MB9-13072

RAD File No. / Nº de dossier de la SAR : MB9-13072 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 / entendu à Date of decision September 1, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Odette Desjardins Conseil de la personne 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 the appeal of XXXX XXXX XXXX, alias XXXX XXXX XXXX (the appellant), regarding a Refugee Protection Division (RPD) decision rendered on May 28, 2019, rejecting his refugee protection claim. [2] The written account submitted by the appellant can be quickly summarized. He claims that, because of his sexual orientation, he fears for his life if he were to return to Guinea. He explains that, growing up in Guinea, he was aware that he was attracted to the same sex, but it was not until he was in Canada (he arrived on XXXX XXXX, 2009, for school) that he had same-sex relationships. He then provides details about his last same-sex relationship; this appears to have been his most significant relationship and it did not end well. He claims that, following the threats that he received from his partner on XXXX XXXX, 2017, he received a telephone call from his father, who accused him of being a perverted homosexual and threatened to kill him for bringing shame on the family. He ends his written account by pointing out that on November 2, 2017, he filed a refugee protection claim. [3] The Minister's representative intervened with a submission and questioned the appellant before the RPD. [4] The RPD rejected the appellant's refugee protection claim because it did not conclude that the appellant's identity had been confirmed and on credibility grounds. [5] On appeal, the appellant submits the following arguments: 1. The appellant explains that it was his mother who decided to apply for a passport using another identity (XXXX XXXX XXXX XXXX XXXX) and another date of birth (XXXX XXXX XXXX 1989). Furthermore, the case law (Lubana, 2003 FC 116) also states: "...where a claimant travels on false documents...it has been held to be peripheral and of very limited value to a determination of general credibility." 2. [translation] "The date of birth that the applicant provided during his testimony corroborates the date of birth found in the documentary evidence submitted in the record." The RPD's conclusion that he was born in 1991 (on the American visa file) based on which it found that the appellant was not credible is erroneous. 3. The RPD concluded that passport XXXX had been altered, undermining the appellant's credibility. However, the appellant [translation] "testified that it was his mother's fault since it was she who had the passport made." 4. The appellant explained that it was his mother who obtained his international driver's licence and that he did not ask many questions about how she obtained it. 5. The inconsistency regarding the father's name in the copy of the excerpt of the birth certificate [translation] "is due to a typographical error." 6. The copies of his family's identity documents [translation] "contain several inconsistencies because Guinean officials do not pay much attention to details such as dates of birth or spelling of names." 7. His sister XXXX testimony corroborated the appellant's testimony regarding his identity and his sexual orientation. He [translation] "did not tell his sister about his partner XXXX because he was not comfortable discussing his sexuality with his younger sister since he was the first homosexual in the family and because they are both Muslim." Along with other minor points. [6] In his submissions, the appellant states that the RPD's decision must be reviewed because its analysis contains fundamental errors. He is also asking that the decision be set aside and that he be recognized as a refugee or that a de novo hearing be ordered before a differently constituted panel. [7] The appellant is not requesting to submit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and does not wish for an oral hearing to be held under subsection 110(6) of the IRPA. [8] The Minister's representative did not intervene on appeal. DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the Refugee Appeal Division (RAD) confirms the RPD's determination that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. SCOPE OF THE APPEAL [11] For questions of fact, law and mixed fact and law, the RAD must apply the correctness standard of review in accordance with Huruglica.2 [12] I conducted an independent analysis of all the evidence on the record, after listening carefully to the recording of the hearing, in order to form my own opinion about this refugee protection claim and to determine whether the RPD's decision is correct. ANALYSIS [13] Having examined all of the evidence on the record, both testimonial and documentary, the RAD finds, as did the RPD, that the appellant failed to establish his identity. [14] The appellant is of the opinion that the RPD failed to properly assess his credibility and that the impact on the decision is such that the appellant would not be persecuted in his country. [15] The very essence of this claim is based on the appellant's credibility. [16] After listening to the recording, it is clear that the appellant's testimony contained a number of responses and detours that did not provide a straightforward answer to the questions that were being asked and addressed to him. For example, the presiding member asked him where his identity card was. The appellant answered this simple question with a convoluted and confused answer, stating that he had it with him, then changing his answer to the contrary, that he did not remember. It was very irritating and difficult to listen to the three hearings, two of which were in-depth questioning sessions that lasted several hours in order to gather the essential parts of his answer, despite several warnings from the presiding member to listen to the questions carefully and to answer in a succinct manner. [17] The RAD will analyze the factors presented in the memorandum in groups. The passport that the appellant's mother applied for in order for him to obtain an American visa was submitted by the Minister's representative under Exhibit M-10. This residence permit was created under the name XXXX XXXX XXXX, born on XXXX XXXX, 1989. He testified that he was 17 years old at the time the application was filed because he wanted to perfect his English in the United States. The appellant also stated that his mother arranged a meeting for him at the American embassy under another name, which was her idea. As an explanation, the appellant stated that he was a minor and that he could not travel or reside where he wanted. He adds that he does not have any documents from his mother that could explain the fraudulent document. The passport that he used to come to Canada uses a different name and a birth date that differs by XXXX days from the passport that his mother sent and that was confiscated by the Canadian authorities at a postal sorting centre. [18] The explanations that the appellant provided regarding the passport that his mother obtained when he was 17 years old make it appear as though the appellant was born in 1991 and not in 1989. He testified that he came to Canada in XXXX 2009, at the age of 18, which indicates that he was born in 1991. Moreover, a witness, in this case his sister, stated that the appellant is 28 years old, meaning that he was born in 1991. She also stated that her father's name is XXXX, contrary to the appellant, who stated that XXXX is a part of his surname. The panel is faced with two different dates of birth and two different names. This greatly undermines the appellant's credibility and creates confusion about his identity. [19] The appellant claimed that the passport he used to come to Canada has been lost. The student visa states that his name is XXXX XXXX XXXX, born on XXXX XXXX, 1989. It was the Minister's representative who submitted the relevant documents.3 He testified that he obtained the passport himself by presenting the excerpt of his birth certificate and his driver's licence. He began this process after applying for an American visa. Once again, the appellant's age has a decisive impact on his explanations. If he was a minor when he applied for the American visa in XXXX 2008, he would have been born in 1991, and not in 1989. This once again contradicts his claims concerning his age and his true identity. [20] But there is more. After losing his passport while he was in Canada, he obtained a new passport from his mother in order to have identification. He sent her four photos. He added that with the excerpt of his birth certificate, she was able to obtain the residence permit. The appellant testified that he personally never asked her which documents she used to obtain the passport. It was his mother who took care of applying for the document. [21] After the passport was produced, his mother sent him the precious document through DHL. The name on the passport is XXXX XXXX XXXX and the date of birth is XXXX XXXX, 1989. This document was seized by the authorities. This document has been analyzed.4 The report of the scientific analysis notes major irregularities with several aspects of the passport and the conclusion is that the passport has been altered. Faced with the findings from the analysis done by the authorities, the appellant was unable to provide explanations to the panel and could only state that he did not have any documents from his mother that could explain the altered passport. Once again, this considerably undermines his case because if the document had not been seized at the postal centre, the appellant would have had the altered passport in his possession to use as a way to establish his identity and use as he wished. [22] The excerpt from the birth certificate5 contains a different name for the father than his Basis of Claim Form (BOC Form) in his refugee protection claim. When asked about this matter, the appellant stated that this was a typographical error. There is a major difference between the excerpt, which contains the name XXXX, and the BOC Form, which states that the father's first name is XXXX. Question 4 of the IMM-5669 form states that his father's first name is XXXX. The name in the document from his country is spelled one way and the name in the documents completed in Canada is spelled another way. The RAD rejects the explanation that this was a typographical error. This mistake appears in two documents created in Canada and contradicts the document from his country. The panel is of the opinion that this is a significant error and not a typographical error. Once again, this discredits the appellant's record. [23] The appellant makes reference to various documents including documents from school,6 a Guinean driver's licence, and other family documents.7 It must be noted that these are copies. These documents contain spelling errors in the names and contradictions in the dates of birth. The appellant consistently argued that these are all spelling mistakes. If this were the case, the appellant should have mentioned this at the beginning of the hearing by explaining which document contained this error. However, he did the opposite by submitting all of the evidence and, when he was confronted, he stated that these were typographical errors. It should be noted that this is his own evidence. It must be considered that the key documents raised serious doubts, consequences and questions about their contents and their support. The other secondary copies are not particularly useful in determining his identity, considering the obvious errors found in them. [24] A witness, who was announced on the morning of the third hearing, came to provide the information that they had. It was the appellant's sister. She spoke to the panel about the siblings and about her brother's problems. She is unable to provide details concerning what her brother is applying for, which can be explained. However, most importantly, she made a mistake while spelling her brother's surname. She stated that someone named XXXX informed her that the appellant was found in the same bed as XXXX, which the appellant denies. According to the written account submitted, XXXX was the appellant's partner. XXXX is no stranger to the witness because he welcomed her when she arrived at the airport. During their telephone call, no further questions were asked about this important statement. She trusted a stranger who told her over the telephone that her brother is in a sexual relationship with a friend. The RAD finds that the testimony is not credible. [25] The RAD is of the opinion that the appellant's identity has not been established by the documents submitted and the explanations provided. Furthermore, he has been here for a number of years and filed his refugee protection claim on November 2, 2017, yet he has failed to submit evidence to establish his identity and his country of nationality, despite all of the instructions from his experienced lawyer. [26] Consequently, the RAD finds that the RPD did not err. [27] With regard to credibility, the RAD will not analyze further as it has concluded that it is not satisfied with his identity. [28] For the reasons expressed in this decision, the RAD is of the opinion that the RPD rendered the correct decision and the one that should have been made. REMEDY [29] In light of all of the facts set out above and after reviewing the evidence as a whole, for these reasons, the RAD confirms the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" pursuant to section 96 of the IRPA or a "person in need of protection" pursuant to section 97 of the same act. [30] The appeal is dismissed. (Signed) Michel Jobin Michel Jobin September 1, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Document 6, exhibits M1 to M-6 and M-8. 4 Document 5, Exhibit M-9. 5 Document 7, Exhibit P-1. 6 Document 7, Exhibit P-5. 7 Document 9, exhibits P-13 to P-20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-13072 RAD.25.02 (January 2020) Disponible en français 2 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 (January 2020) Disponible en français