Docket: IMM-5227-15
Citation:
2016 FC 623
[ENGLISH TRANSLATION]
Ottawa, Ontario, June 3, 2016
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
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BETWEEN:
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ABOUBACAR SIDIKI CISSE
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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]
Mr. Cissé claims to be a citizen of Guinea.
He filed a refugee claim because of the attacks he apparently suffered due to
his homosexuality. The Refugee Appeal Division (RAD) of the Immigration and
Refugee Board confirmed the decision of the Refugee Protection Division (RPD)
to the effect that he was not able to establish his identity.
[2]
This is a judicial review of the RAD decision.
[3]
Section 106 of the Immigration and Refugee
Protection Act, S.C. 2001, chapter 27 states the following:
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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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[4]
Paragraph 178(1)(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227, indicates that:
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178 (1) An
applicant who does not hold a document described in any of paragraphs 50(1)(a)
to (h) may submit with their application
(a) any identity
document issued outside Canada before the person’s entry into Canada;
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178 (1) Le
demandeur qui ne détient pas l’un des documents mentionnés aux alinéas 50(1)a)
à h) peut joindre à sa demande l’un ou l’autre des documents suivants :
a) toute pièce
d’identité qui a été délivrée hors du Canada avant son entrée au Canada;
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[5]
The documents referred to in paragraphs 51(a)
to (h) of the Regulations are essentially a passport or any other piece of
government identification.
[6]
Mr. Cissé submitted a number of documents.
I only need to consider two of those documents: his national identity card and
the copy of a judgment from the trial court of Kindia (Republic of Guinea),
which indicates that he was born in Guinea on July 15, 1983.
[7]
Those two documents were the subject of an
analysis report from the Canada Border Services Agency.
[8]
The identity card was deemed authentic, but it
had been modified by hand. Mr. Cissé explained that:
. . . an official at the Commission manually
corrected a mistake in his father’s name, which matches the information in the
documentary evidence.
[9]
This explanation was rejected. Under the
circumstances, it is not necessary to determine whether this decision was
reasonable or not.
[10]
Instead, I will focus on the decision of the
Kindia Court. In its analysis report, the Canada Border Services Agency found
that:
The support for this document does not
include any security features that would allow us to authenticate it. Without a
comparison specimen, the results of our analysis are inconclusive.
[11]
The Agency further notes that:
If it is shown that the subject entered
Canada on July 29, 2014, as he claims, then this document does not satisfy
the requirement of paragraph 178(1)(a) of the Immigration and Refugee
Protection Regulations, as it was issued after its user arrived in Canada.
[12]
This reading of the judgment by the Agency, the
RPD and the RAD is completely unreasonable.
[13]
The judgment is dated July 31, 2014. It is
true that Mr. Cissé would have been in Canada on that date. However, the
judgment does not indicate that he was personally in Court to bring his motion.
The motion indicates that: [translation]
“IN LIGHT OF the motion dated July 31, 2014,
presented by ABOUBACAR SIDIKI CICCE . . .” Take, for example,
this judicial review requested by Mr. Cissé. He did not bring his motion
to the Court in person. He was represented by his attorney. He therefore did
not need to be present at the hearing. It is pure speculation to claim that the
situation would be different in Guinea.
[14]
The type of security feature sought by the
Agency should also be questioned. The judgments of this Court certainly have no
features other than the Clerk’s stamps, which is exactly the case for the
judgment from Guinea
[15]
The RAD confirmed the decision of the RPD, which
indicated that the documents, including the judgment, [translation] “are not accompanied
by photos.” What photos? Our judgments do not include photos either.
[16]
Finally, I repeat what I already pointed out in Masongo
v. Canada (Citizenship and Immigration), 2008 FC 39:
. . . a document purportedly issued by a
foreign authority is presumed to be valid unless there is evidence to the
contrary (Ramalingam v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J No. 10, 77 A.C.W.S. (3d) 156; Osipenkov
v. Canada (Minister of Citizenship and Immigration), 2003 F.C.J. No. 59,
120 A.C.W.S. (3d) 111 and Sitoo v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1513 (CanLII), [2004] F.C.J. No. 1850)
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