Docket:
IMM-4956-13
Citation: 2014 FC 123
Ottawa, Ontario, February 13, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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ABOUBACAR DIARRA
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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
I. Overview
[1]
The Refugee Protection Division [RPD], Immigration
and Refugee Board, having concluded that the primary identity document was
fraudulent, and, in addition, without any credible corroborative evidence to
demonstrate that the other documents were authentic, it was not unreasonable
for the RPD to give the other documents little weight in establishing the
Applicant’s identity.
II. Introduction
[2]
The Applicant seeks a judicial review of a
decision by the RPD, dated June 13, 2013, wherein, it was determined that he
was not a Convention refugee under section 96, nor a person in need of
protection under section 97 of the Immigration and Refugee Protection Act,
SC 2001 c 27 [IRPA].
III. Background
[3]
The Applicant claims his name is Aboubacar
Diarra and that he is a citizen of the Ivory Coast, born in 1995.
[4]
The Applicant states that his father, a
well-known businessman of Abobo, Ivory Coast, was a member of the Front
populaire ivoirien and a strong supporter of the former President of the Ivory Coast, Laurent Gbagbo.
[5]
In March 2010, during the country’s elections,
the Applicant alleges that his father participated in demonstrations and was
arrested by the new President’s forces. The Applicant has not heard of his
father since the arrest.
[6]
After his father’s arrest, the Applicant states
that he and his family received death threats and had to flee from their home
and reside with his step-mother. Shortly thereafter, the Applicant, with the
help of a family friend, left the country and made his way to Canada.
[7]
The Applicant arrived in Canada on March 18,
2012 with three pieces of identification: a certificate of nationality
(“Certificat De Nationalite Ivoirienne”), an attestation of identity
(“Attestation d’Identité”), and a birth record (“Extrait du Registre des actes
de l’État Civil pour l’Année 1995”) (Applicant’s Record, vol 1 at pp 348-351).
[8]
On April 15, 2012, the Applicant filed a refugee
claim.
[9]
The RPD rejected the Applicant’s refugee claim
on June 13, 2013 which is the underlying application before this Court.
IV. Decision
under Review
[10]
In its decision, the RPD determined that the
Applicant was neither a Convention refugee nor a person in need of protection
given that he was unable to adequately establish his identity.
[11]
After having reviewed the documentary evidence,
including a Document Expertise Report from the Canada Border Services Agency
[Report], the RPD found that the Applicant’s only primary identity document, an
attestation of identity, did not have the characteristics of a genuine document
of its type; and, as its authenticity was in serious question, it was
considered fraudulent.
[12]
Additionally, the RPD found that other
documentary evidence submitted by the Applicant was of a tertiary document
variety; and, it also did not provide sufficient credible evidence to establish
the Applicant’s identity.
[13]
Accordingly, the RPD found the Applicant not to
be credible in respect of the manner in which he came to be in receipt of tertiary
documents and the steps by which he had obtained missing identity documents.
[14]
The RPD consequently rejected the Applicant’s
refugee claim.
V. Issue
[15]
Is the RPD’s conclusion that the Applicant
failed to establish his identity reasonable?
VI. Relevant
Legislative Provisions
[16]
The following legislative provision of the IRPA
is relevant:
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Credibility
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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Crédibilité
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.
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[17]
The Refugee Protection Division Rules,
SOR/2002-228 also provide:
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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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VII. Standard
of Review
[18]
The RPD’s findings of fact on issues of identity
attract a standard of reasonableness (Liu v Canada (Minister of Citizenship
and Immigration), 2012 FC 377; Wang v Canada (Minister of Citizenship
and Immigration), 2011 FC 969; Najam v Canada (Minister of Citizenship
and Immigration), 2004 FC 425).
[19]
Consequently, the Court must be concerned with “the
existence of justification, transparency and intelligibility in the
decision-making process” and whether the decision falls within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47).
VIII. Analysis
[20]
The Applicant argues that the RPD erred by ignoring
documentary evidence he had provided to establish his identity and, by having
determined, on the basis of a document that was fraudulent, that the other
identity documents were to be dismissed.
[21]
The Court does not find that the RPD erred in either
respect.
[22]
This Court has found on numerous occasions that the
issue of identity is at the very core of the RPD’s expertise; thus, the Court needs
to caution itself not to simply second-guess the RPD. As stated by Justice Mary
Gleason in Rahal v Canada (Minister of Citizenship and Immigration),
2012 FC 319:
[48] … 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 specious) and provided there is no glaring
inconsistency between the Board’s decision and the weight of the 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. [Emphasis
added.]
[23]
In respect to the Applicant’s attestation of
nationality, the RPD concluded that the document showed a number of
characteristics generally found in counterfeit documents. For instance, the
fingerprint on the attestation did not belong to the Applicant, although he
nevertheless relied on the attestation. The document was also of an overall
poor quality, and showed multiple signs that it had been altered. In the
Court’s view, it was reasonable for the RPD to give this document little weight
in establishing the Applicant’s identity.
[24]
The Applicant argues that, despite the problems raised
regarding attestation, the RPD should not have relied on the findings of the
Report as its results were deemed to be “inconclusive”. This argument is
flawed. As stated in Su v Canada (Minister Citizenship and Immigration),
2012 FC 743, “forensic examination of a document that results in an
“inconclusive” finding (particularly when specific problems with the document
are identified) does not establish the authenticity of the document” [emphasis
in original] (at para 12). In this case, the Report clearly established that
there were serious problems with the document, and although the results in regard
to its authenticity were inconclusive, the document was still “considered to
be altered and therefore [was] fraudulent” (Document Expertise Report,
Certified Tribunal Record [CTR] at p 327). Where an alteration appears on
the face of the evidence, the RPD is entitled to give no weight to the document
(Saleem v Canada (Minister of Citizenship and Immigration), 2008 FC 389
at para 37).
[25]
In respect to the Applicant’s other identity documents,
the certificate of nationality and the birth record, the Court also finds that
the RPD’s findings were reasonable.
[26]
The RPD, having concluded that the primary identity
document was fraudulent, and, in addition, without any credible corroborative
evidence to demonstrate that the other documents were authentic, it was not
unreasonable for the RPD to give the other documents little weight in
establishing the Applicant’s identity.
[27]
As the Respondent correctly points out, the RPD did not
discount these documents on the sole basis that the attestation was found to be
fraudulent. Both documents showed signs that they could have been altered, and
therefore could be fraudulent. For instance, they were unusually damaged and of
poor quality. The RPD had considerable concerns as to the Applicant’s overall credibility
which, coupled together with the outstanding quandary as to identity in
addition to significant credibility concerns, made it, therefore reasonable for
the RPD to conclude that these documents fell short of establishing the
Applicant’s identity.
[28]
Lastly, in respect to the Applicant’s school certificate
and his mother’s death certificate, the Court does not agree with the Applicant
that the RPD ignored these documents.
[29]
In its reasons, the RPD expressly stated that the
school certificate was a tertiary document that could not reliably be linked to
the Applicant (at para 12). It lacked features linking it to the Applicant and
did not authenticate his nationality by any means.
[30]
The Court does note that the RPD did not expressly
mention the Applicant’s mother’s death certificate in its reasons; however, the
failure to mention this document, a tertiary document, does not, in and of
itself, make the RPD's decision unreasonable. It is clear from the
jurisprudence that the RPD does not need to address every single piece of
evidence; particularly where it has found that the applicant’s underlying
claim lacks credibility (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 at para 14-17). It is
evident in this case that the RPD considered its probative value prior to
rendering its decision (Hearing transcript, CTR at pp 410-412).
[31]
The Court finds that the RPD based its decision on the
totality of the evidence before it, and given the lack of acceptable identity
documentation, it was open to reject the Applicant's explanations and to impugn
his credibility for not adducing such documents.
[32]
It is trite law that in situations where an applicant
has not established identity, a negative conclusion as to credibility will
almost inevitably also be drawn, and can, in and of itself, be dispositive of
the claim (Uwitonze v Canada (Minister of Citizenship and Immigration),
2012 FC 61, 403 FTR 217 at para 32; Morka v Canada (Minister of Citizenship
and Immigration), 2007 FC 315 at para 10; Rahman v Canada (Minister of
Citizenship and Immigration), 2005 FC 1495 at para 22-23).
[33]
In this case, there were a number of clearly identified
problems with the Applicant's identity documentation which had a significant
bearing on the RPD’s overall credibility finding, and they ultimately proved to
be fatal to the Applicant’s claim. The RPD’s decision falls well within a range
of possible, acceptable outcomes.
IX. Conclusion
[34]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
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