MB5-00539

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. / No de dossier de la SAR : MB5-00539 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 / heard at Montréal, Quebec Appel instruit à Date of decision September 30, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Karima Karmali and Me Sarah Concettini Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister Angela Papadakis Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, who states that he is a citizen of Djibouti, is appealing against a decision of the Refugee Protection Division (RPD). He submits that the RPD erred in its conclusion that he did not establish his identity. In support of his appeal, he is submitting some documents that, in his opinion, establish his identity. II. DETERMINATION OF THE APPEAL [2] Under section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination of the RPD and refers the matter to a differently constituted RPD panel for re-determination so that it can analyze this refugee protection claim, given that the appellant established his identity. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that he signed on March 13, 2013, the appellant states that he is a citizen of Djibouti, that he was born on XXXX XXXX, 1970, that he belongs to the Midgan ethnic group, that he is Muslim, that he speaks French and Somali, and that all of his relatives have the same citizenship but that some of them live in Ethiopia.1 [4] Because the RPD decision concerned the matter of the identity of the appellant (then referred to as the claimant), I will not repeat the other statements the appellant made in his BOC Form. [5] In addition to his BOC Form, the appellant (then referred to as the claimant), filed some documents, including a birth certificate and a national identity card,2 before the RPD. B. Minister's intervention [6] The Minister of Citizenship and Immigration Canada (the Minister) intervened before the RPD and entered into evidence an analysis of the birth certificate that concluded that the document was counterfeit.3 [7] The Minister also submitted that, according to his research, the claimant did not tell the truth about his arrival date in Canada and that, furthermore, the RPD should find that he did not establish his identity.4 C. RPD decision [8] The hearing before the RPD took place on May 26 and August 21, 2014, and the decision rejecting the refugee protection claim was rendered on December 19, 2014.5 [9] The RPD found that the claimant had misled it by stating that he had obtained another national identity card after losing the original. The RPD wrote as follows on this matter: [10] The Tribunal had the "carte d'identité nationale" analysed and received a result from the Canada Border Services Agency (CBSA). There was a document analysis report, and the result was that the document was counterfeit. [11] The claimant was then reconvened for the continuation of his original hearing on the 21st of August 2014. At that time, the Tribunal asked for clarification about the issuance of the document, provided the report from the CBSA establishing that the document, i.e. "carte d'identité nationale", was counterfeit, and requested explanation. The claimant stated that it was a duplicate. He testified at one point that the document had been issued in replacement of the original document that he had lost. The Tribunal offered a chance to the claimant to present an official identity document from his country, with a picture on it, something issued by the official authorities of his country, to establish his identity. The panel agreed to give him until the 19th of September to produce such document. [12] The RPD received, on the 22nd of September, the original identity card number XXXX, dated the 22nd of August 1992. However, it turned out that this plasticized card was undoubtedly the original that served to produce, by a photocopying process of some kind, the other card initially presented and submitted by the claimant, and which had been found to be counterfeit by the expertise report of the CBSA. [13] It therefore appears that the claimant misled the Tribunal when he stated that he went to obtain another "carte d'identité nationale" because he had lost his, and that the authorities of Djibouti plainly and simply issued him a "duplicate", namely the card that has been established as being counterfeit in the analysis report from CBSA. The Tribunal does not believe that either "duplicate" card has been issued by an official authority of the claimant's country, nor that he lost the alleged original.6 [10] Consequently, the RPD found that the claimant was not credible and that he had not established his identity.7 D. Grounds of appeal and decision sought [11] In his memorandum, the appellant submits that the RPD erred in its conclusion that he did not establish his identity. In support of his appeal, he is presenting some documents that he believes establish his identity.8 [12] The appellant is requesting that the RAD set aside the determination of the RPD and refer the matter to the RPD for re-determination by a differently constituted panel.9 IV. ADMISSIBILITY OF DOCUMENTS SUBMITTED ON APPEAL A. The appellant submitted documents as part of his appeal [13] In his memorandum, the appellant states that, in support of his appeal, he is presenting documents that meet the admissibility criteria. In his written statement, he also refers to these same documents.10 B. Test for admissibility [14] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD 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. It should be noted that subsection 110(4) refers to the rejection of the appellant's claim for refugee protection as the time limit, not the hearing before the RPD. After the RPD hearing, but before a decision takes effect, a party who wants to provide a document as evidence must make an application to that effect.11 [15] So far, the decisions of the Federal Court regarding the interpretation of subsection 110(4) of the IRPA provide at least two points of view that differ on certain aspects.12 The Federal Court of Appeal is set to rule on this matter soon.13 [16] That being said, I am aware of the fundamental differences that exist between the pre-removal risk assessment (PRRA) process and the appeal process in this case, and I readily accept the assertion that the reasons for limiting the receipt of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal before the RAD, particularly given the truncated timeline for finalizing the refugee determination proceeding before the RPD.14 [17] Although I accept that a full appeal before the RAD requires the criteria for the admissibility of evidence to be sufficiently flexible to ensure that a proper appeal can occur and to afford the appellant some leeway in order to allow him or her to respond to the deficiencies raised by the RPD,15 based on a recent Federal Court decision,16 I am of the opinion that this evidence must still meet the admissibility criteria set out in subsection 110(4) of the IRPA. [18] The RAD Rules provide that the record of the person who is the subject of the appeal must contain, among other things, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act and a memorandum that includes full and detailed submissions regarding how the evidence meets the requirements of subsection 110(4) and how that evidence relates to the appellant.17 C. The RAD's decision regarding the admissibility of the documents in question [19] In his memorandum, the appellant provided full and detailed submissions regarding how the evidence presented on appeal meets the requirements of subsection 110(4) of the IRPA. [20] The RPD rejected the refugee protection claim in this case on December 19, 2014. a. The affidavit of XXXX XXXX [21] This document is dated February 20, 2015.18 [22] In this document, Mr. XXXX states that he was born on XXXX XXXX, 1970, in Djibouti, that he is now a Canadian citizen, that he went to high school with the appellant in Djibouti, that they have stayed in touch since then and that he saw him again around March 20, 2014, in Ottawa. He added that he made this declaration to confirm the appellant's identity. [23] Having carefully read the appellant's memorandum and written statement and taken into account the case law available to date, I am of the opinion that this document is admissible in this appeal. It will be filed as A-1. b. The affidavit of XXXX XXXX [24] This document is dated February 25, 2015.19 [25] In this document, Mr. XXXX states that he was born on XXXX XXXX, 1973, in Djibouti, was recognized as a refugee by the RPD in November 2013,20 now lives in Ottawa, played on a football team with the appellant from 1990 to 1998 in Djibouti, has known his wife since childhood, having grown up in the same neighbourhood in Djibouti. He adds that he got back in touch with the appellant in March 2014 and that he made this declaration to confirm his identity. [26] Having carefully read the appellant's memorandum and written statement and taken into account the case law available to date, I am of the opinion that this document is admissible in this appeal. It will be filed as A-2. c. The certificate of lost or stolen documents [27] This document is dated September 3, 2014.21 [28] In this document, the Director of Public Security for the Republic of Djibouti attests that XXXX XXXX XXXX, the appellant, declared that he lost his national identity card, No. XXXX, issued on August 22, 1992. [29] This document existed before the RPD rejected the refugee protection claim and does not refer to evidence that arose since December 19, 2014. [30] The appellant's memorandum contains the following submissions regarding this document: 80. Document (d) is a certificate from the Djibouti Police affirming the loss of the Appellant's national identity card. This document is relevant and probative of the Appellant's loss of his national identity card in 2012, an issue which was not believed by the RPD and led to a negative credibility finding.... 81. Document (d) was not submitted due to the failure of his former counsel. The Appellant states in his affidavit that he obtained the certificate from the police in Djibouti in October 2014, confirming that his original national ID card from 1992 was reported lost. He submitted this document to his former counsel that same month believing it would be submitted to the RPD. The RPD did not render its decision until December 19, 2014. It was not until after the Appellant learned of the refusal of his refugee claim and went to collect a copy of his refugee file from his former counsel in February 2015 that he learned his former counsel still had this original document and had not submitted it to the RPD. The Appellant denies being advised by his former counsel on September 26, 2014, or at any other time before February 2015, that he should not submit this certificate of loss because it contradicted the document submitted on September 22, 2014 and indicated that he still has his original identity card from 1992. The Appellant states that his former counsel appears to be under the same mistaken belief as the RPD that the September 22, 2014, national identity card was issued in 1992 instead of 2012. The Appellant further states that former counsel may have simply decided based on his own mistaken understanding, not to submit the certificate of loss, or may have forgotten to do so.... 82. Under these circumstances, the Appellant cannot be faulted for the failure to provide the document to the RPD.22 [31] In light of the appellant's submissions, I am of the opinion that this document meets the second criteria specifically set out in subsection 110(4) of the IRPA, in that, although it existed, he was unable to present it before the RPD.23 [32] That being said, I carefully read the recent decision of Mr. Justice Gascon, in which he writes that, even if evidence presented by an appellant falls into one of the two categories of evidence covered by subsection 110(4) of the IRPA, the RAD still has the discretion to declare it admissible or not.24 [33] For my part, at this stage of the appeal proceedings, I am of the opinion that this document should be declared admissible, but at the next stage there will be an opportunity to analyze its reliability and authenticity. This document will be filed as A-3. d. A medical certificate [34] This document is dated February 23, 2011.25 [35] In this document, a physician certifies that he examined XXXX XXXX XXXX, age 41, who claimed to have been the victim of a physical assault. [36] This document existed before the RPD rejected the refugee protection claim and does not refer to evidence that arose since December 19, 2014. [37] What is more important, however, is that this document does not relate to the appellant's identity. Consequently, I am of the opinion that it is not admissible in the context of this appeal, which deals strictly with whether the appellant established his identity. V. HEARING BEFORE THE RAD A. The appellant requested that a hearing be held [38] In his memorandum, the appellant requested that a hearing be held before the RAD.26 B. Test under subsection 110(6) [39] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it justifies allowing or rejecting the claim. If the answer is yes, the RAD may then hold a hearing. C. There is cause to hold a hearing before the RAD [40] In this case, I found that three documents presented on appeal were admissible. [41] That said, although they raise a serious issue with respect to the appellant's credibility and are central to the decision, I am of the opinion that, alone, they do not justify allowing the refugee protection claim. In fact, for a refugee protection claim to be allowed, the analysis that must be done goes far beyond the matter of identity. [42] However, these three documents may, on their own, justify rejecting the claim because they do not establish the appellant's identity. Because the question of determining whether a refugee protection claimant has established his or her identity is a question of fact and credibility, I find that, in the circumstances, there is cause to hold a hearing.27 [43] Consequently, I find that there is cause to hold a hearing before the RAD, to hear the individuals who signed affidavits A-1 and A-2, to hear the appellant and to address the following questions: * How was document A-3 obtained? * The reliability and authenticity of documents A-1, A-2 and A-3. * What is the impact of the information in documents A-1, A-2 and A-3 in relation to whether the appellant has established his identity? * Any other question that, in my estimation, is raised by the appellant's statements during this hearing with regard to establishing his identity. [44] The hearing was held on Tuesday, September 29, 2015. [45] The Minister's representative participated in the hearing. VI. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [46] In his memorandum, the appellant refers to the Federal Court's decision in Huruglica and submits that the RAD must assess all aspects of the RPD's decision and conduct an independent analysis to determine whether the claimant is a refugee or a person in need of protection.28 He also submits that when the RPD's conclusions do not deal exclusively with the testimony but also with the documentary evidence, the RAD owes no deference to the RPD, must reconsider the evidence and arrive at its own conclusions.29 B. A brief summary of certain Federal Court decisions [47] In Huruglica, Mr. Justice Phelan ruled that the RAD must conduct an independent assessment of the refugee protection claim in order to arrive at its own opinion and that, in order to trigger this remedial power, it is not necessary that the RAD find error on some standard of review basis. 30 [48] In Balde, Mr. Justice Mosley indicates that the different strands of jurisprudence that have emerged to date from the Federal Court all accept the principle that the RAD must show deference to the RPD's findings of credibility, since the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.31 C. Independent assessment with a measure of deference [49] Drawing as much as possible on the Federal Court decisions rendered to date, I am of the opinion that I must assess all the relevant evidence and arrive at my own conclusions regarding the issue of whether the appellant has established his identity. I am of the opinion that I am not required to show deference to the RPD's credibility findings, given that a hearing was held before the RAD and that I am therefore not at a disadvantage in comparison to the RPD with regard to the matters that were addressed before it. VII. ANALYSIS OF THE MERITS OF THE APPEAL [50] Having read and examined the relevant evidence on the record, including the testimony of the appellant and the two witnesses, and after considering the submissions of the appellant's lawyer and those of the Minister's representative, I find that the appellant has established his identity. Here is why. A. The principles of citizenship and identity [51] The question of a refugee protection claimant's citizenship is not a temporary issue but rather an important one, because a claimant who is a citizen of a country from which he or she has not sought protection may have his or her refugee protection claim rejected.32 [52] Moreover, the question of whether a person who claims refugee protection has established his or her identity is a question of fact and credibility.33 [53] In Kaur, Justice Shore writes: The reasons of the Board, in respect of the claimant's absence of bona fide original identity documents "in conformity with the Subsection (sic) 106 of" IRPA would lead one to think that section 106 provides the criteria for proving one's identity. In reality, section 106's primary focus is on credibility. What section 106 basically states, is that the claimant has the burden of proving his or her identity and if he or she fails to do so in a satisfactory manner, this can affect credibility; such wording is preferable to avoid confusion about the purpose of section 106 of IRPA.34 [54] In Hoidanu, Justice Rennie writes: 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.35 [55] According to the case law, a refugee protection claimant bears the onus of establishing, on a balance of probabilities, that he or she is the person he or she claims to be.36 In light of section 106 of the IRPA and rule 11 of the Refugee Protection Division Rules (RPD Rules),37 I am of the view that it can be stated that refugee protection claimants bear the onus of presenting acceptable documents to establish their identity. If they are unable to do so, they must provide an explanation and indicate what steps they took to obtain them.38 Rule 11 of the RPD Rules is certainly clearer on the subject than section 106 of the IRPA. Rule 11 clearly identifies the refugee protection claimant's obligation to provide acceptable documents establishing their identity and other elements of the claim. The English version is considered more direct than the French in this regard: "The claimant must provide acceptable documents establishing their identity and other elements of the claim."39 However, it should be noted that in French, the use of the present indicative, including in federal legislation, is sufficient to express the imperative nature of a rule. [56] It is well settled in law that it is the task of the trier of fact to weigh the testimonial and documentary evidence and to draw conclusions as to whether the evidence is sufficient to establish the claimant's identity on a balance of probabilities.40 B. The certificate of lost or stolen documents (A-3) [57] First of all, I am of the view that the reliability of this document41 was not established even though this certificate indicates that the appellant lost his national identity card, even though, according to the appellant's affidavit, his wife went to a police station in Djibouti on September 3, 2014, to obtain this proof of the report he allegedly made himself, in 2012.42 Nothing in the certificate indicates that it was his wife who requested it after he had reported the loss of his national identity card in 2012. In addition, during his testimony before the RAD, the appellant stated that it was his older brother who went to the ministry of the interior within the police directorate to obtain this document. His testimony therefore contradicts what he wrote in his affidavit about what he did to obtain this document. Regardless, this certificate indicates that it was the appellant who reported the loss of his national identity card; it does not mention the appellant's older brother. [58] Next, based on a careful reading of the original version of this document, I note that the acronym containing the word POLICE is not clear; more specifically, it is obscured, which leads me to doubt its authenticity. Asked to explain this at the hearing before the RAD, the appellant responded that, in his opinion, it is the stamp and the seals on this document that establish their authenticity. In my view, that is not an explanation of the symbol itself. [59] Next, based on a careful reading of the original version of this document, I note that the letterhead contains no address or telephone number for the ministry of the interior and decentralization. I also note that the capitals have no accents on them, while there are generally accents in French, including on capital letters. For example, in the duplicate of the appellant's national identity card,43 in the words RÉPUBLIQUE [Republic] and IDENTITÉ [identity], which are written in block capitals, the accents are there. Asked to explain, the appellant simply stated that there are no official addresses in Djibouti and that people know where to find the institutions in question. He provided no explanation for the accents. [60] Next, this certificate of lost or stolen documents, dated September 3, 2014, contains no information in Arabic about the authorities that issued this document. According to the documentary evidence, the official languages of the Republic of Djibouti are Arabic and French. That said, the documentary evidence also indicates that the Djiboutian government uses French in its forms and documents, because Arabic is still not commonly used, even though both official languages are used in government signage.44 In the duplicate of the appellant's national identity card,45 there is information in Arabic next to "République de Djibouti," [Republic of Djibouti] "carte nationale d'identité" [national identity card] and "Pour le Ministre de l'Intérieur" [for the minister of the interior]. During the hearing before the RAD, the appellant was not confronted with this situation. I am of the opinion, however, that it is an important element to take into consideration. [61] Next, during the hearing before the RAD, the appellant stated that his brother had not presented any document concerning him to obtain this certificate of lost or stolen documents dated September 3, 2014. He stated that his brother had simply presented his own national identity card to obtain this certificate. When asked to explain how the director of public security, who signed this certificate, could then have included in this document that the appellant is of Djiboutian nationality, if no document specifically concerning him was presented to him, the appellant provided no explanation, except that his brother had an important career in his country. In my opinion, there is reason to doubt the reliability of this certificate, particularly where it states that the appellant is a Djiboutian national when no document was presented to establish that. [62] Finally, this certificate states specifically that it is not an identity document. Consequently, I am of the opinion that it cannot be used to establish the appellant's identity. B. The affidavits and the testimony of the two witnesses [63] In their affidavits and in their testimony, the witnesses stated that they knew the appellant when they were living in Djibouti. They went to the same school and participated in sports together. The witnesses knew some members of the appellant's family, but, when questioned at the hearing, both of them stated that they did not know the appellant's mother and father. [64] Asked to explain how they could state that the appellant is indeed a Djiboutian citizen, one of them answered that he would not have been able to go to a school in Djibouti if he was not a Djiboutian national or citizen; the other answered that he had to present papers to play on the football teams. Asked whether children of other nationalities could study in Djibouti, the first witness answered no. Asked whether there were football players of other nationalities, the second witness answered that it was possible, but that they had to present papers. Asked whether he had seen the appellant present papers showing that he was a Djiboutian citizen, which would allow him to play football, he answered no. [65] In my opinion, the testimonies were provided spontaneously, and they contain no contradictions with the contents of the affidavits and the appellant's own statements. That said, although these testimonies may establish that the appellant did indeed live in Djibouti for a number of years, study there and participate in sports, they do not establish that the appellant is indeed a citizen of Djibouti. [66] In terms of the statement by one of the witnesses that only Djiboutian nationals can attend school in Djibouti, I have found no specific information on this point in the documentary evidence. The appellant provided none either. What is certain is that Djibouti has schools where foreign nationals go, specifically to be educated in the French system, given that Djibouti was a French colony, then a French overseas territory, then the French Territory of the Afars and Issas, before gaining independence in 1977. Today, French civilians represent 90 percent of the European population living in Djibouti, France accounts for nearly 60 percent of the country's gross national product, and France's second largest military base in Africa is located there.46 In addition, the documentary evidence indicates that there are about 300,000 refugees from Ethiopia and Somalia or Eretria live in Djibouti. In this context, there is reason to believe that at least a portion of the children of these refugees go to schools in Djibouti without having obtained citizenship from the country. Consequently, I am of the opinion that the testimony provided by one of the witnesses does not, on its own, establish that the appellant is in fact a citizen of Djibouti. [67] In terms of the statement by one of the witnesses that players need to present papers to play on football teams, he himself acknowledged that some people who are not citizens of Djibouti could present their own papers and then play, but that he himself had not witnessed the appellant presenting documents that then allowed him play. Consequently, this testimony definitely does not establish that the appellant is a citizen of Djibouti. C. The duplicate of the appellant's national identity card [68] The duplicate of the appellant's national identity card was adduced as evidence before the RPD.47 [69] In its decision, the RPD explained why it found that the claimant had misled it by stating that he had obtained another national identity card after losing the original.48 [70] In his memorandum, the appellant made several submissions to demonstrate that the RPD erred in its analysis of this duplicate of his national identity card. Here are a few: 40. While the national identity card submitted on September 22, 2014 (and the photocopy of this card submitted on May 26, 2014) does indicate the 1992 issuance date of the original identity card on the front of the card, the back of the card indicates it was issued on August 13, 2012 and it is a duplicate (or " duplicata " in French).... 41. The RPD erred in failing to mention the 2012 issuance date on the reverse side of the card, particularly since it contradicted its finding that the Appellant had lied about losing his national identity card in 2012 and receiving a duplicate from government authorities. 42. This error was important as it led to the RPD to make a negative credibility finding and to discount the official identity card submitted September 22, 2014, which established the Appellant's identity.... 47. According to CBSA's expert analysis report, dated June 2, 2014, the national identity document submitted for the May 26, 2014 hearing did not contain any security features normally associated with such documents and the seal was printed using a four-color process ("quadrichromie" in French). Four-colour process is the technique typically used for commercial printing. On this basis, CBSA concluded the document was counterfeit. It should be noted that CBSA also concluded at page two of its report that there was no evidence that the document had been altered. CBSA's report indicates, in other words, that the laminated document submitted for the May 26, 2014 hearing was a copy and not an official document.... 48. CBSA's report was in fact consistent with the Appellant's testimony that the May 26, 2014 was a copy of the duplicate he had requested from his family.... 49. As such, there was no contradiction between the national identity card submitted on September 22, 2014 and the other evidence. As discussed above, the document clearly indicates on the reverse side that it was issued on August 13, 2012 and not in 1992, as stated by the RPD.... 50. Nor did the RPD note any irregularities which were apparent on the face of the document.... 51. To the contrary, the national identity card submitted on September 22, 2014 has a raised stamp with serrated edges on the reverse side, which the RPD had expected to find on the copy submitted at the May 26, 2014 hearing. It also has a red seal over the photo of the Appellant and the card background on its front side. It is not apparent on its face that the issues identified in CBSA's June 2, 2014 report, four-colour printing and the lack of security features, apply with respect to this new document.... 52. There was therefore no valid basis for concluding the national identity card submitted on September 22, 2014 was counterfeit and the RPD erred by assigning it no weight without submitting it for its own expert analysis.49 [71] For her part, after participating in the hearing before the RAD and seeing the original version of the duplicate of the appellant's national identity card, the Minister's representative stated in her submissions that she had no doubt as to the authenticity of this document. [72] It is well settled in law that it is the task of the trier of fact to weigh the evidence and to draw conclusions as to whether the evidence is sufficient to establish a refugee protection claimant's identity on a balance of probabilities.50 That said, when examining a claimant's identity, the panel must arrive at those conclusions based on the totality of the evidence presented.51 [73] Another principle that must be remembered is that a document that is presented as an authentic document cannot be given little probative value: [21] Documents issued by a government authority that appear genuine on their face are presumed to be authentic unless there is a valid reason to doubt their authenticity. In the case at bar, the Board did not explicitly rule on the authenticity of the Applicant's birth certificate but nevertheless found this document to have little probative value. This finding is problematic for a number of reasons. [22] While it was not entirely inaccurate to characterize the birth certificate as a handwritten "fill-in-the-blank form", it was clearly unreasonable to conclude that the document contains no security features. It is apparent on the face of the birth certificate that it bears the official emblem of Sudan and an official stamp. As submitted by the Applicant, official stamps are recognized as security features in the jurisprudence of this Court, and the following quote from Ru v Canada (Minister of Citizenship and Immigration), 2011 FC 935, at para 49 [Ru] is but one illustration of that jurisprudence: My review of the Marriage Certificate reveals that the English translation says that the original does bear an official seal or stamp. Likewise, the Birth Certificate also appears to have an official stamp. As Justice Tremblay-Lamer pointed out in Zheng [Zheng v Canada (Minister of Citizenship and Immigration), 2008 FC 877], above, at paragraphs 18-19, official stamps are recognized as security features... [23] Moreover, I agree with the Applicant that a document that is presented as an authentic document cannot be given "little probative value". If the Board believed the birth certificate to be inauthentic, it should have been discarded entirely.52 [74] Having carefully examined the original version of the appellant's duplicate national identity card, which is part of the appeal record, I am of the opinion that this document has on its face sufficient security features and information to link it to the appellant. That said, I am aware that I did not have the benefit of an analysis by counterfeit experts. In that regard, however, I note that the Minister's representative, who participated in the hearing before the RAD, stated that she was satisfied that this document is authentic and did not propose that an expert analysis be done to verify its authenticity. D. The appellant established his identity [75] I note that the appellant entered Canada with a false passport.53 However, I bear in mind that someone claiming refugee protection may have travelled using false documents and that the explanations for this can be credible, given the circumstances that led this person to flee his or her country of origin.54 [76] In light of all the evidence, in light of the relevant case law, having carefully considered the arguments presented in the appeal memorandum, and having taken into account the submissions made at the hearing, I am of the opinion that the appellant has presented an acceptable document to establish his identity and that he has established, on a balance of probabilities, that he is indeed the person he claims to be, namely, XXXX XXXX XXXX, a citizen of Djibouti. VIII. CONCLUSION [77] For these reasons, I set aside the RPD's determination and refer the matter to a differently constituted RPD panel for re-determination so that it can analyze this refugee protection claim, given that the appellant has established his identity. [78] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette September 30 Date IRB translation Original language: French 1 BOC Form, pages 10, 16, 17 and 20 of the RPD record. 2 The list of the documents is reproduced at page 75 of the RPD record. The documents themselves are reproduced at pages 76 to 82 of the RPD record. 3 Document M-1 is reproduced at pages 89 to 96 of the RPD record. 4 Notice of intent to intervene, May 14, 2014, reproduced at pages 87 and 88 of the RPD record. 5 RPD reasons and decision, pages 3 to 7 of the RPD record. 6 Idem, paragraphs 10 to 13, page 6 of the RPD record. 7 Idem, paragraph 14, page 6 of the RPD record. 8 Appellant's memorandum, February 25, 2015, pages 79 to 100 of the appeal record. 9 Idem, paragraphs 86 and 87, pages 99 and 100 of the appeal record. 10 Idem, paragraphs 67 to 85, pages 94 to 99 of the appeal record. See also appellant's affidavit, paragraphs 10 to 14, pages 12 to 16 of the appeal record. 11 RPD Rules, SOR/2012-256, rule 43. 12 See in particular Shukurov v. Canada (Minister of Citizenship and Immigration), No. IMM-6058-14, Fothergill, August 6, 2015; 2015 FC 949, at paragraph 24, and Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-5580-14, Boswell, July 24, 2015; 2015 FC 906, at paragraph 13. 13 Minister of Citizenship and Immigration v. Parminder Singh, A-512-14, scheduled to be heard on October 8. 14 Olowolaiyemo v. Canada (Minister of Citizenship and Immigration), No. IMM-7767-14, Gascon, July 22, 2015; 2015 FC 895, at paragraph 27. See also Sow v. Canada (Minister of Citizenship and Immigration), No. IMM-1011-14, Barnes, March 9, 2015; 2015 FC 295, at paragraph 16. 15 Olowolaiyemo, at paragraph 28. See also Ajaj v. Canada (Minister of Citizenship and Immigration), No. IMM-5604-14, Gascon, July 28, 2015; 2015 FC 928, at paragraph 61. 16 Deri v. Canada (Minister of Citizenship and Immigration), No. IMM-7050-14, Strickland, September 2, 2015; 2015 FC 1042, at paragraphs 48, 51, 55 and 60. 17 RAD Rules, SOR/2012-257, subrule 3(3). 18 The document in question is at page 54 of the appeal record. 19 The document in question is at page 57 of the appeal record. 20 The RPD Notice of Decision is reproduced at page 59 of the appeal record. 21 The document in question is reproduced at page 72 of the appeal record. 22 Appellant's memorandum, paragraphs 80, 81 and 82, pages 98 and 99 of the appeal record. 23 Olowolaiyemo v. Canada (Minister of Citizenship and Immigration), No. IMM-7767-14, Gascon, July 22, 2015; 2015 FC 895, at paragraphs 17, 18 and 19. 24 Idem, at paragraph 20. 25 The document in question is reproduced at page 73 of the appeal record. 26 Appellant's memorandum, paragraph 88, page 100 of the appeal record. 27 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-5553-05, Shore, April 6, 2006; 2006 FC 438, at paragraph 10. 28 Appellant's memorandum, paragraphs 20 and 22, page 84 of the appeal record. 29 Idem, paragraphs 23 and 24, pages 84 and 85 of the appeal record. 30 Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, November 7, 2014; 2014 FC 799, at paragraph 47. 31 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. In the same vein, also see: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 32 Abedalaziz v. Canada (Minister of Citizenship and Immigration), No. IMM-7531-10, Shore, September 9, 2011; 2011 FC 1066, at paragraph 28. 33 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-5553-05, Shore, April 6, 2006; 2006 FC 438, at paragraph 10. 34 Kaur v. Canada (Minister of Citizenship and Immigration), No. IMM-3740-04, Shore, January 25, 2005; 2005 FC 103, at paragraph 17. 35 Hodanu v. Canada (Minister of Citizenship and Immigration), No. IMM-4712-10, Rennie, April 20, 2011; 2011 FC 474, at paragraphs 10 and 22. 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 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, at paragraph 37. 41 The document in question is reproduced at page 72 of the appeal record. The original version of this document was provided in an envelope that is part of the record. 42 Appellant's affidavit, paragraph 13, page 14 of the appeal record. 43 The document in question is reproduced at page 78 of the RPD record and at page 32 of the appeal record. The original version of this document was provided in an envelope that is part of the record. 44 IRB, National Documentation Package on Djibouti, May 30, 2014 (the index of which is reproduced at pages 48 to 59 of the RPD record), Document 1.4, Jacques Leclerc, "Djibouti." L'aménagement linguistique dans le monde, May 27, 2012, not paginated, under heading 4. "La politique linguistique." 45 Supra, footnote 43. 46 Supra, footnote 44, under heading 3.1. "La présence française." 47 Supra, footnote 43. 48 RPD reasons and decision, paragraphs 10 to 13, page 6 of the RPD record, which are reproduced at paragraph 9 of this decision. 49 Appellant's memorandum, paragraphs 40, 41 and 42 and 47 to 52, pages 88 to 91 of the appeal record, citations omitted. 50 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, at paragraph 37. 51 Hodanu v. Canada (Minister of Citizenship and Immigration), No. IMM-4712-10, Rennie, April 20, 2011; 2011 FC 474, at paragraph 21. 52 Elhassan v. Canada (Minister of Citizenship and Immigration), No. IMM-9787-12, de Montigny, December 12, 2013; 2013 FC 1247. 53 Notice of intent to intervene, paragraphs 3 and 4, pages 87 and 88 of the RPD record. 54 United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, reedited, Geneva, December 2011, articles 196 to 205, pages 40 to 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-00539 21