Date: 20101109
Docket: IMM-547-10
Citation: 2010 FC 1118
Ottawa, Ontario, November 9,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
FRANK
BRODRICK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for a judicial review of the decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
January 11, 2010, wherein the Applicant was determined to be neither a
convention refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
The Applicant failed to establish his identity such that the Board could
determine that he was who he said he was.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Frank Brodrick, is a citizen of the Federal Republic of Nigeria (Nigeria). He claims
to be gay and seeks refugee protection in Canada to escape
the persecution he would allegedly suffer at the hands of his ex-boyfriend,
Roy, and other members of a secret gay society. The Applicant claims that
these men have enlisted the Nigerian police to seek out and kill him.
[4]
The
Applicant claims he joined a secret gay society called the X-Guys Society in
August 2005. Through this group the Applicant met Roy in
September, 2005. The Applicant and Roy had a relationship until July, 2007
when the Applicant met a new X-Guys member, Kay. The Applicant and Kay began
to date secretly. When Roy discovered that the Applicant was having
an affair, he assaulted and threatened the Applicant, resulting in the
Applicant’s hospitalization.
[5]
While
in hospital the Applicant received a phone call from another X-Guys Society
member informing him that Roy had enlisted thugs and other members of
the society to come and kill him. The Applicant would later learn that Roy also
enlisted the help of the police to “teach [him] a lesson” by telling them that
the Applicant was a homosexual who had attempted to seduce him. Roy and the
police allegedly showed up at the Applicant’s parents’ home and beat them when
they did not produce the Applicant.
[6]
The
Applicant fled to Lagos where he spent four days at a hotel. He met an
agent who arranged for his travel to Madrid, Spain. In the
Applicant’s Personal Information Form (PIF) he states that he stayed at a hotel
in Madrid, and that is where he found a bag containing a Canadian passport of a
Canadian-Nigerian man along with other identity documents and a valid one-way
ticket to Toronto. However,
during his hearing before the Board, the Applicant testified that he discovered
the bag in a park. The Applicant used these documents to travel to Canada, arriving on
September 18, 2007 and claiming refugee protection at the airport.
B. Impugned
Decision
[7]
The
Board determined that the Applicant failed to establish his identity. Due to
numerous credibility concerns related to the Applicant’s testimony, as well as
the documents he submitted to corroborate his claim, the Board found that:
·
The
Applicant failed to establish, on a balance of probabilities, his true name as
being either Frank Brodick or Frank Brodrick. When interviewed
at the Port of Entry (POE) he told Canada Border Services Agency that his name
was Frank Brodick, signed documents as such and used this last name when
referring to other family members. On his PIF the Applicant’s name is typed as
Brodrick, however, where he has printed it, it appears as
Brodick. At the second sitting of the hearing of the claim, when asked to
clarify the name discrepancy, the Applicant stated that his name is Brodrick.
The Applicant explained that the difference was due to his low level of
education, and later, his excitement at being in Canada. The
Applicant’s testimony regarding his own level of education was inconsistent,
and his alleged poor literacy skills were refuted by the Applicant’s own
submission of his profile on the website gay.com, which he testified that he
wrote himself. The Board found these explanations unreasonable and lacking in
credibility.
·
The
Applicant procured a fraudulent Nigerian passport to purposely mislead the
Board. The Applicant’s passport, in the name of Frank Brodrick, was sent to
the RCMP for verification. The RCMP analysis concluded that a counterfeit
biological date page had been inserted over the original one. Though the
Applicant insisted that he obtained the passport legally, the Board placed more
weight on the RCMP analysis than the Applicant’s evidence that the Nigerian
authorities issued him a tampered document. The Board did not find the
Applicant’s evidence to be either reasonable or credible.
·
The
other identification documents submitted by the Applicant were false. The
Applicant produced a statutory declaration of age by Mr. Henry Brodrick and a
National Birth Certificate application by Mr. Henry Brodrick to corroborate the
Applicant’s identity as Frank Brodrick. The Applicant testified that Henry is
his best friend whose last name he does not know, whereas in the statutory
declaration Henry Brodrick stated that he was the Applicant’s uncle. The Board
found the Applicant’s explanation regarding this confusion that it was probably
due to Henry’s own fear for his life, unreasonable. The Applicant also
submitted a Nigerian driver’s license that was issued after the Applicant’s
passport even though the Applicant initially testified that he got both
documents at the same time. At the last sitting before the Board, the
Applicant produced an Emergency Certificate for Identification issued by the
Nigerian High Commission in Ottawa. Since the certificate was based only on
the Applicant’s own statements which the Board had found not to be credible,
the Board placed no weight on this evidence. The Applicant also produced a
work ID card showing him to be Frank Brodrick, and a copy of a
519 membership card issued to Frank Brodick. The Board found that neither of
these documents confirmed the Applicant’s identity.
·
The
account of who his family is lacking in credibility. At the POE the Applicant
claimed he had a sister named Ken Brodick who lived in Toronto. On his
PIF, the Applicant wrote that he had one cousin/sister named Lisa Brodrick in Toronto. Given the
inconsistent statements regarding his family, the Board found that the
Applicant’s account of who his family is and where they live lacking in
credibility and to be a further confirmation of the Applicant’s failure to
establish his personal identity.
·
The
Applicant’s account of his travel to Canada was too fortuitous to
be true, implausible and not credible.
II. Issue
[8]
The
issue raised in this application is best summarized as follows:
(a) Was
the Board’s finding that the Applicant failed to prove his personal identity
reasonable?
III. Standard
of Review
[9]
The
findings of the Board with regard to the Applicant’s identity documents are
findings of fact requiring a very high level of deference upon review (Qiu
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 259, 176 A.C.W.S. (3d) 493 at
para.4). Due deference is also owed to decisions of the Board regarding
credibility, the weight assigned to evidence and the assessment of evidence. Such
findings are all reviewable on a standard of reasonableness (Aguebor v
Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.) at para 4; N.O.O. v. Canada (Minister of Citizenship
and Immigration), 2009 FC 1045, [2009] F.C.J. No. 1286 at para. 38).
[10]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190; and Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12; [2009] 1 S.C.R. 339
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. The
Board’s Finding that the Applicant Failed to Establish His Identity is Reasonable
[11]
In
order to successfully claim refugee protection, the claimant must show that he
is who he claims to be. As explained by Justice Danielle Tremblay-Lamer in Zheng
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 877, 74 Imm. L.R. (3d) 28 at para.
14:
[…] The onus is on the
claimant to produce acceptable documentation establishing his identity;
however, where he is unable to do so, the Board must take into account whether
he has provided a reasonable explanation for the lack of documentation or has
taken reasonable steps to obtain the documentation
[12]
The
importance of establishing a claimant’s identity is set out in section 106 of
IRPA and section 7 of the Refugee Protection Division Rules.
|
Credibility
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.
|
Crédibilité
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.
|
|
Documents establishing identity and
other elements of the claim
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.
|
Documents
d’identité et autres éléments de la demande
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.
|
[13]
Where
identity is not established, the Board is under no obligation to further
analyze the claim (Li v. Canada (Minister of
Citizenship and Immigration), 2006 FC 296, 146 A.C.W.S. (3d) 704 at
para. 8). In the present case, the Board found that the Applicant failed to
credibly establish his identity on a balance of probabilities.
[14]
The
Applicant argues that the Board unreasonably rejected the testimony of the
Applicant explaining the discrepancy between the different spellings of his
last name. The Applicant further submits that the Board erred in finding that
the Applicant’s Nigerian passport was fraudulent and in rejecting the
additional supporting identity documents.
[15]
The
Respondent counters that the Applicant only presents the argument that the
Board should have made alternate inferences regarding the Applicant’s
testimony. In order to justify a judicial review of the decision, the
Applicant would need to show that the inferences made by the Board are not
supportable in any way by the evidence.
[16]
In
my view, the Respondent is correct in contending the Applicant has not
presented any argument that the Board made a reviewable error. There was more
than sufficient evidence available to support the Board’s finding that the
Applicant’s explanations were unsatisfactory and unreasonable. The Board
documents several contradictions and inconsistencies in the evidence of the
Applicant in the impugned decision. This is a well-established basis for
finding a lack of credibility and such a finding is considered “the heartland
of the discretion of triers of fact,” (He v. Canada (Minister of Employment
& Immigration), [1994] F.C.J. No. 1107, 49 A.C.W.S. (3d) 562 (F.C.A.)
(QL) at para.2).
[17]
As
for the identity documents, the Applicant cites several cases to support the
proposition that apparently validly issued identity documents cannot be found
to be fraudulent if there is no evidence to establish this. However, the RCMP
analysis of the passport coupled with the repeatedly inconsistent testimony of
the Applicant gave the Board plenty of evidence on which it was reasonable to
reject those documents. The Board provides a detailed explanation for how and
why each piece of identification evidence was assessed and then assigned no
probative value.
[18]
The
Applicant argues that the Board ignored a document in the national
documentation package explaining the wide availability of counterfeit documents
in Nigeria. However,
the Board does discuss this documentary evidence and concludes that in this
particular circumstance the Applicant obtained false documents to purposely
mislead the Board.
[19]
Furthermore,
contrary to the Applicant’s submissions, the Board is not required to submit
each piece of evidence of which it doubts the authenticity for forensic
testing. As long as there is enough evidence to reasonably cast doubt on the
genuineness of a document the Board is not obliged to conduct an assessment (Hossain
v. Canada (Minister of Citizenship and Immigration), [2000] A.C.F. no 160,
102 A.C.W.S. (3d) 1133 at para.4).
[20]
The
role of this Court is not to reweigh the effectiveness of the Applicant’s
attempts to explain or justify his inconsistent and implausible evidence.
There is no basis to disturb the Board’s finding.
V. Conclusion
[21]
There
was a reasonable basis for the Board to find that the Applicant failed to
establish his identity.
[22]
No
question to be certified was proposed and none arises.
[23]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“ D.
G. Near ”
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