TB9-00224

RAD File / Dossier de la SAR : TB9-00224 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 31, 2020 Date de la décision Panel Sybil Thompson Tribunal Counsel for the person who is the subject of the appeal Leigh Salsberg Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Desiree Gomes Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (aka XXXX XXXX) is the Respondent in an appeal filed by the Minister of Immigration, Refugees and Citizenship Canada ("the Minister", "the Appellant"). The Minister is appealing a decision of the Refugee Protection Division (RPD) dated December 13, 2018, allowing Mr. XXXX claim for refugee protection. OVERVIEW OF APPEAL & ANALYSIS [2] On December 18, 2018 the RPD allowed the Respondent's refugee claim without a hearing. The RPD was satisfied the Respondent was a citizen of Afghanistan, and found that his evidence established that he faced a serious risk of persecution in that country on account his familial relationship to his father Dr. XXXX XXXX, Afghanistan's XXXX XXXX XXXX XXXX: The claimant fears persecution by the Anti-Government Elements (AGEs) in Afghanistan based on his family relationship to his father. He came to Canada via the USA using a false passport which was destroyed; he crossed into Canada illegally on foot near the Blaine, Washington - White Rock, British Colombia Port of Entry on June 9, 2018, and initiated this refugee protection claim inland on July 12, 2018. 1 [3] The RPD found the Respondent's evidence was credible and supported the subjective fear of persecution he alleged. It found, further, that evidence of country conditions in Afghanistan credibly supported the Respondent's subjective fear. Having concluded that "adequate state protection [was] not available to him, and that he [did] not have a viable internal flight alternative"2 the RPD determined the Respondent to be a Convention refugee. [4] On January 25, 2019 the Minister appealed the RPD's decision to the Refugee Appeal Division (RAD) on the grounds that the Respondent had failed to establish his identity with adequate evidence.3 [5] On March 13, 2019 the RPD disclosed the record of its proceedings to the parties and the RAD. On March 26, 2019 the Respondent replied to the Minister's submissions and argued that he had established both his personal identity and his identity as a citizen of Afghanistan.4 [6] The RAD convened an oral hearing in accordance with Rules 56 and 57 of the Refugee Appeal Division Rules. The hearing, which was originally scheduled for October 10, 2019 was adjourned to November 26, 2019 after the Respondent's counsel was inadvertently absent. The only issues were identity and credibility. [7] On January 8, 2020, the Appellant Minister filed post-hearing submissions which concluded that the Respondent "is indeed XXXX XXXX born on XXXX XXXX, 2001 and not XXXX XXXX."5 Based on my independent assessment of the evidence in this matter, including the records prepared by the RPD, the Appellant and the Respondent, an audio recording of the Respondent's RAD hearing on November 26, 2019, the testimony offered by the Respondent and his parents during that hearing, and documents contained in the current compilation of the National Documentation Package (NDP) for Afghanistan, I agree with the Appellant's finding. [8] The proper remedy in this case is to dismiss the appeal. DETERMINATION [9] The RAD dismisses the Minister's appeal and confirms the decision of the RPD that the Respondent is a Convention refugee within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA). (signed) "S. Thompson" S. Thompson January 31, 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 at para. 6. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 9. 3 Exhibit M-2, Appellant's Record, Appellant's Memorandum, pp. 65-73. 4 Exhibit P-2, Respondent's Record, Respondent's Memorandum, pp. 69-81. 5 Exhibit M-3. Appellant's Post-Hearing Submissions dated January 8, 2020. P. 3 at para. 5a. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-00224 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français