Docket: IMM-3557-15
Citation: 2016 FC 584
Ottawa,
Ontario, May 26, 2016
PRESENT: The Honourable Madam Justice
Heneghan
BETWEEN:
DJENEBA SOW
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Ms. Djeneba Sow (the “Applicant”) seeks judicial
review of a decision of the Immigration and Refugee Board, Refugee Appeal
Division (the “RAD”), dated July 17, 2015. In that decision, the RAD confirmed
the decision of the Immigration and Refugee Board, Refugee Protection Division
(the “RPD”) whereby the Applicant’s claim for protection pursuant to section 96
and subsection 97(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”) was dismissed.
II.
BACKGROUND
[2]
The Applicant sought protection under the Act on
the basis of her identity as a citizen of Mauritania who feared being killed or
forced into slavery, if returned to her country of nationality. She claimed
that she had been enslaved for a seven-year period during which she had been abused
and raped by her captors.
[3]
The RPD did not believe that the Applicant was
credible with respect to her evidence establishing identity. It found that she
had not established her identity as a citizen of Mauritania and said the
following at paragraph 18 of its decision:
The panel finds
that the claimant has not established her personal or national identity and has
not made reasonable attempts to do so. In addition, the panel assigned a
significant negative credibility inference to the claimant’s testimony in
support of her identity and nationality.
[4]
Upon her appeal to the RAD, the Applicant sought
to introduce new evidence consisting of the following:
-
the affidavit of Germaine Ngono, a social worker,
dated November 8, 2013;
-
the affidavit of Ziah Sumar, an articling
student employed by the Applicant’s Counsel, dated November 12, 2013;
-
an email from Counsel for the Applicant to the
Consulate of Mauritania dated November 1, 2013;
-
an email from Counsel for the Applicant to the
Consulate of Mauritania date November 11, 2013; and
-
the affidavit of Emre Esensoy, law clerk
employed by the Applicant’s Counsel, dated May 7, 2014.
[5]
In conjunction with her efforts to introduce new
evidence, the Applicant requested an oral hearing.
III.
THE DECISION OF THE RAD
[6]
The RAD addressed itself to subsection 110(4) of
the Act. It determined that the first item of new evidence, the affidavit of
Germain Ngono, tendered to support the Applicant’s identity, was admissible
because it purported to address issues that arose during the RPD hearing.
However, the RAD assigned this document little evidentiary weight because it
did not provide independent evidence to establish the Applicant’s identity.
[7]
In considering the second item, that is the
affidavit of an articling student employed by Counsel for the Applicant, the
RAD found that it did not provide evidence to confirm the identity of the Applicant
and assigned it very little weight.
[8]
The RAD accepted items three and four, that is
emails, as new evidence, on the basis that the emails described efforts of the
Applicant’s Counsel to obtain further information about the identity of the Applicant.
At paragraph 29, the RAD expressed its own opinion about the proposed new
evidence as follows:
The RAD finds that
the proposed new evidence (items one to four) provide evidence of the
Appellant’s activities to locate her original birth certificate or obtain
replacement identity documents. These documents have adduced no persuasive
evidence to support the identity of the Appellant. The RAD will consider and
address the Appellant’s inability to obtain replacement identity documents with
“the merits of the appeal” below.
[9]
The fifth item, the affidavit of Emre Esensoy, was
not admitted as new evidence since the RAD found that the Applicant had not
provided an adequate explanation why this document could not have been provided
to the RPD.
[10]
The RAD proceeded to review its role, in light
of the decision of the Federal Court in Huruglica v. Canada (Minister of
Citizenship and Immigration), [2014] 4 F.C.R. 811.
[11]
The RAD accorded little weight to a photocopy of
the Applicant’s birth certificate which had been in evidence before the RPD and
rejected by that tribunal, as being evidence capable of proving her identity.
Ultimately, the RAD concluded that in its review of the record of proceedings
before the RPD, including review of an audio recording of the Applicant’s
hearing, that there was “sufficient evidence to support
the RPD’s overall determination” and dismissed the appeal.
IV.
SUBMISSIONS
A.
The Applicant
[12]
In this application for judicial review, the Applicant
argues that the RAD unreasonably determined that she had failed to establish
her identity. She submits that the RAD failed to adequately consider her
attempts to obtain documentation to establish her identity as required by section
106 of the Act.
[13]
Section 106 provides as follows:
|
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.
|
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.
|
[14]
The Applicant submits that the proper
application of section 106 requires the RPD to consider first whether there is
acceptable documentation to establish identity, and if there is not, to determine
if an applicant took reasonable steps to obtain that documentation; see
the decisions in Zheng v. Canada (Citizenship and Immigration)(2008) 74
Imm. L.R. (3d) 28 (F.C.) at paragraph 14 and Sow v. Canada (Minister of
Citizenship and Immigration) (2015), 472 F.T.R. 303.
[15]
The decision making power of the RAD is set out
in subsection 111(1) of the Act which provides as follows:
|
111 (1) After
considering the appeal, the Refugee Appeal
Division shall
make one of the following decisions:
|
111 (1) La
Section d’appel des réfugiés confirme la décision attaquée, casse la décision
et y substitue la décision qui aurait dû être rendue ou renvoie, conformément
à ses instructions, l’affaire à la Section de la protection des réfugiés.
|
|
(a) confirm the
determination of the Refugee Protection Division;
|
[EN BLANC/BLANK]
|
|
(b) set aside the
determination and substitute a determination that, in its opinion, should
have been made; or
|
[EN BLANC/BLANK]
|
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(c) refer the
matter to the Refugee Protection Division for re-determination, giving the
directions to the Refugee Protection Division that it considers appropriate.
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[EN BLANC/BLANK]
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[16]
In my opinion, this provision implicitly
authorizes the RAD to exercise certain functions of the RPD depending upon the
nature of the issue before the RAD. Since the RAD is mandated to set aside a
decision the RPD and substitute its own determination, it can interpret and
apply section 106.
[17]
The RAD found that it was reasonable to believe
that other methods were available to establish her identity but failed to
articulate what those methods were. The Applicant argues that this finding is
baseless and arbitrary and amounts to a reviewable error; see the decision in Sharfi
v. Canada (Minister of Citizenship and Immigration) (2005) 277 F.T.R. 104 (F.C.).
[18]
The Applicant also argues that the RAD’s
independent assessment of the photocopy of her birth certificate and the
affidavit of Imam Daouda Sy was unreasonable. According to the Applicant, the
RAD made inconsistent findings about the Applicant’s reason for photocopying
her birth certificate. She further submits that the RAD failed to apply the
presumption that a document is presumed to be genuine; see the decision in Rasheed
v. Canada (Minister of Citizenship and Immigration), 2004 FC 587.
[19]
The Applicant challenges the
little weight afforded to the affidavit of Imam Daouda Sy by the RAD. She
submits that the affidavit lends credibility to her identity and has value.
[20]
The Applicant also argues that the RAD breached
procedural fairness by failing to conduct an oral hearing despite the fact that
her credibility was a central issue. She submits the RAD made several negative
credibility findings without putting those concerns before her.
B.
The Minister of Citizenship and Immigration (the
“Respondent”)
[21]
The Respondent submits that the standard of
review of the RAD’s assessment of evidence is reviewable on the standard of
reasonableness; see Sow, supra and Singh v. Minister of Citizenship
and Immigration, 2014 FC 1022.
[22]
The Respondent argues that the Applicant bore
the burden of establishing her identity and the RAD reasonably determined that
she did not discharge that burden.
[23]
The Respondent submits that the RAD considered
the evidence about the Applicant’s efforts to obtain documents
establishing her identity and found those efforts were not reasonable. Contrary
to the Applicant’s submissions, the RPD did specify other avenues by which she
could obtain identity documents, including contacting government offices in
Mauritania. Further, the Respondent contends that the RAD does not need to
specify more avenues.
[24]
The Respondent argues that the RAD’s decision
was reasonable because its finding, that the Applicant had not established her
identity, was based upon the lack of credible documentation and the lack of
credible testimony.
[25]
In response to the Applicant’s argument that the
RAD made inconsistent findings about her birth certificate, the Respondent says
paragraph 42 of the decision is a typographical error.
[26]
The Respondent submits that the RAD reasonably rejected
the photocopy of the birth certificate; see the decisions in Petlyuchenko
v. Minister of Citizenship and Immigration, 2002 FCT 982 and Sedov v.
Minister of Citizenship and Immigration, [1999] F.C.J. No. 1667.
[27]
Finally, the Respondent argues that no breach of
procedural fairness arose from the failure to hold an oral hearing. Section
110(6) of the Act prescribes when the RAD may hold a hearing:
|
(6) The Refugee Appeal Division may hold a hearing if, in its
opinion, there is documentary evidence referred to in subsection (3)
|
(6) La section
peut tenir une audience si elle estime qu’il existe des éléments de preuve
documentaire visés au paragraphe (3) qui, à la fois :
|
|
(a) that raises a serious issue with respect to the credibility of
the person who is the subject of the appeal;
|
a) soulèvent une
question importante en ce qui concerne la crédibilité de la personne en
cause;
|
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(b) that is central to the decision with respect to the refugee protection
claim; and
|
b) sont
essentiels pour la prise de la décision relative à la demande d’asile;
|
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(c) that, if
accepted, would justify allowing or rejecting the refugee protection claim.
|
c) à supposer
qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou
refusée, selon le cas.
|
[28]
The Respondent submits that since the Applicant
failed to establish her identity, the RAD was not required to consider
the merits of her claim, including the credibility of the Applicant.
[29]
Subsequent to the hearing of this application for
judicial review on February 1, 2016, the Federal Court of Appeal delivered its
decision in Minister of Citizenship and Immigration v. Singh,
2016 FCA 96. Pursuant to a Direction issued on April 1, 2016, the parties were
given the opportunity to comment on the application of that decision to this
matter.
[30]
The Applicant filed further submissions on April
5, 2016 in which she argued that the decision in Singh, supra did
not apply to this proceeding as that decision addressed the admission of
evidence under section 110(4) of the Act.
[31]
The Respondent in a letter dated April 8, 2016
agreed that the Singh decision did not have an impact on the present
judicial review application.
V.
DISCUSSION
[32]
The Applicant raises two discrete issues in this
application. The first, an issue of procedural fairness, is reviewable on the
standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43. The second,
broadly speaking, applies to the ultimate conclusion of the RAD, that she had
failed to establish her identity; that is a question of fact reviewable on the
standard of reasonableness; see the decision in Sow, supra at
paragraph 9.
[33]
The Applicant’s submissions about breach of
procedural fairness turn on the refusal of the RAD to convene an oral hearing
of her appeal, after it had decided to accept the new evidence presented. The
acceptance of new evidence by the RAD does not automatically mean that an oral
hearing will be accorded. I referred to subsection 110(6) of the Act,
which is set out above.
[34]
In my opinion, this provision gives the
RAD discretion whether to allow an oral hearing, when it accepts new evidence.
Since it has a discretion, it is not obliged to conduct an oral hearing,
arguably on the grounds that it is satisfied that it can determine the relevant
issue without a hearing.
[35]
I am not persuaded that a breach of procedural
fairness arose from the RAD’s decision to proceed without an oral hearing.
[36]
The next question is whether the RAD’s ultimate
conclusion, that the Applicant had failed to establish her identity with
reliable and probative evidence, is reasonable. In my opinion, it is.
[37]
The RAD considered the photocopy of the birth
certificate presented by the Applicant. In my opinion, the presumption of
validity that generally applies to official government documents does not apply
to a photocopy of such a document.
[38]
I have reviewed the affidavits that were
presented by the Applicant. I see no reviewable error in the findings of the RAD
that the affidavits were insufficient to overcome the concerns about the
Applicant’s identity.
[39]
While the new evidence presented by the
Applicant shows her efforts to obtain further documentation, I am not persuaded
that the RAD erred in its assessment of that evidence. In my opinion, the
Applicant seeks to have this court re-weigh evidence that was before the RAD,
which is not the appropriate role of a reviewing court; see the decision in Khosa,
supra at paragraph 61.
[40]
The jurisprudence is well established
that the failure of an applicant to establish his or her identity is fatal to
further consideration of a claim for protection; see the decisions in Rahal
v. Canada (Minister of Citizenship & Immigration), 2012 FC 319 and Flores
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1138.
[41]
In the result, I am satisfied that no
reviewable error has been shown and this application for judicial review is
dismissed, there is no question for certification arising.
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