VB9-04488

RAD File / Dossier de la SAR : VB9-04488 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montreal, QC Appel instruit à Date of decision July 27, 2020 Date de la décision Panel Michel Colin Tribunal Counsel for the person who is the subject of the appeal Ramin Joubin Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Ministers Jennifer Mensink Conseil du ministre REASONS FOR DECISION OVERVIEW [1] MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP & MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS (Appellants) appealed the decision of the Refugee Protection Division (RPD) accepting the asylum claim of XXXX XXXX (Respondent), a Ukrainian citizen. [2] The RPD found that the Respondent is a Convention refugee, as he has a well-founded fear of persecution should he return to Ukraine because of his political opinion. [3] The Appellants submit 3 documents they wish to have considered as new evidence before the Refugee Appeal Division (RAD). These include information and documents provided by the Respondent in visa applications which predate the alleged persecution. They submit that these documents raise serious credibility issues pertaining to the Respondent's previous education, employment and places of residence. They argue that this evidence contradicts the very heart of his allegations pertaining to his exploitation of agricultural land which led him to political militancy after it was raided. The documents further raise the possibility of a 1E exclusion with regard to Spain. They conclude that the RAD should set aside the determination of the RPD and hold an oral hearing to decide on the credibility of the claim, and a determination on the article 1E exclusion, or, in the alternative, refer it back to the RPD for redetermination with direction. [4] The Respondent essentially submits that an agency that he hired to obtain a tourist visa made misrepresentations and submitted forgeries on his behalf without his knowledge. He submits 11 exhibits he wishes to have considered as new evidence before the RAD. He argues that these support his contention that he owned agricultural land, that he lost his permanent residency in Spain after his divorce and that he may no longer recover it. He submits that the Appellants' evidence does not meet the requirements of Subsection 110 (6) of the Immigration and Refugee Protection Act (IRPA), as it fails to raise serious credibility issues that are central to the decision and would not justify allowing or rejecting his claim. Alternatively, the Respondent submits that his responding evidence in his affidavit adequately resolve the issues raised by the Appellants and that for that reason, no hearing is required. [5] The Appellants' rebuttal includes submissions that the Respondent is responsible for representations made on his behalf, that the new evidence that he submits raises further credibility concerns, including some pertaining to the credibility of whether and when he divorced and an additional possibility of a 1E exclusion pertaining to Latvia. [6] The determinative issue for RAD is whether a hearing is allowed before the RAD in conformity with Subsection 110 (6) of the IRPA, and whether the RPD decision needs to be set aside. [7] I accept the new evidence submitted by both the Appellants and the Respondent. I find that the Subsection 110 (6) of the IRPA precludes me from holding a hearing, and that the RPD decision needs to be set aside as it is erroneous. I am unable to reach a decision with the evidence that I have on record and thus refer the matter to the RPD with directions. DECISION [8] The appeal is allowed. I send this matter back to the RPD to be redetermined. THE EVIDENCE PRESENTED BY THE APPELLANTS IS ACCEPTED [9] The following documents included in the Appellants' memorandum are accepted as new evidence: Respondent's application for Canadian Visitor Visa (CVV) submitted on XXXX XXXX, 2017. 1 Document I. Solemn Declaration of Nicholas Theodorakis, the CBSA Enforcement Case Officer who contacted US Consulate in Vancouver, to inquire about the Respondent's US Consular records. 2 Document II. Solemn Declaration of Shellie McLean, the CBSA Hearings Advisor who contacted the US Consulate in Vancouver, to inquire with Spanish Immigration authorities on the resident card. 3 Document III. Websites for the institutions that the Respondent has stated he has attended. 4 THE EVIDENCE PRESENTED BY THE RESPONDENT IS ACCEPTED [10] The following exhibits are accepted as new evidence pursuant to Subsection 110 (5) or the IRPA: Exhibit A. Website of Immigration Services advertised to Ukrainians Exhibit B. Website of Immigration Services advertised to Ukrainians Exhibit C. State Statistics Committee Certificate pertaining to Respondent's lands Exhibit D. State Registry Certificate pertaining to Respondent's lands Exhibit E. State Land Title Act documents pertaining to Respondent's lands Exhibit F. Correspondence between Respondent's counsel and Legal Services Society Exhibit G. Copy of Respondent's Spanish Residential Permit Exhibit H. Respondent's Spanish divorce Exhibit I. Copy of Family Book of XXXX XXXX Exhibit J. Certificate of Marriage of Respondent Exhibit K. Receipt of Spousal Sponsorship application payment of Respondent ANALYSIS Applicable legislation [11] My role is to look at all the evidence and decide if the RPD made the correct decision.5 [12] Subsection 110 (6) of the IRPA states: "The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim." The Appellants' Submissions [13] The Appellants submit that questions relating to the education and employment of the Respondent pertain to the very core of his asylum claim since his persecution resulted from his involvement in agricultural work and the Agrarian Party. They submit that the new evidence that they presented raise serious credibility issues since they refer to a different course of studies and employment by the Respondent in fields unrelated to agriculture, and that there was no written evidence of land ownership presented before the RPD. They also submit that the documents on record suggest a possibility of 1E exclusion and that a hearing is required to address these issues. [14] In particular, they note that Document I, the CVV application, indicates that the Respondent studied XXXX XXXX XXXX XXXX XXXX in England from September 1999 to June 2004. Furthermore, Document II indicates that according to the US Consulate, the Respondent sated that he studied XXXX XXXX XXXX XXXX XXXX at the XXXX XXXX XXXX XXXX XXXX XXXX XXXX from September 1998 to July 2004. These two documents are incompatible with the declaration made in Schedule A by the Respondent, September 1999 to May 2003, in Ukraine where he obtained a diploma as XXXX XXXX. [15] They also note that the CVV application refers to the Respondent having worked from December 2012 to December 2016 as the XXXX XXXX of a company called "XXXX XXXX XXXX XXXX" in Odessa and also from December 2012 as the XXXX XXXX for "XXXX XXXX XXXX" in Kyiv City. In addition, in the US Visitor Visa application, the Respondent stated that he was the "XXXX and co-owner of XXXX XXXX XXXX XXXX XXXX XXXX XXXX Company", in Valencia, Spain. Finally, there is no mention of land ownership or agricultural work in these visa applications. This employment history is inconsistent with the information provided in Schedule A, and his sworn testimony that he was employed from January 2005 to November 2017 that his employment was with XXXX XXXX XXXX. [16] As for the possibility of a 1E exclusion, they submit that a Spanish residence card creates prima facie evidence that the Respondent is a resident of that country which he must rebut to be successful in his asylum claim. I will further summarize and address the Appellants' rebuttal later in this decision. The Respondent's Submissions [17] The Respondent essentially explained in an affidavit that an agency that he hired to obtain CVV made misrepresentations and submitted forgeries on his behalf without his knowledge. He did not meet the representative of this agency in an office, never signed the visa application, and he does not recognize the signature, most of the accompanying documents. Although he was unable to find this agency since the minister appealed the decision, he submits documentary evidence that similar agencies advertise guaranteed results using similar practices, that the Spanish residence card provided by the agency had signs of alteration, that his new evidence establishes that he lost Spanish residency by divorce, that both he and his ex-wife are now remarried and now provides evidence of his ownership of land. He explains that he did not submit this evidence before the RPD because his translation costs went far beyond that authorized by Legal Aid (which he also corroborates in writing). [18] In his response, he essentially argues that his new evidence addresses the issues raised by the Appellants, and that there are, therefore, no serious credibility issues to examine at a hearing. Furthermore, the issues raised by the Appellants are not central to the decision which is based on his credible evidence pertaining to the events and his political opinions rather than upon his background in years previous to then. [19] In a rebuttal also titled "response", the Appellants note that the Respondent is responsible for representations made on his behalf, that the new evidence that he submits raises further credibility concerns and an additional possibility of a 1E exclusion pertaining to Latvia. The Appellants' rebuttal [20] In particular, they note that the Exhibit H, the divorce documents, indicate in 2 places that he was married on the date of his birth, rather than on XXXX XXXX, 2012, and that several documents are handwritten and it is unclear if they were completed by an official of Spain. I find that the documentary evidence raises a serious issue with respect to the credibility and that is central to the decision [21] I find that the documentary evidence raises serious issues with respect to the credibility. Indeed, I agree with the Appellants that the contradictory evidence which suggest that the Respondent was not in Ukraine at the time when he allegedly was studying XXXX there, the evidence that he worked in different areas of employment than agriculture during the same periods significantly undermine his credibility. Indeed, this pertains to the very core of his asylum claim since his persecution resulted from his involvement in agricultural work and the Agrarian Party. This is further aggravated by the fact that his education and employment in the agricultural field were not mentioned in the visa applications. Furthermore, the evidence that he may be the subject of 1E exclusion because of residency in Spain and has Latvian nationality also raise serious credibility issues. [22] There remain, therefore, a number of serious credibility issues which require examination. The fact that they pertain to the very core of the asylum claim make these issues central to the decision. I do not find that the Respondent adequately addressed all of the credibility issues in his affidavit, his response, and documentary evidence. [23] With regard to his education and employment declarations in the visa applications, the Appellant only addresses the contradiction between the CVV and his allegations, which he blames on an unscrupulous agency that he hired. I find that, to believe these explanations, more detailed testimony would be necessary. Nevertheless, regardless of that, he in no way explains why the information that he provided to American authorities also contradicts his allegations. [24] With regard to the evidence establishing that he is divorced and for that reason, no longer has permanent residency in Spain, I agree with the Appellants that the error as to the date of his marriage in divorce documents is a cause for concern. But there is more. The divorce document is dated XXXX XXXX, 2018, whereas the Respondent contends that he was divorced in XXXX of the preceding year, not to mention that according to the CVV, he got divorced in XXXX 2017. This raises further credibility issues pertaining to 1E exclusion in that country. I do not find that a hearing before the RAD would justify allowing or rejecting the refugee protection claim. [25] The divorce documents indicate that the Respondent is also a national of Latvia. I do not agree with the Appellants that this raises a further 1E exclusion. It actually raises the question of an additional country of reference as a citizen. As questions regarding his status in Latvia were not asked at the hearing and I do not have that information on record, I would be unable to accept the claim based on the new evidence. For this reason, the criteria of subsection 110(6) are not met. [26] Furthermore, the RPD erred in not giving notice to the Minister under subsection 26(1) of the RPD Rules 6 by failing to address the possibility of exclusion for criminality considering the Respondents statement that he was charged with tax evasion in XXXX 2017 7, a crime punishable by over 10 years of incarceration depending on the circumstances and which may constitute serious criminality. The RPD also erred by failing to provide reasons thereon, regardless of whether or not the Minister would have elected to intervene. As these issues were not raised by the RPD, I would be unable to accept the claim. For this reason, the criteria of subsection 110(6) are not met. [27] Therefore, Subsection 110 (6) of the IRPA precludes me from holding a hearing, since the issues raised by the documents would still not allow me to address all of the issues necessary to either accept or reject the asylum claim as some of these issues fall well beyond the scope of the documents. For these reasons, I find that the decision is not correct, that it cannot stand and that the matter needs to be referred back to the RPD. CONCLUSION [28] The appeal is allowed. I send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD [29] I, furthermore, issue the following directions: [30] The RPD will require, without limitation, the BOC form and any amendments submitted, all documentary evidence submitted at the first hearing, the recording and any official transcript available of the first hearing, the RPD decision of the first hearing; [31] A notice must be sent to the Minister of the possible application of the exclusion clause 1F(b) for a serious non-political crime in accordance with Rule 26(1) of the RPD Rules, considering the Respondent's statement that he was charged with tax evasion in XXXX 2017; 8 [32] The RPD must explore the possible application of the exclusion clause 1F(b), and provide reasons thereon, regardless of whether or not the Minister elects to intervene after receiving notice; [33] A notice must be sent to the Minister of the possible application of the exclusion clause 1E with regard to Spain. [34] The RPD must explore the possible application of the exclusion clause 1E, and provide reasons thereon, clearly applying the framework for analysis found in the Zheng decision, regardless of whether or not the Minister elects to intervene after receiving notice; [35] Should the RPD reach the conclusion that the Respondent is not excluded, it must explore whether Latvia constitutes a country of reference, and provide reasons thereon, and if it does, the existence of any fear in that country should then follow. [36] If found that Latvia is not a country of reference, the impact of the new evidence, with regard to the credibility of his fear of persecution or risk in Ukraine pertaining to the agricultural land he allegedly owned and his political opinions must then be explored. (signed) Michel Colin Michel Colin July 27, 2020 Date 1 Ministers' RAD Record at pages 17-54. 2 Ministers' RAD Record at pages 55-58. 3 Ministers' RAD Record, pages 59-62. 4 Ministers' RAD Record, pages 63-83. 5Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Canada (Citizenship and Immigration) v. Ahmed, 2015 FC 1288. 7 RPD-1, Schedule A, question 6 j, page 36 of the RPD record. 8 RPD-1, Schedule A, question 6 j, page 36 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-04488 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français