Docket: IMM-4058-17
Citation: 2018 FC 374
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 6, 2018
PRESENT: The Honourable Mr. Justice LeBlanc
| BETWEEN:
|
| MINISTRY OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
| Applicant
|
| and
|
| BEKEN SHITAYE GEBREWOLD
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The applicant, the Minister of Public Safety and Emergency Preparedness [the Minister] is contesting, by way of judicial review, an Immigration and Refugee Board, Refugee Appeal Division (RAD) decision, that reversed a Refugee Protection Division (RPD) decision dismissing the respondent’s refugee claim on the grounds that the latter had not established his identity.
II.
Background
A.
The respondent’s migration journey
[2]
The respondent is Ethiopian. He claims he was born on December 29, 1976. His migration journey was unusual, to say the least. He left Ethiopia for Norway in 2009, fearing the security forces of the regime in power, who suspected him of belonging to and participating in the activities of the Omoro Liberation Front. He held an Ethiopian passport at the time, which he said was issued in 2007 to Beken Shitaye Gebrewold. He told Norwegian authorities that he wished to visit a friend instead of stating the real reason for his arrival in Norway, which was to make a refugee claim. They did not believe him and his passport was seized. He was, however, given a copy of the passport. A few months later, while he was still in Norway, he made a refugee claim under another identity, Beken Kera Milka. His claim was granted.
[3]
In 2013, fearing that Ethiopian nationals living in Norway might denounce him to the authorities, the respondent thought about leaving Norway. He first tried to obtain an American visa under the name Beken Kera Milka but his application was denied, as the American authorities noted that the respondent’s fingerprints corresponded to those of Beken Shitaye Gebrewold, the name under which he applied for an American visa in 2007, after having agreed on a marriage of convenience with a friend who had just won a lottery granting access to permanent residency in the United States. The subterfuge was discovered and the visa application denied. The passport provided by the respondent in support of this first visa application was issued to Beken Shitaye Gebrewold, born on September 30, 1967.
[4]
The respondent then turned to Mexico, where the authorities granted him a six-month stay. The visa was issued to Beken Kera Milka. He therefore left Norway for Mexico on January 27, 2014. In July 2014, he went to the United States to make a refugee claim there. Prior to doing so, he destroyed the documents in his possession from the Norwegian authorities, including, apparently, the copy of the passport seized by the Norwegian authorities in 2009. Thus, he appeared at the American border without identity documents. He told the American authorities that he had gone directly to Mexico from Ethiopia. The respondent was placed in detention. In January 2015, the American authorities discovered that he had stayed in Norway. The respondent was informed of this. He then withdrew his refugee claim. He later pleaded guilty to charges of fraud and misrepresentation. A notice of removal was issued against him. He was to appear in person in Baltimore on June 16, 2015, for the purpose of executing the removal order of which he was the subject. He did not appear, fearing he would be returned to Ethiopia.
B.
Arrival in Canada and refugee claim
[5]
On July 22, 2015, the respondent went to Buffalo with the aim of crossing the Canadian border, which he did, secretly, on August 25, 2015. Arriving in Canada, he was stopped by officers of the Royal Canadian Mounted Police and turned over to the Canada Border Services Agency (CBSA) authorities. He then made a refugee claim. He had no identity documents on his person.
[6]
The hearing before the RPD was set for November 25, 2015. In anticipation of the hearing, the RPD, through a letter dated October 29, 2015, required the respondent to provide his American refugee claim file together with the documents related to his status in Norway where he claimed he had lost his refugee status because he had been out of the country for more than six months.
[7]
The day before the hearing, the Minister served notice of his intention to intervene in the matter. He maintained that the respondent had not established his identity. The hearing was postponed to February 3, 2016. It continued on March 9 and 31, 2016.
C.
The RPD decision
[8]
On April 27, 2016, the RPD denied the respondent’s refugee claim, being of the view that the respondent had not established his identity. In particular, the RPD was not satisfied with the respondent’s efforts to obtain information, whether from the Norwegian or the American authorities, including the passport seized by the Norwegian authorities in 2009 or, at the very least, a copy of that passport, which the RPD deemed of prime importance. Moreover, in the absence of this passport and of the American refugee claim file, the RPD gave little weight to the national identity card filed by the respondent: it deemed it to be in “pitiful condition”
and noted that the year of birth appearing on the card—1966—did not correspond to any of the birth dates in the file.
[9]
The RPD also gave little weight to the other documents provided by the respondent to establish his identity as Beken Shitaye Gebrewold since they were not State-issued identity documents. There was a document related to a vehicle, an insurance certificate, photographs taken from a graduation album, a diploma from the Ministry of Education, a general Agriculture diploma, an education certificate, a translated passage from a newspaper related to a name change request from Kekele to Beken, two documents from “Ambo University College”
and a document entitled “Student clearance/withdrawal form”
.
[10]
Finally, the RPD noted the imbroglio surrounding the respondent’s date of birth, specifying that the respondent appeared in Canada claiming he was born on December 29, 1976, even though other birth dates appear in his file: September 30, 1967, according to the passport provided in support of his American visa application of 2007, July 19, 1975, the date of birth associated with Beken Kera Milka; and 1966, which is the year of birth appearing on the national identity card. The RPD deemed it had not received information that would have cleared up this issue.
[11]
In addition, the RPD rejected the respondent’s attempts to explain the discrepancies among the birth dates and the confusion surrounding his true date of birth. In the first case, the discrepancies could be explained by the use of a calendar other than the Gregorian calendar in Ethiopia. Nevertheless, the RPD noted that even when the two calendars were aligned, the years of birth did not agree. In the second case, the respondent claimed he did not know his true date of birth, and thus he had always used a fictitious date, December 29, 1976. The RPD noted, however, that this did not explain why this date—or at the very least December 29—did not appear in the other dates of birth in the file. It found that the confusion surrounding the respondent’s date of birth was such that it was unable to determine what said date could be, even though this is an important part of establishing a refugee claimant’s identity.
D.
The RAD decision
[12]
The RAD member who heard the respondent’s appeal (the Member) dealt first with the issue of the admissibility of the new documentary evidence filed by the respondent in support of its appeal. She found that it was inadmissible, as the respondent was unable, in her view, to provide a satisfactory explanation for why this evidence could not have been submitted to the RPD prior to the rejection of the refugee claim.
[13]
Relying then on Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 (Huruglica) dealing with the role of the RAD as an administrative appeal body and on a subsequent decision by three RAD members on the level of deference owed to the RPD with respect to issues of credibility, the Member stated that she would [translation] “conduct an independent analysis of the evidence to determine whether the RPD committed the errors alleged by the applicant”
and that “if an error of fact, law or mixed fact and law was committed, [she would] intervene by one of the means set out in sections 110 and 111 of the [Immigration and Refugee Protection Act, SC 2001, c. 27 (the Law)]”
.
[14]
On the merits of the appeal, the Member, recognizing that the issue of the identity of a refugee claimant is an issue of fact and that it is determinative, criticized the RPD for having rejected all the documents the respondent submitted to it in order to establish its identity, even if the documents were not issued as identity documents. She specifically criticized the RPD in this regard for having placed too much emphasis on the fact that the respondent lied to the Norwegian and American authorities, stating that apart from the problem of the respondent’s birth date, the RPD did not identify any inconsistencies or contradictions between the testimony and the evidence. Moreover, she added, the evidence from the American authorities, for instance the biometric data, leads to the conclusion that Beken Shitaye Gebrewold and Beken Kera Milka are one and the same person. It also confirms the respondent’s travel history.
[15]
The Member concluded the following:
[translation]
[46] Apart from the date of birth, the documents filed, some of which were issued by the Ethiopian ministry of education and to which seals that were not questioned were affixed, the evidence as a whole leads me to conclude on a balance of probabilities that the applicant is indeed who he claims to be, Beken Shitaye Gebrewold, an Ethiopian citizen.
[47] With respect to the date of birth, I find that this is a case where he can be given the benefit of the doubt. In listening to the recording of the hearing, I noted that the applicant answered questions directly. Even though I was not present in the hearing room and able to observe him, I noted that his testimony was fluid, that he answered questions in a straightforward manner and that he provided details. As regards his identity, I find that there is no serious reason to doubt his testimony before the RPD, nor before the Canadian authorities, even if some of his statements to the Norwegian and American authorities were false.
[16]
Thus, the Member said she was of the view that the respondent had established his identity on a balance of probabilities. She then set aside the RPD’s decision but referred the file back to it so that it could rule on the merit of the refugee claim itself.
[17]
The Minister is criticizing the Member for having conducted her analysis based on an unduly narrow reading of the relevant statutory provisions and of the RPD’s decision. He argues in this regard that the RAD could not reasonably question, when taking all the evidence in the file into account, the RPD’s statement that the respondent failed to produce acceptable identity documents, and thus to prove his identity, not only because of the weak probative value of the documents he filed, but also, and especially, because of his behaviour towards the authorities, whether Canadian, Norwegian, American and Mexican in relation to the issue of his identity.
[18]
He also criticizes her for having given the respondent, without valid justification, the benefit of the doubt on the question of his date of birth. Finally, he maintains that the respondent’s failure to swear an affidavit in support of his position in the context of this judicial review is fatal to his case.
III.
Issue and standard of review
[19]
The issue here is determining whether the Member, in finding as she did, committed a reviewable error within the meaning of subsection 18.1(4) of the Federal Courts Act, RSC 1985, c. F-7. It is not disputed that the standard or review that applies in this case is that of reasonableness (Huruglica at para 35; Paye v Canada (Citizenship and Immigration), 2017 FC 685 at para 3; Nazari v Canada (Citizenship and Immigration), 2017 FC 561 at para 12; Gu v Canada (Citizenship and Immigration), 2017 FC 543 at para 20; Singh v Canada (Citizenship and Immigration), 2017 FC 719 at para 9).
[20]
I note that the reasonableness of a decision “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
(Dunsmuir v Nouveau‑Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
IV.
Analysis
[21]
As I recently noted, this Court has consistently held that identity is the cornerstone of the Canadian immigration regime (Bah v Canada (Citizenship and Immigration), 2016 FC 373 at para 7; see also Canada (Minister of Citizenship and Immigration) v Singh, 2004 FC 1634 at para 38; Canada (Citizenship and Immigration) v X, 2010 FC 1095 at para 23, 375 FTR 204). It is so because several important elements of implementing this regime, such as admissibility to Canada, evaluating the need for protection, assessment of the risk to public safety in Canada or the propensity to accept or reject the controls required by the Act, depend upon it.
[22]
Indeed, pursuant to section 106 of the Act, the fact that a foreign national who arrives in Canada without acceptable identity documents can neither provide an explanation nor prove having taken the required steps to obtain the documents can affect his credibility with the RPD.
[23]
The birth date, like names and surnames, clearly constitute key components of identity. Yet, here, even if we accept that the RAD could reasonably find that the respondent’s true names and surnames are indeed, on a balance of probabilities, Beken Shitaye Gebrewold, the date of birth, as the RAD in fact recognized by emphasizing the inconsistencies and contradiction noted by the RPD, remains problematic.
[24]
The issue is, therefore, whether it was reasonable for the RAD, considering all the circumstances of the current file, to ignore this problem in giving the respondent the benefit of the doubt. I find that it was not.
[25]
In my view, the RAD decision suffers, in this regard, from a problem of internal consistency and intelligibility. I would point out that the RAD’s role is not to carry out a de novo consideration of the refugee claim that the RPD had to address. In other words, it was not enough for the RAD to ask whether it would have reached a different conclusion had it been in the RPD’s position, without regard for any aspect of the RPD’s decision (Huruglica at para 79). The RAD is an appeal tribunal. While it is true that it must carry out its own analysis of the file in applying the standard of correctness, except with respect to assessing the credibility or the value of oral evidence where the RAD, when the RPD truly benefits from an advantageous position over it, must occasionally show deference (Huruglica at para 70), its role is to “catch all mistakes made by the RPD, be it on the law or the facts”
(Huruglica at para 98).
[26]
Yet, the RAD, for all practical purposes, conceded that the respondent’s evidence contained inconsistencies and contradictions with respect to the date of birth (RAD decision, at paras 41 and 46). From this I deduce that it was satisfied that the RPD did not err in finding as it did regarding this issue. In this context, it was not enough, in my view, for the RAD to give the respondent the benefit of the doubt without saying how the RPD erred in not doing likewise. The RAD decision reads as if, on this question, it conducted a de novo proceeding, and therefore, without regard to the RPD decision on this question, based on the recording of the hearing before the RPD. Yet, as we have seen, it was not allowed to do so.
[27]
The RAD decision is also problematic if one assumes that the RAD was implicitly criticizing the RPD for not having given the respondent the benefit of the doubt. The RAD’s only justification was to note that the respondent “answered questions directly”
, “in a straightforward manner”
, that his testimony “was fluid”
and that he “provided details”
. Still, this does not explain how the fact that the respondent gave testimony in a direct and fluid manner settles the question of the inconsistencies and contradictions in his testimony and the evidence in general and argues, in that context, for giving the respondent the benefit of the doubt.
[28]
As noted by the Court in Noga v Canada (Minister of Citizenship and Immigration), 2003 FCT 454 [Noga], benefit of the doubt principle “applies in a limited number of circumstances”
. It should only be given “when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility”
, which assumes “coherent and plausible”
statements on the latter’s part (Noga at paras 10 to 12).
[29]
Yet, this was not shown by the RAD, which was content with a general observation about the manner in which the respondent gave testimony before the RPD. Furthermore, the RAD is silent as concerns the respondent’s statements about the use of a calendar that differs from the Gregorian calendar in Ethiopia, and the December 29, 1976 date, which he said he had always considered as his date of birth, statements that, for reasons that appear reasonable to me, the RPD did not find to be plausible and coherent. Moreover, I note in the file that according to the checks carried out by the CBSA, the Ethiopian authorities have been using Gregorian calendar dates in passports for decades.
[30]
The RAD is also silent on the efforts made by the respondent to obtain documents that would prove his identity, including his date of birth. In particular, the RPD declared itself unsatisfied with the respondent’s efforts to obtains at the very least a copy of the passport seized by the Norwegians in 2009, a passport that could enlighten the Canadian authorities as to the respondent’s identity. The RAD does not explain how this statement constituted an error, nor how the respondent could nonetheless imagine being given the benefit of the doubt in such a context.
[31]
I note also in this regard that on September 29, 2015, the respondent allegedly told the CBSA authorities that the counsel representing him in difficulties with the American authorities was in possession of both the travel document given to him by the Norwegian authorities and his Ethiopian passport. As the Minister emphasizes, there is no indication in the file that the respondent took the required steps to obtain these documents from this individual.
[32]
The RAD’s decision seems even more unintelligible to me considering the problem of the birth date that we are here in the presence of a refugee claimant who, throughout his long migration journey, obtained—or tried to obtain—the right to enter a foreign country using false representations concerning his identity and destroying the documents that could have adversely affected him in this regard. It seems to me that with such a track record, and faced with the number of birth dates in the file, the inconsistencies and contradictions in the evidence presented by the respondent to try to explain the situation and the statements about the respondent’s lack of effort to produce satisfactory evidence in this regard, the RAD should have explained, other than by delivering its general impressions about the way the respondent testified before the RPD, how the principle of the benefit of the doubt could apply in the circumstances.
[33]
It is even more troubling that the RAD, as I mentioned, seemed to concede that the respondent’s evidence related to his date of birth suffered from contradictions and inconsistency. Yet, nevertheless, the two essential considerations in the application of the principle of the benefit of the doubt are that the refugee claimant’s statements should also be “coherent and plausible”
(Noga at paras 10 to 12).
[34]
The RPD found that the confusion was such regarding the respondent’s date of birth that it could not [translation] “find that the [respondent] had persuaded [it] as to his date of birth, an important element in establishing any identity”
. This statement alone required in my view a robust proof, on the part of the RAD, of the applicability of the principle of the benefit of the doubt. This proof was not provided.
[35]
Finally, I note that the RAD, whose clemency towards the respondent rests exclusively on its assessment of the manner in which the latter testified before the RPD, does not indicate whether this is a case where it had to show deference with regard to the RPD. The RAD’s decision does not address this issue other than in theoretical terms. Nevertheless, based on the teachings in Huruglica, in order to proceed with a non-deferential analysis of a refugee claimant’s credibility or the value of his testimony, the RAD must be satisfied, on a case-by-case basis, that it is in an equally advantageous position as the RPD in order to do so. Yet, this analysis does not appear anywhere in the RAD’s decision in this case, which affects the transparency and intelligibility of the decision-making process.
[36]
The Minister’s application for judicial review will therefore be allowed, the RAD’s decision is set aside and the matter is referred to another RAD member for redetermination in accordance with these reasons.
[37]
The parties agree that there are no grounds for certifying a question for the Federal Court of Appeal. I concur.
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