Docket: IMM-2285-15
Citation:
2016 FC 4
Ottawa, Ontario, January 4, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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VALANTINE MOBOH
KOFFI
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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 seeks judicial review of the
decision of the Refugee Appeal Division of the Immigration and Refugee Board
[RAD] dated April 16, 2015 which dismissed his appeal of the decision of the
Refugee Protection Division [RPD] decision. The RAD confirmed that the
applicant is neither a Convention refugee nor a person in need of protection on
the basis that he did not establish his identity.
[2]
The application for judicial review raises
several issues including the role of the RAD in assessing credibility without
an oral hearing, the need to reconcile the requirement for a refugee claimant
to provide credible and trustworthy evidence of their identity with the
principle that adverse credibility findings should not be based on a refugee
claimant’s need to flee their country with false documents, and whether a
finding that a refugee claimant has failed to establish their identity disposes
of any obligation on the RAD or RPD to assess a refugee claimant’s risk upon
return to their country pursuant to section 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] on the basis of objective
evidence.
[3]
The determinative issue is the RAD’s error in
basing its primary credibility finding on the applicant’s use of false
documents to exit Cameroon, contrary to the principles in the jurisprudence,
which the RAD then relied on to draw additional negative credibility
inferences. As a result, the application for judicial review is allowed.
I.
Background
[4]
The applicant is a citizen of Cameroon. He
recounts that he is an active member of the Southern Cameroon National Council
[SCNC], a political organization advocating for political independence for
Southern Cameroon. Because of his involvement with the SCNC, he claims that he
was arrested, detained and tortured by the police on several occasions. He
fears death, persecution and torture upon return to Cameroon. In March 2014,
aided by a smuggler and with false documents, he left Cameroon and travelled
via France and Brazil to Canada and sought refugee protection.
[5]
Upon arrival, he provided a false Cameroonian
passport. When confronted by an immigration officer who had reason to doubt his
identity, he disclosed that his name was Valantine Moboh Koffi. He had no
documentation to support this identity and was detained until June 2014.
[6]
While the applicant was in detention, the
applicant’s mother and uncle sent additional documentation to Mr. Kamwa, a
family friend in Canada, including the applicant’s birth certificate and
National Identity Card. Mr. Kamwa submitted the documents to CBSA. The CBSA
found that the birth certificate was unverifiable and the National Identity
Card was probably counterfeit. The applicant acknowledged, after being
presented with the card, that it was fraudulent.
II.
The RPD Decision
[7]
The RPD found that the applicant had failed to
meet the onus upon him to provide sufficient evidence to establish his
identity.
[8]
The RPD found that the applicant’s testimony
regarding his identity was not credible. The RPD noted that the applicant was
uncertain about the order of his names, as in Africa, first and last names are
not differentiated, and found that the order of his name differed between the
names provided at the RPD hearing, his other documents and his Basis of Claim
form.
[9]
The RPD found that the applicant’s explanation
for failing to disclose his prior visa applications using the name “Gawum” was
not reasonable, noting he could have amended his Basis of Claim form to be
truthful. The RPD also found that it was not plausible that he had a fraudulent
passport in the name “Gawum” which was coincidentally his girlfriend’s and
child’s last name.
[10]
The RPD placed little weight on the applicant’s
birth certificate given the other documents on the record admitted to be
fraudulent, the anomalies in the documents and the credibility concerns.
III.
The RAD Decision
[11]
The applicant appealed to the RAD, seeking to
rely on new evidence, in particular an affidavit from his uncle in Cameroon
explaining that the fraudulent National Identity Card was sent without the
applicant’s knowledge and an article on common practices regarding first and
last names in Cameroon. He also requested an oral hearing.
[12]
The RAD admitted the new evidence in accordance
with subsection 110(4) of the Act.
[13]
However, the RAD gave the affidavit of the
applicant’s uncle little weight given that the applicant had repeatedly
submitted fraudulent documents and his uncle had been the conduit for several
of these fraudulent documents.
[14]
The RAD accepted the applicant’s explanation for
the inconsistencies in the order of his first and last names in documents on
the record based on the article provided.
[15]
The RAD denied the request for an oral hearing,
noting that the new evidence could not independently establish the applicant’s
identity and did not meet the test set out in subsection 110(6) to permit an
oral hearing.
[16]
The RAD noted that in accordance with Huruglica
v Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] 4
FCR 811 [Huruglica] it would conduct an independent assessment of the
evidence.
[17]
The RAD accepted that the different order of
names in the applicant’s documentation cannot be used as an indicator of fraud,
but found that the RPD did not err by inquiring into the reliability of the
applicant’s documents given his propensity for relying on fraudulent documents.
[18]
The RAD found that the RPD had erred by finding
that it was implausible that the applicant’s US visa and his denied Canadian
visa application used his girlfriend’s last name and were fraudulent. However,
the RAD again found that the applicant’s repeated reliance on fraudulent
documents in his interactions with the US and Canadian authorities exhibits his
propensity to rely on such documents and assume a fraudulent identity and that
this detracts from his credibility.
[19]
The RAD also agreed with the RPD’s finding that
the applicant did not readily admit his identity until confronted, which
detracts from his credibility.
[20]
With respect to the RPD’s rejection of several
other supporting identity documents including his birth certificate, arrest
warrants, SCNC membership card and a newspaper article noting his involvement
in the SCNC, the RAD again noted that the applicant had acquired several
fraudulent identity documents in his name with the assistance of his uncle.
[21]
The RAD noted that refugee claimants may not be
in a position to provide authentic identity documents. However, the RAD found
that, in this case, it was open to the RPD, in light of the credibility
concerns and the fraudulent National Identity Card, to look for more reliable
and probative documents and to give the secondary identity documents little
weight. The RAD noted the prevalence of fraudulent documents in Cameroon and
concluded, based on the totality of evidence, that it would give the secondary
documents little weight.
[22]
The RAD rejected the applicant’s argument that
he should not be held responsible for his uncle’s actions in sending him
fraudulent documents which he had not previously seen, noting that the onus was
on him to establish, with credible and trustworthy evidence, on a balance of probabilities,
that he is who he says he is.
[23]
The RAD concluded that the only potentially
probative document regarding the applicant’s identity as Valantine Moboh Koffi,
his National Identity Card, was fraudulent and that his birth certificate was
unverifiable. Based on the totality of the evidence, the RAD found that he had
not provided sufficient reliable and probative evidence to establish his
identity on a balance of probabilities.
[24]
The RAD further found that the RPD did not
breach the applicant’s section 7 Charter rights by failing to conduct
any assessment of his risk upon return to his home country. The RAD reached the
same conclusion based on finding that the applicant’s identity had not been
established and, therefore, it was not required to assess his risk.
IV.
The Issues
[25]
The applicant argues that:
1.
The RAD breached procedural fairness by making
negative credibility findings without convening an oral hearing.
2.
The RAD’s negative credibility findings were not
reasonable; specifically, the RAD erred by drawing a negative credibility
inference because the applicant fled from Cameroon using false documentation.
3.
The RAD erred by failing to conduct an
assessment, pursuant to section 97 of the Act, of the risk the applicant would
face upon return to Cameroon.
V.
The Standard of Review
[26]
Issues of procedural fairness are reviewed on
the standard of correctness.
[27]
The application of the law to the facts of the
case, the RAD’s credibility findings and the RAD’s decision regarding the RPD’s
credibility findings are reviewed on the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 53-54, [2008] 1 S.C.R. 190 [Dunsmuir]).
[28]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir at para 47).
[29]
With respect to questions of credibility, the
jurisprudence has generally established that the RAD may or should defer to the
RPD because the RPD has heard the witnesses directly, has had an opportunity to
probe their testimony or has had some advantage not enjoyed by the RAD; see,
for example, Huruglica at para 55; Akuffo v Canada (Minister of
Citizenship and Immigration), 2014 FC 1063 at para 39, [2014] FCJ No 1116
(QL); Nahal v Canada (Minister of Citizenship and Immigration), 2014 FC
1208 at para 25, [2014] FCJ No 1254 (QL).
[30]
However, in Khachatourian v Canada (Minister
of Citizenship and Immigration), 2015 FC 182 at paras 31-32, [2015] FCJ No
156 (QL), Justice Noël noted that the RAD should assume its appellate role and,
therefore, the same level of deference may not be warranted with respect to
credibility findings in an appeal as in a judicial review; an independent
assessment or an analysis of the evidence would be necessary to permit some
level of deference.
[31]
In Balde v Canada (Minister of Citizenship
and Immigration), 2015 FC 624 at para 23, [2015] FCJ No 641 (QL), Justice
Mosley agreed, noting that: “The Court has been
consistent that the RAD ought to defer to findings of fact or credibility made
by the RPD but must also conduct its own analysis of those findings.”
[32]
In the present case, the RAD did a bit of
everything. The RAD stated that it conducted its own assessment of the
evidence. The RAD deferred to and confirmed some of the RPD’s credibility
findings. The RAD found two of the RPD’s credibility findings to be in error,
yet supported the adverse inferences arising from those findings (for other
reasons). The RAD also made its own credibility findings regarding the
documentary evidence.
[33]
On judicial review, the issue is whether the
RAD’s credibility findings are reasonable. It is well settled that credibility
findings of boards and tribunals are owed significant deference on judicial
review, given that they are in the best position to assess the testimony and
the evidence. However, in the present case, the RAD did not conduct an oral
hearing and did not hear first-hand from the applicant. The RAD’s credibility
findings are based on its assessment of the evidence on the record. Despite the
deference generally owed, credibility findings are not immune from review and must
meet the Dunsmuir standard.
VI.
Analysis
1. The RAD did not breach its duty of procedural
fairness
[34]
The applicant acknowledges that subsection
110(6) of the Act provides that the RAD may hold a hearing if certain
conditions are met, but submits that the common law duty of procedural fairness
continues to apply and an oral hearing should have been held to provide him
with an opportunity to respond to the RAD’s credibility concerns and to know
the case he had to meet.
[35]
The general rule is set out in subsection 110(3)
which provides that the RAD must proceed without an oral hearing. However,
subsection 110(6) provides an exception where a hearing may be held where
certain criteria are met. Even if those criteria are met, the RAD still has the
discretion to decline to hold an oral hearing.
[36]
The applicant interprets the exception to mean
that when any of the evidence relied on by the RAD raises a serious credibility
issue that is central to the decision and that, if accepted, would justify
allowing or rejecting the refugee claim, the criteria are met. In my view, for
the purposes of this case, it is not necessary to determine how the exception
should be interpreted as it remains a discretionary provision.
[37]
With respect to the RAD’s common law duty of
procedural fairness, the applicant relies on Husian v Canada (Minister of
Citizenship and Immigration), 2015 FC 684 at paras 9-10, [2015] FCJ No 687
(QL) [Husian], where Justice Hughes highlighted the pitfalls of the RAD
making credibility findings, which are then open to review, noting at paras
9-10:
[9] We come to the basis for sending
the matter back to the RAD for re-determination. Had the RAD simply reviewed
the findings of the RPD as to the adequacy of the Applicant’s evidence and
agreed with it, that would have ended the matter. It did not. For whatever
reason, the RAD went on to give further reasons, based on its own review of the
record, as to why the Applicant’s evidence was not to be believed. It held, at
paragraph 43, that it was unable to locate any evidence to support the
Applicant’s claim to also being a member of the Dhawarawayne clan. That was
wrong; there is such evidence in the Responses to Information Requests. The
comments by the RAD as to the differences in the spelling of the Applicant’s
name in the US proceedings versus the Canadian proceedings is nonsense: of
course, there will be differences where a different alphabet and language is in
question such as Somali and English. There are other errors.
[10] The point is that if the RAD
chooses to take a frolic and venture into the record to make further
substantive findings, it should give some sort of notice to the parties and
give them an opportunity to make submissions.
[38]
Although the RAD did make credibility findings,
unlike in Husian, the RAD did not ignore contradictory evidence on the
record or make additional findings on issues unknown to the applicant.
[39]
In these circumstances, the RAD was not required
to hold an oral hearing. First, the statute is clear that an oral hearing is
discretionary even when the criteria are met. Second, the RAD did not breach
the common law duty of procedural fairness. The applicant was well aware that
the only issue before the RAD was his identity and his use of fraudulent documents
to establish his identity. It cannot be said that he did not know the case he
had to meet or that he did not have an opportunity to respond to credibility
concerns in his submissions to the RAD.
[40]
However, as noted above, the RAD made
credibility findings of its own, based on the documentary evidence and without
hearing directly from the applicant. In my view, this has a bearing on the
deference generally owed to some of those credibility findings in the context
of a reasonableness review.
2. The RAD’s negative credibility findings were
not reasonable
[41]
The applicant argues that refugees are often
forced to flee using false documents and negative credibility inferences are
not justified in such circumstances (Rasheed v Canada (Minister of
Citizenship and Immigration), 2004 FC 587 at para 18, [2004] FCJ No 715
(QL) [Rasheed]; Gulamsakhi v Canada (Minister of Citizenship and
Immigration), 2015 FC 105 at para 9, [2015] FCJ No 271 (QL) [Gulamsakhi]);
The applicant submits that all the credibility findings of the RAD stem from
his use of fraudulent documents to escape persecution in Cameroon and which he
presented upon arrival to seek refugee protection in Canada. The RAD’s repeated
references to his propensity to use fraudulent documents must be viewed in this
context.
[42]
As the applicant points out, the jurisprudence
has cautioned against drawing negative credibility findings from the use of
false documents where refugee claimants have little choice but to use such
documents to leave their country.
[43]
In Gulamsakhi the Court noted:
[9] Moreover, this Court has
repeatedly cautioned against drawing negative conclusions based on the use of
smugglers and forged documents to escape violence and persecution. Travelling
on false documents or destroying travel documents is of very limited value as a
determination of the claimant’s credibility: Attakora v Canada (Minister of
Employment and Immigration) (1989), 99 NR 168 (FCA) [Attakora]. This
is partly because it is not uncommon for a person fleeing persecution to follow
the instructions of the person(s) organizing their escape: Rasheed v Canada
(Minister of Citizenship and Immigration), 2004 FC 587 at para 18, citing Attakora.
This is consistent with the Applicant’s evidence regarding the fate of her
Afghan passport as outlined above.
[44]
In Rasheed the Court noted:
[18] Where a claimant travels on false
documents, destroys travel documents or lies about them upon arrival following
an agent’s instructions, it has been held to be peripheral and of very limited
value as a determination of general credibility. First, it is not uncommon for
those who are fleeing from persecution not to have regular travel documents
and, as a result of their fears and vulnerability, simply to act in accordance
with the instructions of the agent who organized their escape. Second, whether
a person has told the truth about his or her travel documents has little direct
bearing on whether the person is indeed a refugee (Attakora v. Canada
(Minister of Employment and Immigration), [1989] F.C.J. No. 444 (C.A) (QL);
and Takhar v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 240 at para. 14 (T.D.) (QL).
[45]
The respondent argues that there is little
evidence that the applicant was forced to use a false document to flee his home
country. However, the applicant’s narrative refers to his attempts to obtain
documents to flee the country and his ultimate reliance on a smuggler to secure
his travel out of Cameroon with a false passport, which he presented on
arrival. In my view, this falls within the category of cases where a negative
inference should not be drawn from the use of false documents to flee.
[46]
The respondent relies on Sertkaya v Canada
(Minister of Citizenship and Immigration), 2004 FC 734 at para 7, 131 ACWS
(3d) 729 [Sertkaya] to support its position that the RAD reasonably
considered the authenticity of documents and the ability to obtain fraudulent
documents in Cameroon:
[7] […] Specifically, it was open to
the board to consider the authenticity of the documentary evidence, the
consistency of Mr. Sertkaya’s story, the ability of the family to obtain and
use fraudulent documents and the failure of the family to seek asylum during
the five months spent in the United States. The applicants have failed to
establish that any of these findings were in error and, in my view, they are
sufficient to support the RPD’s findings. The error with regard to HADEP
membership is not material to the overall conclusion.
[47]
In Sertkaya, the RPD made a finding that
it was improbable that fraudulent documents would have been required for the
family to leave Turkey or that they would have been able to pass through
passport control with such documents and that other documents were not
authentic (a letter allegedly written by the applicant’s employer). In
addition, as is apparent from the passage above, the RPD noted inconsistencies
in oral testimony and the applicants’ delay in claiming protection. Although
there is no dispute that the RAD should scrutinise the authenticity of
documents, the facts in Sertkaya differ from the present case.
[48]
The respondent also submits that the RAD
reasonably relied on the applicant’s delay in revealing his identity as
detracting from his credibility. However, the RAD appears to have overstated
this delay. The RAD found that the applicant did not acknowledge his use of a
false passport until confronted while in detention. The record shows that the
applicant presented the false passport to an immigration officer upon arrival,
but upon questioning by the officer, revealed his identity as Valantine Moboh
Koffi without delay.
[49]
Unlike Sertkaya, the RPD did not make any
finding that the applicant did not need to rely on false documents to flee
Cameroon. The RAD simply noted that “sometimes the
refugee claimants cannot provide authentic probative identity documents.”
The RAD went on to find that “[i]n the presence of
credibility concerns” it was open to the RPD to look for more reliable
documents to establish his identity and agreed that the secondary documents should
be given little weight. This ignores the principle from the jurisprudence that
negative inferences should not be drawn from the use of false documents to flee
a country or that the same false documents would be presented by an applicant
upon arrival.
[50]
The RAD noted that it considered the totality of
the evidence and clearly there were fraudulent documents among the identity
documents provided by the applicant. However, the RAD accepted that the order
of names on some of the identity documents was not an indicator of fraud, yet
it appears that the RAD continued to give those documents little weight. The
RAD also found that the applicant’s use of his girlfriend’s last name to obtain
a US visa and to seek a Canadian visa was plausible, yet it did not acknowledge
that these documents were intended to assist him to leave the country. In
addition, it appears that the RAD did not independently assess the secondary documents
at all; rather, it concurred with the RPD that these documents should be given
little weight due to the applicant’s propensity to provide fraudulent
documents.
[51]
The RAD’s reasoning is problematic. Instead of
acknowledging that negative inferences should not be drawn based on the use of
false documents to flee a country, it relies on the use of the false documents
to bolster its characterisation of the applicant having a propensity to use
fraudulent documents and, in turn, to agree with the RPD that because of that
propensity, the secondary documents should be given little weight.
[52]
On the other hand, the legislation is clear that
a refugee claimant must establish their identity.
[53]
In Jin v Canada (Minister of Citizenship and
Immigration), 2006 FC 126 at para 13, [2006] FCJ No 181 (QL), Justice
Barnes highlighted that identity is “a critical
threshold decision for the Board” and that section 106 requires that the
Board to determine, as a matter of credibility, whether the applicant has
acceptable documentation to establish their identity.
[54]
In Su v Canada (Minister of Citizenship and
Immigration), 2012 FC 743 at para 4, [2012] FCJ No 902 (QL), Justice Snider
noted that the burden on a refugee claimant to establish their identity is a
high one “as it should be” and, at para 3:
[3] Proof of identity is a
pre-requisite for a person claiming refugee protection as without it there can
“be no sound basis for testing or verifying the claims of persecution or,
indeed for determining the Applicant’s true nationality” (Jin v Canada
(Minister of Citizenship and Immigration), 2006 FC 126 at para 26, [2006]
FCJ No 181 (QL); see also Liu v Canada (Minister of Citizenship and
Immigration), 2007 FC 831 at para 18, [2007] FCJ No 1101 (QL)).
[55]
Without diminishing the importance of
establishing identity, given that it is not possible to assess an applicant’s
claim for protection until their identity is established, this applicant finds
himself in a challenging position. Although the RAD states that he is a citizen
of Cameroon, the RAD was not satisfied that he has established his personal
identity. He used false documents to flee and admits that a false National
Identity Card was provided by his uncle, who also previously assisted him to
obtain documents to flee. His secondary documents were given little weight
largely due to the fraudulent primary documents and the RAD’s characterisation
of his “propensity” to use fraudulent documents. Yet, he is still required to
establish his personal identity with reliable and probative evidence in order
to have his claim for protection determined.
[56]
The negative credibility finding arising from
his use of false documents to exit Cameroon was unreasonable as it is not in
accordance with the jurisprudence. This finding then significantly influenced all
the other credibility findings made by the RAD given the RAD’s characterisation
of the applicant as a person with a propensity for using false documents.
3. Assessment of the applicant’s risk pursuant to
section 97
[57]
Alternatively, the applicant submits that
regardless of the RAD’s findings that he had not established his personal
identity, the RAD should have assessed his need for protection pursuant to
section 97 based on the information that can be ascertained. The applicant
draws an analogy to PRRA determinations where risk is assessed regardless of
identity. For example, in Chen v Canada (Minister of Citizenship and
Immigration), 2009 FC 379 at para 55, 176 ACWS (3d) 1120 [Chen], the
Court found that PRRA officers are obliged to proceed beyond the question of
personal identity where the national origin has been established and to assess
country conditions and risk under section 97.
[58]
The applicant points out that his risk has not
been assessed at all and, given the limitations on his eligibility for a PRRA,
he may not have his risk assessed before possible removal to Cameroon.
[59]
In my view, this issue need not be determined,
given that the RAD must re-determine the appeal. The issue of whether a section
97 risk faced by an applicant who cannot establish their personal identity, but
has established their national origin, should be assessed, as well as the
objective evidence necessary to conduct such an assessment, remains to be determined
in the appropriate case.
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