Date:
20120713
Docket:
IMM-9264-11
Citation:
2012 FC 884
Winnipeg,
Manitoba, July 13, 2012
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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AHMAD WALI MOHMADI
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant applies for judicial review of the November 18, 2011 decision of a
Member of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board. The RPD refused the Applicant’s claims for refugee protection pursuant
to section 96 and subsection 97(1) of the Act, determining the Applicant is not
a Convention refugee and is not a person in need of protection because the
Applicant did not establish his identity.
Background
[2]
The
Applicant lived in Kabul, Afghanistan. He says he comes from a high profile
family. He had an affair with a neighbour’s wife and incurred the wrath of the
husband. After the discovery, the husband attacked the Applicant but he was
able to escape. The Applicant did not return home that night out of fear. The
next day he called his brother who told him the husband and others had come to
the house to beat his father. They had been armed and had asked the Applicant’s
father where he was. When they could not find him, they fired their weapons in
the air and told his father that when the Applicant returned they would kill
him. The Applicant’s father was angry with the Applicant but arranged for an
agent to get the Applicant out of the country.
[3]
The
Applicant arrived in Canada on March 14, 2010 and claimed refugee protection on
March 23, 2010.
Decision Under
Review
[4]
The
RPD found that the determinative issue in this claim was identity and found the
Applicant was not credible with regards to his identity. This determination
focused on inconsistencies and implausibilities the RPD found with the
Applicant’s documents, testimony and submissions.
[5]
The
RPD found the Applicant not credible because of inconsistencies an
implausibilities with respect to the Applicant’s taskira in that:
- The
Applicant did not include in his PIF that he had his taskira, the primary
Afghani identification document; instead he stated he had his birth
certificate.
- The
Applicant’s signature did not appear on his taskira; the RPD stated it was
logical that the taskira would contain the Applicant’s signature in the
space provided, despite the Applicant’s testimony that this was not often
the case.
- There were
inconsistencies in dates provided on the taskira compared with the
Applicant’s testimony.
- The RPD
found it illogical that his friend in Afghanistan would take the taskira
to a government office for translation rather than sending it directly to
the Applicant to obtain the needed translation.
- The RPD
expected that the taskira would bear some sort of official seal or
insignia. The lack of any security features or even an official seal led
the RPD to place little weight on the taskira submitted.
[6]
The
RPD also discounted the Afghanistan passport that was submitted by the Applicant
as part of his post-hearing submissions. The RPD assigned the passport little
weight because the RPD decided the dubious taskira was used to obtain the
passport.
[7]
The
RPD denied the claim under sections 96 and 97 on the identity issue.
Legislation
[8]
The
Immigration and Refugee Protection Act, SC 2001, c 27 provides:
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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.
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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.
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[9]
The
Refugee Protection Division Rules, SOR/2002-228 provide:
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7.
The claimant must provide acceptable documents establishing identity and
other elements of the claim. A claimant who does not provide acceptable
documents must explain why they were not provided and what steps were taken
to obtain them.
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7.
Le demandeur d’asile transmet à la Section des documents acceptables pour
établir son identité et les autres éléments de sa demande. S’il ne peut le
faire, il en donne la raison et indique quelles mesures il a prises pour s’en
procurer.
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Issues
[10]
The
sole issue in this case is whether the RPD’s decision that the Applicant had
failed to establish his identity for the purposes of his refugee claim was
unreasonable.
Standard
of Review
[11]
The
Supreme Court of Canada held in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
that there are only two standards of review: correctness for questions of law
and reasonableness involving questions of mixed fact and law and fact: Dunsmuir
at paras 50 and 53. The Supreme Court also held that where the standard of
review has been previously determined, a standard of review analysis need not
be repeated: Dunsmuir at para 62.
[12]
The
RPD’s findings of fact and credibility and its assessment of evidence submitted
to establish identity attract a standard of reasonableness: Wang v Canada (Minister of Citizenship & Immigration), 2011 FC 969 [Wang] at para
22.
Analysis
[13]
The
Applicant submits the RPD’s decision is unreasonable because it was based on
unreasonable findings of fact. First, the Applicant argues it was unreasonable
for the RPD to fail to give weight to the Afghanistan passport that was
included in the post-hearing submissions. Second, the Applicant disputes the
RPD’s assumptions that the taskiras must bear the holder’s signature and that
it ought to have security features. The Applicant submits the RPD did not rely
on any evidence and merely made assumptions.
[14]
The
Respondent submits the RPD’s decision was reasonable and the application should
be dismissed. The Respondent submits the RPD relied on contradictions and
discrepancies in the Applicant’s documentation and testimony to conclude that
the Applicant’s identity could not be satisfactorily confirmed. The Respondent
notes that where identity is not established, it is unnecessary to further analyze
the evidence and the claim: Li v Canada (Minister of Citizenship &
Immigration), 2006 FC 296 at para 8.
[15]
The
Respondent submits the RPD’s concerns regarding identity were largely based on
the taskira provided by the Applicant. Regarding the passport, the Respondent
submits the RPD acknowledged receipt of the passport, but decided not to assign
much weight due to the RPD’s previous concerns regarding the Applicant’s
identification documentation. The Respondent submits that even if the RPD noted
that the Applicant’s Afghanistan passport appears to be authentic, this does
not prevent the RPD from concluding that the Applicant did not succeed in
establishing his true identity: Saleem v Canada (Minister of Citizenship
& Immigration), 2008 FC 389, 166 ACWS (3d) 321 at para 29.
[16]
In
my view, the RPD made a key finding that was unreasonable. The RPD noted
several problems with the Applicant’s taskira including discrepancies and
contradictions within the Applicant’s testimony. Had this been all the RPD
relied on, I may have concluded that the RPD’s findings were reasonable. However,
the RPD relied on this conclusion to find a different document, the Applicant’s
passport, of little weight.
[17]
As
part of his post-hearing submissions, the Applicant included an Afghanistan passport issued after the hearing date by the Afghanistan embassy in Ottawa.
[18]
After
considering the issues concerning the Applicant’s taskira, the RPD turned to
the question of the passport issued by the Afghanistan embassy and submitted in
the post-hearing materials. With regards to this passport, the RPD stated:
The claimant has produced what appears to be an
authentic passport that was issued by the Afghanistan Embassy in Ottawa on August 18, 2011. Under normal circumstances this would be viewed by this panel as
a significant identity document. In this case there are numerous credibility
issues surrounding identity that has caused me to question the identity of this
claimant. The claimant’s counsel has stated that the claimant was not able to
get any further identity documents from Afghanistan. There is no explanation as
to how exhibit 8 was obtained if he was unable to get further documents out of Afghanistan, or why the claimant would have two taskira’s with two different numbers.
Notwithstanding this the evidence is that the passport was issued on the
strength of the documents that were presented to this panel. Documents that,
for reasons listed above, I have serious credibility concerns as to their
authenticity. The passport is no better than the documents used to establish
identity. In this case, I find that the documents presented are insufficient to
establish identity and hence place little weight on the passport when
establishing identity.
[19]
I
find the RPD impugned one identification document based on problems with
another. The Respondent submits there is evidence on the record before the RPD
that supports giving the passport little weight. However I cannot ignore the
RPD’s choice of words where the panel states: “Documents that, for reasons
listed above, I have serious credibility concerns as to their authenticity. The
passport is no better than the documents used to establish identity.” I take these
words to limit the RPD’s assessment of the passport to the problems with other
documents, notably the taskira.
[20]
In
Wang, Justice Russell faced a similar issue where the RPD refused to
assign significant weight to authentic documents because of problems with other
fraudulent documentation submitted. At paragraphs 48 and 49 he stated:
I am particularly concerned about the findings
regarding the Applicant’s driver’s license and the post office seizure notice.
The RPD says that the driver’s license appears to be genuine but nonetheless
dismisses it because it has found that the other documents are fraudulent and
because fraudulent documents are readily available in China. The same is true of the post office seizure notice, which the Applicant submitted as proof
that his wife tried to mail his RIC to him but post office officials seized it
and sent it to the PSB. The RPD does not find that it is fraudulent but refuses
to place “significant weight on the seizure notice as an explanation for the
[Applicant’s] failure to provide the [RPD] with acceptable identity documents,”
given its concerns relating to the authenticity of the other identity documents
and the availability of fraudulent documents in China.
As Justice Carolyn Layden-Stevenson pointed out in
Lin v. Canada (Minister of Citizenship & Immigration), 2006 FC 84 (F.C.),
at paragraph 12, a finding that one document is (or some documents are)
fraudulent does not necessarily mean that all documents are fraudulent even in
a situation where fraudulent documents are readily available. The RPD must make
some effort to ascertain the authenticity of documents that appear to be
genuine.
[Emphasis
added]
[21]
In
this case, the RPD chose to impugn the passport based on his concerns with the
documentation the Applicant relied upon to obtain the passport. It was
unreasonable for the RPD to limit the assessment of the passport because of
earlier concerns with the Applicant’s taskira. As a result, I find the RPD’s
decision to assign the Applicant’s passport little weight based solely on problems
with another document to be unreasonable.
Conclusion
[22]
I
conclude the RPD’s decision is unreasonable and the application for judicial
review should be granted.
[23]
No
question of general importance has been proposed and I do not certify any
question.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed; the RPD decision is set aside; and
the matter is remitted for re-determination by a differently constituted panel.
2. No
serious question of general importance is certified.
"Leonard S. Mandamin"
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