[2]
In
a decision dated July 9, 2008, a panel of the Refugee Protection Division of
the Immigration and Refugee Board (the RPD or the Board) determined that the
Applicant was not a Convention refugee or a person in need of protection. The
decision was based on two key findings:
(a)
the
Applicant was unable to establish his identity with respect to either Panama or China; and
(b)
in
any event, the Applicant failed to provide credible evidence that he
experienced persecution in or would experience persecution if returned to
either Panama or China.
[3]
The
Applicant seeks judicial review of the Board’s decision, arguing that both of
the conclusions of the Board were made in error.
[4]
The
decision of the Board on both of these issues required determinations of fact
or, at most, mixed fact and law. Such decisions are reviewable by this Court on
a standard of reasonableness.
[5]
Section
106 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA) and s. 7 of the Refugee Protection Division Rules,
SOR/2002-228 (the Rules) sets out the importance of establishing a claimant's
identity.
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106.
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.
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106.
La Section de la protection des réfugiés prend en compte, s’agissant de
crédibilité, le fait que, n’étant pas muni de papiers d’identité acceptables,
le demandeur ne peut raisonnablement en justifier la raison et n’a pas pris
les mesures voulues pour s’en procurer.
|
|
7.
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 obtain them.
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7.
Le demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s’en
procurer
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[6]
The
onus is on the claimant to produce acceptable documentation establishing his
identity; however, where he is unable to do so, the Board must take into
account whether he has provided a reasonable explanation for the lack of
documentation or has taken reasonable steps to obtain the documentation (See Zheng
v. Canada (Minister of Citizenship and Immigration), 2008 FC 877, [2008] F.C.J.
No. 1090 (QL), at para. 14).
[7]
In
this case, the Applicant produced only three documents purporting to establish
his identity. These were:
·
A
driver’s licence and high school diploma from Panama; and
·
A
birth certificate from China.
[8]
The
Board determined that the Applicant failed to establish his national identity
based on the following factors:
·
Various
identity documents provided by the Applicant were issued in different names.
The Panamanian documents used “Luis Yau Chang” while the Applicant’s name on
his birth certificate and the current name on his Personal Information Form (PIF)
is Huan Quan Qiu. In his Record of Examination and his pre-amended PIF, the
Applicant stated that his other name was Luis Yau. When asked why he had not
indicated his full name as Luis Yau Chang, the Applicant replied that he did
not know;
·
The
Applicant stated that he had a Panamanian national identity card in China but that his
grandfather could not find it;
·
The
Applicant stated that he had a Panamanian passport but that the agent who had
arranged for his travel to China took it. The Board found this to be
implausible and not credible given the Applicant’s 12 years of education and
extensive world travel experience;
·
The
Applicant could not explain why he travelled on a false Singapore passport
when he could have travelled on a Panamanian passport;
·
The
Applicant could provide no documentation, such as a police report or a death
certificate, to corroborate the claim that his parents died in Panama as the
result of a violent robbery;
·
The
Applicant made no effort to obtain a new passport and national identity card
despite having minimal documentation concerning his Panamanian identity. The
Applicant’s explanation for this was that he did not consider it because he had
a driver’s license. The Board did not find this credible given that the
Applicant was represented by counsel and had had more than sufficient time to
obtain relevant identity documents;
·
The
Applicant’s only Chinese identity document was a birth certificate, which,
according to the Board, could have been fraudulently obtained with ease; and
·
Though
the Applicant was able to speak Spanish and Cantonese, the Board found that it
was insufficient to establish his nationality because he could be a resident of
Hong
Kong
or of any other country with a large Chinese population.
[9]
The
Applicant submits that in assessing his identity documents, the Board undertook
an approach that was overly-critical and unfair by rejecting the authenticity
of some documents without any evidence that they were fraudulent.
[10]
As
noted above, the Applicant bears the onus of producing acceptable identity
documents to establish his or her identity. In the present case, the Applicant
produced only one document (a birth certificate) to establish his identity as a
Chinese citizen. He produced only one piece of photo identification (a driver’s
licence), which was issued in a different name from his own, to prove his
Panamanian citizenship. Having read the transcript of the hearing, I am
satisfied that the Board gave the Applicant every opportunity to explain why he
had no other documents and to explain what steps he had taken to obtain
documents.
[11]
It
was open for the Board for draw negative credibility findings based on the
Applicant’s inability to provide key documents, such as his Panamanian national
identity card or passport and his parents’ death certificates, and based on his
inability to provide compelling reasons as to why these documents were not
obtained and submitted to the RPD.
[12]
The
Applicant raises particular concern with respect to the Board’s treatment of
his alleged Chinese birth certificate. The Board gave little weight to the
birth certificate because “a fraudulent birth certificate is an easily obtained
document”. In the Applicant’s view, the Board ought to have submitted the
document for forensic testing before dismissing it as fraudulent. I do not
agree. In spite of claiming to have been in China for two years, the Applicant
had absolutely no other documents to prove his identity or presence in China. In light of
the lack of any corroborating documents, it was not unreasonable for the Board
to conclude that the birth certificate – a document that could easily be
fraudulent – was not determinative of his identity.
[13]
In
sum, I am satisfied that the Board reached a reasonable conclusion based on the
limited number of identity documents that had been submitted by the Applicant
and the problems with those that he did produce.
[14]
Where
identity is not established, it is unnecessary to further analyze the evidence
and the claim must fail (Li v. Canada (Minister of Citizenship and
Immigration), 2006 FC 296, [2006] F.C.J. No. 368 (QL), at para. 8; Husein
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726
(QL)). Accordingly, there is no need to examine the reasonableness of the
Board’s finding that the level of discrimination experienced by the Applicant,
in either China or Panama.
Nevertheless, I would observe that, having reviewed the record, I am satisfied
that the Board’s decision on that issue of identity falls “within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
47).
[15]
The
application for judicial review will be dismissed. Neither party requested that
a question be certified. In my view, none should be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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