TB3-08988

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 : TB3-08988 Private Proceeding / Huis clos 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 21, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 Monwabisi Sobantu Conseil du (de la) ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada appeals a decision of the Refugee Protection Division (RPD) accepting the claim for refugee protection of XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX), 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 IRPA, the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that XXXX 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 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 bi-sexual man and was involved in a sexual relationship with another man. The Respondent alleges he was found with his male partner on XXXX XXXX, 2013, and they were both beaten by a mob lead by his male partner's wife, however he was able to escape the mob by going out the back and fleeing into the bush. [4] The Respondent states that on XXXX XXXX, 2013, while in a bar having a drink in the city of XXXX, he was approached by a group of youths, who pulled out a picture of him naked, which was allegedly taken back in XXXX, 2013 when he was beaten with his male partner. The group of youths began to assault the Respondent, a police officer, who happened to come into the bar, tried to stop, but, when advised by the youths of why they were assaulting the Respondent, he took the Respondent to the police station where he was detained. [5] The Respondent contacted his senior brother who attended the police station, was able to bribe the officers to secure the release of the Respondent. The Respondent's brother found an agent who assisted the Respondent in fleeing Nigeria on XXXX XXXX XXXX 2013. The Respondent filed for refugee protection on August 19, 2013 at an inland office. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [6] The following evidence was submitted by the Minister: 1. Additional Evidence - submission - dated January 27, 2013; 2. E-mail from Senior Immigration Officer Moe Sobantu to and from CBSA Biometrics Policy & Program - dated December 19, 2013 and January 23, 2014; 3. United Kingdom Home Office, response to item #2 (above e-mails); 4. Confirmation of Documents provided - to respondent's counsel dated January 27, 2014 [7] 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. [8] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,1 such restrictions do not apply to the Minister (the Intervener here),2 nor do they apply to any evidence submitted by the Appellant in response to the Minister.3 [9] 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. [10] The Minister submits that, pursuant to paragraph 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 Minister requests that the RAD find the Respondent failed to provide acceptable documents establishing his identity, and was not a credible witness. [12] 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. [13] 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. [14] 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. [15] 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. SERVICE OF DOCUMENTS [16] The Minister served a Notice of Appeal appealing the positive decisions given by the RPD for the respondents, on November 04, 2013, by regular mail, on the respondent at XXXX XXXX XXXX XXXX, Toronto, Ontario, XXXX XXXX. The Minister also served a Notice of Appeal to the office of the counsel who represented the Respondent at the RPD hearing. The Minister filed the Notice of Appeal with the Immigration and Refugee Board on December 04, 2013 along with a statement of service. The Minister served a copy of the Appellant's Record on the Respondent by courier on December 04, 2013. The acknowledgments from the courier company state that the documents had been delivered to the reception of XXXX XXXX XXXX XXXX XXXX, Toronto, and signed for by "XXXX". The Appellant's Record was filed with the Immigration and Refugee Board on December 23, 2013. These documents were served within the timeframes set out in the Regulations to IRPA and the Rules of the RAD. SUBMISSIONS [17] 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, 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 the RPD. [18] 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. [19] 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 IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [20] The determinative issue in this appeal is: 1. Whether the Respondents' omissions and 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 a counterfeit identity document upon which the RPD relied upon to make a finding on the respondent's identity; 2. The RPD found that the Respondent had established his identity on a balance of probabilities based "on his genuine passport that he filed, a driver's licence, and other documents he filed;" 3. The Respondent did not provide disclosure pursuant to Rule 34 (3) (a). The documents in question were relied upon by the RPD in making a decision; 4. A medical report by Dr J. Pilowsky submitted by the Respondent's counsel that was also relied upon by the RPD was incomplete and missing pages. [21] The Minister submits that in the Generic Application Form for Canada (IMM 0008), the principal respondent declared his name was XXXX XXXX XXXX. He declared that he had not used any other names (nicknames, maiden names, aliases etc.); he declared that he was a citizen of Nigeria; he was born in the city of XXXX, Nigeria on XXXX XXXX, 1975; his parents were XXXX XXXX XXXX and XXXX XXXX. He declared that he was a citizen of Nigeria and no other country and that he resided in Nigeria from 2003 to 2013 and does not show travel outside Nigeria within the last ten years. [22] The Respondent declared in his BOC that he had not been refused refugee status, or an immigrant or permanent resident visa or a visitor or temporary visa to Canada or any other country. In his BOC he declared that he had made no request to any country for protection. [23] In his BOC, he declared that he was a student from XXXX 1998 until XXXX 2002 in XXXX. The Respondent declared that, from XXXX 2002 until XXXX 2003, he was unemployed, but resumed employment as a XXXX XXXX XXXX from XXXX 2003 until XXXX 2013 in XXXX, Nigeria. He declared that he and the agent left Nigeria on XXXX XXXX XXXX 2013 and transited in Amsterdam, arriving in Toronto on XXXX XXXX, 2013. [24] The earlier evidence, submitted by the Minister at the RPD hearing, contains a letter from the Canadian Border Services Agency (CBSA)4 reporting on results received from the United Kingdom Department of Home Office indicating that the Respondent's fingerprints are a biometric match to fingerprints found in the files of the United Kingdom (UK). The fingerprint comparison identifies the Respondent as XXXX XXXX XXXX, born XXXX XXXX, 1973 and holder of passport XXXX. The report also states that the Respondent was refused a visa to the UK, and the application for the visa was made in XXXX, South Africa on XXXX XXXX, 2007. [25] The new evidence, submitted by the Minister, is a letter from the United Kingdom Immigration authorities, which contains the response to the Minister's inquiries. The information provided by the UK Immigration authorities, show that the Respondent was denied his visa as a result of submitting fraudulent bank statements in support of his application, and the passport he submitted was genuine. [26] The Minister submitted a letter from CBSA,5 reporting on information received from the South Africa Department of Home Affairs. The letter states that XXXX XXXX XXXX, holder of passport number XXXX, entered Thambo International Airport on XXXX XXXX 2005 and his visitor's visa expired on XXXX XXXX 2006. The fingerprint comparison submitted by CBSA identifies the Respondent as XXXX XXXX XXXX and holder of passport number XXXX. [27] The Minister submits that the new evidence demonstrates that the Respondent was deceitful and misrepresented himself to Canadian immigration authorities. The Minister submits that the Respondent successfully provided misleading identity documents in his application for refugee protection. The absence of this information from the context of the Respondent's RPD hearing effectively foreclosed the avenue of inquiry which resulted in the Refugee Protection Division assessing the credibility of the Respondent, making a finding with regards to his identity and ultimately finding him in need of protection, without all the facts before it. The Respondent's presentation of fraudulent identity documents, both overseas and in Canada, raises serious concerns about his credibility and identity. The Minister further submits that, by not having this information before it, the RPD made an error of fact since it did not have all the information upon which to make a complete and measured decision. Respondent's Argument [28] The Respondent provided a Respondent's memorandum of argument to this appeal on January 16, 2014, in response to the evidence presented by the Minister. [29] The Respondent argued that the Minister continues to fish for reasons to have the claimant's positive decision overturned. The Respondent continues to argue the use of the passport, which the Minister has in his control, and submits that the Minister is insinuating that the passport, with the false name used by the Respondent was genuine, and questions how the UK authorities would know that since they did not conduct a forensic analysis on it. The RAD finds the argument to be weak and not supported, the Appellant has not pointed out where in the evidence this is supported and, as such, this argument is and mostly speculative by the respondent at best. [30] The Respondent argues that his counsel's attention was never drawn to the fact that the Minister did not receive all the pages of the psychological report from Dr XXXX which was faxed to the Minister's office.6 The Minister submits that the psychological report was faxed on the morning of the hearing to their office, and they intervened in paper and not in person, thus not giving them an opportunity to respond at the hearing. Upon review of the submissions from the Respondent and Appellant, the RAD finds this argument is unreasonable on the part of the Respondent, since the Respondent's counsel breached Rule 34 (3),7 by faxing the contents of the Psychological Report to the Minister's office on the morning of the scheduled hearing instead of the 10 days prior to the hearing as set out in the RPD Rules. ANALYSIS Standard of Review [31] The Appellant argues that the RPD erred in finding the passport and driver's license submitted at the hearing to be fraudulent, and relied on the other documents to confirm identity. These are issues of fact. [32] The Appellant makes no submissions on the standard of review to be applied to the appeal. [33] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [34] In Dunsmuir, the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa, the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [35] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton: (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [36] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [37] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [38] The nature of the question in issue: The Appellant argues that the RPD improperly found the passport and driver's licence to be genuine and misconstrued the objective evidence, which are questions of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review. In judicial review contexts, identity findings have also been held to be reviewable on a standard of reasonableness. [39] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [40] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted. Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [41] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [42] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [43] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [44] The expertise and advantageous position of the tribunal of first instance compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence, and each can take notice of information and opinion within its specialized knowledge. In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing, while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD proceeding. The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has the opportunity to consider evidence first hand. [45] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal. The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [46] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question in issue is one of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance. The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [47] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision. [48] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The RPD findings [49] 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, with the exception of omitting the information that he was in South Africa, that he made an application for a United Kingdom visa under a false name, using a false passport."8 [50] The Respondent argues against the Appellant's submission relating to the Nigerian Driver's License, and an expired passport. The Respondent argues that the Document Analysis Report regarding the Nigerian passport states; "this document has been compared with samples and reference material in my possession regarding this type of document and contains certain characteristics, including security features consistent with genuine. In accordance with my observations, I conclude that this document is genuine. The result of my analysis does not show evidence that the document has been altered."9 However, the RAD, upon examination of the Document Analysis Report,10 noted the above comment, but also noted the additional comment which states; "the physical examination of this document will not reveal whether it has been improperly issued, obtained by means of fraud or genuinely issued to a different person."11 [51] In regards to the Driver's License, the Respondent makes no argument relating to the result of its analysis. The RAD, however, has reviewed the Document Analysis Report which states in its Conclusion of Analysis; Probably Counterfeit. The report states; "the questioned document has been compared with the blank sample and reference material in my possession regarding this type of document. The document does not contain certain characteristics generally associated with genuine documents of this type. In accordance with my observations, I conclude that this document is probably counterfeit."12 [52] The Respondent argued that the Minister should have raised this issue regarding the driver's license prior to the hearing; the Respondent would have had time to produce documents to show that staff of the Federal Road Safety Commission of Nigeria has provided unsuspecting applicants with fake driver's license across the country. The Respondent was represented by competent counsel before the RPD. He 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 BOC form. The RAD finds this argument without merit, as the Act clearly gives the Minister the right to bring any evidence to the RAD, regardless if it was available at the time of the hearing. [53] The Respondent further argues and relies on case law in Wang, quoting Mr Justice Russel; "I am particularly concerned about the findings regarding the Applicant's driver's licence and the post office seizure notice. The RPD says the driver's licence appears to be genuine but nonetheless dismisses it because it found that the other documents are fraudulent and because fraudulent documents are readily available in China."13 The RAD, upon reviewing the Wang decision, concludes that this case is not on applicable as it is not on point. The RPD did not find the documents to be fraudulent; but, in contrast found them to be genuine. [54] The Respondent argues that, in paragraph 8 of the Reasons for Decision, the Appellant questions the discretion exercised by the RPD in accepting late documents from the Respondent. The Respondent further argues14 that the presiding member had a complete copy of the psychological report at the hearing. That maybe so, but the Appellant did not have a complete report, nor the opportunity to review and comment on the report. In light of fairness to both sides, the RAD reviewed Rule 34(3) of the RPD Rules, 2013. [55] The Appellant argues that the Respondent breached Rule 34(3)(a) of the RPD which states; 34. (1) If a party wants to use a document in a hearing, the party must provide a copy of the document to the other party, if any, and to the Division. Proof that document was provided (2) The copy of the document provided to the Division must be accompanied by a written statement indicating how and when a copy of that document was provided to the other party, if any. Time limit (3) Documents provided under this rule must be received by their recipients no later than (a) 10 days before the date fixed for the hearing; or (b) five days before the date fixed for the hearing if the document is provided to respond to another document provided by a party or the Division. [56] The evidence indicates that the Respondent was not forthcoming about his true identity until he was confronted with the Minister's evidence at the hearing when asked by the presiding member. There are discrepancies in the names, passport name and numbers, Nigerian driver's licence. The Respondent used two genuine passports under two different names and dates of birth, and the Nigerian Driver's Licence which after being analyzed was found to be a fake. The evidence calls into question the identity of the Respondent. [57] 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 new evidence; 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, if the evidence had been available to the RPD, and finds that the Respondent is neither a Convention refugee nor a person in need of protection. [58] The RPD's decision and reasons in respect to the Respondent's identity and credibility are not reasonable in light of the new evidence presented and accepted. As such, the RPD's determination that the Respondent is a Convention refugee on the basis of his claim against Nigeria does not fall within a range of possible, acceptable outcomes defensible in respect of the facts and the law. CONCLUSION [59] For all these reasons, due to the new evidence not available to the RPD, the RAD sets aside the determination of the RPD and finds that XXXX XXXX XXXX (aka 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. [60] Therefore, this Appeal is allowed. (signed) 'Luis F. Agostinho' Luis F. Agostinho March 21, 2014 Date 1 IRPA, Section 110(4). 2 IRPA, Section 171(a.5). 3 IRPA, Section 110(5). 4 RPD record, pages 0081-0082 5 Appellant's Record, page 21 6 Respondent's Record, paragraphs 20 - 21 7 RPD Rules (2013), 34 (3) 8 Reasons for Decision, page 2, lines 36-40 9 Respondent's Memorandum of Argument, page 1, paragraph 3 10 Appellant's Record, pages 15 - 20 (Exhibit M-2: Canada Border Services Agency) Federal Republic Nigerian Passport 11 Ibid (additional remarks) 12 Appellant's Record, pages 09-14 ( exhibit M-1: Canada Border Services Agency) Federal Republic Nigerian Driver's Licence 13 Wang, Jiu Xin v . M.C.I. (F.C., no. IMM-7167-10), Russell, August 2, 2011, 2011 FC 969 14 Respondent's Record, paragraph 21 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08988