TB8-08484

RAD File / Dossier de la SAR : TB8-08484 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal

XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 1, 2020 Date de la décision Panel L. Gamble Tribunal Counsel for the person who is the subject of the appeal Bola Adetunji Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX XXXX (the Appellant), citizen of Tanzania, appeals a decision of the Refugee Protection Division (RPD), dated March 15, 2018, rejecting his claim for refugee protection. The Appellant has submitted two pieces of new evidence, and requests than an oral hearing be held before the Refugee Appeal Division (RAD).

DETERMINATION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant has not credibly established his identity on a balance of probabilities; as this threshold issue is unsatisfied, he is neither a Convention refugee nor a person in need of protection. Background [3] The Appellant alleges persecution from the Tanzanian government and his community due to his membership in a particular social group, because of his sexual orientation as a gay man.

ANALYSIS Role of the RAD [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The evidence presented by the Appellant is rejected [5] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [7] The Appellant has submitted two pieces of new evidence which he requests be admitted for this appeal, pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). These documents are: a. A driver's license from The Revolutionary Government of Zanzibar, bearing the name "XXXX XXXX XXXX", issued XXXX XXXX, 2018;4 and b. Affidavit of XXXX XXXX XXXX, signed XXXX XXXX XXXX 2018.5 [8] The Appellant submits that item (a), the driver's license, was newly issued to him by the Revolutionary Government of Zanzibar on XXXX XXXX XXXX 2018, via his brother in Tanzania. He states that he requested his brother obtain this driver's license on his behalf in Tanzania - his third now submitted in support of this claim - after the RPD advised him at his hearing that there were errors with

his two previous driver's licenses. He states: "I am already on their [the Tanzanian authorities'] system at the driver license office and they issued another one to me through my brother based on my information in their records."6 Although this item is included as new evidence submitted post-perfection of the appeal pursuant to Rule 29 of the RAD Rules, the Appellant makes no submissions whatsoever on the factors required to admit new evidence as set out in Rule 29.7 On the Appellant's behalf, his counsel merely submits that the driver's license was not in the Appellant's possession prior to the rejection of his claim by the RPD, as the Appellant could not have reasonably expected his two prior driver's licenses would be rejected by the RPD as non-genuine documents; thus, the need for additional documents only became apparent with the decision of the RPD.8 The Appellant states that this driver's license now "confirms" that he, the Appellant, is "XXXX XXXX XXXX XXXX" and therefore the RAD should admit it.9 [9] I recognize that item (a) is new insofar as the date of issuance on the license itself, XXXX XXXX XXXX 2018, post-dates the rejection of the Appellant's claim by the RPD. However, I am not convinced that this document is sufficiently credible, on its face, to be admitted as evidence in the present appeal. My reasons are as follows: a. Name: Since the Appellant states that

item (a) was issued to him in his absence "based on my information on their [the Tanzanian authorities'] records"10, it would be reasonable to expect that his basic personal details would accord with what he claims are two driver's licenses previously issued to him, in 2012 ("the first driver's license") and again in 2014 ("the second driver's license") to correct the error in his name which appeared on the first driver's license, per the Appellant's testimony at the RPD.11 While the first driver's license set out his name as "XXXX XXXX XXXX", the second one - allegedly issued for the purpose of correcting his name - sets out his name as "XXXX XXXX XXXX XXXX XXXX." Although the Appellant now states the new evidence in item (a) was issued based on the Tanzanian government's previous record of him, it is issued in the same name as the first driver's license, XXXX XXXX XXXX. I would note that this therefore does not resolve the RPD's concern that the Appellant has not established his name, as it merely adds confusion to his name; and in addition, it does not appear credible on its face that it would be issued to XXXX XXXX XXXX when the prior most recent license issued by the same authority had already allegedly corrected his name to XXXX XXXX XXXX XXXX XXXX. b. Validity: Item (a) shows a period of license validity of only two years, whereas the previous two driver's licenses both

reflect a period of validity of three years. It is not credible that the license in item (a) would depart from the apparently standard period of validity as reflected on the other two licenses, without explanation. c. Class: The Appellant's first driver's license indicates that he was licensed to drive class A, B1, C, and D vehicles, which vehicle types are specified on the back of the card. The Appellant's second driver's license, which he testified he had sought merely to correct his name from his first license, inexplicably only licensed him to drive class A, B1, and C vehicles (not Class D vehicles as reflected on his previous license). The third driver's license submitted at item (a), although according to the Appellant it was issued in his absence based on the records already held by the Tanzanian authorities on him, now reflects that the Appellant is again licensed to drive class A, B1, C, and D vehicles - which is inconsistent with the most recent prior record for him, and is not reasonably explained if this license was issued simply based on his records, and in his absence from the country. d. Blood Type: The Appellant's first license lists his blood type as XXXX XXXX but his second license lists no blood type. The third license in item (a) is again inconsistent with the most recent record, as it now lists his blood type as XXXX XXXX. There is no explanation for this

inconsistency, and I find it is not credible that the Appellant would have had the third license, item (a), issued to him in his absence based on the Tanzanian authorities' record of him, and yet it is inconsistent with the more recent (second) driver's license. [10] For all these reasons, I find that item (a) is not credible on its face, and therefore is not admissible as new evidence. In addition, I do not find it to be relevant, as it only reflects the Appellant's identity as "XXXX XXXX XXXX", the same as his first driver's license, and therefore does not establish his identity as "XXXX XXXX XXXX XXXX" as the Appellant states.12 Since this license only reflects the Appellant's name as "XXXX XXXX XXXX", this license is not relevant in that it does not establish the Appellant's personal identity in a way that reconciles the issue raised by the first two driver's licenses which were considered by the RPD. Therefore, item (a) is not credible or relevant, and I decline to admit it. [11] The Appellant submits that item (b), the affidavit of XXXX XXXX XXXX, is new as it post-dates the rejection of his claim because it was sworn on XXXX XXXX, 2018. The Appellant simply asserts he could not have anticipated the rejection of his driver's licenses and other documents by the RPD, and therefore did not submit the affidavit of his family friend, XXXX XXXX XXXX, prior to the rejection of

his claim.13 According to the affidavit, XXXX XXXX XXXX attests that he has known the Appellant since their youth in Zanzibar, and that they first met in person in Canada in XXXX, 2016.14 The information in the affidavit speaks only to an affirmation of the Appellant's identity claim, and states that the affiant knew the Appellant and his parents from growing up in Zanzibar; therefore, the information contained in the affidavit cannot be said to post-date the rejection of the Appellant's claim. [12] Moreover, I cannot accept the Appellant's assertion that he did not present the affidavit of XXXX XXXX XXXX before the RPD as he could not have anticipated that the RPD would reject his identity claim. The Appellant had his hearing on January 9, 2018, and that hearing focused on the sole issue of identity. At that hearing, the numerous problems with the Appellant's identity documents were put to him. The RPD did not render its negative decision in his claim until March 15, 2018, more than two months later; yet, the Appellant did not indicate during his hearing or at any point post-hearing that he sought to present additional evidence in relation to his identity, including information from XXXX XXXX XXXX with whom the Appellant was apparently in contact since XXXX, 2016. [13] It is the refugee claimant's responsibility to prove their identity, and to bring their best evidence before

the RPD. Subsection 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.15 In the RAD's view, the Appellant's explanation for not having submitted this evidence from XXXX XXXX XXXX before the RPD does not satisfy the requirements of subsection 110(4), as there is nothing that would have precluded the affiant from submitting the information contained in the present affidavit before the RPD. I find that the Appellant could have been reasonably expected in the circumstances to provide the affidavit prior to the RPD's decision. Identity is an issue in every claim, and the Appellant's identity was the central focus of his hearing. In addition, the Basis of Claim instructions indicate that all claimants are responsible for providing credible evidence to establish their claim, and the Appellant was represented by counsel. Therefore, I do not accept that this item could not have reasonably been expected to have been provided before the rejection of the Appellant's claim by the RPD, particularly as XXXX XXXX XXXX attests that he and the Appellant were in personal contact since XXXX 2016, two years before the Appellant's claim was heard. For these reasons, I am not satisfied that item (b) is new, as it does not satisfy the

requirements of subsection 110(4); therefore, it is not admissible, and I decline to admit it. [14] Items (a) and (b) are rejected as they do not meet the criteria for admissibility in the present appeal. Request for oral hearing rejected [15] The Appellant requests an oral hearing with respect to the new evidence adduced, pursuant to subsection 110(6) of the IRPA.16 When read together, subsections 110(3), (4) and (6) of the IRPA establish that the RAD must not hold a hearing unless there is new evidence admitted in accordance with the provisions of subsection 110(4), which raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision and that, if accepted, would justify allowing or rejecting the refugee protection claim. As no new evidence has been admitted, the statutory conditions are not met. Therefore, the Appellant's request for an oral hearing is denied. Merits of the Appeal [16] In the present appeal, the Appellant makes no submission as to any errors made by the RPD in its decision rejecting his claim. The Appellant's only submission that the two items submitted as new evidence in this appeal establish his identity such that the RPD's "previous finding on [the Appellant's] identity is not sustainable."17 As both of the new evidence items (a) and (b) were found inadmissible, and in the absence of any challenge to the RPD's

findings, I cannot find that there is any basis on which to reach a conclusion other than that the Appellant has not credibly established his identity on a balance of probabilities. After my own review of the record, I can find no error by the RPD. I find the RPD was correct in making the negative findings on identity and credibility that it did, and I concur with the conclusions of the RPD for the same reasons.18

CONCLUSION [17] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) L. Gamble L. Gamble September 1, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 2 Immigration and Refugee Protection Act (S.C. 2001, c. 27), as amended, at ss. 110(4). 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, as endorsed in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230 [Singh]. 4 Exhibit P-3, Rule 29, (May 16, 2018), p. 10. 5 Exhibit P-2, Appellant's Record, pp. 23-24. 6 Exhibit P-3, Rule 29, (May 16, 2018), p. 8, para. 3. 7 Refugee Appeal Division Rules (SOR/2012-257), rule 29(4). 8 Ibid., pp. 24-25, paras. 13-14. 9 Ibid., p. 20, para. 8. 10 Ibid., p. 8, para. 3. 11 Exhibit RPD-1, RPD Record, RPD Reasons, p. 8, para. 18. 12 Exhibit P-2, Appellant's Record, p. 37, para. 8. 13 Exhibit P-2, Appellant's Record, p. 20, para. 3. 14 Ibid., p. 23, para. 2. 15 Singh, supra, endnote 3, para. 54. 16 Exhibit P-2, Appellant's Record, p. 21, para. 4. 17 Ibid., p. 42, para. 16. 18 Tekle v. Canada (Citizenship and Immigration), 2017 FC 1040 (CanLII),

para 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-08484 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français