Weighing Evidence - Chapter 7: Evidence of Identity

​​​​Previous |  Table of Contents |  Next

7. Evidence of Identity

“Identity” most commonly refers to the name or names that a person uses or has used to identify themself. “Identity” also includes indications of personal status such as country of nationality or former habitual residence, citizenship, race, ethnicity, linguistic background, and political, religious, or social affiliation.

This chapter primarily focusses on weighing evidence of identity in refugee determination proceedings. However, various principles described below may also be applicable when weighing evidence of identity in other types of proceedings before the IRB.

7.1 Refugee claimant's obligation to establish identity

The issue of identity is fundamental to claims pursuant to sections 96 and 97 of the IRPA.Footnote 150 Both the IRPA and RPD Rules contain specific provisions governing evidence of identity before the RPD. Section 106 of the IRPA states:

The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation [emphasis added].

RPD Rule 11 (formerly Rule 7) states:

The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them [emphasis added].

Together, section 106 and Rule 11 place the onus on the claimant to provide acceptable documentation to establish their identity on a balance of probabilities.Footnote 151 If a claimant cannot obtain such documentation, they must provide a reasonable explanation for its absence or demonstrate what reasonable steps were taken to obtain it. The language of each provision is mandatory, though neither provision states how this factor is to be weighed in a particular case.

What is considered “acceptable documentation” to establish identity is for the panel to determine on a case-by-case basis. In Omaboe,Footnote 152 the Federal Court described claimants' obligations under section 106 and Rule 11 as being a “heavy burden.”

In Matanga,Footnote 153 the Federal Court explained that it is essential for a claimant to be able to submit acceptable documentation to establish their identity and journey to Canada. Under section 106 of IRPA, the RPD can take account of the lack of acceptable proof of identity in assessing the claimant's credibility. In some cases, if a claimant gives serious explanations, the panel may excuse the loss or absence of acceptable documents. In this case, however, the claimant did not provide any serious explanation for the loss of her false French passport and the lack of official documentation establishing her identity. The court upheld the RPD's rejection of the claim on the basis that identity had not been established.

In Pazmandi,Footnote 154 the Federal Court held that section 106 refers only to personal and/or national identity. The court found that while ethnicity may be considered part of one's identity (like religion, sexuality, and other fundamental personal characteristics), it does not fall within the scope of “identity” as contemplated by section 106. Such personal characteristics are captured by Rule 11 of the RPD Rules.

The Federal Court has said the issue of identity is “at the very core of the RPD's expertise”, and the RPD's determination of identity warrants deference.Footnote 155

Weighing identity documents

In Teweldebrhan,Footnote 156 the Federal Court held that the IRB is required to consider and weigh all documents submitted by a claimant in support of their identity:

[19] Notwithstanding that the RPD was entitled to set aside the presumption of validity of Mr. Teweldebrhan's identity documents, it was still required to at least consider and assess the authenticity and probative value of each of those documents, as well as the affidavits and the letters that he submitted in support of his application […]. The RPD's failure to do so rendered unreasonable its determination that Mr. Tewelderbrhan had not established his identity on a balance of probabilities.

In Nur,Footnote 157 the court held that it is trite law that each relevant piece of evidence must be examined separately, and while authenticity concerns about documents submitted by a claimant can be grounds to closely scrutinize other evidence submitted in support of the claim, it is not reasonable or justifiable to lump the evidence together and treat it as an undifferentiated mass. Rather, the evidence should be individually examined and then the panel may draw overall conclusions regarding the credibility or sufficiency of the evidence taken as a whole.

The classification of an identity document as being primary, as opposed to secondary or tertiary, may assist the panel in determining the weight to be given to it. However, the Federal Court has cautioned that a panel should not place excessive reliance on such a classification.Footnote 158

In the absence of corroborating documents, identity may be established through credible testimony and a reasonable explanation for not having identity documents available. Evidence bearing on unsuccessful steps taken to obtain identity documents is relevant and may overcome a concern about the adequacy of what was produced, bearing in mind that, in some parts of the world, cogent identity documents may be difficult if not impossible to obtain.Footnote 159

The panel should give a document no weight in establishing a person's identity if it finds the document to be false or inauthentic.Footnote 160 Furthermore, submitting a false document may have an impact on other credibility determinations made with respect to a claimant.Footnote 161

The IRB is recognized as possessing expertise in the evaluation of the authenticity of identity documents. Foreign identity documents (i.e. documents purporting to be issued by a competent foreign public official) should be accepted as evidence of their content unless there is a valid reason for doubting their authenticity.Footnote 162 However, if there are irregularities on the face of an identity document (e.g., absence of a photograph, spelling errors, irregular lettering, inconsistent alignment, erasures), the panel may, in the absence of a satisfactory explanation, discount its weight without seeking an expert assessment of the document.Footnote 163 Similarly, the panel may find an individual is or is not the person depicted in a photograph, and expert evidence on this issue is not required.Footnote 164

In Zhuang,Footnote 165 the Federal Court held that inconsistencies on the face of a document that are identified by comparison with sample documents contained in the NDP may provide grounds, in whole or in part, to conclude that a submitted document is not genuine.

The Federal Court has held that the panel may consider evidence of the widespread availability of fraudulent documents in a country, however this is not, by itself, a sufficient basis for rejecting documents from that country.Footnote 166 It may be a relevant factor if there are other reasons to question the authenticity of a document or a person's credibility.

In Attakora,Footnote 167 the Federal Court of Appeal found the fact that a refugee claimant had destroyed false travel documents on his way to Canada had no relevance to any issue the IRB had to decide. The claimant had explained that he had destroyed the documents out of fear that, if they were discovered, he might be arrested and returned to his home country. However, in Katsiashvili,Footnote 168 thecourt held it was open to the RPD to reject as unreasonable the claimant's explanations for destroying his genuine passport and failing to take steps to obtain additional identity documents.

The panel must provide a person with notice of—and an opportunity to address—its concerns about the authenticity of identity documents they provided.Footnote 169 The panel may rely on its specialized knowledge of country documentation (e.g., the indicia of genuine documents from a specific country or the fact that claimants from a particular country usually come with certain documents), provided it first declares its specialized knowledge and gives the parties an opportunity to respond under the relevant rules.Footnote 170

7.3 Failure to establish i​dentity

As stated above, proof of identity is an essential requirement for a person who is claiming refugee protection. Without this, there can be no sound basis for testing or verifying the claims of persecution or determining the claimant's true nationality.Footnote 171 It is trite law that, in situations where a claimant has not established identity, a negative conclusion as to credibility will almost inevitably be drawn and can be dispositive of the claim in and of itself.Footnote 172