MB8-08534

RAD File / Dossier de la SAR : MB8-08534 Private Proceeding / Huis clos Reasons and Decision ? Motifs et Décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision November 19, 2019 Date de la décision Panel Me Robert Cox Tribunal Counsel for the persons who are the subject of the appeal Me Adetayo G. Akinyemi Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is an appeal to the Refugee Appeal Division (RAD) of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) of Canada rejecting the claim of one XXXX XXXX XXXX (hereinafter referred to as the Appellant) for failing to meet his burden to provide acceptable documentation to establish his identity in accordance with Section 106 of the Immigration and Refugee Protection Act (IRPA)1. [2] The Appellant arrived in Canada in the late evening of July 21, 2017, using a Canadian Passport issued under the name of XXXX XXXX and claimed refugee protection. The Canadian Passport had been reported lost by its owner. The Appellant was subsequently arrested in the early hours of July 22, 2017, and remained detained for reasons relating to identity by Immigration Canada officials until August 23, 2017. At the time of the Appellant's release, August 23, 2017, the Minister remained unsatisfied with the Appellant's identity, but because the Minister's efforts to establish the Appellant's identity were found unreasonable, the Appellant was released from detention with conditions. [3] Before the RAD, the Appellant argues that the RPD erred in concluding that the Appellant failed to establish his identity and that the RPD's findings on credibility were unreasonable. The Appellant is seeking to have the RPD decision set aside and to have the Appellant's refugee claim granted, or, in the alternative, make all other orders considered appropriate. DETERMINATIVE ISSUE AND DECISION [4] The RAD finds that the determinative issue in this matter is identity and for the reasons outlined below, the Appeal is dismissed. CONTEXT [5] Before the RPD, the Appellant filed a claim based on a purported fear that, if he returns to Nigeria, his security of person or life would be in danger from people associated with his former boss based on the Appellant having allegedly denounced his former boss to the Nigerian policing authorities for an alleged bank fraud. He also asserted a fear of persecution from the Nigerian Police because of the said denunciation. [6] Before acquiring testimony from the Appellant about his claim and his forward-looking fears, the RPD raised concerns about the Appellant's identity and questioned him about the documents he had submitted in support of his identity. The RPD referenced the three (3) separate detention review hearings2 that the Appellant underwent following his arrival in Canada and began the RPD hearing by explaining to the Appellant that the determinative issues were his identity, credibility (as with every refugee claim) and internal flight alternative (IFA). [7] The RPD was not satisfied with the identity documents or the answers the Appellant provided to its questions about the documents or, for that matter, his entire claim. As such, the RPD concluded that the Appellant (i) did not credibly establish his identity or (ii) demonstrate that there was a "serious possibility" that he would be persecuted on a Convention ground. The RPD determined that the Appellant is not a "Convention refugee". [8] The Appellant now argues that the RPD erred in concluding that the Appellant failed to establish his identity and that the RPD's decision, including its findings on the Appellant's credibility, is unreasonable. ROLE OF THE RAD [9] Contrary to the Appellant's argument that the RAD should review the "reasonableness" of the RPD's decision that is the subject of this Appeal, the RAD reviews decisions of the RPD on a standard of "correctness" after conducting an independent assessment of the evidence that is placed before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and the weighing of the oral testimony heard, which, in particular cases, may attract deference.3 Unless otherwise specifically stated below, the RAD has applied a correctness standard in its review of the RPD decision that is the subject of this Appeal. ANALYSIS [10] The RAD conducted an independent review and assessment of the Appellant's record, listened to the recording of the RPD hearing and considered all of the evidence and arguments placed before it. For the reasons provided below, the RAD agrees with the RPD's findings about the Appellant's identity and will solely focus its analysis on the issue of identity without the need to enter into any analysis of the Appellant's credibility. For, as the RPD correctly cited4 from the Federal Court decision in Uwitonze5, " ...where an applicant has not established identity, a negative conclusion ensues as to credibility and a disposal of a claim is usually the norm". Identity [11] The RAD finds that, although the Appellant, as acknowledged by the RPD, made reasonable efforts to acquire documentary evidence during his detention, the documentary evidence the Appellant did acquire does not satisfy his burden to establish his identity and that the RPD correctly conducted an assessment, albeit cursory, of these same documents. More specifically, the RAD notes a number of contradictions, inconsistencies or omissions concerning the Appellant's attempt to establish his identity by the documents he submitted into evidence before the RPD. The RAD's findings, in this regard, are explained in further detail below. International Driver's Permit [12] The Appellant asserts that the RPD erred in its decision concerning the Appellant's identity by simply duplicating portions of the transcripts of the Appellant's August 23, 2017 Detention Review Hearing and by incorrectly analyzing the Appellant's Republic of Nigeria International Driver's Permit (submitted with the Appellant's Basis of Claim form - BoC). [13] The RPD found that the Appellant's International Driver's Permit was not authentic and cited from the transcript of the Detention Review Hearing to determine that it was "a fantasy". The RPD continued its review of the driver's permit by restating and citing the questioning of the said permit by the Canadian Border Security Agency (CBSA) and the Member who presided over the Detention Review Hearing of August 23, 2017. [14] The RAD finds the RPD correctly examined the Appellant about the International Driver's Permit and correctly established that it had no probative value. Contrary to Appellant's arguments,6 the International Driver's permit was forensically analyzed7 and was described to be a "fantasy" document. The RAD also reviewed the Nigerian National Documentation Package (NDP) that was in force at the time of the filing of the Appellant's claim and throughout his RPD hearing. To this end, the RAD notes that the "Republic of Nigeria International Driving Permit" does not remotely resemble the sample of the "Republic of Nigeria International Driving Permit" that appears in Document 3.5 of the aforementioned NDP. Document 3.5 provides that an International Driver's permit is issued in the form of a booklet and not in the form of a single credit card sized/styled document (i.e. similar to the document submitted into evidence by the Appellant). Moreover, according to Document 3.5, the Nigerian Police Force (whom the Appellant alleges to be one of the Agents of Persecution and from whom the Appellant alleges he is fleeing) is the only authorized body that issues international driver's permit in Nigeria. The RAD finds it illogical that the police would have issued an International Driver's Permit to an individual they were allegedly threatening and seeking. [15] Further still, Document 3.5 of the NDP provides that the applicant for an International Driver's Permit must also present a valid national driver's permit and a recent passport photograph before the police will issue an International Driver's Permit (emphasis added). The RAD notes that the Appellant's testimony contradicts this described procedure. The Appellant testified that he did not have a valid Nigerian Driver's Permit but, rather, that he had possessed a driver's licence in 2010 that had been, as the Appellant stated, recalled by the authorities. The Appellant also testified that he lost his Nigerian Passport. There is no evidence before the RAD that this alleged loss occurred between the date of the Appellant's admitted procurement of the International Driving permit (i.e. XXXX XXXX, 2017) and his arrival in Canada on July 21, 2017 (i.e. a period of 4 days). Indeed, there is no evidence before the RAD that the Appellant ever reported his Nigerian Passport as lost to any Nigerian authority or, for that matter, any other authority; at least not until he was questioned about its existence before the CBSA. As a matter of fact, it was the presiding member of the July 31, 2017 Detention Hearing, as well as the Minister's Counsel that was present at said hearing, who reminded the Appellant that he had agreed to seek out and provide a photocopy of the Nigerian Passport.8 The RAD draws a negative inference from these inconsistencies and contradictions, finds that the RPD correctly assessed the International Driver's Permit and, like the RPD, gives no weight to it. Nigerian Passport (also referenced as the "International Passport") - Appellant's Exhibit C-4 [16] The Appellant alleges that the RPD incorrectly examined the "photocopy" of the Appellant's Federal Republic of Nigeria Passport (i.e. also referenced by Appellant's Counsel as the Appellant's "International Passport") [hereinafter referred to as the "Nigerian Passport"], its historical nature and its alleged use for the application of Study Visas to Canada. [17] During the RPD's examination of the "Nigerian Birth Registration" submitted as documentary evidence, the RPD found inconsistencies with said document before demonstrating that it did not contain the same name as appears in the copy of the Appellant's Nigerian Passport. The RPD Member examined the Appellant's Nigerian Passport and concluded that the copy of the passport did not have any probative value because the Appellant could not be identified by either the photo or the name appearing in the copy; once again, a name which is different from the name appearing in the birth registration document, and, this, notwithstanding the fact that the Appellant testified to having presented the said birth document to obtain the said passport. [18] First, the RAD notes that the Appellant used a Canadian Passport issued to one XXXX XXXX to enter Canada. This latter passport had been reported lost by its owner. The Appellant then, while in detention, procured a photocopy of a single page (i.e. page 4) of a Nigeria Passport which provides a date of issuance as XXXX XXXX, 2013, with validity through to XXXX XXXX, 2018. The RAD notes an unexplained discrepancy in this latter document. For example, the RAD notes the inexistence, or at the very least, the lack of clarity of the holographic word "Nigeria" written vertically from the top to the bottom of the page in the left margin near the unrecognizable photograph (alleged to be a photo of the Appellant). The RAD further notes the inexistence of the Nigerian coat of arms in the center of the photocopied page as well as the inexistence of the holographic word "Nigeria" running through the number A04571797 in the top right corner of the photocopied page. The RAD understands that such features are common in other authentic Federal Republic of Nigeria Passports (even in photocopied versions). Moreover, the Appellant's use of a Canadian passport that had been reported lost by its owner remains unexplained. There is no evidence before the RAD that the Appellant was the owner of the said Canadian Passport and its use contradicts and is inconsistent with the Appellant's subsequent agreement and acknowledgement to procure of an alleged photocopy of his alleged Nigerian Passport. The Appellant's allegation of the loss of his Nigerian passport is inconsistent with his need to use or acquire the Canadian passport and is, quite frankly, an attempted clarification with which the RAD is not satisfied. As previously stated, there is no evidence or testimony before the RAD that the Appellant ever reported the loss of the Nigerian Passport to any authority, be it Nigerian, Canadian, or otherwise, or that he was, in fact, the owner of the Canadian Passport that he used to enter Canada. Indeed, he could not have been the owner of the Canadian Passport otherwise the CBSA would not have arrested and detained the Appellant. [19] As for Appellant's argument concerning his "historical use" of the Nigerian Passport? The RAD examined the chronology of the appellant's claim. The Appellant underwent a 48-hour detention review hearing on July 24, 2017, at which hearing the Minister's Counsel revealed to the presiding member of the Detention Hearing that an individual named XXXX XXXX XXXX applied for a Study Visa twice in 2013. The Appellant completed and signed his Schedule A Background Declaration Form on July 25, 2017, and his Basis of Claim (BoC) on July 28, 2017, both dates being subsequent to the 48 Hour Detention Review Hearing of July 24, 2017. In his BoC, the Appellant declared the two Visa applications had been done by an agent in Lagos, but he also declared that Visas had been refused based on a "Lack of Funds". In his Schedule A Background Declaration Form the Appellant simply attests that he had two Visas refused in 2013 without providing any explanation for their refusal. Yet, during the July 24, 2017 Detention Hearing, the Minister's Counsel advised the presiding member that the Study Visa's were refused for "lack of credibility". The RAD takes note of the original declaration of the Visa applications by the Minister's Counsel and the subsequent declarations/attestations made by the Appellant; facts which are inconsistent and which contradict the Appellant's arguments at paragraph 19 of his Memorandum of Appeal. At this latter paragraph the Appellant states that it was he who "disclosed" that he had previously applied for study permits from the Canadian Consulate in Nigeria". In fact, the said "disclosure" of the Study Visas was not first made by the Appellant, but was, rather, first made by the Minister's Counsel. The RAD draws a negative inference from these variances, omissions, contradictions and inconsistencies and gives no weight to the photocopy of the Nigerian Passport. University Diploma [20] The Appellant contends that the RPD incorrectly discredited the copy of the Appellant's alleged diploma from XXXX XXXX University and that the cumulative documents submitted and issued to the Appellant on different dates are sufficient to establish his identity. [21] The RPD concluded its identity assessment of the Appellant with an examination of the copy of the University Diploma the Appellant submitted as a demonstration of his identity and education. The RPD concluded that the copy of the University Diploma is not an identity document as it provides no birthdate, photo or any other form of biometric security elements or information. While the RPD acknowledged that the Appellant had taken reasonable steps to acquire this document and the aforementioned document, and, that this acquisition was completed while he was detained by the CBSA, the RPD concluded that the documents did not have any probative value and did not establish the Appellant's identity. [22] The RAD agrees with the RPD and finds that the copy of the University diploma/degree submitted into evidence by the Appellant to attest for his alleged education from Ambrose Alli University is not a primary identity document and cannot be considered as one. The document contains no biometric security elements/information upon which the RAD may rely or consider in order to overcome the plethora of inconsistencies, contradictions and omissions already described. Moreover, the RAD notes that the copy of the University diploma/degree provides that one XXXX XXXX completed his education in 2002, yet the Appellant, in his Schedule A Declaration form, stipulated that he attended the University between 2002 and 2006. It is logical and trite that a University would issue a Diploma upon the completion and graduation of students (i.e. in 2006) and not as the submitted document reports, more specifically, in 2002. The RAD notes this inconsistency and contradiction notwithstanding the Appellant's assertions that he erred in his BoC. The RPD confirmed with the Appellant that his BoC was accurate, complete and true and the RAD cannot help but draw a negative inference from the inconsistencies, omissions and contradictions and therefore provides no weight to the University Diploma. Cumulative Documentary Evidence - inconsistencies and contradictions Employer's Letter: [23] The Appellant submitted a letter dated XXXX XXXX XXXX 2016 allegedly addressed to him from XXXX XXXXBank. The letter was addressed to one Mr. XXXX XXXX at XXXX XXXX XXXX, XXXX XXXX in the State of Lagos. The Appellant asserts that this letter, Appellant's Exhibit C-3, is an original letter of offer of employment and that it is demonstrative of his identity. [24] The RAD reviewed Exhibit C-3 and respectfully refutes the Appellant's assertions. In his Schedule A Background document, the Appellant declared his last address in Lagos to be XXXX XXXX XXXX XXXX, XXXX XXXX Road. The address provided in the Appellant's Schedule A differs from the address to which Exhibit C-3 was addressed. Moreover, not only is the letter addressed to one XXXX XXXX as opposed to one XXXX XXXX XXXX, but it is a "letter of offer of employment" that is dated XXXX XXXX, 2016 with the date of employment to be effective "XXXX XXXX, 2016". The RAD notes these inconsistencies and provides no weight to this document. Birth Register Document and Birth Certificates of children [25] The RAD reviewed the document attached to the communication from Appellant's Counsel dated December 18, 2017; a communication in which Appellant's Counsel writes that he is providing, "as requested" a copy of the Appellant's "birth certificate". The RAD notes that the document attached to Counsel's letter is not a "birth certificate" but is, rather, a copy of a "National Birth Register" given in Lagos by the Lagos Island Local Government dated March 4, 2011. Notwithstanding the differing titles given to the document, be it a "birth certificate" or a "birth register", the RAD notes that the name "XXXX" does not appear in the document. The RAD would expect, and it is only logical to so consider, that a "birth certificate" or a "birth register" issued by a State/Government body would contain the full given names of the person for whom it is certifying a birth. For example, the "birth certificates" submitted by the Appellant in an attempt to support his allegations of being the father of two minor children (documents which the RAD examines below) each contain the full given names of the children (i.e. XXXX XXXX XXXX and XXXX XXXX XXXX). The Appellant completed his BoC, which, again, he solemnly affirmed to be complete, correct and true, and provided the names XXXX XXXX XXXX. This name does not appear on the submitted "birth register". The RAD draws a negative inference from this discrepancy and inconsistency and gives no weight to the "birth registry" document. [26] As for the children's birth certificates, the RAD notes that the certificate for XXXX XXXX XXXX was issued on November 3, 2017, some 2 years following her birth on April 26, 2015 and while the Appellant was here in Canada. Moreover, the RAD also notes that the wet stamps appearing on each of the certificates for both Rachel and XXXX XXXX XXXX are different or missing. The RAD notes these variances and inconsistencies and provides no weight to these documents as evidence of the Appellant's identity. Appellant's Generic Application Form [27] Finally, in addition to all of the aforementioned discrepancies, omissions, variances, contradictions and inconsistencies, and in reference to the Appellant's BoC documents, but more specifically to page one of the eight pages Generic Application Form (i.e. document IMM0008 (06-2017) E) signed by the Appellant on July 25, 2017, the RAD notes that the Appellant answered Question 2(a) of the Personal Details section in the affirmative and then confirmed in question 2(b) that he had previously used another name "XXXX XXXX XXXX". The RAD was presented with no evidence as to why and when this latter name was acquired, given, used, and/or removed by or from the Appellant. For a surname to be changed for any individual the RAD would expect, and it is logical to consider, that some formal State/Government document would somehow attest to such a change. Yet there is no evidence, other than the Appellant's BoC, which makes mention or reference to this latter name. The RAD understands that it is trite in some jurisdictions for a female to change surnames upon marriage, however, it is more uncommon for a male to change a surname, at least not without the existence of some form of documentary evidence to demonstratively explain the reason for such a change. The RAD notes this unexplained oddity. [28] For all these reasons, the RAD is unable to give any weight to the documentary evidence referenced and argued by the Appellant in support of his identity. The RAD concludes that because the Appellant has not and cannot logically and reasonably explain the plethora of inconsistencies, contradictions and omissions described above, he has not met with his burden to provide acceptable documents to establish his identity. DETERMINATION [29] The RAD finds that the Appellant, XXXX XXXX XXXX, has failed to satisfy his requirements to establish his identity, and that he is neither a "Convention Refugee" pursuant to Section 96 of the IRPA nor a person in need of protection pursuant to subsection 97 (1) of the IRPA. [30] The RAD dismisses the appeal and confirms the decision of the RPD, the whole pursuant to paragraph 111 (1) of the IRPA. (signed) Robert Cox Me Robert Cox November 19, 2019 Date RC/tm 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended from time to time (IRPA). 2 The Appellant underwent three detention review hearings before the Immigration division on July 24, 2017, July 31, 2017, and August 23, 2017, before being conditionally released on August 23, 2017. 3 M.C.I. v. Huruglica, 20 16 FCA 93 4 See paragraph 18 of the RPD Decision. 5 Uwitonze v. Canada (M.C.I.) 2012 FC 61 6 See Appellant's memorandum of appeal paragraphs 10-16 7 See transcript of Appellant's Detention Hearing of August 23, 2017 paragraphs 7-12 on pages 1 & 2. 8 See transcript of July 31, 2017 Detention Hearing pages 4 & 5 paragraphs 27 to 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8- 08534 RAD.25.02 (April 04, 2019) Disponible en français 11 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.25.02 (April 04, 2019) Disponible en français