Date: 20000217
Docket: IMM-1038-99
Ottawa, Ontario, February 17, 2000
Before: NADON J.
Between:
ISEIKETE SIMON ELAZI,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
Judicial review of decision by Jacques W. Fortier and Richard Quirion of the Immigration and Refugee Board on January 25, 1999 in file M98-02562.
[Section 82.1 of Immigration Act]
ORDER
The application for judicial review is denied.
|
|
Marc Nadon
Judge |
Certified true translation
Martine Brunet, LL. B.
Date: 20000217
Docket: IMM-1038-99
Between:
ISEIKETE SIMON ELAZI,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
NADON J.
[1] By his application for judicial review the plaintiff is seeking to quash a decision of the Immigration and Refugee Board ("the Refugee Division") dated January 25, 1999 that he is not a Convention refugee.
[2] The plaintiff related the following facts. He was born in Kinshasa on September 25, 1972 and is a citizen of the Democratic Republic of the Congo (formerly Zaire). He left his country with his family on May 25, 1998 to go to Congo/Brazzaville. The plaintiff and his family subsequently left Brazzaville for Gabon. As he was afraid he would be sent back to his country the plaintiff left Gabon without his family for the Ivory Coast, where he boarded a plane at Abidjan to come to Canada. He arrived at Dorval Airport on April 2, 1998 and applied for refugee status.
[3] The hearing of his application for refugee status was held in Montréal on December 7, 1998 and on January 25, 1999 the Refugee Division dismissed his application.
[4] To begin with, the Refugee Division clearly indicated that it was not satisfied with the evidence filed by the plaintiff as to his identity. At p. 2 of its decision the Refugee Division stated the following:
[TRANSLATION]
First, the panel is not at all satisfied with the evidence filed by the claimant in support of his identity. The claimant's identity is based on a document which is a [TRANSLATION] "provisional certificate of successful completion" issued at Kinshasa on July 1, 1997 confirming success in government examinations in 1995, the general teaching option. The panel found that this document was issued at a date subsequent to the departure of the claimant and his family for Brazzaville on May 25, 1997. Four other documents were also filed to support the claimant's identity. They were reports of the claimant's school grades for the school years 1991 to 1995.
Even if the panel was able to find that the claimant had good knowledge of the DRC [Democratic Republic of the Congo], the fact remains that it is not able to conclude that the claimant is the person he claims to be in his application for refugee status. The claimant's explanations that he thought it was more important to bring his school reports rather than his Zairean passport, though he had it at his residence, do not tend to reassure the panel as to his true identity.
[5] Secondly, the Refugee Division doubted the veracity of several of the plaintiff's allegations and so concluded that his testimony lacked credibility.
[6] In my opinion, the Refugee Division made no error of law or fact that could justify intervention by this Court.
[7] At the hearing before the Refugee Division, the plaintiff testified that he had not brought his passport because he did not intend to leave his country for more than a few days. He added that at the time he left the Democratic Republic of the Congo he had no intention of coming to Canada. Additionally, he testified that he had brought his school grades because he feared that his house would be vandalized, as according to his testimony it later was. In my opinion this explanation is not credible. If the plaintiff feared that his house would be vandalized, why did he bring his grades and leave his passport? Further, if his intention was only to leave for a few days, as he stated at the hearing before the Refugee Division, it does not seem credible to me that he would have brought his school grades.
[8] Elsewhere in its decision the Refugee Division dealt with the forged French passport obtained by the plaintiff when he left the Ivory Coast. The Refugee Division said the following about this, at p. 5 of its decision:
[TRANSLATION]
The claimant explained that he travelled with a French passport obtained from his friend in the Ivory Coast. He added that it was his photo that was in the passport. When he was asked to explain where this passport was, he said that the passport had been confiscated [TRANSLATION] "in France". He explained that it was an employee of Air Canada who confiscated his passport by telling him [TRANSLATION] "You continue your trip - you are not a French citizen". As to his air ticket, he said he had lost this in Canada. His explanations were improbable and affected his credibility.
[9] The plaintiff challenged the foregoing passage from the decision. At p. 33 of his memorandum, counsel for the plaintiff put forward the following argument:
[TRANSLATION]
It is wrong to say, as the panel did, that it was an employee of Air Canada who confiscated the plaintiff's passport in France. The plaintiff actually testified that it was an employee of the French customs who confiscated the said French passport just before his departure.
[10] It is true, as counsel for the plaintiff maintained, that the plaintiff did not testify that an Air Canada employee had confiscated his French passport before he got on to the plane in Paris. He actually testified that a [TRANSLATION] "French officer" confiscated his passport before boarding. At the same time, as I pointed out to counsel for the plaintiff at the hearing, the plaintiff supposedly travelled from Abidjan to Paris and from Paris to Canada. According to his personal information form, the plaintiff travelled "in transit", which means that when he was in Paris he did not enter French territory. It is thus surprising that the plaintiff had any contact with French officers. The following questions and replies, found in the panel's record at pp. 712, 713, 714 and 715, are worth noting:
[TRANSLATION]
Q. When you arrived in Canada, sir, did you have the French passport in your possession?
A. No, no, it was confiscated in France.
Q. The passport was confiscated in France?
A. Yes . . . they saw that I was not a French citizen and everything. They put it like that, continue your voyage with the coupon. They . . . they did that.
Q. What is the coupon?
A. The coupon is half of the air ticket.
Q. O.K. The . . . boarding pass . . .
A. That's right.
Q. . . . the carte d'embarquement?
A. That's right. Yes, the boarding pass, yes, that's right.
Q. But, sir, how did you have . . . then between Paris and . . . it was in Paris, that this happened, it was . . .
A. Yes.
Q. . . . confiscated from you?
A. It was in transit like that.
Q. Yes, but you . . . you had to pass through French immigration?
A. Uh-huh.
Q. Who . . . who found that you were not French, sir, with an Ivory Coast passport?
A. I don't know. The man who . . . he saw the . . . the people and everything.
Q. Well, let us start again at the beginning. The plane arrives at Charles de Gaulle?
A. Yes.
- Good.
A. It was just for transit.
Q. O.K.: and you got off the plane. What company was it?
A. Air Afrique.
- Air Afrique, right.
A. Air Afrique, yes.
Q. You got off the plane, then in disembarking from the Air Afrique plane at Paris . . .
A. Yes.
Q. . . . you were in a corridor . . .
A. Yes.
Q. . . . then you stayed in the . . . in the sanitary zone . . . the zone for people in transit?
A. Yes, yes.
Q. O.K.?
A. Yes.
Q. Then you went through a security check?
A. No.
Q. But how could you . . . who . . .
A. No.
Q. . . . who took your passport in Paris, sir, that is what I do not understand?
A. Yes, that's right, thank you. When . . . when I left, I saw the Air Canada hostesses.
- Yes.
A. Yes . . . they gave me the transit to . . . to enter. When I was coming back, there were officers who . . . who were in charge.
Q. Coming back where?
A. Coming back on to the Air Canada plane, to come here.
- Yes.
A. Right, it was a . . . a French officer, he was the one who complicated matters. He told me that no, you continue your trip, the passport stays. You are not French and everything.
A. You really surprise me, because I am surprised that Air Canada let you board an aircraft if the passport had been seized by the French authorities.
A. Yes, I know.
- Because the airlines suffer serious penalties when they carry people who have no valid passports when they arrive in the country . . .
A. No, no, when . . .
- . . . of destination.
A. . . . when I made the transit, I had one. To go and continue on the plane (inaudible) . . .
[11] It is clear from reading these questions and answers that the plaintiff's testimony was confused and vague. Firstly, he admitted that when he was in Paris he remained in the sanitary zone, the zone reserved for people in transit. Additionally, it appears that his forged passport was taken from him when he came in contact with the Air Canada hostesses. In my opinion, the plaintiff's testimony on this point is without doubt devoid of all credibility.
[12] The Refugee Division also took a dim view of the fact that the plaintiff could not produce his air ticket. In my opinion, the Refugee Division cannot be blamed for taking this fact into account in assessing the plaintiff's credibility. At pp. 717 and 718 of the panel record, the Refugee Division questioned the plaintiff about his ticket:
[TRANSLATION]
Q. Yes, but what document was used, sir?
A. To get here.
- It was a . . . it was passport, it was an air ticket.
A. When I got here I had nothing.
Q. But your air ticket, did you have it? You . . . you told me they took part of your boarding pass, but the air ticket which . . . which gave you . . . you know what an air ticket is? It is the slip . . .
A. Yes, yes, yes.
Q. With a carbon behind, there.
A. Um-huh.
Q. A carbon behind . . . where is that piece of paper? Where is that document?
A. I have actually lost it.
Q. You lost it where?
A. I lost it here.
Q. You lost it?
A. Yes.
[13] Once again, I can only find that the plaintiff's testimony lacked credibility.
[14] In Farah v. Canada (M.E.I.) (1993), 64 F.T.R. 237, Reed J. had to decide on the validity of a Refugee Division decision, and in particular, the validity of a conclusion by the Refugee Division that the destruction of a forged Ethiopian passport affected the applicant's credibility. At paragraphs 7, 8 and 9 of her reasons, Reed J. dealt with this point as follows:
[7] With respect to the destruction of the false Ethiopian passport and the adverse inferences the Board drew from that, I am aware that in Salamat v. Canada (Immigration Appeal Board) (1989), 8 Imm. L.R. (2d) 58 (F.C.A.), the court set aside the decision of the Immigration Appeal Board, which held that the claimant was not credible, based on irrelevant considerations or matters not established by the evidence. Included was the finding by the Board that the fact that the applicant destroyed his false Spanish passport before landing at Mirabel reflected on his credibility.
[8] In Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.), the Board found that the applicant's credibility was weakened by his statement that he had destroyed false travel documents while on board his flight to Canada. The Board noted that the applicant explained that he had destroyed the documents because he was afraid that if he was discovered, he would be arrested and sent back to Ghana. The Board concluded, without more, that this element of his testimony lacked credibility. Mr. Justice Hugessen for the Court of Appeal stated, at page 169:
The Board's finding on this point is, to say the least, puzzling. There is certainly nothing incredible in a refugee saying that he has destroyed false travel documents in order to avoid detection and arrest once they have served their purpose. In the circumstances of this case, the destruction of such documents could not have had any conceivable relevance to any issue which the Board had to decide . . . I can only conclude that the Board's insistence upon its significance is founded upon some erroneous view of the law. Does the Board think the only persons who arrive here with their travel documents in order can be refugees? Or that whose who arrive with false documents have some obligation to preserve them?
[9] Counsel for the applicant argues that the applicant, in destroying the false Ethiopian passport, only acted in a normal and usual way for persons fleeing their country. The difficulty with that argument, in this case, is that the false passport allegedly was not destroyed until the applicant arrived in the United States but before she came to Canada. The passport, if it existed, would have provided some objective evidence of her travels through the various countries which she asserts took place. The Board clearly did not find her explanation as to why she carried a Somali birth certificate but neither her original Somali passport nor the false Ethiopian passport to Canada credible. The Board clearly doubted whether she was who she said she was and whether she had come from Somalia as claimed.
[15] There can be no doubt, as Reed J. stated, that the passport "would have provided some objective evidence of her travels through the various countries which she asserts took place". It goes without saying that the forged passport in the case at bar and the air ticket could have provided credible evidence of the plaintiff's identity and his journey to come to Canada.
[16] Consequently, in my opinion there can be no doubt that the Refugee Division's conclusion regarding the proof of identity submitted by the plaintiff is in no way unreasonable. In my opinion, this conclusion suffices to dispose of the application for judicial review. Not only was the evidence submitted by the plaintiff regarding his identity insufficient, several aspects of this evidence were such that the plaintiff's credibility was undermined.
[17] I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is too easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods.
[18] Minimizing the importance of the passport and air ticket as documents to be produced or ignoring their non-submission for all sorts of reasons in my opinion only serves to encourage all those whose only purpose is to take advantage of a system which is intended solely to enable genuine refugees to come to Canada.
[19] Consequently, I am not persuaded that the Refugee Division made an error of law or fact that could justify my intervention. For these reasons, the application for judicial review will be dismissed.
[20] I must deal with one final point. The plaintiff submitted that one of the following questions should be certified under s. 83(1) of the Immigration Act:
[TRANSLATION]
In light of Pushpanathan and Baker, is the present standard of judicial review of decisions by the Immigration and Refugee Board in questions of fact or mixed questions of fact and law that of a "patently unreasonable" decision or that of a "unreasonable decision simpliciter"?
- or -
Should the rules recently laid down by the Supreme Court in Pushpanathan and Baker be interpreted as having the effect of creating the general standard of an "unreasonable decision simpliciter" for decisions of the Immigration and Refugee Board dealing with questions of fact or mixed questions of fact and law?
[21] In Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4, Décary J. of the Federal Court of Appeal explained at 5 when a question should be certified:
[4] In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.), but is must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[22] In the case at bar there can in my opinion be no doubt that the Refugee Division's conclusion regarding the plaintiff's identity and his credibility are entirely reasonable on the evidence. Whether the standard of review is that of the "patently unreasonable" decision or that of the decision which is "unreasonable simpliciter" does not in my opinion have any significance here. In my view, the applicable standard is that of the unreasonable decision simpliciter and it is this standard which I have applied here.
[23] In view of the Court of Appeal's decision in Liyanagamage, I consider that the questions proposed by the plaintiff for certification do not require to be certified.
|
|
Marc Nadon
Judge |
O T T A W A, Ontario
February 17, 2000.
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1038-99
STYLE OF CAUSE: ISEIKETE SIMON ELAZI
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 19, 2000
REASONS FOR ORDER BY: NADON J.
DATED: FEBRUARY 17, 2000
APPEARANCES:
MARIO BLANCHARD FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIO BLANCHARD FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada