Docket: IMM-5488-14
Citation:
2015 FC 401
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, March 30, 2015
Present: The Honourable Mr. Justice Martineau
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BETWEEN:
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HABAYATOU
DIALLO
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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
[1]
The applicant challenges the legality of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (panel), dated June 12, 2014, rejecting her refugee claim on
the ground that she is not a refugee or a person in need of protection under sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act).
[2]
The applicant alleges that she is a Guinean
citizen who fled her country because of her husband, whom she was forced to
marry, and he beat her so that she would submit to his authority. One of her
fellow wives allegedly discovered that she was taking contraceptives, which led
to her husband beating her and locking her up. After succeeding in convincing
her husband to let her go out to meet with her mother, she was able to leave the
country with her mother’s help. She arrived in Canada, May 3, 2012, with a
passport bearing the name of Habayatou Camara. On August 27, 2012, the
applicant made a refugee claim as Habayatou Diallo. She was then detained until
September 25, 2012, when the Canada Border Services Agency (CBSA) stated
that it was satisfied with her identity.
[3]
Before the RPD, the minister intervened to state
that he was satisfied with the applicant’s identity under the name Habayatou
Diallo, but that the refugee claim had to be rejected for lack of credibility and
subjective fear. However, the RPD dismissed the application on the ground that the
applicant had not succeeded in satisfactorily demonstrating her identity. The
applicant had filed the identification document with which she had entered Canada,
a passport bearing the name Habayatou Camara, born on October 11, 1990, and
with which a Canadian visa application was filed. She also filed several exhibits
in the name of Habayatou Diallo, born on October 11, 1979, including a photocopy
of an extract of a birth certificate, a substitute birth certificate and an
excerpt from the transaction record, a certificate of nationality, a national
identity card and a consular ID card. The applicant also submitted a DNA analysis
to show the relationship between the applicant and her mother, Aissatou H. Sow.
[4]
The panel found that the applicant had not demonstrated
her identity in the name of Habayatou Diallo, for several reasons:
a) The applicant had only filed a photocopy of the extract of birth
certificate, which did not establish the date of issue and whose seal was hard
to read;
b) The panel also noted that the applicant had not adequately explained
why she had obtained a substitute birth certificate, which is generally issued
in the absence of a birth certificate or when there are errors in the birth
certificate, which does not seem to be the case here. Furthermore, the
applicant did not explain why it was indicated in the substitute that she had come
in person to the court of first instance on August 29, 2012, while she was
detained in Canada;
c) The panel did not give probative value to the certificate of
nationality, which did not contain a photo and, according to the panel, was based
on the extract of birth certificate;
d) The panel also did not give any probative value to the national
identity card because of the contradictions in her age. The applicant stated
that she had her husband’s card after her marriage, while she was [translation] “approximately 20 years old,
20 years old or more”. The panel stated that the age of 20 is not compatible with
the birth date indicated on the national identity card, since, according to
this card she was allegedly 29 years old at the time of her marriage;
e) The panel also noted that the consular identity card is genuine, but
did not give it probative value since it was obtained using the national
identity card.
[5]
However, the panel noted that according to the
analysis done by the CBSA, the passport bearing the name of Habayatou Camara is
genuine. While there are good reasons to believe that this passport was obtained
in a usual manner, the contradictions are such that the panel can also not find
that Habayatou Camara is the applicant’s true identity. Furthermore, the panel did
not give probative value to the DNA analysis since it was of the view that the evidence
was not complete without the identification used by the applicant and, supposedly,
her mother to obtain the DNA analysis. Therefore, the panel found that the
applicant had not satisfactorily demonstrated her identity and rejected the refugee
claim.
[6]
The Court is dealing with two issues. First, did
the panel commit a reviewable error in finding that the applicant did not
satisfactorily demonstrate her identity? Second, did the panel show bias? The
standard of reasonableness applies to the first issue, while the standard of
correctness applies to the second (Dunsmuir v New Brunswick, 2008 SCC 9
(Dunsmuir); Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12; Rahal v Canada (Citizenship and Immigration), 2012 FC 319 at para 48
(Rahal)).
[7]
First, the applicant claimed that the panel
imposed too stringent a burden of proof on the issue of identity. In this case,
the applicant filed a number of exhibits showing her identity to be Habayatou
Diallo and, as a whole, this evidence proved, on a balance of probabilities, that
the applicant is indeed Habayatou Diallo. Furthermore, the panel committed a reviewable
error by using its specialized knowledge to reduce the probative value of foreign
government documents, which goes against the presumption of validity of passports
and identity documents issued by a foreign government (Ramalingam v Canada (Minister
of Citizenship and Immigration), 1998 CanLII 7241 (FC)). The applicant alleged
that the panel erred in rejecting identity documents without reliable contradictory
evidence. In addition, the national identity card and the consular identity
card were evaluated and analyzed by the CBSA, which stated that they contained elements
of security and seemed to be genuine.
[8]
The respondent replied that the panel analyzed
all the relevant evidence and reasonably found that some exhibits, in
particular the copy of the extract of birth certificate, the certificate of nationality
and the national identity card, did not merit any probative value. As there
were two documents considered genuine bearing the name Diallo and one genuine document
bearing the name Camara, it was reasonable for the panel to doubt the applicant’s
identity. Furthermore, the panel benefits from full latitude with respect to
the assessment of the genuineness and the probative value of the evidence and
in one such case, the panel had sufficient evidence to doubt the genuineness of
the documents filed. The complete reasoning of the panel was reiterated in detail
by counsel for the respondent during the hearing of this application for judicial
review. The panel’s grounds show well that it did not rely on its specialized
knowledge, but that it separately assessed the probative value of each of the identity
documents. Its findings rely on the evidence and are not arbitrary.
[9]
I agree with the respondent. The panel faced the
situation where the three documents that were authenticated by the CBSA referred
to two different identities, Habayatou Diallo and Habayatou Camara, with birth
dates of eleven years’ difference. In Rahal, above, at para 48, the Court
indicated that:
[48] The issue of identity is at the very
core of the RPD’s expertise, and here, of all places, the Court should be
cautious about second-guessing the Board. 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.
[10]
In this case, the panel had contradictory
evidence regarding the applicant’s true identity before it. The replies provided
at the hearing by the applicant are not conclusive and do not overcome the panel’s
real concerns regarding her identity. It was also reasonable for the panel to
find that the excerpt of birth certificate did not have any probative value since
only a photocopy was submitted (Flores v Canada (Minister of Citizenship and
Immigration), 2005 FC 1138 at para 7) and the applicant had not explained
why she could not obtain the original. It was also reasonable for the panel not
to give probative value to the substitute since it indicated that the applicant
had come in person to obtain it on August 29, 2012, although she was in detention
in Canada at this time. The other reasons for rejecting the other identity
documents also appear to be reasonable.
[11]
Moreover, the panel had concrete evidence that
went directly against the evidence filed in support of the identity bearing the
name Diallo: the passport considered to be genuine bearing the name Camara. There
is no obvious inconsistency between the panel’s decision and the probative
value of the identity documents filed (Rahal, above at para 48). On the
basis of all the documents filed, including the passport bearing the name
Camara and, in the absence of a satisfactory explanation as to how the passport
was obtained, it was thus reasonable for the panel to find that it did not know
what the applicant’s true identity is and, consequently, to refuse the refugee
claim. It may have been possible for the panel to come to another conclusion, but
that does not mean that its finding is not part of the “range of possible,
acceptable outcomes which are defensible in respect to the facts and law” (Dunsmuir,
above, at para 47).
[12]
As for reasonable apprehension of bias, the
applicant alleged that the panel’s conduct shows that the member had
preconceived ideas, prejudices and a lack of open-mindedness toward the
applicant. A number of statements show that the member had already made a decision
regarding the applicant’s identity and that she used her personal knowledge to
discredit the applicant. The panel did not use the information contained in the
National Documentation Package. The applicant also alleged that the member made
a sarcastic comment toward the applicant during the hearing.
[13]
According to the respondent, the applicant did
not raise the apprehension of bias in a timely manner, since at no time during
the hearing did the applicant, who was represented by counsel, object to the member’s
inappropriate comments, if any, which constitutes a waiver of the right to
raise now the reasonable apprehension of bias with the Court. To the contrary, the
panel’s conduct shows that it showed flexibility toward the applicant and that
several times, the member offered to the applicant to take breaks and take her
time and offered to repeat the question if necessary. Therefore, the applicant did
not show that the panel’s conduct gives rise to a reasonable apprehension of
bias.
[14]
I agree with the respondent. The reasonable
apprehension of bias alleged by the applicant relies on comments made during
the hearing and could have been raised earlier. The applicant did not object in
the hearing and in no way explained why she should not be considered to be
waiving her right to claim reasonable apprehension of bias (Zaroud v Canada
(Secretary of State), [1995] FCJ No 1326 at paras 15-17; Chamo v Canada
(Minister of Citizenship and Immigration), 2005 FC 1219 at para 9). Furthermore,
the apprehension of bias cannot rely on mere suspicion. The evidence raised
must be serious. In this case, the panel’s comments do not create reasonable
apprehension of bias, unless it is interpreted to be a “very sensitive or
scrupulous person”.
[15]
In conclusion, the applicant did not show that an
“informed person, viewing the matter realistically and practically—and having
thought the matter through” would come to the conclusion that panel’s conduct gives
rise to a reasonable apprehension of bias (Committee for Justice and Liberty
v National Energy Board et al., [1978] 1 S.C.R. 369, Justice de Grandpré, at p 394).
[16]
The application for judicial review will be
dismissed. Counsel have proposed no questions to certify.
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