JUDGMENT AND REASONS

[1] Under section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the Applicant, Mahamadou TRERA [Applicant], seeks a judicial review of the rejection of his refugee protection appeal by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB]. The judicial review is dismissed for the following reasons.

I. Overview

[2] The Applicant alleges to be a citizen of Gambia. His claim at the Refugee Protection Division [RPD] was denied because the member was not satisfied that he had established his identity. The RAD dismissed his appeal and confirmed the decision of finding that the Applicant had failed to establish his identity and that his credibility, as it related to the question of identity, had been seriously undermined by significant discrepancies in his testimony and documentary evidence.

[3] Identity in refugee determination is a threshold issue, meaning that it is a crucial legal question that must be satisfied before other legal considerations can be examined.

II. Issues and Standard of Review

[4] The parties submit, and I agree with them, that the standard of review in this case is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]).

III. Legal Framework

[5] Section 106 of IRPA and Refugee Protection Division Rules, SOR/2012-256 [RPD Rules] Rule 11 are the relevant legal references for identity:

[6] RPD Rule 11 puts the onus on the refugee claimant to provide sufficient credible evidence to establish their identity and that if they do not have them, to provide a reasonable explanation. Claimants must establish the material facts of their claim, including on the question of identity, on the balance of probabilities:

[7] This Court has also consistently held that identity is the cornerstone of the Canadian immigration regime (Bah v Canada (Citizenship and Immigration), 2016 FC 373at para 7; see also Canada (Minister of Citizenship and Immigration) v Singh, 2004 FC 1634 at para 38; Canada (Citizenship and Immigration) v X, 2010 FC 1095, at para 23). As Justice LeBlanc stated in Canada (Public Safety and Emergency Preparedness)) v Gebreworld, 2018 FC 374 at para 21 “this is the case because a number of important factors in implementing this regime, such as admissibility in Canada, evaluating the need for protection, assessing the risk to public safety in Canada or the propensity to accept or reject the controls required by the Act, depend upon it.”

IV. Analysis

A. Was it reasonable for the RAD to conclude that the Applicant had not established his identity?

[8] In this case, to support his identity, the Applicant submitted only the copy of one identity document issued by Gambian authorities, namely the copy of his birth certificate. The copy did not contain a picture or security features. More probative documents, such as a passport or a national identity card were not submitted.

[9] The Applicant had also submitted school documents and documents issued to him in the United States as a refugee claimant when he was in that country from July 2016 to January 2019.

[10] I find that the RAD carefully reviewed the entire evidence which included the RPD record, including the transcript of the hearing. The RAD’s independent assessment of the record shows that it came to same conclusion as the RPD, that on a balance of probabilities, the Applicant had failed to establish his identity. The RAD provided a clear chain of reasoning as to why it came to this conclusion.

[11] For example, to conclude that it gave no probative value to the copy of the birth certificate, the RAD accepted the Applicant’s argument that the discrepancy in the date of birth between the birth certificate and the American refugee documents was probably due to the month followed by day US convention on using dates. However, it agreed with the RPD that not only was it a copy which contained no picture or security features, it was also registered in 2019 when the Applicant had testified at the RPD hearing that it was necessarily registered before 2019. This is because he had stated that he had a birth certificate before he left Gambia in 2016, which implies it was registered before 2016. There was no indication of multiple birth certificates, and he had stated that his birth was registered in 2019. Furthermore, the certificate indicated that an unknown person declared the Applicant’s birth while the Applicant stated that he asked his uncle to obtain the document. The RAD also engaged with the objective documentary evidence on Gambia and agreed with the RPD’s conclusion that the birth certificate was not issued in accordance with the procedure set out in those documents. It was based on these material inconsistencies that the RAD decided to assign no probative value to the photocopy of such birth certificate. This was reasonable and the RAD provided reasons that are transparent, intelligible and justifiable.

[12] The Applicant relied on Elhassan v Canada (Citizenship and Immigration), 2013 FC 1247 [Elhassan] to argue that documents issued by governments are presumed to be valid unless there is a valid reason to doubt their authenticity. Unlike in Elhassan where the Board had not ruled on the authenticity of the birth certificate, in this case, the RAD provided many reasons, such as it being a photocopy, not having a picture, its date of registration, to explain that the certificate would not amount to sufficient reliable evidence of the Applicant’s identity. In other words, the RAD reasons were focused on a transparent, intelligible and justifiable explanation of why the presumption was rebutted.

[13] The Applicant also relies on Flores v Canada (Minister of Citizenship and Immigration), 2005 FC 1138 at para 7 to argue that the same presumption should be extended to clear copies. I note that the reference to the copies in Flores was in reference to a rule that applied to the RPD prior the enactment of its new rules in December 2012. find that it was reasonable for the RAD to analyse the case under the applicable section of IRPA and rules.

[14] The Applicant also relied on Canada (Citizenship and Immigration) v Alazar, 2021 FC 637 and Iqbal v Canada (Citizenship and Immigration), 2022 FC 1126 to suggest that the mere availability or prevalence of fraudulent documents in a document is not enough to discount the authenticity of a government-issued document and that every document must be analysed individually. In this case, the RAD did not solely rely on the availability of fraudulent documents, and assessed the documents in their entire context to conclude that they did not amount to sufficient reliable evidence to establish the Applicant’s identity.

[15] Turning to the evaluation of the school documents, which also lack a photo, the RAD noted a discrepancy. It noted that the copy of the birth certificate shows a single name and surname for the Applicant, whereas his school records show a middle name as well. The RAD assessed the Applicant’s arguments on appeal and his explanations and, in the context of its independent analysis of the evidence, found that the RPD was correct in concluding that the school materials submitted in evidence have no probative value. The RAD reiterated that there is no need to take into account the different spellings of the Applicant’s surnames and first names in translations from Arabic. However, the RAD concluded that the fact that these school records include a middle name that does not appear on the applicant's birth certificate diminishes the probative value of the school records. The Applicant argued that he testified at his RPD hearing that because he had a common first name, the school used the children’s father’s name to distinguish between them. I find that the RAD analyzed the documents in its greater context, including the fact that there were no original documents before the RAD or the RPD. It was not based on any individual reason, but rather the assessment of the totality of the evidence before the RAD which led to its conclusion that the Applicant had not discharged his onus to prove his identity. I find that the Applicant wishes the RAD to have weighed the individual aspects of the evidence differently. The Court cannot interfere for that reason alone.

[16] Ultimately, the RAD made the following findings on a material omission and contradiction which can be summarized as follows:

• In an affidavit to the United States authorities, the Applicant stated that he had only two years of schooling. There is conflicting evidence as to the level of education of the Applicant and this seriously taints the probative value of these academic documents, which refer to studies in jurisprudence, essays, literature, English, Geography or History and Mathematics.

• In addition, the letter from the school is undated and indicates that the Applicant “has completed his studies at the school at this level during the current school year", without specifying which year it is.

[17] Finally, the RAD noted that school documents are not identity documents in the sense that they do not establish the citizenship of the student. This is reasonable and the RAD provided clear reasons for it in the context of the totality of the evidence that contained no original identity documents, no document with a picture, and material inconsistencies.

[18] The applicant relies on Mishel v Canada (Citizenship and Immigration), 2015 FC 226 at paras 22 –24 to argue that school documents are reliable. I do not agree with the Applicant’s characterization of the case. In that case, at para 22, IRB documentary evidence on the country of reference showed that in the context of that country, “Information from schools (on the students) are a more reliable way to confirm identity as the students’ parents names are generally included in this information.” The Federal Court assessed the reasonableness of the decision in the context of its facts and did not pronounce on a general rule applying to the probative value of school documents for establishing identity in all cases and for Applicants from all countries.

The Applicant also argued based on the finding in Isherwood-Brooks v Canada (Citizenship and Immigration), 2010 CanLII 95505 (CA IRB) at para 47, where the Immigration Appeal Division [IAD] found that school documents are reliable secondary documents. Again, the particulars of that case are fact specific and the IAD jurisprudence is not binding on this court. I find that in the absence of the sufficient credible primary documents, it was reasonable for the RAD not deem the school documents as sufficient evidence of identity. I find that the RAD’s reasons for giving no weight to the school records are sustained by a clear chain of reasoning.

[19] Finally, with respect to the US records, the RAD agreed that that there is no need to take into account differences resulting from possible errors in the Applicant’s date of birth, in the overall context where the Applicant arrived in the United States without written proof of his date of birth. Nevertheless, the RAD reasonably concluded that the RPD was correct in finding that the U.S. immigration record has no probative value in establishing the identity and the citizenship of the Applicant as those documents do not establish the identity and citizenship of Gambian nationals especially since those US documents are not based on Gambian documents. The RPD transcript makes it clear that he testified he had lost his passport and national identity card on the way to the US. I find that the RAD’s findings are reasonable, rationally connected to the evidence, and clearly explained.

[20] The Applicant agreed that the US documents are insufficient to prove identity but argued that the RAD erred in not seeing it as supportive documents. He relied on Yusuf Adan v Canada (Citizenship and Immigration), 2022 FC 1383 at para 59 [Yusuf Adan] to argue that the RAD should have viewed all the documents in their totality and in context. I find that this is exactly what the RAD did, and instead the Applicant does not agree with how the RAD weighed the evidence.

[21] In fact, I am guided by the comments of Justice Norris on the issue of identity in Yusuf Adan

[55] Together, section 11 of the Rules and section 106 of the IRPA place the onus on a claimant to provide acceptable documentation establishing their identity. Obviously, to be able to provide such documentation, the claimant must be in possession of it. If a claimant does not possess acceptable documentation establishing identity, they must provide a reasonable explanation for why this is the case or demonstrate that reasonable steps were taken to obtain such documentation. This is a heavy burden: see Su at para 4; Malambu v Canada (Citizenship and Immigration), 2015 FC 763 at para 41; and Tesfagaber v Canada (Citizenship and Immigration), 2018 FC 988 at para 28.

[22] Ultimately, having considered the record before it, which included the RPD transcript and decision, the parties’ written and oral submissions, as well as the applicable law, the RAD concluded that the Applicant failed to meet their onus to establish his identity.

[23] The Applicant argued that given the Applicant’s particular circumstances, he could not have been expected to have better documents. However, this does not change the fact that the onus remained with the Applicant, and the RAD considered his explanation in the context of the entirety of the record.

[24] I am further guided by the comments of Justice Lafrenière on questions of identity and the RAD’s expertise:

“Questions of identity of a claimant are within the RAD’s expertise and the Court should give it significant deference. The Court will only interfere if the decision under review lacks justification, transparency or intelligibility, and falls outside the range of possible, acceptable outcomes which are defensible on the particular facts of the case and in law” (Kagere v Canada (Citizenship and Immigration), 2019 FC 910 at para 11).

[25] Having considered both parties’ arguments, and the record before the RAD, I have not been persuaded that the RAD committed a reviewable error in its analysis of the Applicant’s identity documents. As stated above, the RAD is owed significant deference on this issue. Given the evidence in the present matter, and the RAD’s detailed consideration of each document and the Applicant’s explanations, I do not find there are grounds to intervene. Ultimately, I find the arguments submitted by the Applicant to be impermissible requests to reweigh the evidence considered by the RAD, which is not the function of this Court on judicial review (Vavilov, at para 125).

V. Conclusion

[26] For the foregoing reasons, I conclude that the RAD decision meets the standard of reasonableness set out in Vavilov. This application for judicial review is therefore dismissed.

[27] No serious question of general importance for certification was proposed by the parties, and I agree that no such question arises.

JUDGMENT IN IMM-15822-23

THIS COURT’S JUDGMENT is that

1. The Application for Judicial Review is dismissed.

2. There is no question to be certified.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: