MB4-02273

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 : MB4-02273 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 22, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Juan Cabrillana Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, who states that she is a citizen of the Democratic Republic of the Congo (DRC), is appealing against the decision of the Refugee Protection Division (RPD), alleging that the RPD committed errors with regard to her identity and her credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In her Basis of Claim Form (BOC Form), the appellant states that she is a Congolese citizen, that she was born on XXXX XXXX, 1984, that she is Christian, that she speaks Lingala and that her brother was living in the Congo at that time.1 [4] In her BOC Form, in response to question 5, asking the appellant to list her relatives, living or dead, she lists only her brother, XXXX XXXX.2 [5] In another part of her BOC Form, she states that her name is XXXX XXXX XXXX and that she is the daughter of XXXX XXXX and XXXX XXXX, who died on December XXXX XXXX 2000.3 [6] Since the RPD decision concerned the matter of whether or not the appellant (then the claimant) had established her identity, I will not repeat the other statements the appellant made in her BOC Form. B. RPD decision [7] The hearing before the RPD was held on April 16, 2014, and the decision rejecting the refugee protection claim was rendered on May 21, 2014.4 The RPD was of the opinion that the claimant had not reasonably established her identity.5 [8] In its reasons for decision, the RPD states that the Minister of Citizenship and Immigration (the Minister) intervened in this case and was of the opinion that the claimant had not discharged her burden of establishing her identity.6 The RPD notes that the claimant submitted only two identity documents: a birth certificate dated XXXX XXXX, 2014, and a driver's licence issued on XXXX XXXX, 2010.7 [9] With respect to the birth certificate, the RPD notes that it was issued one month after the claimant's arrival in Canada. It considered the claimant's explanation that, when she arrived in Canada, in order to establish her identity, she had contacted a Christian pastor to ask him to go to the commune where she was born, to provide her contact information and to obtain this birth certificate for her. When questioned about this, the claimant acknowledged that this birth certificate does not contain her correct address, but rather, the address where she lived from 2006 to 2011.8 [10] Its conclusion with respect to this birth certificate is as follows: [Translation] [14] The panel cannot attach any probative value to this document. The document was obtained after the claimant's arrival in Canada and on its face contains incorrect information with respect to the claimant's address at the time this certificate was issued. Moreover, this address does not appear in the port-of-entry forms (I-1) as an address where the claimant allegedly resided before her arrival in Canada.9 [11] The RPD also attached no probative value to the driver's licence in establishing the claimant's identity, given that her name appears to be incorrect, that it was issued for vehicle categories for which she could provide no explanation, and that, according to the claimant's explanation, it had been obtained unofficially.10 [12] The RPD also states that it questioned the claimant about the possibility of obtaining other identity documents. She answered that she could not provide a marriage certificate because hers was only a traditional marriage that was never registered with civilian agencies in the DRC. She also answered that she had not thought to take steps to obtain copies of school certificates or documentation to corroborate her visits to the hospital in the DRC.11 [13] The RPD therefore concludes as follows: [Translation] [22] Even taking into account the claimant's allegations and considering the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution, the panel is not satisfied with the claimant's reasons for failing to provide acceptable identity documents. She was advised early on in her refugee protection claim that identity was an important element. Moreover, both the RPD and the Minister of Citizenship and Immigration expressed concerns regarding the claimant's identity. She appeared before the panel with no acceptable identity documents, and the panel is of the opinion that the claimant's explanation for why there are no identity documents is not reasonable.12 C. Grounds of appeal and decision sought [14] In her memorandum, the appellant submits that the RPD committed errors with respect to her identity and her credibility.13 [15] First, concerning the birth certificate, the appellant submits that she explained that after 2011, her husband, who had four wives, had decided to house her in a new hut that he was building, and that this hut did not appear in the registries. This address could not be included in the port-of-entry forms either. She submits that the DRC cannot issue a birth certificate with her current address on it. Therefore, in her opinion, the RPD erred in fact, and its decision to give no weight to this document in its analysis of the facts and the evidence is patently unreasonable.14 [16] Next, concerning the driver's licence, the appellant submits that it was obtained upon presentation of her birth certificate, which contains her own name, not the name she had to take when she was forced to convert to Islam. She also submits that she stated before the RPD that she has never driven a car, and that the licence had been purchased by her husband without her taking the driving test. In this regard, she submits in her memorandum that in the DRC, you simply pay and that is it. Consequently, in her opinion, the RPD erred in fact, and its decision to give no weight to this document in its analysis of the facts and the evidence is patently unreasonable.15 [17] Next, the appellant submits that it was unreasonable for the RPD to consider that she had made no effort to obtain a marriage certificate, when in fact such a document simply does not exist.16 She also submits that it was unreasonable for the RPD to not take into account the fact that the DRC has not had an identity card for over 30 years, and that it is very difficult to establish one's identity.17 [18] Last, the appellant submits that the RPD focused its questions on peripheral aspects that should not cast doubt on the truth of her testimony regarding her identity.18 She submits that at no time did the RPD provide reasons for its conclusions with regard to the factual elements of her narrative.19 [19] The appellant asks that the RAD allow the appeal, set aside the RPD's determination and determine that she is a refugee and a person in need of protection, or alternatively, to refer the matter back to the RPD for re-determination.20 [20] In her statement, the appellant indicates that she is not providing any new evidence, and she has not requested a hearing before the RAD.21 IV. APPROACH TO BE TAKEN IN THIS APPEAL [21] In additional submissions provided at the RAD's request, the appellant's lawyer states that the standard of the palpable and overriding error should be applied in this case.22 [22] In Alyafi, after reviewing the reasoning adopted by his Federal Court colleagues in previous decisions, Justice Martineau notes that they appear to have interpreted the IRPA differently and contradictorily with respect to the nature of appeals before the RAD.23 He then identifies three approaches: the standard of judicial review, or "reasonableness"; the standard of appellate review, or "palpable and overriding error" (Garcia Alvarez, Eng and Spasoja24); and a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a "hybrid appeal"-and the particular nature of questions of fact, or of mixed fact and law, raised by the appellant (Huruglica25).26 [23] After dismissing the first approach, Justice Martineau states that the second and third approaches prevail today, but that they create a real dilemma, given the differences that exist between them.27 Rather than choosing between these two approaches, applying the principle of judicial comity, Justice Martineau states that he chose the path of wisdom: allowing 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.28 [24] In Djoussou, Justice Martineau demonstrates that the approach then used by the RAD to determine its role in relation to the RPD was an unacceptable outcome in law.29 He is unequivocal: an appeal before the RAD is not a judicial review, as the RAD has much broader powers on appeal than those of a court of law sitting in judicial review.30 He invites the RAD to consider the three options before it (a true appeal, an appeal de novo, and a hybrid appeal) with an open mind.31 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD, until such time as the Federal Court of Appeal or the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus will be on the RAD to review the IRPA and to adopt a new test based on an analysis that will take all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and a composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact, or law and fact being also a possible option.32 [25] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions diverge within the Federal Court on the level of deference that is owed.33 In Sajad and Bui, Justice Shore ruled that the RAD owes a certain level of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.34 [26] Drawing as much as possible on the decisions rendered to date by the Federal Court, I am of the opinion that, in this case, while conducting my own assessment of the evidence, I must show a certain level of deference to the RPD's findings concerning the appellant's credibility. V. ANALYSIS OF THE MERITS OF THE APPEAL [27] Having read and analyzed the relevant evidence in the record and the RPD's reasons for decision, I draw the same conclusion as the RPD, that is, that the appellant did not establish her identity, for the following reasons. [28] It is settled law that it is the task of the trier of fact to weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish the refugee protection claimant's identity, on a balance of probabilities.35 [29] According to the case law, a person claiming refugee protection bears the onus of establishing, on a balance of probabilities, that they are the person they claim to be.36 In light of section 106 of the IRPA and rule 11 of the Refugee Protection Division Rules,37 I am of the opinion that the onus is on the person claiming refugee protection to submit acceptable documentation establishing their identity. If they are unable to do so, they must explain why and what steps they took to obtain it.38 Rule 11 of the RPD Rules is undoubtedly more explicit on this subject than section 106 of the IRPA, as it clearly sets out the refugee protection claimant's obligation to provide acceptable documents establishing their identity and other elements of their claim. The English version speaks more clearly than the French in this regard: "The claimant must provide acceptable documents establishing their identity and other elements of the claim."39 In French, however, the use of the present indicative, including in a federal statute, is sufficient to express the imperative nature of a rule. [30] Further, as Justice Rennie writes in Hoidanu: Under section 106 of the IRPA, the Board must assess the applicant's credibility in cases where the applicant has failed to provide the Board with adequate identity documents.... Section 106 of the IRPA requires that an applicant's credibility be assessed in light of his or her failure to provide adequate identity documents.40 [31] I have examined the birth certificate in evidence before the RPD.41 This document is signed by the burgomaster of the Kinshasa commune, who certifies that the documents in his possession demonstrate that XXXX XXXX XXXX, daughter of XXXX XXXX and XXXX XXXX, residing in Kinshasa at XXXX XXXX Avenue, in the district of XXXX, Kinshasa commune, from the XXXX sector in the XXXX territory, district of XXXX, Kasaï Oriental province, was in fact born in Mbuji-Mayi on XXXX XXXX, 1984. It states on this birth certificate that it was issued in Kinshasa on XXXX XXXX, 2014. [32] In its reasons for decision, the RPD notes that this certificate was issued one month after the claimant's arrival in Canada. It considered the claimant's explanation that, in order to establish her identity upon her arrival in Canada, she contacted a Christian pastor and asked him to go to the commune where she was born, provide her contact information and obtain this birth certificate for her once the registries had been verified.42 [33] The documentary evidence states that in the DRC, it is easy to obtain birth certificates by bribing the authorities or through forgery, and there is no national registry where copies of these documents are kept.43 [34] If, as the documentary evidence indicates, there is no national registry where copies of birth certificates are kept, and if, as the appellant stated in her testimony before the RPD, all of her original identity documents were burned in early 2013, I find it difficult to imagine how she could have obtained a reliable birth certificate. The appellant's explanation before the RPD was that a Christian pastor had gone to the commune where she was born, provided her contact information and obtained a certificate after the registries were verified. However, the Kinshasa commune is not the appellant's commune of birth, as she was born in Mbuji-Mayi in Kasaï Oriental province, according to that certificate and to the information provided in her BOC Form.44 Moreover, according to the documentary evidence, there is no national registry where copies of birth certificates are kept, which casts doubt on the appellant's statement that a check of a registry was conducted. Lastly, in her IMM 5669 form, which she signed on February 18, 2014, in response to questions 8 and 12, she states that from December 2006 to June 2013, she resided at XXXX XXXX, Kinshasa,45 which does not match the address that appears on this birth certificate, that is, XXXX XXXX Avenue. [35] Therefore, like the RPD, I conclude that this birth certificate is not an acceptable document establishing the appellant's identity, and that the appellant's explanations in this regard are not reasonable or credible. [36] I have also carefully examined the driver's licence in evidence before the RPD.46 This document indicates that it was issued on XXXX XXXX, 2010, to XXXX XXXX. The address on it is the same as the address on the birth certificate, that is, XXXX XXXX, Kinshasa. [37] According to the documentary evidence, the national driver's licence in the DRC is pink, laminated and difficult to falsify. The words "République démocratique du Congo" appear on it. No information was found among the sources consulted by the IRB's Research Directorate concerning the security features of this national driver's licence or their uses.47 [38] Since I did not have access to the original version of this driver's licence, I cannot verify whether or not it is pink and laminated. Regardless, I note that the appellant's name appears on this driver's licence as XXXX, while in her BOC Form and the IMM 5669 form, her name is XXXX, and XXXX XXXX is her given name. Further, and more importantly, according to the appellant's testimony, this licence was obtained unofficially, apparently simply because it was paid for. Therefore, like the RPD, I conclude that this is not an acceptable document establishing the appellant's identity, and that the appellant's explanations in this regard are not reasonable or credible. [39] In short, having taken the appellant's arguments into consideration and carefully examined the relevant evidence on file, as well as the RPD's reasons for decision, I conclude, as did the RPD, that the appellant did not establish, on a balance of probabilities, that she is in fact the person she claims to be. [40] Since the appellant's identity has not been established, there is no need to further analyze her narrative or her allegations concerning her fear of persecution or a risk to her life, and her claim must be rejected.48 VI. CONCLUSION [41] For the foregoing reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [42] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette December 22, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 165, 170 and 173 of the RPD record. 2 Idem, page 170 of the RPD record. 3 Idem, page 174 of the RPD record. 4 RPD decision, pages 3 to 10 of the RPD record. 5 Idem, paragraph 10, page 6 of the RPD record. 6 Idem, paragraph 11, page 6 of the RPD record. 7 Idem. 8 Idem, paragraphs 12 and 13, pages 6 and 7 of the RPD record. 9 Idem, paragraph 14, page 7 of the RPD record. 10 Idem, paragraph 18, page 8 of the RPD record. 11 Idem, paragraph 19, page 8 of the RPD record. 12 Idem, paragraph 22, page 9 of the RPD record. 13 Appellant's memorandum, June 27, 2014, pages 16 to 26 of the appeal record. 14 Idem, paragraphs 4 and 5, page 19 of the appeal record. 15 Idem, paragraphs 6 to 9, pages 19 and 20 of the appeal record. 16 Idem, paragraphs 10 and 11, pages 20 and 21 of the appeal record. 17 Idem, paragraph 12, page 21 of the appeal record. 18 Idem, paragraph 14, page 21 of the appeal record. 19 Idem, paragraph 17, page 22 of the appeal record. 20 Idem, page 26 of the appeal record. 21 Statement signed on June 26, 2014, by the appellant, page 12 of the appeal record. 22 Additional submissions provided on August 26, 2014, by the appellant's lawyer, pages not numbered. 23 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 46. 24 In Spasoja, Justice Roy ruled that an appeal before the RAD must be dealt with as an appeal and not a quasi-judicial review. He goes on to state that an error of fact must be palpable and overriding to succeed on appeal, with the understanding, furthermore, that questions of law must be analyzed on a correctness standard. 25 In Huruglica, Justice Phelan ruled that a standard of review analysis is not an appropriate analytical approach in the context of appeals before the RAD, and that one must instead look at such factors as the purpose of the appellate tribunal, the relevant statutory provisions, comparable expertise, and comparative appellate appeal regimes. After analyzing these factors, he concludes that the RAD is required to conduct a hybrid appeal, which means that it must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. That said, according to this last decision, in conducting its assessment as part of the administrative appeal, the RAD "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 a 'palpable and overriding error'." 26 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 16. In Triastcin v. Canada (Minister of Citizenship and Immigration), No. IMM-5981-13, Shore, October 15, 2014; 2014 FC 975, at paragraph 29, Justice Shore states that his colleague's decision in Alyafi summarizes, by means of a comprehensive analysis, all of the Federal Court decisions made to date with regard to the mandates of the RAD; that decision provides an overview to help arrive at a certain stare decisis in this regard. In Diarra v. Canada (Minister of Citizenship and Immigration), No. IMM-1217-14, Beaudry, October 23, 2014; 2014 FC 1009, at paragraphs 20 to 22, Justice Beaudry reiterates the three approaches identified by his colleague Justice Martineau. 27 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 43. 28 Idem, at paragraphs 42 to 46. 29 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 30 Idem, at paragraph 41. 31 Idem, at paragraph 55. 32 Idem, at paragraph 91. 33 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 34 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 35 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, at paragraph 37. 36 Stoliarenko v. Canada (Minister of Citizenship and Immigration), No. IMM-10358-03, Noël, November 9, 2004; 2004 FC 1578, at paragraph 8: "Identity is an essential item to be proved if the panel is to be successfully persuaded that an applicant is a refugee and that he is a person in need of protection." Mayuma v. Canada (Minister of Citizenship and Immigration), No. IMM-33-04, Beaudry, October 27, 2004; 2004 FC 1509, at paragraph 11: "It is settled law that the applicant bears the onus of establishing his identity (Harakrishna v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 810 (T.D.) (QL) at paragraph 9)." Hazara v. Canada (Minister of Citizenship and Immigration), No. IMM-5758-01, Tremblay-Lamer, December 4, 2002; 2002 FCTD 1256, at paragraph 10: "This Court has held that a claimant must prove on a balance of probabilities that he is the person he claims to be (Yip v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1285)." 37 SOR/2012-256. 38 Section 106 of the Act: "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." Rule 11 of the 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." 39 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 40 Hodanu v. Canada (Minister of Citizenship and Immigration), No. IMM-4712-10, Rennie, April 20, 2011; 2011 FC 474, at paragraphs 10 and 22. 41 This document is reproduced at page 189 of the RPD record. 42 RPD decision, paragraphs 12 and 13, pages 6 and 7 of the RPD record. 43 Immigration and Refugee Board (IRB), National Documentation Package on the DRC, March 14, 2014: Document 3.10: Research Directorate, IRB, Democratic Republic of Congo (DRC): Incidence and accessibility of fraudulent identity, administrative and legal documents (February 2006), COD101014.FE, 6 pages, at page 3. This document is not reproduced in the RPD record, although the index of the documentation package is reproduced at pages 79 to 90. 44 Basis of Claim Form (BOC Form), page 174 of the RPD record. 45 This document is reproduced at pages 135 to 138 of the RPD record. 46 This document is reproduced at page 190 of the RPD record. 47 IRB, National Documentation Package on the DRC, March 14, 2014: Document 3.12: Research Directorate, IRB, Democratic Republic of Congo (DRC): The national driver's licence, COD103523.FE, 3 pages, at page 1. This document is not reproduced in the RPD record, although the index of the documentation package is reproduced at pages 79 to 90. 48 Qiu v. Canada (Minister of Citizenship and Immigration), No. IMM-3382-08, Snider, March 16, 2009; 2009 FC 259, at paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02273 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02273 11