TB4-10724

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 : TB4-10724 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a.XXXX XXXX XXXX XXXX) (a.k.a.XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 15, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kingsley I. Jesuorobo 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 Christine Houde Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada (the Appellant) appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX XXXX (the Respondent), a male from Nigeria. The Minister has submitted new evidence in support of the appeal that was not presented at the RPD hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111 (1) (b) of Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes the determination that XXXX XXXX XXXX is neither a Convention refugee pursuant to s. 96 of the IRPA nor a person in need of protection pursuant to s. 97 of IRPA. Pursuant to ss. 107(2) of IRPA, the RAD finds that there is no credible basis for the claim and that it is manifestly unfounded. This Appeal is allowed. BACKGROUND [3] The Respondent, XXXX XXXX XXXX, alleged before the RPD that he is a gay man and was involved in a sexual relationship with another man. The Respondent in the Addendum to his Basis of Claim form (BOC) states that he engaged in a heterosexual relationship with one other person of the opposite sex in Nigeria in an attempt to camouflage his true sexual orientation. [4] The Respondent alleges that on XXXX XXXX, 2013 while he was going home, he was stopped by an unknown person who advised him not to go home, as there was police looking for him, and that there had been a killing in the neighbourhood. The unknown person told the Respondent to hide; the Respondent later learnt that the person killed was his fiancé, XXXX. The Respondent alleges that the assailants were either police officers or individuals purported to be the same. [5] The Respondent further alleges that this unknown man took him to a restaurant where he left the Respondent for a couple of hours. Upon his return, the Respondent was driven out of town. The Respondent resided in hiding from XXXX 2013 until XXXX 2014 where he sought the assistance of an agent to help him flee Nigeria. Upon his arrival in Canada, the Respondent made a refugee claim at the airport. [6] The Respondent's refugee claim was heard on September 16, 2014. The RPD in oral decision issued on September 16, 2014. The RPD concluded that the Respondent had established his identity, one of the key elements of his claim, and further established that he was a credible witness. [7] The Appellant argues that the RPD erred in accepting the Respondent's identity. The Appellant argues that the RPD relied upon documents submitted by the Respondent: Nigerian Driver's License, a Voter's card and an Attestation of birth which the Appellant argues does not establish the Respondent's identity. Procedural matter: [8] In accordance with sub rule 12(1) and rule 37 of the Refugee Appeal Division Rules, the Appellant applied for an extension of time to file a notice of appeal with the RAD. This extension was granted. 1) The Respondent had an RPD hearing on September 16, 2014. 2) The Minister appealed to RAD, RAD' decision was issued March 05, 2015 and Appeal was referred back to RPD 3) The Respondent appealed to Federal Court and upon judicial review, appeal dismissed on consent, June 11, 2015. 4) Appeal sent back to RAD for re-determination by different panel ANALYSIS Role of the RAD [9] The Respondent's counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,1 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 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 an "overriding and palpable error." [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Respondent is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. SUBMISSIONS BY MINISTER [11] In accordance with subsection 110(1.1), 171(a.4) and 171(a.5) and rule 9 of the IRPA, a notice of appeal was filed by the Minister. Additional supporting documentary evidence and written submissions in support of the Minister's appeal have been provided in accordance with sub-rule 29(5) of the RAD Rules. 1. The Minister is relying on documentary evidence referred to in IRPA ss. 110(3). 2. The documentary evidence submitted by the Minister is as follows: 3. Minister's submissions and Immigration Division Reasons for Decision May 15, 2014; 4. CBSA Identity interview 07 May 2014; 5. CBSA Identity interview, 15 April 2014; 6. Immigration Division Reasons for decision, 18 March 2014; 7. Immigration Division Reasons for decision, 17 April 2014; 8. Toronto Bail Program, Reasons for not offering supervision; 9. Field Operational Support System (FOSS) record XXXX. [12] The RAD notes that document 1 was not before the RPD hearing, and was just submitted to RAD and Respondent's counsel on September 22, 2015. The Respondent's counsel was afforded seven business days to make his submissions. Counsel had indicated in his earlier response to the Minister's appeal that he was attempting to acquire the Reasons for Decision of the Immigration Detention Hearing of May 15, 2014. As of writing this Decision, the Respondent's counsel has not submitted any submissions. [13] The Minister submits that the foregoing documents are relevant, as they relate to the credibility of the Respondent and to "identity" related documents provided to the Immigration and Refugee Board. [14] Section 110(3) of 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 his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,2 such restrictions do not apply to the Minister (the Intervener here),3 nor do they apply to any evidence submitted by the Appellant in response to the Minister.4 [16] Section 171(a.3) of 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. [17] The Minister submits that, pursuant to paragraph 110(3) of the IRPA, 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. [18] The Minister requests that the RAD find that the Respondent failed to provide acceptable documents establishing his identity, and was not a credible witness. [19] The Minister submits that the Respondent's material omissions induced errors of fact in the RPD's decision. The Respondent's omissions and misrepresentations caused the RPD to err in accepting the Respondent's identity, finding him to be a credible witness. [20] The Minister submits that the new evidence shows that the Respondent omitted material facts pertaining to his name, date of birth, and further the Minister submits that the Respondent's omissions raise serious questions about his true identity and credibility. [21] 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 with British authorities. [22] The Respondent has provided a response to this Appeal and other information provided by the Minister. The RAD, therefore, admits into evidence the documents provided with the intervention. SUBMISSIONS [23] The Minister further submits that this new evidence was 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, and illustrates a pattern of repeated deceitful and fraudulent behavior on the part of the Respondent. The Respondent has intentionally, willingly and actively attempted to misrepresent himself to the Canadian authorities and to the RPD. [24] 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. [25] The Minister requests that the RAD find that there was no credible or trustworthy evidence on which a favourable decision could be made and, therefore, there is no credible basis for the claim as per subsection 107(2) of the IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [26] The determinative issue in this appeal is: 1. Whether the Respondent's misrepresentations caused the RPD to err in accepting the Respondent's identity and finding the Respondent to be a credible witness. Appellant's Arguments 1. The Respondent submitted identity documents which were not genuine and these were what the RPD relied upon to make a finding on the Respondent's identity;5 2. The RPD found that the Respondent had established his identity, on a balance of probabilities, based "on driver's licence, a voter's card and an attestation of birth;6 [27] The Respondent was interviewed in April 2014 and stated to Canadian authorities that he had a passport; however he had returned it to Nigerian Immigration officials sometime in 2000.7 However, the fingerprints which were taken from the Respondent and sent away, returned to the Minister as a match for the Respondent. The Minister submits that the Respondent had applied for non-immigration visas in Nigeria at the United States Embassy, in 2012 and 2013, using two different Nigerian passports with different names and dates of birth.8 The date of birth listed on these passports appears to be XXXX XXXX XXXX 1980, which is different from what was previously provided by the Respondent to CBSA. [28] In the course of their investigation, CBSA found that the Respondent's Attestation of Birth had not been accepted as a genuine document. Additionally, the successive extra documents that the Respondent submitted, namely a Nigerian voter's card and Nigerian driver's license, have a name and date of birth that are the same as the ones listed on a primary document that was not accepted. Additionally, CBSA indicates that they now have information that the Respondent has previously obtained two Nigerian passports containing a different date of birth. The consequences of this led CBSA to not accept the Respondent's identity. [29] The Respondent was further interviewed on May 07, 2014 by CBSA regarding identity documents; however the Respondent did not provide any new information or documentation related to his identity. The Attestation of birth has not been accepted as a genuine document nor has the Nigerian voter's card and driver's license, as they do not contain the same name and date of birth as the ones listed on a primary document that was not accepted. Likewise, CBSA is now in possession of new information that the Respondent has previously obtained two Nigerian passports containing a different date of birth, XXXX XXXX XXXX 1980, as opposed to XXXX XXXX XXXX 1980, as submitted by the Respondent under his current identity. [30] The Respondent had a Detention Review which was held under the authority of the IRPA, and this Review was held on March 18, 2014. At the Detention Review it was concluded that the "attestation of birth" which had been recently issued in Nigeria was not accepted as proof of identity. The presiding panel found that the document was unreliable as the background printing was of poor quality, the color rendering was inconsistent and the background pattern was not centered, as well as the Coat of Arms not being visible. The panel further found the evidence presented by CBSA who also established that there was further inconsistent information with respect to the names of the Respondent's parents on the document. [31] The Minister submits that the RPD relied on the Respondent's driver's license, a voter's card, and attestation as to his birth, and that these documents do not establish the Respondent's identity. The Minister relies on Rule 11 of the RPD Rules mandating the Respondent to provide acceptable documents establishing identity and other elements of the claim. [32] The Minister argues that CBSA and the Immigration Division (ID) described the birth attestation as "quite questionable" and found that the printing did not seem to be in accordance with the way that the originals of those documents are normally printed. [33] In light of the birth attestation being called into question, the Minister does not accept the Respondent's explanation for not having appropriate proof of identification, i.e. his birth certificate was destroyed in a 2014 fire; that he returned his passport to Nigerian immigration officials in 2000, and that US immigration made a mistake with regard to his birthdate when providing biometric match information through the The Five Country Conference (FCC) protocol. Since the Respondent is also known by a number of aliases, the Minister submits the need to consider his identity allegations with additional scrutiny. [34] The Minister further argues that, when the Respondent was interviewed by an identity officer while in detention, he did not consistently report the names of his parents, and he provided different names on the attestation of birth. The Minister submits that this document cannot be relied upon as genuine. [35] The Minister argues that the biometric results before the RPD indicated that the Respondent applied for visas to the U.S. in 2012 and 2013, using different Nigerian passports. It is submitted that it would seem reasonable to require the Respondent to produce documentation related to these recent applications. Although the RPD found the Respondent to be credible, it is argued by the Minister that such was not the case with the ID, and, as a result, the Respondent was detained for approximately four and a half months as his identity was not found to be established. It wasn't until a person put up a $20,000 bail that the Respondent was released on bail with conditions. SUBMISSIONS BY RESPONDENT [36] The Respondent submits that the Minister has failed to demonstrate an arguable issue of law upon which the proposed appeal might succeed. The Respondent submits that the Minister relies on the CBSA's position that identity was not established and that it had the opportunity to attend the RPD hearing and inexplicably failed to do so. [37] It is further argued by the Respondent that the onus falls on the Minister to establish that the materials provided in this appeal were part of the record before the panel and/or to establish that they are "new" evidence which meets the requirements of subsection 110(4) of IRPA. [38] It is further submitted by the Respondent that the Minister has unreasonably assumed that the findings by the Immigration Division are binding on the RPD, and it is curious as to why these transcripts were provided, and yet, when the Respondent was granted bail, that transcript was not provided. RAD'S FINDINGS: [39] Section 110: (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. (1.1) The Minister may satisfy any requirement respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. [40] In light of the foregoing, the RAD finds that the arguments submitted by the Respondent are without merit. Clearly, the Minister has the right to bring an appeal under section 110(1) and the Minister is not constrained by s. 110(4) with respect to any evidence being submitted. [41] On the issue of identity, Section 106 of the Immigration and Refugee Protection Act (IRPA) and Rule 11 of the Refugee Protection Division Rules are clear. [42] Could the Respondent reasonably have been expected, in his circumstances, to have presented these documents to the RPD before his claim was rejected? Refugee claimants have an obligation to establish their identity, on a balance of probabilities. [43] In the RAD's view, the Respondent could reasonably have been expected to know that his identity would be an issue in his hearing and that he had an obligation to present documents that could establish that identity. [44] Refugee claimants have an obligation to establish their identity, on a balance of probabilities. Section 106 of the Immigration and Refugee Protection Act states that: 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.9 [45] Similarly, Rule 11 of the Refugee Protection Division Rules requires that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.10 [46] The Basis of Claim (BoC) form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."11 The Respondent was represented by competent counsel before the RPD. Counsel could reasonably have been expected to know that identity was an issue, given the references to the issue in the Act, the Rules, and the Basis of Claim (BoC) form. Furthermore, given that the Respondent had spent some 4.5 months in detention as a result of his identity not being accepted by the Immigration Division. [47] 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. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity. [48] 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. [49] Identity is most commonly refers to the name that a claimant uses or has used to identify himself. 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 as outlined in the commentary on Rule 11.12 [50] The RAD finds that where there is sufficient evidence to cast doubt on a document's authenticity, whether, because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little to no weight, without expert verification or where such verification is inconclusive13. The RAD also finds that submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant, especially when they are interrelated,14 and on the overall credibility of a claimant.15 [51] In its identity analysis, the RAD considered the totality of the evidence relevant to identity before it.16 The RAD finds that the Respondent has not provided sufficient credible or trustworthy documentary evidence in support of his personal identity. Specifically, the RAD finds that the "attestation of birth", the driver's license and a voter's card, upon which to establish identity of the Respondent, questionable. Given the credibility concerns raised by the Minister, and the onus on the Respondent to respond to these concerns, the RAD finds that the Respondent has not satisfactorily established his identity. He has not provided any evidence to refute the concerns expressed by the Minister. The RPD findings [52] The RPD found, in its decision, that the Respondent was credible and accepted his identity. At the beginning of hearing, the Panel asked the claimant with his BOC in front of him, whether his BOC is true and correct. He responded under oath that it was. Summary [53] In assessing the evidence in its entirety, the RAD did not arrive at the same conclusion as the RPD's favorable findings regarding the personal and national identity of the Appellant. The RAD does not concur with those findings in light of the documentary evidence that was before the RPD and the RAD. The RPD's decision and reasons in respect to the Respondent's identity and credibility are not supportable in light of the evidence presented and accepted. The RPD's findings on the Respondent's identity are not supportable. [54] The RAD finds that the Respondent has not established his identity as required by the IRPA and, as a result of the discrepancies, shown by the evidence presented by the Minister and none by the Respondent; I find that, on a balance of probabilities, the identity of the Respondent has not been established. Therefore, the RAD substitutes the determination that should have been made, and finds that the Respondent is neither a Convention refugee nor a person in need of protection. CONCLUSION [55] For all these reasons, due to the evidence on the Appeal record, the RAD sets aside the determination of the RPD and finds that XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX, XXXX XXXX XXXX), is neither a Convention refugee nor a person in need of protection. The Respondent withheld material information from Canadian immigration authorities and the RPD. There was no credible or trustworthy evidence on which a favourable decision could have been made. [56] Section 107(1) of IRPA provides that the RPD shall make a finding of no credible basis if it determines that there was no credible or trustworthy evidence on which it could have made a favourable decision. [57] Nothing in IRPA expressly gives the RAD the authority to make a finding of no credible basis. In the panel's view, however, such jurisdiction is implicit in Section 111(1)(b), which empowers the RAD to set aside the determination of the RPD and "substitute a determination that, in its opinion, should have been made." In order to substitute its own determination for that of the RPD, the RAD must have the same jurisdiction as the RPD, including the authority to make a finding of no credible basis or, as contemplated in Section 107.1, a determination that a claim is manifestly unfounded. [58] The threshold for a finding of no credible basis is a high one: such a determination cannot be made if there is any credible or trustworthy evidence that could support a position determination of the refugee claim.17 [59] Here, the RAD has found that there is simply no credible evidence in respect to the Respondent's national identity, personal identity, sexual identity, or allegations of persecution. The RAD finds that the Respondent's refugee claim has no credible basis. [60] This Appeal is therefore allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho October 15, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 IRPA, Section 110(4). 3 IRPA, Section 171(a.5). 4 IRPA, Section 110(5). 5 Exhibit P-3, Respondent's Record, at pp. 43-47. 6 Exhibit P-3, Respondent's Record, at pp. 43-47. 7 Exhibit P-3, Respondent's Record, at p. 45. 8 Exhibit P-3, Respondent's Record, at p. 46. 9 Immigration and Refugee Protection Act, Section 106. 10 Refugee Protection Division (RPD) Rules, SOR/2012-256 11 Exhibit RPD-1, RPD's Record, at p. 27, Basis of Claim Form, p. 1 of 10. 12 IRB Rule 7 Commentary re: Claimant's duty to provide documents establishing identity. 13 Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no IMM-3623-96), Cullen, May 26, 1997. 14 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 15 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 16 Jiang v. Canada (Minister of Citizenship and Immigration), 2007 FC 1292, [2007] F.CJ. No. 166 (QL), at para. 3 17 Ramón, Luis Fernando Levario v. M.C.I. (F.C., no. IMM-4522-11), Rennie, March 19, 2012; 2012 FC 314, paras. 18-19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10724