TB2-13682

RPD File No. / N° de dossier de la SPR : TB2-13682 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Claimant(s) XXXX XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing February 11, 2019 April 23, 2019 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision May 29, 2019 Date de la décision and reasons et des motifs Panel Fahimeh Mortazavi Tribunal Counsel for the Claimant(s) Lily Luwam Tekle Conseil(s) du (de la/des) demandeur(e)(s) d'asile Barrister & Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister R Jackson Conseil du (de la) ministre (Written Submissions Only) REASONS FOR DECISION [1] XXXX XXXX XXXX (the claimant), claims to be a national of the Federal Republic of Nigeria,1 and of the Christian faith.2 She is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).3 Observers [2] XXXX XXXX. and XXXX XXXX were present at the first sitting, February 11, 2019. At the second sitting, April 23, 2019, in addition to the first two observers, XXXX XXXX XXXX was also present with the permission of the claimant. [3] The Minister informed the RPD in writing that he wishes to intervene in the claim by making observations and submitting evidence in writing,4 pursuant to paragraph 170 (e) of the Immigration and Refugee Protection Act and according to Section 29 of the Refugee Protection Division Rules.5 [4] The claimant was represented by Lily Luwam Tekle, Barrister and Solicitor. Application apprehension of bias [5] On April 18, 2019, counsel submitted an application in writing,6 for the panel to recuse itself. Counsel submitted that: Unfortunately, I did not have an opportunity to prepare and provide this motion in advance due to limited resources and scheduling conflicts which prevented me from preparing the motion at an earlier time.7 [6] The panel notes that the application did not adhere to Rule 50(1) of the RPD Rules; which requires applications must be received by the Division no later than 10 days before the date fixed for the next proceedings. In this case, the proceeding was scheduled for April 23, 2019. [7] The panel treated the written application as an oral application, and allowed the application notwithstanding Rule 50(1), and counsel's inadequate reasons for the late application. [8] In the application counsel submitted that: [a]t the first sitting of this claim on February 11, 2019, the Member demonstrated a lack of sensitivity and understanding of the claimant's mental health condition and cultural context, a lack of respect for the claimant and a lack of respect for a professional observers who attended the hearing to support the claimant. The Member also made statements that reflected pre-judgment of the claim. Her refusal to admit counsel's evidence which was submitted to the Refugee Protection Division in a timely manner is a denial of natural justice and a breach of principles of fairness. Cumulatively, this conduct by the Member constitutes bias.8 [9] At the second sitting, it is worthy to note that, counsel withdrew her allegation that the member had refused to admit counsel's evidence, and her allegation of a denial of natural justice and a breach of the principles of fairness. As the transcripts of the first hearing clearly indicate, the panel had entered all the documents submitted by counsel as an exhibit. The transcript of the second sitting in this respect is as follows: COUNSEL: Right. My concern was I had summarized that report itself and I had also summarized some objective news articles about stigma, individuals suffering from mental health conditions, right, in Nigeria. So initially, I was trying to get this letter entered as an exhibit, and you mentioned that it's not necessary and, if I wished to do so, I could summarize it in my oral submissions. So what I would -- MEMBER: Yes. Because I already have documents in front of me, the full documents, I don't need your summarization. COUNSEL: Right, right. I understood your position on that. MEMBER: Okay. COUNSEL: But when I was preparing this motion for recusal I had initially raised that as a ground that I was concerned about, that you weren't willing to accept this letter as part of the claimant's disclosure. I ended up withdrawing that specific argument from the motion of recusal, so perhaps that's why that statement remained. But my motion for recusal, again, just focuses on the two issues that I raised. [10] In the application, counsel submitted that "the member has shown bias in the claim in the following ways; The Member made an inappropriate comment towards counsel when the claimant broke down and started crying during the hearing which demonstrated a lack of understanding and sensitivity towards Claimant's mental health condition. In addition, she was reluctant to provide procedural accommodations to the claimant when it became apparent that the Claimant was struggling to continue with her testimony and stated that counsel was "encouraging" the client when counsel requested a break. The Member asked questions of an observer in he hearing room who was there in her professional capacity to support the Claimant and these questions indicate that the Member is biased towards racialized persons or persons of colour. Moreover, she made a general comment about cultures in Africa which reflect her lack of understanding and knowledge about the diversity and cultural differences between the various different countries on the continent. It is therefore requested that the Board Member remove herself from the hearing of this claim and that a de novo hearing be held.9 [11] The panel, after considering the application, Ruled that the application did not meet the test for "reasonable apprehension of bias" formulated in the Supreme Court of Canada case Committee for Justice and Liberty v. National Energy Board,10 as follows: What would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [12] The panel informed the claimant and counsel that the reason for dismissing the application would be included as part of the reasons for the decision. Reasons for the ruling [13] The allegation of an apprehension of bias should be first put to the person against whom the allegation is being made, in order to allow the person an opportunity to respond.11 It was therefore appropriate for this Panel member to decide the motion against it.12 The Panel member considered Counsel's application regarding bias with an open mind before ruling on the matter.13 [14] The common-law principles of natural justice are recognized in section 162(2) of the Immigration and Refugee Protection Act (IRPA). [15] With respect to the issues raised by counsel, the panel is mindful of the following. 162. (2) Each Division shall deal with all proceedings before it informally and quickly as the circumstances and the considerations of fairness and natural justice permit. [16] The principles of natural justice include the common-law rule against bias. That rule disqualifies a decision-maker from determining any case in which there is actual bias or an appearance of bias, also described as a reasonable apprehension of bias. [17] Despite Counsel's motions and allegations in order to get a De Novo hearing, the claimant received a fair hearing, and her claim was determined on its own merits. [18] The panel notes that, counsel did not raise any objections during the first hearing regarding the concerns raised in the application. [19] The panel is mindful that the impartiality of decision-makers is not judged from the decision-maker's perspective, but from that of a reasonable bystander, fully informed of all relevant facts. For example, certain activities and associations of a member may seem quite inconsequential from the member's perspective, and yet still appear highly suspect from an observer's point of view. First issue [20] Counsel submitted that: During the Member's questioning the Claimant broke down during her testimony and started crying. Due to her mental health symptoms and the psychiatrists report that was provided well in advance of the hearing, the Member would have been aware that the Claimant becomes easily distressed and would need some time to express her emotions, calm down, and then regain her focus. However, during the claimant's sobbing, the Member looked over at counsel and advised counsel during the Claimant's sobbing, "to control your client". Counsel was surprised by the comment and responded that nothing could be done to control that type of behavior as it is a symptom of her mental health condition. ... the two observers took the Claimant outside of the hearing room...counsel reiterated again that she would not be able to "control" her client's behavior if she gets upset again or experience another outburst...14 [21] The panel notes that counsel's entire lengthy account noted above does not appear [emphasis added] anywhere on the full transcript of the first sitting, therefore it never took place as per the record. [22] Counsel submitted that: At another point during the Member's questioning counsel became concerned that the Claimant May start crying again and experience another outburst, Counsel interjected during the Member's questioning and asked the Claimant if she needed a break. The Claimant nodded yes. The Member insisted that a break was not needed at that point and she also told counsel that she should not "encourage" her client's behavior. Counsel was shocked at the accusation and responded that she could recognise her client was coming close to getting upset and crying again. The Member advised counsel that she had a psychology background and insinuated that she knew how to handle the Claimant. She reluctantly allowed a 5 minute break... It is not clear why the member was reluctant to accommodate the Claimant when she was struggling to cope during the hearing. [23] As stated by the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, "The test for apprehension of bias takes into account the presumption of impartiality. A real likelihood of bias must be demonstrated."15 The Supreme Court reiterated this principle in Wewaykum, "The standard refers to an apprehension of bias that rests on serious grounds, in light of the strong presumption of judicial impartiality."16 [24] The panel member is also mindful that the court will require clear evidence that a predetermination had in fact occurred. The Federal Court reiterated in Ali17 that: ... the Court of Appeal in Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091 [(F.C.A., no. A-991-90), MacGuigan, Linden, Gray, November 2, 1992, reported: 18 Imm. L.R. (2d) 22 (F.C.A.)], has emphasized that an allegation of bias cannot be done lightly. It cannot rest on mere suspicion, pure conjecture or mere impressions of an applicant. It must be supported by material evidence. [25] It is clear that the circumstances of this situation, counsel's erroneous allegation regarding the observer, is pure conjecture and a mere suspicion that the panel deliberately chose to focus on the "racialized" person. [26] Counsels submissions in this respect are not accurate, and her allegation regarding "should not encourage" above does not appear [emphasis added] anywhere on the full transcript of the first sitting. Counsel has exaggerated and has taken the Member's action out of context. The transcript in this respect is as follows: MEMBER: Okay. I assume that person had a passport for you. Do you know whatever happened to that passport? CLAIMANT: I don't know. I don't know. MEMBER: Okay. Do you know which country it was, was it from Nigeria? CLAIMANT: I can't explain. MEMBER: That's fine. If you don't know, you don't know. Nothing to worry about. Now, when you arrived and you went to the church, how many days after you arrived did you go to make your claim? CLAIMANT: Two days. Because I don't even know the man, he just came around to help me. MEMBER: Okay, I don't need to know the name, that's fine. Now, when you came in, you arrived in Canada, did you have any documents showing who you are, like a birth certificate, national ID card, anything? CLAIMANT: I cannot explain, can't. MEMBER: What do you mean you cannot explain? You cannot remember or you don't know...? CLAIMANT: I can't remember, because it's been a while this thing happened. MEMBER: Okay. Now, do you remember when you left Nigeria, if you had your national ID card or birth certificate with you? CLAIMANT: I can't remember. MEMBER: Okay. CLAIMANT: I can't remember. MEMBER: That's fine. CLAIMANT: I can't remember. MEMBER: Okay, that's fine. No need to get upset. COUNSEL: Can we take a break at this point? MEMBER: No need to get upset, it's fine. Okay, she will tell me if she needs a break. I've already instructed her to do so. COUNSEL: Do you need a break? [claimant nods] Yes, she needs a break. MEMBER: Okay, five minutes. I like to give break when it's appropriate, not when you [counsel] think she should have a break. COUNSEL: If I just see her -- MEMBER: Now she's -- yeah, but I also see her too and I have a psychology background as well, just for your information -- COUNSEL: I work with her very closely, so -- MEMBER: -- and I didn't see her need it, but we'll give five minutes break. Okay? Five minutes. It's now 3:30, we'll give a break until 3:35. [27] The Panel member's statement regarding "having a psychology background" was made to reassure counsel that the panel member was cognisant of the claimant's emotional condition and the psychological reports regarding the claimant's condition. [28] Moreover, the panel is mindful of the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution and Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB. In the case at hand, the panel was also mindful of the medical and the Psychiatric reports.18 [29] Counsel ought to recognize that the panel has the responsibility for conducting the hearing. The panel will determine when accommodation is reasonable and appropriate, not when counsel, in her mind, anticipates and becomes "concerned that the Claimant May [emphasis added] start crying again and experience another outburst". As evident by the transcript, the situation was under control. The claimant did not express verbally or nonverbally that she needed a break, given that she was instructed to do so when she saw the need. As evident by the transcript there was no "insistence" on the part of the Member not to give a break. A break was given without any hesitation when the claimant nodded "yes" in response to counsel's question. [30] As illustrated by the transcripts of the second sitting, the claimant became emotional on many occasions. To make the point that not all emotional expressions require a break on part of the claimant, after each display of emotion, the panel asked if the claimant needed a break. The claimant in response stated "no." On at least two occasions, the claimant, as instructed, asked for a break and it was granted immediately. This supports the fact that not every display of emotion requires a break, and the determination to grant a break is at the discretion of the panel after assessing each instance. [31] Chairperson Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB states the following:19 4.2 The IRB has a broad discretion to tailor procedures to meet the particular needs of a vulnerable person, and, where appropriate and permitted by law, the IRB may accommodate a person's vulnerability by various means, including: a. allowing the vulnerable person to provide evidence by videoconference or other means; b. allowing a support person to participate in a hearing; c. creating a more informal setting for a hearing; d. varying the order of questioning; e. excluding non-parties from the hearing room; f. providing a panel and interpreter of a particular gender; g. explaining IRB processes to the vulnerable person; and h. allowing any other procedural accommodations that may be reasonable in the circumstance. [32] The review of the transcript of the first sitting, illustrates that the panel member, in the case at hand, not only provided reasonable accommodation by allowing reasonable breaks when necessary, it also allowed counsel to ask questions of the claimant during the panel's questioning or show the claimant documents to refresh the claimant's memory. The panel was diligent in ensuring that all questions were understood by the claimant. The panel encouraged the claimant by providing positive strokes, like commending the claimant when appropriate to encourage her in giving her testimony. The panel tried to calm the claimant when she showed signs of stress. The panel was respectful of the claimant, empathised and sympathised with her at times to gain her trust and create a conducive and informal environment for the claimant to testify. The panel member, on several occasions, explained its role and the reason for questioning to the claimant. [33] It is clear that, in the circumstances of this case, counsel's erroneous allegations are pure conjecture and a mere suspicion, in her mind, is not supported by the material evidence. Second issue [34] With respect to the second issue regarding the observer, counsel asserts that the member asked the observer, a "visible minority" and not the other observer who is a "non-racialized" person if she was a refugee claimant. Counsel, in her application, alleged that [t]he court supporter and the counsel were both uncomfortable with this line of questioning. The Member could have asked the same questions to both observers but she deliberately chose to focus on the racialized court supporter worker. This is a concerning example of explicit bias which the Member did not even attempt to hide.20 [35] It should be noted, that apprehension of bias does not apply to observers. However, the panel will address the issue raised by counsel. [36] The panel notes that this conversation took place prior to the commencement of the hearing, while the panel member was setting up the recording device. [37] Firstly, during the very short exchange, no visible uncomfortableness on part of counsel or the case worker or anyone else present in the room was displayed or expressed, verbally or non-verbally. [38] Secondly, questioning the persons present in the hearing room is a routine practice by Members. It is to establish the reasons for their presence. It is a practical and administrative function, to ascertain whether they are observers, witnesses, or present in any other capacity prior to the start of the hearing, and to make arrangements accordingly i.e. witnesses to return to the reception area and to exclude non-parties from the hearing room. [39] Thirdly, often counsels bring other refugee claimants to a hearing to expose them to the hearing room environment, in preparation in advance for the observer's hearing, which is usually allowed with the permission of the claimant. [40] [41] Counsel further submitted that: ... during the Member's questioning of the Claimant, the Member made a comment that she had previously worked in Africa for the United Nations and although she never worked in Nigeria specifically her work experience on the continent allowed her to understand the "culture". The comment was likely made to reassure the Claimant about her personal circumstances. However, it was offensive to hear the Member's statement as it insinuated that she believed all cultures throughout the continent would be similar. This is a problematic assumption on the Member's part which does not make any sense as working in one area of Africa does not make her an expert or knowledgeable on all cultures throughout the continent. It is submitted that the Member's conduct in the above instances exhibits a bias that could affect the outcome of her adjudication of the Claimant's refugee proceeding.21 [42] Counsel has taken the Members comments out of context. Shortly after the questioning of the claimant by the panel commenced, the claimant became emotional when a question regarding school was asked. A recess was provided. The transcript in this respect is as follows: MEMBER: Well, did you go to XXXX XXXX XXXX XXXX Primary School? You have to answer me. Shaking of the head is not recorded. CLAIMANT: I didn't go to the school mentioned, XXXX XXXX XXXX XXXX, at all. Because my parents, they didn't have money to train me in school, so I didn't go to school at all. [emotional] COUNSEL: XXXX... She wanted frequent breaks, that's part of the reason we had the psychiatrist's report. MEMBER: Okay, we'll give you a break. I haven't even asked you anything that would make you upset. COUNSEL: I asked her questions, and the school triggered the same reaction, so it's not you -- - - - HEARING RECESSED - - - - - - HEARING RESUMED - - - MEMBER: We're back on the record, everyone is present, including the claimant. Madam, I'm just going to give you some information on why I'm here. Okay? There's nothing for you to be nervous about or upset about. I'm here to hear your story and decide whether I should make you a convention refugee or not. So it's very important for me to get clear evidence from you. If there is even a slight little information that's different from what I have in the file it's my job to bring it to your attention and give you a chance to correct it. Okay? So there's nothing to be upset about or to worry about, just listen to the questions. Okay? If at any time you feel like you want to have a break, just let me know, I'll be happy to give you a break. Okay? This is a very informal hearing. Okay? CLAIMANT: All right. CLAIMANT: It's just that when I remember my children, when I remember my kids it just... MEMBER: Oh, I understand that. I understand, as a mother, that you will feel like that. But you have to be strong. One way you can help them is by being strong and give me the information I need to receive from you. If it makes it any easier, I have worked in Africa, I'm very familiar with Africa, not necessarily Nigeria, so I'm very familiar with the culture. Okay? Do you understand that?22 CLAIMANT: I understand what you're saying. [43] Firstly, it is clear from the transcript that the panel is mindful of the psychological reports23 and the Chairperson Guidelines 4 and 8, and was attempting to empathise with the claimant, to put the claimant at ease, and to create an atmosphere where she could be relaxed to give her evidence. The panel wanted to have the claimant understand that the panel is familiar, identifies, and has an appreciation of cultures in Africa in general, which is different than North America. Secondly, at no point did the Member state that she worked for the UN, any information that counsel has imported into her submissions, is from outside of the hearing. [44] It is clear that in the circumstances of this case, counsel's erroneous allegation is pure conjecture and a mere suspicion in her mind, and is not supported by material evidence. Conclusion [45] The panel finds that an informed person, viewing the allegations made by counsel realistically, and in context, would conclude that counsel's submission is, pure conjecture and an exaggeration. [46] For all the above reasons, having correctly applied the test for bias as set out in the Committee for Justice and Liberty above, and mindful of the duty of RPD members under the Code of Conduct for Members of the Immigration and Refugee Board of Canada, to decide every case on its merits and to not be influenced by any extraneous factors, and having considered whether any comments made could constitute a valid ground for reasonable apprehension of bias, the application for Recusal was dismissed. ALLEGATIONS [47] The claimant's allegations are detailed in the narrative of her Personal Information Form (PIF), dated 29-11-2012,24 when she claimed refugee protection, and PIF narrative Addendum, dated Sept 14, 2018.25 In summary, the claimant alleged that she entered Canada using a fraudulent document. [48] The claimant alleged she is a citizen of Nigeria, and in support of her identity and citizenship, proffered a copy of a Registration of Birth,26 a copy of a voter's card,27 a Driver's Licence, and copies of Birth Certificate and Registration of Birth28 for the claimant's alleged children, and affidavits.29 ANALYSIS [49] The determinative issues in this case are identity and credibility. Identity [50] In view of the totality of the evidence, the panel finds the claimant has not met the burden of establishing her identity. The panel finds the claimant, on a balance of probabilities, is not a citizen of Nigeria and has not established her personal identity. [51] Absent a finding that the personal and national identity has been established on a balance of probabilities, an assessment of the potential merits of a claim cannot be properly performed. In cases where personal and national identity of a claimant have not been established on a balance of probabilities, an assessment of the remainder of the claim is not necessary.30 Case Law [52] The panel, with respect to establishing identity, is guided by the following case law and IRPA and RPD rules and guidelines. [53] It is the claimant's duty to provide acceptable documentation establishing their identity on a balance of probabilities.31 In the absence of documentation, they must provide a reasonable explanation for the lack thereof, or demonstrate that they have taken reasonable steps to obtain such documentation.32 [54] Section 106 of IRPA states: 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.33 [55] As well, Section 11 of the Refugee Protection Division Rules (RPD Rules) requires that: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to provide them.34 [56] In Su the Federal court stated, "[t]he onus is on the claimant to produce acceptable documentation establishing his or her identity."35 Furthermore, the Federal Court in Duale noted that "it is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so."36 [57] The panel acknowledges that, at times it can be difficult for claimants to obtain and provide documentation to establish their claim, the UNHCR Handbook reiterates the need for claimants to provide any evidence establishing identity that may be available.37 [58] The panel also notes, however, that the burden still rests on the claimant to establish their personal and national identity, on a balance of probabilities, with credible and reliable evidence through other means when there is a lack of official, government-issued identification. As the identity findings are to be based upon the totality of the evidence, the panel considered and assessed each document submitted by the claimant in support of her identity. [59] The panel concludes that, in the case at hand, the personal and national identity of the claimant has not been established, on a balance of probabilities, with credible and trustworthy evidence for the following reasons. Credibility [60] The determination as to whether a claimant's evidence is credible is made on a balance of probabilities.38 Although statements given under oath are presumed to be true, that presumption can be rebutted by contradictions or inconsistencies in the evidence.39 The onus is on the person making a claim, to present evidence that is credible, on a balance of probabilities, to support the allegations which form the basis of the claim. In this case, the panel finds that the claimant has not discharged her onus. [61] The panel took into consideration the doctor and the psychologist reports, Chairperson Guidelines 4 and 8, and the various factors that could affect the claimant's oral testimony, including the setting of hearing room, presence of observers, the claimant's anxiety, age, cultural differences, education, and the use of an interpreter. [62] While not every piece of evidence will be referred to in these reasons, the panel carefully considered the entirety of the evidence in reaching its decision.40 Claimant's Registration of Birth [63] The Minister submitted that there were different spellings of the claimant's name, and middle name, between her PIF, Immigration forms, and the Registration of Birth form as follows: [64] The claimant declared in her personal information (PIF) that her name is XXXX XXXX XXXX,41 and the Registration of Birth indicates her name as XXXX XXXX XXXX.42 The Minister submitted that, given the different spelling of the name XXXX vs XXXX [emphasis added] and middle name XXXX vs XXXX [emphasis added] "there is reason to doubt the claimant's identity."43 [65] The panel is not persuaded by the Minister's submission, regarding the different spelling between the Registration of Birth and the claimant's spelling of her name in the PIF, given the claimant's level of education. [66] The Minister further submitted that the birth certificate [Registration of Birth] was analysed by the Canada Border Survives Agency's Intelligence Division (CBSA), Document Analysis Unit. The minister submitted that the analysis indicates that, since it appears the certificate itself was folded prior to lamination, "the possibility exists it was not laminated by the Issuing Authority."44 The minister submitted that "because the birth certificate's security features are obscured by lamination, it is no longer a valid form of identification."45 [67] Furthermore, the Minister submitted that further analysis indicates that the birth certificate contains a spelling error on the stamp (wet seal). Instead of "Burial" it states "Buraial. [emphasis added]" The minister submitted that this error reduces the probative value of the birth certificate as a whole. The Minister asks that the birth certificate be found invalid due to the likelihood that it was laminated by someone other than the issuing authority, sometime after issuance. Additionally, Minister asks that it not be accepted as a proof of identity in consideration of the identified spelling error in the wet seal.46 [68] The Minister's finding, with respect the spelling of "Burial" vs "Buraial", the wet seal, and the lamination of the card was put to the claimant for explanation and clarification. However, no explanation was provided by the claimant. The panel draws a negative inference regarding the misspelling on the wet stamp. It is reasonable to expect that a document issued by the government authorities, where English47 is an official language, would contain correct spelling. [69] With respect to her name, the claimant testified that her full name is XXXX XXXX XXXX. The claimant spelled her name several times during the hearing as XXXX and her middle name is XXXX. The claimant testified that she is known as XXXX XXXX and not by any other names. The claimant was asked to explain that her PIF indicates that she has also used XXXX XXXX XXXX.48 She explained that XXXX was the name of the man who fathered her children. Her evidence indicates that is the name of her common-law spouse.49 Her evidence indicates that they were never officially married. The claimant failed to explain the reason she had used XXXX when she was not married to the man who fathered her children. The panel does not accept her explanation as persuasive, as it was internally contradicted by her own evidence in the PIF. [70] Furthermore, when the claimant was shown the Registration of Birth form she testified that "I've never received it before" and "I don't know" how immigration got a hold of the document and "I did not give them [immigration Canada] any document."50 The panel does not accept the claimant's explanation as persuasive, as there is no evidence before the panel that any other persons, on a balance of probabilities, would have proffered the document to the Immigration authorities aside from the claimant. The panel draws a negative inference in this respect. [71] In view of the cumulative effect of the above issues with the Registration of Birth, and in particular the misspelling of the word "Burial", the panel finds that this document is, on the balance of probabilities, fraudulent and not a reliable identity document. Voter's card [72] The Claimant, in support of her identity, submitted a copy of a Voter's card.51 It indicates that the claimant's Name as XXXX [emphasis added], which is inconsistent with the spelling of the same name on her Registration of Birth form XXXX [emphasis added]. This inconsistency was brought to the attention of the claimant. The claimant's evidence indicates that the only way she spells her name is "XXXX". It is reasonable to expect the voter's ID card, a document issued by the government, to be consistent with the spelling of the claimant's name on other government issued documents, like the Registration of Birth. The panel draws a negative inference from the different spelling of the claimant's name on the Voter's card. [73] The Voter's card indicates the occupation of the claimant as "XXXX". The claimant explained that she worked as a "XXXX XXXX" prior to getting married (age 18).52 The panel does not find her explanation reasonable, as the Voter's card was issued on January28, 2011, when the claimant was approximately 43 years old. Furthermore, she is contradicted by her own testimony "I never worked in Nigeria...",53 "I did not work.".54 Which is, in turn, contradicted by her evidence in the work history in the PIF,55 indicating the claimant was "owner/operator of an XXXX, from 2002 to 2012... self-employed... in Logos Nigeria".56 When asked to explain the contradictory evidence, she testified that "I never operated as a XXXX XXXX XXXX and XXXX XXXX".57 She further testified that she helped at the church, as she does in Canada, and also helped as a XXXX. The panel does not accept the claimant's explanations as persuasive. The panel finds it is not reasonable that, on a balance of probabilities, the card issued to the claimant when she was allegedly about 43 years old to indicate the claimant's occupation from when she was about 18 years old. The panel draws a negative inference with respect to the claimant's occupation on the Voter's card. [74] In view of the cumulative effect of the issues regarding the Voter's card, the panel finds the Voter's card, on a balance of probabilities, is fraudulent and is not a reliable identity document. Education [75] The claimant testified at the hearing that she had two years of elementary education. This contradicts her evidence in the PIF, stating that she has six years of education, at the XXXX XXXX XXXX Primary school from XXXX XXXX XXXX in Logos.58 The claimant explained that "I never went to school"... "It's only in Canada that I attended... I didn't go to the school mentioned ...because my parents, they did not have money...59 The panel does not accept the claimant's explanation as persuasive, given that the claimant had benefit of counsel, a Barrister and Solicitor, and an Igbo interpreter when she signed and declared that the content of the PIF is true and correct on November 29, 2012.60 The panel finds the claimant has misrepresented her profile. [76] Furthermore, although an addendum was provide to the narrative of the PIF, no corrections or addendums were provided regarding the questioned sections of the narrative. The panel draws a negative inference regarding the claimants' evidence on education, which is not credible. [77] The panel does not find the claimant's evidence regarding her education to be credible. Driver's Licence [78] In support of the claimant's identity, a National Driver's licence, issued on XXXX XXXX XXXX XXXX2011,61 was proffered to Immigration Canada. The claimant testified that she never drove in Nigeria "I no got money, (inaudible) drive a car. Don't drive a car I don't know -- I don't know what thing you call driving licence"62. After putting the question to her several times and showing her the copy of the document on file, the claimant testified that she remembered "I never drive -- I never drive, but I have driving licence."63 The claimant explained that she was issued a Driver's Licence despite the fact that she did not know how to drive because she intended to learn how to drive. She further testified that it was obtained by her common-law spouse, and she did not know how he obtained it. The panel does not accept that, on a balance of probabilities, a driver's licence would be issued to a person who wished to learn driving, and draws a negative inference in this respect. [79] The claimant testified that the signature on the Driver's Licence is not hers, as she only signs with her initials "XXXX"64 or "XXXX XXXX XXXX XXXX XXXX."65 The panel draws a negative inference from the fraudulent signature on the Driver's Licence. [80] The Driver's Licence was issued to XXXX XXXX, the claimant was asked to explain the inconsistency between the name on the Driver's licence and her name XXXX XXXX XXXX, and she explained that XXXX was her common-law husband's name. The panel does not accept the claimant's explanation as reasonable, as it is contrary to her evidence that she only has one name XXXX XXXX XXXX. The panel draws a negative inference in this respect. [81] The claimant testified that, in 2011, she lived at XXXX Street. However, the address on the Driver's licence indicated the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX LAGOS address. The claimant was asked if she knew the address, however, she speculated "Maybe that is the office that they did the licence".66 The panel is not persuaded by the claimant's explanation. It is reasonable to expect for the Driver's Licence to show the address of the claimant as "XXXX Street". The panel draws a negative inference in this respect. [82] The claimant testified that she was not present when the Driver's Licence was issued. The claimant was asked to explain how her picture got on the Driver's Licence when she was not there. The claimant explained that "How he got my picture, somebody I'm living with, he knows me, he has my picture. He has my pictures. That was when we were still dating, everything was going well..."67 The panel does not accept the claimant's explanation as persuasive or reasonable, given the claimant's original response that she did not even know what a Driver's Licence was. It is reasonable to expect that, if the claimant is alleging that she was learning how to drive, she would know what a driver's Licence is. The panel draws a negative inference in this respect. [83] The documentary evidence68 indicates the following: [t]he applicant for driver's Licence "must also provide a signature on a signature mandatory card," which is then scanned into a database and displayed on the driver's licence. The applicant must provide two passport photographs that will also be scanned into the database and displayed on the driver's licence (ibid.). Once the application has been processed and the documents verified, the driver's licence is mailed to the applicant's "residential or chosen mailing address" (ibid.). Applicants "can never obtain an on the spot drivers licence because the application must be processed" (ibid.). [84] In view of the cumulative issues noted above with respect to the Driver's licence proffered, and coupled with the country documents, the panel finds that the driver's licence, on the balance of probabilities, is fraudulent and is not a reliable identity document. Siblings [85] The claimant's testimony regarding her siblings was convoluted and inconsistent with the information in her PIF.69 The claimant was asked to list her relatives, living or dead... Brothers and sisters, including half-brothers and half-sisters. The claimant only entered three names, two brothers and one sister. However, she testified that she has eight half and full siblings, including XXXX, XXXX (who is deceased), XXXX, XXXX or XXXX, and XXXX. Which is contrary to information contained in the PIF, indicating only three siblings XXXX (brother), XXXX (brother), and XXXX (sister). [86] The claimant testified that XXXX was "my uncle",70 and XXXX was her "cousin".71 Which is contrary to her PIF. The claimant was asked the reason XXXX was omitted from the PIF, and the claimant explained that "... there was no particular reason why they were not listed...The ones listed are the ones I was able to remember."72 [87] The panel notes that when the claimant completed the PIF she did have the assistance of a counsel and an interpreter. The claimant completed the PIF on November 29, 2012. There was no evidence before the panel that, at that time, the claimant had any memory issues. The claimant first saw the psychologist approximately six months after the PIF was completed, on XXXX XXXX XXXX 2013. The psychologist, during her typically 60 minute73 interview of the claimant, stated in part that the claimant [C]ooperated fully, she stablished full eye contact and responded directly to the question...She developed a headache. Concentration problems rendered it difficult to focus. At times her mind went blank...has become somewhat distracted and forgetful, e.g [she] confuses dates and details of past events, she requires time to recall the name of people she knows well....".74 [88] The doctor's report indicates that the claimant was assessed on XXXX XXXX, 2018.75 It states that, in part, the claimant, [E]xperiences with symptoms of consistent with cognitive decline... her memory appears to fluctuate...she suffers from dementia, mild severity and anxiety disorder...she will be prone to emotional dysregulation, memory lapses , impaired processing and decision making, disorganized thinking, and confusion."76 [89] Given the above psychologist reports, the panel finds on the balance of probabilities, her testimony regarding her siblings is not reliable evidence. [90] In view of the two above noted medical reports, the panel concludes that the claimant's testimony regarding her siblings is not reliable enough to base a determination regarding the claimant's identity. [91] The panel observed that, despite the medical reports, the claimant had full appreciation of the nature of the proceedings. She was able to recall her name, date of birth, information learned at school in Canada, her work at the church in Canada, the alleged reason she had come to Canada, who she fears and why she fears if she were to be deported from Canada. The panel observed, and supported by the transcript, that the issue of memory and convoluted testimony arose predominately during the questioning with respect to her documents, who and where they were obtained, when and how she received the Voter's ID card, Driver's licence and Registration of birth, who proffered them to immigration Canada when she made an asylum claim, and her family composition. Certificates of Birth and Registration of Birth [92] The claimant proffered three Certificates of birth (CB)77 for her children. [93] The CB for XXXX XXXX, was issued on XXXX XXXX, 2004, when she was born on XXXX XXXX, 1995. Furthermore, the name of the mother is written as XXXX XXXX XXXX, which is contrary to the claimant's testimony, stating that her name is XXXX XXXX XXXX. It is reasonable to expect the authorities to spell the claimant's name as XXXX not XXXX. It bares the stamp of the National Population Commission and the Public registry of Nigeria. The panel draws a negative inference regarding the claimant's name on the documents. [94] The CB for XXXX XXXX, was issued on XXXX XXXX, 1997, when he was born on XXXX XXXX, 1994. The name of the mother is entered as XXXX XXXX XXXX. It is reasonable to expect the name of the claimant to be written correctly, and not reverse the middle name and the first name of the claimant. The claimant's name is also spelled as XXXX not XXXX. It bares the stamp of the National Population Commission and the Public registry of Nigeria. The panel draws a negative inference regarding the claimant's name on the documents. [95] The CB for XXXX XXXX, was issued on XXXX XXXX, 1999, when he was born on XXXX XXXX, 1999. The name of the mother is written as XXXX XXXX XXXX instead of XXXX XXXX XXXX. It bares the stamp of the National Population Commission and the Public registry of Nigeria. The panel draws a negative inference regarding the claimant's name on the documents. [96] The claimant also proffered three Registrations of Birth78 in support of her identity. In all three, the name of the claimant was written as XXXX XXXX XXXX instead of XXXX XXXX XXXX. The panel draws a negative inference regarding the claimant's name on these documents. [97] The documentary evidence79 indicates the following, Nigeria is a highly bureaucratic society where citizens are required to obtain and routinely produce a variety of official documents. These are often in the form of paper originals that are signed/stamped by local government and other officials. Because these documents typically lack basic security features (e.g. watermarking), they are easily forged. Because of the high prevalence of official corruption, however, it is also possible to fraudulently obtain genuine documents in exchange for a bribe. This makes it difficult to determine the authenticity of a specific document. According to sources, documentation fraud is highly prevalent in Nigeria. ...that document fraud can occur through the falsification of an entire document; the partial falsification of a document; the use of false information to obtain genuine documents; impersonation, where one person assumes the identity of another (deceased or alive; with or without the person's consent); and renting out documents to someone else. [98] The panel is mindful of documentation fraud in Nigeria, therefore, the panel does not assign any probative value to these documents given that there are different spelling of the claimant's name. Furthermore, it is reasonable for all CB to have both stamps, while one is missing a stamp, as they were issued on the same form and by the same agency. [99] There were no copies of the identity cards of the claimant's alleged children proffered. It is reasonable to expect that such documents would be available and accessible to the claimant to have accompanied the Certificates of Birth, and Registrations of Birth when it was mailed by DHL80 to Canada. [100] Therefore, the panel finds that these documents are not reliable sources to make a determination regarding the claimant's identity and citizenship. Affidavits [101] The claimant, in support of her identity, proffered four affidavits. [102] Affidavit of XXXX XXXX XXXX,81 alleges to be the claimant's sister. However, the affidavit does not provide any tomb stone data of the claimant. Furthermore, there is no evidence regarding the authors or the claimant's citizenship. The panel acknowledges that the author resides in Port Harcourt, River State, Nigeria, however, there is no evidence before it that she is a citizen of Nigeria, absent a copy of her pictured identity card which is available and accessible to the claimant. [103] Affidavit of XXXX XXXX,82 alleges to be the claimant's son. However, the affidavit does not provide any tomb stone data of the claimant. Furthermore, there is no evidence regarding the authors or the claimant's citizenship. Additionally, the street name on the affidavit is the same as the claimant's Voter's ID Card. Having found that the claimant's ID card is fraudulent, no probative value is assigned to the affidavit. [104] Affidavit from XXXX XXXX,83 alleges to be the claimant's brother. He provides information regarding the claimant referring to the claimant's registry of birth. Having found earlier that, on a balance of probabilities, the claimant's Registration of Birth is a fraudulent document, no probative value is assigned to this affidavit. [105] Affidavit of the XXXX XXXX,84 alleges that he is the pastor of the church the claimant attended in Nigeria. He states that he knows the claimant and is aware of her marital problems, however, it makes no reference to the claimant's citizenship or residence address in Nigeria, the information required to make a finding of the claimant's identity and citizenship. [106] As noted above, the panel is mindful of documentation fraud in Nigeria, therefore, the panel does not assign any probative value to the four affidavits. Which were not accompanied by any picture ID documents to establish the identity and citizenship of the authors. It is reasonable to expect that such documents would be available and accessible to the claimant to have accompanied the Certificates of Birth, and Registrations of Birth when it was mailed by DHL to Canada. [107] Therefore, the panel finds these affidavits are not reliable sources to make a determination regarding the claimant's identity and citizenship. [108] Furthermore, the mere fact that all these documents were mailed via DHL from Nigeria, does not substantiate that the claimant is from Nigeria, or is a citizen of Nigeria. Knowledge [109] Claimant's knowledge of Nigeria was limited. She testified that Nigeria had 55 states, which is contrary to the documentary evidence indicating that it has 36 states.85 She further described the area she lived was in the bush, and that Lagos was a large city. Given the claimant's limited education, and the doctors' reports, the panel cannot base an identity finding based on her limited knowledge of Nigeria. Language [110] The panel notes that the claimant had knowledge of the English language. During the hearing, at times, she replied and provided her evidence in the English language. The panel also notes, that an Igbo interpreter was present at the hearing and the claimant provided her testimony in the Igbo language. However, the panel finds that the ability to communicate in the Igbo language is insufficient to make a finding that the claimant is from Nigeria, noting that Igbo is also spoken in, Equatorial Guinea [west coast of Central Africa], Sierra Leone [southwest coast of West Africa] and Ghana [West Africa]".86 CONCLUSION [111] Having considered the totality of the evidence, the panel finds the claimant has failed to provide sufficient credible trustworthy evidence to establish her identity and citizenship. Given that the identity of the claimant, including nationality, has not been established, the panel will not analyze the merits of the claim. DECISION [112] The panel, therefore, finds that the claimant, XXXX XXXX XXXX is neither a Convention refugee under section 96, nor a person in need of protection under subsection 97(1) of the IRPA. [113] The claim is therefore rejected. (signed) "Fahimeh Mortazavi" Fahimeh Mortazavi May 29, 2019 Date 1 Exhibit 2, PIF, at p. 2, question 1(g). 2 Ibid, question 1(h). 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1). 4 Exhibit 9. 5 Refugee Protection Division Rules, SOR/2012-256. 6 Exhibit 14, Application for recusal. 7 Exhibit 14, cover sheet. 8 Exhibit 14, at p. 1. 9 Ibid. 10 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1S.C.R. 369 at 394. 11 Lameen, Ibrahim v. S.S.C. (F.C.T.D., no. A-1626-92), Cullen, June 7, 1994 12 Khatun, Nasima v. M.C.I. (F.C.T.D., no. IMM-5171-99), O'Keefe, May 30, 2001; 2001 FCT 555. 13 Cheng, Yong v. M.C.I. (F.C.T.D., no. IMM-2726-98), Teitelbaum, April 23, 1999. 14 Exhibit 14, at p. 2. 15 Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, at para. 2. 16 Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 76. 17 Ali, Sulaman v. M.C.I. (F.C.T.D., no. IMM-5653-01), Tremblay-Lamer, October 2, 2002. 18 Exhibit 7; Exhibit 10, at p. 19. 19 Guideline 8: Guideline Concerning Procedures with Respect to Vulnerable persons Appearing before the IRB: Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, December 15, 2006; amended December 15, 2012. 20 Exhibit 14, at p. 3. 21 Exhibit 14, p3. 22 Exhibit 15, at p. 19. 23 Exhibit 7; Exhibit 10, at p. 19. 24 Exhibit 2, PIF. 25 Exhibit 6, Amended Narrative. 26 Exhibit 1, Package of information from the referring CBSA/CIC. 27 Exhibit 10, item 1, at p. 1. 28 Ibid, at p. 2-9. 29 Ibid, at p. 10-18. 30 Husein, Anab Ali v. M.C.I. (F.C.T.D., no. IMM-2044-97), Joyal, May 27, 1998. 31 Yip, Fu On v. M.E.I. (F.C.T.D., no. A-921-92), Nadon, October 27, 1993; Su, Sai v. Canada (M.C.I.), 2021 FC 743, at para. 4. 32 Immigration and Refugee Protection Act, Section 106 and Subsection 100(4). 33 Ibid. 34 Refugee Protection Division Rules, SOR/2012-256. 35 Su, Sai v. Canada (M.C.I.), 2012 FC 743, at para 4. 36 Duale, Mohamed Aden v. M.C.I. (F.C., no. IMM-6712-02), Dawson, January 30, 2004, 2004 FC 150, at para 19 (3). 37 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, reedited Geneva, January 1992, Section 205(ii). 38 Orelien, Joseph v. M.E.I. (F.C.A., no. A-993-90), Heald, Mahoney, Stone, November 22, 1991. Reported: Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.). 39 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 40 Hassan, Jamila Mahdi v. M.E.I., (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992. Reported: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). 41 Exhibit 2, at p. 1, question 1. 42 Exhibit 1. 43 Exhibit 9, at p. 2, para. 8. 44 Ibid, at p. 3, para. 11. 45 Ibid, para. 12. 46 Ibid pragraph15, p3. 47 Exhibit 3, National Documentation Package (NDP) for Nigeria (December 21, 2018), item 1.23. 48 Exhibit 2, at p. 2, q. 1(b). 49 Exhibit 2, at p. 3, q. 3. 50 Exhibit 15, at p. 27. 51 Exhibit 10, item 1, at p. 1. 52 Exhibit 15, at p. 18. 53 Ibid, at p. 19, para. 45. 54 Ibid. 55 Exhibit 2, at p. 4, q. 7. 56 Ibid. 57 Exhibit 15, at p. 20. 58 Exhibit 2, at p. 4, q. 6. 59 Exhibit 15, at p. 18. 60 Exhibit 2, at p. 13. 61 Exhibit 1. 62 Exhibit 16, at p. 39. 63 Ibid, at p. 41. 64 Exhibit 1, IMM 5611, Declaration section. 65 Exhibit 6. 66 Exhibit 16, at p. 47. 67 Exhibit 16, at p. 49. 68 Exhibit 3, (NDP) for Nigeria (December 21, 2018), item 3.6, s. 2.1. 69 Exhibit 2, q. 4 (iv). 70 Exhibit 16, at p. 13. 71 Ibid, at p. 13. 72 Ibid, at p. 14. 73 Exhibit 10, item 7. 74 Ibid, at p. 3. 75 Exhibit 7. 76 Ibid. 77 Exhibit 10, at p. 2- 4. 78 Ibid, at p. 6, 7, 9. 79 Exhibit 3, (NDP) for Nigeria (December 21, 2018), item 3.11. 80 Exhibit 10, item 8, at p. 24. 81 Ibid, item 4, at p. 13-14. 82 Ibid, item 3, at p. 10-12. 83 Ibid, item 5, at p. 15-16. 84 Ibid, item 6, at p. 17-18. 85 Exhibit 3, (NDP) for Nigeria (December 21, 2018), item 1.23. 86 Wikipedia, https://en.wikipedia.org/wiki/Igbo_language. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.29.1 (August 31, 2012) RPD File No. / N° de dossier de la SPR : TB2-13682