TB4-06282

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 : TB4-06282 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 7, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection or, in the alternative, refer her claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that she faces persecution in Nigeria as a victim of repeated domestic violence and because of her sexual orientation as a bisexual woman. She alleges her sexual orientation revealed itself to her when she was in boarding school and that, while there, she developed an intimate relationship with a fellow student. That relationship ended when her intimate partner moved to a different city. [4] In 2011, her father arranged for her to become the third wife of a local well-known and influential businessman. Shortly after she began living with him, he became physically and sexually abusive towards her. Although she sought help from her father, he told her he was unable to help her. She attempted to report the abuse to the police, but they did not believe her. When her husband learned that she had reported the abuse to her father and the police, he beat her and threatened her. She attempted to run away to her father's home, but she was located, beaten and threatened with death. [5] Over time, she was able to rekindle her relationship with the woman she met in boarding school and carried on a secret sexual relationship with her. In July 2013, she and her girlfriend were engaged in sexual activity when her husband walked in on them. He beat her and threatened to have her circumcised. She alleges he was able to escape and took up refuge at a friend's home in XXXX XXXX. She reported the abuse to the police there. She later learned from her sister that her father and her husband were on their way to XXXX State to find her and that all of Lagos now knew that she was bisexual. [6] Fearing for her safety, she decided to use the services of a smuggler to leave Nigeria. Under the cover of disguise, she returned to Lagos to obtain an affidavit for her birth certificate before leaving for Canada. [7] The Appellant's application for refugee protection was heard on April 9, 2013 and June 10, 2013. In a decision of June 11, 2013, the RPD rejected the Appellant's claim finding that the Appellant had not established her identity. [8] The Appellant submits that the RPD erred in its credibility and identity findings when it based those findings on suspicion and conjecture and by ignoring evidence. ROLE OF THE RAD [9] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [10] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [11] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [12] The RPD found that the determinative issue in this claim is identity. As noted by the RPD in its reasons, the Federal Court, in Su, states that "[t]he onus is on the claimant to produce acceptable documentation establishing his or her identity."3 [13] Similarly, the Federal Court, in Duale, noted that "it is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so."4 [14] Furthermore, Section 106 of the Act states: 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. [15] Further to section 106 of IRPA, Rule 11 of the Refugee Protection Division Rules (the Rules) requires that: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to provide them. [16] The RAD finds that quite clearly the burden rests on the Appellant to establish, with credible or trustworthy evidence, on a balance of probabilities, that she is who she claims to be, and that she is a national of Nigeria. Although the Appellant tendered a number of documents to establish her identity, the RPD found that the Appellant's documents were not trustworthy and that she has not provided acceptable documents to establish her identity. National Identity Card (NIC) [17] In order to establish her identity as a national of the Nigeria, the Appellant provided a National Identity Card. The RPD noted a number of deficiencies on the face of the card and, based upon an assessment of the missing security features, found the document to be fraudulent. [18] The Appellant submits that the RPD's assessment of the document was flawed. The Appellant argues that the RPD used a magnifying glass to examine the card; however, the RPD member is not an expert in matters of foreign documents. The Appellant further submits that, given the card had been submitted to the Board well in advance of the hearing, the RPD should have submitted the document for forensic analysis if it had concerns about the card in order to give her sufficient opportunity to respond to its concerns or bring forward further evidence to address the RPD's concerns. [19] The RAD is not persuaded by the Appellant's argument in this regard. In assessing the authenticity of the claimant's documents, the panel is guided by the Federal Court decision in Sertkaya,5 which asserts that it is open for the Board to consider the authenticity of documentary evidence, and the ability of the [Appellant] to obtain and use fraudulent documents. [20] The panel is further guided by the Federal Court decision in Kazadi,6 which states that if there are significant irregularities on the face of the claimant's key identity documents, the Board is not obliged to seek an expert assessment of those documents before determining their probative value. The panel is also mindful of the Federal Court decision in Rasheed,7 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official should be accepted as evidence of their contents unless the Board has some valid reason to doubt their authenticity. [21] In this case, the RAD noted numerous concerns on the face of the identity card. Upon examination during the hearing, the RPD found that the original NIC lacks every security feature that a genuine NIC would display.8 A genuine NIC has a holographic laminate which displays a bright multicolour image which changes depending on the angle at which the card is held. A genuine NIC has microprinting repeating the words "FEDERAL REPUBLIC OF NIGERIA" in a circular arc from the bottom to the top. A genuine NIC also has microprinting in a coat-of-arms at the top left of the card, forming the words "UNITY AND FAITH PEACE AND PROGRESS." A genuine NIC contains an optically-variable image on the bottom-right of the card in the shape of the state of Nigeria. This feature displays a different colour depending on the viewing angle. The Panel used a magnifier and the naked eye to assess the card and found all of the above security features to be missing. Instead of the security features the document contains poor imitations. Instead of microprinting in both places there is illegible ink. There is a mark in the shape of Nigeria but it is not optically-variable. There is no holographic laminate, and instead the holographic images are permanently printed on the card, viewable at every angle and they do not change colour. The Panel provided the magnifier to counsel and the Claimant and they agreed with the Panel's assessment that the security features are not present. The Panel produced enlarged copies of the card to show some of the missing features.9 [22] While the Appellant could offer no explanation for the problems with the NIC when provided the opportunity, her counsel argued that, since the card was issued in 2005 and shows signs of physical wear, the holographic laminate and micro-printing may have worn away. The RPD rejected the argument of counsel and provided sound reasoning for doing so. The RPD found there was no trace of the holographic laminate and that, examination of the card revealed that instead of micro-printing, there was illegible ink printed on the card, and the card was protected from wear by the laminate. [23] The RAD finds that, although the Appellant has alleged that the Board has possession of the card well in advance of the hearing, a review of the RPD's record does not provide support for that argument. The RAD notes that the RPD quite clearly states that the document was presented at the hearing. At the hearing the Claimant provided a document purporting to be an original Nigerian National Identity Card (NIC).10 [24] Furthermore, a review of the recording of the hearing makes it quite clear that the original documents were not tendered to the Board and were only received by the RPD panel member at the hearing. [25] Regardless, the RAD finds that the RPD was under no obligation to send the document for forensic analysis prior or subsequent to the hearing. The RPD pointed out the deficiencies with the card to the Appellant and gave the Appellant the opportunity to look at the card with the benefit of the magnifying glass. The Appellant was provided the opportunity to provide an explanation for the deficiencies on the face of the card but was unable to provide any persuasive explanation. [26] The Appellant also argues that the RPD's assessment of the document in the hearing room amounted to a breach of procedural fairness in that she was not provided with sufficient opportunity to respond to the concerns raised by the RPD or to bring forward additional evidence [27] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD was not under any obligation to conduct an assessment of the evidence prior to the hearing and to notify the Appellant of those findings. The RAD also notes that, although the Appellant seems to suggest that she could offer evidence to contradict the RPD's findings, no such evidence was tendered to the RPD post-hearing, and no such evidence was tendered to the RAD for the purposes of this appeal. Furthermore, the RAD notes that the Appellant was represented by competent counsel and that the Appellant and her counsel were made aware prior to the hearing that identity of the Appellant was an issue in the hearing.11 [28] The RAD finds that it was open to the RPD to question the credibility of documents tendered during the hearing. The Appellant was given the opportunity to address the concerns identified by the RPD. There was no breach of procedural fairness. [29] The Appellant further argues that the RPD ignored a vital piece of documentary evidence which she alleges supports her claim that she validly applied for and was issued the National Identity Card. The Appellant argues that Response to Information Request (RIR) NGA102887.E12 establishes that, even if a card is issued by the appropriate authorities, it could still contain irregularities. [30] The RAD is not persuaded by the Appellant's argument in this regard. The documentation relied upon by the Appellant establishes that, while there were cards that were issued with irregularities, none of the reported irregularities included the absence of security features. The reported irregularities included double registration, wrong documentation, applications made by those less than eighteen years of age and errors on the card. There is no persuasive evidence that the cards were issued without proper security features. More importantly, the same documentation relied upon by the Appellant states that the National Identification Card system is riddled with fraud. Furthermore, there is no persuasive evidence that the RPD ignored the evidence in the record. It is clear that the RPD was familiar with the National Documentation Package (NDP) on Nigeria. The RPD referenced the NDP a number of times; however, there is no need for the RPD to reference every document in the NDP. [31] Accordingly, the RAD agrees with the RPD's finding that, on a balance of probabilities, the National Identity Card tendered by the Appellant is not a genuine document. [32] The RAD further finds that, in tendering a fraudulent document of her identity in support of her refugee protection claim, the Appellant has not only undermined her alleged identity but also her general credibility. Other Documents [33] The Appellant tendered an original re-issued birth certificate and affidavit13 together with her primary and secondary school records as evidence of identity as a national of Nigeria. The RPD found that it could give little weight to these documents in establishing the Appellant's identity. [34] The Appellant submits the RPD's refusal to afford any weight to the additional documents is flawed because it was largely based on its finding with regard to the National Identity Card and an absence of security features. The Appellant argues that the RPD's finding amounts to a plausibility finding and is not based on problems with the documents themselves. The Appellant further argues that the RPD has not established that security features would be expected on these other documents. [35] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD's finding, including specific concerns with the documents tendered by the Appellant, is not solely based upon plausibility or the absence of security features. [36] The RPD found that it could place little weight on the birth certificate and affidavit. The RPD noted that the Appellant testified that she obtained this document in 2013 after swearing an affidavit as to her identity before a judge in Nigeria.14 Although she alleges she was issued a birth certificate at birth, she has subsequently lost that birth certificate and needed a replacement. [37] The RAD notes that the NDP reveals that government authorities rely on the strength on the information provided in the affidavit and not on pre-exiting records when they re-issue birth certificates. According to a source interviewed by the IRB's Research Directorate: ...most of all the birth certificates are issued manually, so the only verification conducted by the authority is making sure that the applicant is Nigerian" which is usually evident based on the applicant's name, as "it is very easy for a Nigerian to identify another Nigerian".15 [38] The Appellant testified that her birth certificate was "verified" by the Canada Border Services Agency (CBSA) at Toronto Airport. She argued that the Notice of Seizures refers to the birth certificate as "Genuine".16 However, as rightly noted by the RPD, there is no evidence that the CBSA conducted an analysis of the birth certificate. In fact, the RAD notes that the copy of the birth certificate provided by CBSA is merely stamped as a "certified true" copy. Notwithstanding the foregoing, and again as noted by the RPD, the decision on the weight to be accorded to any document is for the RPD to make, in view of all of the circumstances. The CBSA's opinion on the genuineness of the birth certificate cannot replace the assessment conducted by the RPD. [39] The Appellant also tendered two school documents purportedly issued in Nigeria.17 As noted by the RPD, these documents do not attest to her date of birth, her place of birth, or her nationality, nor do they contain photographs of the Appellant. Furthermore, the RPD observed, while in deliberation, that the logo on the XXXX XXXX letterhead, which pictures a torch held aloft, reads "PASS ON THE TROCH". While this discrepancy was not put to the Appellant during the hearing, since it was only discovered by the RPD in its deliberations, the RAD finds that it was still open to the RPD to use this discrepancy in assessing the weight it should afford the documents. [40] The RAD agrees with the RPD that the discrepancy is a foreseeable issue since the error is obvious on the face of the document. The RAD further agrees with the RPD's finding that the decision to accord little weight to the certificate would have been the same regardless of the spelling error, for the other reasons identified. [41] The RAD finds that the RPD's findings with regard to these documents are sound. The RAD notes that, in addition to the document, specific reasons provided previously, the record reveals that there is further justification for the RPD to place little weight on these additional documents: 1. The Appellant's general credibility is undermined; 2. In traveling to Canada on the strength of a fraudulent passport, the Appellant has demonstrated that she has the ability to access fraudulent documents and the willingness to use them. 3. The wide availability of false/fraudulent documents in Nigeria.18 [42] The RAD finds that, given the foregoing, it was open to the RPD to afford little weight to the additional identity documents tendered by the Appellant. [43] The Appellant further argues that the RPD's mind was "poisoned" due to its speculative and erroneous finding that she had resemblance to another claimant.19 The RAD is not persuaded by the Appellant's argument in this regard. While the RAD finds that the RPD's findings with regard to the similarity in claims is not a strong finding, it is clear the RPD would have come to the same determination in the absence of the finding. There is no evidence which suggests that the RPD was unreasonably influenced by that finding in coming to its determination. [44] The RAD agrees with the finding of the RPD that the Appellant has failed to establish her identity and has not provided a reasonable explanation for the lack of acceptable documentation. The RAD further finds that, given the Appellant's general credibility has been undermined, her testimony is not sufficient to establish her identity. [45] In summary, the RAD finds, on a balance of probabilities, that the Appellant has failed to provide sufficient reliable documents and credible evidence to establish her identity, as required by section 106 of IRPA and Rule 11 of the Refugee Protection Division Rules. The burden of establishing identity must be satisfied before the RAD goes on to consider the merits of the claim and whether the Appellant, in this case, faces a serious possibility of being persecuted or is a person in need of protection. The RAD finds, on a balance of probabilities, and on the basis of the totality of documentary evidence disclosed, as well on the basis of findings and negative inferences noted above, that the Appellant has not established her identity. CONCLUSION [46] On a balance of probabilities, the Appellant has failed to establish her identity with credible or trustworthy evidence. [47] The appeal is rejected. (signed) "L. Favreau" L. Favreau January 7, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 3 Su, Sai v. M.C.I. (F.C., no. IMM-4632-11), Snider, June 14, 2012; 2012 FC 743, at para. 4. 4 Duale, Mohamed Aden v. M.C.I. (F.C., no. IMM-6712-02), Dawson, January 30, 2004; 2004 FC 150, at para. 3. 5 Sertkaya, Ismail v. M.C.I. (F.C., no. IMM-9058-03), Layden-Stevenson, May 21, 2004; 2004 FC 734. 6 Kabunda Kazadi, Christian v. M.C.I. (F.C. no. IMM-4740-04), De Montigny, February 24, 2005; 2005 FC 92. 7 Rasheed, Sohail v. M.C.I (F.C., no IMM-1956-03), Martineua, April 21, 2004; 2004 FC 587. 8 Exhibit P-2, Appellant's Record, RPD's reasons and decision, pp. 8 and 9, paras. 10 and 11. 9 RPD's Exhibits 13 and 14. 10 RPD's Record, Copy at Exhibit 10, Document C-19. 11 Exhibit P-2, Appellant's Record, RPD's Reasons and Decisions, Rule 21 Disclosure, pp. 9-10, paras. 13-15. 12 Exhibit P-2, Appellant's Record, p. 198, National Documentation Package (NDP) for Nigeria (3 May 2013), item 3.10, dated 5 August 2008. 13 Exhibit RPD-1, pp. 55 and 56. 14 Copy of affidavit in RPD's Exhibit 1. 15 Exhibit RPD-1, NDP for Nigeria (14 March 2014), Item 3.11, RIR NGA104601.E, 8 November, 2013, p. 5. 16 Ibid., p. 49. 17 Exhibit RPD-1, pp. 86 and 87. 18 Exhibit RPD-1, NDP for Nigeria (14 March 2014), Items 3.9 and 3.19. 19 Exhibit P-2, Appellant's Record, RPD's Decision and Reasons, Rule 21 Disclosure, pp. 9-10, para. 13-15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06282