Docket: IMM-2254-16
Citation:
2017 FC 125
[ENGLISH
TRANSLATION]
Ottawa, Ontario, February 1, 2017
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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NANOUCHE MOKILI
ANTO
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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.
Nature of the case
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c. 27 [IRPA], against a decision by the Refugee Appeal Division
[RAD] of the Immigration Review Board of Canada, dated May 16, 2016, which
confirmed a decision by the Refugee Protection Division [RPD] that found that
the applicant was neither a Convention refugee or a person in need of
protection.
[2]
For the reasons detailed hereinafter, I do not
concur with the applicant’s arguments and this application will be dismissed.
II.
Facts
[3]
The applicant states that she is a citizen of
the Democratic Republic of the Congo [DRC]. She alleges that she was arrested
during a peaceful political protest organized by the Union for Democracy and
Social Progress [Union pour la Démocratie et le Progrès Sociale; UDPS] and was
imprisoned for two days. She was then allegedly taken to a private residence
belonging to the governor of the city of Kinshasa, who allegedly forcibly
confined her and repeatedly raped her over three days. The governor allegedly
also threatened her with death several times during this same period. The
applicant alleges that she was able to escape thanks to one of the governor’s
security guards whom a friend of her mother knew. She then allegedly fled to
Canada with a fake Belgian passport and accompanied by a Canadian of Congolese
background. Upon arriving in Canada, the applicant claimed refugee status.
III.
Decision under judicial review
A.
RPD decision
[4]
The RPD found that despite the possibility that
the applicant is of Congolese background, she failed in establishing her
identity in a satisfactory manner. That is why the RPD did not review the
merits of her refugee claim. In its reasons, the RPD made certain findings
regarding the documents filed by the applicant that sought to establish her
identity, particularly: a passport from the DRC, a voter’s card, a birth
certificate, an individual marital status document, and a certificate of
nationality. Given that those documents were key elements in the issues raised
by the applicant, I will briefly review the RPD’s reasons for each of them:
1. The passport and the voter’s card: The
RPD noted the analysis reports that were prepared by an expert from the Canada
Border Services Agency [CBSA] found that the material of the applicant’s
passport was authentic, but there was evidence that the passport had undergone
significant alterations, including: (a) dirt and debris under the laminate; (b)
double letters; (c) the fragmented blue coats of arms; and (d) the name,
surname and read zone that were allegedly cut from other documents and affixed
to the biographical data page. In light of those observations, the expert found
that the passport had been falsified.
2. The voter card: The applicant alleged
that she used this card to obtain her Congolese passport. The RPD noted the
reports from the CBSA expert that found that the voter card was counterfeit for
the following reasons: (a) the corners of the material, including the sleeve,
were cut by hand; (b) poor basic printing technique was used; (c) micro-print
was either non-existent or of poor quality; and (d) the material reacted
strongly to the ultraviolent light.
3. The birth certificate: According to the
applicant’s testimony, the document was allegedly obtained by her mother in the
district of Ngaliema while the applicant was in Canada. However, the RPD noted
that during that same period, her written account told of her imprisonment at
the residence of the governor of Kinshasa, but not of her presence in Canada.
The RPD was not satisfied that the certificate was authentic because the stamp
number at the bottom of the document was not identical to the one at the top,
while the stamp numbers at the top and bottom of individual marital status
document were identical. Thus, the RPD found that the applicant’s credibility
was undermined by those irregularities.
4. The individual marital status document:
According to the applicant’s testimony, the document was also allegedly
obtained through her mother and using a copy of her birth certificate. The RPD
noted that neither the birth certificate nor the individual marital status
document had security features or photographs that could link them to the
applicant. However, the RPD noted that the addresses that were listed on the
birth certificate and the individual marital status document were different.
The applicant explained this discrepancy by the fact that her mother owned two
houses. The RPD did not accept this explanation because it did not match her
written statement. Therefore, the RPD found that the applicant’s testimony was
not credible in that regard.
- Certificate of nationality: This document was allegedly obtained by the applicant’s mother
using a copy of her birth certificate. The RPD noted that the certificate
of nationality shows a different address than what is on the birth
certificate. The RPD also noted the documentary evidence explaining that
certificates of nationality from the DRC normally make mention of the
documents that were used to establish the nationality of applicants, which
was not the case with the applicant’s certificate.
[5]
Therefore, the RPD gave no probative value to
those five documents.
[6]
The RPD also noted that the applicant was no
longer in possession of the fake Belgian passport used to reach Canada. The RPD
also stated that it was implausible that the applicant did not know certain
items of information regarding the man who allegedly helped her reach Canada.
[7]
For all those reasons, the RPD dismissed the
applicant’s testimony, as it was deemed to be not credible.
B.
The RAD’s decision
[8]
The RAD first reviewed the issues as to (i) the
admissibility as evidence of two documents that were not submitted before the
RPD and (ii) the holding of a hearing. The RAD found that the documents were
inadmissible because they did not meet any of the admissibility criteria under
subsection 110(4) of the IRPA and, as a result, it was judged that there
was no need to hold a hearing under subsection 110(6) of the IRPA.
[9]
The RAD then reviewed the evidence on record
and, by stating roughly the same reasons as the RPD, found that the applicant
had not established her identity, thus undermining her credibility. Since her
identity could not be established, the RAD did not analyze the merits of her refugee
claim.
IV.
Issues
[10]
The applicant claims that (a) the rejection of
additional evidence and refusal to grant that a hearing be held; (b) the Panel’s
finding regarding her identity; and (c) the Panel’s refusal to review the
merits of her claim, were all unreasonable.
V.
Standard of review
[11]
The standard of review that applies to RAD
decisions for questions of fact and mixed questions of fact and law is
reasonableness (Canada (Minister of Citizenship and Immigration) v Huruglica,
2016 FCA 93 at para 32 and 35; Yeboah v Canada (Minister of Citizenship
and Immigration), 2016 FC 780 at para 19). The standard of review that
applies to rejecting additional evidence is also reasonableness (Canada
(Minister of Citizenship and Immigration) v Singh, 2016 FCA 96 at para 29
[Singh]).
VI.
Analysis
A.
Rejection of additional evidence and the holding
of a hearing
[12]
Subsection 110(4) of the IPRA states that for
appeals before the RAD, only the following evidence is admissible: (a) evidence
that arose after the rejection of their claim; (b) evidence that was not
reasonably accessible at the time of the claim before the RPD; or (c) evidence
that at the time of the claim before the RPD was available, but could not
reasonably have been expected in the circumstances to be presented, at the time
of the rejection. The Court of Appeal recently established that the conditions
for admissibility under subsection 110(4) of the IRPA are inescapable and
leave no room for discretion on the part of the RAD (Singh at para 35).
[13]
Considering that the police clearance
certificate was issued on March 16, 2015, that the applicant had filed as
evidence other documents that were obtained on approximately the same date,
that the RPD’s decision rejecting the applicant’s claim was made in August 2015,
and that before, during and after the hearing before the RPD, the applicant
could not have ignored the importance of establishing her identity, the RAD
reasonably found that the certificate was not admissible in accordance with
subsection 110(4) of the IRPA.
[14]
In addition, in accordance with subsection 110(6)
of the IRPA, having no additional evidence to consider, the RAD
reasonably found that there was no need to hold a hearing.
B.
Was the finding regarding the applicant’s
identity reasonable?
[15]
In accordance with section 11 of the Refugee
Protection Division Rules, SOR/2012-256 [Rules], the “claimant must provide acceptable documents establishing
their identity”. In addition, in accordance with section 106 of the
IRPA, if the refugee claimant is not able to provide acceptable documents to
establish identity, has not provided a reasonable explanation for the lack of
documentation and has not taken reasonable steps to obtain it, the RPD must
take credibility into account in its analysis.
[16]
The applicant maintains that the word “acceptable” in section 11 of the Rules, although
not defined, can only suggest that the submitted documents shall be “perfect”. According to her, the problems identified
by the CBSA are merely the result of administrative shortcomings in the DRC and
should not act as the basis for refuting the presumptions of validity and
authenticity of documents. Similarly, the applicant finds that the RPD had made
an error by assessing identity-related documents based solely on Canadian
standards, thus ignoring administrative difficulties and realities in the DRC.
According to the applicant, such an approach shows a lack of flexibility and
sensitivity to the realities of certain developing countries, particularly the
DRC.
[17]
I reject the applicant’s arguments alleging that
analyses by the RAD and RPD regarding identity documents are unreasonable. It
is well-established that the issue of identity is central to and even the
expertise of the RPD and the Court should therefore show restraint regarding
RPD decisions in this issue (Dai v Canada (Minister of Citizenship and
Immigration), 2015 FC 723 at para 20).
[18]
Identity is an question of fact that is subject
to the balance of probabilities standard of review. The burden on the refugee claimant
to submit acceptable documents that establish identity is heavy (Malambu v
Canada (Minister of Citizenship and Immigration), 2015 FC 763 at
para 41). In this case, the RAD applied the appropriate standard of proof.
Unlike the applicant’s argument, nothing indicates that either the RPD or RAD
were looking for evidence that was “perfect” or “beyond all doubt”. In addition, the reasoning shared
by the RAD was supported by certain evidence that was relevant to the applicant’s
identity, including the expert analysis reports, while considering the applicant’s
oral testimony. Unlike the applicant’s argument, the findings are entirely
reasonable given all the evidence.
[19]
The applicant clearly notes that there is a
presumption of authenticity that in principle applies to all documents
delivered by a governmental authority. However, that presumption can be refuted
when there when there are valid reasons to doubt the authenticity of the documents
(Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC
105 at para 7), and in this case, there were many of them. In fact,
jurisprudence recognizes several valid and legitimate reasons for doubting the
authenticity of documents, thus undermining their credibility and plausibility
(see for example Bagire v Canada (Minister of Citizenship and Immigration),
2013 FC 816; Jackson v Canada (Minister of Citizenship and Immigration),
2012 FC 1098).
C.
Was it reasonable for the RAD not to proceed
with a review of the merits of the claim?
[20]
When a refugee claimant is unable to establish
identity, a negative conclusion as to credibility “will
almost inevitably be drawn”, and thus be “fatal”
to a claim (Barry v Canada (Minister of Citizenship and Immigration),
2014 FC 8 at paras 21–22). The Court’s jurisprudence unambiguously teaches us that
identity is a determinative issue and no analysis of the merits of a claim is
required if a refugee claimant’s identity is not proven (Daniel v Canada
(Minister of Citizenship and Immigration), 2016 FC 1049 at para 28).
[21]
In short, the ability to establish identity is
an important facet of the Canadian legal framework in immigration matters. This
is an issue that can be fatal to a refugee claim.
[22]
Naturally, there may be
circumstances under which a claimant is not able to establish identity, for
example, for reasons of health, age, statelessness, difficulties encountered in
a failed state or even childhood trauma (this list is not comprehensive). If
the RPD is satisfied that the evidence supports such facts, identity can
definitely be assessed and considered from another angle. That was moreover the
case in Abdullahi v Canada (Minister of Citizenship
and Immigration), 2015 FC 1164 at para 9, in
which Hughes J. found that the administrative
decision regarding identity was unreasonable, given that the documentary
evidence and jurisprudence confirmed that it was almost impossible to obtain
documents from the governmental authorities in Somalia to confirm identity. In
this case, no evidence indicated that this was so.
[23]
In any regard, it remains
that findings made regarding identity are factual in nature and subject to some
deference from the Court. Thus,
given the applicant’s failure to establish her identity, the RPD and RAD
reasonably refused to review the merits of her claim.
VII.
Question for certification
[24]
During the hearing, counsel for the applicant raised
the following question: Does the RAD have the authority to doubt how foreign
authorities deliver administrative documents to their citizens in the case of a
refugee claim in Canada?
[25]
The criteria for certification were
stated by the Federal Court of Appeal in Zhang v
Canada (Citizenship and Immigration),
2013 FCA 168, at para 9. To be certified, a question must (i) be
dispositive of the appeal and (ii) transcend the interests of the immediate
parties to the litigation, as well as contemplate issues of broad significance
or general importance. In my view, the question proposed by the applicant does
not meet any of those criteria. For that reason, the question will not be
certified.
VIII.
Conclusion
[26]
Consequently, the application for judicial
review is dismissed. No question is certified, and no costs are awarded.
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