Docket: IMM-2149-14
Citation:
2014 FC 1189
Ottawa, Ontario, December 9, 2014
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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ROUGUIATOU TOURE
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for leave to commence an
application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of Renée
Bourque of the Refugee Protection Division [RPD] dated February 27, 2014, which
held that the Applicant was neither a Convention Refugee nor a person in need
of protection within the meaning of sections 96 and 97 of the IRPA.
II.
Facts
[2]
The Applicant grew up in a Muslim and polygamous
family with numerous brothers and sisters in Guinea. While she was in
university, her father’s attitude began to change. He frequently went to Mali, let his beard grow and attended the Mosque.
[3]
One day, the Applicant’s father told her that he
had planned an arranged marriage for her, with a 60 year old man. The Applicant
told her father that she was not ready for marriage and her father replied by
slapping her.
[4]
Her wedding was celebrated on July 15, 2012. Her
husband already had three wives and about fifteen children. He beat her on the
first night of their marriage because she refused to sleep with him. She was
treated like a maid by the other wives and was beaten by them on one occasion.
[5]
The Applicant explained the situation to her
father, who replied that her situation was normal.
[6]
The Applicant decided to leave Guinea in order save her life. She left on October 26, 2012 and arrived in Canada on October 27, 2012, with a man named Edouard. Edouard brought a French passport for
the Applicant for her entrance to Canada.
[7]
She claimed asylum on November 6, 2012.
III.
Contested Decision
[8]
Based on the documentary evidence provided, the
RPD concluded that the Applicant was neither a Convention refugee nor a person
in need of protection within the meaning of sections 96 and 97 of IRPA.
[9]
The RPD is not satisfied of the Applicant’s
identity.
[10]
The RPD first addresses the Applicant’s travel
to Canada. The Applicant claims to have entered Canada with a smuggler, who had
a French passport under the name Cecilia with a photo of another woman, who
appeared to be in her thirties. The Applicant claims not to know the full name
written on the passport. The RPD concludes that it was not reasonable for the
Applicant not to know the full name of the woman on the passport as she had
numerous occasions to hear the name mentioned as she travelled from Conakry to Rabat and from Rabat to Montreal. The RPD is of the opinion that the Applicant
refused to identify the name on the passport, either because she entered Canada on a different date than October 27, 2012 or because she was trying to protect the
identity of the person who provided her with the passport. Either way, the
Applicant did not provide evidence of her entry in Canada, which undermines her
credibility with regards to her subjective fear. Consequently, the RPD is not
to be able to assess the actual duration of her stay in Canada, prior to her refugee claim on November 6, 2012. She also does not have a copy of
her plane ticket, her boarding pass or her luggage tickets.
[11]
The RPD then questions the Applicant on other
identity documents.
[12]
The RPD does not give any value to the passport
submitted by the Applicant because, among other things, she did not provide any
other identification cards to confirm her identity on the passport and because
the picture in the passport dates back to 2006, when she was 20 years old, but
the picture has the features of an older woman.
[13]
The RPD believes the Applicant’s explanation
with regards to her national identity card as to why her card was only issued
on November 4, 2010. However, because a national identity card can only be
issued based on a birth certificate, the RPD questions the Applicant on the two
birth certificates she submitted.
[14]
With regards to her birth certificate, the RPD
compares the photocopy of the birth certificate the Applicant submitted with
the original birth certificate submitted as the original one and notes that
they are different. The former was emitted in 2004 and the later in 2005. The
content of the birth certificates also differ. The Applicant was unable to
explain why those two birth certificates were different. The RPD therefore does
not grant any probative value to those documents.
[15]
The RPD notes that a birth certificate is
necessary to obtain a national identity card, and, subsequently, a national
identity card is necessary to obtain a passport. Therefore, if the Applicant
has false birth certificates, the documents subsequently emitted would
constitute “genuine false identity documents”.
[16]
With regards to the Applicant’s school
documents, such as her four student cards, the RPD notes irregularities, since
the signature 2007-2008 on the student card differs from the 2008-2009 student
card. The Applicant was also unable to explain the written content on those
cards. The RPD does not give any probative value to the student cards and draws
a negative inference with regards to the Applicant’s other two student cards.
[17]
The RPD then questions the Applicant regarding
an internship she claims to have completed between July 2010 and August 2011,
as written in the Personal Information Form [PIF]. The RPD notes that her
internship attestation states that the internship started August 16, 2010 and
ended September 16, 2010. The RPD rejects the Applicant’s explanation as to the
difference in the dates between the PIF and her internship attestation. This
undermines the Applicant’s credibility, and consequently her identity.
[18]
The RPD also notes that the two diplomas the
Applicant claims to have received from the University of Kofi Annan were both obtain
in 2010, one of them being a “License” and the other a “Master”, which appears
to be incoherent. The RPD does not give any value to those documents.
[19]
In its decision, the RPD also took into account
the evidence demonstrating how easy it is to obtain false documents in Guinea.
[20]
Based on the above, the RPD finds that the
Applicant has not established her identity. The RPD therefore does not address
the other aspects of the Applicant’s asylum claim.
IV.
Parties’ Submissions
[21]
With regards to her birth certificates, the
Applicant submits that contrary to the RPD’s conclusion, the one issued in 2005
and presented to the RPD was an original and not a copy. The documentary
evidence referred to as the National Documentation Package of Guinea [National
Documentation] states that authentic documents may contain flagrant anomalies.
The Applicant’s testimony on this issue was therefore credible. The Respondent
replies that the RPD correctly concluded that no probative value could be given
to the birth certificates issued in 2004 and in 2005 because the information
they each contained was not identical.
[22]
With regards to the Applicant’s application for
the renewal of her passport, the Applicant explained to the RPD that she
dropped off her passport at the Ministry’s office, which already had all her
other documents, such as, her national identity card and birth certificate. The
fact that the Ministry already had her information does not render her passport
unreliable. In reply, the Respondent highlights that the photo on the Applicant’s
passport issued in 2006, when the Applicant was twenty years old, appears to
show a much older woman. Since the RPD saw the Applicant at the hearing and was
able to compare her to the picture in the passport, the RPD’s finding on this
issue must be subject to judicial deference.
[23]
The Applicant also argues that the RPD did not
refer to any evidence to support that it has a specialized knowledge on foreign
government issued documents and that evidence of prevalent forgery in a country
is not enough to reject foreign documents as forgeries. The Respondent replies
that the appearance of authenticity of a document carries a refutable
presumption of validity and the truthfulness of documents from a foreign
country can be challenged. It was therefore reasonable for the RPD to decide
that the identity documents provided by the Applicant were indicative of
fabrication rather than authenticity.
[24]
The Applicant then submits that the RPD erred in
not giving any probative value to the Applicant’s student identification cards
because she testified that the signatures on her cards were not hers, but that
of the university’s administrator. The cards clearly state at the bottom “Partie
réservée à l’administration”.
[25]
With regards to the RPD’s decision not to give
any probative value to the Applicant’s diplomas, the Applicant argues her
Bachelor’s degree states that she completed her program on July 19, 2009. Her
diploma was issued on November 16, 2009. The certified true copy of this
diploma was issued on January 27, 2010, and not the diploma. It is therefore
plausible that the Applicant completed her Master’s degree in 2009-2010. The
Respondent replies that there were numerous inconsistencies between the school
documents the Applicant provided and her narrative and PIF. It was therefore
reasonable for the RPD to decide not to give probative value to those
documents.
V.
Issues
[26]
The Applicant states the following issue:
- Did the RPD err when
it rejected several Government issued identity documents and concluded
that it was not satisfied with the Applicant’s identity?
[27]
The Respondent states the following issue:
- Did the RPD err in concluding that the
Applicant lacked credibility as to her identity?
[28]
After reviewing the parties’ submissions and the
issues presented by the parties, I frame the issue as follow:
- Did the RPD err in concluding that the
Applicant had not established her identity?
VI.
Standard of Review
[29]
The assessment of the proofs of identity of the
Applicant is a question of fact. The reasonableness standard therefore applies
(Matingou-Testie v Canada (Minister of Citizenship and Immigration),
2012 FC 389, [2012] FCJ No 401 at para 18 [Matingou]; Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12 at paras 45-46; Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at para 53 [Dunsmuir]).
The RPD’s decision will be deemed reasonable if there is justification,
transparency and intelligibility within the decision-making process (Dunsmuir,
supra at para 47). This Court shall only intervene if it concludes that
the decision is unreasonable, where it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Ibid).
VII.
Analysis
[30]
I have read the Applicant’s record and her
testimony before the RPD and I am satisfied of the RPD’s finding that the
Applicant did not meet her burden of proof to establish her identity. The RPD
examined and questioned the Applicant as to her passport, her national identity
card, her two birth certificates, her four school identity cards, her
university diploma, her Master’s certificate and her marriage certificate (the
latter was discussed at the hearing, but not mentioned in the RPD’s decision).
The RPD reasonably concluded that none of those documents could establish the
Applicant’s identity.
[31]
The Applicant claiming refugee status must first
establish her identity before the RPD (Rule 11 of the Refugee Protection
Division Rules, SOR/2012-256 and section 106 of IRPA). The Applicant has a
high onus to produce acceptable documentation establishing her identity (Su
v Canada (Minister of Citizenship and Immigration), 2012 FC 743, [2012] FCJ
No 902 at para 4 [Su]). When making identity findings, the RPD must take into
account the totality of the evidence related to the identity of the refugee claimant
(Yang v Canada (Minister of Citizenship and Immigration), 2009 FC 681,
[2009] FCJ No 848 at para 6 [Yang]). If the Applicant does not establish
her identity, the RPD can then draw a negative conclusion as to her credibility
(Matingou, supra at para 2).
[32]
It is also well established that the issue of
identity is at the very core of the RPD’s expertise and this Court should be
cautious about intervening on such decisions (Barry v Canada (Minister of Citizenship and Immigration), 2014 FC 8, [2014] FCJ No 10 at para 19 [Barry]).
Justice Gleason further states in Rahal v Canada (Minister of Citizenship
and Immigration), 2012 FC 319, [2012] FCJ No 369 at para 48 [Rahal]:
[…] In my view, provided that there is some
evidence to support the Board’s identity-related conclusions, provided the RPD
offers some reasons for its conclusions (that are not clearly suspicious) and
provided there is no glaring inconsistencies between the Board’s decision and
the weight of evidence in the record, the RPD’s determination on identity
warrants deference and will fall within the purview of a reasonable decision.
In other words, if these factors pertain, the determination cannot be said to
have been made in a perverse or capricious manner or without regard to the
evidence.
[33]
In the case at bar, the Applicant argues that
the RPD challenged the validity of foreign issued identity documents without
adducing any evidence in support of its contention. I disagree. Firstly, the
RPD reasonably concluded that the two birth certificates submitted by the
Applicant could not establish her identity, because the content of each
documents differed and because the Applicant was unable to provide a reasonable
explanation for the discrepancies identified, such as the different places of
residence stated on both documents (AR at page 17 and Tribunal Record [TR] at
pages 168-170, Applicant’s affidavit at para 12). My own review of the two
birth certificates as it was discussed at the hearing was that there was other
discrepancies than the two identified by the RPD. The name of the “déclarant”,
the place of birth and the date of the “declaration” are all different from one
document to the other. Since we are dealing with “extrait d’acte de naissance”,
it is not possible that the main registry would contain at least five
differences between the two “extraits”. In response to the argument that it is
normal in Guinea to see flagrant anomalies on authentic documents, I find that
at least five (5) factually important discrepancies on two (2) “extraits d’acte
de naissance” are just not acceptable. These five (5) discrepancies are more
than “flagrant anomalies”. Second, because the RPD did not give any probative
value to the Applicant’s birth certificates, it was also reasonable not to give
any probative value to the Applicant’s national identity card and the
Applicant’s passport, since a birth certificate is necessary to obtain a
national identity card, and a national identity card and a birth certificate
are necessary to obtain a passport (TR at pages 152-153, RPD’s decision at para
20). The RPD therefore offered reasons for its negative conclusion and there
are no glaring inconsistencies between the RPD’s decision and the weight of
evidence in the record.
[34]
Also, the Court must examine the overall
reasoning with regards to the identity in the RPD’s decision (Barry, supra
at para 25). In the case at bar, the Court finds ample evidence to support the
RPD’s decision to reject the Applicant’s identity documents and conclude that
the Applicant’s identity was not established. Although, I agree with the
Applicant that the RPD made an incorrect assessment of the Applicant’s university
diploma and the evidence provided corroborate each other, this alone does not
render the RPD’s decision unreasonable. Those university diplomas are by
themselves insufficient to prove the Applicant’s identity, when taking into
account all of the other irregularities found in the other documents and also
contradictions between her testimony when compared to her PIF such as the
length of her internship. The RPD’s identity determination warrants deference
and in the present case, I conclude that the RPD’s determination was not made
in a perverse or capricious manner or without regard to the evidence (Rahal,
supra). The application for judicial review is thus dismissed.
VIII.
Conclusion
[35]
The Applicant failed to establish her identity,
despite providing various documents to the RPD. The Applicant’s testimony did
not clarify the main issues identified by the RPD with regards to those
documents. The RPD’s decision, when read as a whole, falls within the range of
possible, acceptable outcomes, defensible in respect of the facts and the law.
There is therefore no need for this Court to intervene.
[36]
The parties were invited to submit questions for
certification but none were proposed.
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