MB9-00740

RAD File No. / No de dossier de la SAR: MB9-00740 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 at Ottawa, Ontario Appel instruit à Date of decision August 12, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Angelica Pantiru 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 OVERVIEW [1] The appellant, who is identified as XXXX XXXX in her refugee protection claim, a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim because she failed to establish her identity. The appellant argues that the RPD was too severe in its analysis of the contradictions noted in the evidence. I disagree. The birth certificate is not reliable evidence of the appellant's personal identity because it contradicts the appellant's testimony as to the identity of the applicant, that is, the appellant's father rather than her mother. She also claims to have a different date of birth and family name in her refugee protection claim and her immigration forms. The appeal is therefore dismissed. BACKGROUND [2] In her refugee protection claim, the appellant identifies herself as XXXX XXXX.1 She claims to have been forced to leave Haiti in XXXX 2015 because of death threats from her cousin, who was seeking to take control of a XXXX store away from her. She lived in the United States for two years before coming to Canada on August 28, 2017. [3] In its written decision,2 the RPD explains having concluded that the appellant did not present acceptable documentation to establish her identity. The evidence on the record shows that the appellant uses the family name XXXX in her refugee protection claim and in her immigration forms, which is different from the one indicated in her birth certificate, XXXX. She also provides two different dates of birth, neither of which corresponds to the one on her birth certificate. According to her birth certificate, her name is XXXX XXXX and she was born on XXXX XXXX, 1990.3 Her identification card, with photograph, issued by the state of Florida identifies her as XXXX XXXX, born on XXXX XXXX, 1994.4 In her immigration forms, the appellant claims to be born on XXXX XXXX, 2012.5 She testified that another person had completed the forms for her. In her testimony before the RPD in October 2018, she also stated that she was 29 years old. [4] According to the RPD, the birth certificate filed as evidence is not genuine. The birth certificate indicates that the appellant's father was the applicant, whereas the applicant testified that her mother had applied for it. The RPD also noted a signature on the registry seal, which it considered to be an irregularity. [5] In her appeal memorandum, the appellant criticizes the RPD for having been too severe in its analysis of the evidence. She argues that her birth certificate establishes her true identity, including her date of birth, despite the irregularities, which are apparently common in Haiti because of the precariousness of the civil status registry. DETERMINATIVE ISSUE [6] The determinative issue is whether the birth certificate filed as evidence constitutes acceptable evidence establishing the appellant's identity. SCOPE OF THE APPEAL [7] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral evidence it hears, in cases where it enjoys a meaningful advantage. [8] In this case, I am of the opinion that the RPD did not enjoy a meaningful advantage with respect to any of its findings. Therefore, I applied only the correctness standard of review. MERITS OF THE APPEAL [9] The appellant's national identity is not at issue. At paragraph 48 of its decision, the RPD acknowledges that the appellant is of Haitian nationality, as she speaks Creole and demonstrated good knowledge of the region that she claimed to be her commune of origin. I agree with this finding. [10] It is the issue of personal identity that is problematic. The appellant is not wrong in pointing out that the genuineness of the birth certificate that she filed as evidence must be determined irrespective of the assessment of the credibility of her testimony. However, as the RPD noted, the birth certificate, even on its face, contradicts the appellant's testimony because it indicates that the applicant was her father, not her mother, as she testified. The genuineness of the birth certificate is therefore questionable. The fact that multiple pieces of evidence suggest that the appellant's family name and date of birth are different from what is indicated in her birth certificate also raises doubt. In the circumstances, the RPD is quite right to point out, at paragraph 33 of its decision, that it would have been reasonable to expect the appellant to have requested an extract of a copy of the birth certificate from the national archives, having acknowledged that the birth certificate sent to her in 2016 was not the first one she had received. [11] Pursuant to section 106 of the Immigration and Refugee Protection Act, the onus was on the appellant to establish her identity based on "acceptable documentation." It is not only that her identification card from Florida indicates her family name as XXXX, not XXXX, and that she was born in 1994, not 1990, but also that the name XXXX is used in her immigration forms and in her refugee protection claim, and not simply to indicate the appellant's family name. She also uses it to identify several other members of her family. Lastly, the year of her birth is 1994 according to her refugee protection claim, 1992 according to her immigration forms, and 1988 according to her testimony at the hearing. [12] Therefore, there is utter confusion with respect to the appellant's personal identity. It is rather unusual for a refugee protection claimant to assert an identity that is different from the one indicated in her refugee protection claim. One would normally expect the documentary evidence to corroborate, not contradict, the information in the refugee protection claim. As the RPD notes at paragraph 20 of its decision, up until the day of the RPD hearing, the appellant had the opportunity to amend her refugee protection claim to correct any errors in it, but she chose not to do so, which is surprising, especially when she was represented by counsel at the hearing and gave a solemn affirmation at the start of the hearing confirming that the information in her refugee protection claim was correct. [13] Considering all these contradictions noted in the evidence, I find that the appellant's birth certificate does not constitute sufficient documentary evidence to establish her identity. For these reasons, I conclude that the appellant's identity was not established, on a balance of probabilities. CONCLUSION [14] The RPD was correct in concluding that the appellant's birth certificate does not constitute sufficient evidence to establish her identity. The appeal is therefore dismissed. (signed) "Philippe Rabot" Philippe Rabot August 12, 2019 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division record, page 25. 2 Ibid., pages 3 to 13. 3 Ibid., pages 61 and 62. 4 Ibid., page 60. 5 Ibid., page 55. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-00740 5 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 (September 18, 2018) Disponible en français