Docket: IMM-5372-02
Citation: 2003 FC 872
Ottawa, Ontario, this 14th day of July, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ALCY KHUKU SAHA
MONICA SAHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"). The Board concluded on October 15, 2002, that the applicant and her daughter were not Convention refugees nor "persons in need of protection" as defined in subsections 97(1)(a) and (b) of the Immigration and Refugee Protection Act (the Act), S.C. 2001, c. 27.
Facts
[2] The applicant, Mrs. Alcy Khuku Saha, and her daughter, Monica Saha (a minor child) claim refugee status on the basis that they are persecuted as Christians in their native Bangladesh. They also claim to be persecuted on the basis of social group: "Christian minority and women in Bangladesh."
[3] The principal applicant states in her PIF that she was born on June 20, 1977, in Gopalganj, Bangladesh. Her daughter was born on June 6, 1997. The applicant was schooled up to grade ten, and worked in the Nazarene Mission, which was operated by a Christian church. Her husband, also a Christian, worked with her at the Mission.
[4] The applicant states that her husband was a supporter of the Awami League (AL), a Muslim political party. She states that he received favours from the AL government and brought social developments to the area. However, opposition political parties began harassing the couple, charging that they had attempted to convert Muslims to Christianity and that they had caused Muslim women to become disobedient toward their husbands. The applicant states that on June 5, 2001, she was confronted and insulted by two fanatics and they were arrested upon her complaining to the police.
[5] The applicant states that problems occurred when the AL handed over power to a care taker government. On July 20, 2001, Bangladesh National Party (BNP) goons attacked her house, looking for her husband. Her husband was not there. He subsequently fled the area. The applicant lost contact with her husband in October 2001. The applicant participated in a protest on October 12, 2001, and again her house was attacked by fanatics, who insulted her.
[6] On November 15, 2001, the goons came again to the applicant's residence and accused her of being a foreign agent. They asked for her husband. She decided to leave Bangladesh. The applicant contacted agents, who agreed to bring her to Canada for 520,000 taka. They required half the payment in advance of the trip and half on arrival in Canada.
[7] The applicant states that she left Bangladesh on January 25, 2002, and arrived in the United States on the following day. The applicant states that it took time to arrange for the final payment and she was brought by the agent to the Canadian border on March 12, 2002. She states that the agent advised her to say that she had arrived in the United States 2 days earlier, on March 10, 2002, but that she told the truth to the Immigration Officer (Officer Croteau) on her arrival.
[8] The applicant was interviewed on March 12, 2002, by Officer Croteau, at CIC Lacolle. She first stated that she had left Bangladesh on March 8, 2002, and arrived in the United States on March 9, 2002, in New York. The agent's notes state that he noticed that the applicant's daughter spoke English and he talked to the girl in the presence of another agent. Officer Croteau asked the applicant why her daughter spoke such good English, and the applicant replied that she was not aware of that and that the child did not speak English with her. The applicant then stated that she had been in the United States for two months, but did not know the address where she had stayed in New York.
[9] The applicant's asylum hearing was held on October 3, 2002. The following evidence was submitted by the Minister: (i) the CIC (Lacolle) Point of Entry form completed by the applicant; (ii) a copy of Officer Croteau's notes; and (iii) a copy of a fax from United States Border Patrol - Canadian Border Intelligence Center ("USBP").
[10] The U.S. Border Patrol fax indicated that a Bangladeshi woman and child named Aley Khuku Saha (date of birth June 20, 1978) and Monika Saha (date of birth June 2, 1992,) arrived in Washington, D.C., on June 14, 2001. Their stated destination had been the Crown Plaza Hotel in Indianapolis, Indiana, and they carried visas that were valid until December 13, 2001.
Board's Decision
[11] The Board stated that, in light of the evidence submitted by the Minister, it was agreed by applicant's counsel that the question of the applicant's identity would first be explored. After questioning and submissions on this issue, the Board stated that it decided that it would not be necessary to continue the hearing and that it had come to the conclusion that the applicant and her daughter were not Convention refugees nor "persons in need of protection" under the Act.
[12] The Board noted that the applicant had told Officer Croteau at Lacolle that she had arrived two days earlier in New York, without a passport. The Board also noted the Officer's observation that the daughter spoke very good English for a 5-year-old and the applicant's statement that the girl never spoke English with her parents.
[13] The Board stated that the applicant's declaration (written after her interview with Officer Croteau) stated that she had left Bangladesh at the end of January 2002 and stayed in New York until March 11. She stated that at this time her daughter had attended pre-school for two weeks. She also said that the agent had told her to tell Canadian authorities that she had been in New York only two days.
[14] The Board noted that her two-month stay in New York is confirmed in her PIF and that the applicant explained that she was delayed because she needed time to arrange for the agent's second payment.
[15] In its reasons, the Board stated at pages 4 and 5:
All that could have been plausible, if not for the evidence obtained by the Minister from the US Border Patrol, Canadian Border Intelligence Centre, and submitted under Exhibit M-3. The computer printout, obtained from the US authorities, clearly indicates that Mrs. Aley Khuku Saha, born June 20, 1977, arrived by British Airways with a Bangladesh passport No. Q0027774 in Washington, DC, on June 10, 2001. She was admitted until December 13, 2001, and she intended to go to Indianapolis, in Indiana. The same document indicates that Monika Saha, born on June 2, 1992, entered with a Bangladesh passport (No. Q0027781) at the same time and was going to the same destination.
Asked if she had any explanations, the applicant said that she did not know anything about it and that she arrived in the USA at the end of January 2002, as she wrote in her PIF and as she testified earlier. I do not give any credence to this explanation. I do not believe that it is plausible that the two people indicated in the Exhibit M-3, a woman and a girl with very similar names to those of the applicant's and her daughter's and with very similar dates of birth, coming from Bangladesh, are different people from the applicant and her daughter. I do not believe that such a coincidence is plausible. I rather believe, on the balance of probabilities, that the applicant and her daughter are Aley Khuku Saha, born on June 20, 1978, and Monika Saha, born on June 2, 1992, as it was indicated in their Bangladesh passports, which they submitted to the US official when they entered the USA on June 20, 2001, and not Alcy Khuku Saha, born on June 20, 1977, and Monica Saha, born on June 6, 1997, as they declared when they came to Canada in order to claim asylum. I believe that the small changes in their names and dates of birth were done in order to make the research and identification more difficult.
[16] The Board stated that the applicant's hand-written declaration at the point of entry indicated that her daughter went to pre-school for two weeks in the USA. However, it found the applicant's testimony to be evasive and confused, and that in order for a girl to be admitted to school in the USA she must have had a different status from the one she alleged.
[17] The Board also found the applicant's testimony concerning her travel from Bangladesh to New York to be non-credible. She stated that the left Bangladesh at 3 p.m. and after a one-hour stopover arrived in New York the next day at noon. The Board stated that a flight from Dhaka to Europe takes 8 hours and a further 7 hour flight to New York, but with the time gain of 11 hours, the applicant should have arrived by the evening of the same day.
[18] The Board noted that the applicant submitted her and her daughter's birth certificates, her marriage certificate, her baptism certificate, and letters of support from pastors in Bangladesh. The Board stated that it accepted that the applicant was a Christian, but doubted the veracity of the birth certificate, since it was a visibly photocopied form that was written on by hand. The Board also found that the marriage certificate appeared to be a photocopy on which entries had been made by hand.
[19] The Board also noted that Monica's birth certificate stated her parents' address as "Shewrapar, Mirpur", whereas the applicant stated that from 1992 to 2002 she had lived in Gopalganj. The Board stated that Mirpur is a central neighbourhood in Dhaka and is not in Gopalganj District. The Board stated that this discrepancy also raised serious doubts as to the authenticity of the child's birth certificate.
[20] The Board found that the applicant and her daughter had not successfully established their identities and, in view of the identity and credibility problems, did not give weight to the letters of support written by individuals in Bangladesh. The Board concluded that the applicant had "successfully destroyed all her credibility".
[21] Given that the applicant claimed to be persecuted from July 2001 and the Board's finding that she was already in the USA by June 10, 2001, the Board concluded that she had not established a well-founded fear of persecution nor a "person in need of protection" under the Act. The Board reiterated that the applicant was "generally not credible, and she produced fabricated and self-serving evidence in support of her and her daughter's identities, as well as their claims". Accordingly, the claim was rejected.
Issues
[22] The applicant raises two main issues on judicial review:
(1) Did the Board base its decision concerning the applicants' identity on evidence that was unreliable, untrustworthy, or without regard to the whole of the evidence?
(2) Did the Board provide a fair hearing to the applicant?
Standard of Review
[23] The assessment of whether certain evidence is credible is essentially a question of fact. It is common ground that this aspect of a Board's decision should be reviewed with deference against the standard of "patent unreasonableness". It is also generally accepted that inferences drawn and plausibility findings made by the Board are not open to judicial review unless the findings are so unreasonable as to warrant the Court's intervention. [Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL), (1993), 160 N.R. 315.]
Analysis
(1) Did the Board base its decision concerning the applicants' identity on evidence that was unreliable, untrustworthy, or without regard to the whole of the evidence?
[24] The applicant argues that the Board erred in relying on the USBP information. She submits that the Board's finding that the people listed in the USBP fax were the applicant and her child was unreasonable, because the information was unreliable and incomplete. She notes also that no information concerning how it was acquired was presented. The applicant submits that there were many dissimilarities between the applicant and her daughter and the information contained in the USBP fax and that the Board focussed only on the similarities. The applicant states that her daughter was born on June 6, 1997, whereas the daughter's birthdate in the USBP fax was June 2, 1992 - the latter being a 10-year old child. The applicant states that the Board member saw the child at the hearing, but failed to consider whether the child was actually 5 years old, as stated by the applicant and not 10 years old, as provided in the USBP fax.
[25] The respondent submits that any objections to the evidence filed by the Minister should have been made at the hearing before the Board and not on judicial review. The respondent further submits that the Board has wide discretion concerning the admissibility of evidence. Subsections 170(g) and (h) of the Act provides:
| 170. The Refugee Protection Division, in any proceeding before it,
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; |
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170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés_:
g) n'est pas liée par les règles légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision;
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[26] The respondent argues that Port of Entry documents have in the past been relied on by the Board to assess refugee claims. In Mongu v. Canada (Solicitor General), [1994] F.C.J. No. 1526 (QL), Richard J. (as he then was) stated at para. 3-4:
Counsel for the applicant Mongu argued that the panel erred in accepting as evidence the examination card prepared by an immigration officer who examined the applicant at the point of entry when the officer did not testify. He further alleged that the officer exceeded his powers in certain questions he asked the applicant dealing with the basis of the claim to refugee status pursuant to s. 12 of the Immigration Act.
In my opinion the panel made no error in accepting the examination card prepared by the immigration officer as evidence. [...]
[27] Richard J. went on to cite the former ss. 68(3), now ss. 170(g) and (h) of the Act.
[28] I am of the view that the Board did not err in accepting and relying on the USBP information. I find this evidence both relevant and trustworthy in the circumstances.
[29] Concerning the similarity between the USBP evidence and the information in the applicant's PIF, the Board noted that the names of the applicant and her daughter were identical to the USBP information, with the exception of one letter in each name. The USBP information referred to "Aley Khuku Saha" whereas the applicant stated her name as "Alcy Khuku Saha". The other traveller was "Monika Saha", whereas the claimant's daughter was stated to be "Monica Saha". The date of birth of Alcy in the USBP information was "June 20, 1978" whereas the claimant's date of birth was stated to be "June 20, 1977". The date of birth of Monika in the USBP information was "June 2, 1992" whereas the date of birth stated for the applicant's daughter was "June 6, 1997". In both cases the pair are females from Bangladesh.
[30] There is clearly a 5-year difference between "Monika's" stated age and "Monica's" stated age. However, when faced with the similarities in the names, birth dates, and origins of the two sets of individuals, the Board stated that it did not believe that the applicants were not the individuals listed in the USBP document. The Board stated that such a coincidence was implausible and that it was likely that small changes in the identification were made in order to make research and identification more difficult. I am of the view that the Board's conclusion, a finding of fact, is not patently unreasonable and consequently not reviewable.
[31] The applicant also submits that the she filed several pieces of documentary evidence that were rejected by the Board, including her baptismal certificate and a letter from a missionary from St. Joseph's Oratory in Montréal. The applicant submits that this evidence was wrongly rejected.
[32] Concerning the Board's failure to consider the applicant's documents, I note that in Hamid v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1293 (QL), Nadon J., as he then was, stated the following, at para. 21:
Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine.
[33] The Board's made serious adverse credibility findings concerning the date of the applicant's arrival in the United States, whether her daughter spoke English, and on the authenticity of the birth certificates and the marriage certificate. Given the evidence submitted by the Minister, in particular, the USBP fax, and given the Board's analysis of the veracity of the birth and marriage documents, I am of the view that its credibility findings were not patently unreasonable and consequently not reviewable. In view of these credibility findings, and following Hamid, supra, I do not view the Board's rejection of the letters of support to be unwarranted in the circumstances.
(2) Did the Board provide a fair hearing to the applicant?
[34] The applicant raises a number of challenges under the rubric "fair hearing": (i) failure to hear all the evidence; (ii) failure to consider the documentary evidence; and (iii) reliance on evidence obtained through improper interview of a child.
[35] The applicant submits that, once the Board accepted that the applicants were Christians from Bangladesh it had a duty to hear all of the evidence before rejecting the case on identity alone.
[36] The respondent notes that the Board stated at p. 7 of its reasons:
...It is [...] clear to me, based on the evidence submitted by the Minister (Exhibit M-3), that during the alleged persecutory events, the applicant and her daughter were safely in the USA, and not in Bangladesh, as she claims. The applicant was generally not credible, and she produced fabricated and self-serving evidence in support of her and her daughter's identities, as well as their claims.
[37] Based on the evidence considered by the Board, I find that the Board did not err in concluding as it did. It was open to the Board to accept and prefer the evidence that suggested that the applicant was in the United States during the incidents of persecution she described, over the applicant's evidence.
[38] The applicant submits that documentary evidence establishes the plausibility of her story and cites as an example a news item concerning the bombing of a Catholic Church on June 3, 2001. The applicant submits also that, even if the Board found that the applicant had been in the U.S.A. in June 2001, because the definition of persecution is prospective the Board should have considered the claim based on the documentary evidence.
[39] In Sinora v. Minister of Employment and Immigration, [1993] F.C.J. No. 725 (QL), Noel J. (as he then was) stated, at para. 5:
It is settled law that an applicant must demonstrate an objective and subjective fear of persecution. In this case, it was not sufficient simply to file documentary evidence. It was necessary at the very least to establish that the applicant himself had a real fear of persecution.
[40] The Board concluded that the applicant was in fact in the United States when most of the alleged persecutory incidents occurred. As a result, the Board found that the applicant had not shown that she had a fear of persecution and rejected the claim for asylum. The documentary evidence could establish only an objective fear of persecution, not the subjective fear of the applicant. In the circumstances, the Board's decision not to further consider the claim based on documentary evidence is not a reviewable error.
[41] The applicant submits that the procedure used by the immigration agents (at Lacolle) to interview the child was contrary to procedures recognized by "Chairperson's Guidelines on Child Refugee Applicants" and Article 9 of the Convention on the Rights of the Child, which call for a designated representative in the case of procedures involving a child and for the observance of the "best interests of the child" as a guiding principle. The applicant also submits that the Board did not determine whether these procedures were followed.
[42] This argument is without merit. Article 9 of the Convention provides that a child is not to be separated from his or her parents against their will. According to the affidavit of Officer Croteau, he asked the girl a few questions when he became aware that the applicant was attempting to prevent her child from speaking to him. He also states that he was attempting to determine whether the child was in fact the daughter of the applicant, but did not conduct a formal interrogation of the child. There is no evidence that Monica was unwilling to leave her mother in order to speak to the CIC officers, and it appears that she spoke willingly to the officer. I am satisfied that there are no issues concerning child interview procedures that are relevant to this judicial review application.
[43] The applicant submits that the Board erred in relying on the agent's notes, which according to the applicant, were prepared on the observation of another agent that the child spoke English. The applicant submits that the reliance on this evidence without the Board member testing the child herself violated the principle that the person who hears the case must decide the case. I reject this argument. The port of entry notes show that the officer, upon realizing that the daughter spoke English, paused and "had another officer talk to the girl". In his evidence, the officer stated that he put a few questions to the daughter. At para. 11 of his affidavit, he attested:
"Afin de m'assurer que la demanderesse principale était bien la mère de la fillette, je lui ai posé quelques questions sans la présence de la demanderesse principale, mais je n'ai pas procédé à un interrogatoire formel."
This evidence, filed by the Minister, was based on the observations of an uninterested immigration officer. In the circumstances, I find this evidence relevant and reliable, and that it was open to the Board to prefer this evidence to that of the applicant which was found to be generally not credible. I am satisfied that the Board did not violate the audi alteram partem rule in proceeding as it did. In any event, I find that the information obtained from the daughter is not of sufficient import to be determinative of the application.
Conclusion
[44] Based on the totality of the evidence presented at the hearing, and considered by the Board, the decision rejecting the applicant's refugee claim cannot be characterized as unreasonable. For the above reasons, the application for judicial review will be dismissed.
[45] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the October 15, 2002, decision of the Refugee Protection Division of the Immigration and Refugee Board is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5372-02
STYLE OF CAUSE: Alcy Khuku Saha et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 14, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: July 14, 2003
APPEARANCES:
Ms. Diane N. Doray FOR APPLICANT
Ms. Michèle Joubert FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Diane N,. Doray FOR APPLICANT
203 - 6855, de l'Épée
Montréal, Québec H3N 2C7
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec H2Z 1X4