TB5-04695

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 : TB5-04695 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 24, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Clifford D. Luyt 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 FOR DECISION [1] XXXX XXXX (Appellant), who claims to be a citizen of Ghana, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting, pursuant to section 111(1)(b) of the IRPA, that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, pursuant to s. 111(1)(c) of the IRPA, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted new evidence in support of his appeal. The Appellant has not requested an oral hearing pursuant to subsection 110(6) of the IRPA. Jurisdiction of RAD [2] The RAD provided the parties the opportunity to provide submissions with respect to the jurisdiction of RAD to decide the appeal: "The Appellant entered Canada from a Third Safe Country through an unmanned border. Please refer to regulation 159.3 and Sections 102(1) and 110(2) when making your submission on whether the RAD has jurisdiction to hear the appeal." [3] In his written submissions the Appellant referred to the "thorough reasons" made by a RAD member who recently considered the issue of entering Canada from a Third Safe Country.1 In that decision, VB4-01273, the RAD member found that the RAD does have jurisdiction over such appeals. [4] The RAD has considered the regulations and has also considered the RAD decision, VB4-01273. The RAD adopts the reasoning in the VB4-01273 and finds that the RAD does have jurisdiction to decide this appeal. [5] The Minister did not provide submissions. DETERMINATION [6] Pursuant to s. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection, and dismisses the appeal. Background [7] The Appellant was born XXXX XXXX XXXX XXXX in Ghana. He is a gay man. The Appellant had his first homosexual experience at the age of XXXX with his friend XXXX. The Appellant and XXXX kept their relationship a secret because of the laws of Ghana and because of the lack of acceptance of same sex relationships by Ghanaians. In 2004 the Appellant's father walked in on him and XXXX. His father beat the Appellant and told him he was ashamed of him. His father forbade him to see XXXX. [8] Consequently, the Appellant obtained a Ghanaian passport which contained a visa for the United States (US). He believed he could be free in the US. Upon his arrival in the US it was discovered that the passport the Appellant was carrying was not his own. He was detained. While in detention he informed a doctor in the detention centre that he wished to make a claim for asylum. However, shortly thereafter the Appellant was deported to Ghana. [9] In early 2007 the Appellant entered a relationship with a man named XXXX. On XXXX XXXX, 2008 the Appellant learned that XXXX had been killed by fundamentalist Muslims. The Appellant was advised by his friend XXXX to hide because a group of men were coming to harm him because of his sexuality. The Appellant jumped out the back window and escaped to the next town. He called his mother but she informed him that the family would have nothing to do with him because of his homosexuality. [10] The Appellant was able to obtain a fraudulent passport which he used to travel to Brazil. There, he entered into a homosexual relationship with a Venezuelan man named XXXX. XXXX took the Appellant to Venezuela where the Appellant found work. Three months after having arrived in Venezuela, the relationship with XXXX came to an end. The Appellant remained two years in Venezuela. When the Appellant approached the immigration authorities, he was informed that they could not help him. [11] In 2010 the Appellant travelled to Brazil in hopes of obtaining amnesty. However, he did not qualify. The Appellant then used an agent to make his way through various countries to Mexico. The Appellant was informed by Mexican authorities that they did not accept applications for asylum from Nigerians or Ghanaians. The Appellant remained illegally in Mexico until March 2014. He found an agent to take him to Canada. The Appellant did not wish to make a claim for asylum in the US because of his previous deportation. [12] On April 5, 2014 the Appellant arrived at the Fort Erie border and entered Canada illegally via the railway tracks. He made a claim for protection on May 8, 2014. [13] On July 4, 2014 the Board received a letter from the Minister indicating that this was a possible intervention case because of information received from the US Department of State. According to a biometric match, fingerprints of the Appellant matched those of a person named XXXX XXXX and with the alias XXXX XXXX XXXX XXXX, date of birth, XXXX XXXX XXXX XXXX XXXX and nationality Ghanaian.2 The Appellant entered the US on June 22, 2005 using a fraudulent passport issued in the name XXXX XXXX XXXX XXXX and was processed under an expedited removal. [14] On July 7, 2014 the Appellant provided an amended BOC in which he alleges that he applied for but was refused a visa to the US and instead, he used an agent.3 [15] On July 22, 2014, the Minister provided a Notice of Intent to Intervene pursuant to paragraph 170(e) of the Immigration and Refugee Protection Act (IRPA) for the purpose of the issues of credibility and programme integrity.4 Information from the US authorities noted that the Appellant was fingerprinted on three occasions. On April 1, 2005 the Appellant made an application for a US visa in the name XXXX XXXX XXXX XXXX XXXX, date of birth XXXX XXXX XXXX XXXX. On June 21, 2005 he entered the US using a passport issued in the name XXXX XXXX, date of birth XXXX XXXX XXXX XXXX. On June 22, 2005 the Appellant was apprehended by the Department of Homeland Security using the name XXXX XXXX, date of birth XXXX XXXX XXXX XXXX. The Minister submitted that in accordance with the evidence the Appellant has the ability to obtain fraudulent documents. The Minister submitted that when the Appellant made his claim for refugee protection in Canada he declared that he had applied for but was refused a US visa and he did not declare any aliases or fraudulent documents he used when applying for the US non-immigrant visa. The Minister submitted that evidence reveals that the Appellant has used four different names and three different dates of birth. [16] The Minister submits that the Appellant adopted the name XXXX XXXX in order to adopt the identity of XXXX XXXX, the individual named in the XXXX XXXX 2008, Daily Guide article entitled "Zongo Youth Lynch Homosexual". [17] The Appellant's hearings for refugee protection were held on March 30, 2015 and April 14, 2015. In a written decision of April 21, 2015 the RPD denied the claim. The RPD found that the determinative issue was the credibility of the Appellant including his alleged identity. [18] Appeal pleadings were received on June 5, 2015. The Appellant pleads that the RPD erred in finding that the Appellant did not establish his identity. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [19] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The Appellant provided the following new evidence: 1) Two certifications by XXXX XXXX, date May 29, 2015 2) Two certifications by XXXX XXXX XXXX XXXX, May 20, 2015 3) Certified Copy of Entry in Register of Births, issued May 26, 2015 4) Statutory Declaration of XXXX XXXX, dated May 29, 2015 [20] The Appellant argues that the new evidence meets the criteria of Section 110(4) of IRPA because it was not reasonably available at the time of the RPD's decision on his claim for protection. The Appellant argues further that he could not have known that the RPD would believe that his birth certificate was fraudulent and that the RPD's negative inference was not even raised at the hearing. [21] The RAD agrees that the new evidence satisfies the criteria under s. 110(4) and, given the critical issue of identity, thus, accepts the evidence. The RAD will assign weight to the documents within the analysis provided below. ROLE OF THE RAD [22] The recent Federal Court decision in Huruglica5 has provided the RAD with guidance with respect to the role of the RAD. In this decision, Justice Phelan states: 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." [23] Accordingly, the RAD has applied the reasoning as set out in Huruglica6 in its decision. ANALYSIS OF THE EVIDENCE [24] The RAD focused on one issue in assessing this Appeal: Is there sufficient evidence on the record to support the RPD's findings that the Appellant did not establish his identity? Birth Certificate [25] The Appellant provided for his hearing before the RPD a Certified Copy of Entry in Register of Births, issued June 16, 2014, as evidence of his identity.7 [26] The RPD was not persuaded that the birth certificate was a genuine document and fount the document to be fraudulent as a result. The RPD gave no weight to the document. The RPD provided the following reasons. [27] The birth certificate did not conform to the description provided in the National Documentation Package (NDP)8 of birth certificates issued in Ghana. In particular, the birth certificate provided by the Appellant had a wide vertical green stripe in the middle and two vertical lighter green stripes on the left and right, while information in the NDP indicates that birth certificates are either white or pinkish in colour. The seal/hologram did not conform to the description found in the Response to Information Request (RIR) in the NDP. The RPD noted that when the Appellant was questioned about the anomalies of the certificate, the Appellant had no explanation. The birth certificate states the name of the Appellant's father as XXXX XXXX, while his alleged brother's birth certificate, provided as evidence at the hearing before the RPD, states his father's name as XXXX XXXX. The RPD found the Appellant's explanation of the inconsistency of their father's name to be unreasonable. [28] The Appellant argues that the RPD did not put these inconsistencies to him during the hearing and should have done so to allow the Appellant the opportunity to respond. The Appellant argues that the RIR upon which the RPD depended was published on October 25, 2006 which describes the then current birth certificate and also an earlier certificate issued before July 2, 1996. The Appellant also argues that his birth was registered in 1992 and that his certificate is of the old type, since his birth was registered in 1992. He pleads that the reference to white or pinkish certificates refers to the new or then current certificate. The Appellant also pleads that the one signature at the bottom has the letters 'L.S.' underneath, as was the case with the pre-1992 certificates. [29] The RAD agrees with the RPD's findings for the following reasons. [30] Although the Date of Registration is stated on the certificate as 18th August 1992, the issuance of the Certified Copy of Entry in Register of Births is stated as June 16, 2014. Information in the RIR, depended upon by the RPD in its findings, refers to "Certified Copy of Entry in Register of Birth". Thus, a Certified Copy of Entry in Register of Births, issued in 2014, should conform to the description of certificates issued after 2006, not those issued prior to July 2, 1996. [31] While the RAD agrees with the Appellant, that the RPD did not provide him the opportunity at the hearing to explain the discrepancies with respect to the colouring on the certificate, the recording of the hearing indicates that the RPD did confront the Appellant with other anomalies on the birth certificate. For example, the RPD pointed out to the Appellant that certificates issued after 2006 have two signatures, while the certificate provided by the Appellant has only one. The Appellant, in that instance, was unable to provide an explanation. [32] The Certified Copy of Entry in Register of Births was issued after the Appellant made his claim for refugee protection. The RIR referred to above indicates that registrations of birth not made within one year of an individual's birth are not reliable evidence of relationship, since registration, including late registration, may often be accomplished upon demand, with little or no supporting documentation required.9 [33] The RAD notes that according to information provided by the Minister and the oral testimony provided by the Appellant during his hearing before the RPD, on more than one occasion the Appellant engaged an agent to obtain travel documents by fraudulent means for him to travel to the US. The RAD, thus, finds that the Appellant has a demonstrated access to fraudulent documents and a history and willingness to use them. [34] The independent documentary evidence indicates that there are many forged official looking documents in Ghana. According to the Ghana Immigration Service (GIS), forging of documents is widespread in Ghana. The following types of fraud were identified by Ghanaian police as prevalent: forgery of documents, identity theft, data theft and cheque fraud, among others.10 [35] Given the Appellant's propensity for using fraudulent documents and having assessed the evidence on the Record, the RAD finds that this document is fraudulent. The Driver Licence [36] At the port-of-entry (POE) the Appellant provided a Driver Licence, issued November 30, 2007.11 [37] The RPD gave no weight to the driver's licence provided as evidence of the Appellant's identity. The RPD provided the following reasons for this finding. During the hearing the Appellant testified that he had a National Identity Card (NIC) while he lived in Ghana but, when asked why the NIC number listed on his driver's licence was 0000000000, he could provide no explanation. The RPD also referred to the Appellant's history of providing fraudulent documentary evidence. [38] The Appellant argues that the RPD overlooked his testimony that in obtaining his driver's licence he was required to provide only his birth certificate, not his NIC. He argues further that if the licencing authorities did not require presentation of the NIC, it is difficult to understand how they could enter the NIC number on the licence. [39] The RAD agrees with the assigning of no weight to the driver's licence for the following reasons. [40] According to the transcript of the hearing, the Appellant explained to the RPD that he did not know why his licence listed no NIC number. However, after a break in the hearing, counsel asked the Appellant what documents he had provided to government authorities to obtain his licence. The Appellant testified that he provided a birth certificate. Upon being asked, he testified that no other documents were required. The Appellant provided no explanation why he did not give this information to the RPD when asked to explain the lack of a NIC number on the licence. In any case, the RAD finds it unreasonable that the NIC, or at least the NIC number, is not required when applying for a driver's licence given there is a location on the licence where the NIC number is to be stated. [41] Unfortunately, the RPD did not ask the Appellant how it was he was in possession of a driver's licence issued in Ghana in 2007 given that he testified he lost his NIC in Ghana and also that he left Ghana in 2008 and since that time travelled through many South American countries. [42] As stated above, the Appellant has demonstrated an ability to obtain fraudulent documents and a willingness to use them. New Evidence Statutory Declaration [43] The Appellant provided a Statutory Declaration from XXXX XXXX, in which the deponent states that he is known by two names, XXXX XXXX and XXXX XXXX. [44] In his appeal, the Appellant argues that this document states that his father is XXXX XXXX (A.K.A. XXXX XXXX) and the two are one and the same person, thus supporting his argument that his birth certificate is genuine. [45] The Appellant argues that it is noteworthy that Mr. XXXX did not state in his declaration that that the Appellant is his son and that this is consistent with the fact that his father is the agent of persecution. The Appellant argues further that it is improbable that Mr. XXXX would support him in his refugee claim and it is likely that Mr. XXXX made his declaration without knowing that it would be used for that purpose. [46] The RAD gives little weight to this document for the following reasons. [47] There is no explanation as to why Mr. XXXX, the alleged agent of persecution, made the declaration. The RAD finds the Appellant's argument that Mr. XXXX made the declaration without knowing its eventual use, makes no sense. [48] The stamp on the document from Teller XXXX, Judicial Service, at the XXXX, is dated 29 May 2015. The date of issuance at the bottom of the first page has the handwritten number 29 and then a typed date of May 2014; the digit 4 has been clearly written over with the digit 5 to read May 2015. The date change has not been initialled. Thus, the RAD finds, on a balance of probabilities that the date was changed to coincide with the stamp. [49] There is nothing in the declaration to indicate that Mr. XXXX is the father of the Appellant. [50] There are no identity documents to identify the deponent. Birth Certificate [51] The Appellant provided for his appeal a Certified Copy of Entry in Register of Birth, issued May 26, 2015.12 [52] The RAD assigns little weight to this document for the following reasons. [53] The Certified Copy of Entry in Register of Births was issued well after the Appellant made his claim for refugee protection. As stated above, an RIR contained in the NDP indicates that registrations of birth not made within one year of an individual's birth are not reliable evidence of relationship, since registration, including late registration, may often be accomplished upon demand, with little or no supporting documentation required.13 Two certifications by XXXX XXXX XXXX XXXX [54] The certifications from XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX of the Judicial Service of Ghana14 each certify that the stamp, signature and seal which appear on the birth certificate issued May 26, 2015 and on the Statutory Declaration of XXXX XXXX, issued May 29, 2015, discussed above, are that of a Notary Public of Ghana. [55] The RAD gives little weight to these two certifications in verifying the birth certificate or declaration for the following reason. [56] Both certificates state that they do not confirm the contents of the birth certificate or the Statutory Declaration. The certificates confirm only that the notary of the birth certificate and the declaration is known to the Second Deputy Judicial Secretary of the Judicial Service of Ghana [57] The handwritten day, 29th, of the month on each document appears identical and to have been altered. In addition, while one would expect the signatures of the certificates to be identical, the RAD finds it highly unusual that the flourish of the final letter of each signature reaches to cover the letter 'Y", with what can best be described as a small drop of ink, in the typed part of the title under the signature. Two certifications by XXXX XXXX [58] The certificates of XXXX XXXX XXXX XXXX, XXXX XXXX, Legal and Consular Bureau, Ministry of Foreign Affairs and Regional Integration of the Republic of Ghana, confirms the signature of XXXX XXXX XXXX XXXX which covers the signature of the Notary Public, XXXX XXXX found on the birth certificate of the Appellant and the Statutory Declaration of XXXX XXXX.15 [59] The RAD gives these two certifications little weight in verifying the birth certificate or statutory declaration for the following reasons. [60] The RAD has carefully examined the original certifications of XXXX XXXX XXXX XXXX as well as the birth certificate and statutory declaration. The RAD finds that the signature of XXXX XXXX XXXX XXXX is not found over that of the Notary Public on either the birth certificate or the statutory declaration. [61] In any case, as stated above, the certifications of Mr. XXXX XXXX XXXX do not verify the content of either the birth certificate or statutory declaration. DISPOSITION [62] On the basis of the findings noted above and after its own assessment of all the evidence in the record including the transcript of the hearing, the RAD agrees with the RPD's finding that the Appellant has not satisfied his burden of establishing his identity. The RAD confirms the determination of the RPD as per s. 111(1)(a) of IRPA. [63] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason July 24, 2015 Date 1 Exhibit P-3 2 Exhibit RPD-1, RPD's Record, Biometrics Report, pp. 68-72 3 Exhibit RPD-1, RPD's Record, Exhibit 20, BOC amendment, p. 26F 4 Exhibit RPD-1, RPD's Record, Exhibit 5, Minister's Submissions, pp. 77-85 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 6 Ibid. 7 Exhibit RPD-1, RPD's Record, Exhibit 9, p. 127 8 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Ghana (30 September, 2014), Item 3.2 9 Ibid. 10 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Ghana (30 September, 2014), Item 3.7 11 Exhibit RPD-1, RPD's Record, Exhibit 1, POE notes, pp. 52-53 12 Exhibit P-2, Appellant's Record, p. 17 13 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Ghana (30 September, 2014), Item 3.2 14 Exhibit P-2, Appellant's Record, pp. 16,20 15 Ibid., pp. 15,19 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04695