TB9-06078

RAD File No. / No de dossier de la SAR : TB9-06078; TB9-06079; TB9-06080; TB9-06081; TB9-06082; TB9-06083 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 2, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Adetayo G. Akinyemi Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, you and your children stated that you are citizens of the Democratic Republic of the Congo (DRC).1 I am addressing you today and presuming that you will share this decision with each of your daughters, including the one who is now an adult. [2] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened in your refugee protection claims, analyzed a visa application that you had filed with the American authorities, in which you are identified as an Angolan citizen, and noted that you had failed to provide any documents establishing your identity as a citizen of the DRC. The Minister submitted that you had tried to mislead the Immigration and Refugee Board of Canada, that you were not credible and that your refugee protection claim was clearly fraudulent and manifestly unfounded.2 [3] The Refugee Protection Division (RPD) found that you and your daughters had failed to establish your identities and rejected your refugee protection claims.3 [4] On appeal, you submitted that the RPD decision and its findings regarding your credibility were unreasonable.4 [5] Having conducted my own analysis, I conclude that the RPD did not err in finding that you had failed to establish your identity. Accordingly, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division is not to carry out a de novo consideration of refugee protection claims, but to determine whether the RPD erred as alleged.5 I conducted my own analysis of the record, including listening to the recording of the hearing held before the RPD,6 reading the documents that were analyzed in its decision and taking the Chairperson's guidelines into account.7 I also concluded that the correctness standard of review had to be applied.8 [7] The issue of whether a refugee protection claimant has established their identity is a question of fact and credibility. The onus is on the claimant to establish, on a balance of probabilities, that they are the person they claim to be, as identity is crucial to any refugee protection claim. The claimant is required to provide acceptable documentation establishing their identity, failing which they must explain why they do not have such documentation and what steps they took to obtain it. [8] It is the task of the trier of fact to weigh the documentary and testimonial evidence and to draw conclusions as to whether the evidence is sufficient to establish a refugee protection claimant's identity on a balance of probabilities. [9] In your appeal memorandum, in addition to general errors that I identified in the introduction, you also submitted that if you had difficulties answering the RPD's questions, it was because you had experienced traumatic events in the DRC and during your dangerous trip from Brazil to Canada, and that in this respect, the RPD erred by failing to implement the Chairperson's Guideline 4. [10] Respectfully, this argument is without merit. First, you failed to file a psychological report that could have established your psychological state at the time of the hearing before the RPD. Then, during the hearing, you did not ask to be recognized as a vulnerable person, that is, an individual whose ability to present their case is severely impaired and requires procedural accommodations as a result.9 Lastly, during the hearing, you testified that you knew your responsibilities as the designated representative of your minor children. Generally, you understood the questions that you were asked and when you did not respond directly to the RPD's questions, the panel repeated the questions, not to mention that the interpreter sometimes helped you in clarifying your answers. [11] In your memorandum, you also state that the RPD failed to consider the efforts that you had made to obtain documents establishing your identity, as set out in section 106 of the Immigration and Refugee Protection Act (IRPA). [12] With all due respect, this argument is without merit. I would like to point out that on the day of the first part of the hearing, you filed documents before the RPD to establish your identity after the Minister had intervened and noted that you had failed to submit any documents with respect to your Congolese citizenship. The RPD allowed your documents to be entered into evidence, asked for them to be sent to the Minister and set a date to proceed with the hearing. During the second part of the hearing, the RPD asked you several questions about the documents in question, how you had obtained them and their content. The RPD also asked questions about your visa application with the American authorities, in which you present yourself, your husband and some of your daughters as citizens of Angola. [13] I listened to the RPD hearing and read the panel's decision. The panel's analysis of your testimony and that of your eldest daughter as well as the documentary evidence was meticulous, and respectful of the explanations for what seemed to be contradictions or inconsistencies; all the evidence was considered.10 [14] Based on my own analysis of the record, the RPD did not err by concluding that you and your daughters had failed to discharge your burden of establishing, on a balance of probabilities, that you are indeed the individuals whom you claim to be. [15] Given that your identity was not established, there is no need to continue with the analysis of your accounts or allegations concerning your fear of being persecuted or having your lives threatened.11 CONCLUSION [16] For these reasons, I confirm the RPD's determination, namely, that you failed to establish your identity and that, as a result, you are neither refugees under section 96 nor persons in need of protection under section 97 of the IRPA. [17] Your appeal is dismissed. (Signed) Alain Bissonnette Me Alain Bissonnette March 2, 2020 Date IRB translation Original language: French 1 According to your testimony, the information that you included in your Basis of Claim Forms is reproduced at pages 17 to 88 of the scanned version of the Refugee Protection Division (RPD) record, and the documents that are reproduced at pages 155 to 168 of the scanned version titled 6.6 Tables of Contents is in the RPD record. 2 The Minister's intervention and the visa application are reproduced at pages 137 to 148 of the scanned version titled 6.6 Tables of Contents, which is in the RPD record. 3 RPD reasons and decision, February 7, 2019, pages 5 to 16 of the scanned version of the RPD record. 4 Appellants' memorandum, April 14, 2019, pages 19 to 25 of the scanned version of the appeal record. 5 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 6 Recording of the first part of the RPD hearing on December 21, 2018, 00:01 to 01:02:31 (1 hour, 2 minutes and 31 seconds) and recording of the second part of the hearing on January 21, 2019, 00:01 to 02:13:33 (2 hours, 13 minutes and 33 seconds). 7 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 3: Child Refugee Claimants-Procedural and Evidentiary Issues, effective September 30, 1996; Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996, Chairperson's Guideline 8: Guideline on Procedures with Respect to Vulnerable Persons Appearing Before the IRB, effective December 15, 2006, amended December 15, 2012. These guidelines are available on the IRB's website. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 9 Chairperson's Guideline 8, supra, endnote 7. 10 RPD reasons and decision, supra, endnote 3, paragraphs 18 to 35. 11 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 : TB9-06078; TB9-06079; TB9-06080; TB9-06081; TB9-06082; TB9-06083 RAD.25.02 (April 4, 2019) Disponible en français 5 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