MB6-07367

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB6-07367 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 at Montréal, Quebec Appel instruit à Date of decision October 19, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the respondent Me Kibondo Kilongozi Conseil de l'intimée Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a Congolese citizen, is appealing against the decision of the Refugee Protection Division (RPD). He has presented evidence in his appeal and has asked that a hearing be held. He submits that the RPD erred by finding that he was unable to satisfactorily establish his identity. [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD. I. BACKGROUND A. Summary of alleged facts [3] As this appeal deals exclusively with the issue of whether the RPD erred in finding that the appellant did not establish his identity, I am essentially limiting my summary of the content of his BOC Form to this one question. [4] In his BOC Form, the appellant states that he is a Congolese citizen, born in Brazzaville, Republic of Congo, on XXXX XXXX, 1990. He also states that in XXXX 2015, after experiencing serious problems in his country because of his political activities, he left his country and returned to the Democratic Republic of the Congo (DRC) by dugout canoe; he went to Kinshasa, where friends arranged his trip abroad. [5] In his BOC Form, the appellant states that on March 8, 2016, he boarded an airplane with someone who was pretending to be his father and who had possession of all of his documents. Together, they travelled to Morocco, where they had a stopover on the way to Montréal.1 [6] Before the RPD, in addition to his BOC Form, the appellant, then called the claimant, filed documents into evidence, some relating to his identity.2 B. Minister's intervention before the RPD [7] The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened before the RPD and filed a fingerprint comparison certificate from the Royal Canadian Mounted Police (RCMP).3 [8] In his intervention dated July 26, 2016, the Minister informed the RPD that he was of the opinion that the claimant's identity had not been established in a satisfactory manner. He noted that the claimant had not provided the passport he had used to travel. He also submitted that, based on a fingerprint comparison, he was of the opinion that the identity card presented by the claimant was not genuine. As for the birth certificate, the Minister stated that it did not satisfactorily establish the claimant's identity because there was no photograph, signature or biometric data.4 C. RPD decision [9] The RPD hearing was held on September 20, 2016, and the decision rejecting the refugee protection claim was rendered on October 17, 2016. [10] The RPD found that the RCMP fingerprint analysis was determinative, that the other documents filed in evidence by the claimant were not as relevant as the identity certificate and that, even considered together, they were insufficient to counter that analysis. Having concluded that the claimant had not established his identity, the RPD did not pursue its analysis of the refugee protection claim.5 II. EVIDENCE PRESENTED ON APPEAL [11] In his affidavit,6 the appellant states that he is presenting new evidence that he did not have with him at the time of his hearing before the RPD.7 [12] The RAD Rules8 state that the memorandum of appeal must include full and detailed submissions regarding how any evidence that the appellant wants to present in his appeal meets the requirements of subsection 110(4) of the IRPA. However, the appellant's memorandum does not include such full and detailed submissions. [13] In Singh, the Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD. It also finds that the criteria set out in the case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question. In short, there is a clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances. Its role is not to provide the opportunity to complete a deficient record, but to allow errors that the RPD may have made to be corrected.9 [14] In Ilias, the Federal Court notes that an appellant cannot offer new evidence every time he is surprised by the RPD's decision. It also states that the criteria set out in subsection 110(4) of the IRPA regarding the admissibility of new evidence leave no room for discretion on the part of the RAD and must be narrowly interpreted.10 [15] In my opinion, the evidence presented by the appellant does not meet the criteria set out in subsection 110(4) of the IRPA. Here is why. [16] The Procès-verbal de constat (PV) [report] is dated February 2, 2017, and was signed by a bailiff, Mr. XXXX, who indicates that he was received by the director of the civil identification centre in Brazzaville. He adds that this director acknowledged the authenticity of the appellant's temporary identity document but that it contains a material error in terms of the fingerprints of the left index finger, which do not match the appellant's fingerprints. [17] Although the bailiff certified on his honour that he went to that location and states that he wrote the PV bearing his signature with all the rights and privileges pertaining thereto, he does not specify exactly when he went there. Moreover, his PV does not contain the name of the director of the civil identification centre in Brazzaville or a sworn statement from him. Given these deficiencies, I find that the appellant did not establish the credibility of this evidence.11 [18] I also find that the appellant did not establish that it was not possible for this check to be performed before the RPD's decision was rendered, or why he could not reasonably have presented the results of such a check to the RPD. [19] In my opinion, this evidence was submitted in response to the RPD's findings12 and is essentially intended to complete a deficient record. However, as the Federal Court recently noted, an appellant cannot present new evidence every time he is surprised by the RPD's decision.13 Consequently, I conclude that this evidence is not admissible in the appeal. III. HOLDING A HEARING BEFORE THE RAD [20] In his affidavit,14 the appellant asks for a hearing before the RAD and indicates that he did not have the evidence that he is presenting in the appeal with him at the time of the hearing before the RPD. [21] According to the case law, it is up to the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.15 [22] One of the determinative criteria set out in subsection 110(6) of the IRPA is that evidence presented on appeal has been found to be admissible. However, the evidence presented by the appellant was not found to be admissible. Consequently, there is no new documentary evidence to analyze in a hearing before the RAD.16 IV. GROUNDS OF APPEAL AND DECISION SOUGHT [23] In his memorandum, the appellant submits that the RPD did not establish that his certificate of lost identity documents was false or that it was fraudulent. He also submits that the RPD did not examine all of the evidence before it to establish his identity-notably the affidavits from his parents-and that it therefore erred. [24] Moreover, the appellant submits that in determining that he is neither a refugee nor a person in need of protection, the RPD ventured into the territory of the credibility of his claim, whereas the prior analysis had dealt only with his identity. Without stating it expressly, the appellant suggests that this is an error. [25] Accordingly, the appellant is asking the RAD to set aside the determination of the RPD and to hear the matter on its merits in order to recognize him as a refugee or person in need of protection.17 V. APPLICABLE STANDARD OF REVIEW [26] The RAD reviews RPD decisions by applying the correctness standard after conducting its own analysis of the record. The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to the oral evidence it hears, in which case the RAD may apply the reasonableness standard, modified to apply to its own context.18 However, the role of the RAD is not to proceed with a de novo consideration of refugee protection claims but to determine whether, as alleged by the appellants, the RPD did indeed err.19 [27] After conducting my own analysis of the record, notably by listening to the recording of the hearing before the RPD20 and by reading the evidence concerning the appellant's identity,21 I find that the correctness standard must be applied, considering that my own decision requires an assessment of several factors with respect to which the RPD did not enjoy a meaningful advantage by relying on a first-hand observation of the appellant's demeanour.22 VI. ANALYSIS OF THE APPEAL [28] Having applied this standard of review, I find that the correct decision was to reject the refugee protection claim. Here is why. [29] The issue of whether a refugee protection claimant has established his identity is a question of fact and credibility.23 The onus is on the claimant to establish, on a balance of probabilities, that he is the person he claims to be, as identity is crucial to any refugee protection claim.24 The claimant is required to provide acceptable documentation establishing his identity, failing which he must explain why he does not have such documentation and what steps he took to obtain it.25 [30] It is well established that it is the task of the RPD to weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish the identity of the person claiming refugee protection, on a balance of probabilities.26 [31] In its reasons for decision, the RPD clearly states that it considered all the documents filed in evidence by the claimant. However, it ultimately found that the probative value of these documents was not sufficient to offset the RCMP's analysis, according to which the primary document submitted by the claimant to establish his identity did not contain his fingerprints.27 [32] For my part, after carrying out an independent analysis of the record, I find that the appellant was unable to explain why he did not make an effort to obtain the voter's card that was allegedly issued to him in 2009 and that, according to his testimony, could still be in the house where he was living at the time and where one of his brothers was still living at the time of the hearing.28 When asked to explain why he had not made any such effort, he answered that he did not think that the document was very important.29 In my opinion, that explanation is unreasonable. I would add that failing to provide supporting documentation that is reasonable to expect may have an impact on a claimant's credibility.30 I am of the opinion that, in the circumstances, it was reasonable to expect the claimant to file this voter's card, which enabled him to vote in 2009, or an affidavit or letter from friends or family stating that they had looked for the card but could not find it. [33] Moreover, the address that appears to be the appellant's on the document that he presented as his membership card for the Mouvement congolais pour la démocratie et le développement intégral (MCDDI) [Congolese movement for democracy and integral development]31-XXXX XXXX XXXX XXXX, Brazzaville-does not match any of the residential addresses indicated on his IMM 5669 form.32 The same is true of the address on the school identity card33-XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Brazzaville-which also does not match any of the residential addresses indicated on his IMM 5669 form. [34] What appears to me to be even more serious is that, in the identity certificate, which, according to the RCMP's analysis, contains fingerprints that are not the claimant's,34 the address given-XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Brazzaville-once again does not match any of the residential addresses indicated in his IMM 5669 form. This document was issued on XXXX XXXX, 2015. However, according to the information in his IMM 5669 form, he was living at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, at that time. Consequently, there is a contradiction between the statements made in these two documents. [35] I find that these omissions and this contradiction, added to the problem with the fingerprints that the RPD clearly identified in its decision, undermine the claimant's credibility. According to the case law, it is open to me to find that there were credibility issues without giving the appellant the opportunity to respond because this issue was a determinative issue in this case and therefore is not a new issue.35 [36] Therefore, in light of my independent analysis of all of the evidence, I conclude that the decision that should have been rendered, the correct decision in other words, was to reject the refugee protection claim because the claimant failed to establish his identity. [37] As the appellant's identity was not established, there is no need to pursue the analysis of his written account or his allegations concerning his fear of being persecuted or of being subjected to a risk to his life. Consequently, his claim must be rejected.36 CONCLUSION Alain Bissonnette Me Alain Bissonnette October 19, 2018 Date [38] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX did not establish his identity and, consequently, is not a Convention refugee within the meaning of section 96 or a person in need of protection under section 97 of the IRPA. [39] The appeal is dismissed. IRB translation Original language: French 1 Appellant's BOC Form, pages 9 to 24 of the RPD record. 2 These documents are reproduced at pages 69 to 122 of the RPD record. 3 This document is reproduced at page 129 of the RPD record. 4 Notice of Intent to Intervene, July 26, 2016, pages 126 and 127 of the RPD record. 5 RPD reasons and decision, October 17, 2016, pages 3 to 8 of the RPD record. 6 Appellant's affidavit, February 23, 2017, paragraph 6. 7 This document is a Procès-verbal de constat [report] dated February 2, 2017; it is reproduced at pages 72 and 73, Tab 4 B of the appeal record. 8 RAD Rules, SOR/2012-257, subparagraph 3(3)(g)(iii). 9 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 10 Ilias v. Canada (Minister of Citizenship and Immigration), No. IMM-5152-17, Bell, June 27, 2018; 2018 FC 661, paragraphs 34 and 35. 11 Singh, supra, footnote 9, paragraphs 38, 43 and 44. Also read, on the RAD's ability to determine that evidence is inadmissible because it is not credible: Belek v. Canada (Minister of Citizenship and Immigration), No. IMM-3459-16, Diner, February 16, 2017; 2017 FC 196, paragraph 13. Tuncdemir v. Canada (Minister of Citizenship and Immigration), No. IMM-808-16, Gagné, August 31, 2016; 2016 FC 993, paragraph 35. Tota v. Canada (Minister of Citizenship and Immigration), No. IMM-2798-14, Boswell, July 21, 2015; 2015 FC 890, paragraph 44. 12 Li v. Canada (Minister of Citizenship and Immigration), No. IMM-5548-17, Gagné, August 31, 2018; 2018 FC 877, paragraph 10. 13 Ilias, supra, footnote 10, paragraph 34, referring to three other decisions of the same court. 14 Appellant's affidavit, paragraphs 5, 6 and 7. 15 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 16 Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21. 17 Appellant's memorandum, February 8, 2017, pages 74 to 82 of the appeal record. 18 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. X (Re), 2017 CanLII 33034 (CA IRB). 19 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 20 Recording of the hearing before the RPD, September 20, 2016, 00:01 to 01:46:07. 21 Ali v. Canada (Minister of Citizenship and Immigration), No. IMM-30-18, Diner, July 5, 2018; 2018 FC 688, paragraph 25. 22 Canada (Minister of Citizenship and Immigration) v. Abdul Salam, No. IMM-5358-17, Grammond, July 3, 2018; 2018 FC 676, paragraph 16. 23 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-5553-05, Shore, April 6, 2006; 2006 FC 438, paragraph 10. Hodanu v. Canada (Minister of Citizenship and Immigration), No. IMM-4712-10, Rennie, April 20, 2011; 2011 FC 474, paragraphs 10 and 22. 24 Matingou-Testie v. Canada (Minister of Citizenship and Immigration), No. IMM-5205-11, Martineau, April 3, 2012; 2012 FC 389, paragraph 2. 25 Hadi v. Canada (Minister of Citizenship and Immigration), No. IMM-4513-17, Walker, June 7, 2018; 2018 FC 590, paragraph 15. 26 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, paragraph 37. 27 RPD reasons and decision, paragraphs 10 to 14, pages 6 and 7 of the RPD record. 28 Recording of the hearing before the RPD, 46:25 to 54:15. 29 Ibid., 55:00 to 58:00. 30 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. 31 This document is reproduced at pages 80 and 81 of the RPD record. 32 This document is reproduced at pages 33 to 36 of the RPD record. 33 This document is reproduced at pages 86 and 87 of the RPD record. 34 This document is reproduced at pages 44 and 45 of the RPD record. 35 Marin v. Canada (Minister of Citizenship and Immigration), No. IMM-3821-17, Mosley, March 2, 2018; 2018 FC 243, paragraphs 36, 37 and 38. Adoye v. Canada (Minister of Citizenship and Immigration), No. IMM-3058-17, Favel, March 5, 2018; 2018 FC 243, paragraphs 11 to 15. 36 Salajova v. Canada (Minister of Citizenship and Immigration), No. IMM-369-18, McDonald, August 10, 2018; 2018 FC 823, paragraphs 22 and 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-07367 9