TB7-00429

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 : TB7-00429 TB7-00430 TB7-00431 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 XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 26, 2017 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Max Berger Barrister and Solicitor 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 SONIA PAGLIARELLO Conseil du ministre REASONS FOR DECISION [1] The Minister of Immigration, Refugees & Citizenship (the Appellant) appeals the decision of the Refugee Protection Division (RPD) that XXXX XXXX XXXX (the Respondent) and her children, XXXX XXXX and XXXX XXXX (the minor Respondents), who allege to be citizens of Ethiopia, are Convention refugees. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision that the Respondents are not Convention refugees. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Respondents are neither Convention refugees nor persons in need of protection. This appeal is accepted. BACKGROUND [3] The Respondent has alleged as follows: [4] Her father was a member of the Oromo Liberation Front (OLF) and active in Ethiopian politics. He was arrested in 1993 and imprisoned for seven years during which time he was beaten and tortured. The Respondent's husband, a successful businessman and also ethnically Oromo, was arrested in December 2013 - falsely accused of being member of OLF. During his detention he was beaten and tortured. He was released in September 2015 on bail conditions and fled to Kenya in October 2015. [5] On December 4, 2015, the Respondent was abducted from her parent's home by security agents and taken to XXXX prison. There she was beaten and interrogated, and falsely accused of being a member of OLF. She was released on January XXXX, 2016 on condition she report once a month, not attend secret meetings, not leave Addis Ababa, and close her business. Following her release, she decided to flee Ethiopia with her children and come to Canada. They arrived in February 2016 and made an inland refugee claim in March 2016. [6] The Respondents' claim for protection was heard over four sittings: July 11, 2016, August 25, 2016, October 27, 2016, and December 19, 2016. In a decision of December 21, 2016, the RPD accepted their claim, finding the Respondents to be Convention refugees. [7] On January 5, 2017, the Minister (the Appellant) filed a Notice of Appeal, appealing the RPD decision. [8] The Appellant submits the following issues as a basis for the appeal: i. The RPD erred in refusing to admit relevant and probative evidence provided by the Minister. ii. The RPD erred by relying on a photocopy of the Respondent's identity card despite her lack of explanation for not having provided the original. iii. The RPD erred by giving weight to the letters from the Oromo Canadian Association and the Oromo Christian Church of Toronto in establishing the Respondent's identity, despite a lack of information as to how the determinations on her identity were made. iv. The RPD erred in assigning more weight to email correspondence from the Ethiopian Embassy in Ottawa than the Canada Border Services Agency (CBSA) Document Report. v. The RPD erred in giving weight to the psychotherapist's report in establishing the Respondent's identity. vi. The RPD erred in denying the Appellant the opportunity to complete a fulsome examination. ROLE OF THE RAD [9] The recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. With respect to findings of fact and mixed fact and law, which raise no issue of credibility of oral evidence, the RAD is to review the RPD decisions applying the correctness standard. In accordance with the decision of the Federal Court of Appeal, the RAD will conduct its own analysis of the evidence to determine if the RPD erred and, if possible, come to its own determination whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [10] The Appellant is submitting and relying on evidence pursuant to Section 110(3) of the IRPA. [11] The Appellant is of the opinion that the following evidence is relevant as it relates to a matter of central importance to refugee determination, namely identity: 1) CBSA Forensic Laboratory Report2 2) Automatic Counterfeit Protection System Code Classification3 ANALYSIS OF THE MERITS OF THE APPEAL Identity and Credibility The Appellants' Birth Certificates [12] The RPD found the Respondent to be a credible witness and the Respondents' personal and national identity to be corroborated by a substantial number of personal documents,4 namely the Respondent's identity card, the Respondents' birth certificates, a letter from the Oromo Canadian Association, a letter from the Oromo Christian Church of Toronto, two letters from the minor Respondents' father, the father's identity card, a psychotherapist's report, and family photographs. [13] The RPD considered and rejected the Minister's document analysis report concerning the birth certificates because the analysis was not based on a sample document and because it found that the report's conclusions were undermined by evidence from the Ethiopian Embassy in Canada indicating that genuine Ethiopian birth certificates do not have security features. [14] The Respondents noted that the document analysis report stated that the analyst was "...unable to comment definitively on the authenticity [of the document] due to lack of specimen or sample."5 As a result, they made a request, which was granted by the RPD, to have the document analyst summoned for cross-examination. During cross-examination, the Respondents noted that the analyst refused to release the documentary material on which she was relying to conclude that their birth certificates were apocryphal. The Respondents forwarded to and were informed by the Ethiopian Embassy in Ottawa that Ethiopian birth certificates have no security features. [15] The Appellant submits that the CBSA Document Analyst testified that the Respondents' birth certificates were "apocryphal" meaning that "there are serious concerns about its [their] authenticity and/or how it was [they were] were obtained."6 The Appellant, because of concerns raised by the Respondents as to the methodology used in the analysis of the birth certificates, sent the documents for further forensic analysis to the CBSA Science and Engineering Directorate in Ottawa on November 15, 2016. [16] At the December 19, 2016 hearing, the Appellant sought to enter, as an exhibit, the forensic analysis sent to the CBSA Science and Engineering Directorate in Ottawa on November 15, 2016. The RPD noted that the Appellant had breached the 10 day RPD disclosure rule and while acknowledging that the forensic analysis was relevant, found that that factor was "outweighed by less than full diligence by the Minister."7 The RPD further found that if the forensic analysis was to be allowed, the outcome of the hearing would be further delayed than the already lengthy four sittings. [17] The Appellant submits that the RPD erred in not allowing the second forensic analysis to be entered as evidence. The Appellant submits that the second forensic analysis was conducted in response to concerns raised by the Respondents with the first document analysis. Further, the Appellant submits that second report contains relevant and probative evidence and that the RPD has erred by refusing to admit the report. The Appellant notes that based on a comparison of the Respondents' birth certificates with a genuine specimen during the follow-up forensic analysis, it was found that there were discrepancies between the Respondents' birth certificates and the genuine specimen. Additionally, the Respondents' birth certificates were found to have been printed on July 10, 2016.The Appellant notes the Respondent testified that the birth certificates had been sent to her by her father in Ethiopia sometime in March 2016. The Appellant submits that it would have been impossible for the Respondent's father to have sent her the birth certificates in March 2016 when they were printed in July 2016. [18] In response to the Appellant's memorandum, the Respondents submit that the RPD was entitled to enforce the late disclosure rule as the Appellant did not provide a reasonable explanation for the delay. Nonetheless, the Respondents disagree with the Appellant's characterization of the second forensic report. The Respondents submit that in fact the second forensic analysis did not compare their birth certificates to genuine specimens. It references the statements in the report which indicate that "direct access to an original Ethiopian certificate was not available" and that the analysis relied on "images of specimen material."8 They submit that a reliable analysis cannot be conducted without a comparison to an original specimen. [19] The Appellant submits that efforts were made to obtain the report by the disclosure deadline, but she had no control over when the report would be completed. Nonetheless, the Appellant submits that the highly probative value of the report was not properly considered by the RPD. The Appellant further submits that the second forensic analysis reinforces the findings of the first analysis: that the Respondents' birth certificates had characteristics that were inconsistent with genuine Ethiopian birth certificates. The Appellant also submits that in fact the second analysis had access to a genuine specimen, obtained from the Department of Homeland Security in the United States (US). [20] The RAD has reviewed the forensic analyses reports and has considered the submissions of both the Respondents and of the Appellant. Despite the Respondents' assertion that the reports are inconsistent, the RAD finds that the second report is not inconsistent with the first, but builds on the former and has provided additional, more detailed information. The RAD notes that during the last sitting, the Respondents' counsel raised questions as to the professionalism and competence of the analyst. The RAD notes that while no professional qualifications were provided for the second CBSA analyst, the first CBSA analyst has been with the agency since 2002, provides training to other analysts and various enforcement agencies, and has served as a document analyst for several months overseas, reviewing hundreds of documents of the Syrian refugees brought to Canada under a recent government initiative. The RAD is persuaded that the CBSA analysts are not only both qualified and highly professional, but also disinterested parties in these proceedings. [21] While the first analyst, through an abundance of caution was reluctant to "comment definitively on the authenticity [of the birth certificates] due to lack of specimen or sample,"9 the second report utilized "specimen images of a genuine standard"10 obtained from the Department of Homeland Security in the US. The analyst clearly found the reference material provided by the Department of Homeland Security to be sufficiently robust to allow a definitive conclusion that each of the Respondents' birth certificates is not genuine. Further, the analysis was able to determine that the Respondents' birth certificates were actually printed in July 2016, thereby contradicting the Respondent's testimony that they were sent by her father from Ethiopia in March 2016. Equally damning was a follow-up report of February 10, 2017 which indicates that the Respondents' birth certificates were not only not sent from Ethiopia in March 2016, but were in fact printed at a Staples store in Toronto in July 2016. [22] The Respondents have challenged the findings in the analysts' reports, not only because they found that the analysts did not have access to a genuine, physical specimen, but also because of the email received from the Ethiopian Embassy stating that there are no security features in the birth certificates. The information, however, as to when and where the birth certificates were printed was obtained utilizing CPS (Copy Protection Scheme or Counterfeit Protection System). The coding, as explained in the Appellant's submission11 and referenced in the forensic analysis report12 is not based on security features embedded in government documents, but rather is a security feature within the actual printer that allows an examiner to determine that a document was printed in a publicly accessible commercial printer such as the one in the Staples store. As well, the coding allows the examiner to determine the date of printing and the location of the printer. The Respondents have argued that printer used to print the documents could have been sold to purchasers in Africa and eventually purchased by the Government of Ethiopia, and presumably used to print the Respondents' birth certificates. This speculative gambit on the part of the Appellants of course does not explain how the birth certificates could have been printed in July 2016, but sent in March 2016 as the Respondent has testified. The RAD finds, on a balance of probabilities, that the Respondents' birth certificates are fraudulent and that the birth certificates were never sent from Ethiopia as indicated by the Respondent in her testimony. As such, the RAD finds the Respondent not to be a credible witness and the identities of the Respondents to be in doubt. The Psychotherapist's Report [23] The RAD has reviewed the report13 prepared by Ms. Natalie Riback, a psychotherapist. The report is based on an hour interview with the Respondent. Ms. Riback concluded that the Appellant "is exhibiting symptoms consistent with post-traumatic stress disorder, generalized anxiety disorder, and major depressive disorder." The RAD notes that while Ms. Riback interviewed the claimant, her report does not establish satisfactorily or persuasively that the Respondent's experiences are a result of what she is alleging in respect of her refugee claim. As stated in Rokni, a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony."14 The court reiterated its position in Danailov, with respect to the assessment of a physician's evidence and the question of the assessment of credibility, when it was stated that "opinion evidence in only as valid as the truth of the facts on which it is based."15 The RAD finds that, although the Respondent may be experiencing anxiety or depressive symptoms, this may or may not be related to the causes described by the Respondent in her evidence. Accordingly and in light of the credibility concerns, the RAD gives Ms. Riback's report no weight. Letters from Oromo Agencies in Canada [24] The Appellant submits that the RPD erred by giving weight to the letters from the Oromo Canadian Community Association and the Oromo Christian Church of Toronto in support of the Respondents' identities. The Appellant submits that there was no indication as to who interviewed the Respondent and on what basis they arrived at the conclusions in regard to her identity. [25] The RAD has reviewed the letters from the Oromo Canadian Community Association and the Oromo Christian Church of Toronto. With respect to the letter from the Oromo Canadian Community Association (OCCA), the RAD notes that the determinations as to her identity were made based on "written statements received from two members of OCCA" and on "an extensive interview" by someone at the agency. There is no indication, however, as to the content of the statements or what questions were asked or documents reviewed during the interview. The RAD finds that there the letter provides insufficient evidence as to how the agency was able to determine the Respondent's identity. [26] With respect to the letter from the Oromo Christian Church of Toronto, the RAD notes the letter is a merely a letter of support and gives no indication that the Church has attempted to establish the Respondents' identities. [27] In light of the content of the letters, the RAD finds that there is insufficient evidence to clearly establish the identities of the Respondents and gives them little weight. CONCLUSION [28] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD finds that the RPD's findings regarding the Respondents' identities are neither correct nor sustainable. [29] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Respondents are neither Convention refugees nor persons in need of protection. This appeal is accepted. (signed) "Anthony da Silva" Anthony da Silva June 26, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, at pp. 1-25. 3 Exhibit P-2, Appellant's Record, at pp. 26-33. 4 Exhibit RPD-1, RPD's Record, at pp. 104-151. 5 Exhibit P-3, Respondents' Record, at pp. 34, 37, and 40. 6 Ibid. 7 Recording of December 19, 2016 Hearing. 8 Exhibit P-2, Appellant's Record, at pp. 2-3. 9 Supra, footnote 5. 10 Exhibit P-2, Appellant's Record, at p. 4. 11 Exhibit P-2, Appellant's Record, at 2nd page of memorandum, 12 Exhibit P-2, Appellant's Record, at p. 3-4. 13 Exhibit P-3, Respondent's Record, at pp. 53-56. 14 Rokni, Mohammad Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 15 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-00429 TB7-00430 TB7-00431