MB6-00147

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 File No. / No de dossier de la SAR : MB6-00147 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant The Minister of Public Safety and Emergency Preparedness Appelant Respondent XXXX XXXX XXXX Intimé Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 21, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the respondent Me Vincent Desbiens Conseil de l'intimée Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Gabriele Spina Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] The Minister of Public Safety and Emergency Preparedness (the Minister) is appealing against the decision to allow the respondent's refugee protection claim. He submits that the decision of the Refugee Protection Division (RPD) to the effect that the respondent's identity was established is unreasonable. [2] XXXX XXXX XXXX, the respondent, presented arguments in response to the Minister's appeal. II. DETERMINATION OF THE APPEAL [3] Under section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the RPD's determination and substitutes the determination that should have been made, that is, that XXXX XXXX XXXX did not establish his identity and, consequently, is not a refugee under section 96 of the IRPA or a person in need of protection under section 97 of the IRPA. III. BACKGROUND A. Summary of the alleged facts [4] In the Basis of Claim Form (BOC Form) that he signed on March 25, 2015,1 the respondent declares that his name is XXXX XXXX XXXX (he is also known by the first name XXXX), that he was born on XXXX XXXX, 1992, in XXXX in Guinea-Conakry, and that he is a member of the XXXX ethnic group. He also declares that an aunt helped him come to Canada because he was hiding in Mali and that she was the one who had taken all the steps to obtain a Malian passport and a Canadian visa under the identity of XXXX XXXX, born in XXXX on XXXX XXXX, 1988, which he used to come to Canada.2 [5] Since this appeal focuses exclusively on the issue of whether the RPD erred in finding that the respondent established his identity, the panel is limiting its summary of the content of his BOC Form to this question alone. [6] Besides his BOC Form, the respondent, then known as the claimant, submitted other documents as evidence before the RPD.3 B. Minister's intervention before the RPD [7] The Minister intervened before the RPD and submitted a number of documents as evidence.4 [8] In his Notice of Intervention, the Minister informed the RPD that he intends to intervene, commented on the analysis reports that he submitted as evidence, and requested that it conclude that the refugee protection claim undermines the integrity of the Canadian refugee protection program and that the claim is manifestly unfounded.5 C. RPD decision [9] The hearing was held before the RPD on May 29 and September 24, 2015, and the decision to allow the refugee protection claim was rendered on December 14, 2015.6 [10] In its reasons for decision, the RPD indicated that what drew the Minister's attention is the fact that the claimant was known under three identities, two Malian and one Guinean. It then referred to the claimant's testimony, according to which he spent almost XXXX months in Mali, namely, from XXXX 2013 to XXXX 2014, and that it was in this country that he illegally obtained two Malian passports so that he could leave Africa. That said, his testimony was to the effect that his name is XXXX XXXX XXXX and that he was born on XXXX XXXX, 1992, in XXXX, Guinea.7 [11] The RPD then indicated that it was satisfied with the claimant's responses regarding Guinea-Conakry. It indicates the following on this topic: [translation] [17] Therefore, I wanted to test his knowledge of Guinea-Conakry, his country of birth, as he stated. The claimant knows his country's national anthem, knows its general history, and is familiar with the capital, Conakry, where he states he grew up. He can also describe and locate important sites in Conakry (he named and located the two large soccer stadiums and major parks, which the panel verified using the maps in the National Documentation Package and Google Maps). Moreover, as the interpreter is also certified to speak this language, it was noted that he is fluent in Susu, the most spoken language in Conakry, but not in Bamako or in Mali in general. It was also noted that he has also been very active on a Facebook page under the name XXXX XXXX XXXX from Conakry since at least 2012. The Minister's evidence does not include any Facebook pages under the two Malian names with a photograph of the claimant, who states that he has never had a Facebook page under those two names. [18] In light of this testimony, he established that he is from Guinea-Conakry and not from Mali. At the same time, he established the credibility of his explanation that the Malian identities obtained in winter and spring 2014 are false and had a single purpose: to get him out of Africa and into North America, that is, Canada or the United States. [19] I attribute considerable importance to this testimony. As the Federal Court states, a finding on the citizenship of an individual cannot be made simply based on documents while setting aside the context, especially when an individual comes from a part of the world where corruption is pervasive, where trafficking of all sorts of documents and even passports is flourishing, and where the quality of identity documents is often lacking. In this context, the panel must look at all the evidence, especially including the claimant's testimony.8 [12] With regard to the claimant's national identity card, the RPD took into account the expert report indicating that, while the document's substrate is authentic, the photograph has been substituted, as well as the documentary evidence, which indicates that official documents in this part of the world are not perfect, that they do not always comply with standards and that, over time, they may become damaged. It also considered the fact that, according to the RCMP, the fingerprint on this card corresponds to the one given by the claimant here in Canada. Finally, it considered the claimant's testimony that this national identity card is indeed his and that it is authentic, and concluded that this added to the evidence, which includes a civil status registry excerpt, a residence certificate and an education booklet, to the effect that the claimant is indeed the person he is claiming to be.9 [13] With regard to the existence of a Guinean passport issued in the claimant's name, the RPD took into account the fact that the claimant did not deny its existence and the fact that a biometric comparison of his fingerprints by the British authorities yielded a match under the same identity. Therefore, it concluded that this passport in the claimant's name, which includes his birth date, and his fingerprints, adds to the evidence that he is indeed the person he is claiming to be.10 [14] With regard to the existence of Malian passports issued for the claimant, but under two different identities, the RPD found his explanations credible and pointed out that, according to its specialized knowledge, refugee protection claimants often use false passports to travel to Canada in order to save their lives and find protection here.11 [15] Hence its conclusion that, following a detailed analysis of the evidence and on a balance of probabilities, the claimant had established his identity.12 [16] Since this appeal focuses exclusively on the issue of whether the RPD erred by concluding that the respondent had established his identity, the panel is limiting the summary of the decision to this issue alone. D. Grounds of appeal and decision sought [17] In his memorandum, the Minister submits that the respondent's identity was not established and that the RPD's finding in this regard is unreasonable.13 [18] The Minister submits more specifically that the RPD's findings regarding the respondent's identity are mainly based on his testimony even though there was a lack of credibility on a central aspect of the refugee protection claim.14 [19] He provides examples where the respondent's testimony lacked credibility.15 [20] He refers to the analysis reports submitted as evidence indicating that the Malian passport was probably authentic and unaltered and that the national identity card from the Republic of Guinea was authentic, but altered, as the photograph had been substituted.16 [21] The Minister submits that the RPD erroneously set aside the analysis report while taking into account the fact that corruption is pervasive in Guinea, that documents there are not always perfect and that the respondent cooperated with the agency and gave consistent testimony.17 [22] He adds that the RPD did not explain why the decision was made to verify the respondent's knowledge of Guinea and not Mali, even though he had used two Malian identities, including one corresponding to his fingerprints. In his opinion, having knowledge or speaking the language of a country does not amount to being a citizen.18 [23] In conclusion, the Minister submits that the respondent's testimony played a big role in establishing his identity, but, at the same time, his testimony lacked credibility overall. In his opinion, the respondent did not establish whether he is Malian or Guinean because at least one of the passports, which he stated was obtained fraudulently, seems authentic and the national identity card from Guinea has been altered.19 [24] Consequently, he is requesting that the RAD set aside the RPD's determination and substitute the determination that should have been made, namely, that the respondent did not establish his identity and that his refugee protection claim must be rejected. Alternatively, he is requesting that the matter be referred to the RPD if it is established that the decision is erroneous in fact but that the RAD cannot set aside the determination and substitute the determination that should have been rendered without hearing the evidence presented to the RPD.20 [25] In a written statement, the Minister indicates that he is not relying on any evidence described in subsection 110(3) of the IRPA and that he is not requesting that a hearing be held before the RAD.21 E. Response of the respondent [26] In his memorandum, the respondent submits that, before the RPD, he demonstrated his identity on a balance of probabilities, and that the RPD member's findings are reasonable.22 [27] In response to the Minister's criticisms that the RPD member believed his testimony regarding his identity even though she doubted certain aspects of his narrative, the respondent submits that a member of the RPD may believe an individual with regard to certain parts of his testimony and not believe him regarding other parts of his testimony.23 [28] He also submits that it is false to claim, as the Minister did, that there is nothing in the RPD's decision indicating that the credibility of his testimony is a determinative factor. His lawyer writes the following on this topic: [translation] 7. From the start of her reasoning at paragraph 16, the member addresses the issue of credibility. She finds that if the respondent can demonstrate that he is a citizen of Guinea, his explanations regarding his identity will thus be credible. 8. In the next paragraph, she explains the reasons why she considers that the respondent established his Guinean origin: - In-depth knowledge of the country (national anthem, general history, geographic location); - Spoken language, namely, Susu, which is spoken in Guinea but not in Mali in general; - Presence of a Facebook account under his Guinean identity since 2012. 9. In the next paragraph, the member addresses the respondent's credibility once again. She is of the opinion that he established the credibility of his explanation regarding the Malian identities. 10. She points out that she "is attributing great deal of significance to this testimony". She explains that identity must be assessed while bearing in mind the context and not only on the basis of the documents. The context includes all the evidence, particularly the respondent's testimony. 11. In paragraph 23, she states explicitly that she finds the respondent's testimony credible regarding his national identity card. 12. Moreover, she finds, in paragraph 28 of her decision, that the respondent's explanations regarding the Malian passports are credible.24 [29] Finally, the respondent submits that the RPD's decision is complete, logical and detailed, and that it addresses a number of relevant pieces of evidence. In his opinion, the Minister quite simply disagrees with the member's analysis and with the weight attributed to the various pieces of evidence, which does not, however, mean that the decision is unreasonable.25 [30] In conclusion, the respondent is requesting that the RAD dismiss the appeal and maintain the RPD's determination.26 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. The position of the Minister [31] In his memorandum, the Minister does not specify the approach to be taken as part of his appeal. However, he submits that his appeal focuses on a question of fact, and that the RPD's finding that the respondent's identity was established is unreasonable.27 B. The position of the respondent [32] In his memorandum, the respondent submits that the RAD must show deference to the RPD's credibility findings given that it had the opportunity to see, question and hear the respondent.28 C. A brief summary of the Federal Court of Appeal's decision in Huruglica [33] Following an exhaustive analysis of the legislative history and various arguments used to date, in a long-awaited decision, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.29 It also states that an appeal before the RAD is not a true de novo proceeding.30 It also clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.31 [34] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.32 D. Independent assessment to correct the errors identified by the Minister [35] Drawing on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD, namely, where applicable, correcting any errors that, according to the Minister, may have been made by the RPD33 and rendering the determination that should have been made.34 [36] Therefore, I am of the opinion that, in this case, I must justify whether it is appropriate to show a degree of restraint or deference to the RPD's findings regarding the respondent's credibility based on his testimony, with the understanding that I did not hear this oral testimony.35 V. ANALYSIS OF THE MERITS OF THE APPEAL [37] Having conducted my own analysis of the record, I am of the opinion that the RPD erred when it concluded that the respondent established his identity. Here is why. A. Identity principles [38] According to the case law, the issue of whether a person who is claiming refugee protection established his identity is a question of fact and credibility.36 [39] In Kaur, Justice Shore writes: The reasons of the Board, in respect of the claimant's absence of bona fide original identity documents "in conformity with the Subsection (sic) 106 of" IRPA would lead one to think that section 106 provides the criteria for proving one's identity. In reality, section 106's primary focus is on credibility. What section 106 basically states, is that the claimant has the burden of proving his or her identity and if he or she fails to do so in a satisfactory manner, this can affect credibility; such wording is preferable to avoid confusion about the purpose of section 106 of IRPA.37 [40] In Hodanu, Justice Rennie writes: Under section 106 of the IRPA, the Board must assess the applicant's credibility in cases where the applicant has failed to provide the Board with adequate identity documents.... Section 106 of the IRPA requires that an applicant's credibility be assessed in light of his or her failure to provide adequate identity documents.38 [41] According to the case law, the claimant bears the onus of establishing, on a balance of probabilities, that they are indeed the person they claim to be,39 as identity is crucial to any refugee protection claim.40 [42] In light of section 106 of the IRPA and rule 11 of the Refugee Protection Division Rules41 (RPD Rules), the claimant has a high onus to produce acceptable documentation establishing his identity.42 If he is unable to do so, he must explain why and what steps he took to obtain it.43 Rule 11 of the RPD Rules is undoubtedly more explicit on this subject than section 106 of the IRPA, as it clearly sets out a refugee protection claimant's obligation to provide acceptable documents establishing their identity and other elements of the claim. The English version has been found to speak more directly than the French in this regard: "The claimant must provide acceptable documents establishing their identity and other elements of the claim."44 It must be noted, however, that in French the use of the present indicative, including in a federal statute, is sufficient to express the imperative nature of a rule. [43] It is settled law that it is the task of the trier of fact to weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish a refugee protection claimant's identity on a balance of probabilities.45 B. Analysis of the testimonial and documentary evidence [44] In his memorandum, the Minister submits that the respondent's testimony lacked credibility on a number of aspects, that the RPD erroneously set aside analysis reports regarding the respondent's identity documents, and that being familiar with a country or speaking the language does not equate to being a citizen. In my opinion, these arguments have merit. - National identity card [45] With regard to the analysis of the respondent's national identity card, in its reasons for decision, the RPD indicated that it took into account the expert report indicating that, although the document's substrate is authentic, the photograph has allegedly been substituted. Then, it continued its analysis and referred to the fact that the documentary evidence indicates that official documents from the countries in this region are not perfect and can be damaged over time. The RPD also took into account the fact that the fingerprint on this card matches that of the respondent and that, besides his testimony, he submitted as evidence a number of documents, including a civil status registry excerpt, a residence certificate and an education booklet, that corroborate his allegation that he is indeed the person he claims to be, namely, XXXX XXXX XXXX, born on XXXX XXXX, 1992, in XXXX, Guinea-Conakry.46 [46] In his memorandum, the Minister submits that the RPD could not come to this conclusion because the national identity card has been altered, in other words, the affixed photograph is a substitute for the original photograph.47 Moreover, the analysis report regarding this national identity card submitted as evidence before the RPD indicates that: [translation] On the photograph, there is an incomplete image of two coats of arms. These coats of arms should be underneath the laminate and not on the photograph according to the sample and available information. The laminate is counterfeit. The embossing of the letters XXXX is of poor quality and, under ultraviolet light, the security features are missing.48 [47] It should be recalled that supplying a false document can reflect on other findings regarding the credibility of the person who is the subject of the appeal.49 From the moment there is a well-founded and determinative conclusion that an official document has been altered, the presumption of the authenticity of the document in question no longer applies. It is very easy to understand that, basically, documents issued by a government authority may be genuine, but their content is no longer reliable when they are altered, in other words, their alteration is a valid reason to doubt their authenticity.50 [48] In its reasons for decision, the RPD indicated that it attributed a great deal of significance to the claimant's testimony and to the fact that the fingerprint on the Guinean national identity card matches that of the claimant. In my opinion, the RPD consequently erred. [49] First, the claimant's testimony before the RPD regarding the substituted photograph affixed on this national identity card consisted of stating that he did not know how this could have happened and that this card was issued by the government.51 Later, he stated that this card belonged to him and that he never changed the photograph.52 I do not see why the RPD attributed more weight to the claimant's testimony on this issue than to the analysis report. They completely contradict one another. [50] Then, when asked to clarify whether he was the one who went to apply for this national identity card, the claimant responded that it was not him, that he went with his uncle's wife, gave his fingerprint and, a few days later, the card was issued.53 However, according to a document in the most recent National Documentation Package on Guinea, "the process must be undertaken by the applicant in person, because the applicant's fingerprints are taken at the time the application is made and because the card is signed by the cardholder at the time it is issued".54 [51] This document was not included in the version of the National Documentation Package on Guinea used by the RPD.55 Once the most recent version of the package was disclosed as part of the appeal, the Minister's representative and the respondent were invited to present their submissions relating to this document.56 [52] The respondent first indicates that the document in question was part of the National Documentation Package on Guinea when the RPD processed the record. He submits that, in his opinion, it is this document the RPD member referred to when she found that [translation] "the documentary evidence states that official documents from this part of world are not always perfect and do not always follow standards, and that the quality of the document can deteriorate over time".57 [53] The respondent also refers to the content of document 3.1 that indicates that the criteria that, in theory, must be met to obtain a national identity card, are not applied in practice. He adds that it is very possible that the authorities did not follow the exact procedure with regard to his photograph, that one must bear in mind that Guinean authorities are not as rigorous as Canadian authorities, that they do not have the same logistical means and that this necessarily affects the following of the legal steps for obtaining official documents, including the national identity card.58 [54] The respondent then submits that, even though the M-2 expert report mentions a problem with the photograph on the national identity card, this problem can be explained by the lack of rigour. He also refers to paragraph 23 of the RPD decision, which points out that Exhibit M-17 demonstrates his fingerprints are indeed those on the national identity card. He adds that the expert report sets out that this card is authentic, that it is therefore the real card and that the presence of his fingerprints proves that it is indeed his national identity card.59 [55] With regard to the respondent's first argument, that document 3.1 of the most recent version of the National Documentation Package on Guinea was part of the same package before the RPD when it dealt with the record, it must be dismissed. A simple reading of the version that appears in the RPD's record establishes that document 3.1 regarding the national identity card was not part of the package at that time.60 However, the version of the package that appears in the RPD record includes a document prepared by the CGRA, OFPRA and ODM that indicates that the Guinean government suffers from serious dysfunction because of a lack of financial, human and material resources, management difficulties and generalized corruption, resulting in a certain number of documents-while authentic-possibly having flagrant anomalies. Moreover, in Guinea, all documents, whether they relate to justice, the police or even to civil status or identity can be purchased. The proportion of false documents in circulation in this country, all categories combined, is estimated at close to 90%.61 [56] I am of the opinion that the respondent's testimony before the RPD does not correspond to the approach as described in document 3.1 of the most recent version of the package. In fact, in his testimony before the RPD, he stated that it was not him who went to apply for the national identity card and that the card was issued a few days after his fingerprints were taken, but did not state that he had had to sign his card when it was issued. Consequently, I have difficulty understanding how his testimony could be found credible on this point. [57] Then, in his testimony before the RPD, the respondent did not present any explanations for the other anomalies identified in the analysis report, namely, the incomplete image of two of the coats of arms and the counterfeit laminate. The authority that, in Canada, produces these analysis reports is considered as having the necessary expertise and means to determine whether the documents analyzed are genuine or whether they have been altered.62 The RPD used its specialized knowledge of the conditions to the effect that, in a country like Guinea, official documents can be ruined or damaged without taking into account that there are some documents that are issued without complying with the standards that should have been followed. In my opinion, this specialized knowledge cannot overcome the analysis that, in this specific case, concludes that the security features do not appear on this national identity card. [58] Finally, I am of the opinion that the documentary evidence regarding civil status documents calls for a great deal of caution before concluding that a person has indeed established their identity when producing a national identity card with such anomalies. In fact, while it is true that an authentic document may include anomalies, it is also true that an authentic document may be obtained fraudulently, out of convenience or for a fee and, as a result, be deemed a [translation] "true-false" document. In addition to these "true-false" documents are documents that are simply false and that are circulating in the country in very large numbers.63 - The Guinean passport [59] In his testimony before the RPD, the respondent stated that it is indeed his photograph in the passport issued in Conakry on XXXX XXXX, 2012, that was submitted to the English authorities,64 but that he is not the person who applied for it and signed it, even though the signature resembles his, and that he was unaware of the existence this passport. He added that it might have been his uncle who obtained the passport for him.65 [60] In its reasons for decision, the RPD indicated that it does not believe the respondent's explanations regarding this passport. However, it concluded that the respondent knew very well that he had a Guinean passport but that he did not dare mention it at an interview with border services so as to avoid negatively affecting his claim. It was also of the opinion that the respondent probably applied for a visa at the British consulate in XXXX and that it was difficult to believe that his uncle fabricated fingerprints identical to his.66 [61] In my opinion, the RPD's finding on this specific point is absolutely not based on the respondent's testimony before it because the respondent clearly stated that he was not the one who applied for and signed this passport, and that he was unaware of its existence. In light of the testimony before the RPD, I have difficulty understanding how any probative value could be attributed to this document as the respondent himself stated that he was not the one who applied for and signed this document. Moreover, according to the documentary evidence, in Guinea, identity documents and passports issued by the government cannot be trusted.67 [62] In my opinion, the matching fingerprints do not establish that this passport is a valid document. The fingerprints that match those taken in Canada were taken in XXXX on XXXX XXXX, 2013, as part of a visa application with the British authorities.68 However, according to his testimony before the RPD, the respondent never went to Sierra Leone and it is possible that the fingerprints from his Guinean national identity card were used.69 As has already been seen, the respondent did not establish the exact circumstances in which his fingerprints were used on this national identity card, or whether he actually signed this card when it was issued. [63] In its reasons for decision, the RPD indicated that it was aware that that this Guinean passport might have been purchased fraudulently, but it found that there were too many factors supporting the identity indicated in the passport, including the other identity documents, his cooperation with border services and his consistent testimony, and consequently it concluded that this passport probably belonged to the respondent.70 [64] In my view-and I state this with all due respect-the RPD seems to have forgotten here that it is the responsibility of the person claiming refugee protection to establish their identity. However, as I have just explained, the respondent's testimony at his hearing before the RPD absolutely does not allow for the conclusion that the passport in question is authentic. - The admission certificate for the seventh-year entrance exam [65] At the hearing before the RPD, when asked to specify whether he personally obtained that certificate,71 the respondent first stated yes, then responded no. He added that he was in Canada when he saw this document for the first time because a friend had taken steps for him in Guinea to obtain it and had given the school a photograph of him.72 Furthermore, when asked to explain the stamp on the photograph that does not correspond to the one that appears on the rest of the document, the respondent stated that he did not know. He also added that, at the school, they did not have any photographs of him and that his friend might have approached his family to obtain a photograph of him,73 that his younger sister might have found some photographs that were with his uncle and then given those to his friend, and that those photographs had already been stamped.74 [66] At the hearing before the RPD, when asked to explain why this certificate was issued to him in XXXX 2012, when he was 19 years old, whereas seventh-year students are generally around 13 years old, the respondent stated that he failed the exam twice and that he was retaking it as an independent student.75 When carefully reading the respondent's BOC Form, one can see that, in 2011-2012, he finally made it to ninth year and that, at the end of his ninth year, when he was 19 years old, his uncle told him that he had studied enough.76 Later, at the hearing before the RPD, he stated that he made it as far as ninth year in school and that he stopped in 2012 because his uncle told him that, at 19, he should start working.77 These statements are not consistent with his testimony to the effect that, in 2012, he was retaking his seventh-year exam for a third time. I cannot ask the respondent to explain what appears to me to be a contradiction between these varying statements. What is certain is that it is a credibility issue, but it was not raised at the RPD hearing. According to the case law, because these statements were made by the respondent himself as part of his refugee protection claim, he was consequently aware of them and it is not necessary for me to confront him with his own contradictions.78 [67] In its reasons for decision, the RPD does not specifically analyze this certificate, but it indicated that, except for the national identity card, all the other Guinean identity documents seem consistent with the information provided by the respondent. Based on the fact that the information contained in these documents is totally consistent with the respondent's testimony, the RPD found that there is reason to attribute significant probative value to these documents because they support his allegations regarding his identity.79 [68] I have difficulty understanding how it is possible to attribute significant probative value to this admission certificate for the seventh-year entrance exam. First, because, according to the testimony of the respondent himself, he never saw this document when he was living in Guinea, he obtained this document after a friend took steps while he was in Canada and the photograph affixed on the document was provided by this friend because the school did not have any photographs of him. In short, the document as presented before the RPD does not correspond to the document that was allegedly originally issued. In other words, it was modified. Furthermore, this document does not include any security features. Finally, according to the statements in his BOC Form, in 2011-2012, the respondent was in ninth year and not in seventh year. - Civil status registry excerpt, residence certificate and school certificate [69] At the hearing before the RPD, when asked to explain why XXXX was written with an acute accent on the civil status registry excerpt,80 the respondent stated that everyone writes it as they see fit.81 When asked whether he was the one who was present to obtain the residence certificate,82 the respondent stated that he had applied and that he had given it to the school.83 When asked to clarify who had filled out the information included in the education book,84 the respondent stated that it was school management.85 [70] At the hearing, at times, the member seemed annoyed by the questions of the Minister's representative regarding the identity documents and, therefore, she sometimes interrupted the questioning.86 The member also indicated that what was important to her was to determine the respondent's citizenship, that is, whether he is from Conakry, whether he is Guinean, and she asked him questions about his knowledge of Conakry, the languages spoken there and the particularities of the city.87 [71] In its reasons for decision, the RPD did not specifically analyze these three documents, but it indicated that, except for the national identity card, all the other Guinean identity documents seem consistent with the information provided by the respondent. While recognizing that these documents could have been fabricated by anyone, based on the fact that the information contained therein matches the respondent's testimony exactly, the RPD is of the opinion that there is reason to attribute significant probative value to these documents because they support his allegations regarding his identity.88 [72] In my view, without questioning the significance of the respondent's testimony regarding his knowledge of Guinea and the fact that he speaks two of the languages that are widespread there,89 I have difficulty understanding how it is possible to attribute significant probative value to those three documents. First, the respondent stated at the hearing that, to obtain the residence certificate, he gave his application to the school. This certificate, however, was issued by the council chair of a district in the commune of XXXX. Moreover, he also stated that the information included in the school certificate was completed by school management, even though this certificate is not dated or signed and seems, rather, to have been issued by an administrative or government authority. Finally, these three documents do not include any security features. - The efforts to obtain other identity documents from Guinea [73] At the hearing before the RPD, when asked whether, following his release,90 he took steps to establish his identity, the respondent stated that it was his uncle who had his documents, that he did not want his uncle to know where he was and that he did not make any other efforts to obtain other documents.91 [74] In my opinion, the respondent's explanations on this topic are not reasonable because he clearly stated in his testimony before the RPD that a friend took steps to obtain documents for him in Guinea and that his younger sister had given this friend photographs that she had stolen from his uncle.92 In this context, one might think that at least these two people could have continued taking steps for him. - The Malian passport the respondent used to enter Canada [75] At the hearing before the RPD, the respondent acknowledged that he entered Canada on XXXX XXXX, 2014, with a Malian passport and with a visa issued by Canadian authorities. When asked to comment on the analysis indicating that this passport is authentic and unaltered,93 the respondent stated that someone else applied for this passport and gave it to him a few days before he left for Canada. He also acknowledged that the same person tried to obtain an American visa for him with another Malian passport,94 but that those steps had failed.95 [76] The RPD indicated the following in its reasons for decision about the two Malian passports: [translation] [27] The evidence shows that two Malian passports, under two different identities, were issued for the claimant. The photocopies of the two documents show the claimant's photograph. One has a Canadian visa and the other was used to apply for an American visa, which was refused. The claimant does not deny the existence of these two documents. He stated that he obtained these two authentic passports illegally through a smuggler who likely bribed a Malian government official. The smuggler also organized the American and Canadian visa applications. Because of this, the claimant stated that he obtained the Canadian visa by telling a story, that he is not the son of XXXX XXXX and that all this was a ruse to obtain the Canadian visa and leave Africa, a homophobic continent. He never met this woman, XXXX XXXX, or her so-called children and husband. None of this is true. It was all to obtain the visa, he stated. [28] These explanations are credible. This would not be the first time a refugee protection claimant allegedly illegally obtained passports to come to Canada or the United States. With 10 years of experience at the RPD, my specialized knowledge allows me to state that pretexts for obtaining a Canadian or American visa are frequently used in order to exit one's country, save one's life and find refuge.96 [77] Clearly, the RPD found the respondent's explanations about these two Malian passports credible. It is true that one must bear in mind that a person who claims refugee protection might have travelled using false documents and that their explanations on this topic may be credible in light of all the circumstances that led them to flee their country of origin.97 [78] However, the Minister's criticism in this regard is that the RPD did not verify whether the respondent was a Malian citizen.98 Listening to the recording of the hearing before the RPD reveals that the member did not actually ask the respondent any questions to verify whether he was also familiar with XXXX, whether he spoke one of the numerous languages spoken in Mali and whether, finally, he might be not only a Guinean citizen, but also a Malian citizen. It is true, however, that nothing prevented the Minister's representative from asking these questions herself. Regardless, in this case, I am of the opinion that it was essential for the RPD to verify whether the respondent was a Malian citizen even though she believed that he was a Guinean citizen. C. The level of deference or restraint to give to the RPD's findings [79] The issue of whether a person who claims refugee protection has established their identity is a question of fact and credibility. Because no new evidence was submitted as part of this appeal, I cannot hold a hearing where questions about the respondent's identity may be raised.99 Consequently, I am not able to hear his oral testimony on these specific issues. In this case, there was a hearing before the RPD only. It is well established that, with issues of credibility, the decision-makers who see and hear witnesses during a hearing have an overwhelming advantage that a written transcript cannot replicate. This advantage stems from the ability to assess the demeanour of the witness, that is, to see how the person gives evidence and responds to cross-examination.100 [80] In this case, which does not involve criminal law, I still benefitted from more than a mere transcript because I listened to the recording of the hearing before the RPD. However, the fact remains that I did not benefit from the advantage of a hearing at which the claimant is heard orally. [81] In Huruglica, Justice Gauthier clearly indicates that, when faced with the advantageous position the RPD may have had when its findings of fact rely on the assessment of the credibility or the weight of oral testimonies, the RAD must assess whether these circumstances, in this particular case, warrant a degree of deference or restraint on its part.101 [82] When the RPD or the RAD assesses the testimonial and documentary evidence regarding the identity of a person who is claiming refugee protection, it must come to a conclusion based upon the totality of this evidence.102 [83] The situation in this case is as follows: the RPD member found that the respondent's testimony was essentially credible on the issue of his identity. However, when analyzing the testimonial and documentary evidence, I conclude that she erred. [84] First, I found that, on a few occasions, the RPD member did not rely on what the respondent actually stated at the hearing before her; or, she was unaware that the respondent had made contradictory statements on the same topic; or, again, the respondent's testimony alone was not a reasonable explanation given an analysis report that concluded that there were major anomalies in several of the identity documents. Then, I found that the RPD member attributed probative value to documents even though there were a number of contradictory factors. Finally, I found that she did not analyze the issue of whether the respondent might also be a Malian citizen in addition to being a Guinean citizen. [85] In light of the case law, having conducted a comprehensive analysis of the testimonial and documentary evidence in this case, I am of the opinion that the circumstances do not warrant showing restraint or deference on my part toward the RPD's findings based on its assessment of the credibility or the weight of the respondent's oral testimony before it. D. There is no cause to refer the matter to the RPD [86] In his memorandum, the Minister asks the RAD to set aside the RPD's determination and substitute a determination declaring that the respondent did not establish his identity, or to refer the matter to the RPD. [87] In Huruglica, the Federal Court of Appeal indicates that there might be cases where it is preferable to refer the matter to the RPD: [69] I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.103 [88] In light of the errors committed by the RPD in the assessment of the respondent's oral testimony before it and his identity documents, I am of the opinion that there is cause to set aside its determination. [89] Given the above, am I in a situation where I may substitute my own determination for that of the RPD? As I indicated previously, I cannot hold a hearing because no new evidence was submitted as part of this appeal. Thus, I am not able to hear the respondent's oral testimony on the issue of his identity. However, listening attentively to the testimony that he gave on this topic before the RPD has allowed me to note that, with regard to the identity documents from Guinea, his testimony included contradictions about his education, failed reasonably explain the major anomalies relating to his national identity card, and clearly indicated that he did not apply for or sign the passport issued in his name-without taking into account the fact that his possible Malian citizenship was barely analyzed. [90] I am aware that RAD members should be cautious before deciding to substitute their determination for that of the RPD.104 In the end, having conducted a comprehensive analysis of the testimonial and documentary evidence in this case, I am of the opinion that the respondent did not establish, on a balance of probabilities, that he is indeed the person he alleges to be and that, consequently, I should substitute my determination for that of the RPD. [91] Because the appellant's identity was not established there is no reason to continue the analysis of his narrative or his allegations regarding his fear of persecution or of a risk to his life, and his claim must be rejected.105 VI. CONCLUSION [92] For these reasons, I set aside the determination of the RPD and substitute the determination that should have been made, namely, that XXXX XXXX XXXX did not establish his identity and, consequently, is not a "Convention refugee" under section 96 of the IRPA, or a "person in need of protection" under section 97 of the IRPA. [93] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette October 21, 2016 Date IRB translation Original language: French 1 Respondent's BOC Form, pages 17 to 38 of the RPD record. 2 Idem, at paragraphs 1 to 3, page 25 of the RPD record. 3 The list of these documents is reproduced at pages 177 and 178, 235 and 330 of the RPD record. The documents themselves are reproduced at pages 179 to 232, 238 to 328 and 334 to 365 of the RPD record. 4 The list of these documents is reproduced at pages 371 and 525 of the RPD record. The documents themselves are reproduced at pages 373 to 523 and 527 to 545 of the RPD record. 5 Amended Notice of Intervention for undermining the integrity of the program - possible identity fraud, May 20, 2015, pages 367 to 370 of the RPD record. 6 RPD's reasons and decision, December 14, 2015, pages 3 to 14 of the RPD record. Recording of the part of the RPD hearing held on May 29, 2015, 00:01 to 02:02:10. Recording of the part of the RPD hearing held on September 24, 2015, 00:01 to 04:36:45. 7 RPD's reasons and decision, at paragraphs 14 and 15, pages 6 and 7 of the RPD record. 8 Idem, at paragraphs 17, 18 and 19, pages 7 and 8 of the RPD record. 9 Idem, at paragraphs 20 to 24, pages 8 and 9 of the RPD record. 10 Idem, at paragraph 25, page 9 of the RPD record. 11 Idem, at paragraphs 26, 27 and 28, page 10 of the RPD record. 12 Idem, at paragraph 29, page 10 of the RPD record. 13 Minister's memorandum, February 1, 2016, at paragraphs 1, 2 and 3, page 16 of the appeal record. 14 Idem, at paragraph 6, page 16 of the appeal record. 15 Idem, at paragraph 8, page 17 of the appeal record. 16 Idem, at paragraph 9, page 17 of the appeal record. 17 Idem, at paragraph 11, page 18 of the appeal record. 18 Idem, at paragraphs 12 and 13, page 18 of the appeal record. 19 Idem, at paragraphs 12 and 13, page 18 of the appeal record. 20 Idem, page 18 of the appeal record. 21 Statement regarding subsections 110(3) and 110(6) of the IRPA, page 15 of the appeal record. 22 Respondent's memorandum, February 16, 2016, at paragraph 2, page 7. 23 Idem, at paragraph 5, page 8. 24 Idem, at paragraphs 7 to 12, pages 8 and 9. 25 Idem, at paragraphs 14 to 32, pages 9 to 12. 26 Idem, page 13. 27 Minister's memorandum, at paragraphs 1 to 4, page 40 of the appeal record. 28 Respondent's memorandum, at paragraph 3, page 8. 29 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, at paragraphs 36 to 103. 30 Idem, at paragraph 79. 31 Idem, at paragraph 103. 32 Idem, at paragraphs 70 to 74. 33 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, at paragraphs 30 to 34. 34 Huruglica, supra, footnote 29, at paragraphs 96, 97 and 98. 35 Daniel v. Canada (Minister of Citizenship and Immigration), No. IMM-5832-15, McDonald, September 16, 2016; 2016 FC 1049, at paragraph 11. It should be pointed out that, in this case, the RAD held a hearing on the respondent's identity following an appeal by the Minister of Citizenship and Immigration. Kayitankore v. Canada (Minister of Citizenship and Immigration), No. IMM-1189-16, Gascon, September 9, 2016; 2016 FC 1030, at paragraph 20. Marin v. Canada (Minister of Citizenship and Immigration), No. IMM-5066-15, LeBlanc, July 20, 2016; 2016 FC 847, at paragraph 31. Kivalo (Minister of Citizenship and Immigration), No. IMM-5429-15, Kane, June 28, 2016; 2016 FC 728, at paragraphs 26 and 27. Canada (Minister of Citizenship and Immigration) v. Ali, No. IMM-3148-15, Kane, June 23, 2016; 2016 FC 709, at paragraphs 35, 36, 55 and 56. 36 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-5553-05, Shore, April 6, 2006; 2006 FC 438, at paragraph 10. 37 Kaur v. Canada (Minister of Citizenship and Immigration), No. IMM-3740-04, Shore, January 25, 2005; 2005 FC 103, at paragraph 17. 38 Hodanu v. Canada (Minister of Citizenship and Immigration), No. IMM-4712-10, Rennie, April 20, 2011; 2011 FC 474, at paragraphs 10 and 22. 39 Stoliarenko v. Canada (Minister of Citizenship and Immigration), No. IMM-10358-03, Noël, November 9, 2004; 2004 FC 1578, at paragraph 8: "Identity is an essential item to be proved if the panel is to be successfully persuaded that an applicant is a refugee and that he is a person in need of protection." Mayuma v. Canada (Minister of Citizenship and Immigration), No. IMM-33-04, Beaudry, October 27, 2004; 2004 FC 1509, at paragraph 11: "It is settled law that the applicant bears the onus of establishing his identity (Harakrishna v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 810 (T.D.) (QL) at paragraph 9)." Hazara v. Canada (Minister of Citizenship and Immigration), No. IMM-5758-01, Tremblay-Lamer, December 4, 2002; 2002 FCT 1256, at paragraph 10: "This Court has held that a claimant must prove on a balance of probabilities that he is the person he claims to be (Yip v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1285)." 40 Matingou-Testie v. Canada (Minister of Citizenship and Immigration), No. IMM-5205-11, Martineau, April 3, 2012; 2012 FC 389, at paragraph 2: "Proof of the claimant's identity to the RPD's satisfaction is crucial to any refugee protection claim." 41 RPD Rules, SOR/2012-256. 42 Toure v. Canada (Minister of Citizenship and Immigration), No. IMM-2149-14, Noël, December 9, 2014; 2014 FC 1189, at paragraph 31. 43 Section 106 of the IRPA: "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." Rule 11 of the Rules: "The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them." 44 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 45 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, at paragraph 37. 46 RPD's reasons and decision, at paragraphs 20 to 24, pages 8 and 9 of the RPD record. 47 Minister's memorandum, at paragraph 9, page 17 of the appeal record. 48 M-2: Analysis report on Guinean national identity card NoXXXX XXXX XXXX XXXX XXXX pages 376 to 381 of the RPD record. 49 Osayande v. Canada (Minister of Citizenship and Immigration), No. IMM-3780-01, Kelen, April 3, 2002; 2002 FCT 368, at paragraphs 18 to 22. 50 Elhassan v. Canada (Minister of Citizenship and Immigration), No. IMM-9787-12, de Montigny, December 12, 2013; 2013 FC 1247, at paragraph 21: "Documents issued by a government authority that appear genuine on their face are presumed to be authentic unless there is a valid reason to doubt their authenticity." 51 Recording of the part of the RPD hearing that was held on May 29, 2015, 56:12 to 58:10. 52 Recording of the part of the RPD hearing that was held on September 24, 2015, 22:30 to 24:30. 53 Recording of the part of the RPD hearing that was held on May 29, 2015, 53:00 to 55:05. I add that this testimony does not correspond entirely with what the respondent stated at the interview held on June 10, 2015. On this topic, read document M-13: Interview notes of Officer XXXX XXXX XXXX dated June 10, 2015, in particular, at pages 529 and 530 of the RPD record, where he stated that he accompanied his aunt to the XXXX police station in XXXX to apply for his national identity card, unaware of the documents she had presented because she held his documents and that he simply had his fingerprints taken. 54 Immigration and Refugee Board (IRB), National Documentation Package on Guinea, May 13, 2016, Document 3.1: Research Directorate, IRB, Guinea: National identity card, including the requirements and procedure to obtain the card, time frames for issuing the card, characteristics of the card and its lamination process (2011-2014), November 25, 2014, not paginated, under heading 4: Requirements and Procedure to Obtain a Guinean Identity Card. 55 IRB, National Documentation Package on Guinea, July 17, 2015, which is reproduced at pages 79 to 91 of the RPD record. 56 Letter from Claude Mousseau, RAD case management officer, September 28, 2016. 57 Written submissions, October 13, 2016, 5 pages, at page 2. 58 Idem, page 3. 59 Idem, pages 3 and 4. 60 IRB, National Documentation Package on Guinea, supra, footnote 55, page 82 of the RPD record. 61 IRB, National Documentation Package on Guinea, July 17, 2015, Document 2.7: Office of the Commissioner General for Refugees and Stateless Persons (CGRA), Office français de protection des réfugiés and apatrides (OFPRA) [French office for the protection of refugees and stateless persons] and Federal Office for Migration (FOM), Rapport de mission en République de Guinée, 29 octobre - 19 novembre 2011 [Republic of Guinea mission report, October 29 - November 19, 2011], published in March 2012, 32 pages, pages 21, 22 and 23. 62 Minister of Citizenship and Immigration v. Kabunda, No. IMM-559-16, Shore, July 21, 2016; 2016 FC 8481, at paragraph 15: "...it appears that the CBSA has the necessary expertise and means to determine whether documents are genuine or whether they have been altered." 63 Document 2.7, supra, footnote 61, pages 21 and 22. 64 M-3: Biometric match report with the United Kingdom, pages 382 to 386 of the RPD record. 65 Recording of the part of the RPD hearing that was held on May 29, 2015, 28:50 to 33:55 and 59:45 to 01:01:30. I add that this testimony corresponds with what the respondent stated at the interview held on June 10, 2015. On this topic, read document M-13: Interview notes of Officer XXXX XXXX XXXX dated June 10, 2015, in particular, pages 528 and 529 of the RPD record. 66 RPD's reasons and decision, at paragraphs 31, 32 and 33, page 11 of the RPD record. 67 M-11: Declassified American document titled "Fraud Summary for Conakry Guinea" and French translation, pages 485 to 502, in particular page 499 of the RPD record. 68 M-3: page 383 of the RPD record. 69 Recording of the part of the RPD hearing that was held on May 29, 2015, 37:50 to 39:25. I add that this testimony corresponds with what the respondent stated at the interview held on June 10, 2015. On this topic, read document M-13: Interview notes of Officer XXXX XXXX XXXX dated June 10, 2015, in particular, page 529 of the RPD record. When asked to give the telephone number of the friend who obtained this certificate for him, the respondent stated that he did not know his number by heart but that he would check and would communicate it later, which he did. A telephone conversation took place between an enforcement officer and the friend in question. On this topic, read document M-15: Interview notes of Officer XXXX XXXX XXXX dated July 8, 2015, in particular, page 543 of the RPD record. 70 RPD's reasons and decision, at paragraph 26, page 10 of the RPD record. 71 D-7: Admission certificate for the seventh-year entrance exam, made in XXXX, XXXX XXXX, 2012, page 194 of the RPD record. 72 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:01:30 to 01:04:22. I add that this testimony corresponds with what the respondent stated at the interview held on June 10, 2015. On this topic, read also document M-13: Interview notes of Officer XXXX XXXX XXXX dated June 10, 2015, in particular, page 529 of the RPD record. 73 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:04:22 to 01:08:52. I add that this testimony corresponds with what the respondent stated that the interview held on June 10, 2015. On this topic, read also document M-13: Interview notes of Officer XXXX XXXX XXXX dated June 10, 2015, in particular, page 529 of the RPD record. 74 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:13:12 to 01:14:44. 75 Idem, 01:15:04 to 01:18:36. 76 Respondent's BOC Form, at paragraphs 6 and 7 of the respondent's statement, page 25 of the RPD record. 77 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:41:06 to 01:44:40. 78 Konare v. Canada (Minister of Citizenship and Immigration), No. IMM-5313-15, Bell, August 30, 2016; 2016 FC 985, at paragraph 16: [translation] "Although, in general, a panel must inform an applicant of perceived contradictions between the evidence and the testimony in order to give him or her the opportunity to respond, '[t]heir duty...does not require that the applicants be confronted with information which they themselves supplied' (Azali, cited above in para. 26). In this case, the complaint to the court of Diré was submitted by Mr. Konare as evidence. He was aware of the information contained therein. In such circumstances, the RAD has no obligation to confront the applicant with his own contradrictions (D'Amico, cited above, at paras. 51-53). I am therefore of the opinion that there was no breach of procedural fairness because the RAD did not base its conclusion on extrinsic evidence." 79 RPD's reasons and decision, at paragraph 21, page 8 of the RPD record. 80 D-3: Civil status registry excerpt (birth), made in XXXX, XXXX XXXX XXXX 2011, page 188 of the RPD record. 81 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:23:20 to 01:25:45. 82 D-6: Residence certificate, made in Conakry, commune of XXXX, XXXX XXXX, 2012, page 193 of the RPD record. 83 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:25:45 to 01:26:50. 84 D-5: School certificate, undated, unsigned, page 192 of the RPD record. 85 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:49:10 to 01:52:15. 86 Recording of the part of the RPD hearing that was held on May 29, 2015, 39:35 to 48:38 and 01:23:20 to 01:25:25. Recording of the part of the RPD hearing that was held on September 24, 2015, 08:45 to 10:00 and 15:00 to 24:30. 87 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:27:10 to 01:32:50. 88 RPD's reasons and decision, at paragraph 21, page 8 of the RPD record. 89 Kebedom v. Canada (Minister of Citizenship and Immigration), No. IMM-4623-15, Heneghan, July 13, 2016; 2016 FC 781, at paragraph 31. 90 The respondent was detained under the control of Canadian immigration on March 30, 2015. At the time of the second part of his RPD hearing, that is, in September 2015, he had been released following a decision of the IRB's Immigration Division. 91 Recording of the part of the RPD hearing that was held on September 24, 2015, 29:50 to 31:50. 92 Recording of the part of the RPD hearing that was held on May 29, 2015, 01:01:30 to 01:08:52 and 01:13:12 to 01:14:44. 93 M-1: Analysis report on Malian passport No. XXXX XXXX pages 373, 374 and 375 of the RPD record. 94 M-4: Biometric match report with the United States and email, pages 388 to 395 of the RPD record. M-9: Visa application of XXXX XXXX, pages 417 to 474 of the RPD record. M-10: Visa application of XXXX XXXX, pages 475 to 484 of the RPD record. 95 Recording of the part of the RPD hearing that was held on May 29, 2015, 07:48 to 28:35. 96 RPD's reasons and decision, at paragraphs 27 and 28, page 10 of the RPD record. 97 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued, Geneva, December 2011, at paragraphs 196 to 205, pages 40 to 42. 98 Minister's memorandum, at paragraphs 12 and 13, page 18 of the appeal record. 99 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, at paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division [...]' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 100 R.v. N.S., [2012] 3 S.C.R. 726, 2012 SCC 72, at paragraph 25. 101 Huruglica, supra, footnote 29, at paragraphs 70 to 74. 102 Yang v. Canada (Minister of Citizenship and Immigration), No. IMM-5717-08, Snider, June 30, 2009; 2009 FC 681, at paragraph 5: "... when making identity findings, the Board must arrive at its conclusions based upon the totality of the evidence relevant to identity before it...." 103 Huruglica, supra, footnote 29, at paragraph 69. 104 Idem, at paragraphs 69 to 74. Ali, supra, footnote 35, at paragraph 35. 105 Elhassan v. Canada (Minister of Citizenship and Immigration), No. IMM-9787-12, de Montigny, December 12, 2013; 2013 FC 1247, at paragraph 20. Qiu v. Canada (Minister of Citizenship and Immigration), No. IMM-3382-08, Snider, March 16, 2009; 2009 FC 259, at paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB6-00147 29