MB7-03249

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. / No de dossier de la SAR : MB7-03249 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 December 13, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Aristide Koudiatou Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant presented evidence before the Refugee Protection Division1 (RPD) and stated the following: - His name is XXXX XXXX XXXX, and he is a citizen of Congo Brazzaville; - He fears the authorities in his country because, since 2013, he has been involved in the Mouvement congolais pour la démocratie et le développement intégral (MCDDI) [Congolese movement for democracy and integral development], a Congolese opposition party.2 [2] The Minister of Public Safety and Emergency Preparedness (the Minister) intervened before the RPD and, relying on document analysis reports and Facebook searches, he submitted that the appellant's identity had not been established.3 [3] After holding a hearing on February 9, 2017, the RPD, in its decision, referred to the document analyses presented by the Minister and found that the appellant's explanations were not credible and that he had not established his identity.4 [4] The appellant argues that the RPD demonstrated bias throughout the hearing, having made its decision well before the hearing, and that it erred in law when assessing his identity.5 The Refugee Appeal Division dismisses the appeal. [5] For the reasons that follow, I have concluded that: - there is no appearance of bias on the part of the RPD (A); - the RPD did not err by finding that the appellant had not established his identity (B). ANALYSIS OF THE APPEAL [6] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record. The exception to this rule pertains to situations where the RPD enjoys a meaningful advantage in assessing credibility.6 That said, the RAD's role is not to carry out a de novo consideration of refugee protection claims but, rather, to determine whether, as submitted by the appellant, the RPD erred.7 [7] For the issues of whether the RPD showed bias and whether it erred in law by finding that the appellant's identity had not been established, the correctness standard must be applied. [8] Having applied that standard, after listening to the recording of the hearing before the RPD8 and analyzing the evidence concerning the appellant's identity,9 I find that there is no appearance of bias by the RPD and that it did not err by finding that the appellant's identity had not been established. My reasons are as follows. A. No appearance of bias by the RPD [9] Where procedural fairness is in issue, the proper approach is to ask whether the requirements of natural justice in the particular circumstances of the case have been met.10 In the context of a refugee protection claim before the RPD, procedural fairness means ensuring that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender evidence that supports their claim, and is given a chance to persuade the RPD that their claim is well-founded.11 As for allegations of bias, since they cast doubt on the integrity of the RPD and its members, they cannot be made or taken lightly. An appellant who alleges an appearance of bias must provide material evidence demonstrating conduct that derogates from the standard. The apprehension of bias must be a reasonable one held by right-minded and informed persons, viewing the matter realistically and practically and having thought the matter through.12 [10] The Chairperson's Guideline 7 specifically indicates that RPD members have the same powers as commissioners appointed under the Inquiries Act and that they may inquire into anything they consider relevant to establishing whether a claim is well-founded. This means that they define what issues must be resolved in order for them to render a decision. Guideline 7 also states that a member's role is different from the role of a judge. A judge's primary role is to consider the evidence and arguments that the opposing parties choose to present; it is not to tell parties how to present their cases. RPD members have a different role. They decide and give directions as to how a hearing is to proceed, and they have to be actively involved to make the RPD's inquiry process work properly.13 [11] After listening to the recording of the hearing, I find that the allegations of bias, or even of the appearance of bias, made by the appellant are not supported by material evidence demonstrating that the RPD's conduct derogated from the standard. In light of my own analysis of the record, I find that the RPD acted in accordance with the principles of procedural fairness. [12] In his memorandum, the appellant submits that the RPD showed bias throughout the hearing, as its decision was made well before the hearing was held. He states that this appearance of bias was clear when, during the hearing, the RPD cited several decisions, including Azziz, which were clearly directed at him. He adds that the RPD confronted him with paragraphs of decisions prepared in advance for the unspoken purpose of unsettling him and undermining his defence. In short, according to the appellant, the outcome of the identity issue had been determined in advance, even before the RPD assessed the truthfulness of his statements.14 [13] I do not agree with the appellant on this point. Instead, I find that the RPD member simply played his role, and did so in a fair and equitable manner. [14] In his memorandum, the appellant also criticizes the RPD for having told him, [translation] "You may understand, sir, that it is very difficult to believe you now."15 However, that statement was not made by the RPD member, but rather by the Minister's representative.16 The RPD member subsequently reformulated the question, as follows: [translation] "How do you explain the fact that you did not hear when you are adjacent?" It then allowed the appellant to provide an explanation.17 On that point, it is clear that the RPD's conduct was perfectly acceptable. [15] Lastly, in his memorandum, the appellant criticizes the RPD for describing his gestures when it indicated that the name on the back of one of the photographs was not his. He questions whether the purpose of that remark was to unsettle him, and he concludes by indicating that there is no doubt that the panel had a preconceived idea as to his identity.18 [16] Although the RPD described the appellant's body language, it did indeed specify that that was its interpretation, and it allowed the appellant to present his point of view, which he did by answering that he did not know when he had made that gesture, but that it was true, the name on the back of the photograph was not his.19 On that point, the RPD acted in a manner that I consider fair and equitable, having simply expressed to the appellant how it had interpreted his body language and allowing him to present his own point of view. [17] As for the appellant's conclusion that the RPD already had a preconceived idea as to his identity, it must be rejected. In fact, in its decision, the RPD clearly indicated that it was after examining the photograph during the hearing that it noted the name of XXXX XXXX XXXX on the back of the photograph.20 B. The RPD did not err when analyzing identity [18] After listening to the recording of the hearing and reading the RPD's decision and the appellant's arguments, I find that the RPD did not err when analyzing identity. [19] 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.21 [20] In the reasons for its decision, the RPD analyzed the documents presented by the appellant and ultimately found that the appellant had not satisfactorily established his identity.22 [21] With respect to the passport that, after the analysis done on it, was determined to have been altered, it found that the appellant's surprise was simply a way of not telling the truth.23 [22] With respect to the MCDDI membership card, it found that the name on the back of the photograph and the alterations observed on the card were not reasonably explained by the appellant. It also noted that the same photograph appeared on the card issued by the ministry of sports and physical education, but with a different date. It ultimately found that the cards had been fraudulently obtained.24 [23] As for the undated school attendance record, which was presented as an original document, the RPD noted that it was a poor-quality photocopy, although the seal and signature were originals. It found that the appellant's explanations for this were not reasonable and concluded that the document had been fabricated for the purposes of the refugee protection claim.25 [24] In his memorandum, the appellant submits that the RPD's assessment and examination of the identity documents he filed in evidence was biased because of its preconceived idea.26 I have already found that the RPD respected procedural fairness and that the appellant did not provide material evidence demonstrating that the RPD's conduct might have given rise to a reasonable apprehension of bias. [25] In his memorandum, the appellant also argues that his credibility could not be undermined, for example, by the fact that his passport had been altered, when he believed in good faith that his passport was genuine.27 In fact, the RPD's analysis also dealt with the way in which the passport had been obtained, and the appellant's answers in this regard were unsatisfactory.28 The same is true of the other documents that were analyzed by the RPD.29 The RPD must assess not only the value of the documents provided in evidence-firstly, obviously, his passport-but also the refugee protection claimant's conduct in terms of obtaining his identity documents and his journey to come to Canada.30 However, on each of these points, the appellant's testimony and documents did not establish, on a balance of probabilities, how and under what identity he had travelled to Canada,31 how he had obtained the documents he provided to the RPD,32 or whether he truly is the person he claims to be. [26] 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. 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.33 CONCLUSION [27] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX did not establish his identity and, accordingly, is not a Convention refugee under section 96 or a person in need of protection under section 97 of the IRPA. [28] The appeal is dismissed. Alain Bissonnette Alain Bissonnette December 13, 2018 Date IRB translation Original language: French a 1 The documents are reproduced on pages 108 to 126 of the RPD record. 2 Basis of Claim Form (BOC Form), December 17, 2015, pages 12 to 24 of the RPD record. 3 Notice of intervention, January 17, 2015, pages 70, 71 and 72 of the RPD record. The documents filed in evidence by the Minister are reproduced on pages 73 to 107 of the RPD record. 4 RPD reasons and decision, March 6, 2017, pages 3 to 11 of the RPD record. 5 Appellant's memorandum, April 19, 2017, pages 13 to 36 of the appeal record. 6 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145 7 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. 8 Recording of the RPD hearing on February 9, 2017, 00:02 to 01:31:55. 9 Ali v. Canada (Minister of Citizenship and Immigration), No. IMM-30-18, Diner, July 5, 2018; 2018 FC 688, paragraph 25. 10 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, paragraph 75. Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 11 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, paragraph 10. 12 Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 SCR 369, cited by Justice Shore in Zhu v. Canada (Minister of Citizenship and Immigration), No. IMM-10173-13, November 12, 2013; 2013 FC 1139, paragraphs 1 and 2. 13 Chairperson's Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, effective December 15, 2006, amended December 15, 2012, sections 2.1 and 2.2. 14 Appellant's memorandum, paragraphs 3 to 15, pages 16 to 19 of the appeal record. 15 Ibid., paragraphs 11 to 14, pages 18 and 19 of the appeal record. 16 The appellant made the same mistake in relation to the questions he was asked about his passport. Ibid., paragraph 21, pages 21 and 22 of the appeal record. See also the recording of the hearing, 47:00 to 47:50. 17 Recording of the hearing, 28:15 to 30:55. 18 Appellant's memorandum, paragraph 9, page 18 of the appeal record. 19 Recording of the hearing, 32:15 to 35:10. 20 RPD reasons and decision, paragraph 20, page 8 of the RPD record. 21 Fritzner Julien v. Canada (Minister of Citizenship and Immigration), No. IMM-4886-09, Boivin, March 31, 2010; 2010 FC 351, paragraph 37. 22 RPD reasons and decision, paragraphs 10 to 32, pages 5 and 10 of the RPD record. 23 Ibid., paragraph 17, page 7 of the RPD record. 24 Ibid., paragraphs 20 to 26, pages 8 and 9 of the RPD record. 25 Ibid., paragraphs 27 and 28, page 9 of the RPD record. 26 Appellant's memorandum, paragraphs 16 to 21, pages 19 to 22 of the appeal record. 27 Ibid., paragraphs 22, 23 and 24, page 22 of the appeal record. 28 RPD reasons and decision, paragraphs 29, 30 and 31, pages 9 and 10 of the RPD record. 29 Ibid., paragraphs 11 to 16, pages 6 and 7 of the RPD record. 30 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraphs 21 and 22. Elazi v. Canada (Minister of Citizenship and Immigration), No. IMM-1038-99, Nadon, February 17, 2010, 2000 CanLII 14891 (FC), paragraphs 16 to 19. 31 Recording of the hearing, 14:00 to 18:45 and 28:15 to 30:45. 32 Specifically his passport, ibid., 19:00 to 27:50. 33 Salajova v. Canada (Minister of Citizenship and Immigration), No. IMM-369-18, McDonald, August 10, 2018; 2018 FC 823, paragraphs 22 and 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-03249 8 RAD.25.02 (2014.09.11) Disponible en français