Mohamed v. Canada (Citizenship and Immigration)

Mohamed v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-12-03
Neutral citation
2019 FC 1537
File numbers
IMM-520-19
Decision Content
Date: 20191203
Docket: IMM-520-19
Citation: 2019 FC 1537
Ottawa, Ontario, December 3, 2019
PRESENT: The Honourable Mr. Justice Annis
BETWEEN:
ARAM AHMED MOHAMMED MOHAMMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Introduction
[1] Aram Ahmed Mohammed Mohammed [the Applicant] seeks judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, LC 2001, c 27 [IRPA] of a decision of the Refugee Appeal Division [RAD] dated December 19, 2018. The RAD upheld the rejection of the Applicant’s refugee claim by the Refugee Protection Division [RPD].
[2] The RPD dismissed the Applicant's claim for refugee protection on the basis that he lacked credibility, while the RAD similarly found that the determinative issue was credibility.
[3] This application for judicial review is dismissed for the reasons that follow.
II. Background
[4] The Applicant claims he worked as an auditor accountant for “Unit 70” in the civil force of the Peshmerga, the armed forces of the Kurdish Regional Government in Iraq. He testified that in August 2015, he prepared a list of 115 phantom employees, i.e. people who were receiving salaries but doing no work. Because of his report, the 115 phantom employees were terminated. Sixty-three of the 115 were said to work for “section 136” of the Peshmerga, which is commanded by the notoriously powerful Mahmood Sangawi. The Applicant claims that this led to him being threatened by three armed men who were associated with section 136. They warned him not to search for any more phantom employees.
[5] On October 12, 2015, he prepared another list of people he suspected of being phantom employees and, once again, they were terminated. Of the 130 people on this list, 55 were from section 136. On the same day, the Applicant claims that he learned men were looking for him with the aim of killing him. He immediately went into hiding. He testified that on October 16, 2015, a group of five soldiers came to his family’s home and, when they would not reveal his whereabouts, they beat his brother. While in hiding, he applied for a Canadian visa, pretending he was part of a group attending a trade show in Toronto. The visa was granted, and he left Iraq on November 30, 2015. He claimed refugee status in December 2015.
[6] On September 29, 2017, the RPD heard the Applicant’s claim for refugee protection and on November 3, 2017, the RPD dismissed it on the basis that he lacked credibility. The Applicant then appealed to the RAD.
A. RPD and RAD Decisions
[7] The RAD noted that the RPD found that the Applicant was not credible for the following four reasons:
a) It was not satisfied that the Applicant worked for the Peshmerga;
b) A letter from the Applicant’s cousin was inconsistent with the Applicant‘s testimony;
c) The Applicant's testimony about a hospital letter was inconsistent and evolving; and
d) There was an unexplained delay in claiming refugee protection.
1. Applicant working for the Peshmerga
[8] The RPD made the following findings regarding the Applicant working for the Peshmerga in the civilian force:
(i) His testimony about how he investigated referrals of potential phantom employees was not consistent or detailed.
[9] The RAD reviewed the Applicant’s testimony about how he investigated referrals of potential phantom employees and noted it was long and complex and that significant prompting was required from the RPD. However, the RAD did not find inconsistency in the Applicant’s testimony in this area, although it found that the Applicant's testimony about his role in determining phantom employees was lacking in the level of detail that would be expected of someone employed as alleged.
(ii) His employee ID document warranted little weight. The RAD noted that the RPD pointed out that the Applicant’s official employee identity card showed him dressed in a military uniform and indicated that he had a military ranking.
[10] When asked for an explanation, given his evidence that he was a civilian personnel, the Applicant said that the rank was for the purposes of identifying his pay grade. He further testified that he did not own a uniform, but that he wore one provided by the photographer in order to get his picture taken for his identity card. The RPD concluded that if the organization is willing and, in fact, requires its identification documents to contain false information, by their nature, they are unreliable. It found no independent evidence before it to suggest that these rules or requirements exist or how they are administered, and thus found that the rank and photo do not reflect reality, although the rest of the information is accurate
[11] The RAD agreed with the RPD that it was implausible that a civilian employee would be required to put on a military uniform, furnished by the photographer, in order to have his or her photograph taken for an employee identity card.
[12] The RAD also reviewed the original identity document, and questioned whether it was physically forged. The RAD also looked at a magnified version of the original identity document, from which it concluded that the photograph had been pasted onto the card before it was laminated, and the banner of the card also appeared to have been pasted onto the card with part of the pasted banner being uneven. Despite these apparent physical attributes of the card, the RAD was unwilling to find that the identity card was forged, as it agreed with the Applicant that it would be inappropriate to apply Canadian standards to the Peshmerga.
[13] Nevertheless, the RAD found that the fact that the employee identity document depicted the Applicant, a civilian, in military dress undermined its authenticity. As such, the RAD found that the identity card alone did not prove that the Applicant was an employee of the Peshmerga.
(iii) The RPD found that a letter from the Ministry of Peshmerga, Unit 70, to the Shorsh Hospital indicating that the Appellant was a "civic employee" and asking that the hospital "help him and do what is necessary" was deserving of minimal weight.
[14] The RPD found that it could give only minimal weight to the letter since it was not clear why the Applicant would need it if he was already with the Peshmerga. The Applicant later submitted that it also served as a “kind of sick note” to allow him to miss work. The RAD found that the letter had probative value, and that the Applicant’s testimony about this letter was not inconsistent.
(iv) The RPD made a negative inference from the absolute lack of any other evidence to support the claimant’s alleged work with the Peshmerga.
[15] The RAD noted that the RPD held that, given the Applicant alleged that he worked for the Peshmerga for over a year, it would have expected him to provide more supporting evidence, especially given his profession as an accountant. In particular, it mentioned the absence of photographs, emails, letters, and other official documentation. The RPD found that the Applicant's sworn testimony with respect to him being precluded by law from obtaining work-related supporting documentation was not reasonable and not supported.
[16] The RAD noted that the RPD’s finding that the Applicant's sworn testimony that he was precluded by law from obtaining work-related supporting documentation was not reasonable, and moreover, had been confirmed by the Applicant in submissions to the RAD. The Applicant had no explanation as to why he was unable to obtain supporting evidence other than his misapprehension of the law. The RAD found that such a misapprehension, arrived at without undertaking any efforts to determine if his understanding was true, did not provide a reasonable explanation for the paucity of documentation to support his claim that he worked for the Peshmerga.
[17] The RAD found that the Applicant provided insufficient supporting documentation to show that he worked for the Peshmerga without a reasonable explanation, citing Rule 11 of the Refugee Protection Division Rules (SOR/2012-256).
(v) The Applicant claimed to work for an organization other than the Peshmerga on his Canadian visa application.
[18] The RAD noted that the RPD concluded that the Applicant, in his Canadian visa application, did not claim to work for the Peshmerga: he claimed to work at a different job at a different company. Despite the Applicant's testimony, that the information provided on the application was false and that a company aided in this fraud as a favour to him, the RPD concluded that it could not rely on his testimony as he was not being truthful about his employer on his visa application.
[19] The RAD found that the Applicant's testimony that the job outlined on the Canadian visa application was false, and supported by the company that fraudulently claimed him as an employee as a favour. Nevertheless, it provided a reasonable explanation of why his visa application did not show that the Peshmerga employed the Applicant.
2. Letter from Cousin not Inconsistent
[20] The RAD analyzed the letter from the Applicant's cousin and found that while it was confusing, it was not inconsistent with the Applicant’s testimony. However, the RAD also found that while the letter provided support for the Applicant's claim to have stayed with his cousin on the evening of August 20, 2015, the letter was of no value in corroborating the Applicant’s testimony that alleged events took place; it merely featured the Applicant's cousin repeating information that was provided by the Applicant.
3. Doctor’s letter confirming soldiers attending at brother’s house not genuine
[21] The RPD concluded that the Applicant's testimony was inconsistent and evolving regarding a letter from a doctor relating to an injury the Applicant’s brother claimed to have suffered when a group of soldiers came to the Applicant‘s family home searching for him. Among other problems concerning the letter, the Applicant stated that his brother had received the letter more recently, allegedly soon before the hearing, so the date on the letter was wrong. The RPD stated that it would have expected the Applicant to initially point out the misstated date. The RPD found it was more likely that the Applicant created an explanation rather than spontaneously giving a truthful response. In addition, the RPD deemed the letter unreliable as it was written long after the event, but back dated to the day of the alleged injury.
[22] The RAD concluded that the letter was not genuine and that the Applicant's brother was not injured in the manner described by the Applicant. The RAD found that the Applicant’s reliance on a fabricated letter undermined his credibility.
4. Delay in advancing asylum claim
[23] The RPD identified testimonial contradictions that detracted from the Applicant’s general credibility concerning the time he took to file his asylum claim after arriving in Canada. The Applicant testified that he required information on how to proceed and did not know how to search the Internet or speak English well enough to do so. The RPD found the explanation improbable given the Applicant’s background as an accountant and auditor, that he had completed part of his studies in English, and owned a smartphone. The Applicant changed his testimony to indicate that the problem was that he lacked access to the internet while in hiding. The RAD agreed that the Applicant's testimony that he did not know how to search the internet was implausible, given his profile, and found further that the fact that he changed this testimony later in the hearing - claiming that the internet was unavailable - undermined his credibility.
B. New evidence before the RAD
[24] The Applicant sought to introduce the following documents as new evidence:
A copy of an administrative order dated February 11, 2014, indicating that a letter of referral from the Peshmerga was required in order for an employee to receive medical treatment;
A letter from the “Ministry of Peshmerga” dated January 10, 2018, stating he had worked for the Peshmerga civilian force as an accountant from June 1, 2014, to October, 2015;
Three Peshmerga employee identity cards; and
Photographs from his workplace.
[25] The RAD rejected all of the above new evidence because it did not comply with subsection 110(4) of IRPA, noting that the threshold for the admission of new evidence is high. The RAD rejected a “natural justice” submission that a refusal by the RPD to verify his employee identity card was tantamount to the RPD indicating the identity card was not a factual concern.
[26] Concerning the administrative order about the policy for medical treatment, the RAD found there was no indication that this document was not reasonably available or that the Applicant could not reasonably have been expected to present it at the time of the RPD’s rejection of the claim. Additionally, the RAD found that the Applicant had every opportunity to submit the document between the hearing and within one month before the RPD rejected the claim.
[27] As for the letter from the “Ministry of Peshmerga” confirming the Applicant’s employment, the Applicant argued that he had not previously requested it because he had mistakenly presumed it was not available unless he requested it in person. The RAD decided that this mistaken assumption could not support a conclusion that the document was not reasonably available. The RAD further noted that an experienced counsel represented the Applicant, who should have advised him of the importance of proving that the Peshmerga employed him.
[28] Regarding the three Peshmerga employee identity cards, , the Applicant had every opportunity to submit the identity cards, including after the hearing but before the claim was denied, yet he once again failed to do so.
[29] Finally, the photographs were found inadmissible because the Applicant’s explanation – that it did not occur to him to submit these photographs – was unreasonable on its face.
C. The Determinative Issue: Credibility
[30] The RAD found that the determinative issue before it was credibility. It reassessed the evidence that was before the RPD and, while not upholding the RPD in many instances, nevertheless, confirmed the significant credibility problems in lengthy and detailed reasons.
[31] In summary, the RAD agreed with the RPD that the evidence of the Applicant’s employment by the Peshmerga - the affidavit of a co-worker, the identity card and the letter from the Peshmerga to a hospital - was limited in nature. Despite finding some aspects of the RPD’s analysis to be in error, the RAD was in agreement with other important aspects of the RPD’s analysis and found that the Applicant provided insufficient evidence to support his claims in many respects, in addition to having significant credibility problems. When balancing these problems against his supporting documents, not including the rejected findings, the RAD concluded that the Applicant was generally lacking in credibility and on a balance of probabilities, members of the Peshmerga due to his accounting activities were not pursuing the Applicant.
III. Issues
[32] The Applicant submits that this case raises the following three issues:
Whether the RAD Member’s refusal to accept new evidence was unreasonable;
Whether the RAD Member breached natural justice by raising a new argument to which the Applicant did not have a chance to respond; and
Whether the RAD Member’s decision was unreasonable based on the evidence he agreed to consider.
IV. Standard of Review
[33] With respect to the new evidence, “the RAD’s interpretation of subsection 110(4) of the IRPA [is] subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.” (Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, para 29).
[34] Whether the RAD breached a rule of natural justice is subject to a correctness standard (Kastrati v. Canada (Citizenship and Immigration), 2008 FC 1141).
[35] Process fact-finding errors, otherwise described in Federal Court jurisprudence as “reviewable errors”, are subject to a standard of correctness (Kallab v. Canada (Citizenship and Immigration), 2019 FC 706, at paras 31 to 33).
[36] Whether the decision is “defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, para 47) first depends upon what facts have been found by the decision-maker without error. Assessment findings of fact, inferences of fact, and questions of mixed fact and law where the legal issue is not extricable, may only be overturned when the error is palpable (also defined as an error that is plainly seen) and overriding. (Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 at paragraph 53 [Jean Pierre], per Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at paragraphs 1, 4, 5, 21-23 and 32-33, Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339 at paragraph 61, Kallab v. Canada (Citizenship and Immigration), 2019 FC 706, and Aldarwish v. Canada (Citizenship and Immigration), 2019 FC 1265, paras 22-42).
V. Analysis
A. Whether the RAD Member’s refusal to accept any new evidence was unreasonable.
[37] As indicated, for the most part, the RAD rejected the new evidence because it found there was no indication that the documents were not reasonably available at the time of the RPD hearing, or that the Applicant could not reasonably have been expected to present them before its decision was issued.
[38] Such documentation was available as confirmed by the Applicant’s responses to the RPD Member’s questions regarding the absence of similar corroborating evidence. When asked whether he had any records from his time working at the Ministry, he replied “No, I only have my ID in order to prove that I was with the Ministry of Peshmerga”. When asked why he had no further documents, the Applicant replied as follows “Because nothing happened in order to motivate me to get some documentation, such as I did not seek to get letters of going to hospital or I did not need any kind of support to ask them for letters of support”. Similarly, when questioned if he contacted anyone in the force to ask them if they could provide documents or assistance for filing his claim, he replied in the negative and stated “Because I did not know it is necessary. I thought my ID would suffice for all of that”. The RAD noted that the same lawyer in both proceedings represented the Applicant.
[39] These admissions are sufficient to dispose of any argument supporting the introduction of the new evidence, including his submission that he could not have reasonably anticipated the requirement to prove employment in the civil force in advance of the hearing (Shafi v. Canada (MCI) 2005 FC 714). Furthermore, there is the obvious contradiction of the identification document that depicts and states that he is a member of the military force.
[40] The Applicant also submits that the “Member’s argument that the Applicant could have and should have thought to get all this evidence during the time between the hearing and the RPD Member’s decision is unreasonable. It was not evidence in his control.” First, a reason of the Member is not an “argument”, but rather a finding supported by evidence. If the Applicant thought that obtaining such evidence was beyond his control, he should have advanced that ground rather than saying he did not think it was necessary.
[41] Moreover, it is not logically arguable that a claimant is not required to produce documentation “as long as the documentation is outside of Canada and outside the Applicant’s control”, (Owusu-Ansah v. Canada (Minister of Employment and Immigration), 98 NR 312 at para 10) when the Applicant subsequently obtained the new supporting documents and placed them before the RAD.
[42] Equally unsupportable is the argument concerning the delay in obtaining such corroborating information from coworkers because “none of them believed that it was possible that a Canadian official would disbelieve I worked in the Peshmerga Unit 70 accounting and payroll office.” The RAD quite properly rejected the assertion by the Applicant that “his former co-workers in Iraq did not think it possible that a Canadian official would not accept this” as an unreasonable explanation. In addition, the RAD noted that he ought to have sought advice from his counsel on this issue, not from his coworkers.
[43] Furthermore, the evidence before the RAD intended to demonstrate that the Applicant’s coworkers would not believe that a Canadian official would not accept that he was a civilian employee, was contained in an affidavit of the Applicant, and not in affidavits from the coworkers. The fact that the same counsel throughout all the proceedings represented the Applicant suggests that there was some difficulty in obtaining this information directly from the coworkers supposedly reluctant to be of assistance in the first instance.
[44] The Applicant made a second submission for not presenting the new evidence before the RPD: i.e. that issues concerning his identity could not have been reasonably anticipated in advance of the hearing. This conclusion also flies in the face of the evidence. The principal evidence to prove that he was a member of the civil force was based upon his identity card. On its face, the card depicted and stated that the Applicant was a member of the military force. Perhaps somehow the Applicant and his counsel overlooked such an obvious inconsistency in this singularly significant piece of evidence. This is no answer on the part of the Applicant to the significant requirement , to introduce highly objective corroborative evidence from the Peshmerga as the only means to counter the strong presumption that an employer would not issue an employment identity document that purposely misrepresented the employment identity of its bearer.
[45] The Applicant then attempted to advance a natural justice issue raising a similarly unfounded submission of an alleged form of estoppel: that the RPD Member had misled him and his counsel during the hearing, that the authenticity of the identity document was not a factual concern, when it turns out that it was. I reject this argument for a number of reasons.
[46] First, the Applicant relied on the decision in Sivamoorthy v. MCI, 2003 FCT 408 [Sivamoorthy] for the proposition “that even if a Board Member had not explicitly ruled that an identity document was accepted, the hearing proceeding could leave the impression that it was no longer challenged.” The RAD was entirely correct in stating: “Clearly the facts in Sivamoorthy are materially different from those in the instant case as regards to any representations made by the Board decision-maker.”
[47] In Sivamoorthy, which did not concern introducing new evidence before the RAD, the facts provided a very sound basis for the RPD to conclude that the decision-maker “left the impression that it [the ID document] was no longer challenged”. Those facts bear no resemblance to this matter. In Sivamoorthy, the Sri Lanka authorities had confirmed that the original identification document was genuine. At the pre-hearing conference, counsel for the applicant indicated on several occasions that it was his understanding that, since the document had been confirmed genuine, identity was no longer an issue. Specifically, when asked whether the applicant’s brother would be testifying, counsel stated "I don't think it's necessary for him to give evidence, since we've verified the NIC. So, I don't intend to call him as a witness." In such circumstances, the admission of further evidence on the authenticity of the identification card was perfectly reasonable given the explicit prejudicial reliance by counsel of his understanding that it was not an issue, which the RPD did not contradict.
[48] Second, I reject the submission that the RPD Member raised unanticipated doubts at the hearing, such that he had no reason to think he still needed to file more evidence before the decision was rendered, as follows:
The RPD Member raised unanticipated doubts at the hearing and was specifically offered that she could have the identity document verified. She chose not to. Once she chose not to the Applicant had no reason to think he still needed to file more evidence proving he worked for the Peshmerga.
[49] The Applicant misstates the facts that he was left with unanticipated doubts that he had not provided sufficient evidence, or that the RPD Member had somehow induced him into some form of injurious reliance. This is confirmed in the transcript of the discussion on this issue, which I find is accurately summarized by the RAD Member and implicitly points out [with my emphasis] that the necessary information regarding the misstatement on the card could only be obtained from the Peshmerga forces as follows:
[38] It is also clear from the recording that the RPD did not, at any time, indicate that it accepted the Appellant’s counsel’s arguments or that the validity of the identity card was no longer in issue. Instead, it indicated that it did not believe that attempting an authentication would be practical for the following reasons: a) “I doubt that they have a specimen of this particular card -- to compare against ”; b) the Appellant’s counsel’s claim that the Canadian Armed forces work with the Peshmerga sometimes did not “mean the --- RCMP document centre in Canada would have copies of local Peshmerga Forces ID cards”; and, c) the RPD thought it was not practical “to send [the document] to Iraq to be verified by [Canadian] soldiers in Iraq who are working with Peshmerga Forces there.” The fact that counsel signalled his client’s willingness to consent to the identity card did not create an obligation on the RPD to do so; nor, by not doing so, did the RPD restrict its ability to find the identity card to be problematic.
[50] Third, the Applicant’s final submission attempts to incorporate his breach of natural justice arguments relating to an unfounded allegation that the RAD Member found the identification card to be forged, as follows:
The issue is whether a reasonable person would expect that even after the RPD Member chose not to pursue verification, and even though the Applicant had submitted ample corroboration, the RPD Member would find that the identity card was forged and he had not been a Peshmerga employee.
[51] The argument is largely dealt with by the RAD’s rejection of the argument referred to above. It is also highly erroneous to state that the identity card had been amply corroborated, given the significant misstatements on the face of the card. Nonetheless, it is the Applicant’s submissions that confuse the concept of physical forgery, which was raised by the RAD and dropped, with “forgery” by the contradictory depiction of him as a member of the military force of the Peshmerga. This latter issue was always in contention throughout the RPD hearing. I consider and reject this allegation in the second issue of an alleged breach of natural justice, which follows below.
[52] Lastly, the Applicant argues that “[i]t is also unreasonable for the RAD Member to simultaneously insist that the Applicant has provided insufficient evidence that he was employed by the Peshmerga, yet [to refuse] to accept new evidence” to corroborate what was before the RAD. This argument demonstrates that the Applicant does not understand the objective behind subsection 110(4) of IRPA. The policy underlying subsection 110(4) and related provisions is to require parties to put their best case forward before the RPD to prevent wasting valuable decision-making resources by thwarting claimants from rearguing the same issues before the RAD based on evidence that was available before the RPD rendered its decision.
[53] Accordingly, for the reasons described above, the refusal of RAD to admit the new documentation is upheld.
B. Whether Member breached natural justice by raising new argument he did not confront the Applicant with
[54] The Applicant’s submission regarding the RAD basing its decision on a new undisclosed argument of forgery is as follows, with the Court’s emphasis:
The RAD Member breached natural justice, by getting a “magnified version” of the Peshmerga identity card made, deciding he could perceive things which are not discernible when the original card is examined, however carefully and basing a decision on his undisclosed methodology without disclosing any of this to the Applicant. Although the identity card’s authenticity was evidently at issue, the RAD Member’s methodology, his creation of a “magnified version” and his new purported concerns were all left undisclosed.
[55] As indicated above, the RAD undertook a physical examination of the original exhibit. This examination is different in terms of the issue it raises concerning the findings of the RPD and the RAD that the contents of the card were irreconcilable with his claim to be a civil member of the Peshmerga force. The statement on the card that the Applicant is a member of the military force describes the authenticity issue in this matter. It is not the physical forgery of the document. The Applicant eventually acknowledged it had no bearing on the decision, recognizing that the RAD Member specifically concluded that the document was not forged after carrying out his physical examination using magnification, stating as follows:
[34] … Having said that, I am unwilling to find that the identity card was forged. I agree with the Appellant that it would be inappropriate to apply Canadian standards to the Peshmerga: they may have a system of making identity cards by physically pasting pictures and banners onto a card.
[56] This completely disposes of the natural justice argument of the RAD basing its decision on an undisclosed methodology without providing the Applicant with an opportunity to respond. However, the Court will respond to the Applicant’s related submissions also advanced under the heading of procedural unfairness, but which are actually unreasonableness submissions regarding the RAD’s findings and thus not reviewed on a correctness standard.
[57] The Applicant attempts to move off the misstatement of an alleged failure of natural justice with a number of submissions that challenge the reasonableness of the Member’s reasoning. Particularly, the Applicant attempts to make a logical submission that the RAD’s acceptance of the document’s physical authenticity should have been equally applied to accept that the contents of the document must be authentic as well. In attempting to support this argument, the Applicant misapprehends and incorrectly cites the decision of Marshall v. Canada (Citizenship and Immigration), 2009 FC 622 [Marshall] for the proposition that “an official document is either genuine or forged, so it cannot be ambivalently dismissed as having ‘little weight’”.
[58] Chief Justice Lutfy makes no such statement as that described above. Instead his comment at paragraph 3 entirely supports the Member’s approach, as follows with this Court’s emphasis:
[3] On the other hand, if the PRRA officer accepted that the letter was genuine but was not satisfied with its substantive information, he was required to explain why he assigned little weight to its contents.
[59] A finding on one aspect of the physical authenticity of the document does not preclude its weight being diminished for the purpose of a distinct determination on an issue unrelated to physical appearances of the document. It is obvious in this case why there were questions about the authenticity of the contents of the card that violate its very purpose of reliably identifying the bearer of the card.
[60] The Applicant also argues that there is a contradiction in the reasoning of the Member by dismissing that the card was physically forged because he cannot impose Canadian standards on the Peshmerga, yet not applying the same reasoning to its contents depicting him as a member of the military force. I disagree. It is one thing for the RAD Member to accept that “they may have a system of making identity cards by physically pasting pictures and banners onto a card”. It is quite another to accept that an identity card would intentionally violate the purpose of the document, being that of accurately identifying and describing significant attributes of the bearer of the card.
[61] Despite acknowledging that the Member did not find that the document was forged based on his physical examination, the Applicant nevertheless addressed the issue of impropriety of the examination of a magnified version in paragraphs 28 to 31 and separately thereafter at paragraphs 50 to 57. The Applicant rationalizes his arguments as follows:
After finding that he cannot find it forged, he finds it inauthentic because he presumed a real Peshmerga card could not have a photograph of a civilian employee in military uniform. This is irrational as an official document either is or is not forged, and there is no difference between saying a document is forged or a document is inauthentic because it includes an improper photograph. The RAD Member has no grasp of his own findings.
[62] Counsel does himself disservice by making such derogatory statements of the like that the RAD Member’s reasoning is irrational and that he has no grasp of his own findings. Such statements also violate the Law Society Profession Rules. Section 5.6 of the Rules under the title Encouraging Respect for the Administration of Justice at subparagraph 3 states as follows:
3] Criticizing Tribunals - Although proceedings and decisions of tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers, judges and members of tribunals are often prohibited by law or custom from defending themselves. Their inability to do so imposes special responsibilities upon lawyers.
….
Third, where a tribunal is the object of unjust criticism, a lawyer, as a participant in the administration of justice, is uniquely able to and should support the tribunal, both because its members cannot defend themselves and because in doing so the lawyer is contributing to greater public understanding of and therefore respect for the legal system.
[63] Moreover, there is no basis for the criticism. The Applicant’s complaint was that natural justice was denied because the member obtained a magnified depiction of the identification card and based his decision on this undisclosed methodology. I repeat that it is obvious that the Member did not base his decision on this methodology, which makes the Applicant’s submission misleading.
[64] Instead, the Applicant attempts to tie the undisclosed and ultimately irrelevant methodology of the physical examination of the card to the very relevant and obvious issue that haunted the Applicant from the beginning of his claim of civil status being irreconcilable with the authenticity of the card that depicts and states him to be a member of the military force.
[65] Thus, the statement in the Applicant’s memorandum that it was “after finding that he cannot find it forged, he finds it inauthentic” because it does not properly depict the Applicant, is incorrect. The finding was only that its apparent lack of authenticity undermines the weight it provides the Applicant’s claim to be a civil member of the Force. Moreover, right from the start, the irreconcilable depiction of the Applicant as a member of the military force was front and centre to this proceeding, and no aspect of it gives rise to any issue of natural justice.
[66] The document is obviously inauthentic because it represents the Applicant as a member of the military force, which he admits is not a true fact. The Applicant testified that the misdepiction and misstatement on the identity document was for providing an appropriate salary scale. This evidence appears highly antithetical to the purpose of the card, and an extremely roundabout and misleading way for a government agency to establish salary scales, rather than managers and owners simply setting the wage scale as is the practice around the world.
[67] The explanation that military ranks are used for the purpose of salary designations also does not appear to be supported by the evidence, at least not from the following line of questions that opened up the issue in the first place.
Member: Did you ask for personal protection?
Claimant: You mean someone personally protect me?
Member: Yes.
Claimant: No, because I was a civilian and it is not part of their policy to give protection to civilian forces.
Member: What does that mean, that you were civilian or civilian forces? What is the difference?
Claimant: [referring to the interpreter] You know how it is in Kurdistan, the people who are with the armed forces, they are given guards to protect them but the people who are civilians are not given guards to protect them.
Member: Okay, but I'm talking in general in the military, not in this particular [inaudible 1:41:38.5]. What is the difference between civilian forces that you say you're part of and actual armed forces?
Claimant: When they say “civilian” this person's duty is completely civilian, even in the salary that he is receiving it is noted that this person is a civilian. What does that mean that this person will not pick up arms and will not go to any war scenarios. He is not allowed to use or carry any type of weapon because the Peshmerga are the ones who have the weapons because they would be fighters.
Member: Any other differences other than not going to war?
Claimant: That is the extent of my knowledge.
Member: Was the ranking system different?
Claimant: Yes, it is different. Like in the military, for example, they have officers.
Member: What about the civilian side? It is
Claimant: There is no officer ranks among the civilians.
Member: Did you dress the same?
Claimant: No, the civilians we wear whatever we wear, the casual, just like this, but the Peshmerga are supposed to wear the uniform, like a military uniform.
Member: Do you have a uniform?
Claimant: No
Member: Why are you wearing what appears to be military uniform in your ID card?
Claimant: Yes that is true because I was working in the Peshmerga section. They have given me a rank in order to give me the salary. Also a part of the organisations are the Ministry of Peshmerga. Just for the purpose of that picture we were supposed to have Peshmerga uniform for the photo.
[68] Finally, the Applicant also encounters his own logic anomaly. If the RAD Member were to accept that the card was authentic in describing him as a member of the military force, this would foreclose any submission that he was a member of the civilian force. It was only by finding that the card was not forged, but lacked authenticity in depicting him in this fashion that the Member could provide some weight to the card.
[69] The Applicant does not realize that RAD is accepting his evidence that a government would misrepresent to the world the status of the bearer of an identity card, contrary to the very purpose of the card. The RAD gives the card some weight, contrary to the RPD’s conclusion that the irreconcilable depiction prevents him from giving the document any weight. Frankly, it does so without providing an explanation why the RPD erred in its conclusion that the document should be given no weight. In my view, either Board could reasonably have found the “irrational” document should weigh heavily against the Applicant’s claim to be a member of the civil force.
[70] The Applicant further argues that the Member should not speculate about how a security force operating under a subtle foreign dictatorship might function stating that “the RAD Member is s