TB6-11786

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 : TB6-11786 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 20, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Aurina Arnab Chatterji Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) claims he is a citizen of Eritrea. He appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has tendered new evidence in his appeal and requests an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute a determination that he is a Convention refugee or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. BACKGROUND [3] The Appellant alleged before the RPD that he is a citizen of Eritrea. After grade ten he did not continue attending school for fear of being conscripted into national service. He worked at his father's XXXX in the night time and hid in a room in the XXXX during the day in order to avoid capture by Eritrean security. In 2005 he was detained in a round-up and brought to XXXX XXXX XXXX XXXX. After four days, he escaped and remained in hiding for four years in his father's XXXX. In XXXX 2009, the Eritrean security forces apprehended him at his father's XXXX and brought him to XXXX Prison where he was interrogated, tortured and beaten for XXXX months. During a transfer to another facility, he escaped and with the assistance of his paternal uncle, fled to Sudan in XXXX 2010. He lived with another uncle in Sudan until 2012 when he married XXXX XXXX XXXX. By XXXX 2016, his father was able to save enough money to pay a smuggler to assist him in coming to Canada. He arrived in Toronto on XXXX XXXX, 2016 and with the help of a friend from the Eritrean community, he obtained a lawyer and made a claim for refugee protection at an inland office. [4] The claimant fears return to Eritrea, where he alleges he would be imprisoned and tortured for evading national service and his illegal exit from Eritrea. He also fears he would be punished and tortured as a failed-asylum seeker. ROLE OF THE RAD [5] The RAD finds that the Federal Court of Appeal's decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. In accordance with the decision of the Court, the RAD will conduct its own assessment of the RPD's decision to determine if the RPD erred and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [6] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The Appellant has submitted a marriage certificate as proposed new evidence with his Appellant's Record. The Appellant submits that the proposed new evidence meets the test of s. 110(4) of the IRPA. [8] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). While the RAD finds that further analysis of the evidence is required before the RAD can accept the proposed new evidence, the analysis as set out in Raza2 is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.3 [9] Accordingly, the RAD has adapted the analysis in Raza4 to the assessment of evidence submitted to the RAD. [10] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.5 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.7 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,8 or that it proves a fact that was unknown to him at the time of the hearing?9 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza,11 the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [11] The Appellant argues that he could not have reasonably provided this document at an earlier time because he could not have anticipated that the RPD would insist on seeing an original marriage certificate when he had provided originals of other identity documents. He argues that he was reluctant to send it initially because he was concerned about it getting lost in the mail and it was not until the RPD raised its concerns about the original that he arranged for it to be sent to Toronto. He also argues that he could not foresee that the RPD would reject his other identity documents including his original national identity card and baptismal certificate. [12] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the issue of the original marriage certificate was raised during the hearing. The Appellant has acknowledged that the marriage certificate was available but that he decided not to tender it for his hearing. Once the issue was raised by the RPD at the hearing, the Appellant and his counsel were put on notice of the importance of tendering this document for his hearing. Despite having two weeks from the date of the hearing before the rejection of his claim, the Appellant did not tender the marriage certificate nor did he or his counsel signal their intent to tender it to the RPD. The RAD finds that the Appellant bears the burden of explaining how his evidence meets the statutory requirement to be admitted as new evidence, however he has not explained why he could not have tendered this document prior to the rejection of his claim. [13] The RAD finds that given the Appellant was aware of the importance of this document and the fact that he has acknowledged that it was available to him once he was put on notice, it is reasonable to expect that he would have tendered it prior to the rejection of his claim or put the RPD on notice of his intent to do so. [14] Accordingly the RAD finds that the Appellant's proposed new evidence is not admitted as new evidence in this appeal. Oral Hearing [15] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under section 110(4), section 110(5) or Minister's evidence), in which case, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim [16] As new evidence has not been admitted in this appeal the RAD has no discretion to hold a hearing. The application to hold a hearing is dismissed. ANALYSIS OF THE MERITS OF THE APPEAL [17] The Appellant submits that in order to establish his identity before the RPD, he tendered his original Eritrea National Identity Card and baptismal certificate and copies of his driver's licence and his marriage certificate. He also provided his parents' national ID cards as further evidence of his identity and medical documents to support the elements of his claim. He submits that despite tendering this extensive proof, the RPD rejected all of these documents based on microscopic, speculative and overzealous findings. National Identity Card [18] The Appellant tendered an Eritrean national Identity Card (NIC) as corroboration of his identity. The RPD found for a number of reasons that it could give no weight to the National Identity Card in establishing his identity or establishing that he was in Eritrea at the material time. [19] First, the RPD noted that the NIC was issued in 2003, at a time when the Appellant would have been 19 or 20 years old. In his narrative and testimony, the Appellant testified he spent several years in hiding in his father's XXXX in order to avoid national service, and yet he testified that he presented himself to a government office to obtain his NIC. The RPD found that the Appellant's explanation about how he was able to obtain his NIC at a time that he alleged that he was in hiding from authorities made little sense. [20] The Appellant submits that at the time he was only hiding because he was avoiding being drafted but he had not yet come to the notice of authorities. As such, he was not yet a personal target but was merely one of many draft evaders. He further argues that he only had to pay a fee to receive his NIC and that immigration and the police functioned separately. He submits that while there is state wide control in Eritrea, the authorities enforcing military conscription work separately from immigration officers issuing documents. [21] The RAD is not persuaded by the Appellant's argument in this regard. While it may be true that immigration authorities function separately from police enforcing conscription, the objective evidence indicates that there is a county-wide control of the population exercised by agents of the state. 12 As noted by the RPD the documentary evidence indicates that a well-established network of government informants, as well as the countrywide control over the population is exercised by State agents. Furthermore, according to the UN inquiry and research by rights groups, the country has widespread networks of informants.13 The government exercises rampant use of spies through a "complex and militarized system of surveillance."14 [22] The RAD notes that although the Appellant argues that he was not yet a personal target, the objective evidence indicates that everyone over the age of eighteen years is required to serve in the National Service. 15 Furthermore, the RAD notes that the objective evidence states that since the summer of 2002, the government adopted stronger measures to address individual's efforts to evade service. Military police visited private homes, workplaces and social gathering sites in search of recruits16. [23] The RAD finds that the objective evidence is compelling and convincing that the state employs significant efforts to identify individuals that are required to do National Service. The RAD finds it reasonable given the efforts of the state to identity those evading service that agencies of the state would cooperate in that effort. [24] The RAD notes that the Appellant has alleged that he was so fearful of being conscripted that he hid in his father's XXXX for years and that his father had to fill out the application for his NIC because he could not move freely. The RAD finds that given the Appellant's testimony and the objective evidence, the Appellant's testimony about how he was able to obtain his NIC while in hiding lacks credibility. The RAD further finds that the Appellant's testimony in this regard also undermines the credibility of the NIC. [25] Secondly, the RPD drew an adverse inference from the Appellant's testimony concerning why he is listed as a "student" on his national identity card. The RPD noted that the Appellant did not provide an explanation as to what proof he provided to show that he was a student at the time, and given his age at the time of application, it is highly unlikely that the Eritrean authorities would not question why he is a student when he is past the age of conscription and not enlisted in national service. Again, the RAD notes that the documentary evidence indicates that active and reserve military/national service is mandatory for every Eritrean, male or female, between the ages of 18 and 50.17 [26] He further argues that he could not provide details about the documents he provided to authorities because it was his father who applied for the NIC on his behalf. As such it is reasonable that he did not know the details of the documents that were required. The Appellant further argues that his NIC showed that he was a student because he had hoped that this would hide the fact that he was a draft evader. [27] The RAD is not persuaded by the Appellant's argument in this regard. As noted by the RPD, the Appellant testified that he presented himself and the application to government officials. The RAD finds that in the context of the state's intensified efforts to identify evaders, it makes little sense that the Appellant would not know what documents he presented in support of his application for his NIC, particularly in the event he was questioned about his status as a student. [28] After its own review and assessment, the RAD agrees with the RPD's finding in this regard. [29] Thirdly, the RPD noted that the Appellant's NIC does not bear the Appellant full date of birth but only shows his year of birth. The RPD rejected the Appellant's explanation that Eritrean officials would only list an individual's year of birth because they do not care about the rest of the details. The RPD noted that the documentary evidence shows that citizens over the age of 18 must have a national identity card and it contains the person's date of birth (emphasis added), amongst other details.18 The card does not indicate that the year of birth must be listed but that the "Date of Birth" must be listed. Moreover, the card lists a "Date of Issue" which encompasses the day, month, and year that the card was created. In the Appellant's particular circumstances, the date of issue on his card was listed as "XXXX XXXX XXXX XXXX2003." The card clearly indicates a complete issue date and therefore the RPD found it reasonable to expect that the date of birth would be written in a manner consistent with which the date of issue was written; since the actual date of birth is known and not in question. [30] After its own review and assessment, the RAD agrees with the RPD's finding in this regard. [31] The RAD agrees with the RPD and finds that, given the concerns with the date of birth in conjunction with the circumstances surrounding the Appellant's ability to acquire an identity document at a government office, at a time he alleges he was in hiding, the Appellant is not being forthright about when and how he obtained his NIC and why certain information on it such as his occupation and date of birth is not completely accurate. Therefore, the RAD finds that no weight can be given to the national identity card in establishing the Appellant's identity nor in establishing that he was in Eritrea at the material time. Baptismal Certificate [32] The Appellant tendered an original baptismal certificate to corroborate his identity. The RPD gave the certificate no weight in establishing the Appellant's personal or national identity as a citizen of Eritrea. The RPD noted that in his narrative, the Appellant alleged that he required the baptismal certificate because he wanted to become a member of the Catholic Church in Khartoum with his wife but the church requested proof of his baptism; therefore his father sent it to him. According to the Appellant's testimony, he and his wife met at the Catholic Church and got married there on XXXX XXXX, 2012. The RPD noted however, that the certificate was issued in 2015, three years after he alleged it was needed by him to join the church with his wife. The Appellant could not explain how his father went about obtaining it other than he believed baptismal certificates are kept in the church. In addition the Appellant could only recount when it was sent to him nor when it was issued. The RPD also noted that the baptismal certificate does not include any security features issued by the Eritrean government nor does it include the Appellant's picture to help in identifying him. Based on the aforementioned credibility concerns, including the questionable timing in which he obtained the document, the RPD found no weight could be given to the document. [33] The Appellant submits that he could not have known how his father obtained the certificate because he was in Khartoum at the time. He further argues that the RPD's findings that the certificate lacks security features and photograph were unreasonable. [34] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the most significant aspect of the RPD's finding with regard to the certificate is the discrepancy about when and why the Appellant obtained the baptismal certificate. The RAD notes that the Appellant did not provide an explanation for why the document was dated three years after he alleged that it was required for him to join his wife's church. Furthermore he has not challenged the RPD's finding in this regard. The RAD finds that this discrepancy undermines the genuineness of the certificate. [35] The RAD agrees with the RPD and finds that in light of this credibility concern and the absence of security features and a photograph tying the certificate to the Appellant, no weight can be given to this document in establishing his identity or that he resided in Eritrea at the material time. Marriage Certificate [36] The Appellant tendered a copy of his marriage certificate at the hearing.19 The RPD identified a number of concerns with respect to the marriage certificate. The RPD noted the Appellant did not provide a reasonable explanation as to why he could not provide the original certificate to the Board even though his friend "XXXX" assisted him in obtaining another document from Sudan. In addition the RPD noted that the Appellant did not provide a reasonable explanation as to why he did not provide a copy of his marriage certificate to the Board until the day of the hearing even though it was in his possession for months prior to the hearing. He also did not provide any identity documents for his wife, who is listed in the marriage certificate. The RPD also noted that the marriage certificate is not an official government-issued document and it lacks any official security features issued by the government. He was also unable to recall the name of the officiating priest of his marriage ceremony and provided confusing testimony about who the parish priest of the church is, although both names are listed on the marriage certificate. Further, as the Appellant did not provide the original, it is difficult to assess its authenticity as the panel only has a photocopy to consider. [37] The Appellant submits that the RPD was overzealous in rejecting his reasonable explanation for not tendering the original certificate. He argues that he explained in his hearing that he and his wife were concerned it might get lost in the mail and that the friend who brought him his driver's licence, could not bring it, because his wife was not available on the day his friend was free. [38] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that although the RPD had a number of concerns, the Appellant has only addressed two of the RPD's concerns. As noted by the RPD, the Appellant testified that the original marriage certificate was in Sudan with his wife, and that his wife sent a copy to him sometime in May 2016 via email. When questioned why he had not tendered the copy of his marriage certificate until the date of the hearing, he testified that he was waiting for the original. When asked what efforts he made to obtain the original, the Appellant initially stated that the Sudanese government started rounding up refugees and returning them to Eritrea and the pass his wife had is not good to keep her safe in Sudan. He then testified that there is no guarantee if you mail it via post it will get sent and he was trying to find someone who could physically bring it to him in Canada. [39] The RAD finds that the Appellant's testimony in this regard evolved, and that his testimony that he was waiting for the original to be sent to him was at odds with his subsequent testimony. The RAD agrees with the RPD that the Appellant did not provide a clear or reasonable explanation as to why he could not provide the original marriage certificate. The Appellant testified that since coming to Canada he has been in contact with his spouse on a daily basis but he did not explain why she was unable to send it to him other than to say it was risky and there was no guarantee that it would arrive in Canada. Further, the Appellant testified that his friend "XXXX" brought him his original driver's license and his wife was unavailable on a certain day for "XXXX" to obtain his original marriage certificate. [40] The RAD agrees with the RPD and finds this explanation to be insufficient. There was no explanation proffered as to why "XXXX" could not have obtained the original marriage certificate on a day other than the day the Appellant's wife was unavailable. Furthermore, at the time the RPD questioned the Appellant about what efforts he made to obtain the original marriage certificate, he did not mention that he had asked his friend "XXXX" to obtain it. That information only came to light further into the hearing when questioned about a completely different document. [41] The RAD agrees with the RPD that the Appellant has not put forth a reasonable explanation as to why he was unable to provide his original marriage certificate. He knew to bring his original identity card and baptismal certificate with him to Canada but only provided a copy of his marriage certificate on the day of the hearing even though according to his testimony, he had received a copy of it in May 2016. [42] The RAD also agrees with the RPD that the Appellant's explanation as to why he did not provide the Board with a copy of his marriage certificate when he obtained it in May 2016 is not credible. The Appellant knew to provide copies of other documents such as his driver's license and his baptismal certificate and therefore it is not reasonable that he would not have known to provide a copy of his marriage certificate as well. The RAD agrees with the RPD and finds that the Appellant has not provided credible testimony with respect to why he did not provide his marriage certificate before the hearing. The RAD further finds that the Appellant's testimony with regard to the marriage certificate undermines the credibility of the marriage certificate and the Appellant's allegations. The Appellant's driver's license [43] The Appellant tendered a copy of an Eritrean Driver's License as evidence of his identity. He testified that his friend had brought the original driver's license with him to Canada but it had since been stolen. Accordingly he only had a copy to tender as evidence of his identity. [44] The RPD placed no weight on the driver's license in establishing the Appellant's personal or national identity. The RPD noted that the Appellant's account of how he obtained his driver's license in Eritrea was consistent with information in the documentary evidence.20 The Appellant testified he obtained it in 2005 from the Ministry of Transportation, a government institution and, he attended driving school and passed a road exam. The RPD however questioned the Appellant about why he would take a risk and present himself to a government authority and attend driving classes, given he had been in hiding since he left school (in 2000), and was evading national service. The RPD rejected the Appellant's explanation that "you learn which days there are no round-ups in the city and you know which day is safe to go out." [45] The Appellant submits that he was not being personally targeted by the authorities at the time he obtained his driver's licence, and he was able to avoid general roundups that resulted in forcible conscription in the National Service. He argues there were certain days and times that round-ups were more likely to happen and he avoided going out at these times. [46] The RPD found that his explanation was at odds with his allegations that he had been in hiding for years and did not go out to see his family, only worked at night and hid in a room during the day. The RPD found his testimony that he presented himself to a government office and attended driving classes to obtain a driver's license was not credible. As noted by the RPD his explanation does not coincide with common sense that someone would spend years of their life trying to evade the government and then present themselves on more than one occasion to a government body for a government-issued driver's license. For reasons previously stated in these reasons, the RAD agrees with the RPD's finding in this regard. [47] Further, the RPD found that the Appellant's explanation regarding knowing about round-ups and therefore avoiding them is unreasonable. In his BOC and oral testimony, he alleges that the first time he was detained, it was through an unexpected, "stealthy" street round-up. Therefore the panel finds it unlikely that the Appellant who alleges he has been in hiding for years, would take a serious risk and present himself to government officials for driving classes and a road exam given that he had been a National Service evader at that point in time for several years. [48] After its own analysis of the evidence in the record, the RAD agrees with the RPD's findings in this regard. [49] Although the Appellant alleged that his friend brought his driver's license to Canada he was only able to tender a copy for his hearing. The RPD drew an adverse inference from the Appellant's failure to tender the original driver's license in evidence. He explained that it was stolen from a car in Canada. Originally, the Appellant explained that he had it in Canada and presented it to the Canadian immigration officials. However when it was pointed out him that the immigration officials had seized his original baptism certificate and Eritrean national identity card, but there was no mention of his driver's license, the Appellant changed his testimony and testified that he provided a copy of it to his lawyer. His explanation for the changing testimony was that he thought his lawyer and the immigration officials worked together. [50] The Appellant submits that the RPD failed to appreciate that he is not familiar with Canadian systems and his belief that his lawyer and immigration officials were affiliated is understandable. [51] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant has alleged that he was guided by a smuggler about making a refugee claim and was further assisted in making a refugee claim by a friend. Furthermore, the Appellant was represented by competent counsel whose responsibility it would be to inform the Appellant of the system he was accessing and what role counsel plays in that system. The RAD finds that the Appellant's testimony only evolved when he was confronted by the discrepancy created by his testimony. The RAD draws an adverse credibility finding with regard to the Appellant's testimony in this regard, [52] Further, the RPD found it convenient that the Appellant happened to have his Eritrean driver's license stolen and nothing else, according to his testimony. The RPD rejected the Appellant's testimony in this regard due to its other credibility findings. [53] The Appellant submits that the RPD indulged in plausibility findings which are not outside the realm of possibility. He argues that plausibility findings should only be made in the clearest of cases. [54] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant's testimony about how he received the driver's licence in Canada is suspect. The RAD notes that the Appellant testified that his friend "XXXX" brought it to him from Sudan. When asked how his friend came to have his Eritrean driver's license in Sudan, he explained that "XXXX" had it with him because he was converting it to a Sudanese license for him. The RPD found the Appellant's testimony in this regard unreasonable, given that by the Appellant's own account, he had no valid status in Sudan and was unable to obtain Sudanese identity documents to corroborate his allegations. The RAD notes that the Appellant has not contested this finding of the RPD. [55] Additionally, the Appellant's explanation regarding his lack of ability to produce his original driver's license is unreasonable. The Appellant first testified that he presented it to immigration officials. When questioned further by the panel, he changed his allegation and said he presented it to his lawyer. The panel does not find the Appellant's explanation that he believed his lawyer and the immigration officials were working together to be reasonable. The Appellantwas asked a very direct question about the documents he presented to the immigration officials when he made his claim and he clearly stated he provided his driver's license to them. It was only after the panel noted the listed documents in the immigration forms did not include his driver's license, that the Appellant changed his story and he tried to overcome the discrepancy by saying he thought his lawyer and the immigration officials worked together. [56] Furthermore the RPD drew an adverse credibility finding based on the Appellant's failure to report his driver's licence stolen. As noted by the RPD the Appellant went to the trouble of having his friend bring his driver's licence from Sudan to support his claim. In addition given that his only other original documents were seized by immigration officials the RPD found it reasonable to expect him to report the theft of his driver's license. The RAD rejects the Appellant's explanation that he did not know who stole it and therefore he did not see the need to report it. The RAD agrees with the RPD that it is not reasonable that the Appellant took no action whatsoever when the one identity document he had was stolen. Again the RAD notes that the Appellant has not contested this finding of the RPD. [57] The RAD further finds that the Appellant's failure to report the theft of his identification makes even less sense given the fact that the Appellant was represented by competent counsel at the time of the theft. The RAD finds that the importance of original documents in establishing identity is evident. [58] The RAD finds based on the foregoing analysis that the Appellant's testimony with regard to the driver's license is not credible and that the driver's licence cannot be relied upon to establish the identity of the Appellant. Parents' National Identity Cards [59] The Appellant presented a copy of his parent's national identity cards as evidence of his own identity. The RPD afforded these documents little weight because they are similarly problematic with respect to their dates of birth, they are not original documents and while do not assist in establishing the Appellant's personal or nationality identity. [60] The Appellant submits that the RPD's finding in this regard is flawed. He argues for the same reasons as he did for his own NIC, the RPD should not have rejected his NIC on the basis of the date of birth issue. In addition, he submits that the RPD failed to consider that his parents are still in Eritrea and require their original NICs in order to respond to arbitrary identity checks conducted by the authorities. [61] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that there are serious credibility concerns with respect to the Appellant's personal and national identity. While it is true that his parents may not be able to relinquish their NIC for the purpose of the Appellant's hearing, the Appellant had the option of shoring up that evidence with affidavits to establish the provenance of the documents. Taking into consideration the fact that these documents are not in the name of the Appellant, they therefore do not assist in establishing the Appellant's personal or national identity. The RAD notes that the Appellant has not only provided unreliable documentation to establish his nationality, but he also lacked credibility with respect to his testimony about the circumstances surrounding how he obtained certain documents, and the absence of other documents, and the lack of reasonable effort made to retrieve them. His parents' identity cards do not outweigh the numerous credibility concerns with respect to his evidence. Even if the Appellant's parents' NICs were to be accepted for the truth of their content, they could not in themselves establish the Appellant's nationality. [62] The RAD finds, after its own review and assessment of the evidence that the documents tendered by the Appellant cannot be relied upon to establish his identity. The RAD further finds, on a balance of probabilities, given the errors and the manner in which these documents were obtained, and in the context of the other findings made with regard to the credibility of the Appellant's testimony, that the Appellant's credibility has been undermined. As such, his testimony cannot be relied upon to establish his identity. CONCLUSION [63] In summary, the panel finds, on a balance of probabilities, that the Appellant has failed to provide sufficient reliable documents and credible evidence to establish his identity as required by section 106 of the IRPA and Rule 11 of the RPD Rules.21 The burden of establishing identity must be satisfied before the panel goes on to consider the merits of the claim and whether the Appellant, in this case, faces a serious possibility of being persecuted or is a person in need of protection. The panel finds, on a balance of probabilities and on the basis of the totality of documentary evidence disclosed, as well as on the basis of findings and negative inferences noted above, that the Appellant has not established his identity nor has he established his residency in Eritrea at the material time. [64] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. The Appellant's appeal is denied (signed) "L. Favreau" L. Favreau Deember 20, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, 2007 FCA 385. 5 Ibid., at para. 13.3(a). 6 Ibid., at para. 16. 7 Ibid., at para. 13.5(b). 8 Ibid., at para. 13.5(a). 9 Ibid., at para. 13.3(b). 10 Raza, 2007 FCA 385, para. 13.5(a). 11 Raza, 2007 FCA 385. 12 RPD-1, NDP for Eritrea (June 30, 2016), item 1.4, at p. 4. 13 Ibid., item 4.2, Council on Foreign Relations, Authoritarianism in Eritrea and the Migrant Crisis, November 11, 2015. 14 Ibid., item 2.5, Human Rights Watch, Eritrea. World Report 2016: Events of 2015, January 2016. 15 Ibid, item 8.1, Norwegian Country of Origin Information Centre, Landinfo, Eritrea, National Service, at p. 7. 16 Ibid, at p. 9. 17 Ibid., item 1.4, United Nations: High Commissioner for Refugees, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea, April 20, 2011, at p. 9. 18 Ibid., item 3.6, Response to Information Request (RIR) no. ERI104539.E, September 16, 2013. 19 RPD-1, RPD's Record, at p. 474. 20 RPD-1, NDP, item 3.2, RIR no. ERI104940.E, September 5, 2014. 21 IRB, Refugee Protection Division Rules, SOR/2002-22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-11786