MB8-27180

RAD File No. / No de dossier de la SAR : MB8-27180 MB8-27181 / MB8-27182 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision February 25, 2020 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the persons who are the subject of the appeal Julien Primeau-Lafaille Conseil des personnes en cause Designated representative

XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX, the appellant, and his wife, XXXX XXXX XXXX (associate appellant), as well as their minor son, XXXX XXXX XXXX (minor appellant), are appealing against the decision of the Refugee Protection Division (RPD), which rejected their refugee protection claims. The appellants, with the exception of XXXX XXXX XXXX, who was born in the United States, are citizens of Haiti. The RPD found that principal appellant's identity had not been established and that his testimony was not credible. The Minister intervened before the RPD regarding the appellant's identity. The RPD concluded that the thefts at the associate appellant's business between 2009 and 2012 had no nexus to one of the Convention grounds. The appellants are not challenging the RPD's conclusion regarding the associate appellant and the minor appellant. [2] The determinative issue is the appellant's identity.

DETERMINATION [3] The appeal is dismissed. I am of the opinion that the principal appellant did not establish his identity. I am also of the opinion that the appellants did not demonstrate that there was a serious possibility that they would face persecution in Haiti or that, on a balance of probabilities, they would be personally subjected to a danger of torture, to a risk to their lives or to a risk of cruel and unusual treatment or punishment.

ANALYSIS [4] I conducted an independent analysis of all of the evidence on the record so I could form my own opinion regarding these refugee protection claims and determine whether the decision rendered by the RPD was correct. The Refugee Protection Division did not err in concluding that the appellant had not established his identity [5] In their memorandum, the appellants do not challenge the expert analysis entered into evidence by the Minister. They submit that the RPD should have considered all of the evidence, which included a DNA test confirming the appellant's parentage of the minor appellant, instead of focusing on the [translation] "implausibility" of the identity documents that came from a deficient public authority. [6] The onus was on the appellant to provide acceptable documents to establish his identity. If he could not do so, he had to be able to explain why. Although the DNA test cited by the appellants is relevant for establishing the parent-child relationship between the principal appellant and the minor appellant, it is not a document that can establish the principal appellant's identity. I am of the opinion that the RPD had valid reasons to conclude that the appellant's identity was other than what he claimed, because he did not provide acceptable documents or demonstrate that he had made a reasonable effort to obtain the documents needed to establish his

identity. Here is why. [7] First, according to the Minister and the experts whom the Minister consulted, two of the documents submitted by the appellant to establish his identity, namely, a birth certificate (M-1) and a document issued by the national archives of Haiti dated February 16, 2017 (M-2), contain serious anomalies. Among other things, these documents contain no reliability features related to their content or provenance, which rebuts the presumption that a document issued by a state authority is reliable. The analysis shows that those documents contain written additions in ink, that the date of birth was modified and that correction fluid appears to have been used. Furthermore, at the hearing, the appellant admitted that the documents may have been altered, but he explained that he was not the one who had done it. [8] Second, according to his Basis of Claim Form (BOC Form), the appellant's name is XXXX XXXX and he was born on April 25, 1985, in Port-au-Prince. His father's name is XXXX XXXX and his mother's is XXXX XXXX. However, according to a birth certificate seized by Canada's border services, he was born on April 25, 1987, his father's name is XXXX XXXX and his mother's is XXXX XXXX. When asked about the contradictions between his BOC Form and the birth certificate, the appellant admitted that it was a false document and that he had used it to obtain a false

passport, which does not explain the contradictions between the documents and his BOC Form. [9] In their memorandum, the appellants submit that the RPD [translation] "could have" accepted the claimant's testimony to establish his identity. Certainly, there is a presumption that sworn testimony is true, but this presumption can be rebutted. The RPD had reason to set aside the presumption of truthfulness since the appellant's testimony was contradicted by some of the evidence that he had submitted on the essential element of his refugee protection claim at that point in the assessment, namely, his identity, and he failed to provide a satisfactory explanation. [10] In their memorandum, the appellants contend that it is unreasonable to require a refugee protection claimant to make any further effort to gather evidence regarding his identity, [translation] "given the fact that refugee protection claimants are strongly discouraged from availing themselves of the assistance of their country of origin" in light of section 108 of the Immigration and Refugee Protection Act (IRPA). [11] The appellants do not explain how section 108 of the IRPA would apply to their situation. In my opinion, section 108 of the IRPA does not apply in this case because the RPD's rejection of their refugee protection claim is related not to a change in circumstances, but rather to their lack of credibility.

Subsection 108(1) of the IRPA sets out five reasons for the cessation of refugee protection, including paragraph 108(1)(e), which states that a refugee protection claim can be rejected when the circumstances on which the claim is based have ceased to exist. Subsection 108(4) provides an exception to paragraph 108(1)(e) for refugee protection claimants who are able to establish that there are compelling reasons "...arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment." [12] In my opinion, the appellant did not make enough of an effort to establish his identity. The appellant knew that the Minister was challenging his identity, he was represented by counsel, he had more than a year to prepare his refugee protection claim file and, by his own admission, he knew that some of the documents had been altered. The appellant had ample time to obtain the documents needed to establish his identity, but he did not do so. [13] The RPD did not err in concluding that the appellant did not establish his identity. [14] The appellants are not challenging the RPD's conclusion that the associate appellant did not establish a serious possibility of persecution or harm if she were to return to Haiti.

Likewise, they are not challenging the RPD's conclusion regarding the minor appellant. [15] Having analyzed their refugee protection claims myself based on the criteria of sections 96 and 97 of the IRPA, I am of the opinion that neither the associate appellant nor the minor appellant would face a serious possibility of persecution or, on a balance of probabilities, a risk to their lives or a risk of cruel and unusual punishment or treatment if they were to return to their country of citizenship.

CONCLUSION [16] The appeal is dismissed. The appellants are neither Convention refugees nor persons in need of protection. (signed) "Tammy Tremblay" Me Tammy Tremblay February 25, 2020 Date IRB translation Original language: French RAD File No. / No de dossier de la SAR : MB8-27180 MB8-27181 / MB8-27182 RAD.25.02 (April 4, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français