Last Updated on January 7, 2016 by Steven Meurrens
A challenge that arises in many refugee claims where a claimant has used fraudulent documents to travel to Canada is the balancing of the need to determine a claimant’s identity with jurisprudence that cautions against drawing negative credibility findings from the use of false documents where refugee claimants have little choice but to to use false documents to leave their country.
In Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105, for example, the Federal Court stated that:
… this Court has repeatedly cautioned against drawing negative conclusions based on the use of smugglers and forged documents to escape violence and persecution. Travelling on false documents or destroying travel documents is of very limited value as a determination of the claimant’s credibility. This is partly because it is not uncommon for a person fleeing persecution to follow the instructions of the person(s) organizing their escape.
Another, and perhaps the most frequently cited case on this principle, is Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587, where the Federal Court stated that:
Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent’s instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee.
As the Federal Court recently noted in Koffi v. Canada (Citizenship and Immigration), 2016 FC 4, refugee claimants must also establish their identity. In Koffi, while the Court found that applicants must establish their personal identity with reliable and probative evidence, their secondary evidence should not be given very little weight just because they used fraudulent documents to travel to Canada.
When are Documents Fake?
Federal Court jurisprudence establishes that there must be some reason or evidence to rebut the presumption that government-issued documents are valid. There must be evidence to rebut this presumption. To rebut the presumption of validity, the evidence or reason for doubting the documents must be more than general statements about country conditions.
As the Federal Court recently noted in Adesida v. Canada (Citizenship and Immigration):
In this matter the RAD admitted the documents. While it is not clear from its reasons it appears that, to some extent, the RAD may be questioning their genuineness. However, if that is the case, it provides no reason or evidence to rebut the presumption that the new evidence, government-issued documents, are not valid. Nor does it address what appears to be security features on the birth certificate and certificate of origin. This Court has previously held that the existence of official stamps constitutes a security feature for the purposes of evaluating authenticity (Dai v Canada (Citizenship and Immigration), 2015 FC 723 at para 27; see also: Elhassan v Canada (Citizenship and Immigration), 2013 FC 1247 at para 22; Ru v Canada (Citizenship and Immigration), 2011 FC 935 at para 21; Zheng v Canada (Citizenship and Immigration), 2008 FC 877 at para 18).