TB5-05547

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. / N° de dossier de la SAR : TB5-05547 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 21, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ngozi Oti Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX, is a citizen of Nigeria, and appeals a decision of the Refugee Protection Division (RPD) dated May 4, 2015, rejecting his claim for refugee protection. The Appellant has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD or that the RAD refer the matter back to the RPD for reconsideration. [2] The RPD hearings were held on March 26, 2015 and April 23, 2015 and a decision rendered on May 4, 2015. The RPD found that the Appellant had failed to establish his identity. Determination [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Principal Appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [5] While there has been some conflict in the case law from the Federal Court regarding the standard to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection and will consider only the issues raised by the Appellant. Issues Raised by Appellant [7] The Appellant raises the issues of whether the RPD erred in rejecting the identity of the Appellant. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD found that the determinative issue in this claim is the identity of the Appellant. [9] The Appellant submitted a copy of a birth certificate3 to prove his identity. After carrying out an analysis of the document the RPD found this document to be fraudulent. The RPD determined that the document was allegedly issued by the state of Edo but the official stamp of the document read "Eao". [10] The RPD then compared the birth certificate to a death certificate submitted by the Appellant which had allegedly been issued from the same office in the same province. The RPD compared some features common to both documents. The image of the bird found in the crest of the death certificate is more detailed than the image of the bird in the birth certificate. The RPD also found that the image of the pyramid in the birth certificate seems to have been tampered with. The shading of the "bricks" of the pyramid is erratic and uneven, with some parts not being fully shaded in. [11] The RAD asked counsel to submit the original copies of the birth certificate and the death certificate. The RAD had an opportunity to examine both of these original documents and found that they contain the errors outlined by the RPD in its decision. [12] In his submissions to the RPD and to the RAD,4 counsel argues that this is an issue of poor document quality and points to the Board's own documentation which indicates that birth certificates from the Appellant's country may be of poor quality.5 [13] The RPD rejected this submission. It stated: 'The panel finds it more likely that this error is indicative of the document being fraudulently produced, as the misspelled stamp, in combination with the other concerns with the appearance as noted are, in the panel's view, very significant errors and unlikely to be attributed to another reason."6 [14] The RAD agrees with the conclusion of the RPD. This is not an issue of "poor document quality" but an issue of substantial errors on the face of the birth certificate. It is unlikely that a government agency would utilize an official stamp with the name of the province misspelled to issue official government documents. The RAD concludes that the birth certificate submitted by the Appellant does not establish that he is a citizen of Nigeria and that he has failed to provide a reasonable explanation for the lack of documentation which would establish his identity. [15] Counsel submits that the RPD failed to consider the testimony of the Appellant's aunt and that her testimony should suffice to establish the identity of the Appellant. With respect to this issue, the RPD concluded: "According to the testimony given by his aunt, herself, the XXXX and the claimant's mother were all party to providing the documents that the panel has found are likely fraudulent.7 The RAD agrees with this conclusion. The Appellant is a minor and relied on the assistance of his mother and aunt to produce the documents. As the Federal Court stated: "Producing a false document to support allegations in a refugee claim must not be minimized by the Court and legitimately allows the tribunal to doubt a claimant's credibility."8 The RAD agrees with the conclusion of the RPD in dismissing the oral testimony with respect to the Appellant's identity based on the fact that the Appellant's aunt and mother assisted the Appellant in producing documents which have been found to be false. [16] The RAD finds that since identity is the determinative issue, it does not have to deal with the other issues raised by the Appellant. DECISION [17] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Principal Appellant is neither a Convention refugee nor a person in need of protection. [18] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino August 21, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952 3 Exhibit RPD-1, RPD's Record, Exhibit 4, p. 110 4 Exhibit P-2, Appellant's Record, Memorandum, p. 12, para. 4 5 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (28 November, 2014), item 3.11 6 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 6, para. 11 7 Exhibit P-2, Appellant's Record, p. 7, para. 15 8 Gutierrez, Lesli Karina Castro v. M.C.I. (F.C., no. IMM-1693-07), Martineau, November 15, 2007, 2007 FC 1192 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05547