le témoin et la partie;
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(e) in the case of an expert witness, a description of the expert witness's qualifications; and
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e) dans le cas du témoin expert, ses compétences;
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(f) whether the party wants the witness to testify by videoconference or telephone.
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f) le fait qu’elle veut faire comparaître le témoin par vidéoconférence ou par téléphone, le cas échéant.
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(2) The witness information must be provided to the Division together with a written statement of how and when it was provided to any other party.
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(2) En même temps que la partie transmet à la Section les renseignements visés au paragraphe (1), elle lui transmet une déclaration écrite indiquant à quel moment et de quelle façon elle a transmis ces renseignements à l’autre partie, le cas échéant.
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(3) A document provided under this rule must be received by its recipient no later than 20 days before the hearing.
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(3) Les documents transmis selon la présente règle doivent être reçus par leurs destinataires au plus tard vingt jours avant l’audience.
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(4) If a party does not provide the witness information as required under this rule, the witness may not testify at the hearing unless the Division allows the witness to testify.
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(4) La partie qui ne transmet pas les renseignements concernant les témoins selon la présente règle ne peut faire comparaître son témoin à l’audience, sauf autorisation de la Section.
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[10] The applicant’s motion was denied on September 28, 2005. The coordinator found that the applicant was raising policy questions over which the Board had no jurisdiction. As well, the proposed questions were overly vague and did not seem to be specifically related to the applicant. Finally, the motion was premature because, once all of the evidence was considered, it might not be necessary to hear the testimony of the immigration officer and the interpreter.
[11] The applicant basically submits that, because he could not question these individuals, the Board should not have relied on the port of entry notes to undermine the applicant’s credibility. In so doing, it ignored certain portions of the interview and drew factual inferences that were patently unreasonable. And apart from the foregoing, even assuming the Board did not err in its findings of fact, the motion should not have been denied because the Minister did not oppose it.
[12] For his part, the respondent submits that the applicant is estopped from challenging the denial of his motion or from disputing the validity of the port of entry notes. He emphasizes that the applicant did not object to the port of entry notes being entered in evidence. Furthermore, counsel for the applicant did not repeat his claim at the hearing. Finally, the respondent asks the Court to follow the principles laid down in Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 669.
[13] In my opinion, the comments I made in the Singh case, supra, at paragraph 14, are entirely apposite:
I find that the failure to observe the rules of natural justice or procedural fairness cannot be presumed. The parties had been advised before the hearing was held that immigration documents were part of the documentation that could be examined by the Board. This certainly included the port of entry notes. At the hearing, the applicant’s counsel did not object to the Board using the content of the port of entry notes. Bear in mind, the coordinator’s refusal to issue a summons to appear was not a final decision. There was nothing to prevent the applicant’s counsel from reiterating the same request at the hearing. In any event, it was not established in this matter that the presence of the immigration officer and the interpreter was required at the hearing under the circumstances.
[14] In the case at bar, applicant’s counsel did not object to the port of entry notes being used by the Board and did not repeat his claim at the hearing. The Board drew a negative inference from the fact that the interview notes indicated the applicant had provided few specific details regarding his departure and what he knew about his friend Manjit Singh and the alleged militant named Iqbal Singh. Nevertheless, the Board did give him the opportunity at the hearing to provide more details on these evidentiary aspects.
[15] I am of the opinion, therefore, that the first ground of review is unfounded.
2. Did the Board commit a reviewable error by failing to identify identity as one of the issues fundamental in his refugee claim?
[16] The applicant submits that the File Screening Form dated March 17, 2005 does not indicate that identity would be one of the issues addressed at the hearing. Although the legislation actually has little to say on this subject, the applicant submits that, under paragraph 170(e) of the Act, the Board should have warned him that the question of identity would be key to the outcome of the refugee claim.
[17] It is true that the presiding member did not clearly specify the questions on the agenda at the outset of the hearing. Counsel for the applicant erroneously stated near the end of the hearing that “[t]he identity was never an issue in this case. The claimant was never detained and he has provided us with certain number of identity documents” (Certified Tribunal Record, at p. 347). However, contrary to the applicant’s submission, the issue of identity was in fact mentioned in the File Screening Form (Certified Tribunal Record, at p. 81). Under the designation “Identity,” the boxes “Affiliation: Political/Religious/Social/Family” and “Other” are checked.
[18] Furthermore, the record shows that the applicant had an opportunity to offer arguments on the issue of identity. At the hearing, indeed, the Board confronted the applicant with its concerns, specifically, the fact that the real family names of his parents appeared on his false passport (Certified Tribunal Record, at p. 346) and that the person appearing in his driver’s license photo did not seem to be the same person who appeared in the passport photos. As well, I would emphasize that this refugee claim is essentially based on the fact that the applicant was mistaken for someone with the same name. Thus, it is impossible for me to accept any suggestion that the applicant did not have an opportunity to prepare himself on this aspect of the evidence.
[19] I am therefore of the opinion that the second ground of review is also unfounded.
3. Did the Board commit a reviewable error in its determination regarding the applicant’s identity?
[20] The applicant submits that the Board committed a reviewable error when it determined that the applicant’s identity had not been established. According to him, evaluating photographs is not part of the Board’s expertise and, pursuant to paragraph 170(a) of the Act, it should have waited for the expert report that had been requested. Moreover, the passport originals were not available. The Board also ignored other documents entered in evidence that confirmed the applicant’s identity, namely, the birth certificate, the father’s affidavit and the sarpanch’s affidavit.
[21] The respondent, for his part, points out that the applicant did not object to the hearing being held in the absence of the expert report (Ali v. Canada (Minister of Citizenship and Immigration), 2005 FC 1161). As well, the false passport was not the only problematic document. He points out that none of the other documents submitted by the applicant to help establish his identity contained photos, and it was the applicant himself who chose not to submit the original of his authentic passport. The respondent contends that the applicant is essentially asking the Court to weigh the evidence that was before the Board and re-evaluate it.
[22] Section 106 of the Act provides as follows:
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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. |
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. |
[23] Section 36 of the Rules provides as follows:
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36. (1) A party who has provided a copy of a document to the Division must provide the original document to the Division
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36. (1) La partie transmet à la Section l’original de tout document dont elle lui a transmis copie :
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(a) without delay, on the request in writing of the Division; or
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a) sans délai, si la Section le lui demande par écrit;
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(b) if the Division does not make a request, no later than the beginning of the proceeding at which the document will be used.
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b) sinon, au plus tard au début de la procédure au cours de laquelle le document sera utilisé.
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(2) On the request in writing of the Division, the Minister must without delay provide to the Division the original of any document mentioned in paragraph 3(2)(c) that is in the possession of an officer.
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(2) Sur demande écrite de la Section, le ministre transmet à celle-ci, sans délai, l’original de tout document mentionné à l’alinéa 3(2)c) qui est en la possession de l’agent.
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[24] In my view, Ali, supra, applies in this case. At paragraphs 12-13, Mr. Justice Shore states that:
In addition to the foregoing, it should be noted that it is up to the refugee claimant to establish his or her identity. Accordingly, it was not up to the Board to obtain the expert report concerning the identity documents. On this point, the Court agrees with Beaudry J. in Najam, supra at paragraph 20:
Subsection 36(2) says that the Board may request from the Minister the originals of the documents but there is no positive obligation on the Board to do so. The burden is on the Applicant to prove his case, which would include obtaining the documents necessary to establish his identity.
Furthermore, there is no evidence on record to show that Ms. Ali objected to the use of photocopies rather than original documents. As a result, it is now too late for Ms. Ali to make that complaint before the Court.
[25] At the hearing, the Board confronted applicant with all of its concerns regarding his identity and gave him an opportunity to provide explanations. For all of these reasons, I am of the opinion, based on the record presented, that the Board could reasonably find that the identity of the applicant had not been established to its satisfaction. In the instant case, the Board was not required to wait for the expert report concerning the false passport. As well, counsel for the applicant did not object to the use of passport photocopies at the hearing. I would also emphasize that the photos were not the only problematic evidence. The Board noted as well that the false passport contained the real surnames of the applicant’s parents. The photocopied pages of his 1997 passport that were submitted before the Board do not corroborate his allegation that he fled to Bahrain using his real name.
[26] In the hearing before this Court, applicant’s counsel tried to adduce evidence that was not before the Board to corroborate the applicant’s identity and story, namely, copies of the applicant’s original passport with all of the missing pages, showing all of the dates on which he left and returned to India. Counsel for the respondent objected, and rightly so, to the admission of evidence that was not before the Board. In the case at bar, there is nothing that allows me to believe that this evidence was not available at the time and that the applicant was prevented from producing his complete passport. Let us not forget that it was the applicant himself who deprived the Board of the best evidence available by submitting only a partial copy of his passport.
[27] Therefore, the third ground of review also appears to me to be unfounded.
4. Did the Board commit a reviewable error in its assessment of the applicant’s credibility?
[28] The applicant argued in great detail at the hearing that the Board misinterpreted the evidence before it and made patently unreasonable findings of fact in its appraisal of the applicant’s credibility. Among other things, he asserts that the Board should have distinguished the events that took place prior to 2003 from those that occurred subsequently. He submits that he never alleged he was accused of being associated with terrorists in 1999, nor that he was a person in need of protection upon his return to India in 2003. He contends that the central point in his claim concerned the events that occurred in 2004. Accordingly, the Board should not have relied primarily on the events that occurred prior to his return to India to assess his credibility.
[29] For his part, the respondent submits that there is no reviewable error in the assessment of the evidence. It is clear from the applicant’s narrative that his time in Bahrain was of special interest to the police. It was reasonable for the Board to draw negative inferences from the fact that the applicant could not answer questions about militant activities in the Punjab. It was reasonable for the Board to infer that his behaviour was incompatible with that of a person who fears persecution.
[30] Credibility and assessment of the evidence are questions within the exclusive purview of the Board, and its findings in that regard cannot be overturned unless they were made in a perverse or capricious manner or founded upon factual conclusions that are not based on the evidence in the record (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 116, 228 F.T.R. 43 at paragraphs 7-8).
[31] In my opinion, what Mr. Justice Dubé wrote in Herrera v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. no. 13 (QL), at paragraph 6, is apposite here:
Although counsel for the applicant submitted imaginative explanations, garnered from the transcript, for each one of the implausibilities, that resourceful effort cannot succeed. Even if each implausibility outlined by the Board could somehow be redeemed, it was still open to the Board to take a global view of the evidence and to conclude that the applicant was not credible. The Board did provide reasons as to why it did not accept the applicant's version of events after having heard the witness and assessed his behaviour. A detailed analysis of several questions and answers from a transcript may lead to different interpretations from different readers, but in matters of appreciation of facts and credibility it is the interpretation of the trier of facts that must be accepted, unless his findings are unreasonable.
[32] Given that the applicant referred in his PIF to the events leading to his departure for Bahrain, the Board was entitled to rely on the evidence relating to that period to assess his credibility. Nor is this merely a peripheral detail, as the applicant states in his PIF that the police interrogated him about his sojourn in Bahrain after he returned:
I thought police would forget me because I was returning India (sic) after long time but this could not be materialized. I became again target (sic) by the police.
On 25th March 2004, I was at my farm land. Police raided there. I was interrogated about the period which I spent in Behrain (sic) and my activities.
[33] I would also emphasize that the applicant submitted photos of himself with Manjit Singh, so I cannot accept his counsel’s claim that the Board ought to have ignored all allegations about events that occurred before 2003 to assess his credibility, and I find that it was reasonable for the Board to take those events into consideration.
[34] The Board also pointed out that there was a lack of precision in the port of entry interview notes, the PIF and, particularly, his oral testimony. In this case, I am satisfied that the Board’s decision was not based on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.
[35] Accordingly, the fourth ground of review raised by the applicant must also be rejected.
CONCLUSION
[36] For all of these reasons, this application for judicial review must fail. No question of general importance was raised in this case and none is involved.
ORDER
THE COURT ORDERS THAT the application for judicial review is dismissed. No question is certified.
“Luc Martineau”
Certified true translation
François Brunet, LLB, BCL
SOLICITORS OF RECORD
DOCKET: IMM-2436-06
STYLE OF CAUSE: IQBAL SINGH
v. MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: December 7, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice Martineau
APPEARANCES:
Michel LeBrun FOR THE APPLICANT
Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec