DJENEBA SOW Applicant v. MINISTER OF CITIZENSHIP AND IMMIGRATION, 2016 FC 584

Date: 20160526 Docket: IMM-3557-15 Citation: 2016 FC 584 Ottawa, Ontario, May 26, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: DJENEBA SOW Applicant and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. INTRODUCTION [ 1 ] Ms. Djeneba Sow (the “Applicant”) seeks judicial review of a decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”), dated July 17, 2015. In that decision, the RAD confirmed the decision of the Immigration and Refugee Board, Refugee Protection Division (the “RPD”) whereby the Applicant’s claim for protection pursuant to

section 96 and subsection 97(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “Act”) was dismissed. II. BACKGROUND [ 2 ] The Applicant sought protection under the Act on the basis of her identity as a citizen of Mauritania who feared being killed or forced into slavery, if returned to her country of nationality. She claimed that she had been enslaved for a seven-year period during which she had been abused and raped by her captors. [ 3 ] The RPD did not believe that the Applicant was credible with respect to her evidence establishing identity.

It found that she had not established her identity as a citizen of Mauritania and said the following at paragraph 18 of its decision: The panel finds that the claimant has not established her personal or national identity and has not made reasonable attempts to do so.

In addition, the panel assigned a significant negative credibility inference to the claimant’s testimony in support of her identity and nationality. [ 4 ] Upon her appeal to the RAD, the Applicant sought to introduce new evidence consisting of the following: - the affidavit of Germaine Ngono, a social worker, dated November 8, 2013; - the affidavit of Ziah Sumar, an articling student employed by the Applicant’s Counsel, dated November 12, 2013; - an email from Counsel for the Applicant to the Consulate of Mauritania dated November 1, 2013; - an email from Counsel for the Applicant to the Consulate of Mauritania date November 11, 2013; and - the affidavit of Emre Esensoy, law clerk employed by the Applicant’s Counsel, dated May 7, 2014. [ 5 ] In conjunction with her efforts to introduce new evidence, the Applicant requested an oral hearing.

III. THE DECISION OF THE RAD [ 6 ] The RAD addressed itself to subsection 110(4) of the Act . It determined that the first item of new evidence, the affidavit of Germain Ngono, tendered to support the Applicant’s identity, was admissible because it purported to address issues that arose during the RPD hearing.

However, the RAD assigned this document little evidentiary weight because it did not provide independent evidence to establish the Applicant’s identity. [ 7 ] In considering the second item, that is the affidavit of an articling student employed by Counsel for the Applicant, the RAD found that it did not provide evidence to confirm the identity of the Applicant and assigned it very little weight. [ 8 ] The RAD accepted items three and four, that is emails, as new evidence, on the basis that the emails described efforts of the

Applicant’s Counsel to obtain further information about the identity of the Applicant. At paragraph 29, the RAD expressed its ownopinion about the proposed new evidence as follows: The RAD finds that the proposed new evidence (items one to four) provide evidence of the Appellant’s activities to locate her originalbirth certificate or obtain replacement identity documents. These documents have adduced no persuasive evidence to support the identityof the Appellant.

The RAD will consider and address the Appellant’s inability to obtain replacement identity documents with “the meritsof the appeal” below. [9] The fifth item, the affidavit of Emre Esensoy, was not admitted as new evidence since the RAD found that the Applicant hadnot provided an adequate explanation why this document could not have been provided to the RPD. [10] The RAD proceeded to review its role, in light of the decision of the Federal Court in Huruglica v.

Canada (Minister ofCitizenship and Immigration), 2014 FC 799 , [2014] 4 F.C.R. 811. [11] The RAD accorded little weight to a photocopy of the Applicant’s birth certificate which had been in evidence before theRPD and rejected by that tribunal, as being evidence capable of proving her identity. Ultimately, the RAD concluded that in its review ofthe record of proceedings before the RPD, including review of an audio recording of the Applicant’s hearing, that there was “sufficientevidence to support the RPD’s overall determination” and dismissed the appeal. IV. SUBMISSIONS A.

The Applicant [12] In this application for judicial review, the Applicant argues that the RAD unreasonably determined that she had failed toestablish her identity. She submits that the RAD failed to adequately consider her attempts to obtain documentation to establish heridentity as required by

section 106 of the Act. [13]

Section 106 provides as follows: 106 The Refugee Protection Division musttake into account, with respect to thecredibility of a claimant, whether theclaimant possesses acceptable documentationestablishing identity, and if not, whether theyhave provided a reasonable explanation forthe lack of documentation or have takenreasonable steps to obtain the documentation. 106 La

Section de la protection des réfugiésprend en compte, s’agissant de crédibilité, lefait que, n’étant pas muni de papiersd’identité acceptables, le demandeur ne peutraisonnablement en justifier la raison et n’apas pris les mesures voulues pour s’enprocurer. [14] The Applicant submits that the proper application of

section 106 requires the RPD to consider first whether there is acceptabledocumentation to establish identity, and if there is not, to determine if an applicant took reasonable steps to obtain that documentation;see the decisions in Zheng v. Canada (Citizenship and Immigration)(2008) 2008 FC 877 , 74 Imm. L.R. (3d) 28 (F.C.) atparagraph 14 and Sow v. Canada (Minister of Citizenship and Immigration) (2015), 2015 FC 295 , 472 F.T.R. 303. [15] The decision making power of the RAD is set out in subsection 111(1) of the Act which provides as follows: 111

(1) After considering the appeal, theRefugee Appeal Division shall make one of the followingdecisions: 111

(1) La

Section d’appel des réfugiésconfirme la décision attaquée, casse ladécision et y substitue la décision qui auraitdû être rendue ou renvoie, conformément àses instructions, l’affaire à la

Section de laprotection des réfugiés. (

a) confirm the determination of the RefugeeProtection Division; [EN BLANC/BLANK] (

b) set aside the determination and substitutea determination that, in its opinion, shouldhave been made; or [EN BLANC/BLANK] (

c) refer the matter to the Refugee ProtectionDivision for re-determination, giving thedirections to the Refugee Protection Divisionthat it considers appropriate. [EN BLANC/BLANK] [16] In my opinion, this provision implicitly authorizes the RAD to exercise certain functions of the RPD depending upon the

nature of the issue before the RAD. Since the RAD is mandated to set aside a decision the RPD and substitute its own determination, itcan interpret and apply

section 106. [17] The RAD found that it was reasonable to believe that other methods were available to establish her identity but failed toarticulate what those methods were. The Applicant argues that this finding is baseless and arbitrary and amounts to a reviewable error;see the decision in Sharfi v. Canada (Minister of Citizenship and Immigration) (2005) 2005 FC 714 , 277 F.T.R. 104 (F.C.). [18] The Applicant also argues that the RAD’s independent assessment of the photocopy of her birth certificate and the affidavit ofImam Daouda Sy was unreasonable.

According to the Applicant, the RAD made inconsistent findings about the Applicant’s reason forphotocopying her birth certificate. She further submits that the RAD failed to apply the presumption that a document is presumed to begenuine; see the decision in Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587. [19] The Applicant challenges the little weight afforded to the affidavit of Imam Daouda Sy by the RAD.

She submits that theaffidavit lends credibility to her identity and has value. [20] The Applicant also argues that the RAD breached procedural fairness by failing to conduct an oral hearing despite the factthat her credibility was a central issue. She submits the RAD made several negative credibility findings without putting those concernsbefore her. B. The Minister of Citizenship and Immigration (the “Respondent”) [21] The Respondent submits that the standard of review of the RAD’s assessment of evidence is reviewable on the standard ofreasonableness; see Sow, supra and Singh v.

Minister of Citizenship and Immigration, 2014 FC 1022. [22] The Respondent argues that the Applicant bore the burden of establishing her identity and the RAD reasonably determinedthat she did not discharge that burden. [23] The Respondent submits that the RAD considered the evidence about the Applicant’s efforts to obtain documents establishingher identity and found those efforts were not reasonable. Contrary to the Applicant’s submissions, the RPD did specify other avenues bywhich she could obtain identity documents, including contacting government offices in Mauritania.

Further, the Respondent contendsthat the RAD does not need to specify more avenues. [24] The Respondent argues that the RAD’s decision was reasonable because its finding, that the Applicant had not established heridentity, was based upon the lack of credible documentation and the lack of credible testimony. [25] In response to the Applicant’s argument that the RAD made inconsistent findings about her birth certificate, the Respondentsays paragraph 42 of the decision is a typographical error. [26] The Respondent submits that the RAD reasonably rejected the photocopy of the birth certificate; see the decisions inPetlyuchenko v.

Minister of Citizenship and Immigration, 2002 FCT 982 and Sedov v. Minister of Citizenship and Immigration, [1999]F.C.J. No. 1667. [27] Finally, the Respondent argues that no breach of procedural fairness arose from the failure to hold an oral hearing. Section110(6) of the Act prescribes when the RAD may hold a hearing:

(6) The Refugee Appeal Division may hold ahearing if, in its opinion, there isdocumentary evidence referred to insubsection (3)

(6) La

section peut tenir une audience si elleestime qu’il existe des éléments de preuvedocumentaire visés au paragraphe (3) qui, àla fois :(

a) that raises a serious issue with respect tothe credibility of the person who is thesubject of the appeal;

a) soulèvent une question importante en cequi concerne la crédibilité de la personne encause;(

b) that is central to the decision with respectto the refugee protection claim; and

b) sont essentiels pour la prise de la décisionrelative à la demande d’asile;(

c) that, if accepted, would justify allowing orrejecting the refugee protection claim.

c) à supposer qu’ils soient admis,justifieraient que la demande d’asile soitaccordée ou refusée, selon le cas. [28] The Respondent submits that since the Applicant failed to establish her identity, the RAD was not required to consider themerits of her claim, including the credibility of the Applicant. [29] Subsequent to the hearing of this application for judicial review on February 1, 2016, the Federal Court of Appeal deliveredits decision in Minister of Citizenship and Immigration v. Singh, 2016 FCA 96.

Pursuant to a Direction issued on April 1, 2016, theparties were given the opportunity to comment on the application of that decision to this matter. [30] The Applicant filed further submissions on April 5, 2016 in which she argued that the decision in Singh, supra did not apply tothis proceeding as that decision addressed the admission of evidence under section 110(4) of the Act. [31] The Respondent in a letter dated April 8, 2016 agreed that the Singh decision did not have an impact on the present judicialreview application.

V. DISCUSSION [32] The Applicant raises two discrete issues in this application. The first, an issue of procedural fairness, is reviewable on thestandard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339at paragraph 43.

The second, broadly speaking, applies to the ultimate conclusion of the RAD, that she had failed to establish heridentity; that is a question of fact reviewable on the standard of reasonableness; see the decision in Sow, supra at paragraph 9. [33] The Applicant’s submissions about breach of procedural fairness turn on the refusal of the RAD to convene an oral hearing ofher appeal, after it had decided to accept the new evidence presented. The acceptance of new evidence by the RAD does notautomatically mean that an oral hearing will be accorded.

I referred to subsection 110(6) of the Act, which is set out above. [34] In my opinion, this provision gives the RAD discretion whether to allow an oral hearing, when it accepts new evidence.

Sinceit has a discretion, it is not obliged to conduct an oral hearing, arguably on the grounds that it is satisfied that it can determine therelevant issue without a hearing. [35] I am not persuaded that a breach of procedural fairness arose from the RAD’s decision to proceed without an oral hearing. [36] The next question is whether the RAD’s ultimate conclusion, that the Applicant had failed to establish her identity withreliable and probative evidence, is reasonable. In my opinion, it is. [37] The RAD considered the photocopy of the birth certificate presented by the Applicant.

In my opinion, the presumption ofvalidity that generally applies to official government documents does not apply to a photocopy of such a document. [38] I have reviewed the affidavits that were presented by the Applicant. I see no reviewable error in the findings of the RAD thatthe affidavits were insufficient to overcome the concerns about the Applicant’s identity. [39] While the new evidence presented by the Applicant shows her efforts to obtain further documentation, I am not persuaded thatthe RAD erred in its assessment of that evidence.

In my opinion, the Applicant seeks to have this court re-weigh evidence that wasbefore the RAD, which is not the appropriate role of a reviewing court; see the decision in Khosa, supra at paragraph 61. [40] The jurisprudence is well established that the failure of an applicant to establish his or her identity is fatal to furtherconsideration of a claim for protection; see the decisions in Rahal v. Canada (Minister of Citizenship & Immigration), 2012 FC 319 andFlores v.

Canada (Minister of Citizenship and Immigration), 2005 FC 1138. [41] In the result, I am satisfied that no reviewable error has been shown and this application for judicial review is dismissed, thereis no question for certification arising. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review was dismissed, no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3557-15 STYLE OF CAUSE: DJENEBA SOW v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TOROnto, ontario DATE OF HEARING: February 1, 2016JUDGMENT AND reasons: HENEGHAN J.

DATED: May 26, 2016 APPEARANCES:

Aadil Mangalji For The Applicant Jelena Urosevic For The Respondent SOLICITORS OF RECORD : Long Mangalji LLP Barristers & Solicitors Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada Toronto, Ontario For The Respondent