Docket: IMM-3957-16
Citation:
2017 FC 424
Ottawa, Ontario, April 28, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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VICTOR HAPPY
FESTUS
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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.
Background
[1]
In this judicial review, the Applicant
challenges the Refugee Appeal Division’s [RAD or the Board] September 1, 2016
decision [the Decision or Reasons], which confirmed the Refugee Protection
Division’s [RPD] decision, finding that the Applicant was neither a Convention
refugee nor a person in need of protection based on identity and credibility
grounds. I find no grounds upon which to send the Decision back for
redetermination.
[2]
In brief, the Applicant claims that he is
homosexual and would face arrest, imprisonment and/or death if returned to his
native Nigeria, where in 2015 his same-sex partner was captured and beaten by
vigilantes who then threatened him. The Applicant fled to Canada and on April
6, 2016, and he married his same-sex partner in Toronto, Ontario.
[3]
On May 27, 2016, the RPD rejected the
Applicant’s claim on identity grounds. The RAD upheld the RPD’s findings with
respect to three central identity documents (an Affidavit of Age, Driver’s
License and Birth Attestation); both tribunals gave little or no weight to
these documents. The RAD also admitted and considered two new pieces of
evidence submitted by the Applicant to corroborate his identity, namely letters
from a government office and official [Letters]. It found these two new documents
to be untrustworthy “in light of the problems with the
[Applicant’s] initial identity documents”.
[4]
In addition to credibility concerns arising both
from testimony and documentary evidence relating to the key identity
documentation presented, the RAD also specifically noted (a) high degrees of
forgery in the region where these documents had been obtained (Delta State), and
(b) inconsistent statements regarding the Applicant’s passport and National
Identity Card, which further undermined his credibility. Moreover, the RAD
found that the Applicant’s story of his entry into Canada through customs and
exiting the airport not to be credible.
II.
Analysis
[5]
The Applicant attacks the RAD Decision on four
grounds, arguing generally that the RAD rendered its Decision arbitrarily and
unreasonably given the evidence on record. Specifically, the Applicant says
that the RAD:
i.
unreasonably allotted little weight to the two
new documents;
ii.
failed to consider documentary evidence that
spoke to the validity of the identity-related documents;
iii.
had sufficient evidence to establish the
Applicant’s identity; and
iv.
applied the wrong legal test in assessing the
Applicant’s identity.
Lastly, the
Applicant argued in oral submissions that the Decision is flawed on
independency of analysis and new evidence grounds per Canada (Citizenship
and Immigration) v Huruglica, 2016 FCA 93 [Huruglica] and Canada
(Citizenship and Immigration) v Singh, 2016 FCA 96 [Singh],
respectively.
[6]
The standard of reasonableness applies to the
issues raised (Brodrick v Canada (Citizenship and Immigration), 2010 FC
1118 at paras 9-10 [Brodrick]).
[7]
First, while it is not this Court’s role to
re-weigh evidence that was before the Board, the RAD’s finding in this case
that the two newly admitted Letters were untrustworthy (and therefore given no
weight) may at first glance be problematic. The RAD’s analysis in this regard
appears to stand for the proposition that because the RPD had issues with the
Applicant’s identity-based documents before receiving and admitting this new
evidence, it follows that the new documents were untrustworthy. Indeed,
Applicant’s counsel spent the bulk of her oral presentation addressing the fact
that the RAD did not acquit itself of its role to independently review new
evidence, citing the recent Federal Court of Appeal cases in Huruglica
and Singh.
[8]
However, given the broader credibility findings
made against the Applicant (discussed below), while it may have been preferable
for the Board to address the Letters with a more substantial analytical approach,
the Decision, viewed as a whole, is reasonable (Li v Canada (Citizenship and
Immigration), 2007 FC 1030 at paras 18 and 22 [Li]).
[9]
Second, the Applicant asserts that certain
documentary evidence was ignored by the RAD. However, it is unclear how this
documentary evidence contradicts the RAD findings.
[10]
I note, however, that the bulk of the Decision
is founded not on the documentary evidence, but rather on the negative
credibility findings made against the Applicant due to his failure to explain
how the Affidavit of Age and Birth Attestation issued in March 2012 could have
been used to obtain the driver’s license issued in February of that same year,
since the former were required to obtain the latter.
[11]
The RAD then supplemented these credibility
findings (arising out of the Applicant’s testimony) by relying on documentary
evidence which further impugned credibility, in pointing out that (i) both the
Affidavit of Age and Birth Attestation are easily obtained; and (ii) the
affiant’s photograph, usually apposed on Affidavits of Age, was missing from
the Applicant’s.
[12]
Finally, while the RAD noted a high rate of
forgery, it made no findings as to whether the Applicant’s documents were
forged; rather using this information, based on the objective documents before
it, to supplement the various credibility findings it independently reviewed
and analysed.
[13]
Finally, as stated above, the Board disbelieved
the Applicant’s account of his arrival in Canada. The Board noted the
implausibility in moving through the customs line without a passport, then
finding himself in front of the airport, and from there phoning his mother to
obtain a contact to pick him up.
[14]
In sum, I find nothing unreasonable about the
negative credibility findings, many of which went unchallenged in this judicial
review. And unlike in Zheng v Canada (Citizenship and Immigration), 2008
FC 877 [Zheng] and Jiang v Canada (Citizenship and Immigration),
2007 FC 1292 [Jiang], two cases the Applicant cites, no similar
credibility findings were made.
[15]
Finally, the Applicant cited Huruglica for
the proposition that the RAD exceeded its jurisdiction. However, when
questioned on this point, counsel could not point to how it diverged from the
role of conducting a hybrid appeal in conformity with Huruglica. There
are certainly cases where the RAD has been found not to have acted in
accordance with Huruglica by failing to display independence in the
appeal (see, for instance, Jeyaseelan v Canada (Minister of Citizenship and
Immigration), 2017 FC 278). However, this Decision falls far short
of the weaknesses displayed in the analysis of such cases.
[16]
The Applicant pointed to Singh and raised
for the first time at the hearing the fact that the RAD also failed to follow
its dictates. However, the Applicant was not able to point to how the RAD had
fallen short, other than to say that it failed to undertake its statutory duty
pursuant to subs. 29(3) of the Refugee Appeal Division Rules, SOR/2012-257 and s. 106 of the Immigration
and Refugee Protection Act, SC 2001, c 27.
[17]
Again, for the reasons explained above, having
analysed why it was giving little weight to the documents newly admitted –
which it did in accordance with Singh – the Board effectively found that
they did not overcome the deficiencies it found in the credibility relating to
the totality of the identity documentation provided. Contrary to the assertions
of the Applicant, it did not hide behind the cover of objective evidence that
spoke to the prevalence of fraudulent documents coming from the Applicant’s
region of Nigeria, but rather addressed specific issues with the
trustworthiness of the Applicant’s identity documentation and testimony in
relation thereto. In short, here the unchallenged negative credibility findings
continue to stand and weigh against the Applicant (see also Brodrick at
para 16).
[18]
Likewise, the Applicant’s final two arguments
are not persuasive. Regarding the alleged error vis-à-vis the sufficiency of
evidence to establish identity, it is well-known that this Court is not to
re-weigh evidence in judicial review (Brodrick at para 20). And
regarding the alleged incorrect test for the assessment of identity, the
Applicant relies on Zheng and Jiang, but as noted above, those
two cases are entirely distinguishable, since neither is underpinned by unchallenged
and reasonable credibility findings.
III.
Conclusion
[19]
This application for judicial review is
accordingly dismissed.
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