TB4-04955

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 File No. / N° de dossier de la SAR : TB4-04955 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 17, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister T. Lucas Conseil du ministre REASONS FOR DECISION [1] This is an appeal from the Minister of Citizenship and Immigration Canada (the Appellant) regarding XXXX XXXX XXXX, (the Respondent), who was found to be a Convention refugee by the Refugee Protection Division (RPD). [2] The Appellant requests that, pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act,(the Act) the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute a decision that the Respondent is neither a Convention refugee nor a person in need of protection and that his claim is manifestly unfounded, per section 107.1 of the Act as it is clearly fraudulent. [3] The Appellant provided new documents to be considered as new evidence pursuant to s. 110(3) of the Immigration and Refugee Protection Act (the Act), and did not seek a hearing before the RAD. DETERMINATION [4] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes a decision that the Respondent is neither a Convention refugee nor a person in need of protection. This appeal is allowed. Background [5] The Respondent alleged before the RPD that he is a member of the minority XXXX XXXX clan and the XXXX sub-clan who worked as XXXX in the town of XXXX in the lower Shabelle region where the Al Shabaab militants threatened and assaulted him, and shot two of his sons, and his daughter and brother are missing. In XXXX 2013, he escaped to Kenya. He found an agent to help him travel to Canada in approximately February 2014 where he claimed protection. The RPD's determinative issues were identity and credibility. [6] The Appellant submits that the document presented as evidence was not before the RPD panel, and it goes to the very heart of the Respondent's claim for refugee protection in Canada. [7] The document submitted by the Appellant to be considered as evidence is a biometric match with the Respondent's fingerprints as reported by authorities in the United Kingdom. The Appellant submits that, as part of the standard in-Canada refugee claim processing, the Respondent's fingerprints were obtained by Canadian immigration officials when he made his claim on March 14, 2014, in Toronto. These fingerprints were subsequently shared - unaccompanied by any biographic information to identify the Respondent - with the United Kingdom Border Agency. On May XXXX, 2014 the United Kingdom reported a biometric match with the Respondent's fingerprints that the Respondent was fingerprinted on October XXXX, 2004, in Croydon (London), when making an application for asylum in the United Kingdom.1 [8] The RAD finds that the new document meets the statutory conditions of the Act. The information in these documents may have probative value considering the fact that the Appellant alleges that it is central to the appeal. The Appellant submits that the information in the document is relevant, and it contradicts the identity of the Respondent what he declared to Canadian officials in the process of claiming refugee protection. The Appellant alleges that the document reveals that the Respondent is known to authorities in the United Kingdom by a different name and date of birth, and that the Respondent has concealed his refugee claim and citizenship in the United Kingdom. [9] I find that the documents submitted by the Minister are relevant and they are from a credible source. The British government does not have an interest in the outcome of this appeal and, therefore, the evidence provided by the British authorities to the Minister and by the Minister to the RAD is accepted as new evidence. [10] The Minister provided evidence to the RAD that the Appellant was also served the appeal and the related documents by the Minister. [11] The Appellant did not respond to the Minister's appeal. [12] I am guided by the Federal Court in in Huruglica,2 which states: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [13] In this case, the Minister's evidence, which remains unchallenged, shows that the Respondent entered the UK, that the Respondent was fingerprinted on October XXXX, 2004 in Croydon (London), and that he made an application for asylum in the United Kingdom.3 [14] According to the Minister's evidence, the Respondent used the following in his asylum claim in the UK: Family name: XXXX; Given name: XXXX XXXX; Date of birth: XXXX XXXX, 1966. [15] The evidence also shows that the UK authorities granted asylum to the Respondent on November XXXX, 2004 with indefinite leave to remain in the United Kingdom. Moreover, the Respondent was naturalized as a citizen of the UK on January XXXX, 2011.4 [16] The evidence also shows that the Minister queried the system of record with the identity particulars that the Respondent used in the UK and confirmed that the Respondent entered Canada at Toronto on January 17, 2014, using a UK passport no XXXX.5 [17] Based on the foregoing and considering the fact that the Respondent, even though represented for the RAD appeal, did not contest the appeal and did not challenge the evidence provided by the Minister, I find that the Respondent was not truthful about his identity, his status and his whereabouts. Based on the evidence, I find that the Respondent was in the UK, where he claimed protection, and that his claim was accepted, and that he is a UK citizen. [18] The Respondent has not submitted any evidence to refute the Appellant's evidence. Moreover, his claim in Canada was not based on fear of persecution or risk to life in the UK, where he is a citizen. [19] Based on the foregoing, I find that he is not a Convention refugee or a person in need of protection. DISPOSITION [20] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes a determination that, in its opinion, should have been made that the respondent is neither a Convention refugee nor a person in need of protection. [21] The RAD also finds that the Respondent's claim is manifestly unfounded. [22] This appeal is allowed. (signed) 'Atam Uppal' Atam Uppal September 17, 2014 Date 1 Exhibit M-1, page 12 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799) 3 Exhibit M-1, p. 12 4 Exhibit M-1, p. 14 5 Exhibit M-1, p. 12 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04955