TB6-07846

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 : TB6-07846 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 26, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ashley Fisch 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 R. Macklin Conseil du ministre REASONS AND DECISION [1] The Minister of Citizenship and Immigration (the Minister) appeals a decision of the Refugee Protection Division (RPD) granting refugee status to XXXX XXXX XXXX XXXX XXXX XXXX (the Respondent). The Minister has submitted new evidence in support of his appeal, and asks the Refugee Appeal Division (RAD) to set aside the positive determination of the RPD and return the matter to the RPD for redetermination. DETERMINATION [2] The Minister's appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the positive determination of the RPD and refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. Background [3] The Respondent and his adult son made refugee claims on the basis that they fear Houthi rebels in Yemen. On December 29, 2015, the RPD heard their claims, and found them both to be Convention refugees. [4] The Minister appeals the RPD's acceptance of the Respondent's refugee claim. The Minister points out that when the Respondent's claim was joined to that of his son, the Minister was not notified of a corresponding change in hearing date. When the Minister sought to provide the RPD with documentary evidence relating to the Respondent, the RPD advised the Minister that the claim had already been determined.1 [5] The Minister asks the RAD to accept evidence that the Respondent was issued a U.S. visa in 2010, married an American citizen in 2011, and was later refused a U.S. immigrant visa due to fraud. That evidence also suggests that the Respondent was working in Dubai until XXXX of 2015. In the Minister's submission, the Respondent failed to disclose this important information to Canadian immigration officials and to the RPD. The Minister argues that this evidence raises serious credibility concerns, and asks the RAD to set aside the RPD's positive determination and refer the matter back to the RPD for redetermination. [6] The Respondent does not challenge the veracity of the Minister's evidence, and he concedes that he did not disclose relevant information to the RPD. He explains that his U.S. marriage was not genuine, and that he has not even disclosed this marriage to his family, including his son. He did not provide full disclosure to Canadian immigration authorities because he feared this would negatively affect his Canadian visa application and his refugee claim. He asks the RAD to dismiss the Minister's appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [7] While section 110(4) of the IRPA sets out a test for the admission of new evidence submitted by the subject of an appeal, there are no such restrictions on new evidence provided by the Minister. [8] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is considered credible or trustworthy in the circumstances. [9] Here the Minister asks the RAD to admit documents relating to the Respondent's immigration proceedings and status, including a Canadian visitor visa application with related documents and information from U.S. immigration authorities.2 [10] The RAD has no reason to doubt that these documents are credible and trustworthy. The Respondent does not challenge the veracity of the documents. [11] The Minister's proposed new evidence is admitted in this appeal. [12] The Respondent presents new evidence in response to the Minister's evidence. His evidence comes in the form of an unsworn, unsigned typed statement which includes copies of some immigration documents.3 Just as the Minister's evidence is exempted from the requirements of section 110(4), so is the Respondent's response evidence.4 The Minister does not object to the Respondent's proposed evidence, and the RAD admits it in this appeal. [13] As there is new evidence here, the RAD has also considered whether to convene an oral hearing, pursuant to section 110(6) of the IRPA. The Minister does not seek an oral hearing; the Respondent asks that the appeal be dismissed without a hearing, but adds that "should there be any questions in which a hearing would beneficial in our case, we would therefore consider a hearing an appropriate next step."5 [14] In the RAD's view, the new evidence here does not meet all of the criteria set out in section 110(6). While the evidence certainly raises a serious issue with respect to the credibility of the Respondent, it is not central to the decision with respect to his claim, nor can it justify allowing or rejecting his claim. The RPD's positive determination was based, in large part, on the Respondent's profile; while his immigration history is indeed relevant to his credibility, it is not central to the determination of his claim. For these reasons, the RAD must not convene an oral hearing. The Effect of the Minister's Evidence on the RPD's Decision [15] It is not necessary for the RAD to undertake an analysis of the standard of review to be applied here. The Minister does not allege that there were errors in the RPD's decision itself; rather, his submission is that the new evidence here, not seen by the RPD, raises serious credibility concerns about which the RPD could not have known. [16] The Minister asks the RAD to refer this matter back to the RPD for redetermination, pursuant to section 111(1)(c) of the IRPA. According to section 111(2), the RAD may only do so if the decision of the RPD is wrong in fact, law, or mixed fact and law, and if the RAD cannot confirm the determination or substitute another without hearing evidence that was presented to the RPD. [17] The RPD considered the Respondent's evidence and found that: [T]he credibility of your testimony is well-established through the consistency of your statements and the consistent BOC forms from both claimants before me, that are both consistent with the objective evidence that I have. Your forthrightness and the detailed discussion that we had regarding your family circumstances and what you fear returning to Yemen support my finding that you are credible; therefore, I am going to rely on your testimony in assessing your claim today.6 [18] The Minister's evidence suggests that the Respondent misled Canadian immigration authorities, including the RPD, by failing to reveal significant information, such as his marriage to a U.S. citizen and his time spent working in Dubai. This information is relevant and significant to the RPD's credibility finding. Had the RPD been aware of the Minister's evidence, it might not have reached the same conclusion with respect to the Respondent's credibility. The panel certainly would have had some difficulty in concluding that the Respondent was forthright about his family circumstances. Further, the RPD might have had reason to question the Respondent about whether he has or had immigration status in the U.S., whether he currently has one or two wives, and whether he was even in Yemen at the times he claimed to be there. The RAD is in no position to determine what the RPD might have concluded with respect to the Respondent's credibility had the RPD been aware of this evidence. [19] The Respondent does not deny the Minister's allegations; rather, he attempts to provide an explanation for his actions. As the RAD is in no position to question the Respondent, it cannot determine whether these explanations are adequate or sufficient. [20] The RPD's decision is wrong, in that it made a credibility determination without the benefit of significant contrary evidence. The RPD's positive determination of the Respondent's refugee claim is therefore set aside. That claim must be redetermined by the RPD, taking into account the new evidence provided by the Minister and the Respondent's response to that evidence. CONCLUSION [21] This appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. (signed) "Edward Bosveld" Edward Bosveld July 26, 2016 Date 1 Exhibit M-2, Appellant's Record, p. 43. 2 Exhibit M-2, Appellant's Record, pp. 12-42. 3 Exhibit P-1, Respondent's Record, pp. 7-13. 4 IRPA, Section 110(5). 5 Exhibit P-1, Respondent's Record, p. 6. 6 Exhibit RPD-1, RPD's Record, RPD's Reasons, p. 2, lines 7-13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07846