Docket: IMM-155-16
Citation:
2016 FC 788
[ENGLISH
TRANSLATION]
Ottawa, Ontario, July 11, 2016
PRESENT: The Honourable
Mr. Justice Annis
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BETWEEN:
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DAUDET ROUSSEL NTSONGO
(alias DAUDET ARIA SOUAMOUNOU)
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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 judicial review filed
under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c. 27 (IRPA) of a decision made by a Refugee Protection Division (RPD)
officer on December 18, 2015. The RPD concluded that the claim for refugee
protection was manifestly unfounded. Therefore, the applicant is not a
Convention refugee or a person in need of protection under section 96 or
subsection 97(1) of the IRPA. The applicant tried to have that decision
set aside and referred to another immigration officer for reconsideration.
[2]
For the reasons that follow, the application is
dismissed.
II.
Facts
[3]
The applicant, Mr. Daudet Roussel Ntsongo,
affirmed that he is a citizen of the Republic of the Congo-Brazzaville. He was
a market gardener there and sold his products at a military compound, including
Colonel Ntsourou’s residence.
[4]
On December 16, 2013, Colonel Ntsourou
was arrested.
[5]
During the following week, two police officers
came to the applicant’s home since his name appeared on the visitor’s list at
Colonel Ntsourou’s home. The applicant was not home.
[6]
On December 24, 2013, the applicant was
informed by the president of the young grocers’ cooperative to which he belonged
that three police officers were looking for him and had destroyed his fields.
The applicant fled to Boko and asked his spouse to seek refuge at her mother’s
with the children.
[7]
In November 2014, the police allegedly
tried once again to obtain information on the applicant and the cooperative.
[8]
In December 2014, a friend of the applicant’s
uncle agreed to place him on a participant list for a Vision dentaire
internationale exchange to help him leave the Congo. That individual
provided him with a passport under the name “Daudet Aria Souamounou”
and helped him obtain a Canadian visa.
[9]
The applicant left Congo-Brazzaville on
May 16, 2015, and entered Canadian territory the following day using
his false passport.
III.
Contested decision
[10]
The determinative issue in this case is the
applicant’s identity. The RPD noted that the fact that the applicant had
submitted identity documents issued under two different identities was not
determinative in itself, since it is possible that a claimant would have to
resort to false documents to leave his or her country. Thus, the RPD considered
several factors that contributed to the identity of a person through the
applicant’s testimony and the evidence submitted, i.e. his name, his date of
birth, his country of origin and citizenship, his employment status, his family
composition, his civil status, his religion and his language.
[11]
The RPD first addressed the issue of the
applicant’s false passport. It noted two significant contradictions: first, in
his testimony, the applicant said he held a valid passport under his real name,
whereas that document is not mentioned on any form; next, the applicant also
stated on his refugee protection claim forms that the passport issued under his
false identity was his genuine valid passport. He also could not explain to the
RPD why he had not brought his real passport with him before leaving the Congo,
nor why he did not make any effort to retrieve it afterwards. The RPD therefore
concluded that the applicant did not hold a valid passport under the name Daudet Roussel Ntsongo.
The RPD also noted that the applicant had not mentioned on his forms that he
received help to obtain a false document and drew a negative inference from the
omission of such an important fact.
[12]
As regards additional factors, the RPD noted
that in his refugee protection claim and in his testimony, the applicant had
stated that he had two children. However, in the two visa applications made in 2011
and 2012, the applicant had declared three children. The applicant could
not explain this inconsistency.
[13]
The applicant’s testimony regarding his marital
state was also inconsistent. In his visa applications, he stated that he was
married, whereas in his claim for refugee protection, he declared that he was
in a common-law relationship and said that he had never been married. He
finally explained that he was a polygamist and that he had been married in a
customary marriage. The RPD did not accept that explanation, noting that a
recent marriage was an important omission.
[14]
Moreover, the RPD also noted that under the
Catholic faith, polygamy is not permitted, yet the applicant had stated that he
was a practising Catholic. The applicant explained that polygamy was a common
practice, even among Catholics. During his testimony, the applicant also could not
indicate the exact date on which he fled for Boko, although he had indicated it
on his form, when December 25 is a significant Catholic holiday. The RPD
found that it was reasonable to expect that the applicant would remember such a
prominent date.
[15]
The RPD also pointed out a contradiction between
the jobs declared on the 2011 and 2012 visa applications, and the job declared
in the claim for refugee protection.. The applicant stated that he has two jobs
and that he forgot to include one on the claim for refugee protection. The RPD
concluded that the lack of agreement between his visa applications and his
claim for refugee protection on such an important fact undermines the applicant’s
credibility. The applicant’s cooperative membership card also stated a different
address than the one declared on his claim for refugee protection for the same
period.
[16]
The RPD ultimately found that the corroborating
documents submitted by the applicant failed to fill the gaps in the applicant’s
testimony with respect to his identity and pointed out his account of obtaining
false documents. The RPD therefore found that the applicant was not credible
and had thus not succeeded in establishing his identity, and that his claim for
refugee protection was manifestly unfounded.
IV.
Issue in dispute
➢ Did the RPD err in its analysis of the applicant’s identity?
V.
Analysis
[17]
The question of the applicant’s identity is a
factual issue, reviewable on a standard of reasonableness (Dunsmuir v. New
Brunswick, 2008 SCC 9).
[18]
The applicant argues that the omissions,
contradictions and inconsistencies noted by the RPD between the applicant’s
oral testimony and his written testimony, as well as the evidence submitted, do
not relate to essential elements in the claim for refugee protection and are
therefore not significant enough to justify a negative finding.
[19]
However, it is well established in case law that
a refugee claimant has a fundamental obligation to establish his or her
identity, otherwise the application must be denied (Yip v. Canada (MEI),
70 FTR 175, at paragraph 7; Najam v. Canada (MCI),
2004 FC 425, at paragraph 16).
[20]
Despite the considerable number of documents
submitted to this effect, the fact remains that it is impossible to determine
the applicant’s identity.
[21]
He submitted two passports: one is valid,
supposedly issued under a false name; the other, expired, under his real name.
He also stated at the hearing that he holds a valid passport issued in his real
name that he left in the Congo. According to what appears on his forms, the
passport issued under a false name was his only valid passport, suggesting
that: a) it was his genuine passport; and b) he held no other valid
travel documents. He also refused to make a reasonable effort to obtain the
passport left in the Congo, despite the fact that his wife apparently could
have easily sent it to him. It was therefore not unreasonable for the RPD to
conclude that it was impossible to establish the applicant’s identity based on
his passports and that his credibility had thus been affected.
[22]
Moreover, after reviewing his testimony, it
appears that the applicant also does not know who he is: he is unable to
explain the inconsistencies as to how many children he has, how many spouses he
has, his marital history, or even his employment. Contrary to what the
applicant affirms, these are not minor, peripheral details on the application;
rather, they form the very core of his identity. Also note that his employment
is directly linked to the basis for his claim for refugee protection.
[23]
Under the circumstances, the RPD’s decision is
entirely reasonable.
VI.
Conclusion
[24]
The application for judicial review is
dismissed. The applicant failed to establish his identity on the balance of
probabilities.
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