Date: 20180202

Docket: IMM-2824-17

Citation: 2018 FC 122

[ENGLISH TRANSLATION]

Ottawa, Ontario, February 2, 2018

PRESENT: The Honourable Mr. Justice Martineau

JUDGMENT AND REASONS

[1]  The applicant is seeking a judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration Review Board of Canada, dated May 31, 2017, which affirms a decision by the Refugee Protection Division [RPD].

[2]  In short, the applicant’s claim for refugee protection was rejected by the RPD on the ground that she did not establish her identity. The RAD’s decision to dismiss her appeal was reasonable and must be upheld in this case.

Problems with proving identity before the RPD

[3]  The applicant is allegedly a citizen of Mali and originally from the city of Gao. She arrived in Canada on February 15, 2015, with a false Malian passport with the name Agaichatou Maïga. She claimed refugee protection on July 31, 2015, under the name Fanta Koné, on the ground that she was persecuted by the jihadist group Hamza Deen. Jihadists allegedly vandalized her house and kidnapped and murdered her partner because they were living together but were not married – which is against sharia. At the time that she made her claim, the applicant was detained because she was unable to prove her identity. Meanwhile, a Malian friend allegedly sent identity documents to her.

[4]  Before the RPD, the applicant submitted five documents:

1. Malian national identity card issued on December 17, 2013, at Baroueli (pp 156–157 of the certified record);

2. Excerpt from birth certificate no. 26 issued on April 24, 2015 (p 158 of the certified record);

3. Birth certificate no. 347 issued on December 17 or 20, 2013, at Bamako (p 159 of the certified record);

4. Birth certificate no. 26 issued on October 27, 2014, at Bamako (p 160 of the certified record); and

5. Certificate of Malian nationality dated April 17, 2015 (p 161 of certified record).

[5]  The RPD carefully reviewed the identity documents and noted several problems:

• No passport was submitted;

• The only document with a photo is a national identity card that has several irregularities. First of all, the fingerprints are not those of the applicant. During the hearing, she claimed that those may be her spouse’s fingerprints, which were allegedly taken at the time when looking for the card. The applicant does not remember which documents she submitted to obtain that card. However, she affirmed that she had obtained that card because there were many police roadblocks and she needed an identity document. However, the RPD found it inconsistent that the card was issued in Baroueli, a town located more than fifteen hours away from Gao, where the applicant lived, and where she had no family and had never lived. In addition, the address on the card does not match the applicant’s address at the time. Thus, the RPD gave no probative value to the document;

• The applicant stated that document 26 was allegedly issued at the time that she obtained her national identity card in December 2013 because her original birth certificate was torn and found to be in too poor of condition. However, document 26 was issued 10 months later in October 2014, which the RPD found to be inconsistent;

• With respect to the birth certificate extract, although it was sent to her by a friend, the applicant stated that she was not aware of its existence. That extract appears to match an original dating from 2014. The RPD found it inconsistent that a new birth certificate was issued in 2014, while the applicant claimed to have another birth certificate dating from 2013 (document no. 347). The applicant said that she did not know why or how those documents were obtained. The RPD noted that the applicant’s illiteracy and lack of education do not justify her inability to answer those questions;

• The RPD also noted that the certificate of nationality and the extract were issued in Mali in 2015 when the applicant was already in Canada. The RPD found that those documents had to have been obtained fraudulently and gave them no probative value; and

• The certificate of nationality was allegedly issued in 2015 based on the original birth certificate dating from 1990, a document that was allegedly found to be too worn in order to issue the national identity card in December 2013. The RPD finds it incongruous that a document that is insufficient to obtain an identity card would be sufficient to obtain a certificate of nationality.

[6]  For those reasons, the RPD rejected the refugee claim and found that it was not necessary to review the basis of the claim.

Appeal before the RAD

[7]  When before the RAD, the applicant essentially submitted that her lack of education justified her insufficient and implausible answers provided during the hearing before the RPD. She said that she testified frankly and reminded the RAD of the presumption of Maldonado v Canada (Minister of Employment and Immigration) (1979), [1980] 2 FC 302, 1 ACWS (2nd) 167 (FCA) [Maldonado], in which what is alleged in the account is presumed to be true. She did not submit any new evidence. The appeal was determined without a hearing.

[8]  Relying on Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 [Huruglica], the RAD reviewed the RPD’s decision according to correctness, since it is not the applicant’s testimony before the RPD that is at issue, but rather the reason for her inconsistent explanations. After a thorough review of the evidence and the hearing’s recording, the RAD affirmed the RPD’s decision, finding that the respondent did not establish her identity. The RAD found that the RPD’s findings regarding the credibility of testimony are correct. The respondent’s lack of education and illiteracy are not a sufficient explanation to justify the numerous implausibilities, contradictions and inconsistencies or to justify a vague and evasive testimony. The presumption in Maldonado is reversed. The RAD noted that the RPD member conducted the hearing calmly and gave the applicant sufficient time to answer. Despite that, she was not able to give reasonable explanations on the topic on the major irregularities in her various identity documents.

[9]  Without reviewing all the irregularities or all of the explanations given by the applicant at the hearing before the RPD, the RAD essentially affirmed its finding for the following findings:

• The applicant was not able to explain how her identity documents were obtained and said that she was not aware of anything. The RAD found that being illiterate is not a sufficient explanation. She was able to get through her everyday life, find a job as a hairdresser and come to Canada. She should at the very least be aware of the procedure to follow and how her identity documents were obtained;

• Two documents were issued in Mali in 2015, while the applicant was already in Canada and had made no effort to obtain them. She stated at the hearing that she did not know how her friend had requested them;

• The only document with a photo, the national identity card, has significant irregularities. The absence of explanations from the applicant greatly taints her credibility and cannot be explained by her lack of education:

• o The fingerprints on the document do not belong to the applicant and it is not plausible that they belong to her partner. In fact, the briefing book on Mali explains that fingerprints are taken at the time of the request, when the applicant was present. The applicant had no explanations to give. The RAD also found it implausible that the authorities would issue official documents used for identification with just anyone’s fingerprints;

• o The applicant is unable to explain where the submitted documents came from in order to obtain that card. She affirmed at the hearing that document 26 had been submitted, but it was issued in 2014, after the card was obtained. The applicant then changed her testimony and told that she had submitted an old and worn-out birth certificate and that a new one had to be requested. Document 26 was then allegedly obtained a few days later by her partner, which is not credible, since document 26 was issued on October 27, 2014, 10 months after the request for the identity card in December 2013. The RAD found that those inconsistencies could not be explained by the applicant’s lack of education or illiteracy, and are instead a sign of a lack of credibility;

• o The applicant allegedly told an immigration officer in 2015 that this document was issued in Bamako, but it indicated that it had been issued in Baroueli. When confronted with this error, her only explanation was that she was confused by fatigue. She repeated this explanation before the RPD. The RAD found that the applicant should have been able to remember where such an important document was issued;

• o The address on the document was not what was provided by the applicant on her form. Once again, she had no explanation;

• o Like the RPD, the RAD found it strange that the national identity card had been issued in Baroueli, while the applicant lived in Gao, which is more than 1,000 km away. She explained that she had been arrested in Baroueli on her way to Bamako to celebrate Christmas, which, according to the RAD, lacks seriousness. The RAD also found that it is not plausible for her to have taken the entire trip without identity documents when the very reason for obtaining a national identity card was to have an identity document in case of roadblocks. The applicant had no explanation for that; and

• The birth certificate extract issued in 2015 referred to a “certified copy of a birth certificate”. The applicant appeared not to be aware of what that was. The RAD noted that a certified copy of a birth certificate is normally issued when there are no birth certificates. However, the applicant claimed that there was a torn original from 1990, and the document from December 2013 that was submitted. Therefore, the RAD found it inconsistent that there was a certified copy.

[10]  The RAD affirmed the RPD’s decision and dismissed the appeal.

The present application for judicial review

[11]  The only issue is to determine whether the RAD’s decision is reasonable (see Huruglica at para 35).

[12]  The applicant put forward three reasons for dismissal. First, the RAD did not consider her argument in which her lack of education explains why she entrusted third parties to obtain her identity documents and was not aware of the procedures that were taken. Instead, the RAD restricted itself to the illiteracy question. Second, she submitted that the RAD adopted an approach that was too Western by finding that it was illogical to obtain her identity card in Baroueli when she gave valid explanations regarding the question. Third, the RAD failed to consider a relevant document: birth certificate no. 347 from December 2013.

[13]  The respondent replies that the decision is clear, detailed and reasoned. The RAD closely reviewed the entire case, considered the grounds for appeal and listened to the recording of the hearing in order to make the same finding as the RPD. It falls to the applicant to submit sufficient evidence to establish identity, without which a refugee protection claim cannot be considered on its merits (see in particular section 106 and subsection 100(4) of the Immigration and Refugee Protection Act, SC 2001, c. 27 [IRPA]; section 11 of the Refugee Protection Division Rules, SOR/2012-256 [Rules]; see also Najam v Canada (Minister of Citizenship and Immigration), 2004 FC 425). The RAD appeared aware of the fact that the applicant is illiterate and has limited education, but that cannot justify her total ignorance of how the documents were issued and obtained, the flagrant irregularities in the documents, and the changing and evasive character of her testimony. The RAD can therefore draw negative inferences from those inconsistencies. Unlike what the applicant stated, the RAD’s decision also explicitly showed the consideration for her lack of education (see paras 11, 12, 17, and 24 of the decision) Lastly, the respondent submitted that the applicant’s argument regarding the failure to examine birth certificate no. 347 is not well founded. Relying on Rahal v. Canada (Citizenship and Immigration), 2012 FC 319 at paras 48, 50 and 53 [Rahal], counsel for the respondent immediately recalled at the hearing that a failure to explicitly consider an identity document is not in itself sufficient to render a decision unreasonable. Instead, it would be appropriate to consider the reasons as a whole to understand the RAD’s identity-related finding (see Barry v Canada (Citizenship and Immigration), 2014 FC 8 at paras 14 and 25). The identity question is in fact central to the RAD’s expertise, which calls for great deference from this Court. In addition, the applicant did not cite that document specifically as a ground for appeal and therefore cannot reproach the RAD for not reviewing that item in detail during the judicial review stage. Afterwards, paragraphs 15 and 23 of the decision show that the panel in fact considered that document: the RAD found it problematic that the applicant was unable to explain the source of her documents, including certificate no. 347. In addition, paragraph 23 shows that the RAD did not give probative value to that document due to inconsistencies related to the unexplained certified copy. In fact, it noted that it was inconsistent that a certified copy had to be issued in 2014 if there was already another birth certificate (no. 347) or the other certificate from 1990, which is an explicit consideration for this document. Lastly, whatever the case may be, birth certificate no. 347 would not be sufficient in itself to establish the applicant’s identity, given that it has no biometric data.

[14]  The RAD’s decision is reasonable and must be upheld. The arguments for dismissal that were submitted by the respondent are determinative.

[15]  Section 11 of the Rules states that “[t]he claimant must provide acceptable documents establishing their identity”. Therefore, the applicant has the heavy burden of producing acceptable documentation (for example, see Su v Canada (Citizenship and Immigration), 2012 FC 743 at para 4). Section 106 of the IRPA states that if a claimant who has not provided such documentation has not provided a reasonable explanation or has not taken reasonable steps to obtain the documentation, the RPD can take that into account in its analysis of credibility. To do this, the RPD must examine and weigh all the evidence, that is, the submitted identity documents, the applicant’s testimony, and the rest of the documentary evidence (for example, see Lin v Canada (Citizenship and Immigration), 2012 FC 157 at para 55). It then falls to the RAD to review those findings again during an appeal. This case is at the very core of its expertise and the Court must show great deference to it (see Rahal at para 48).

[16]  In this case, the RAD carried out a detailed review of the applicant’s record, the submitted identity documents, and the recording of the hearing before the RPD. It made a detailed, reasoned, and intelligible decision that broadly allowed the applicant to understand why her claim was rejected. In fact, the RAD took the time to review in a detailed manner all the numerous irregularities, inconsistencies and contradictions between the various submitted identity documents. It was right to draw those inferences from the evidence and the testimony, and then determine whether the applicant’s lack of education and illiteracy were sufficient to warrant them.

[17]  Unlike what the applicant claims, the decision clearly shows that there was consideration for her lack of education, as is illustrated by the explicit references to paragraphs 11, 12, 17, 22, and 24 of the decision. It cannot be found that the RAD restricted itself to the illiteracy question. Instead, it examined the illiteracy and the lack of education together — as two concepts that go together. All things considered, however, it found that this explanation was insufficient to justify the applicant’s total ignorance as to the origin of those identity documents and the procedures taken to obtain them. That finding is reasonable and based on the evidence on record. In fact, the RAD carefully reviewed the respondent’s testimony at the hearing before the RPD, noting the lack of explanations and non-answers for the questions.

[18]  The applicant also submits that the RAD allegedly adopted an approach that was too Western by determining that it was implausible for her to have obtained her identity card in Baroueli. I concur with the applicant that the RAD and the RPD had to be sensitive to the Malian cultural context. However, the RPD can find implausibilities that undermine the applicant’s credibility — as long as they are based on the evidence and expressed in clear and unmistakeable terms (see Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 9). Therefore, the RAD was entitled to review such findings and affirm them. In this case, the RAD explained in detail why it found it implausible that the applicant obtained her card in Baroueli, given its significant distance from her hometown of Gao and given the very reason of obtaining the card (the presence of numerous police roadblocks across the country), not to mention the lack of explanations when this inconsistency was highlighted to her. Therefore, the RAD’s finding is reasonable.

[19]  Lastly, the RAD considered document “birth certificate no. 347”. Indeed, the RAD cannot be reproached for not dealing with an argument that was not presented to it. However, it must make a decision based on all the evidence presented to the RPD (see subsection 110(3) of the IRPA). In this case, the applicant did not raise any new arguments, but instead submitted that relevant evidence was not considered. Whatever the case may be, the fact remains that the RAD gave sufficient weight to that document. In fact, what stands out from its reasons is that it examined the various birth certificates, but found that they were problematic in many regards. For example, it noted at paragraph 23 of its decision that it was inconsistent for a certified copy to be issued when birth certificate no. 347 from 2013 existed, since such a copy is generally issued if there is no birth certificate. That finding shows not only that the RAD considered that document, but also that its existence contributed to the general finding regarding the inconsistency of the submitted identity documents. Thus, even though the RAD had no reservations regarding certificate no. 347 in particular, when looking at all the documents, it was able to find inconsistencies in the evidence. Added to that is the fact that the applicant had no explanation for those inconsistencies or as to the source of any document, as the RAD found. Once again, that shows the consideration for certificate no. 347. Lastly, the respondent rightly highlights that birth certificate no. 347 would not have been sufficient in itself to prove the applicant’s identity even if the RAD had found it to be authentic. In fact, at pages 248–249 of the certified record, the analysis report from the Canada Border Services Agency recommended that it not be accepted as the sole proof of her identity due to the absence of biometric data.

[20]  Thus, it must be found that the applicant did not cite valid grounds for review that warrant the RAD’s decision being set aside, since it is reasonable as a whole.

Conclusion

[21]  For these reasons, the application for judicial review is dismissed. No questions of general importance were raised or arose in this case.

JUDGMENT in IMM-2824-17

THE COURT ORDERS that the application for judicial review be dismissed. No questions have been certified.

“Luc Martineau”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: