TB5-10893

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 : TB5-10893 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 19, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt 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 Dana Rudiak Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration (the Appellant) is appealing a decision regarding XXXX (the Respondent) in which the Refugee Protection Division (RPD) granted him Convention refugee status. The Appellant has submitted new evidence in support of this appeal, however, is not requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to overturn the positive determination. DETERMINATION [2] Pursuant to sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. Background [3] The Respondent is of Tibetan ethnicity, born in Nepal, however he alleges that he is not a citizen of Nepal, nor does he have any rights or status in Nepal. The Respondent's parents were born in Tibet and fled to Nepal in 1959. [4] The Respondent fears returning to Nepal as he believes that he would be at risk of being sent to Tibet, and would be subject to harsh mistreatment there as an ethnic Tibetan and follower of His Holiness the Dalai Lama. The Respondent's father was a member of the XXXX XXXX, a Tibetan resistance group, and as such the Appellant was also a member of that group. They fled Tibet due to China's occupation of Tibet in 1959. [5] The Respondent alleges that if he returns to Nepal, in the absence of proper documents, and as the Nepalese government is curtailing Tibetan political demonstrations and Tibetan religious gatherings, the authorities would return the Appellant to Tibet. [6] The Appellant alleges that he has been active in demonstrations for a free Tibet, although he acknowledges he has not been arrested but knows of others who have been harassed, detained and arrested due to their political demonstrations. The Appellant has submitted documentation which confirms that he was born in Nepal, however he is of Tibetan ethnicity [7] The Appellant's claim is based on his political activities in Nepal against the occupation of Tibet. The Appellant also fears deportation to China due to the fact that both of his parents were born in Tibet and therefore he may be considered a Chinese citizen. NOTICE OF APPEAL BY THE APPELLANT [8] Pursuant to paragraph 110 and 171(a.5) of the IRPA, and according to Section 8 of the Refugee Appeal Division Rules, the Minister informs the RAD that he wishes to appeal the decision of the RPD dated September 11, 2015. [9] The Appellants requests that the RAD consider the following new evidence:1 a) M-1: Five Country Conference (FCC) Report, dated October 13, 2015 based on biometric data from fingerprint comparison with the United States (US) Department of Homeland Security (DHS). b) M-2 : US Non-Immigration Visas Application. c) M-3: Printouts from Global Case Management System (GCMS) electronic records showing details for Canadian Temporary Resident Visa (TRV) applications, processed at New Delhi Visa Office. d) M-4: Copy of complete TRV application signed 2015/XXXX XXXX XXXX. e) M-5: Copy of complete TRV application signed 2015/XXXX XXXX XXXX with supporting documents. f) M-6: Photograph of respondent scanned from refuge claim file. [10] The Appellant submits that, collectively and individually, the items of evidence listed above and discussed briefly below are extremely relevant to this case because they seriously undermine the foundation of the Respondent's claim with respect to the true identity, and with respect to his overall credibility. [11] M-1: This information was not received until September 17, 2015, which post-dates the oral decision rendered by the RPD. The Appellant submits that this document is highly relevant in establishing the Respondent's identity [12] M-2: The copy of the US visa application was received by the Appellant on XXXX XXXX, 2015, following a request made on XXXX XXXX, 2015 for further details about the US visa application documented on the GCMS system. It is submitted that this evidence is highly relevant because it further challenges the identity and credibility of the Respondent. It contradicts the refugee claim with respect to the name and national identity of the Respondent, and also contains personal and family information which is inconsistent with the declarations made by the Respondent in his refugee claim. [13] M-3: Following receipt of the M-2 evidence, which includes a photograph to further confirm the identity of the Respondent, the Minister made searches on their GCMS records using the name and date of birth of the person identified by US sources, based on the fingerprint match. Results from the above search indicate that the Respondent has made two prior applications for Temporary Resident Visas to Canada, which were processed at the New Delhi visa office. One was refused on XXXX XXXX XXXX 2015 and the second was approved on XXXX XXXX XXXX 2015. While the Appellant acknowledges that this evidence (M-4, M-5) was technically pre-existing, it did not become identifiable as evidence, nor relevant, until after the M-1 and M-2 evidence was received. It is submitted by the Appellant that the M-3 evidence is important because it contradicts the written declarations of the refugee claim, and as such, it further undermines the credibility of the respondent. [14] M-4 and M-5: The copies of complete TRV applications are both highly relevant in that they contain significant detail and personal information which contradicts the refugee claim. The discrepancies between the refugee claim and the two TRV applications, as well as the failure of the Respondent to declare the prior TRVs in his refugee claim, further impugns his credibility, and casts a doubt as to his genuine identity. [15] M-6: The Appellant also includes the photograph of the Respondent as an exhibit to assist the RAD with verification of identities. APPELLANT'S MEMORANDUM OF ARGUMENT [16] The Appellant submits that the RPD's decision was largely based on credibility, finding that the Respondent was a credible witness and that he was not citizen of Nepal. It is submitted that the new evidence directly contradicts evidence provided by the Respondent with respect to his personal identity and nation of citizenship, and also with respect to personal details including his family/marital status, address and activity and immigration history. [17] The Appellant contends that this evidence is sufficiently serious and relevant to the central elements of the Respondent's claim, and establishes that the Respondent is not a credible witness, as he misrepresented himself before the RPD with respect to his identity, nationality and other personal details. [18] It is submitted by the Appellant that the Respondent declares his complete name as XXXX, which includes his family/second name as well as his given/first name. He does not declare any other name or alias. The respondent further declares his place of birth as XXXX, Nepal and he has provided a "Tibetan refugee Welfare Office Birth certificate" attesting to this. He also declares that he is stateless and has no status in Nepal and no right to return to Nepal. However, in his Basis of Claim (BOC) narrative, the Respondent also declares that he is a citizen of Tibet/China and no other country. The Respondent further declares that he is in a common-law relationship which he entered into on XXXX XXXX, 2013 and that his common-law partner XXXX XXXX, was born on XXXX XXXX, 1988 and resides in XXXX Nepal. The Respondent further declares in his BOC narrative that his common-law partner could not sponsor him to become a Nepalese citizen as Nepal does not recognize common-law relationships, and in the absence of papers to prove his birth in Nepal, they could not register their marriage with the Nepali authorities. The Respondent declares that he has one sister, born in Nepal, father and mother, both born in Tibet in 1935, and fleeing Tibet in 1959. The respondent declares that he left Nepal on XXXX XXXX XXXX 2015 and travelled to Delhi, India where he remained until XXXX XXXX, 2015 and took a flight from Delhi, via Brussels, arriving in Toronto on XXXX XXXX, 2015. The Respondent declares that he did not apply for a visa to enter Canada (BOC) and that he paid $20,000 to a person in Nepal named XXXX XXXX XXXX, to obtain a false passport and visa to come to Canada. The Respondent declares that he has not been refused refugee status, an immigrant or permanent resident visa or visitor or temporary visa to Canada or any other country. [19] The Appellant submits that the RPD accepted the submitted documents by the Respondent confirming that he was born in Nepal and was of Tibetan ethnicity and in accepting this, confirmed that Tibetans born in Nepal are not entitled to citizenship. The RPD further considered the sworn testimony of the Appellant and found that it was credible. [20] The Appellant submits that in establishing his identity, the Respondent submitted, aside from the "Green Book", documents which were recently issued in XXXX or XXXX 2015. Furthermore, the Appellant notes an inconsistency about the details of his family, since if his sister was 58 years of age, she would have been born in Nepal in 1957, which is before her mother left Tibet to migrate to Nepal in 1959. [21] It is submitted by the Appellant that the Respondent was granted Convention Refugee (CR) status based on his alleged identity as a stateless individual, who was born in Nepal, but does not have citizenship status in Nepal, and fears deportation based on his Tibetan ethnic ancestry. However, it is argued that based on the biometric fingerprint match, which includes photographs of the Respondent, it establishes that he is indeed a citizen of Nepal. Moreover, it is argued that the Respondent has clearly misrepresented himself to immigration officials, including the RPD, as he declares that he never applied for a visa to Canada, and that he has never been refused a visa to Canada or any other country. It is argued that the biometric data and significant information retrieved through cross-references with the biometric data clearly established that the Respondent is a Nepali national and that he has been issued three different Nepal passports in the past. Moreover, it is argued that since the evidence established that the Respondent received a TRV to enter Canada, the Appellant submits that, on a balance of probabilities, the Respondent gave false testimony when he declared that he paid a smuggler money to procure a false passport and visa to come to Canada. [22] It is argued that in totality, the evidence submitted here casts aspersions on the true identity of the Respondent, but also on the overall credibility of the Respondent. It is submitted that above and beyond failing to declare his true and full name and his immigration history, some other critical and peripheral details such as his marital status, his place of birth, and his employment history further undermines the Respondent's credibility. [23] It is further submitted that with respect to the Respondent's alleged use of a false passport with false visa to travel to and enter Canada, the Respondent provided little details about the "false" document, and he did not provide a copy of his ticket, boarding pass, luggage tag, or any other piece of evidence that might substantiate how and when he arrived in Canada. The Appellant submits that, on a balance of probabilities, the Respondent entered Canada using his regular Nepal-issued passport which contained a Temporary resident Visa that was issued to him after it was approved by the Canadian visa office in Delhi on XXXX XXXX, 2015. Accordingly, the Appellant argues that the Respondent has withheld material information from Canadian immigration authorities by failing to declare that he had two previous visa refusals, by misrepresenting his identity, and by presenting fraudulent information, in a deliberate attempt to mislead officials of Citizenship and Immigration Canada, and ultimately the RPD. [24] The Appellant submits that the RAD is required to re-examine this claim as is required pursuant to section 106 of the IRPA, and rule 22 of the Refugee Protection Division Rules, which state that the Appellant must provide acceptable documentation to establish his identity. REPLY FROM THE RESPONDENT [25] The Respondent acknowledges that prior to coming Canada, he travelled to Taiwan in 2004; applied twice for visitor's visas to the US, and also applied twice for temporary resident visas to Canada. He also acknowledged that he did not disclose the foregoing information before the RPD or immigration officials. The Respondent's excuse is that he was told by Tibetans in Canada that if he mentioned the foregoing, it would not be good for his claim. [26] With respect to the Respondent's applications for visas to Canada, he submits that this was a simple mistake, and he submits that he was unaware that he had answered "no" to this question. [27] The Respondent further submits that the Nepali passports on which he has travelled were all false and had been acquired over a period of many years. He submits that he lost one some five or six years ago and as a result, he had to ask the agent to obtain a new one, when he applied for a Canadian visa to leave Nepal. [28] The Respondent submits that the purpose of his US visas was to seek asylum in the US. The Respondent also acknowledges that XXXX is his real name and not XXXX, however XXXX is a Nepali name which he needed to apply for a Nepali passport. [29] With respect to the visa applications for Canada and the US, it is submitted by the Respondent that the agent filled out all the forms, and he just signed them. As a result, he acknowledges that some of the personal information on the visa applications is correct, and some is not. [30] With respect to the Respondent's travel to Taiwan, he alleges that he was asked by the Dalai Lama as he was in training to become a Tibetan monk at the time. An agent obtained a false passport to allow the Respondent to make this trip as he alleges he was not entitled to Nepali citizenship or a genuine Nepali passport. [31] In totality, the Respondent submits that he is not and could not be a citizen of Nepal, as being born there does not provide him with citizenship nor could he ever obtain a genuine Nepali passport. SUBMISSIONS BY THE APPELLANT a) What is the standard of review? b) Should the Appeal be allowed because the Respondent has not provided his identity? c) Should the Appeal be allowed because the new evidence leads to a finding that the Respondent is not credible? ROLE OF RAD [32] Counsel has made a submission regarding the role of the RAD, in line with the Federal Court decision in Huruglica,2 wherein 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." [33] The RAD has applied the reasoning in Huruglica. IDENTITY [34] The Respondent submits that the identity documents have not proven that he is not XXXX, as he says he is. The Respondent himself acknowledges that his real and true name is XXXX, and that he added the last name XXXX to his visa applications because it is a Nepalese name, in order to apply for a Nepali passport. It is submitted that there is no reason to doubt the truthfulness of this evidence together with the evidence which was accepted by the RPD. Accordingly, it is argued that this appeal should not be allowed on this ground. CREDIBILITY [35] Although the Respondent acknowledged that he did not disclose his previous travel to Taiwan or visa applications to the US and Canada, it is submitted that even if a negative inference is drawn, this could only lead to his claim being rejected, if the new evidence showed him to be a citizen of Nepal and not of Tibet. It is argued that the RAD ought not to accept the latter conclusion in that Nepalese legislation makes it highly unlikely, at the very least, that the respondent was a citizen of Nepal by virtue of his birth.3 It is further argued that the RAD should not determine whether or not the Respondent is a citizen of Nepal, without reference to the law and practice of the Nepali authorities.4 [36] The Respondent submits that even Claimants born before April 13, 1999, are overwhelmingly not recognized as citizens by the Nepali authorities. It cannot be held, as the Appellant suggests, that traveling on fraudulent Nepalese passports establishes on this fact alone that the Respondent is a citizen of Nepal. Moreover, it is argued by the Respondent that it is not reasonable that the Respondent's passports must have been genuine since they were able to successfully travel on them many times. [37] It is submitted by the Respondent that there is insufficient evidence before the RAD to allow it to conclude that any or all of the Respondent's Nepali passports, were genuine. Accordingly, it is argued that the RAD ought not to find that the Respondent is a citizen of Nepal on that account, and there is no other evidence to support this assertion. [38] While the Respondent submits that any negative inference as to his credibility should not lead to the RAD's allowing the Appellant's appeal, it is submitted nonetheless that the RAD should not draw such negative inferences. It is submitted that the Respondent's failure to mention that he had applied for a Canadian TRV, in answer to question 7(a) of the BOC, was an inadvertent error. It is argued that it would make no sense for him to deceive Canadian authorities on the issue of applying for a visa, when he was simultaneously disclosing that he had applied for one through his agent, nor could the Respondent have boarded a flight for Canada bearing a Nepalese passport without being in possession of a Canadian visa. [39] With respect to the non-disclosure of his visa applications to the US or travel to Taiwan, the Respondent acknowledges that he did so because of fear. Tibetans in Canada had told him that it would be bad for him to do so when he claimed refugee protection. Finally, it is submitted that given the documentary evidence, it is extremely unlikely that the Respondent could have obtained Nepalese citizenship. [40] The Respondent submits that the RPD accepted his claim based on its findings that he was an ethnic Tibetan citizen of China and not a citizen of Nepal; that he was politically active in the cause of a free Tibet and an open worshipper of the Dalai Lama; and therefore, given the documentary evidence, that he had a well-founded fear of persecution in Tibet (China). It is submitted that notwithstanding the new evidence submitted by the Appellant, none of these submissions establish that he is a citizen of Nepal. RAD'S FINDINGS [41] The RAD has considered the arguments put forth by both the Appellant and the Respondent. These arguments relate to the identity of the Respondent and his credibility. I find that in order to assess the new evidence, it is necessary to conduct an oral hearing. I have considered if the RAD could conduct an oral hearing, however, I find that to do so would require a full re-examination of the claim with respect to Nepal. Accordingly, pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. [42] This appeal is, therefore, allowed. (signed) "Roslyn Ahara" Roslyn Ahara January 19, 2016 Date 1 Exhibit P-2, Appellant's Record, exhibits M-1 to M-6, at pp. 12-59. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit RPD-1, Exhibit 3, National Documentation Package (NDP) for Nepal (March 31, 2015), item 3.2. 4 Wangmo v. M.C.I., IMM-1242-14, May 6, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10893