TB8-03546

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 / Dossier de la SAR : TB8-03546 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, ON Appel instruit / entendu à Date of decision July 30, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are) the subject of the appeal Daniel Tilahun Kebede Barrister and Solicitor Conseil(s) (de la/des) personne(s) 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 XXXX (the "Appellant") is alleging to be a citizen of Eritrea and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant argues that the RPD erred in its identity assessment. After careful review of the evidence in the record, the Refugee Appeal Division (RAD) finds that the Appellant has not established, on a balance of probabilities, his personal and national identity as a citizen of Eritrea. [2] For the reasons provided below, the appeal is dismissed. BACKGROUND [3] The Appellant alleges that if he returns to Eritrea, he will be detained and tortured by the Eritrean authorities because of his critiques against the government, his escape and failure to finish his national service and his failure to pay the 2% foreign-based Eritrean tax. Further details are provided in his Basis of Claim (BOC) Form, and his testimony at the RPD hearing.1 The RPD's Decision [4] The Appellant had a refugee determination hearing on November 16, 2017. In a written decision issued on December 21, 2017, the RPD rejected the claim. The RPD panel found the Appellant failed to establish his identity. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Eritrea. [5] The Appellant argues that the RPD erred in its identity assessment, and he requests to submit new evidence and requests an oral hearing. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of his appeal, the Appellant proposes seven documents as new evidence: 1) Copy of the Appellant's Re-translated Eritrean Identity Card, issued XXXX XXXX 2010;4 2) Copy of the Appellant's Father's Eritrean Identity Card, issued XXXX XXXX 1992;5 3) Copy of the Appellant's Mother's Eritrean Identity Card, issued XXXX XXXX 1992;6 4) Letter from XXXX XXXX XXXX XXXX Eritrean Canadian Community Centre of Metropolitan Toronto, dated XXXX XXXX 2018;7 5) Letter from XXXX XXXX XXXX, dated XXXX XXXX 2018;8 6) Letter of XXXX XXXX XXXX, dated XXXX XXXX 2018;9 and, 7) The Appellant's Certificate of Marriage, dated XXXX XXXX 2016.10 [8] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), namely that it arose after, or was not reasonably available, or the person could not reasonably have been expected in the circumstances to have presented the evidence at the time the claim was rejected. If one of these conditions is met, the RAD will then consider if the evidence is credible, relevant, and new as endorsed by the Federal Court of Appeal in Singh.11 The Appellant's Argument on the Admissibility of New Evidence [9] The Appellant states in his affidavit that he could not have provided the above documents before the rejection of his claim because he did not expect the RPD to conclude that his identity was in doubt because he provided an Eritrean passport showing he travelled internationally.12 The Appellant submits that the letters were created after the RPD's decision and the other documents submitted were not in his possession because they were in Eritrea or Sudan, so they were not reasonably available.13 The RAD's Assessment on the Admissibility of New Evidence [10] I reject the Appellant's documents submitted on appeal and I find they are inadmissible as new evidence. The Appellant has not established under subsection 110(4) that he could not have provided the above documents at the time the RPD rejected his claim. [11] Identity is an issue in every case, especially in Eritrean refugee cases. The RPD also thoroughly questioned the Appellant about his identity documents and put its concerns to him during his hearing. The RPD's findings regarding his identity would not have caught the Appellant by surprise. In particular, the RPD asked the Appellant about discrepancies in his identity card, such as untranslated portions, how he obtained his identity card and passport, why he did not have an original identity card, and what other documents he could have provided, such as a marriage certificate. Furthermore, having been put on notice of these concerns, the Appellant had nearly five weeks to provide additional identity documents to the RPD after his hearing concluded and before the RPD rendered its decision. However, the Appellant failed to do so and he provides no information in his affidavit for why he could not have provided the above documents to the RPD prior to its decision. [12] Moreover, with respect to the letters dated after the RPD's decision, my analysis is not restricted to the date on the proposed new evidence. Rather, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.14 Old evidence remains old evidence, even if it is placed in a new document with a recent date. In these letters, the authors refer to knowing the Appellant prior to the RPD's decision, yet no explanation is provided why this evidence supporting his identity could not have been provided at the time the RPD rejected the claim. For the above reasons, I find the Appellant has not satisfied the requirements of subsection 110(4), and therefore, all of the documents submitted are inadmissible as new evidence. Request for an Oral Hearing [13] As there is no new evidence being accepted by the RAD, there can be no oral hearing in accordance to subsection 110(6) of the IRPA. Therefore, the application for an oral hearing is dismissed. DETERMINATIVE ISSUE [14] The Appellant argues the RPD erred in its assessment of his identity.15 ANALYSIS The RAD finds the Appellant has not established his Eritrean identity The National Identity Card The Appellant's Argument [15] The Appellant argues that the RPD erred in its assessment of his national identity card. In particular, he submits that the RPD erred by impugning the card's genuineness based on its assessment of features that can only be identified by examining the original. Such features include its colour and the repeated words of ERITREA inside the document, which is difficult to observe on a photocopy. [16] The Appellant also submits that it is notable that the address on the example provided in the National Documentation Package (NDP) is like the Appellant's card, insofar as his card does not state his house number. In this respect, he argues the RPD did not have the evidence to make a negative inference on the basis that authorities include a house number on identity cards. To make such a conclusion was speculative. [17] Moreover, the Appellant argues that the RPD failed to consider the cultural context in its analysis. For example, the RPD stated that he should have remembered the surnames of his witnesses when he obtained his identity card, even though in Eritrea surnames are not usually referred to when identifying a person. Finally, the Appellant argues that the RPD was microscopic in impugning his credibility because he failed to remember the exact issue date of his original identity card, which was lost for a number of years. The RAD's Assessment [18] While I agree with the Appellant that the RPD's findings with respect to the absence of his house number on the card, and his inability to remember the exact issue date of his original identity card and his witnesses' surnames are not sustainable, and I have set these aside, I do not find that this alters the RPD's conclusion that his identity card is not genuine. I find that the RPD's analysis of the inconsistencies and irregularities with the card, inconsistencies about who sent him the card, his testimony about how he obtained his replacement card without supporting documents, his lack of a reasonable explanation for not providing the original identity card, and the prevalence of fraudulent documents in Sudan and Eritrea are sufficient to sustain the RPD's finding that the identity card is fraudulent on a balance of probabilities. My reasons are as follows. [19] First, with respect to the Appellant's allegation that the RPD would be unable to assess the identity card's security features only on the original and not a photocopy, this argument is rejected. The Appellant provides no evidence to show that the security features would not be perceptible on a photocopy. In this regard, I note that the copy in the NDP does show particular security features, such as the 192 ERITREAs on the document, which is noticeably absent from the Appellant's identity card. This detracts from the credibility of the Appellant's national identity card. [20] Furthermore, the RPD stated that the colour of the scanned copy it reviewed did not match the colour of the specimen in the NDP, which further detracted from the credibility of the identity card. Considering I do not have a colour copy before me, nor do I have access to the Appellant's email, in which the scanned copy was viewed on the Appellant's phone by the RPD at the hearing, the RPD had a meaningful advantage in making this finding. Therefore, the RPD's finding deserves deference. In the absence of any evidence to indicate why the colour copy viewed by the RPD would be different than the colour copy in the NDP, I find the RPD's finding on the colour of the document is reasonable. Its analysis is intelligible and comprehensible, and based on the evidence in the record. [21] Second, I find it is disingenuous of the Appellant to suggest that the RPD have assessed the original identity card, when the RPD specifically asked for the physical version of his identity card. In response to the RPD's inquiry about why he did not provide the original, the Appellant's testimony was evolving. Initially he stated that it was with his wife in Sudan, and he did not provide it because he "forgot", but later he testified that "he did not think he needed it". I reject the Appellant's explanation for not providing the original of his national identity card, as his testimony was evolving and he provided a copy of the card at his hearing. In addition, considering the Appellant was represented by experienced counsel, and his General Application Form states that he had a national identity card, his explanation for not providing the original of his identity document is rejected. I too draw a negative credibility inference due to his lack of a reasonable explanation for not providing the original identity card to the RPD. [22] Third, I agree with the RPD that the provenance of the copy of his identity card undermines its credibility. In this respect, I note that the Appellant does not contest this particular finding. Considering the Appellant does not contest this particular finding, I see no reason to interfere with it, it is correct and based on the evidence in the record. The RPD found that the Appellant was inconsistent about who sent him the copy of his identity card. Initially, the Appellant testified that his wife sent it to him. However, when the RPD noted that the email address was from a person of a different name, his testimony changed to say that his wife does not have email. In addition, the Appellant later testified that his wife has access to an email address, which contains both of their names, and that she uses it. I concur with the RPD that the Appellant's inconsistent and evolving testimony raises doubt about the provenance of the copy of his identity card, which further undermines its credibility. [23] Fourth, the Appellant also does not contest the RPD's finding that his explanation for how he obtained a replacement national identity card without supporting documentation, was inconsistent with the objective evidence in the NDP. Considering the Appellant does not contest this particular finding, I see no reason to interfere with it, it is correct and based on the evidence in the record. The NDP states that supporting documentation is required for the issuance of an identity card and a replacement card.16 However, the Appellant stated he did not need to provide any supporting documentation, which I find further detracts from the credibility of the Appellant's identity card. [24] Finally, given the above credibility concerns on the face of the copy of the Appellant's national identity card, including the unreliable translation provided to the RPD, as well as the prevalence of fraudulent documents in Eritrea and Sudan, I find that the Appellant's identity card is fraudulent, on a balance of probabilities. Therefore, I give the Appellant's copy of his national identity card no weight to establishing his Eritrean citizenship. The Passport The Appellant's Argument [25] The Appellant submits that it was an error to find the authenticity of his passport suspect on the basis of his identity card, simply because he used the identity card to obtain the passport. The Appellant states that the Federal Court has stated that the RPD cannot assign his passport little weight based solely on problems with another document used to acquire the passport. [26] The Appellant argues that the RPD erred in its assessment of his passport because it ignored country conditions evidence in the NDP that states due to restrictions on travel, the Eritrean government does not issue regular passports and exit visas to citizens in his age group because they have not completed their military duties or arbitrarily for no given reason. The NDP also states that passport and exit visas are often accessed through paying a bribe. He submits that the paying of a bribe to obtain a passport does not impugn its authenticity. It is in this context that the Appellant's passport should be assessed. [27] In addition, the Appellant argues that the RPD failed to consider evidence that supports his passport is authentic. Specifically, he points to the entry and exit stamps in his passport from 2015 and 2017 and that it is a reliable indicator that Eritrean authorities believe it to be authentic. He also notes that he travelled on that passport to Dubai and the U.S., which shows other immigration authorities have examined the passport and adding to its credibility and in establishing his Eritrean identity. [28] Finally, the Appellant submits that his passport is presumed to be evidence of his citizenship, which can only be displaced with strong evidence. He argues that the RPD failed to take appropriate steps to investigate the passport's authenticity, such as requesting the original from CBSA to examine it, or request the RCMP to examine the passport. They request the RAD order that his passport be examined by an expert. In this case, he argues that there is insufficient evidence to question the authenticity of a passport and for the RPD to conclude it is not genuine, unless evidence is produced to prove otherwise or the RPD is able to determine based on contradictory evidence that calls the document into question. The RAD's Assessment [29] I am unpersuaded by the Appellant's argument and find the RPD did not err for the following reasons. [30] With respect to the Appellant's argument that the RPD cannot reject the Appellant's passport based solely on the deficiencies in another document, which he used to acquire his passport, I note that the RPD did not reject his passport solely on this basis. Rather, the RPD also reasoned that the passport deserved little weight because he testified that he acquired his passport through bribery and because he was not forthright regarding what information he provided to the official he bribed. In this latter respect, I note that the Appellant does not contest this finding. Considering the Appellant does not contest this finding, I see no reason to interfere with it. The RPD asked the Appellant several times what information he provided to get his passport. In response, the Appellant's testimony evolved from stating he did not have to fill out an application form and provided new information each time he was asked about what he provided to the official. He was also vague about who assisted him in obtaining his passport, indicating that people helped him, and later indicated that only one person assisted him. Having reviewed the record, I find the RPD's finding in this regard is correct and based on the evidence in the record. This undermines the credibility of his passport. [31] That said, where the RPD is satisfied that one or more of an applicant's identity documents have been fraudulently obtained or are otherwise inauthentic, the presumption that the applicant's remaining identity documents are valid can no longer be maintained. Notwithstanding, the RPD and the RAD are still required to at least consider and assess the authenticity and probative value of each of those documents, as well as any other supporting documents submitted by the claimant.17 This was done in this case. [32] In regard to the Appellant's argument that the RPD did not consider the country conditions evidence about obtaining passports and exit stamps, as well as his international travel on his passport, I agree that the RPD did not comment on the exit stamps and his international travel on his passport. However, in light of the Appellant's admission that he obtained his passport through bribery, as well as considering the country conditions evidence that someone in his situation would be unable to legitimately obtain a passport and exit permit since he is wanted for military desertion, I am not convinced that the Appellant's passport warrants any weight. Especially considering it is established above that the Appellant has the ability to obtain fraudulent Eritrean identity documents, which he provided to allegedly obtain a passport, which rebuts the presumption of authenticity. In the circumstances of this case, at best the Appellant's passport establishes that he has the ability to obtain an Eritrean passport through illegitimate means. This does not establish on a balance of probabilities that he is Eritrean citizen. [33] Finally, the Appellant's submission that the RAD should order the CBSA to have the document examined by an expert, is also rejected. I note that the RAD does not have the jurisdiction to order the CBSA to do what the Appellant proposes. However, generally speaking, the RPD and RAD are under no obligation to submit identity or other documents for forensic analysis. The RPD and RAD are recognized as possessing expertise in the evaluation of the authenticity of identity documents. If there are irregularities on the face of an identity document, in the absence of a satisfactory explanation, we are allowed to discount its probative value without seeking an expert assessment of the document.18 This was done in this case, and the Appellant has been given an opportunity to address the RPD's concerns with his documents. As indicated above, the Appellant has failed to satisfactorily address these concerns. Therefore, I find the RPD did not err. [34] Section 106 of the IRPA states that 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.19 Similarly, Rule 11 of the Refugee Protection Division Rules requires that claimants provide acceptable documents establishing their identity and other elements of their claim.20 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.21 Identity findings must also be based on the totality of the evidence.22 [35] The totality of the evidence before me is a fraudulent national identity card, and a passport given no weight, the latter of which the Appellant admits to having acquired through illegitimate means. The country documentation supports that a person in the Appellant's situation would be unable to obtain a legitimate passport and exit permit. As such, in light of the credibility concerns with the Appellant's testimony and his lack of credible documents supporting his national identity, I find the Appellant has not established his personal and national identity on a balance of probabilities. This appeal must be dismissed. CONCLUSION [36] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its identity findings. Therefore, the RPD's final determination that the Appellant is not a Convention refugee or a person in need of protection is correct. DETERMINATION OF THE APPEAL [37] 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 paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).23 (signed) "G. Erauw" G. Erauw July 30, 2018 Date 1 Exhibit RPD-1, RPD's Record, Appellant's Basis of Claim (BOC) Form, at pp. 16-28; and Exhibit RPD-1, RPD's Record, Audio Recording. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Appellant's Re-translated Identity Card, at pp. 16-19. 5 Exhibit P-2, Appellant's Record, Appellant's Father's Identity Card, at pp. 20-22. 6 Exhibit P-2, Appellant's Record, Appellant's Mother's Identity Card, at pp. 23-25. 7 Exhibit P-2, Appellant's Record, Letter from XXXX XXXX XXXX, at p. 26. 8 Exhibit P-2, Appellant's Record, Letter from XXXX XXXX XXXX, at pp. 27-29. 9 Exhibit P-2, Appellant's Record, Letter of XXXX XXXX XXXX, at pp. 30-31. 10 Exhibit P-2, Appellant's Record, Certificate of Marriage, at p. 32. 11 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 12 Exhibit P-2, Appellant's Record, The Appellant's Appeal Affidavit, at pp. 14-15. 13 Exhibit P-2, Appellant's Record, The Appellant's Written Statement, at p. 34. 14 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 16. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 43-52, at paras. 18-39. 16 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Eritrea, 30 June 2017, at item 3.6, at pp. 2-3, and item 2.7, at pp. 52-53. 17 Teweldebrhan, Paulos Petros v. M.C.I. (F.C., no. IMM-790-14), Crampton, April 2, 2015, 2015 FC 418. 18 Umba, Laetitia Masial v. M.C.I. (F.C., no. IMM-6318-02), Martineau, January 9, 2004, 2004 FC 25; Kazadi, Christian Kabunda v. M.C.I. (F.C., no. IMM-4740-04), de Montigny, February 24, 2005, 2005 FC 292. 19 Immigration and Refugee Protection Act, SC 2001, c. 27, at s. 106. 20 Refugee Protection Division Rules, SOR/2012-256. at s. 11. 21 Ibid. 22 Yang v. Canada (Citizenship and Immigration), 2009 FC 681, at para. 6. 23 Paragraph 111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c. 27. [IRPA]. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-03546 RAD.25.02 (July 05, 2018) Disponible en français 13 RAD.25.02 (July 05, 2018) Disponible en français