Date:
20130109
Docket:
IMM-3898-12
Citation:
2013 FC 14
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 9, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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ABDULL-RAHMANE BAH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (RPD) of the Immigration and Refugee Board dated March 28, 2012, in
accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001 c 27 (IRPA). The RPD found that the applicant is
not a Convention refugee under section 96 of the IRPA or a person in need
of protection under section 97 of the IRPA.
I. Facts
[2]
The
applicant is a citizen of Guinea. At the time of the hearing before the RPD, he
had just attained the age of majority.
[3]
The
applicant claims that he is the nephew of Sidiki Diakité, alias Toumba, a
person actively sought by the Guinean government.
[4]
The
two brothers of the applicant’s father were apparently killed when Sékou Touré
was in power and his father fled to Senegal and then returned to Guinea in 1984
when Lansana Conté was in power. His father then started a business while his
cousin, Mamadou Bâ, created a political party, the Union for the New
Republic (UNR) and ran in the 1993 elections.
[5]
Mr.
Bâ purportedly asked for financial support from the applicant’s father, who was
living in Pita. In 1993, Lansana Conté was elected after fraudulent actions. Mr.
Bâ and the applicant’s father then allegedly called on the public to protest
and the protests ended in bloodshed. Mr. Bâ and several of his supporters were
imprisoned and were later released. Two security guards were assigned to the
applicant’s father by Mr. Bâ.
[6]
In
1997, the applicant’s parents died in a suspicious car accident. There was no
investigation into the accident.
[7]
The
applicant and his sister were raised by their maternal aunt, Aicha Diallo, who
was married to Sidiki Diakité, alias Toumba. He is a guard for Captain Dadis
Camara, the man who has been leading the country since December 2008.
[8]
On
September 28, the applicant participated in a prayer at the Conakry stadium. After
the 2 p.m. prayer, soldiers opened fire on the crowd. The applicant was
able to escape and take refuge with someone. His aunt’s husband then came to
get him and, when he returned home, he explained to his aunt that her husband
had ordered the massacre at the Conakry stadium. His uncle finally admitted
that his unit had perpetrated the crimes.
[9]
In
December 2009, the President’s guards started looking for the applicant’s uncle
because he had tried to kill Dadis Camara. They showed up at his house and
apparently took his aunt and his sister in an army vehicle. The applicant was away
at the time of the event. He received a call from his father’s friend,
Ahmed Bah, telling him to go home.
[10]
Ahmed Bah
organized the applicant’s departure abroad. Because his wife was in the United States,
she allegedly entered Guinea to get him so that she could accompany him to
Canada. The applicant left Guinea on March 17, 2010, and entered Canada on
March 19, 2010, accompanied by Ahmed Bah’s wife.
II. Decision
under review
[11]
The
RPD found that the applicant did not establish his refugee claim because he
failed to prove his identity, on a balance of probabilities, and therefore could
not establish that he is the nephew of a person sought by the Guinean
authorities.
[12]
First,
the RPD noted that the applicant was detained for a period of 48 hours because
of problems relating to his identity. The applicant apparently presented a
photocopy of his birth certificate to Canada Border Services Agency (CBSA)
officers. They purportedly said that it was not sufficiently legible. He was
then released on the condition that he report to the Agency every week and that
he submit the original of his birth certificate. The applicant subsequently
obtained a passport.
Identity
[13]
First,
the RPD considered the photocopy of the passport that was provided by the
applicant. The RPD found that the passport seemed to be a Guinean passport. However,
given that the passport was obtained when the applicant was in Canada, the RPD
wanted more information on how the passport was obtained.
[14]
The
RPD considered the explanation that the applicant purportedly contacted a man
named Thierno, who was introduced to him by his manager at Petro-Canada, where
he worked. That person apparently told him that he could obtain a passport through
a man named Mr. Camara. The applicant states that he sent him two photos,
$200 CAD and a photocopy of his birth certificate. The RPD also considered the
fact that the applicant did not provide any forms or sign any documents.
Furthermore, the RPD questioned the applicant on the envelope that was
allegedly used to send his passport. In fact, it mentions a “certificate” and
not a “passport”. Counsel for the applicant explained that this was because
passports cannot be sent by mail. Moreover, it is indicated that the envelope
contains only a single page and weighs 0.5 grams. Thus, the RPD was of the
opinion that the applicant could not establish his identity on the basis of the
passport that was submitted.
[15]
Regarding
the photocopy of the applicant’s birth certificate, the RPD noted that it was insufficiently
legible and that it therefore had no probative value. The applicant was
questioned about whether the CBSA had brought this to his attention. He stated
that it had. He was then asked whether the CBSA had noted that the birth order seemed
to have been erased. The applicant replied that it did not and the RPD found
that the applicant lacked credibility because it was reasonable for him to
remember the questions the CBSA officers asked him regarding the photocopy of his
birth certificate, which was insufficiently legible.
[16]
Furthermore,
the RPD asked whether it would be possible for the applicant to obtain his
original birth certificate. The answer provided by the applicant that the principal
does not keep originals of those documents is not satisfactory. Also, the
applicant indicated that the original copy of his birth certificate was at his
house, but that his aunt’s house had been destroyed by soldiers. Finally, when
the RPD drew his attention to the fact that the Guinean authorities could
provide him with a copy of it, he replied that he fears them.
[17]
Thus,
the RPD found that the applicant did not provide corroborating evidence to
establish his identity and that the explanations provided to justify the fact
that he did not submit more corroborating evidence are not satisfactory.
[18]
Still
in an attempt to establish the identity of the applicant, the RPD questioned a
witness, Thierno Dioubairote Bah, who was a member of the UNR and a friend
of the applicant’s father. The RPD made a general finding that the witness could
not establish the applicant’s identity in a trustworthy manner because he knew
him when he was a baby and therefore could not visually recognize him. Furthermore,
the witness demonstrated that he knows little about the applicant’s family while
he claims that he was at the home of the applicant’s father on numerous
occasions. Finally, the witness contradicted the applicant’s statements
regarding the people who were purportedly involved in his parents’ car accident
and the applicant was unable to explain that contradiction. In fact, the
applicant claims that his parents and two bodyguards were killed, and the
witness explained that three people were killed, that is, a couple and a child.
[19]
Finally,
the RPD also considered the photos submitted as evidence by the applicant.
However, it found that his identity could not be established on that basis
alone.
Credibility
[20]
Second,
the RPD assessed the applicant’s credibility.
[21]
First,
the RPD noted that the applicant did not provide his parents’ death records
when it would have been appropriate to do so because that was the basis of his
refugee claim. In fact, he alleges that his family has always been involved in
politics. The applicant’s explanation that they probably never existed and then
that he never saw them and that his cousins in Pita cannot obtain those
documents was not deemed satisfactory by the RPD. Thus, the RPD found that the
suspicious death of the applicant’s parents could not be established on a balance
of probabilities.
[22]
Second,
the RPD questioned the applicant about his parents’ car accident asking him why
he believes that it was connected to his parents’ political involvement, the
circumstances surrounding it, as well as what his cousins had told him about it.
Regarding the response provided by the applicant that his father had financed
the UNR, that the rumour was that it was not really an accident and that few of
his family members had spoken to him about it, the RPD was of the view that he
was not credible in that respect. Moreover, the RPD weighed the contradictory
testimony provided by witness Thierno Dioubairote Bah on the accident and the
fact that the applicant did not submit newspaper articles identifying the death
of his father, who was an important person according to the applicant.
[23]
Third,
the RPD considered the applicant’s alleged political involvement. The RPD considered
in the negative the fact that the applicant provided a membership card from the
Union of the
Democratic Forces of Guinea party demonstrating that he has
been a member since the age of 14 but that there was no mention of this fact in
his written account. Furthermore, the RPD was of the opinion that, even in the
event that the applicant was politically involved in Guinea, his involvement
could have only been very limited given his age.
[24]
Fourth,
the RPD considered the applicant’s testimony on the massacre at the Conakry stadium
on September 28, 2009. The applicant claims that he was present at this
terrible event. In several respects, the applicant’s testimony contradicts the
documentary evidence on how the shooting occurred and the RPD was therefore of
the view that his testimony was not credible.
[25]
Fifth,
the RPD questioned the applicant about Sidiki Diakité, alias Toumba. Again in
that respect, the RPD found that the applicant was not credible because he could
not establish that his aunt was married to that man, who was actively sought by
Alpha Condé, and could provide only very little information on Diakité’s family
members. The applicant claims that he had no interest in his uncle and even
less interest in his family since he was responsible for killing his father.
The RPD did not consider this explanation as satisfactory given that the
applicant lived with his aunt until the age of 16.
[26]
Finally,
regarding the death of his sister, the applicant claims that he learned of her
death at the same time as that of his aunt. When questioned about how he
learned of it, he claims it was a friend in Guinea who went to the funeral, but
that he does not remember the exact date of it and has no photo of it. Furthermore,
the applicant did not submit any death record. Thus, the RPD was of the opinion
that the applicant’s testimony on the death of his sister was unreliable.
[27]
Therefore,
the RPD found that the applicant is not a Convention refugee or a “person in
need of protection” because his identity could not be established on a balance
of probabilities and that he is not credible.
III. Issues
1. Did the RPD
err by finding that the applicant did not establish his identity?
2. Did the RPD
err by finding that the applicant is not credible?
IV. Standard
of review
[28]
The
RPD’s decision on the applicant’s identity must be reviewed on the
reasonableness standard (Dunsmuir
v New Brunswick,
2008 SCC 9 at paragraphs 164-166, [2008] 1 SCR 190). The
standard of review that applies to the assessment of the applicant’s credibility
is also reasonableness (Aguebor v Canada (Minister of Employment and Immigration), 160 NR 315 at
paragraph 4, 1993 CarswellNat 303 (FCA)).
V. Analysis
A. Did the
panel err by finding that the applicant did not establish his identity?
Position
of the applicant
[29]
Regarding
his identity, the applicant submits that the RPD erred by finding that it could
not attach any probative value to the passport even though it acknowledged that
it seemed authentic. The applicant is of the opinion that the RPD was not
entitled to reject the passport on the sole basis that the process by which it
was obtained is not common because that finding is not supported by the
documentary evidence.
[30]
With
respect to the birth certificate, the applicant contends that the RPD’s finding
is erroneous in the circumstances given that it is not fair to state that the
photocopy of the birth certificate seems to have been altered and that it is
barely legible. The applicant is of the opinion that the panel member based his
finding of a lack of credibility with respect to the applicant and with respect
to the answers provided to the CBSA regarding his birth certificate on speculation
and that that was an error by the decision-maker.
Position
of the respondent
[31]
Regarding
the identity of the applicant, the respondent points out that the applicant had
the burden of establishing his identity and gathering the documents that could
establish it and that the absence of such documents can weaken the applicant’s credibility
under section 106 of the IRPA and section 7 of the Refugee Protection
Division Rules, SOR/2002-228 (RPD Rules).
[32]
Thus,
the RPD could have rejected the applicant’s refugee claim on that basis alone. According
to the respondent, it was reasonable in the circumstances to not attach
probative value to the photocopy of the birth certificate, the passport, the
testimony of Thierno Dioubairote Bah and the report cards submitted by the
applicant.
Analysis
[33]
The
RPD’s finding that the applicant did not meet the burden upon him to prove his
identity is reasonable. In fact, all refugee claimants have the burden of
establishing their identity. In the applicant’s case, it is particularly
important because his identity constituted the basis of his refugee claim given
that he claims to be the nephew of a person actively sought by the Guinean government.
Under section 7 of the RPD Rules, the onus is on an applicant to prove his or
her identity in a refugee claim and all of the elements on which the refugee
claim is based. Neither the applicant’s passport nor the photocopy of his birth
certificate could establish his identity.
[34]
First,
with respect to the passport, it has been established that the appearance of
authenticity of a document carries a rebuttable presumption of validity. Thus,
it is possible for the Canadian authorities to contest the truthfulness of the entries
in a foreign passport (Canada (Minister of Citizenship and Immigration) v
Joseph, 2011 FC 1481 at paragraph 43, 214 ACWS (3d) 241; Azziz v
Canada (Minister of Citizenship and Immigration), 2010 FC 663 at paragraph
67, 368 FTR 281).
[35]
Under
the circumstances, the RPD inquired about the manner in which the passport was
obtained. It was reasonable for it to do so in the circumstances given that the
passport was obtained while he was in Canada and given that it was necessary to
verify whether the passport was obtained in a manner that could cast doubt on
its authenticity.
[36]
The
RPD examined the process that was used to obtain the passport and noted the
following:
1. The applicant succeeded in
obtaining the passport by consulting a man named Mr. Camara, who he found
out about through a colleague at Petro-Canada.
2. The applicant submitted $200
CAD and two photos to Mr. Camara for him to obtain a passport on his behalf.
3. The evidence shows that he did
not sign any documents to obtain the passport.
4. The photocopy
of the birth certificate that was provided to obtain the passport is illegible
and therefore unreliable.
[37]
Thus,
the evidence on the manner in which the passport was obtained clearly rebuts
the presumption of authenticity for this document. Therefore, the
RPD validly concluded that the passport has no probative value.
[38]
Regarding
the birth certificate, the RPD’s finding is reasonable and relies on the
evidence submitted to it. The photocopy of the birth certificate is illegible
and does not constitute probative evidence on which the RPD could have relied
to establish the applicant’s identity. Furthermore, if the applicant was able
to obtain the passport, it is curious that he was unable to obtain a legible
copy of his birth certificate.
[39]
Furthermore,
the applicant’s argument that the panel member used speculation in his decision
is without merit. In fact, the applicant was first questioned generally on what
the CBSA officers said about his birth certificate. He indicated that it was deemed
illegible and that he was asked to provide the original. Then, the applicant
claimed that he did not remember whether the CBSA officers pointed out to him
that the order seemed to have been altered. In light of the fact that the
applicant remembers that he was told that his birth certificate was barely
legible, it would have been reasonable for him to remember the comments made on
the appearance of the photocopy of the birth certificate, which seemed to have
been altered.
[40]
Finally,
the RPD examined the passport provided by the applicant, the photocopy of the
birth certificate and a testimony. It therefore considered all of the evidence
provided by the applicant without being able to make a conclusive finding on his
identity. Thus, it cannot be criticized. In fact, as the respondent pointed
out, under section 7 of the RPD Rules, it is up to the applicant to submit
reliable documents that make it possible to establish his identity and to
provide a reason to explain the steps taken to obtain them. No explanation that
was deemed satisfactory was provided by the applicant to justify the absence of
reliable evidence that could establish his identity, for example, a certified
copy of his birth certificate issued by the Guinean authorities.
[41]
The
RPD’s finding with respect to the applicant’s identity is reasonable. Furthermore,
this Court notes that, though the RPD was not obligated to do so, it analyzed
the applicant’s credibility even though his identity was not established on a
balance of probabilities and the applicant did not demonstrate that he had made
serious efforts to obtain such documents as required by section 106 of the IRPA
(see Husein
v Canada (Minister of Citizenship and Immigration),
[1998] FCJ 726, 1998 CarswellNat 941; Hodanu v Canada (Minister
of Citizenship and Immigration), 2011 FC 474 at paragraph 17, 2011
CarswellNat 1230).
B. Did the
panel err by finding that the applicant is not credible?
Position
of the applicant
[42]
The
applicant submits that the RPD erred by not considering his age when assessing
his credibility. In fact, he had just attained the age of majority at the
hearing before the RPD. The applicant contends that he was four years old when
his parents died and that, when he visited his cousins in Pita and they could
have talked to him about the death of his parents, he was only nine or ten years
old. Thus, it was unreasonable to be of the opinion that the applicant should
know more about his parents’ accident.
[43]
The
RPD’s finding on the applicant’s lack of knowledge of his uncle and his family
was unreasonable and did not take into account the applicant’s age, particularly
since he demonstrated that he had some knowledge of those persons during his
testimony.
[44]
Furthermore,
the applicant alleges that the RPD should have considered Guideline 3: Child
Refugee Claimants: Procedural and Evidentiary Issues (Guideline), which it
did not do. Finally, the RPD was silent on the fact that the applicant has no
more immediate family in Guinea.
Position
of the respondent
[45]
The
respondent claims that the RPD, in its assessment of the applicant’s
credibility, always gave weight to the applicant’s age at the time of the
events that formed the basis for his refugee claim. Furthermore, the RPD panel
member respected the procedural requirements established in the Guideline and
therefore did not commit an error.
Analysis
[46]
First,
it is recognized under section 106 of the IRPA that the absence of probative
documents submitted by an applicant can negatively affect the applicant’s
credibility. Thus, given that the applicant was unable to submit probative
documents to establish his identity and that he did not provide any explanation
that was deemed satisfactory by the RPD with respect to the lack of probative
evidence, the negative finding regarding the applicant’s credibility is
justified under the circumstances.
[47]
Second,
the RPD did not err in its assessment of the applicant’s credibility. In light
of the fact that he was of age at the RPD hearing, the RPD was not required to
apply the Guideline when assessing the applicant’s testimony.
[48]
Furthermore,
the RPD did not make an unreasonable finding with respect to the applicant’s
age at the time of the events at the basis of his claim. In fact, the RPD did
not require the applicant to remember the events, such as the death of his
parents, which allegedly occurred when the applicant was only four years old. The
RPD’s questions were more about what his family members had told him when he
was a teenager.
[49]
Finally,
the findings as a whole with respect to the applicant’s credibility are
reasonable under the circumstances. In fact, the applicant did not submit any
evidence, such as a death certificate, corroborating his sister’s death. His
answers were vague regarding the family of Sidiki Diakité, alias Toumba, the
spouse of the aunt with whom he lived for 12 years, and there was no mention of
the fact that he is a member of the Union
of the Democratic Forces of Guinea party in his account
when that was a element relevant to his refugee claim. Regarding the events
that occurred at the Conakry stadium on September 28, 2009, numerous elements in
his testimony contradicted the documentary evidence on how the tragic event
unfolded.
[50]
The
parties were invited to submit a question for certification, but none was
submitted.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed and no question will be certified.
“Simon Noël”
____________________________
Judge
Certified
true translation
Janine Anderson,
Translator
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