Docket: IMM-405-16
Citation:
2016 FC 978
Ottawa, Ontario, August 29, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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KRISHNA PRASAD
POUDEL
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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 Minister appealed the positive decision of
the Refugee Protection Division [RPD] regarding Mr. Poudel’s claim for
protection to the Refugee Appeal Division [RAD]. The RPD determined that Mr.
Poudel was credible and, as he claimed, was a citizen of Nepal, and would be at
risk if he returned there.
[2]
The Minister submitted new evidence with the
appeal that raised questions regarding both the credibility and the nationality
of Mr. Poudel. Specifically, the Minister tendered biometric evidence from the
USA and the UK which established that Mr. Poudel used an Indian Passport
bearing the name Sandil, for non-immigrant visa applications in 2013 from New
Delhi for both the USA and the UK. The evidence established that Mr. Poudel
was issued visas to enter the USA in December 2013 and May 2014. Moreover, a
search of the CBSA FOSS database revealed that Mr. Poudel also made an
application and was issued a temporary visa to Canada from New Delhi in August
2013 under the name Sandil. He attempted to enter Canada a second time in
September 2013, using that visa, but was denied entry when he was found to be
in possession of pornographic videos of children and other videos depicting sex
between persons and animals.
[3]
Mr. Poudel entered Canada in January 2015 using
the passport of Parmjeet Singh. Before the RPD, he testified that he was not
Parmjeet Singh but was Krishna Prasad Poudel. He was in possession a Nepalese
passport in that name.
[4]
The RAD allowed the Minister’s appeal,
finding “based on the totality of the evidence, that
[Mr. Poudel] has failed to provide sufficient reliable documents and evidence
to establish his identity as required by section 106 of the IRPA and Rule 11 of
the Refugee Protection Division Rules.”
[5]
Mr. Poudel states that the sole issue in this application
is “whether the RAD erred in finding the [he] failed to
establish his identity.” The issue, properly stated, is whether the
RAD’s finding that Mr. Poudel failed to establish his identity was a reasonable
decision based on the record before it, because, the standard of review
applicable to the decision of the RAD is reasonableness.
[6]
Mr. Poudel submits that the RAD’s finding “on a balance of probabilities, that the Indian passport in
the name of Sandil used by [Mr. Poudel] was not a fraudulent passport but
rather was a genuine passport issued to him” is unreasonable. The RAD
based that decision, in part, on its observation that the passport in question
had been vetted by immigration authorities from at least four countries in the
application process for visas and had been further vetted by border control
agencies of three countries when he used the passport to enter those
countries. The RAD finds “it reasonable to expect
that, if the passport was fraudulent as [Mr. Poudel] has alleged, it would have
been detected by at least one of the countries involved as a fraudulent
passport.” I am not persuaded that the RAD’s finding and the reasoning
behind it is unreasonable.
[7]
Mr. Poudel submitted additional documents to the
RAD to establish and confirm that he is a citizen of Nepal. These were given
no weight by the RAD in light of Mr. Poudel’s evidence that he has obtained and
used fraudulent documents in the past, and because fraudulent document
production in Nepal is prevalent. As the RAD further noted “even if the documents tendered … are genuine documents, they
do not establish that he did not obtain them through unlawful means or that he
does not hold additional identities in other countries such as India.”
I can find no fault with this reasoning in light of the conduct of Mr. Poudel
in obtaining and using documents when travelling to other countries.
[8]
Had Mr. Poudel disclosed these other identity
documents and his trips outside Nepal in his Basis of Claim form or at the RPD
hearing, he may have been able to persuade the RAD of his honesty. However, he
did not, and the RAD did not accept his explanation that his adviser told him
not to disclose it earlier but to do so at the RPD. In light of this advice,
it was not unreasonable to find his response, that he did not disclose this
information at the RPD because he was not asked questions concerning the issue,
not to be credible. I agree with the RAD, and this finding is not challenged
by Mr. Poudel, that his explanation lacks credibility when he signs a Basis of
Claim form attesting that it is “complete, true and
correct.”
[9]
It is hardly surprising and most certainly is
not unreasonable when three different passports have been used, and a claimant
has failed to disclose that fact, that his identity is found not to have been
established.
[10]
Neither party proposed a question for
certification nor is there one.
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