MB8-15642

RAD File / Dossier de la SAR : MB8-15642 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 Ottawa, ON Appel instruit / entendu à Date of decision September 13, 2019 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Lakhwinder Sandhu 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 XXXX XXXX, citizen of India, appeals a decision of the Refugee Protection Division (RPD), dated May 14, 2018, rejecting his claim for refugee protection because he failed to provide sufficient, credible and trustworthy evidence to establish, on a balance of probabilities, his identity and citizenship in India. The Appellant submits that a report under subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) to the Minister of Immigration, Refugees and Citizenship Canada confirms his identity. Following my independent assessment, I am not satisfied that the Appellant has provided acceptable documentation to establish his identity. The appeal is dismissed. BACKGROUND [2] According to his Basis of Claim Form (BOC)1 the Appellant was born in 1994. He obtained a study visa in XXXX XXXX XXXX 2012 and came to Canada on XXXX XXXX, 2012. Two months after his arrival in Canada, the Appellant's uncle was threatened by a XXXX XXXX XXXX. The XXXX XXXX daughter overdosed when the Appellant left for Canada thinking that the Appellant had broken up with her without telling her. The XXXX XXXX XXXX blamed the Appellant for his daughter's overdose. The XXXX XXXX tried filing a fraud case against the Appellant and threatened his family that if he comes back to India he may die. [3] The Appellant's claim was received on July 17, 2017, and heard on May 14, 2018. The RPD gave its decision orally following the completion of the hearing. ANALYSIS [4] The RPD found that identity was the determinative issue and that the Appellant failed to provide sufficient, credible and trustworthy evidence to establish, on a balance of probabilities, his identity and citizenship in India. The Appellant did not present any documents to support his claim. [5] The RPD asked the Appellant about documents to establish his identity: - The Appellant said he lost his Indian passport in 2013 and tried to obtain a replacement from the Indian Embassy in Ottawa but was not successful after trying for three or four months;2 - The Appellant said that he gave his Indian birth certificate3 and his educational documents4 to an immigration office in Mississauga, but they do not form part of the package of information from the Canada Border Services Agency (CBSA) and are not listed on the seizure form;5 - The Appellant said that he had an Indian driver's licence, but it was in Alberta and he did not know that he needed to provide it;6 - The Appellant did not have any statements from his family advising that there is nothing they can say and he didn't see any reason to involve them;7 - The Appellant said that he had a landing paper from his arrival in Canada but did not bring it with him because he was not asked to bring it;8 - The Appellant said he applied for a work permit, but the only evidence of his correspondence with the consultant was on a telephone that was destroyed by water;9 - The Appellant has an Ontario driver's licence which was confiscated by CBSA;10 - Regarding the CBSA interview and subsection 44(1) report, the Appellant initially testified that he gave the information to the CBSA (i.e. self-declared), then he said that the officers pulled up information on him11 and referenced a document, but he did not see them pull up the information or obtain a copy of the document the CBSA officer showed him.12 [6] The Appellant's only argument on appeal is that the CBSA subjection 44(1) report prepared by XXXX XXXX XXXX XXXX XXXX XXXX, 2017,13 clearly states that the Appellant is a citizen of India and that he legally entered Canada on December 25, 2012. The Appellant submits that in the face of the signed CBSA officer's statements, the RPD erred when it refused to give any weight to the CBSA report which did not cast any doubt on the issue of identity and confirmed the identity of the Appellant. [7] Following my independent assessment, I am not satisfied that the Appellant has met his onus to provide acceptable documentation to establish his identity. I find that the subsection 44(1) report does not establish the identity and citizenship in India of the Appellant. The law [8] A very recent decision of the Federal Court14 canvassed the legal principles governing proof of identity in refugee claims. [9] Proof of identity is an essential requirement for a person claiming refugee protection. Without this, there can "be no sound basis for testing or verifying the claims of persecution or, indeed for determining the Applicant's true nationality."15 A failure to prove one's identity is fatal to a claim in and of itself. There is no need to examine the evidence or the claim any further.16 [10] The importance of establishing a claimant's identity is reflected in section 11 of the RPD 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.17 [11] Section 106 of the IRPA draws an express link between the claimant's obligation in section 11 of the RPD Rules to produce acceptable documentation establishing identity (or to explain why it has not been produced) and the claimant's credibility: 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. [12] Together, section 11 of the RPD Rules and section 106 of the IRPA place the onus on a claimant to provide acceptable documentation establishing their identity. If a claimant cannot obtain such documentation, they must provide a reasonable explanation for why not or demonstrate that reasonable steps were taken to obtain it. This is a heavy burden.18 Acceptable documents [13] While neither the IRPA nor the RPD Rules define "acceptable documentation establishing identity," the Federal Court has identified categories of identity evidence.19 These are: (1) primary documents, such as passports, resident identity cards and birth certificates; (2) secondary documents, such as drivers' licences; (3) other evidence, including viva voce evidence from witnesses. Primary documents [14] I find that the Appellant did not present any primary documents to establish his identity. [15] The Appellant offered a lengthy explanation for not presenting his passport. He testified that he lost his passport in XXXX 2013 and continued looking for it for a month and a half. He said that he had to go to the Indian Embassy in Ottawa to replace his passport because he was a refugee. I note that his claim for refugee protection was received in July 2017. [16] The Appellant said he tried for three or four months to replace his passport but could not because his student visa expired in 2014. He then said that he worked with a consultant in Montreal to obtain a work permit using a copy of his passport, but the consultant defrauded him and never applied for a work permit. I note that in his CBSA interview, the Appellant said that the consultant "did everything. I gave him a copy of my visa, my passport."20 At the hearing the Appellant said he gave the consultant a copy of his passport and the completion certificate from the college.21 [17] The Appellant said that he could not replace the passport because the Indian Embassy wanted a report about the lost passport directly from the LaSalle Police who would not provide it to the Appellant because they needed a request from the Embassy. The Appellant said he went to the Indian Embassy four or five times and that he went to the LaSalle Police 10 times. When asked to explain why he did not obtain a replacement passport in the past four years, the Appellant said that the Indian Embassy would not issue a passport when his visa expired and then he said his student visa expired in XXXX 2015. [18] I find that the Appellant's explanation was not consistent, and no explanation was given for giving copies of his visa and passport to the consultant which were not presented to the RPD. [19] The Appellant said he had a birth certificate which he gave to the immigration office in Mississauga along with a translation. The package of information received from the CBSA does not contain these documents.22 The Appellant said he had a copy of his birth certificate and could send it to the RPD.23 A copy of his birth certificate has not been presented to date. Secondary documents [20] The Appellant's Ontario driver's licence forms part of the CBSA information package.24 The RPD correctly found that the Ontario driver's licence does not confirm the Appellant's Indian citizenship. [21] When the RPD asked the Appellant if he has any identity cards from India, he said that he has a driver's licence from India but can't use it, so he does not keep it on him. The RPD asked where the driver's licence was and he said it "was back home in Alberta." When asked if he tried to get it for the hearing, the Appellant said he did not know he had to and it expired last year. 25 To date the Appellant has not presented his Indian driver's licence. [22] The RPD asked the Appellant if he had any school documents from India and the Appellant said he did but not here. When asked if he tried to obtain copies for the hearing, the Appellant said he gave the immigration office, the CBSA officer, everything and did not know he had to bring the documents. When asked what documents he had provided, the Appellant said that he gave the immigration office his birth certificate, a translated copy of his birth certificate and his high school standards.26 The package of information received from the CBSA does not contain any of these documents.27 Other evidence [23] The RPD asked the Appellant if he had obtained statements from his family about who he is or his claim, and the Appellant replied that he tried to but there is nothing that they can say or tell or give him. He said he could ask them to but he did not.28 To date the Appellant has not presented any supporting statements. [24] The Appellant testified that he thought that he had a copy of his landing paper from his arrival in Canada but did not bring it with him to the hearing because he was not asked to bring it.29 To date the Appellant has not presented a copy of his landing paper. [25] The Appellant argues that the subsection 44(1) report is a signed statement of a CBSA officer which confirms the identity and citizenship of the Appellant. [26] The RPD was not satisfied about the source of information for the subsection 44(1) report because the Appellant originally testified that he provided the information and then said that the CBSA officer pulled it up and produced a document which contained all his information and his photograph. The Appellant did not produce the document, and the package of information received from the CBSA does not contain such a document.30 I agree with the RPD that the source of information for the subsection 44(1) report is not clear. I also note that the subsection 44(1) report says that the Appellant was issued a study permit upon his arrival at Pearson International Airport,31 while the BOC says that the Appellant applied for his visa on XXXX XXXX, 2012, and it arrived in the middle of November 2012.32 [27] I find that the Appellant is attempting to transfer the burden of establishing his identity to the CBSA, and the Federal Court has been very clear that he cannot do so. When we refer to the applicable section of the law, it is obvious that the Minister has the responsibility to decide whether he or she is satisfied with the identity of a foreign national; that does not mean that he or she has the burden to travel around the world to gather information to establish that identity. In my view, there is no doubt that the responsibility to establish the identity of a foreign national rests on the foreign national himself. Obviously, when such foreign national provides documents, the Minister will do whatever he or she can to verify and to become satisfied with the identity of the foreign national. The burden is not displaced from the foreign national to the Minister but the sole responsibility rests with the foreign national. In the case at bar, the foreign national provided on numerous occasions, different information regarding his identity, most of it being fake or fabricated. The fact that he cannot provide a valid document to prove his identity does not mean that he should seek out a third party to testify about his identity; if the respondent did ever live in India, traces should exist about his life over there and it should be relatively easy to find such documents, a responsibility which lies with the foreign national, not the Minister (emphasis added).33 [28] The Appellant did not present any documents to support his claim. I find that the Appellant testified that he is in possession of the following documents which could have been presented to establish his identity: birth certificate, Indian driver's licence, Indian school records, and landing paper from arrival in Canada. The Appellant has not presented any of these documents. I also find that the Appellant did not take reasonable steps to obtain copies of the passport, visa and college completion certificates he provided the consultant or to obtain supporting statements from his family. [29] For all of these reasons, I agree with the RPD that the Appellant did not meet his onus to provide acceptable documentation to establish his identity. CONCLUSION [30] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Susan Brown" Susan Brown September 13, 2019 Date 1 RPD-1, RPD Record, Exhibit 2, pages 7-18. 2 RPD-1, Hearing of May 14, 2018, Audio Recording 0:06:55-0:13:44. 3 Ibid., Audio Recording 0:16:50-0:17:30. 4 Ibid., Audio Recording 0:25:30-0:25:55. 5 RPD-1, RPD Record, Exhibit 1, page 40. 6 RPD-1, Hearing of May 14, 2018, Audio Recording 0:20:38-0:21:10. 7 Ibid., Audio Recording 0:22:25-0:23:40. 8 Ibid., Audio Recording, 0:24:50-0:25:10. 9 Ibid., Audio Recording, 0:26:50-0:27:45. 10 RPD-1, RPD Record, Exhibit 1, pages 36 and 37. 11 RPD-1, Hearing of May 14, 2018, Audio Recording 0:29:25-0:32:00. 12 Ibid., Audio Recording 0:36:25-0:37:35. 13 RPD-1, RPD Record, Exhibit 1, pages 47-48 and P-2, Appellant's Record, pages 11-12. 14 Omaboe v. Canada (Citizenship and Immigration), 2019 FC 1135 (CanLII), paras. 14-17. 15 Jin v. Canada (Minister of Citizenship and Immigration), 2006 FC 126 (CanLII) at para. 26; Liu v. Canada (Citizenship and Immigration), 2007 FC 831 (CanLII) [Liu] at para. 18; and Behary v. Canada (Citizenship and Immigration), 2015 FC 794 (CanLII) [Behary] at para. 61. 16 Elmi v. Canada (Citizenship and Immigration), 2008 FC 773 (CanLII) at para. 4; Diallo v. Canada (Citizenship and Immigration), 2014 FC 878 (CanLII) at para. 3; Liu, supra, note 15 at para. 18; Ibnmogdad v. Canada (Minister of Citizenship and Immigration), 2004 FC 321 (CanLII) at para. 24; and Behary, supra, note 15 at para. 61. 17 Refugee Protection Division Rules, SOR/2012-256 [RPD Rules], section 11. 18 Su v. Canada (Citizenship and Immigration), 2012 FC 743 (CanLII ) [Su] at para. 4; Malambu v. Canada (Citizenship and Immigration), 2015 FC 763 (CanLII) at para. 41; Tesfagaber v. Canada (Citizenship and Immigration), 2018 FC 988 (CanLII) at para. 28. 19 Ibid., Su at para. 7. 20 RPD-1, RPD Record, Exhibit 1, page 55. 21 RPD-1, RPD Record, Hearing of May 14, 2018, Audio Recording 0:27:00-0:27:15. 22 RPD-1, RPD Record, Exhibit 1. 23 RPD-1, RPD Record, Hearing of May 14, 2018, Audio Recording 0:19:25-0:20:30. 24 RPD-1, RPD Record, Exhibit 1, pages 36 and 37. 25 RPD-1, RPD Record, Hearing of May 14, 2018, Audio Recording 0:20:38-0:21:10. 26 Ibid., Audio Recording 0:21:25-0:22:24. 27 RPD-1, RPD Record, Exhibit 1. 28 RPD-1, RPD Record, Hearing of May 14, 2018, Audio Recording 0:22:25-0:23:40. 29 Ibid., Audio Recording 0:24:50-0:25:10. 30 RPD-1, RPD Record, Exhibit 1. 31 RPD-1, RPD Record, Exhibit 1, page 48. 32 RPD-1, RPD Record, Exhibit 2, page 11. 33 Canada (Minister of Citizenship and Immigration) v. Singh, 2004 FC 1634 (CanLII) para. 38 as cited in Malambu v. Canada (Citizenship and Immigration), 2015 FC 763 (CanLII) para. 46. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-15642 RAD.25.02 (April 04, 2019) Disponible en français 9 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