Date: 20160721
Docket:
IMM-5901-15
Citation: 2016 FC 858
Ottawa, Ontario, July 21, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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MARTIN RUTY
NGEZE
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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
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act] of the decision of the Refugee Protection Division of the Immigration
and Refugee Board of Canada [RPD], dated December 8, 2015, wherein it determined
that the Applicant is not a Convention refugee nor a person in need of
protection under sections 96 and 97 of the Act.
II.
Background
[2]
The Applicant, Martin Ruty Ngeze, is a Congolese
citizen from the North Kivu Province, located in the eastern part of the
Democratic Republic of the Congo [DRC].
[3]
The Applicant alleges he is at risk of
persecution in the DRC on the basis of his ethnicity as a Congolese Tutsi. He fled
to Rwanda in 2000 due to on-going conflict and violence in the DRC, returning on
two occasions: in 2005 and again in 2010.
[4]
While in Rwanda, the Applicant claims to have
been kidnapped by the Rwanda Military Intelligence Department and was
subsequently handed over to the M23 rebel group to fight against the Congolese
armed forces. The Applicant escaped, crossed the border into Uganda, and travelled
to Canada via the United States using a fraudulently obtained Rwandan passport.
The Applicant fears persecution from the M23 rebels, the Congolese Militia, the
Democratic Forces for the Liberation of Rwanda [FDLR], and the Rwanda Military
Intelligence Department.
[5]
In October 2012, the Applicant filed a claim
with the RPD seeking refugee protection.
[6]
By decision dated December 8, 2015, the RPD
rejected the Applicant’s claim. The determinative issues were identity and
credibility. The RPD found that the Applicant had not met his burden of proof
under Rule 11 of the Refugee Protection Division Rules, SOR/2012-256, as
he had not provided credible documents establishing his personal or ethnic
identity.
[7]
The RPD noted serious credibility concerns and
dismissed the claim as having no credible basis pursuant to subsection 107(2)
of the Act, finding there was no credible or trustworthy evidence upon which it
could have made a favourable decision.
[8]
At the hearing, the Applicant provided a
driver’s license from the DRC issued in 2005, and a birth certificate issued in
2010 to establish his Congolese identity.
A.
Driver’s Licence
[9]
The RPD concluded that the Applicant’s driver’s
licence was fraudulent. It found the Applicant’s testimony that he obtained the
license by going to police in the DRC contradicted his testimony that when he
returned to the DRC from Rwanda, he did so in hiding. Accordingly, the RPD drew
a negative credibility inference.
[10]
The RPD also questioned the authenticity of the
driver’s licence itself, as it bore the heading of the Republic of Zaire,
despite being issued eight years after the Republic of Zaire was renamed to the
DRC. Additionally, the RPD noted that the driver’s licence contains internal
inconsistencies, such as the fact its cover page indicates it was valid from
2005 to 2010, yet there are licence renewals elsewhere in the document from
2005 to 2006 and from 2006 to 2007.
[11]
The RPD went on to note that the Applicant
listed the driver’s licence as authentic in his refugee claim form and attested
to its authenticity during the hearing. By presenting the document as
authentic, the RPD found that the Applicant had misrepresented a fact that had
a direct bearing on the issue of his identity, and therefore made a negative
credibility assessment. Moreover, the RPD found the Applicant’s testimony with
respect to how he obtained his driver’s licence inconsistent with information
in the National Documentation Package [NDP].
B.
Birth Certificate
[12]
The RPD also concluded that the Applicant’s
birth certificate was a fraudulent document. It drew a negative credibility
inference from the Applicant’s testimony that the information in his birth
certificate was obtained from Congolese registries, which record personal
information of its citizens, as the NDP made no mention of such registries.
Additionally, the RPD noted that the birth certificate contained several French
grammar mistakes, the template and content of the document was inconsistent,
and how it had been obtained was unclear and unconvincing.
[13]
Again, the RPD noted that the Applicant had listed
the birth certificate as authentic in his claim form and later confirmed its authenticity
during the hearing, which for the same reasons provided above, negatively
impacted his credibility.
C.
Lack of Other Identity Documents
[14]
The RPD drew a further negative credibility
inference from the Applicant’s testimony that he did not know about an
attestation of lost documents, given that he had provided his brother’s
attestation of lost documents in the record. The RPD also concluded that during
the three years between filing his Personal Information Form [PIF] and the date
of the RPD hearing, the Applicant could have taken steps to obtain a recognized
piece of official identification, but failed to do so. Despite information in
the NDP setting out the difficulties associated with obtaining documentation in
the DRC, the RPD concluded the Applicant had not taken reasonable steps to
obtain identity documentation, and thus had failed to establish his personal
and ethnic identity.
D.
Brother’s Documentary Evidence
[15]
The RPD considered documentary evidence filed by
the Applicant post-hearing, which consisted of photocopied documents pertaining
to the Applicant’s brother, who had gained refugee status in Canada in 2009.
That evidence includes: a signed statement by the brother; two identity
documents from the DRC; a letter about the brother from the United Nations High
Commissioner for Refugees [UNHCR] in Rwanda; the RPD decision accepting the
brother’s refugee claim in June 2009; and a further document from the UNHCR regarding
refugees in Rwanda. The RPD determined that, in light of the credibility
concerns with Applicant, the documents were insufficient to establish the
Applicant’s personal, national and ethnic identity, as the only link between the
documents and the Applicant was his own testimony.
E.
The Applicant’s Testimony
[16]
The RPD further found that the Applicant’s
abundant testimony about the situation in Rwanda did not suffice to establish
his identity. Moreover, the RPD had no way to assess the Applicant’s knowledge
of Kinyarwanda – the language of the group to which the Applicant says he
belongs – as he did not testify in that language.
F.
Rwandan Documents
[17]
To establish his residence in Rwanda, the
Applicant provided a letter from Mount Kenya University confirming his
admission and a fees clearance card. The RPD found that the Mount Kenya
University letter was insufficient to establish the Applicant was in Rwanda due
to inconsistencies between the document and the Applicant’s testimony. The RPD
found that the Applicant did not establish he was a university student in
Rwanda, or how he was able to register at the university without identity
documents and drew a negative credibility inference.
[18]
The RPD also identified irregular font features
on the fees clearance cards and noted that the card templates were
inconsistent. The RPD went on to find that the Applicant provided inconsistent
evidence with respect to the date of his alleged arrival in Rwanda.
G.
Re-Availment
[19]
The Applicant had returned twice to the DRC,
specifically to the area from which he fled, which the RPD found contradicted
his alleged subjective fear of persecution.
H.
Failure to Claim Elsewhere
[20]
The RPD further concluded that the Applicant’s
explanation for not making a refugee claim in Rwanda – because his parents did
not want their children to claim in Rwanda – was contradicted by evidence that his
brother made a claim in Rwanda with the UNHCR. Accordingly, the RPD held that
the Applicant’s failure to make a refugee claim in Rwanda was unreasonable and
drew a negative credibility inference on this basis.
III.
Issues
[21]
The issues are:
- Did the RPD
breach the Applicant’s right to procedural fairness?
- Is the RPD’s
decision reasonable?
IV.
Standard of Review
[22]
Issues of procedural fairness are reviewed on
the correctness standard.
[23]
The RPD’s identity findings are fact-driven and
entitled to deference, and are thus reviewed on the standard of reasonableness (Liu
v Canada (Minister of Citizenship and Immigration), 2012 FC 377 at para 8).
The standard of review to be applied to the RPD’s credibility findings is also reasonableness
(Triana Aguirre v Canada (Minister of Citizenship and Immigration), 2008
FC 571 at para 14).
V.
Analysis
[24]
As a preliminary matter, the Respondent objects
to various paragraphs of the Applicant’s affidavit (paragraphs 6, 13-24 and
26-28) and the affidavit of the Applicant’s brother (paragraphs 5 and 8-16) on
the basis that they improperly contain argument or opinion, the interpretation
of evidence, or evidence not before the RPD.
[25]
In response, the Applicant submits that the Court
should consider this evidence, as it falls within one of the exceptions to the
general rule against the receipt of evidence not before the administrative
decision-maker in an application for judicial review (Association of
Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at paras 14-20). Specifically, the
Applicant claims the information in the affidavits “goes
to the root of the breach of procedural fairness in the case at bar”.
[26]
The material provided in the affidavits does not
fall within one of the exceptions to the general rule that the evidentiary
record before the Court on judicial review is restricted to the evidentiary
record that was before the decision-maker. The impugned paragraphs are
argumentative in nature, contain opinion evidence, and interpret evidence
previously considered by the RPD.
[27]
I have considered this evidence and have given
the impugned paragraphs limited weight.
A.
Did the RPD breach the Applicant’s right to
procedural fairness?
[28]
The Applicant submits that the RPD breached his
right to procedural fairness by failing to provide him or his brother an opportunity
to address concerns with the post-hearing evidence in support of the
Applicant’s identity.
[29]
I disagree. As stated by the Respondent, the
RPD’s concern with the post-hearing evidence was not with the documents
themselves, but was instead that the only evidence linking the documents to the
Applicant was the Applicant’s testimony – testimony found not to be credible. This
finding did not require an opportunity to respond, and I do not find that the
RPD breached the Applicant’s right to procedural fairness.
[30]
Furthermore, the post-hearing evidence was
relevant to the underlying issue of identity, which is always at issue in
section 96 and 97 hearings, is essential to any protection claim, and must be
established by the Applicant on a balance of probabilities. This would have
been known by Applicant’s counsel and the RPD’s finding that this further
documentation did not establish the Applicant’s identity did not necessitate an
opportunity to respond (Behary v Canada (Citizenship and Immigration),
2015 FC 794 at para 18). The Applicant was informed at the RPD hearing that his
identity was at issue, and was given an opportunity to provide written
evidence, post-hearing, to address this very point.
B.
Is the RPD’s decision reasonable?
[31]
The Applicant submits it was unreasonable for
the RPD to not consider his brother’s supporting documentation. The Applicant
relies on decisions of this Court which hold that the more relevant the
evidence, the more incumbent it is on the decision-maker to address the
evidence in its reasons, especially if the information directly contradicts the
RPD’s findings (Cepeda-Guiterrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at para 17; Ozdemir v Canada (Minister
of Citizenship and Immigration), 2001 FCA 331 at para 9).
[32]
The Applicant also submits that the RPD erred in
its assessment of his identity documents. He claims the RPD unreasonably
rejected his explanation for why his driver’s licence was issued by the
Republic of Zaire instead of the DRC. Moreover, further NDP evidence not
addressed by the RPD speaks to the difficulties in obtaining official identity
documents in the DRC.
[33]
The Applicant further argues that care must be
taken when making plausibility findings not to impose cultural ideals on the
situation at hand, and that in this case the RPD’s plausibility findings failed
to meet this standard (Ghannadi v Canada (Minister of Citizenship and
Immigration), 2014 FC 879 at para 33).
[34]
Finally, the Applicant points to several factual
errors concerning his cultural background and ethnicity, which he says are so
erroneous that this Court should grant relief under subsection 18.1(4)(d) of
the Federal Courts Act, RSC 1985, c F-7, as being made in a perverse or
capricious manner or without regard for the material before it. The Applicant
also says the RPD’s decision is unreasonable for failing to consider the merits
of his claim, despite its finding on the issue of credibility.
[35]
The Applicant had the burden of establishing his
identity through the production of acceptable documentation, failing which he
must provide a reasonable explanation for its absence (section 106 of the Act).
It is well established that the failure to establish identity is fatal to
further consideration of a claim for protection. The issues of identity and
credibility lie at the very core of the RPD’s expertise, and the Court must be wary
of second-guessing the RPD’s findings in this regard (Rahal v Canada
(Minister of Citizenship & Immigration), 2012 FC 319 at paras 47, 48 [Rahal]).
[36]
I find that based on the evidence in the record,
the RPD’s negative credibility determination with respect to the Applicant’s
identity was reasonable, given:
- inconsistencies
between the Applicant’s testimony and the documents he provided;
- inconsistencies
between the Applicant’s testimony and the NDP documents;
- the Applicant’s
decision not to claim refugee status in Rwanda;
- the Applicant’s
voluntary returns to DRC; and
- the finding that
the Applicant had provided fraudulent documents in support of his claim.
[37]
These inconsistencies and credibility concerns
went to the heart of the Applicant’s claim, pertaining most importantly to his
identity as an alleged DRC national – a crucial element to his refugee
protection claim – failing which the basis upon which he fears persecution cannot
be established. The RPD provided cogent reasons for not accepting the
Applicant’s explanations, and its conclusion the Applicant had not credibly
established his identity was reasonable.
[38]
Contrary to the Applicant’s argument that the
RPD erred in not addressing key credible identity documentation from his
brother (Mishel v Canada (Minister of Citizenship and Immigration), 2015
FC 226 at para 29), the RPD did not fail to consider the post-hearing evidence.
Instead, it assessed the evidence, but refused to give it significant weight in
light of the Applicant’s limited credibility.
[39]
It was reasonable for the RPD to determine that the
only link between the post-hearing evidence and the Applicant was the
Applicant’s testimony, found not credible, and thus provide it little weight.
It was also reasonable for the RPD to conclude that the post-hearing evidence
was insufficient to overcome its serious credibility concerns and establish the
Applicant’s personal, national and ethnic identity.
[40]
Although the Applicant points to additional
evidence before the RPD which he claims provides a link to his brother’s
statement in support of his identity, such as the 2009 decision granting his
brother refugee status and the Applicant’s attestation to such in his PIF, this
evidence came from the Applicant, not an independent witness or by way of sworn
testimony.
[41]
Ultimately, the Applicant is asking the Court to
reweigh the post-hearing evidence and substitute its own finding, which is not
the Court’s task on reasonableness review (Hughes v Canadian Airport workers
Union (STCA Canada), 2012 FCA 236 at para 8).
[42]
As well, I do not find that the RPD unreasonably
assessed the Applicant’s identity documents. The RPD provided ample reasons for
its determination that the driver’s licence was fraudulent, including: the
Applicant’s contradictory testimony that he obtained the licence by going to
the DRC police, despite also testifying that he was hiding from DRC
authorities; that the licence was issued by the Republic of Zaire eight years
after the Republic of Zaire was renamed to the DRC; inconsistencies with the
driver’s licence itself; information in the NDP about the prevalence of
fraudulent identity documents in the DRC; and information in the NDP which
contradicted the Applicant’s testimony as to how he had obtained the driver’s
licence.
[43]
Similarly, with respect to the Applicant’s birth
certificate, the RPD noted it is not among the documents recognized as
establishing identity by DRC authorities. The RPD also found the document to be
fraudulent given that the Applicant’s testimony regarding the source of the
information contained in the birth certificate was inconsistent with the
document itself and the information set out in the NDP.
[44]
Though the RPD did appear to erroneously specify
the Applicant’s claimed ethnicity in describing the allegations in the
decision, it is evident that this discrepancy did not have any bearing on the
RPD’s analysis with respect to the authenticity of the Applicant’s identity
documents or overall. It was not a perverse or capricious error that impacted
the decision and RPD’s analysis in any material way.
[45]
Determinations of credibility and identity fall
within the heart of the RPD’s expertise, and in light the RPD’s thorough assessment
of the evidence, and the deference to which the RPD is entitled in determining such
issues, the RPD’s decision was reasonable (Rahal, above, at para
48).
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
There is no question for certification.
"Michael D. Manson"
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