TB9-08471

RAD File / Dossier de la SAR : TB9-08471 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 8, 2019 Date de la décision Panel Elana Rose Tribunal Counsel for the person who is the subject of the appeal Dov Maierovitz Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX (hereinafter referred to as the "Appellant"), a citizen of Nigeria, is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. DETERMINATION [2] The appeal is dismissed. BACKGROUND [3] The Appellant claims to be from Benin City, located in Edo State, Nigeria, and alleges that she was forced into an abusive marriage with an older man in XXXX 2017. She fled from her husband after XXXX months of marriage and came to Canada seeking protection. [4] The standard of review I have applied in this decision is correctness, as there were no areas where the RPD had a meaningful advantage on credibility which required deference. [5] The Appellant is not relying on any new evidence pursuant to s.110 (4) of the Immigration and Refugee Protection Act (IRPA), and does not request an oral hearing. ISSUES IN APPEAL [6] The Appellant argues in the Appellants' memorandum1 that the RPD erred in the following determinations on the Appellant's national and personal identity: a) The RPD erred in its assessment of the Attestation of Birth. b) The RPD erred by finding that the manner in which the Appellant obtained her driver's license did not align with the new licensing processing requirements, rendering the driver's license unreliable to establish identity. I find that the determinative issue in this appeal is the Appellant's national identity. RAD ANALYSIS [7] I have conducted an independent analysis of the audio of the RPD hearing, as well as considered the Appellant's Memorandum, the RPD Decision, and the Appellant's Basis of Claim (BOC) form and supporting documentary evidence, and I conclude the following. a) The RPD did not err in its assessment of the Appellant's Attestation of Birth. [8] The RPD found that the Appellant's Attestation of Birth was fraudulent, or if validly issued, it was issued on the strength of a fraudulent Declaration of Age, which renders it unreliable as evidence of identity. [9] The RPD found that the following deficiencies along with the Declaration of Age undermined the genuineness of the Appellant's identity: 1. Confusing and inconsistent evidence was provided by the Appellant on where she and her parents were born. 2. The Declaration of Age provided by the Appellant's mother, sworn before a Commissioner for Oaths, did not contain a passport photograph of her, as set out in the documentary evidence as a requirement of the Federal High Courts2, and common practice in state courts.3 3. Internal inconsistency in the Declaration of Age document undermined its genuineness. It was sworn at the High Registry Court on October 19, 2017, but issued by the High Court Registry on November 19, 2017. The document was issued after it was provided to Immigration, Refugees and Citizenship Canada (IRCC) by the Appellant, which undermines its genuineness on the face. 4. The Declaration of Age document misspells the standard form phrase "IN THE BENIN JUDICIAL DIVISION HOLDING AT BENIN CITY" which should read: "IN THE BENIN JUDICIAL DIVISION HOLDEN AT BENIN CITY". 5. The Declaration of Age refers to the Oaths Act, 1976, and not to the relevant date reference of Oaths Act, 2003, or 2016 coinciding with the time frame when the Appellant's documents were generated. 6. The Appellant's mother's passport photo has not been affixed to the Declaration of Age as is the usual requirement when swearing an Affidavit in the High Court of the State. 7. The signature of the Appellant's mother is different on two of the Affidavits. [10] The RPD concluded that the National Documentation Package (NDP) confirms that the Attestation of Birth is a legal document issued to back up the Declaration of Age, and post 1988, the Declaration of Age must be accompanied by an Attestation of Birth, issued by the National Population Commission4 ; finding that both documents together are equivalent to a birth certificate from Nigeria. [11] The RPD further concluded that as the Attestation of Birth is issued on the basis of the Declaration of Age, the discrepancies in the Declaration of Age, undermined the genuineness of the Attestation of Birth; specifically noting that the Declaration of Age was issued by the Registry on XXXX XXXX, 2017, one month after the Attestation of Birth was issued on XXXX XXXX, 2017, and therefore could not have been used to support the Attestation of Birth as required. [12] The RPD also found that the testimony from the Appellant around the possession of the passport photos, one of which is affixed to the Attestation of Birth obtained while she was in Canada, undermined her credibility. Specifically, the explanation that the Appellant had extra passport photos available after using four to obtain her Driver's Licence in 2014, ran contrary to the NDP, where it is stated that passport photos are not used to obtain a driver's licence under the new system. [13] The RPD concluded that the Declaration of Age and Attestation of Birth were insufficient proof of identity in light of all the credibility issues. [14] The Appellant has not challenged the findings of the RPD with respect to the numerous anomalies with the Declaration of Age document. Having reviewed the Audio and all of the evidence before the RPD, I concur that the Declaration of Age is indeed fraudulent. [15] The Appellant argues that the RPD erred with respect to the Attestation of Birth, arguing that there is no evidence before the RPD that the Attestation of Birth must be issued on the basis of the Declaration of Age. The Appellant seeks to treat the Attestation of Birth as a separate entity from the Declaration of Age, and further notes that the NDP confirms that an Attestation of birth can be obtained by proxy if the applicant is outside of Nigeria, and states what the proxy must provide in order to obtain it, with no specific reference to providing a Declaration of Age.5 [16] The Appellant also argues that the RPD erred in its conclusion that the Appellant had no need to provide a passport photograph for her driver's license, and cites the NDP where it is stated that passport photographs are used to process driver's licences in certain parts of Nigeria, as implementation of the new process which does away with that requirement, varies across Nigeria6. [17] The Appellant argues that the passport photographs of the Appellant are genuine, and as the passport photographs were needed by the Appellant to obtain the driver's licence, the Board erred when it determined that the Appellant's lack of credible explanation for obtaining the passport photographs, was a basis for undermining the genuineness of the Attestation of Birth. [18] I agree with the Appellant that the RPD misstated the interrelationship of the Declaration of Age and Attestation of Birth in paragraph 23 of the Decision7, when indicating that the Declaration of Age supports the Attestation of Birth letter. I agree that the adverse finding on the genuineness of the Attestation of Birth based on the earlier issuance date of the Attestation of Age cannot stand and is an error. [19] The Deputy Director of the Vital Registration Department of the NPC in Nigeria8 states: '..that people over 18 years old who were not registered at the time of their births are issued "attestation letters". He said an attestation letter is a "legal document issued to back up the age declaration affidavit of an individual who is over 18 years of age". He added that, before 1988, a declaration of age affidavit was sufficient, but now the affidavit must be accompanied by an attestation letter issued by the NPC9. [20] As the Declaration of Age did once stand on its own as proof of one's date of birth10; its genuineness is essential and intricately tied to the Attestation of Birth as proof of identity; but it is not issued in advance of the Attestation of Birth, as concluded in one paragraph by the RPD. [21] If the Attestation of Birth was sufficient alone to establish the Appellant's identity as proposed by the Appellant, it begs the question as to why the Appellant provided the fraudulent Declaration of Age at all. These documents are inherently intertwined. [22] While I do agree with the Appellant that the RPD erred in that specific finding, this ultimately has no effect on the RPD's conclusion with respect to the genuineness and weight that the Attestation of Birth can be given to establish the identity of the Appellant, given all the other inherent problems with the reliability of the Attestation of Birth and credibility of the Appellant. [23] I note also, in addition to the deficiencies noted by the RPD in the assessment of the Declaration of Age and the Attestation of Birth, that the Declaration of Age spells the Appellant's mother's area of residence11 differently than in the Attestation of Birth12. The intertwined documents are inconsistent on their face as well. [24] Even without addressing the issue raised by the Appellant's testimony on having passport photo's available in Nigeria left over from obtaining her driver's licence (see below analysis on genuineness Driver's Licence for fulsome reasons why the RPD finding on the photographs is correct), the RPD was correct in determining that the fraudulent Declaration of Age, undermined the genuineness of the Attestation of Birth issued in support of it. [25] I note that submitting a false or irregular document has an impact on the weight assigned to other documents provided by the Appellant, especially when they are interrelated13, and on the overall credibility of the Appellant as well14. [26] As accurately noted by the RPD, the greater the time between the date of issuance, in the Appellant's case 2017; and the Appellant's date of birth, in this case 1985, the less likely the document is to be genuine.15 There is a 32 year time differential which further undermines the genuineness of the documentation. [27] In light of the foregoing, the Attestation of Birth tendered by the Appellant as evidence of identity cannot be relied upon, and is intricately tied to the fraudulent Declaration of Age, which according to the country condition evidence, it is designed to support. [28] I concur with the findings of the RPD that the Attestation of Birth falls short of establishing the Appellant's identity. b) The RPD did not err when it found that the Appellant's Driver's Licence failed to establish her identity. [29] The RPD concluded that the Appellant's driver's licence was issued under the new system noting that it clearly matched the new licence contained in the county conditions evidence. [30] The RPD concluded that the genuineness of the Appellant's driver's licence was brought into question by: 1. The fact that the Appellant testified that the only identity document that she ever possessed prior to leaving Nigeria was her driver's licence; in contrast with the country condition evidence that supports that in Nigeria you must produce either a passport or birth certificate, in order to legally obtain a driver's licence. 2. The Appellant's testimony on the driver's license issuing process was inconsistent with the country condition evidence. 3. The Appellant testified that there is no graduated licence system in Nigeria, and she did not have a learner's permit which is inconsistent with the country conditions evidence. 4. The Appellant testified that she has only ever been issued one licence, however the driver's licence itself indicates that it was renewed once raising internally inconsistent evidence. [31] As a result of the inconsistencies raised by the Appellant's evidence, the RPD concluded that the driver's licence was not genuine and was not reliable evidence of identity. [32] The Appellant argues that the RPD rejected the Appellant's driver's licence primarily by finding adversely on the testimony that the Appellant provided on how it was obtained. The Appellant argues that this is an error as the country condition evidence confirms that the processing requirement of a driver's licence is not consistent or standardized in Nigeria.16 [33] The Appellant argues that the Appellant's testimony follows the old system and coincides with the old system that was still implemented in Lagos as of 2012.17 [34] I note that the country condition evidence indicates that as of 2012, The Federal Road Safety Commission (FRSC) had gone ahead and implemented the new driver's licence system nationally in Nigeria, even though there was a constitutional challenge by the states, regarding the jurisdiction of the Federal government to administer the program18. [35] The country condition evidence supports that as of 2012 not all of the states had implemented the new system; however, that was over two years prior to when the Appellant's licence was issued in Edo State. While the documents mention specifically that Ogun state had not yet implemented the new licencing scheme as of XXXX 201219, the documents do not refer to Edo state as falling into that category, or identify it at all as being non-compliant with the procedures of the new licencing system. [36] In the absence of evidence to the contrary, the RPD correctly concluded that the new requirements for obtaining a driver's license as set out in the NDP20 applied to Edo state. [37] I find that the Appellant's driver's licence was obtained under the new system, as on its face, the licence physically conforms to the new licence layout; which in turn, differs significantly from the licences issued under the old system. The new licences' are smaller in size, the photograph is on the left side of the licence, it has a white background, it contains no thumbprint and the Nigerian coat of arm is centred on the card21. This is the licence which the Appellant has provided22. [38] The new system in Nigeria was designed to standardize the application process and to increase safety features on licences. Under the new system one must attend an accredited driving school; take a driving test; obtain a learner's permit valid for the first six months; then you go for biometrics where applicants are fingerprinted and photographed and you sign for a full licence. [39] The Appellant was asked many questions about the procedure for her to obtain her driver's licence in Benin City.23 She testified that she provided four passport photographs; paid a fee and returned the following day for fingerprinting. The card was issued after that. She initially testified to doing a written exam only, and when it was put to the Appellant that a driving test was also necessary according to the country evidence, she paused and added that she had done a driving test five months previously to taking the written test. [40] Apart from the Appellant's failure to spontaneously recall doing a road test at all24, the evidence of doing a road test five months prior to taking a written exam on the rules of the road, is not supported by the country condition evidence.25 [41] The Appellant further stated that she was issued a full driver's licence, no learner's permit26; that she provided her thumbprints, and finger prints as well and that her passport photos were used, one of which is pictured on the driver's licence and matches the photograph used for the Attestation of Birth which has been found to be fraudulent. The Appellant confirmed that this was her first and only issued driver's licence27 and had no explanation for the inconsistency on the face of the licence which indicates that she has had one renewal. She provided no evidence on having undergone an accredited driving school program as is stated to be mandatory with the new licencing requirements28. Overall there was little consistency between the Appellant's rendition and the country documentation evidence. [42] The Appellant argues that the testimony provided on how she obtained the licence cannot be concluded to be inconsistent with the country condition evidence as the process varies from area to area. [43] The Appellant refers specifically to the deviation in requirements in Lagos for example, where an applicant provides a passport photograph, application and fee payment, thumb print and gets photographed and obtains a licence. This process deviates from the one that has been established in most states in Nigeria, and the Appellant contends that it most closely reflects the procedure that the Appellant encountered, noting that passport photos are used in Lagos. [44] As there is no evidence that establishes that Edo State has deviated from the national procedure of licence issuance established in 2011/2012, I agree with the RPD that the Appellant would have been subject to the listed procedures in the country conditions package and the national licencing requirements. [45] It cannot be overlooked that the Appellant's evidence failed to conform with the Lagos procedures also. The provided detailed evidence on the biometric fingerprinting that she encountered when applying for her licence in Benin City29, yet the evidence on the procedure in Lagos reflects that only thumbprints are taken30, raising internal inconsistency with her evidence and that procedure. Biometric fingerprinting is consistent with the national licencing scheme currently in place nationally. [46] I agree with the RPD that the Appellant's testimony on the process of obtaining her licence in Edo State fell short of consistency with country condition evidence: * Initially she testified that she only had to do a written test to have her licence issued. Only when it was put to the Appellant that a driving test was necessary according to the NDP, did she offer that she did the driver's test five months prior to doing the written test.31 * The Appellant made no mention of attending any accredited driving school. I concur with the RPD finding that it is not reasonable to be doing a driving test five months prior to taking the written test to acquire knowledge of the rules of the road. * The Appellant did not receive a learner's permit and had no knowledge of that. * The Appellant's licence was issued with a passport photo which is not the protocol. * The Appellant testified to having had no identity documents prior to the issuance of her licence that could have been provided to support the issuance of a driver's licence. [47] I do not find merit in the Appellant's argument that the new licencing procedure was not in place in Edo when the Appellant's licence was issued, or that she encountered the same procedure that is rumored to be used at that time in Lagos, in 2012. [48] It is confirmed in the documentary evidence that: 'Both the Corps Marshal and Chief Executive and the Unit Commander said that the procedures and requirements for obtaining the new driver's licence are the same in all the states of Nigeria (Nigeria 31 Jan 2012; ibid. 30 Jan. 2012)' [49] It is noted that the Appellant was unable to recount with any accuracy the procedures that would have been encountered to obtain her licence in Edo State. The Appellant's licence on its face is fraudulent as it contains a passport photograph that is no longer used in the issuance of licences in Edo state, and refers to a renewal when the Appellant testified to it being her first licence.32 [50] I find that the RPD's adverse findings on the Appellant's evidence around the issuance of her driver's licence, coupled with the irregularity on the face of the driver's licence, are supported by the evidence and I agree that the driver's licence is fraudulent. The licence cannot be relied upon for the truth of its content, and cannot as such, be relied upon as reliable evidence of the Appellant's identity. CONCLUSION [51] After conducting my own analysis of the entire record, I find that the RPD did not err in its overall findings that the Appellant has provided fraudulent documents in support of her identity. [52] I find that the Appellant has failed to provide sufficient reliable and credible evidence to establish her identity pursuant to s. 106 of the Immigration and Refugee Protection Act (IRPA) and Rule 11 of the Refugee Protection Division Rules. She has provided two fraudulent documents which undermined her remaining identity document, her driver's licence and her oral testimony. [53] The burden of establishing identity must be satisfied before the RPD goes on to consider the merits of the claim. The Appellant has not met this burden. [54] Pursuant to s.111 (1) (a) of the IRPA, the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is confirmed. [55] The appeal is dismissed. (signed) "Elana Rose" Elana Rose August 8, 2019 Date 1 Exhibit P-2, Appellant Record, at p 46 at para 9. 2 Exhibit RPD-1, RPD Record, NDP at page 59, at Item 9.2. 3 Ibid 4 Exhibit RPD-1, RPD Record, NDP at page 59 , at Item 3.15. 5 Exhibit RPD-1, RPD Record, NDP at page 59, at Item 3.15 6 Ibid, at Item 3.6. 7 Exhibit RPD-1, RPD Record, Decision and reasons at page 8. 8 RPD Record, NDP at p. 59, Item 3.15. 9 RPD Record, NDP at p.59, Item 3.15 at p.2. 10 Ibid 11 Exhibit RPD-1, RPD Record, pages 53, 54:Declaration of Age lists Appellant'smother location as 'Ogheghe' in contrast to Attestation of Birth which indicates "Osheghe'. 12 Ibid 13 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 14 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 15 RPD Record, NDP at p. 59; Item 3.11 at p. 7. 16 RPD Record, page, NDP for Nigeria dated December 21, 2018 at Item 3.6 17 Ibid, p. 17 18 Ibid, p. 2 19 Ibid, p. 5 20 RPD Record, NDP at page 59, item 3.6 21 Ibid Item 3.6 at p. 16 and attached photograph 22 Exhibit RPD-1, RPD Record, p. 55 23 RPD Hearing Recording, January 25, 2019, at 46:00-1:04. 24 RPD Hearing Recording, January 25, 2019, at 50:00-52:07. 25 RPD Record, NDP at page 56, item 3.6 26 RPD Hearing Recording, January 25, 2019, at 54:41. 27 RPD Hearing Recording, January 25, 2019, at 1:01:53. 28 RPD Record, NDP at page 56, Item 3.6 at p. 12 29 RPD Hearing Recording, January 25, 2019, at 57:41. 30 RPD Record, NDP at p. 59, item 3.6 at p. 18 31 RPD Hearing Recording, January 25, 2019, at 52:07. 32 RPD Hearing Recording, January 25, 2019, at 1:01:53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-08471 RAD.25.02 (April 04, 2019) Disponible en français 12 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français