Ibnmogdad v. Canada (Minister of Citizenship and Immigration)

Between
Moustapha Ould Ould Ibnmogdad, applicant, and
The Minister of Citizenship and Immigration, respondent

[2004] F.C.J. No. 327
2004 FC 321
Docket IMM-332-03

Federal Court
Montréal, Quebec
Tremblay-Lamer J.

Heard: February 18, 2004.
Judgment: February 25, 2004.
(28 paras.)


Counsel:

William Sloan, for the applicant.
Gretchen Timmins, for the respondent.

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REASONS FOR ORDER AND ORDER
1 TREMBLAY-LAMER J.:— This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board ("the tribunal"), rendered on December 20, 2002, wherein the tribunal determined that the applicant is not a Convention refugee.

2 In support of his claim the applicant alleges the following facts:

3 He is a citizen of Mauritania. He comes from a distinguished family of prominent anti-slavery activists. He has held various positions at the Ministry of Defence in Mauritania beginning in 1995. The applicant's political profile began while attending school in France with his membership in the opposition organization, the Union des Forces Démocratiques ("U.F.D."). While in Mauritania, he confronted the Muslim religious establishment through the writing of critiques, for which he was arrested and detained in 1997. He was detained for almost six months and suffered ill treatment and deprivation.

4 The applicant formed an anti-slavery association in late 1997 and attended a conference in Dakar, Senegal, where he exposed the issue to the media. He was arrested and detained for more than a month in 1998 in response to an article he had intended to publish, and was hospitalized as a result. In March 1999 he was arrested for the third time and detained for more than three months due to suspicions regarding his capacity as a civil servant. During his detention he was exposed to harsh conditions and when he returned to work, he discovered that he had been demoted.

5 The applicant journeyed to Europe as a part of a cultural delegation, and upon his return was questioned by the Minister of Defence and accused of being a spy and a traitor. He was sent to a desert prison where he was tortured and released after being induced into promising not to further critique the State.

6 The applicant decided to flee the country and obtained a false passport, arriving in Canada on September 9, 2000. He made an inland claim for refugee status on September 11, 2000. The tribunal determined the applicant was not a Convention refugee on December 20, 2002.

7 In light of the numerous alterations and anomalies in the documents submitted by the applicant, the tribunal concluded that the applicant had failed to establish his identity and even questioned the fact that he came from Mauritania.

8 The tribunal also found that the applicant had not demonstrated that he had a well-founded fear of persecution. It found it implausible that the Mauritanian government would be represented by a man who had been detained and tortured by it, or even that it would keep him as an employee. Further, the tribunal was of the view that the applicant's travels were incompatible with the behaviour of a person who had a well-founded fear of persecution.

ANALYSIS

9 The appropriate standard of review on findings of fact and credibility is patent unreasonableness. As long as the inferences drawn by the tribunal are not so unreasonable as to warrant intervention, its findings are not open to judicial review: Pushpanathan c. M.C.I., [1998] 1 S.C.R. 982.

10 The applicant argues that the tribunal erred in concluding that he failed to establish his identity. I disagree.

11 The tribunal first noted that there was a contradiction in the applicant's evidence as to where the passport was purchased. In his PIF the applicant indicated that the passport was purchased in Senegal. At the hearing he testified that his cousin purchased it from a smuggler in Gambia. Thus, it was not patently unreasonable for the tribunal to draw a negative inference from the fact that the applicant gave a different answer during his testimony from the one he wrote in his PIF.

12 The tribunal then examined the documents submitted by the applicant and in its decision carefully outlined the many anomalies and deficiencies it found in the documentation supporting the applicant's identity.

13 In relation to the applicant's national identity card ("N.I.C."), the tribunal noted that the card indicated that the applicant was a merchant by profession when in his PIF he indicated that he was a bureaucrat; when questioned at the hearing, the applicant was unable to explain this incoherence. Further, the tribunal noted that the signature of the person in authority who signed the card is illegible and curiously erased.

14 In Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (Q.L.) the Court stated that the matter of foreign documents is not an area where the tribunal could claim particular knowledge. However, contrary to the applicant's counsel's claim, there is no duty for the tribunal to obtain an expert report where there is sufficient evidence to cast doubt on their authenticity. (Culinescu v. Canada (Minister of Citizenship and Immigration) (1997), 136 F.T.R. 241; Kashif v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 282).

15 In the case at bar, the documents speak for themselves. From the colour photocopy of the N.I.C. it can be seen, besides the two anomalies noted by the tribunal, that the applicant's photograph has been stapled to the page and that it does not fit the space provided. In my opinion, where there is clear evidence that a document has been tampered with it is fully within the tribunal's power to attribute no probative value to the document.

16 The tribunal also dismissed the value of the applicant's alleged military identity card because the photograph had been obviously unstapled and replaced. Again, a look at the colour photocopy of the card in the applicant's record shows clearly this gross anomaly. Thus, it was reasonable for the tribunal to give it no probative value without obtaining first an expert report.

17 As for the applicant's military driver's licence, there are also obvious signs that someone had tampered with the document. The stamp on the photograph does not form a perfect circle. Contrary to what the applicant's counsel claims, the fact that there are other stamps on the licence does not make it look more authentic, but rather highlights the irregularity of the stamp that is on the applicant's photograph.

18 Concerning the international driver's licence, the tribunal noted that it was issued in 1993 in Gambia, although the applicant testified he was studying in France at this time. Furthermore, the tribunal concluded the document had been taken apart and then reassembled. Again, the tribunal was justified in giving it no probative value.

19 The tribunal also found that the diplomas submitted by the applicant were without any probative value. They have no photo of the applicant, nor do they have his signature, or any other information to corroborate his identity. Based on the serious anomalies and deficiencies of these documents, it was reasonable for the tribunal to disregard the documents.

20 The applicant also submitted that the tribunal erred when it omitted to mention in its decision the applicant's marriage certificate and U.F.D. as supporting his identity. I disagree. Firstly, the tribunal does not have to mention every document entered into evidence in its decision. In fact, it is presumed to have weighed and considered all the evidence unless proof to the contrary is shown (Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102).

21 Secondly, this evidence does not contradict the tribunal's findings of fact. Thus, I cannot infer from the tribunal's silence that it overlooked this evidence.

22 In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, Evans J. stated the following pertaining to the duty of a tribunal to mention evidence contrary to its findings:

17 However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. (My emphasis).

23 The tribunal concluded that by submitting identity documents that were clearly not authentic the applicant demonstrated that he was not a witness to be trusted. I am satisfied that this conclusion is consistent with section 106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which outlines the factors a tribunal must consider when deciding on the credibility of a claimant.

24 Once it had concluded that the identity had not been established it was not necessary for the tribunal to analyse the evidence any further. See Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (Q.L.). Nevertheless, the tribunal concluded that the applicant's story was implausible. It did not believe that the government would, on the one hand torture the applicant, and on the other hand keep him as an employee and send him on a mission abroad to represent the government. This conclusion is not patently unreasonable and would have justified in itself a dismissal of the applicant's claim.

25 Finally, it was reasonable for the tribunal to draw a negative inference from the fact that the applicant had travelled through Germany, Portugal and Ireland, yet waited to claim refugee status in Canada. The recent decision of Remedios v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 617 (Q.L.), reaffirms the principle that it is not unreasonable to conclude that the failure of an applicant to claim refugee status in countries that are signatories to the Geneva Convention amounts to country shopping.

26 For these reasons, the application for judicial review is dismissed.

27 Counsel for the applicant requested that the following question be certified:

In view of this Court's finding in Ramalingam v. M.C.I., IMM-1298-97 and Chidambaram v. M.C.I., [2003] F.C.J. No. 81, 2003 FCT 66, that the authenticity of documents is not within the Refugee Protection Division's specialized knowledge, can the RPD conclude that a state-issued identity document is not authentic, based on some physical aspect of the document, without either an expert's report or direct extrinsic evidence that those apparent physical anomalies are indicative or conclusive of malfeasance?

28 Considering that the proposed question would not be determinative of the appeal in the present case there will be no question certified.

ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.

TREMBLAY-LAMER J.

Comments:
Heard: February 18, 2004. Judgment: February 25, 2004. (28 paras.)
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