TB9-07509

RAD File / Dossier de la SAR : TB9-07509 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX(a.k.a XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision August 6, 2019 Date de la décision Panel Paula Faber Tribunal Counsel for the person who is the subject of the appeal Benjamin Allison 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] XXXX XXXX, a.k.a XXXX XXXX XXXX (Appellant) claims that he is a citizen of Guinea. He alleges that he fears political persecution as a member of the opposition party, Union of Democratic Forces of Guinea (UDFG). He appeals a decision of the Refugee Protection Division (RPD) dated February 26, 2019 rejecting his refugee protection claim. The RPD determined that the Appellant failed to establish his identity. [2] The Appellant argues that the RPD has erred in its decision and imposed an unreasonable burden on him to produce documentary evidence of his identity. [3] The Appellant requests that the appeal be allowed and that the Refugee Appeal Division (RAD) finds the Appellant to be a Convention1 refugee or a person in need of protection. In the alternative the Appellant seeks to have the matter referred to the RPD for redetermination. [4] The determinative issue is whether the RPD erred in its decision. I find that the RPD has not erred. [5] For the reasons that follow, the appeal is dismissed. 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 Immigration and Refugee Protection Act (IRPA)2 is confirmed. ROLE OF THE RAD [6] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. In this case, reasons will be provided in the analysis if there is a finding that the RPD had a meaningful advantage. ANALYSIS [7] The Appellant acknowledges that it is his fundamental obligation to establish his identity, on a balance of probabilities, however, he argues that the RPD imposed too onerous a burden to produce evidence, and that if additional documents from more official sources were needed, the RPD should not have refused a request for an extension of time to inquire about such documents.3 [8] I have conducted my own assessment of the evidence and arguments.4 This review includes listening to the audio recording of the RPD hearing. [9] Section 106 of the IRPA imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity. In assessing the claimant's credibility, the RPD must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. [10] In addition to this, Rule 11 of the RPD Rules5 states that the claimant must provide acceptable documents establishing identity and other elements of the claim. [11] The Appellant was informed that identity was an issue at the beginning of the hearing, along with credibility and delay in departure. No request was made by the Appellant or his counsel before, during or after the hearing, for more time to obtain documents establishing identity. Therefore, I find that no error has been made with respect to the RPD's failure to provide time for the Appellant to obtain evidence as to his identity. The Appellant also had a significant amount of time, from his arrival in Canada on XXXX XXXX, 2016, until his refugee hearing on February 6, 2019, to obtain documents establishing his identity. I also note that the Appellant did not advance any new evidence on appeal.6 [12] In its decision, the RPD considered the documents and statements regarding identity presented by the Appellant as well as the explanations for discrepancies, inconsistencies and other credibility concerns raised. I find that the RPD provided a detailed analysis regarding the evidence presented, and that overall, the RPD was correct in its conclusions with respect to the Appellant's identity. Spelling of the appellant's name [13] In its decision, the RPD found that the Appellant's credibility with respect to identity was significantly undermined because of a change to the spelling of his name to match documents presented. I agree with the RPD. [14] The Appellant arrived in Canada at Toronto's Pearson International Airport on XXXX XXXX, 2016, with no identity or travel documents. When he completed forms for his refugee claim, and during interviews with Canada Border Service Agency officers, the Appellant used the following spelling of his name: XXXX XXXX XXXX, and used this spelling of his name on several forms and documents. Included in the documents is a Statutory Declaration affirming that understands English and French.7 [15] The Appellant also used the XXXX XXXX XXXX spelling of his name in his Basis of Claim Form (BOC), signed on October 17, 2016.8 The Appellant completed his BOC with the assistance of Counsel and signed declaration A indicating that he can read English and fully understood the contents of the form and attached documents. [16] Documents disclosed by the Appellant to the RPD on January 25, 2019, including a birth certificate, driver's licence and UFDG party membership card, all use a different spelling of the name: XXXX XXXX. At the beginning of the RPD hearing, Counsel for the Appellant requested an amendment to the Basis of Claim form changing the spelling of the Appellant's name on the form to XXXX XXXX. [17] The Appellant's explanation for misspelling his name when he arrived in Canada and made his refugee claim, was that he was panicked and not in his right mind. The RPD did not accept this explanation as reasonable given that the Appellant reads and writes in English and French, and is presumed to know how to spell his name correctly. I agree. I also find that even if the Appellant was scared and confused when he first arrived in Canada on XXXX XXXX XXXX 2016, he continued to misspell his name when he submitted his BOC form on October 17, 2016. [18] I do not find that the RPD has erred in determining that the Appellant's credibility with respect to identity was significantly undermined by the misspelling of his name. Evidence does not establish identity Passport [19] The Appellant argues that the RPD erred by holding it against him that he had destroyed documentary evidence of false documents. There is no reference in the RPD decision of destruction of false documents. [20] The RPD indicates that the evidence with respect to the Appellant's credibility about his identity is undermined for several reasons, including inconsistencies as to when and where he gave his genuine Guinean passport to the smuggler facilitating his travel to Canada. For this and other reasons, the RPD did not accept as reliable his explanations regarding his failure to present his valid passport in support of his identity, or reliable evidence establishing his route to Canada. [21] The RPD also took a negative inference with respect to the Appellant's credibility for his testimony of having used his Guinean passport to travel from Senegal to China and then to Canada despite not having visas for either country. I do not find that the RPD has erred in its findings regarding the credibility of statements made with respect to the Appellant's passport. Birth certificate not genuine [22] The Appellant presented a birth certificate as evidence of his identity before the RPD.9 [23] The RPD outlined in its decision several reasons for finding this document not genuine.10 [24] The Appellant described having presented a different version of a birth certificate when applying for his passport, but was vague and evasive when asked about what happened to that document, testifying simply that he did not have it. [25] The Appellant's testimony with respect to how his father obtained the birth certificate in evidence was also found to be evasive and generally not credible. [26] The birth certificate presented contains information that is not consistent with information about birth certificates in the National Documentation Package (NDP).11 The document presented is called a birth certificate copy, and not a birth certificate extract, as indicated in the NDP. The document presented also contains additional information including birth rank and father's birth year and contains no information about the Appellant's mother, contrary to what is indicated in the NDP. The Appellant did not know why the birth certificate presented was significantly different from the description of the document in the NDP. [27] The RPD found the reliability of the document to be undermined because a set of stamps and signatures on the document appear to be photocopied, and the explanation provided by the Appellant was simply that this is the way things are done in Guinea and he knows that because he is from there. [28] I find that given the concerns outlined, the RPD did not err in not accepting the Appellant's birth certificate as proof of identity. Driver's license is fraudulent [29] The RPD found that the Driver's License presented was fraudulent, and therefore did not establish the Appellant's identity. The RPD did not find that it was plausible that the document could be authenticated by emailing a free yahoo.fr email provider address, as is indicated on the driver's licence. I agree, and I also note that a driver's license is not a primary identity document establishing nationality, rather a driver's license establishes that an individual has received permission to drive in a specific jurisdiction. [30] More significantly, the document was issued on June 6, 2014 and expires on February 20, 2014. Therefore, the document expired before it was issued. The Appellant was not able to provide a response when initially asked about this during the hearing, but later stated that driver's licences for this class of vehicle did not expire. His credibility was further undermined when he explained that the date of June 6, 2017 that appears on the back of the document was put on when the document was renewed. No national identity card [31] The RPD did not address the issue of the National Identity card in its decision but the Appellant was asked questions about the National Identity Card by his Counsel at the hearing. The Appellant testified that he had this card, but his brother could not find it in his stuff. [32] According to a Response to Information Request in the NDP, the national identity card is mandatory for all citizens from the age of 15, and according to the US Department of State's Country Report on Human Rights Practices, Guinean authorities require all Guinean citizens over 18 years of age to present a national identity card at security checkpoints along borders and on certain strategic routes in Conakry. The Appellant's failure to provide or attempt to obtain this key document to establish his identity, when he would have needed it to travel out of Guinea to Senegal, further supports the overall finding that the Appellant has failed to establish his identity. CONCLUSION [33] I have reviewed the Appellant's testimony, documentary evidence, arguments, and have undertaken my own analysis to find that the RPD did not err when it found that the Appellant failed to establish his identity on a balance of probabilities. [34] As identity is an essential component of any refugee claim, I find that the Appellant's failure to establish his identity is determinative of his claim under sections 96 and 97 of IRPA. [35] For the reasons stated above, I find that there is no serious possiblity that the Appellant would be persecuted if returned or on a balance of probabilities that she would be at risk of torture, a threat to life or a risk of cruel and unusual treament or punishment. [36] 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 Immigration and Refugee Protection Act. (signed) "Paula Faber" Paula Faber August 6, 2019 Date 11951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 2. 4 Tekle v. Canada (Minister of Citizenship and Immigration), 2017 FC 1040. 5 Refugee Appeal Division Rules, SOR/2012-257 6 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 7 Exhibit RPD-1, RPD Record, Minister's Documents, pp. 34-74. 8 Exhibit RPD-1, RPD Record, Basis of Claim Form, pp. 16-28. 9 Exhibit RPD-1, RPD Record, p. 79. 10 Exhibit RPD-1, RPD Record, RPD Decision, paras. 17-25. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Guinea (October 31, 2018), Item 3.3. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-07509 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