MC0-08631

RAD File No. / No de dossier de la SAR : MC0-08631 MC0-08632 / MC0-08633 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 23, 2021 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Cheikh Sadibou Fall Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the male appellant), XXXX XXXX XXXX (the female appellant), citizens of the Democratic Republic of the Congo (DRC), and XXXX XXXX XXXX (the minor appellant), a citizen of Brazil, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claims. [2] The male appellant fears that he and his family will be killed by DRC authorities due to his religious beliefs regarding the Bundu Dia Kongo (BDK). [3] The RPD concluded that the appellants failed to establish their identity. It considered that two of the six documents provided were falsified and that the series of irregularities and inconsistencies noted in the other documents had not been adequately explained. It concluded that it was not required to proceed with an assessment of the merits of the refugee protection claim. [4] The appellants argue that the RPD erred in giving no probative value to the authentic documents they filed and in concluding that there were inconsistencies or irregularities without considering their explanations, the reality on the ground in the DRC and the fact that these were minor inaccuracies. The RPD downplayed the persecution and threats they received and their legitimate fear. [5] The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened before the RPD with respect to credibility and the exclusion under Article 1E of the Convention and attended the hearing before the RPD. The Minister did not intervene on appeal. [6] The Refugee Appeal Division (RAD) considers that the determinative issue is identity. [7] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [8] In the written account1 in his Basis of Claim Form (BOC Form), the male appellant recounts that he is a member of the BDK religion, a religious movement with a political and cultural agenda. On XXXX XXXX XXXX 2017, their spiritual leader was arrested, as was the case for the male appellant on XXXX XXXX XXXX 2017. On XXXX XXXX XXXX 2017, he allegedly took advantage of a mass prison break to escape from detention. The appellants reportedly went to Angola, where they allegedly obtained false passports, which allowed them to obtain a visa for Brazil. They allegedly arrived in that country on XXXX XXXX XXXX 2017. On XXXX XXXX XXXX XXXX XXXX the female appellant gave birth there. [9] On XXXX XXXX XXXX 2019, the appellants allegedly left Brazil with the minor male appellant. They allegedly travelled through several countries, including the United States, and arrived in Canada on XXXX XXXX XXXX 2019, where they claimed refugee protection. [10] Following the RPD's decision, the appellants submitted various documents as new evidence. The RAD rejects the admissibility of these documents as new evidence for the reasons set out below. ADMISSIBILITY OF NEW EVIDENCE [11] The RPD hearing took place on February 27, 2020, and the decision was rendered on June 17, 2020. [12] The appellants included the following documents in their memorandum (a letter and number were used to identify each document for ease of reference in this decision): A-1: Voter card of the female appellant's mother2 A-2: Church membership card of the female appellant's father3 A-3: Voter card of the male appellant's father4 A-4: Male appellant's diplomas5 a. XXXXde XXXXde XXXX XXXX XXXX XXXX XXXX] b. State diploma c. Certificate of successful completion No. XXXX XXXX XXXX of XXXX XXXX XXXX XXXX d. XXXX XXXX diploma [13] The admissibility of new evidence before the RAD falls under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and the criteria in Raza,6 as adapted in Singh.7 [14] To be admissible under subsection 110(4) of the IRPA, the appellants may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the appellants could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. A-1: Voter card of the female appellant's mother [15] The appellants are asking the RAD to admit the voter card of the female appellant's mother as new evidence. [16] In her BOC Form,8 the female appellant states her mother's family name is "XXXX" and her first name is "XXXX XXXX." The mother's family name on the female appellant's9 birth certificate and voter card is "XXXX XXXX." [17] In their memorandum,10 the appellants argue that the female appellant testified at the RPD hearing that these inconsistencies were due to the fact that her mother has three first names in addition to her family name and that she was stressed when she completed her BOC Form and she forgot. The appellants submit that the female appellant did not have her mother's voter card with her at the time of the hearing and that she was able to send money to her mother to get it to her only after the RPD decision. [18] In a sworn statement11 in support of the appellants' memorandum, the female appellant argues that: [translation] "Due to financial problems and the very little time I had before the hearing, I could not send money in time to members of my family so they could send me my mother's voter card and my father's church membership card." [19] The RAD examined the voter card submitted and noted that it stated [translation] "Duplicate," an issue date of "XXXX XXXX XXXX XXXX2020," and the family name: "XXXX" and the post-name/first name: XXXX XXXX XXXX XXXX." [20] This card predates the rejection of the refugee protection claim on June 17, 2020. [21] The RAD considers that this card was reasonably available when the refugee protection claim was rejected. The appellants knew that their identity was an issue. On the morning of the RPD hearing, they produced a photograph of their marriage certificate, obtained by email.12 The RAD is of the opinion that they could have obtained a copy of the voter card of the female appellant's mother in the same way and that lack of money is not a satisfactory explanation as to why the card was not reasonably available. According to the RAD, nor is the short amount of time before the hearing since there were about seven months between the appellants' arrival in Canada and the RPD hearing. [22] Furthermore, the RAD is of the opinion that in the circumstances, the appellants would have reasonably been expected to present this card at the time of the rejection because they knew that their identity was an issue. In listening to the recording of the hearing, the RAD notes13 that the RPD raised the fact that the names of the female appellant's mother in her BOC Form and in the Schedule A completed upon her arrival in Canada were different from those on her voter card and birth certificate. The female appellant attributed the difference to forgetfulness and stress. The RAD is of the opinion that the appellants could have asked the RPD for additional time to obtain other evidence. In addition, the RAD noted that the RPD specifically asked the female appellant14 earlier in the hearing whether she had any other identity documents that she could provide that day, and she responded that that was all she had for the Congo other than the false identities they had used for Angola. The RAD considers that the female appellant could then have requested that the appellants be granted additional time to obtain other documents, including her mother's voter card. [23] The RAD concludes that the document submitted as A-1 does not meet the criteria of subsection 110(4) of the IRPA. A-2: Church membership card of the female appellant's father [24] The appellants submit in their memorandum that there is no problem with the name of the female appellant's father and that it is spelled correctly. The female appellant was able to obtain his church membership card and they are asking the RAD to admit it as new evidence. [25] In their memorandum, the appellants do not provide any reason why this card was not reasonably available. However, the female appellant did provide a reason in her previously cited sworn statement. [26] The RAD notes that the church membership card consists of two pages: one page is titled [translation] "tithe card" with the Salvation Army letterhead, is dated "XXXX XXXX XXXX XXXX10" in the name of "XXXX XXXX" and bears the number XXXX XXXX while the other page consists of a list of monthly tithe amounts for 2010 and 2011 and the number XXXX appears on it. [27] This document predates the rejection of the refugee protection claim on June 17, 2020. [28] For the same reasons previously stated concerning the voter card of the female appellant's mother, the RAD is of the opinion that the appellants have not provided a satisfactory explanation as to why the church membership card of the female appellant's father was not reasonably available. [29] Furthermore, the RAD is of the opinion that in the circumstances, the appellants would have reasonably been expected to present this card at the time of the rejection because they knew that their identity was an issue. Questions arose at the RPD hearing concerning the identity of the appellants' parents. The RAD would have expected them to provide documents in this regard including the church membership card of the female appellant's father. As previously mentioned, concerning the voter card of the female appellant's mother, the appellants could have asked the RPD for more time to do so. [30] The RAD concludes that the document submitted as A-2 does not meet the criteria of subsection 110(4) of the IRPA. A-3: Voter card of the male appellant's father [31] In his BOC Form,15 the male appellant states his father's family name as "XXXX" and his first name as "XXXX XXXX." The male appellant's voter card16 indicates "XXXX XXXX," his birth certificate17 states "XXXX XXXX XXXX" and the judgment in lieu of birth certificate18 based on which the birth certificate was issued indicates "XXXX XXXX." In their memorandum, the appellants argue that the male appellant testified at the hearing that the names "XXXX" and "XXXX" were interchangeable and that his father had, in addition to his family name, three first names: "XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX." [32] The appellants are asking the RAD to admit the voter card of the male appellant's father as new evidence. They argue that his family name and first names appear on the card, that the male appellant did not have that card with him at the time of the hearing and that he was able to send his father the money to have the original card sent to him only after the RPD decision. [33] In a sworn statement,19 the male appellant submits the same arguments as the female appellant did in her sworn statement for not submitting the documents A-1 and A-2: [translation] "Due to financial problems and the very little time I had before the hearing, I could not send money in time to members of my family so they could send me my father's voter card and my diplomas and certificate of successful completion." [34] The RAD examined the voter card of the male appellant's father and noted that it indicates [translation] "Duplicate," an issue date of "XXXX XXXX XXXX XXXX2020," the family name: "XXXX" and the post-name/first name: "XXXX XXXX XXXX XXXX." [35] This card predates the rejection of the refugee protection claim on June 17, 2020. [36] The RAD does not consider that this card was not reasonably available. For the same reasons previously stated concerning the voter card of the female appellant's mother and the church membership card of her father, the RAD is of the opinion that the amount of time before the hearing and the lack of money do not adequately explain why the voter card of the male appellant's father was not reasonably available. [37] Furthermore, the RAD is of the opinion that in the circumstances, the appellants would have reasonably been expected to present this card at the time of the rejection because they knew that their identity was an issue. In listening to the recording of the hearing, the RAD notes that the RPD raised 20the fact that the name of the male appellant's father on his birth certificate was different from the one on the judgment in lieu of birth certificate based on which the birth certificate was issued. The RPD asked the male appellant to explain this inconsistency. The RAD is of the opinion that the appellants could have asked the RPD for additional time to obtain other evidence concerning the name of the male appellant's father. [38] The RAD concludes that the document submitted as A-3 does not meet the criteria of subsection 110(4) of the IRPA. A-4: Male appellant's diplomas [39] The appellants are asking the RAD to admit the male appellant's diplomas as new evidence because they show his first names and family name. [40] On reading these documents, the RAD notes the following. [41] Document A-4 a), which is a copy of the XXXXdeXXXX XXXXde XXXX, consists of two pages with the first one indicating, among other things, [translation] "State examination," "XXXX 2005," "Excerpt from the state examination results-2005 session," and the second one listing names, including "XXXX XXXX XXXX." [42] Document A-4 b) is a state high school diploma dated XXXX XXXX XXXX 2005, in the name of "XXXX XXXX XXXX." [43] Document A-4 c) is a certificate of successful completion of an XXXX 2012 special session of exams required for a XXXX XXXX program, dated XXXX XXXX XXXX XXXX2012 in the name of "XXXX XXXX." [44] Document A-4 d) is a XXXX XXXX diploma issued on XXXX XXXX XXXX 2012, and endorsed on XXXX XXXX XXXX 2015, in the name of "XXXX XXXX XXXX." [45] These documents all predate the rejection of the refugee protection claim on June 17, 2020. [46] For the same reasons previously stated concerning the voter card of the female appellant's mother and the church membership card of her father, the RAD is of the opinion that the amount of time before the hearing and the lack of money do not adequately explain why the male appellant's diplomas were not reasonably available. [47] In addition, the RAD notes from listening to the recording of the hearing21 that the RPD asked why the male appellant's name was not spelled the same way in all the documents he submitted and whether he had made any attempt in the DRC to correct his name. The male appellant replied that in his university diplomas, his first name "XXXX" was spelled with the letter "t" at the end. The RPD asked the male appellant why he did not provide a copy of the diplomas with the correct spelling, and he replied that he had copies of the diplomas but unfortunately, he did not bring them and that if the RPD looked at his email address, it would see that his first name has an "nt" at the end. Later in the hearing, in response to a question from his lawyer, the male appellant stated22 that his name was correct when he was in the DRC and that if he could submit his university documents, his diplomas, they would show that everything is correct and that there are no mistakes. [48] The RAD finds it difficult to understand why the male appellant did not mention the difficulties accessing these diplomas at the hearing and why he did not ask for additional time to produce photographs or the originals. [49] Furthermore, the RAD is of the opinion that in the circumstances, the appellants would have reasonably been expected to present these diplomas at the time of the rejection because they knew that their identity was an issue. [50] The RAD concludes that the documents submitted as A-4 do not meet the criteria of subsection 110(4) of the IRPA. [51] The RAD considers that the documents submitted as A-1 to A-4 do not meet the criteria of subsection 110(4) of the IRPA and they are not admitted as new evidence. ANALYSIS [52] The RAD conducted an independent analysis of all the evidence, including listening to the recording of the hearing before the RPD, and applied the correctness standard.23 [53] The RPD concluded that the appellants and the minor appellant failed to establish their identity under section 106 of the IRPA and rule 11 of the Refugee Protection Division Rules:24 Section 106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. Rule 11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. [54] The RAD is of the opinion that the RPD's conclusion is correct for the following reasons. APPELLANTS' IDENTITY [55] The appellants argue in their memorandum25 that throughout its decision, the RPD [translation] "went out of its way to analyze and criticize some of the evidence in the claim in support of the appellants' Congolese identity, but it never questioned the authenticity of their Congolese identity." [56] The RAD does not agree with the appellants. The RAD does not consider that the RPD [translation] "went out of its way to analyze and criticize" some of the evidence. It simply analyzed the evidence submitted by the appellants to determine whether they had proven their identity. The assessment focused on their identity and not on whether they were Congolese. Appellants' marriage certificates "Copie intégrale d'acte de mariage"[long-form birth certificate] [57] The RPD concluded that the document titled "Copie intégrale d'acte de mariage" 26 could not be used to establish the appellants' identity, because it was a forgery. The RPD noted that the appellants had acknowledged at the hearing that the document was not authentic. It contained false information about both the place and date of the marriage. The marriage did not take place on XXXX XXXX XXXX 2018, in Kinshasa, but on XXXX XXXX XXXX 2013, in Kisangani, as indicated in the photograph of the marriage certificate filed by the appellants on the day of the hearing. [58] The RPD cited the male appellant's testimony that he had this false document made by family members who lived in Kinshasa because Kisangani was far away. The RPD drew a negative inference from the fact that the male appellant considered it appropriate to obtain a false document to prove his marriage to the female appellant, thereby demonstrating a willingness to mislead the authorities of the countries they travelled through en route to Canada. The RPD also noted that the male appellant, during his interview at the port of entry, did not inform the border services officer that the document was fraudulent, stating instead that his Congolese documents, including his birth certificate and his voter card, were originals. [59] The appellants argue in their memorandum that contrary to the RPD's assertion, they did not obtain a false marriage certificate in order to mislead the authorities of the countries they travelled through on their way to Canada but rather as a matter of survival. The male appellant testified that during their journey, it was important to have a document proving his relationship with his wife, especially since they had thrown away their false Angolan passports. Since their marriage took place in Kisangani, which is far from Kinshasa, the male appellant had the document made by family members in Kinshasa, and he could not foresee the consequences on their refugee protection claim of having presented a false marriage certificate at the Canadian border. [60] The appellants consider that the RPD erred in rejecting these explanations as unreasonable. They are of the opinion that the submission of this false document is a minor error, especially since they submitted other authentic documents despite clerical errors in their parents' names. [61] The RAD agrees with the RPD that this document cannot establish the identity of the appellants because it is a forgery by the appellants' own admission. [62] The RAD does not draw a negative inference, as the RPD did, from the appellants' statements to the border services officer at the interview of XXXX XXXX XXXX 2019. It is not apparent from the notes of the meeting that the appellants claimed that the "Copié intégrale d'acte de marriage" was an original document, as reference is made only to the birth certificate and voter card:27 [translation] Q: Which documents did you use at your point of departure and transit points to Canada? Where are these documents now? Were these documents originals? If not, how did you obtain them? A: I entered Angola illegally, so without documents. To leave Angola, I used an Angolan passport obtained fraudulently, which allowed me to enter Brazil. To leave Brazil for Peru, I entered illegally without going through immigration and without documents. Then, for the rest of the way to Canada, I used my Congolese documents, in other words, the voter card and my birth certificate. The Congolese documents are originals. I threw the Angolan passport away on the way to Canada because it is a false document, it's not me. [63] However, regardless of the appellants' intention in having the marriage certificate created, the RAD finds that their credibility is undermined by the fact that when they arrived in Canada, they provided a document that they knew was false, which they admitted on the day of the RPD hearing. Contrary to the appellants' assertion, it does not consider this to be a minor error. [64] The RAD agrees with the RPD's conclusion that the document titled "Copie integrale d'acte de marriage" is a forgery and cannot establish the appellants' identity. Photograph of a marriage certificate filed on the day of the hearing [65] On the morning of the hearing, the appellants filed a photograph of a marriage certificate.28 [66] The RPD did not give it weight due to the irregularities noted in it and the fact that it was unable to examine the original. It noted the male appellant's testimony that he could not produce the originals because he had to pay for an airline ticket for a family member in Kinshasa to go pick it up in Kisangani. The RPD found it difficult to understand why the marriage certificate could not be sent by mail and why the appellants waited until the day of the hearing to file the photograph of this document when they had been in Canada for months and knew that their identity was an issue. [67] The RPD pointed out that there were several irregularities in the document, including the name of the male appellant's mother being "XXXX" instead of "XXXX" and the name of the female appellant's mother being XXXX XXXX XXXX instead of "XXXX." The RPD considered the female appellant's explanation that this may have been a typographical error to be unreasonable. The RPD stated that it found it difficult to believe that such a glaring typographical error could be found in an official marriage document, an error that the appellants did not spontaneously point out to the panel when they filed the document. The RPD also considered the fact that according to the documentary evidence,29 50% of the marriage documents received by the Embassy of Canada in Kinshasha are falsified and that up to 70% of marriage documents received by the Embassy of the United States are falsified. [68] In their memorandum, the appellants argue that their marriage certificate could only be issued in Kisangani, which is 2,000 kilometres away from Kinshasa. They state that they were able to send money to family members to obtain a copy of their marriage certificate but did not receive it in time due to the public health situation related to COVID-19 and the suspension of flights between Kinshasa and Kisangani. They claim that the document was not sent by mail because the postal service is inefficient or non-existent. According to them, the RPD erred in rejecting their explanation for the typographical error where a percentage sign appeared in the female appellant's name XXXX XXXX XXXX The use in the DRC of an azerty keyboard where the M and % keys follow each other makes the female appellant's explanation plausible. [69] The appellants also claim that it is unreasonable for the RPD to expect them to be able to explain the errors in a document. According to the Federal Court in Sitoo:30 "It is not reasonable to expect the applicant to be able to explain errors in a document which she did not produce." [70] The RAD gives no weight to the marriage certificate to prove the appellants' identity. As explained below, this conclusion is not based on an inference that the appellants did not provide explanations for the errors. [71] The RAD agrees with the RPD that the differences in the spelling of the female appellant's name and that of the female appellant's mother are serious irregularities. Even if the RAD were to accept the appellants' explanation that the percentage sign in the female appellant's name XXXX XXXX XXXX is the result of a typographical error related to the arrangement of the keys on an azerty keyboard, it could not give weight to the marriage certificate for the following reason. [72] The RAD notes that the introductory text of the marriage certificate reads as follows: [translation] The year one thousand nine hundred and ninety-five, the XXXX XXXXof XXXX, We XXXX XXXX XXXX XXXX Civil Status Officer and...proceeded to register the marriage contracted on the XXXX XXXX of XXXX the year two thousand and thirteen in KISANGANI. ... Certified true copy, Made at Kisangani on XXXX XXXX XXXX XXXX2013 [73] Thus, the Civil Registrar affirms having registered on XXXX XXXX XXXX 1995, a marriage contracted, almost 18 years later, on XXXX XXXX XXXX 2013, and he attests to it on the same date. The RAD considers this to be such an irregularity that it raises doubts about the authenticity of the document. [74] The RAD does not accept the appellants' argument that they were unable to receive the copy of the marriage certificate because of the health situation related to COVID-19. The appellants arrived in Canada on XXXX XXXX XXXX 2019, and the RPD hearing was held on February 27, 2020. The appellants knew that their identity was an issue. The RAD would have expected them, as did the RPD, to take steps well in advance of the hearing to obtain their marriage certificate and not wait until the day of the hearing to file a photograph of it. Moreover, the World Health Organization declared a pandemic on March 11, 2020, which is after the RPD hearing. This is a generally accepted fact. [75] The RPD noted the objective documentary evidence of falsified marriage certificates submitted to Canadian or U.S. embassies. According to the RAD, the case law does not establish that evidence of such a practice is in itself sufficient to reject documents. However, this practice has been found to be relevant if there are other reasons to doubt the authenticity of the documents or the credibility of the refugee protection claimant. Here, the RAD has reason to doubt the authenticity of the marriage certificate produced by the appellants on the day of the hearing, as previously mentioned, and their credibility for having produced the "copie intégrale d'acte de marriage" on their arrival in Canada, which was a falsified marriage certificate. [76] The RAD agrees with the RPD's conclusion that the photograph of the marriage certificate produced in the room on the day of the hearing cannot establish the appellants' identity. Voter cards [77] The appellants presented voter cards issued on XXXX XXXXand XXXX XXXX 2017, whereas they allegedly left the DRC on XXXX XXXX XXXX 2017, and never returned there. [78] The RPD found that these voter cards were not authentic and gave them no probative value in establishing the appellants' identity. [79] The RPD stated that at the hearing, the male appellant explained that he had sent money to his family to obtain these documents. [80] The RPD noted inconsistencies in the information on the cards. It pointed to the error in the name of the male appellant's mother written as "XXXX" whereas the male appellant testified that the name was "XXXX XXXX" but it did not consider this to be determinative in itself. It noted that the addresses on the cards were different from the last address in the DRC indicated on the Schedule A forms completed by the appellants on their arrival in Canada. The appellants explained that their families presented their 2010-2011 cards to the authorities, who used the information on the cards to generate the new cards. The RPD did not find this explanation reasonable because in 2010-2011, the appellants were living together as the male appellant had testified that the female appellant had given birth to twins in XXXX and they had been living together since then. In addition, according to the appellants' Schedule A forms, only one address was listed since XXXX 2009, whereas the male appellant testified that the appellants had lived at that address for only six or seven months and had moved frequently. [81] The RPD rejected the appellants' explanations concerning whether their family could obtain a new voter card. It referred to the objective documentary evidence,31 which states that the card is issued on-site once citizens are registered on the voter list and they must go to the registration centre that has jurisdiction over their primary residence to obtain it. Nowhere does it state in the documentary evidence that a family member, even with the old card in hand, can obtain a new card. [82] The RPD pointed out that the documentary evidence,32 to which it had already referred, reports a prevalence of fraudulent documents in the DRC, including voter cards. The RPD noted that the male appellant had testified that these documents had been sent by his family in the same package as the other documents, including the long-form birth certificate, which was falsified. [83] In light of all these problems, the RPD concluded that the appellants' voter cards were not authentic. [84] The appellants argue that the RPD erred by relying on documentary evidence regarding the requirements for obtaining a voter's card and by ignoring the reality on the ground in the DRC. In their opinion, the RPD based its conclusions on assumptions rather than facts. [85] The appellants argue that the RPD correctly did not consider the error in the name of the male appellant's mother to be determinative. [86] As established in Sitoo, it is unreasonable for the RPD to expect the appellants to explain errors on their voter cards. [87] With respect to their address, the appellants maintain that they testified that they moved frequently and were unable to list all of their addresses in Schedule A, so they listed only one. They reiterate their testimony that their new cards were generated with the information that appeared on their 2010-2011 cards and that the addresses that appear on them are the same as on the old cards. [88] The RAD agrees with the RPD that the evidence did not establish that the appellants' voter cards are authentic. [89] The RAD is of the opinion that there is a problem with the appellants' family obtaining these cards. Unlike the appellants, the RAD is of the opinion that the RPD did not ignore the reality on the ground in the DRC, as the objective documentary evidence referred to by the RPD reflects not only the legal requirements but also observations made on the ground:33 Sources state that the card is issued on-site once citizens are registered on the voter list (US n.d.; OIF [29 May 2017]). CENI's [previously cited in the text as the Independent National Electoral Commission] website indicates that citizens must go to the CI [previously cited in the text as the Registration Centre] that has jurisdiction over their primary residence (DRC 17 Nov. 2016). According to an electoral observation report concerning voter registration in the DRC written by the organization Justice and Peace Congo (Justice et paix Congo) [1], the CI is the operational structure where applicants go to be identified and registered and it issues the voter card (Justice et paix Congo/CENCO Nov. 2017). Article 8 of the law titled Act No. 04/28 of 24 December 2004 concerning the identification and registration of voters in the Democratic Republic of Congo, as amended and supplemented by Act No. 16/007 of 29 June 2016 (Loi no 04/28 du 24 décembre 2004 portant identification et enrôlement des électeurs en République démocratique du Congo telle que modifiée et complétée par la loi no16/007 du 29 juin 2016) indicates that in order to be registered on the voter list, the applicant must fulfill the following conditions: [translation] 1. be a Congolese national; 2. be 18 years old on the date of the last poll of the electoral cycle; 3. be in the Democratic Republic of Congo at the time of identification and registration; 4. be eligible for civil and political rights (DRC 2016). [90] According to this documentary evidence, to obtain a voter card, the applicant must be in the DRC and go to the registration centre that has jurisdiction over their primary residence. There is no indication in this document that an applicant can delegate another person to obtain the card. [91] In light of this evidence, the RAD is of the opinion that the fact that the appellants obtained their voter cards through their families is sufficient reason not to give them any weight. [92] But there is more. Like the RPD, the RAD does not consider the appellants' explanations about their various addresses to be satisfactory. [93] In the Schedule A forms,34 the appellants state that from XXXX 2009 to XXXX 2017 they lived at "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Kinshasa." They submit that this was their last address before leaving the DRC and that they could not provide any other address because they moved frequently. The appellants testified and reiterated in their memorandum that their 2017 voter cards would have been generated with information from their 2010-2011 cards. The RAD would have expected only one address to appear on their 2017 voter cards, which is not the case, as these cards have two different addresses in Kinshasa: "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX"35 for the male appellant and "XXXX XXXX XXXX XXXX XXXX XXXX"36 for the female appellant. [94] According to the male appellant's interview37 at the Canadian port of entry, the appellants have two other children living in the DRC who would have been XXXX years old in XXXX 2019, which confirms the male appellant's testimony that the female appellant became pregnant in XXXX. The RAD notes from listening to the recording of the hearing that the male appellant initially stated38 that he had been living in the DRC with the female appellant, their twins and his sister since his marriage to the female appellant on XXXX XXXX XXXX 2013.39 Confronted later by the RPD about the fact that in his generic application form he indicated XXXX XXXX XXXX 2009, to the question "(If you are married or in a common-law relationship) Provide the date on which you were married or entered into the common-law relationship,"40 the male appellant responded41 that they were still dating, the female appellant was pregnant but the formal marriage had taken place in 2013 and their children were born in XXXX. According to the appellants' BOC Form,42 the twins were born on XXXX XXXX XXXX XXXX. [95] The RAD concludes that the evidence establishes that the appellants were living together in 2009 at the same address. This would be inconsistent with the fact that their 2010-2011 voter cards have two different addresses. The RAD does not consider their explanations that the 2017 cards were generated with the information from the 2010-2011 cards satisfactory. [96] The RAD agrees with the RPD's conclusion that the voter cards produced by the appellants are not authentic and that they cannot be given any weight to establish their identity. Appellants' birth certificates [97] The RPD noted irregularities in the birth certificates the appellants had on their arrival in Canada, did not consider them authentic and did not give them any probative value to establish the appellants' identity. The RAD has reached the same conclusion for the following reasons. Female appellant [98] The RPD pointed out that in her BOC Form and Schedule A form, the female appellant indicates that her mother's name is "XXXX XXXX XXXX." On her voter card and birth certificate, her mother's name is "XXXX XXXX." At the hearing, the female appellant testified that her mother's name was "XXXX XXXX XXXX" but that she was also called "XXXX XXXX" She explained that she did not provide the four names in her BOC Form because she was stressed. [99] The RPD drew a negative inference from the fact that the female appellant was represented by counsel and confirmed at the beginning of the hearing that her form was complete, true and correct and that she had nothing to add or change. The female appellant also testified that the male appellant had helped her complete the form instead of a certified interpreter, and she stated that she understood the contents. [100] The appellants argue that the omission in the BOC Form and the Schedule A form was a minor oversight by the female appellant, and she was stressed. The RPD should have assessed it in light of all the evidence and considered it consistently, which it did not do. The appellants submitted the identity card of the female appellant's mother as new evidence in support of their assertion. [101] For the reasons previously stated, the RAD rules that the identity card of the female appellant's mother is not admissible as new evidence. [102] Like the RPD, the RAD draws a negative inference from the fact that the female appellant was represented by counsel and confirmed at the beginning of the hearing that her BOC Form was complete, true and correct and that she had nothing to add or change. [103] Even if it were to consider the failure to mention the name "XXXX" in the BOC Form and the Schedule A form43 a minor omission and accept the explanation of stress, which it does not, there would still be a considerable difference in the female appellant's mother's name according to the documents produced. On the female appellant's birth certificate and voter card, her mother has two names but in her BOC Form and Schedule A form, she has three, and only the name "XXXX" is found on the birth certificate, voter card and the forms. The RAD is of the opinion that stress is not a satisfactory explanation for these differences. In addition, given all the other problems raised earlier in the appellants' evidence concerning their identification, the RAD does not consider them minor. [104] The RAD draws a negative inference as to the credibility of the female appellant from the omission of the name "XXXX" from the forms, the failure to mention it at the beginning of the hearing and from the fact that only one of the names appears in the BOC Form and Schedule A, and on the birth certificate and the voter card. Male appellant [105] The RPD noted that the name of the male appellant's father is the source of the inconsistencies in the documents produced. [106] In his BOC Form,44 the male appellant states that his father's name is "XXXX XXXX XXXX," while his voter card45 shows "XXXX XXXX," his birth certificate46 indicates, "XXXX XXXX XXXX," and the judgment in lieu of birth certificate47 based on which the birth certificate was issued shows "XXXX XXXX." When asked by the RPD for an explanation, the male appellant replied that the names "XXXX" and "XXXX" were interchangeable, and he provided no explanation as to why the names in the judgment in lieu of birth certificate were different from those on the birth certificate. [107] The RPD did not consider these explanations satisfactory. According to the RPD, it would have been reasonable to expect that the name of the male appellant's father would have been the same on the birth certificate and on the judgment in lieu of birth certificate based on which it was issued. It acknowledged that there may be discrepancies in the spelling of some names (such as an E instead of an A or an O instead of a U). However, it is difficult to see how the names "XXXX" and "XXXX" can be considered the same name since they are different names that do not sound the same. The RPD reiterated, as noted earlier in the objective documentary evidence,48 the high prevalence of fraudulent documents in the DRC, including birth certificates, 20% of which are falsified. [108] The RPD noted that the male appellant testified that the birth certificates had been sent by his family in the same package as the other documents, including the long-form marriage certificate, which was falsified. [109] Taking all of these issues into account, the RPD concluded that the birth certificates were not authentic. [110] In their memorandum, the appellants argue that the male appellant testified that the names "XXXX" and "XXXX" were interchangeable and that his father had, in addition to his family name, three first names: "XXXX XXXX XXXX XXXX." [111] The appellants asked the RAD to admit as new evidence the voter card of the male appellant's father, which shows the family name and all the first names of the male appellant's father, and in order to prove the male appellant's identity, a copy of the XXXXdeXXXX XXXXdeXXXX XXXX XXXX a copy of his certificate of successful completion, his Diplôme d'État and his XXXX diploma, featuring the male appellant's name. For the reasons previously stated, the RAD ruled that these documents were not admissible as new evidence. [112] Even if the RAD were to determine that the first names "XXXX" and "XXXX" were interchangeable, it is of the opinion that the inconsistency without a satisfactory explanation between the name appearing on the birth certificate, "XXXX XXXX XXXX," and the name on the judgment in lieu of birth certificate, "XXXX XXXX," based on which the birth certificate was issued, is sufficient to not give weight to the birth certificate produced by the male appellant. [113] The RAD agrees with the RPD's conclusion that the birth certificates produced by the appellants are not authentic and that they cannot be given any weight to establish their identity. [114] The RAD considers the RPD's conclusion that the appellants have not established their identity to be correct. IDENTITY OF THE MINOR APPELLANT [115] The RPD noted that to establish the identity of the minor appellant, the appellants produced three documents: a civil status record from the DRC, a birth certificate from Brazil and an identity card from Brazil. The RPD determined that in light of the numerous problems in the other identity documents submitted by the appellants, the Brazilian documents could not be used to prove the identity of the minor appellant. [116] The RPD noted that the male appellant acknowledged that the civil status record from the DRC was fraudulent as it indicated that his son was born in the DRC whereas he was born in Brazil. He had asked his family to have this document drawn up because he wanted his son to have proof of his real name because the Brazilian authorities had refused to allow him to use the name, "XXXX XXXX XXXX." [117] The RPD noted that the original Brazilian birth certificate contains the name "XXXX XXXX XXXX," which is different from the name "XXXX XXXX XXXX" that the appellants indicated in the BOC Form. The RPD stated that the male appellant, when asked about this, replied that the appellants had chosen XXXX because the Brazilian authorities had refused the name "XXXX XXXX" [118] The RPD noted that the appellants did not provide any original or photocopies of their fraudulent Angolan documents on which the birth certificate was based, having stated at the interview at the Canadian port of entry that they had thrown them away. It noted that the names of the grandparents on the birth certificate, "XXXX XXXX" and "XXXX XXXX XXXX," and "XXXX XXXX XXXX" and "XXXX XXXX XXXX," do not in any way resemble the names mentioned at the hearing by the appellants, namely "XXXX XXXX," "XXXX XXXX XXXX XXXX," "XXXX XXXX XXXX" and "XXXX XXXX." [119] As for the Brazilian identity card, the RPD noted that it contains similar information, including the false Angolan names of the appellants and the name XXXX XXXX which is not the male appellant's real name. [120] The appellants acknowledge in their memorandum that the civil status record from the DRC is fraudulent. [121] They argue that the airline tickets used to leave Angola, and which they produced, contain the same names as those on the minor appellant's birth certificate and identity document. The first names were changed to sound Portuguese, but the family names are the same. [122] In the appellants' view, it is understandable that one of the two first names on the birth certificate of the minor male appellant is false, that is, "XXXX," as the appellants entered Brazil with fraudulent passports and a fraudulent Angolan identity because if they had stated they were Congolese, they would have had additional difficulties. [123] The appellants argue that the Brazilian documents are authentic even though they contain irregular information, in particular, about their names and those of their parents. [124] According to the RAD, the irregularities in the aforementioned documents are such that the identity of the minor appellant cannot be established. [125] By the appellants' own admission, the civil status record49 from the DRC is fraudulent. The RAD does not consider it authentic. [126] The RAD draws the same conclusion concerning the Brazilian birth certificate.50 Like the RPD, it notes that none of the names of the appellants' parents matched the ones mentioned at the hearing. They are "XXXX XXXX" and "XXXX XXXX XXXX," and "XXXX XXXX XXXX" and "XXXX XXXX XXXX." [127] The RAD examined the airline tickets51 to which the appellants referred in their memorandum. The RAD notes that their names "XXXX XXXX XXXX" and "XXXX XXXX XXXX" are indeed the same as those on the birth certificate and identity card. However, it is of the opinion that this correlation does not allow it to conclude that the birth certificate is authentic because it is normal for the appellants to have used the same names to obtain their airline tickets as those that appeared in an official document that they would have had drawn up. [128] In addition, the RAD notes that the minor appellant's address on the birth certificate, "XXXX XXXX XXXX XXXX," is different from the one appearing in the appellants' Schedule A: "XXXX XXXX XXXX."52 [129] The RAD is of the opinion that the Brazilian identity card53 also fails to establish the identity of the minor male appellant. The RAD notes that it states the appellants' names as: "XXXX XXXX XXXX" and "XXXX XXXX XXXX" as on the birth certificate and the airline tickets and previously concluded that this certificate was not authentic. In addition, the name of the minor child on the certificate "XXXX XXXX XXXX" is not his real name. In light of all the other problems raised by the documents produced by the appellants, the RAD rejects their assertion that they added the first name XXXX at the request of the Brazilian authorities. [130] The RAD considers the RPD's conclusion that the DRC document and the Brazilian documents do not prove the identity of the minor male appellant to be correct. [131] The RAD considers the RPD's conclusion that the appellants have not established their identity to be correct. APPELLANTS' LEGITIMATE FEAR [132] The RPD reiterated that establishing identity is a crucial element in making a decision on a refugee protection claim. Since identity had not been established, the RPD had to reject the refugee protection claim without analyzing evidence on the other aspects of the claim. [133] In their memorandum, the appellants state54 that the [translation] "RPD downplayed the persecution and threats received by the appellants as well as their legitimate fear." They argue that they have convincingly established their objective fear of returning to the DRC. [134] The RAD does not accept the appellants' arguments. In listening to the recording of the hearing, the RAD noted that the RPD did not hear any testimony regarding the appellants' fear and ended the hearing after listening to the evidence on identity. Moreover, consistent with the case law, the failure to prove identity alone is enough to reject a claim for refugee protection, and there is no need for the RPD to pursue further consideration of the merits of the claim.55 [135] The RAD concludes that the RPD's decision is correct. CONCLUSION [136] The RAD dismisses the appeal and confirms the RPD's determination that the appellants are neither Convention refugees nor persons in need of protection. (signed) Isabelle Parizeau Me Isabelle Parizeau February 23, 2021 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, pp. 24 to 26. 2 P-2, Male appellant's record, male appellant's memorandum, p. 102. 3 Ibid., pp. 104 and 105. 4 Ibid., p. 94. 5 Ibid., pp. 96 to 100. 6 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 7 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 8 SPR-1, RPD record, p. 33. 9 Ibid., pp. 143 and 144. 10 P-2, Male appellant's record, male appellant's memorandum, p. 119, para. 55. 11 Ibid., p. 27. 12 SPR-1, Audio recording of the RPD hearing of February 27, 2020, see approximately 1:48:58 to 1:50:57. 13 Ibid., see approximately 01:35:00 to 01:36:28. 14 Ibid., see approximately 01:07:32 to 01:07:58. 15 SPR-1, RPD record, p. 19. 16 Ibid., p. 124. 17 Ibid., p. 123. 18 Ibid., pp. 133 and 134. 19 P-2, Male appellant's record, male appellant's memorandum, p. 26. 20 SPR-1, Audio recording of the RPD hearing of February 27, 2020, see approximately 01:26:29 to 01:27:49. 21 Ibid., see approximately 01:18:50 to 01:20:04. 22 Ibid., see approximately 01:55:13 to 01:55:38. 23 Canada v. Huruglica, 2016 FCA 93. 24 Refugee Protection Division Rules (SOR/2012-256). Current to May 22, 2019. Last amended on December 15, 2012. 25 P-2, Male appellant's record, male appellant's memorandum, p. 121, para. 65. 26 SPR-1, RPD record, p. 125. 27 Ibid., p. 121. 28 Ibid., p. 192. 29 SPR-1, RPD record, National Documentation Package (NDP) on the Democratic Republic of the Congo, July 31, 2019, and May 11, 2020, Tab 3.12: Prevalence and availability of fraudulent identity, administrative and legal documents (2011-February 2014), Research Directorate, Immigration and Refugee Board of Canada, April 10, 2014. COD104763.FE. 30 Sitoo v. Canada (Minister of Citizenship and Immigration), 2004 FC 1513, para. 13. 31 SPR-1, RPD record, NDP on the Democratic Republic of the Congo, July 31, 2019, and May 11, 2020, Tab 3.11: Democratic Republic of Congo: Voter cards, their appearance, security features and uses; requirements and procedures for obtaining a voter card (2014-July 2018). Immigration and Refugee Board of Canada, July 17, 2018. 32 Supra, endnote 29. 33 Supra, endnote 31, p. 3. 34 SPR-1, RPD record,Schedule A, question 10, male appellant, p. 165 and female appellant, p. 172. 35 Ibid., p. 124. 36 Ibid., p. 143. 37 Ibid., p. 121. 38 SPR-1, Audio recording of the RPD hearing on February 27, 2020, see approximately 0:44:33 to 0:44:52. 39 Ibid., see approximately 00:45:43 to 00:45:53. 40 SPR-1, RPD record, Generic Application Form, IMM 0008, p. 154, question 13. 41 SPR-1, Audio recording of the RPD hearing on February 27, 2020, see approximately 1:40:22 to 1:42:41. 42 SPR-1, RPD record, BOC Form, question 5, male appellant, p. 19 and female appellant p. 33. 43 SPR-1, RPD record, BOC Form, question 5, p. 33 and Schedule A, question 3, p. 169. 44 SPR-1, RPD record, p. 19. 45 Ibid., p. 124. 46 Ibid., p. 123. 47 Ibid., pp. 143 and 134. 48 Supra, endnote 29. 49 SPR-1, RPD record, p. 139. 50 Ibid., original p. 178 and translation p. 193. 51 Ibid., pp. 175 and 176. 52 Ibid., question 10, male appellant p. 165, female appellant p. 172. 53 Ibid., p. 140. 54 P-2, Male appellant's record, male appellant's memorandum, p. 123, paras. 76 and 78. 55 Terganus v. Canada (Citizenship and Immigration), 2020 FC 903, para. 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08631 MC0-08632 / MC0-08633 RAD.25.02 (January 2020) Disponible en français 26 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