TB9-06788

RAD File No. / No dossier de la SAR : TB9-06788 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(alias XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 31, 2019 Date de la décision Panel H. Shepherd Tribunal Counsel for the person who is the subject of the appeal N/A 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] The appellant, XXXX XXXX XXXX, a citizen of Angola, is appealing the decision made by the Refugee Protection Division (RPD) on February 1, 2019. [2] I applied the standard of correctness. In this case, the RPD did not enjoy a meaningful advantage over the Refugee Appeal Division (RAD).1 [3] The appellant did not file any evidence falling within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and did not request an oral hearing under subsection 110(6) of the IRPA. [4] The appellant claims that his real name is XXXX XXXX XXXX and that he is a citizen of the Democratic Republic of the Congo (the DRC). He submits that he faces a risk of persecution in the DRC owing to his membership in and work with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX since January 2010. He was detained from July 1 to 6, 2011. He was arrested for the second time on September 1, 2011, and released two days later. He was arrested a third time on September 29, 2011. He escaped on November 28, 2011, with a police officer who accepted a bribe. He went to Brazzaville on XXXX XXXX XXXX 2012. He moved to Angola in XXXX 2014. He obtained an Angolan passport under the name XXXX XXXX in 2016 and spent a week in South Africa before returning to Angola. One year later, he was in Namibia for two weeks and he went back to Angola. He was granted a US visa and was admitted to the United States on XXXX XXXX XXXX 2018. He arrived in Montréal on XXXX XXXX, 2018 to claim refugee protection. His common-law spouse and four sons remain in the DRC. Reasons for decision [5] The RPD did not accept the appellant's personal identity after rejecting the authenticity of the documents filed in support of his identity. [6] Voter registration card: The RPD found the voter registration card he claims to have obtained with a certificate of lost identity to be fraudulent. The RPD observed that the edges of the card had been hand-cut and that the card is twice as big as the current cards that were introduced in 2012. It had no information on the size of voter registration cards in 2011. The names of his parents on the card are XXXX XXXX XXXX and XXXX XXXX XXXX. Based on the response to question five in the Basis of Claim Form (BOC Form), his mother's name is XXXX XXXX XXXX and his father's name is XXXX XXXX XXXX. The appellant attributes these differences to typographical errors. According to the RPD, names must be spelled the same way. In addition, it is easy to obtain fraudulent documents in the DRC.2 [7] Driver's licence: The licence supplied by the appellant authorizes him to drive heavy vehicles, buses and trucks. However, he testified that he received a licence for regular vehicles. He had no explanation for this divergence. This licence was issued in 2011, but it is the same format as the biometric licence that was introduced the following year in March 2012.3 The RPD inspected the original licence and observed that its security features are not authentic. The variable optical pattern was irregular. Lines that should have been smooth were irregular, and there was no microstamp. Problems are evident on the documents. The RPD found that the driver's licence is likely fraudulent.4 [8] UDSP card: The appellant supplied a UDSP membership card in XXXX XXXX XXXX name that was issued in 2011. The photo on the card appears to be a younger image than the photos on the other 2011 documents. The RPD did not accept his explanation that he used a photo he had at home.5 [9] Birth certificates: The appellant provided two birth certificates issued in 2018, one typewritten and the other handwritten. The certificates were issued with a declaration by XXXX XXXX XXXX. According to the appellant, this is a lawyer who helped his mother obtain them. The RPD found that the appellant was not truthful about the person from whom they were obtained. The document indicates that XXXX XXXX XXXX is not a lawyer; he is unemployed. There is nothing tying these documents to the appellant. Therefore, these documents are not reliable.6 [10] His mother's voter registration card: The appellant filed a voter registration card in XXXX XXXX XXXX name and another in his brother XXXX XXXX XXXX name. He explained that his father's and mother's names were spelled in various ways due to typographical errors. The RPD did not accept this explanation, because he was represented by a lawyer who helped him fill out the BOC Form. The RPD gave very little weight to these documents because it found that he lacked credibility. [11] For the same reasons, the RPD gave little weight to the appellant's family photos. In addition, the photos do not show where they were taken, or when. [12] After examining the documents provided in support of his claim, the RPD found that the appellant did not establish his identity. [13] The RPD assessed the Angolan passport with which the appellant travelled. It observed that the passport includes visas as well as entry and exit stamps for Angola, South Africa, Namibia and the United States between 2016 and 2018. The appellant had no issues crossing those borders. All those countries considered the passport to be authentic, including Angola. The appellant testified that he spoke basic Portuguese to trick the agent in the United States visa office. The RPD found that this passport does not establish his identity because it does not substantiate the allegations regarding his identity.7 [14] The RPD did not continue by addressing the merits of the claim due to its determination that the appellant had not established his identity. Reasons for the appeal [15] The appellant submits that the RPD erred in its analysis of the identity documents, when the appellant had provided a clear explanation. [16] The RPD erred in its assessment of the documentary evidence, drawing a negative inference due to suspicions. [17] The RPD erred by failing to verify the authenticity of the identity documents. [18] The RPD erred by not requesting any specific additional documents. ANALYSIS [19] First and foremost, the RPD is correct to state that the driver's licence dated July 3, 2011, is likely a forgery. The document from the National Documentation Package (NDP) provides information on its format and includes an authentic copy. The card filed by the appellant is shaped identically. However, the document from the NDP indicates that this card started being issued in 2012. The card supplied by the appellant was issued in 2011, before the introduction of the new version. The RPD pointed out that the appellant had testified that he had received a standard driver's licence, while this one included heavy vehicles. The RPD checked the card and observed that it contained no signs of security. [20] The voter registration card issued on June 20, 2011, in the appellant's name is not conclusive when it comes to authenticity. The fact that the edges were cut out by hand and that it is larger than the 2012 version provide insufficient evidence that it is probably not authentic in the absence of information on the size and shape of cards that were issued before 2012. [21] The name of the appellant's mother on his voter registration card is XXXX XXXX XXXX, and the name of his father is XXXX XXXX XXXX XXXX Her voter registration card is in XXXX XXXX XXXX name and the name on the two birth certificates of July 2018 is XXXX XXXX XXXX. Although the appellant testified for the first time that his mother had gone to make a declaration to obtain the birth certificate, he specified, however, that she was accompanied by a lawyer who made the declaration. The documents clearly indicate that they were issued by declaration of someone other than a family member and that this person had no profession. The fact that the appellant's mother's name is misspelled and that the appellant probably embellished his testimony on this issue casts doubt on their reliability. The spelling errors cast doubt on the claim that his mother was present and assisted with the declaration. Given the circumstances, the source of the declaration and their date, the certificates are not sufficiently reliable to establish his identity. [22] The documents issued by governments in the normal course of business are presumed legitimate. The appellant obtained an Angolan passport recognized as valid by South Africa, Angola, Namibia, and the United States. The RPD did not provide the reasons for which this identity was not accepted. [23] The RPD ignored other factors related to the identity issue. The appellant testified in Lingala and in French about political issues in the DCR, about a few geographical issues, and about the issuance of documents in that country. These factors should have been taken into consideration before drawing a conclusion on identity. [24] The RPD asked several questions regarding the Rule 11 requirement that supporting documentary evidence must be provided, if it is reasonably available. According to Schedule A, the appellant was educated up to grade 12 in the DCR. His mother and his two brothers live there. His common-law spouse and his children live in the DCR. He testified that he is in regular contact with his family and spoke to his mother by telephone the week before the hearing. Although he testified that he lived in a church in Angola, he did not request a supporting letter. When he was asked why he had not provided supporting letters, he stated that he did not know he would need them. When he was asked if he had tried to obtain witness affidavits or other supporting evidence, he replied no. The obligation to file supporting documents is written in bold type on the first page of the BOC Form. Moreover, the appellant was represented by a lawyer when the BOC Form was filled out and at the hearing. The explanation provided by the appellant is not reasonable. Therefore, the RPD could have drawn a negative inference regarding credibility. It did not do so. [25] Negative findings based on problems related to documents are not sufficient grounds to reject the claim, without taking into consideration all the evidence and first drawing findings of fact regarding its overall credibility. By confining itself to an examination of the documents, the RPD did not provide sufficient justification to ignore the rest of the evidence. [26] Although no finding was made on the merits of the claim, the RPD asked him why he feared returning to the DCR now that the XXXX and Félix Tshisekedi are in power. He replied that he was part of a faction led by Valentin Mubake. He would therefore still be sought by police. [27] According to a 2014 French report, Valentin Mubake was the former political advisor to Étienne Tshisekedi. He is still part of the XXXX.8 The appellant filed no evidence regarding Mubake or a faction he leads. In addition, he did not mention Mubake in his BOC Form. The RPD disclosed no evidence regarding the change in government and the identity of the current president and his party. He was not asked to provide any details on his ties with Mubake or the reason this issue would cause him problems today, given that he left the country in 2012 and has not participated in political activities since then. [28] The appellant went to South Africa using the Angolan passport two years before he travelled to the United States and Namibia one year earlier. He did not claim asylum in either of those two countries. Travelling with false travel documents without claiming asylum allows for the possibility that exclusion applies under Article 1F(b) of the Convention relating to the Status of Refugees (the Convention). Rule 26 requires that the RPD notify the Minister under the circumstances. The RPD erred by failing to do so. This error in itself justifies allowing the appeal and referring it back for redetermination. [29] The RPD erred by finding that the appellant had not demonstrated his identity without first establishing credibility findings based on the totality of the evidence. Even if the RAD had found that his identity was established, it could not proceed with a current risk assessment in the DRC because the appellant was not questioned in depth on this issue. This issue should be addressed at a new hearing before the RPD. [30] For all these reasons, the RPD's decision must be set aside and remitted to the RPD for re-determination. The RAD asks that the RPD notify the Minister of the possibility that Article 1F(b) of the Convention applies to the facts in this case. CONCLUSION [31] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter back to a differently constituted panel of the RPD. The RPD must notify the Minister that there is a possibility that Article 1F(b) of the Convention relating to the Status of Refugees applies. (signed) "H. Shepherd" H. Shepherd July 31, 2019 IRB translation Original language: French Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Exhibit P-2, Refugee Protection Division (RPD) record, RPD reasons, p. 14, paras. 11-12. 3 Exhibit RPD-1, RPD record, Exhibit 3, National Documentation Package (NDP) on the Democratic Republic of the Congo (April 30, 2018), Tab 3.9: The biometric driver's licence, its appearance and the procedures to obtain and renew it (2014-April 2015). COD105111.FE, April 10, 2015. 4 Exhibit P-2, RPD record, RPD reasons, pp. 15-16, paras. 15-18. 5 Ibid., p. 17, para. 20. 6 Ibid., para. 21. 7 Exhibit RPD-1, RPD record, Exhibit 2, pp. 54-62 8 Exhibit RPD-1, RPD record, Exhibit 3, NDP on the Democratic Republic of the Congo (April 30, 2018), Tab 2.12: Rapport de mission en République démocratique du Congo (RDC), April 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No dossier de la SAR : TB9-06788 RAD.25.02 (April 4, 2019) Disponible en français 6 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français