TB6-09678

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 : TB6-09678 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 October 20, 2016 Date de la décision Panel Robert S. Garner 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant claims to be a citizen of Tibet. The Appellant has not submitted new evidence in support of her appeal, nor does she request an oral hearing. The Appellant asks that this appeal be allowed, that the decision of the RPD be set aside, and the Appellant be found to be a Convention refugee or person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(c) of Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the appeal and sends the case back to the RPD for re-determination. Memorandum of Appeal * What is the standard of review? * Did the RPD err in fact and law in its assessment of the Appellant's identity? Background [3] The original refugee claim was for two claimants: the male claimant XXXX, RPD claim number TB6-02295, and for XXXX, the male claimant's spouse, RPD claim number TB6-02310. Subsequent to the RPD hearing the male Appellant died and the Immigration and Refugee Board was notified on August 3, 2016. The female Appellant, XXXX, wishes to continue the appeal. [4] The background information provided in the Basis of Claim (BOC) narrative1 was submitted by the now deceased male claimant. The principal Appellant, the deceased's widow, relies on this narrative for her appeal. No new information or documentation has been submitted for the appeal. The deceased male claimant's narrative states the following: [5] He was born on XXXX XXXX, 1932 in XXXX XXXX XXXX, Tibet. He married the principal Appellant in this appeal, XXXX, in 1962, and had a son in 1965. He stated that he and his wife were citizens of Tibet and no other country. He fears persecution on the basis of his political opinion and religious beliefs. [6] He outlined his experience as a XXXX XXXX XXXX XXXX XXXX, and the effects of the announcement that the Chinese government was going to force them to sell their livestock and settle in one place. As a result, he fled China and eventually arrived in Kathmandu. They were unable to obtain a refugee identity card in Nepal as they had stopped issuing them prior to their arrival. He states that the situation for Tibetans in Nepal was worsening, and that after the earthquake in 2015 they could not ask for assistance as they had no status. He stated that he believes in a free Tibet, and he would be persecuted for his opinion that China illegally occupies Tibet. [7] The RPD hearing was held on May 20, 2016, and in a decision of June 20, 2016, the RPD found that the claimants failed to establish their identity and their claims were rejected. ROLE OF THE RAD [8] The Appellant supports the RAD's role as described in Huruglica.2 The decision of the Federal Court of Appeal in Huruglica provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. [9] The Court stated that with respect to findings of fact (and mixed fact and law) which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions by applying the correctness standard. Pursuant to section 111(2)(b) of the IRPA, the RAD may refer the matter back to the RPD for redetermination if it is "of the opinion" that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because those cases require an assessment of credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [11] The standard of review was addressed above. Identity [12] Note: In referring to the findings of the RPD and submissions by the Appellant, the RAD will change the gender designation from "plural" to "singular." In addition, the now deceased male claimant gave testimony throughout the hearing. The female Appellant was only asked if she wished to add information to her husband's testimony, and she stated that she did not. In the decision below, the RAD will refer to testimony given at the hearing using the male identifier, "he." [13] The RPD quoted section 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules in deciding that identity was the determinative issue in this claim. The RPD found that the Tibetan Voluntary Revenue Contribution Booklet (Green Book)3 was an insufficient document to prove the identity of the claimant or Appellant. [14] The male claimant (he) testified that they arrived in Nepal in 2000 but did not acquire a Green Book until 2005. He explained that it takes a long time to acquire the Green Book, and that he had applied for the document upon arrival in Nepal. The RPD stated that there was no evidence to explain a five year delay in acquiring the Green Book, there were no features obvious which would require a lengthy process to produce it, nor was there a temporary or interim Green Book issued. The RPD found it implausible that the Tibetan Government in Exile would pass up five years of contributions by failing to issue the Book for five years. [15] The RPD noted that the Green Book is only valid until 2010, and noted that he stated that, "you have to be registered and get it renewed", and thought he had renewed his booklet. He stated several times during the RPD hearing that he could not read or write. [16] The RPD noted that the Green Book stated that his occupation was, "business", but that he had been retired since 2005. The RPD noted that he stated he had never worked in Nepal. Counsel asked him regarding this issue, and he testified that his occupation was in business because many people from his part of Tibet were in business. The lack of an answer to the question caused the RPD to find that this was an indication that his testimony was evolving. [17] The RPD found the issuance of the Green Book contentious. When asked by counsel, he replied that no one had vouched for him when he applied for the Green Book. He testified that he went to an office, gave his name, age, native place, and when they were satisfied he was a genuine Tibetan they issued the Green Book. The RPD also found that the claimant's testimony regarding the method by which he determined his age did not answer the question asked by his counsel. [18] The RPD also questioned him about travel to Canada and used these credibility concerns to impute his evidence as it relates to the issue of identity. The claimant alleged that he had paid C$2500 for two false passports that were apparently good enough to fool airport security at two international airports and Canada Border Services Agency (CBSA) at Pearson International /about his travel route, the claimant was unable to give specific answers regarding the passport and countries that he traveled to with his passport. When given the information on his application for refugee status that he had traveled from Kathmandu to Turkey to Mississauga, the claimant responded that he didn't know. The RPD found that, because of the inconsistencies in testimony plus a lack of documentation, the information as to how they traveled to Canada was being deliberately withheld. [19] The affidavit4 produced post-hearing was not given weight by the RPD because it provided minimal detail, from someone who did not present at the hearing, and had never been mentioned before in the course of evidence. The RPD also stated that any weight given to this document would be insufficient to counterbalance the effect of the flaws in the Green Book, and his lack of credibility on identity and related matters. [20] The Appellant, quoting Federal jurisprudence,5 submitted that in the absence of satisfactory documents establishing identity, the panel was obliged to assess the Appellant's testimony as to who they were. The Appellant, quoting other Federal jurisprudence,6 stated that an applicant's sworn evidence is presumed to be true unless there is reason to doubt its truthfulness. The Appellant submits, except in a clear and substantiated findings of fraud, the rejection of regular identity documentation leaves sworn testimony on the issue of identity un-assailed. [21] The Appellant takes issue with the RPD's finding that the Green Book is not genuine. There was no evidence before the RPD to explain the delay in issuance of the Green Book. The RPD used this as one of its reasons for finding the Green Book not genuine. The Appellant quoted the National Documentation Package (NDP) documentation,7 to submit that the issuance of these Green Books may have been disorganized at that time, in that local not central Tibetan administration were issuing the Green Book. The Appellant submits that the RPD did not consider this documentation or counsel's submissions when the panel stated there was no evidence to explain the issuance of Green Book in 2005. [22] The Appellant also states that there was no evidence to support the RPD's speculation regarding the Tibetan Government in Exile passing up five years of contributions. In addition she submits that the RPD, noted that the Green Book was only valid until 2010, and did not say how this served to cast doubt on the books authenticity. [23] With respect to the RPD's finding that the claimant's testimony was evolving, The RPD failed to mention or take into consideration his age, almost 84 years at the time of the hearing, his poor health, and illiteracy. That the RPD failed to take these issues into account as an error as well as the microscopic approach taken in the examination of his testimony. [24] The Appellant made submissions on the issuance and use of fraudulent passports for arriving in Canada. Also, that the RPD based its entire finding on the lack of sufficient documentation to prove the claimants or Appellant's identity. [25] According to NDP documentation,8 "... most Tibetans do not have any personal identification documents. Tibetan nationality is determined through an in-person interview with an association member...." It goes on to state that, "...Tibetan nationality can be determined based on such things as language, mannerisms, and physical features...." [26] According to NDP documentation quoted above, the genuineness of the Green Booklet can be authenticated by sending the appropriate documentation to the address named in the NDP documentation. [27] The RAD finds that the RPD's speculation about the Tibetan Government in Exile passing up five years of contribution is in error. [28] The RAD finds that the listing of the claimant's occupation as, "business" is not a sufficient basis to deny the genuineness of the Green Book. The RPD raised some credibility concerns regarding his travel, but this credibility issue is not directly related to the Green Book presented in documentation. If the Green Book issued as identity documentation, is genuine, then the issues of travel, passports, potential persecution in Nepal, and other relevant issues need to be addressed regarding the overall credibility of the claimant and Appellant. [29] The RPD noted that the Green Book submitted in documentation, was only valid for five years, and was issued in 2005. The RAD agrees and references9 the NDP documentation. The documentation states the Green Book needs to be renewed every five years. If the Green Book is to be maintained, it is dated and stamped by an issuing officer. [30] In examining the translation of the document,10 such information was included when the Green Book was issued in 2005, indicating that other documentation may have been available prior to the issuance of this document. In addition, the Green Book has contributions made after 2010, and also indicates penalty payments, consistent with the NDP documentation. [31] The RAD concurs with the Appellant's submissions regarding the RPD's failure, in its reasons, to take into account the state of health, age of the male claimant, and his illiteracy, when making findings of his evolving testimony. [32] The RAD agrees in part with the RPD's finding on the affidavit. It would be reasonable that this individual would have presented documentation prior to the hearing, and been available to give evidence. However, the determinative issue that the RPD has focused on has been the Green Book, and its lack of genuineness. The RPD did address other issues in the claim used these issues to negate the identity of the claimant's and Appellant's identity. As noted above, the NDP documentation indicates that the validity of this document can be assessed. The RAD, in its decision, has shown that the major findings of the RPD regarding this document are questionable, and cannot be used to negate the stated identity of the Appellant. [33] The RAD finds, on a balance of probabilities, that the findings of the RPD regarding the Green Book are insufficient to find the documentation fraudulent, and are not entirely probative with regards to the Appellant's identity. The RPD also finds, to preserve natural justice, that the Appellant in this case needs to be questioned in order to make a correct decision. The Appellant in this case was not questioned in the RPD hearing, but only asked if she had anything to add her deceased husband's testimony. [34] In that other merits of the claim were not addressed by the RPD, the RAD is unable to hold the finding that the Appellant is not a Convention refugee because of the issue of identity. Disposition [35] The RAD upholds the appeal and refers the matter back to the Refugee Protection Division for re-determination, according to section 111(1)(c) of the IRPA. (signed) "Robert S. Garner" Robert S. Garner October 20, 2016 Date 1 Exhibit RPD-1, RPD's Record, at p. 32. 2 M.C.I. v. Huruglica, Bujar (F.C.A.., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD's record, at pp. 70-81, 82-93. 4 Exhibit RPD-1, RPD's record, at pp. 300-301. 5 Tran v. M.C.I. 2013 FC 1080. 6 Maldonado v. M.C.I., [1980] 2 F.C. 302 (C.A.), at 305(C.A.). 7 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for China (29 April 2016), Responses to Information Requests (RIR), CHN101133.E, item 13.1. 8 Exhibit RPD-1, RPD's Record, NDP for China (29 April 2016), RIR, CHN101133.E, item 13.1. 9 Ibid. 10 Exhibit RPD-1, RPD's Record, at p. 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-09678