Docket:
IMM-8204-12
Citation: 2013 FC 1086
Ottawa, Ontario, October
25, 2013
PRESENT: The Honourable Mr. Justice de Montigny
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BETWEEN:
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JOHNSON MOLI TSHIBOLA KABONGO
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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
Overview
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA, or the Act) of a decision made by the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
July 6, 2012, whereby it was decided that Johnson Moli Tshibola Kabongo was
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97(1) of the Act. This was the Board’s second decision with
regard to the Applicant’s claim, the first having been quashed by Justice
Rennie on March 19, 2012 (2012 FC 313). The determinative issue before the
Board was identity and credibility. For the reasons that follow, the
application is granted.
Facts
[2]
The following are the facts presented by the
Applicant before the Board.
[3]
The Applicant alleged to be a citizen of the
Democratic Republic of Congo (DRC). In 1997, members of the Alliance of
Democratic Forces for the Liberation of Congo (ADFLC) apparently attempted to
recruit his younger brother Mukena as a child soldier. Mukena refused to
enrol. As a result, two ADFLC soldiers assassinated Mukena and raped the
Applicant’s little sister on January 4, 1997.
[4]
In January 2002, the Applicant’s father was
killed by the rebels after he refused to pay the money they had requested from
him.
[5]
On December 14, 2008, the Applicant openly
criticized the Kabila government, in a bistro, for recruiting child soldiers.
On December 25, 2008, the Applicant was arrested by soldiers. His wife was
raped. The Applicant was imprisoned and tortured for one week and was released
following a $200 payment by his wife on the condition that he report to the
National Intelligence Agency twice a week.
[6]
The Applicant then fled to Rutshuru where he
remained hidden with the help of a Catholic priest. The Applicant then
fled to Rwanda, where he stayed for three months, before coming to Canada with a false British passport. He claimed refugee status upon arrival. He claimed
a well-founded fear of persecution on the basis of his political opinion, as
well as a risk of torture and a risk of cruel or unusual treatment or
punishment should he return to the DRC.
The impugned
decision
[7]
The Board rejected the Applicant’s claim on the
basis that the Applicant had not established his identity and, alternatively,
on the basis of lack of credibility.
[8]
With respect to identity, the Board determined
that the documents submitted by the Applicant were not genuine. The birth
certificate was apparently issued by the Democratic Republic of Congo, but bore
the stamp of a different country (the Republic of Congo). The letter from the
university and the university transcript contained numerous spelling errors. The
Board rejected the Applicant’s explanation that these errors were a consequence
of poor administration during the dictatorship.
[9]
The Board mentioned that the Applicant had also
submitted a driver’s license and a voter card which included a photograph, but
added that the Applicant had inserted his photo in a fraudulent passport. The
Board concluded that these were not genuine documents.
[10]
With regard to credibility, the Board noted that
the Applicant’s credibility was diminished as a result of its assessment of the
documents submitted to establish identity.
[11]
The Board further considered that the arrest
warrant was not a genuine document. The document was issued by the National
Intelligence Agency, Department of Justice. Documentary evidence showed that the
National Intelligence Agency was not under the authority of the Department of
Justice. The Board found as well that the stamp on that document differed from
the sample on record.
[12]
The Board noted that the Applicant’s Personal
Information Form (PIF) narrative and his testimony at the hearing were
inconsistent with the notes at the point of entry, where the Applicant declared
that he escaped from prison with the help of a commandant and a priest. The
Board found that the inconsistency was of such significance that it could not
be explained by the fact, as claimed by the Applicant, that the
statement had been written by the immigration officer and that the Applicant
could not verify it without his glasses.
[13]
The Board considered as well that the
Applicant’s failure to claim refugee status in Rwanda during the three months
he was there further diminished his credibility.
[14]
The Applicant’s religious and community
activities in Canada were found by the Board to be incompatible with what would
be expected of a politically engaged person.
Issues
[15]
The Applicant raises the following two issues:
i)
Did the Board commit a reviewable error in deciding that the Applicant had not
established his identity?
ii)
Did the Board commit a reviewable error in concluding that the Applicant was
not credible?
Based on my
conclusion on the first point, there is no need to address the second one.
Analysis
[16]
There is no doubt that the Board’s identity
findings are to be reviewed on the standard of reasonableness: Liu v Canada
(MCI), 2012 FC 377, at para 8. It is also well established that the
standard of reasonableness applies to the Board’s credibility findings: Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732; Triana
Aguirre v Canada (MCI), 2008 FC 571.
[17]
Reasonableness requires that this Court accord
the Board significant deference. As long as the Board’s decision falls within
a range of acceptable outcomes that are defensible in respect of the facts and
law, the decision is not subjected to this Court’s intervention: Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47.
[18]
There is no doubt that the onus is on a claimant
to establish his or her identity with documentary evidence, and, if such
documents are not provided, to explain what steps were taken to obtain them: IRPA,
s 106; Refugee Protection Division Rules, SOR/2002-228, s 7. See: Qiu
v Canada (MCI), 2009 FC 259, at para 6; Zheng v Canada (MCI), 2008 FC 877, at para 14 [Zheng]. Consequently, a lack of acceptable
documents without a reasonable explanation for their absence, or the failure to
take reasonable steps to obtain them, is a significant factor in assessing the
credibility of a claimant.
[19]
I find no error in the Board’s analysis with
regard to the birth certificate, the university letter, the university
transcript, and the arrest warrant. The Applicant, as well, takes no issue with
the Board’s assessment of these documents.
[20]
However, the Board erred in limiting its
examination to only a portion of the documents submitted by the Applicant to
establish his identity. In particular, the Board failed to deal with the
Applicant’s original voter card and his driver’s license. The Board acknowledged
that these documents were filed but did not make any further comments except to
mention that the Applicant had provided a false passport. This was clearly not
sufficient, not only because the voter card is in effect a national identity
card in DRC according to the Country of Origin Information Report from the UK
Border Agency (Applicant Record, p. 63), but also because the Canadian Boarder
Services Agency gave the benefit of the doubt to the Applicant with respect to
the genuineness of these documents. In these circumstances, the Board was
required to make a determination of the genuineness of these two documents, and
could not simply assume that they are false merely because the passport has
been tampered with.
[21]
In the same vein, I also note that the Board
made no mention whatsoever of the Applicant’s marriage certificate, of his
student card and of another certificate attesting that he lost all his personal
identification documents. The Board could not reasonably ignore these
documents in assessing the Applicant’s identity. Counsel for the Respondent
argued that the Board’s assessment of the voter card cannot be viewed in
isolation. I could not agree more. The same is true, however, of the
assessment of the other identity documents on which the Board decided to focus
its attention. The Board could not come to a reasonable assessment of the Applicant’s
identity by only focusing on those documents where authenticity appears
doubtful and ignoring those documents which appear to be trustworthy. All the
documents filed and the explanations provided by the Applicant must be
considered before coming to a conclusion: see Zheng, above, at paras
17-19.
[22]
Having found that the Board erred in determining
that the Applicant has not established his identity, the decision must be
quashed. Counsel for the Respondent agreed that the decision cannot stand if the
identity finding is not reasonable. A finding that the Applicant is not who he
claims to be is prejudicial to his overall claim. Accordingly, there is no
need to review the Board’s findings with respect to the Applicant’s
credibility.
Conclusion
[23]
The application for judicial review is granted,
and the case is remitted to a differently constituted panel of the Board for re-determination.
No question is certified.
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