TB5-07113

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 : TB5-07113 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(A.K.A. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 22, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bola Adetunji Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Deidre Fraser Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada (the Minister) appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX (aka XXXX XXXX), a female from Uganda. The Minister has submitted new evidence in support of the appeal that was not presented at the RPD's hearing. DETERMINATION OF THE APPEAL [2] Pursuant to s. 111(1)(b) of the IRPA, the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made; namely, that XXXX XXXX is neither a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act (IRPA) nor a person in need of protection pursuant to s. 97 of the IRPA. This appeal is allowed. BACKGROUND [3] The Respondent, XXXX XXXX, alleged before the RPD that she had been placed into a forced relationship as a young teenager with a much older man who was highly placed in the Ugandan military. This man beat her and treated her terribly. His beating of her resulted in her loss of a child, hospitalization, and finally with the help of a friend, her escape from him and Uganda. Greater details of her allegations will be found in her Basis of Claim (BOC) form and on the audio recording of the hearing. The RPD found that the Respondent had sufficiently satisfied the Board as to her identity and credibility and found that there was neither state protection for women in Uganda, nor was there a safe internal flight alternative for her. [4] The case was heard on June 18, 2015. The RPD found that she was a Convention refugee and allowed the claim. [5] The Minister has since received evidence which contradicts much of the Respondent's testimony and evidence from the hearing. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [6] The following evidence was submitted by the Minister: a) Five Country Conference (FCC) Tier 1 Report1 based on fingerprint comparison; b) Photographs2 of claimant/Respondent, XXXX XXXX, submitted and taken at time of initiation of her refugee claim; c) Global Case Management System (GCMS) Information Request:3Application for a Temporary Resident Visa (TRV); d) GCMS4 Remarks for Canadian TRV issued to XXXX XXXX, valid XXXX XXXX, 2012 to XXXX XXXX, 2016; e) GCMS TRV Group #XXXX XXXX XXXX5 Information; f) GCMS Remarks for TRV6 issued in 2007 Remarks for 1st Applicant XXXX XXXX of Group XXXX XXXX XXXX; g) GCMS information Request:7 Application for Canadian Visitor Record; h) GCMS8 Remarks and Copy of Canadian Visitor Record issued to XXXX XXXX valid XXXX XXXX, 2014 to XXXX 3, 2015; and i) Results of Google internet searches.9 [7] Section 110(3) of the IRPA allows the RAD to accept documentary evidence from the Appellant. Section 110(4) provides that the Appellant may present only evidence that arose after the rejection of the claim or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] While the IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,10 such restrictions do not apply to the Minister,11 nor do they apply to any evidence submitted by the Respondent in response to the Minister.12 [9] Section 171(a.3) of the IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [10] The Minister submits that, pursuant to section 110(3) of the IRPA, he wishes to rely on new evidence not contained in the record of proceedings of the RPD. The Minister asks that the positive determination of the RPD be set aside and that the RAD substitute a determination that the Respondent is not a Convention refugee or a person in need of protection. [11] The RAD has no reason to doubt that the documents provided with the Minister's intervention are credible or trustworthy. They originate with the Canada Border Services Agency and other governmental authorities. Consequently, the Minister's disclosures will be accepted by the RAD. [12] The Respondent has provided a response to this appeal and to other information provided by the Minister. The RAD therefore admits into evidence all of these documents. SERVICE OF DOCUMENTS [13] The Minister served a Notice of Appeal on the Respondent on July 13, 2015, by regular mail, at XXXX XXXX XXXX XXXX XXXX, appealing the positive decision given by the RPD for the Respondent. The Minister filed the Notice of Appeal with the Immigration and Refugee Board on July 13, 2015, along with a statement of service. The Minister served a copy of the Appellant's Record on the Respondent by regular mail on August 6, 2015. The Appellant's Record was filed with the Immigration and Refugee Board on August 7, 2015. These documents were served within the timeframes set out in the Regulations of the IRPA and the Rules of the RAD. SUBMISSIONS [14] The Minister further submits that this new evidence was not available at the time of the hearing and directly contradicts the evidence presented by the Respondent. The Minister argues that this evidence is sufficiently serious and relevant to the central elements of this claim [15] The Minister submits that the Panel's decision was largely based on the establishment of the Respondent's identity and the credibility of her sworn oral testimony at the hearing. The Panel should believe that the sworn testimony of a claimant is true unless there is a valid reason to doubt it; the Panel had no reason to doubt that testimony and therefore accepted that testimony as being truthful. [16] The Minister submits that the new evidence directly contradicts the evidence presented by the Respondent. ANALYSIS OF THE MERITS OF THE APPEAL [17] The determinative issues in this appeal are identity and credibility. Appellant's Arguments [18] The Minister argues that the Respondent has presented a long list of lies13 about who she is and what her basis of claim was to the RPD Panel. The Minister argues that the new evidence14 presented by the Minister clearly shows that the Respondent's true identity is XXXX XXXX and not XXXX XXXX. Further, that evidence shows that the Respondent was born on 1991-XXXX XXXX XXXX not 1988-XXXX XXXX XXXX XXXX as she had claimed in her BOC. [19] The Minister argues that the entire basis of claim presented by the Respondent to the RPD Panel was a lie. Evidence15 presented by the Minister clearly shows that the Respondent was not in Uganda during the time that she claimed to have been forced into marriage and abused for years by the high ranking military official that she claimed as her abuser. [20] The Minister argues that all of the evidence presented clearly shows that the Respondent deliberately misrepresented her name, her date of birth, her residential history, her travel outside of her country of nationality, her travel route to/ entry into Canada, and her family composition, and that she has purposely failed to disclose all of this information at the time she filed her claim for refugee protection for the sole purpose of immigrating to Canada. In doing so, the Minister argues the deception the Respondent has perpetrated has negatively affected the integrity of Canada's refugee protection system. [21] The Minister argues that the Respondent established a false and fraudulent identity and consciously failed to establish her true identity to the Board. The Minister argues that had the Panel known of the evidence now presented by the Minister, the Panel's analysis would have ended on the issue of the Respondent's failure to prove identity. The Minister cites Jin v. Canada16 at paragraph 26 in which Justice R.L. Barnes, on the issue of identity, states: Having concluded that the Applicant had failed to establish her identity, the Board determined that it need not go further to consider the Applicant's evidence of...persecution. It has been held that it is a prerequisite for a person claiming refugee status to establish his or her identity. Without that foundation, there could be no sound basis for testing or verifying the claims of persecution. [22] Based on Jin, the Minister argues that by purposefully presenting a fraudulent identity to the Board, the Respondent has therefore failed to establish her true identity. Had the Panel been aware of this, the claim would have failed. Further, the Minister argues that based on all of the previously noted lies, omissions, discrepancies, and contradictions, this Respondent is not a genuine refugee and should not be deemed credible. Respondent's Arguments [23] The following evidence was submitted by the Respondent: a) Ugandan passport of XXXX XXXX17 b) Affidavit of XXXX XXXX18 c) Affidavit of XXXX XXXX19 d) Letter from "XXXX XXXX XXXX XXXX XXXX"20 e) Affidavit of XXXX XXXX21 [24] The RAD has allowed all of these documents to be entered as evidence but will assign each its appropriate weight. The Minister is appealing the RPD's decision based on fraudulent identity and lack of credibility. None of these documents speak to the issue of the Respondent's fraud. They all speak to the new basis of claim that the Respondent would like the RAD to consider. However, the RAD finds that after all of the lies the Respondent has told to the Government of Canada, the RAD can give no credence to the documents now disclosed, nor the story those documents purport to be true. Even though some of the documents appear to be notarized, they are insufficient to overcome the massive credibility gap that the Respondent has built for herself. [25] The first document disclosed by the Respondent is her legal passport. The RAD has received the information contained therein from the Minister as part of his appeal. The RAD gives substantial weight to this document as corroboration of the Minister's allegations. [26] The second document is the affidavit of XXXX XXXX. This document does not speak to the fraud perpetrated by the Respondent and only goes to confirm the Minister's allegations of fraud by further identifying the Respondent as XXXX XXXX. The RAD has problems with such documents purporting to verify a basis of a claim which was not before the RPD, and due to the sever credibility issues which the RAD has with the Respondent, is being dismissed due to the Respondent's total lack of credibility. Further, the author of this document does not claim to have personal knowledge of the Respondent's sexual orientation but speaks to country conditions in general. The author mentions XXXX living with the truth of her bisexuality but does not indicate where or how she became aware of this secret that the Respondent has held. The RAD gives very little weight to this document. [27] The third document is the affidavit of XXXX XXXX. She confirms the Respondent's sexual orientation from a first-hand experience with the Respondent in 2008. Again, this document speaks to the new basis of claim which the Respondent seeks to put forward; however, it says nothing to overcome the credibility issues that the RAD has with this Respondent. The RAD gives this document little weight in regards to the basis of the appeal. [28] The next item is a letter from XXXX XXXX XXXX XXXX XXXX. This letter has no bearing on the facts of the claim or of the appeal. The letter speaks about the volunteer work done by "XXXX XXXX" and is not relevant to the appeal. It does not speak to the fraudulent identity issue which is the basis of this appeal. The RAD gives this document no weight. [29] The last item is the affidavit of XXXX XXXX. This document simply acknowledges that the Respondent is, in reality, XXXX XXXX as alleged by the Minister, and requests that the RAD accept the above evidence for this appeal. The RAD has considered the request and granted the request, but has assigned little or no weight to that evidence as discussed above. [30] The Respondent has admitted22 that she made a refugee claim in a false name and does not challenge the allegations of the Minister in that regard. [31] The Respondent has argued for an oral hearing before the RAD. The Respondent quotes a RAD decision23 as follows: The purpose of oral hearings before the RAD is to ensure that the Division does not come to conclusions on serious issues of credibility with respect to a person who is a subject of the appeal unfairly, that is, without giving that person the opportunity to respond to the credibility concerns. [32] The RAD takes Member McSweeney's words seriously when considering this appeal. The reason to hold an oral hearing before the RAD, according to Member McSweeney, as quoted by the Respondent, is to ensure fairness to the subject of the appeal and to give that subject an opportunity to respond to allegations concerning credibility. However, in the case at hand, the Respondent has admitted readily to having lied to the Panel, to the Board, and to Immigration Canada, not only about her identity but also about her "persecution" and much more. [33] As the basis of this appeal is identity and credibility and nothing else, the RAD must consider these issues. The Respondent has now submitted a new story24 as to how and why she will be persecuted in Uganda. The RAD will deal with this further on in this set of Reasons. However, as the basis of the appeal is identity and credibility, and the Respondent has admitted in her reply that she has falsified her identity and lied about her entire claim, the RAD sees no purpose in holding an oral hearing on this matter. ANALYSIS Standard of Review [34] Counsel for the Respondent has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,25 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [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 Appellant 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 an "overriding and palpable error". [35] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RPD's Findings [36] The RPD found the Respondent to be credible because it had no reason to doubt her testimony. Consequently, the RPD accepted the false identity presented by the Respondent and believed her lies regarding everything she told the Panel. The RPD found that the Respondent was a Convention refugee. [37] The RAD has examined the Minister's evidence and has read all submissions from the Minister as well as from the Respondent. [38] The Respondent has admitted that she lied about her identity and all other facets of her claim. She does not dispute any of the Minister's allegations nor his evidence. [39] The Respondent has provided her "reasons" for her fraud. The Respondent claims that she was fearful of how her claim, if presented under her real name and on the basis of sexual orientation (which she now claims to be the true basis of claim), would affect her father's career as a XXXX. At the same time, she alleges that her father's XXXX XXXX would make her persecution for her sexual orientation even worse in Uganda. [40] The RAD finds that the Respondent's excuse for her lies is not a sufficient excuse. The refugee process is a discreet and private process, not generally open to public scrutiny, with all information deemed "confidential". There is, on a balance of probabilities, no reasonable likelihood that someone in Uganda would become aware of the Respondent's claim for protection had she used her true identity, unless she told them. Further, even if someone in Uganda did become aware of her refugee claim, there is insufficient evidence that such a claim would have any adverse effect on her family. The misrepresentations and lies are so egregious that the RAD finds, on a balance of probabilities, that the Respondent is not credible with respect to the original claims of fearing persecution as a result of domestic violence, or her new claims concerning her sexual orientation. [41] The RAD agrees with the Minister that to allow the RPD's decision to stand would bring disrepute to the refugee protection system in Canada [42] The RAD, after an independent review of all the evidence in this claim, finds that the Respondent is lacking totally in credibility. She has failed to satisfy the RAD that she has any objective fear in Uganda. The Respondent has failed to establish a Convention ground for her claim under section 96 of the IRPA. With her total lack of credibility, the Respondent has also failed to establish a claim under section 97 of the IRPA. CONCLUSION [43] For the reasons set out above, the RAD, having reviewed the evidence, agrees with the Minister that the RPD's decision cannot stand and that the Respondent is neither a Convention refugee nor a person in need of protection. [44] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Respondent is neither a Convention refugee nor a person in need of protection. This appeal is allowed. (signed) "David Lowe" David Lowe December 22, 2015 Date 1 Exhibit M-1, Appellant's Record, pp. 11-15. 2 Exhibit M-2, Appellant's Record, pp. 16-17. 3 Exhibit M-3, Appellant's Record, pp. 18-32. 4 Exhibit M-4, Appellant's Record, p. 33. 5 Exhibit M-5, Appellant's Record, pp. 34-35. 6 Exhibit M-6, Appellant's Record, p. 36. 7 Exhibit M-7, Appellant's Record, pp. 37-52. 8 Exhibit M-8, Appellant's Record, pp. 53-55. 9 Exhibit M-9, Appellant's Record, pp. 56-90. 10 IRPA, section 110(4). 11 IRPA, section 171(a.5). 12 IRPA, section 110(5). 13 Appellant's Record, Appellant's Memorandum, paras. 9-24, pp. 92-94. 14 Exhibit M-1, Appellant's Record, pp. 11-15. 15 Exhibits M-3, M-4, M-5, Appellant's Record, pp. 18-35. 16 Jin v. Canada (Minister of Citizenship and Immigration), 2006 FC 126. 17 Exhibit R-1, Respondent's Record, p. 13. 18 Exhibit R-2, Respondent's Record - Addendum, pp. 17-18. 19 Exhibit R-2, Respondent's Record - Addendum, pp. 20-21. 20 Exhibit R-2, Respondent's Record - Addendum, p. 23. 21 Exhibit R-1, Respondent's Record, pp. 4-12. 22 Exhibit R-1, Respondent's Record, Memorandum, p. 21, at para. 3. 23 RAD File no.TB4-07957 [2014] R.A.D.D. No 846 (RAD) per D. McSweeney. 24 Exhibit R-1, Respondent's Record. 25 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :