TB5-05587

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 : TB5-05587 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (A.K.A XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 7, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, also known as (aka) XXXX XXXX XXXX (the Appellant), a citizen of Ghana, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant requests a hearing for arguments regarding the legal and factual issues in this case. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and to substitute that decision with the RAD's own finding that the Appellant is a person in need of protection or is a Convention refugee. In the alternative, the Appellant requests that the RAD send the case back to the RPD for re-determination by a different panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that as a gay man in Ghana, who had been "outed", his life was in danger from both Muslims and Christians. [4] The Appellant's application for refugee protection was heard on March 30, 2015 and April 20, 2015, with a negative decision being rendered, in writing, on May 5, 2015. The RPD found that the Appellant had failed to provide sufficient credible evidence to establish his identity as a national of Ghana. The general lack of credibility of the Appellant, assessed by the RPD, extended to other relevant parts of the claim. [5] The Appellant submits that the RPD failed to give "every consideration" to the fact that the Appellant made every effort to show credibility with respect to his true identity. The Appellant disclosed his alleged true passport under his real name (XXXX XXXX), and explained clearly how and why the Appellant got trapped into using the false identity of XXXX XXXX XXXX. ANALYSIS Role of the RAD [6] The RAD finds that the recent Federal Court 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [8] The Appellant argues that the RPD should have given greater consideration to the positive efforts made by the Appellant to rectify his usage of a false identity. The Appellant alleges that his true and legal name is XXXX XXXX and he produced, in support of that, a passport showing his picture with the name XXXX XXXX in it. However, the Appellant had entered Canada using a passport with his picture in it and the name "XXXX XXXX XXXX". The Appellant argues that that name and the accompanying passport are false and was only used, initially, because that is what the "agent" gave him, in Ghana, to use. The Appellant argues that he was scared to tell the truth to Immigration Canada upon his arrival so he continued to use the false identity. The Appellant testified that when he had a psychotherapist's exam, it was done under his false identity because that was the name on the Immigration application. The Appellant writes2 "...that he made every effort to inform every organization that he provided supporting documents from, of his real name." However, having read the report from the psychotherapist, the RAD notes that there is no indication in that report that the Appellant had mentioned to his psychotherapist about any name discrepancy. The RAD finds that to be unusual, at least, and infers a negative credibility on this issue. The RAD does not find it would be within the balance of probabilities, that a man attempting to bolster his claim by the use of a psychotherapist, would not have at least mentioned to the medical professional that he had been forced to use a false identity. [9] The Appellant argues that he had done everything he could do to inform every organization from which he provided supporting documents, of his true identity. However, the Appellant writes in his Memorandum3 "...the organizations insisted on providing their letters of support in the name on his immigration documents." [10] The Appellant caused the RAD to have great credibility concerns over his identity. In listening to the audio recording of the hearings, it is clear that the issue of identity was canvassed closely by the RPD and by the Minister. A major issue for the RAD is that of the "new" passport presented at the hearing. This is a passport issued to XXXX XXXX, who the Appellant now claims to be. There was a very interesting exchange between the panel and the Appellant when the panel asked the Appellant about the obtaining of this document. The Appellant testified he had applied for this passport and that it was his first time applying for a passport. The panel then asked the Appellant to go through the steps he took in order to obtain this "first" passport. The Appellant testified that he got a passport application, his birth certificate, and his passport photo altogether to submit, and then both a picture and his fingerprints were taken. What the RAD finds odd, is that the Appellant was asked by the panel whether or not the Appellant had his birth certificate, to which the Appellant replied that he did not have his birth certificate as he had lost it in 2013. However, the Appellant had just testified that he used his birth certificate to obtain his passport; but, that passport was issued in XXXX of 2014, long after the Appellant had lost his birth certificate, according to his own testimony. The Appellant testified that he had lost his first passport so he went to the passport office for a new one, where he had his fingerprints taken and was issued a new passport. The problem with this explanation is that the Appellant had already testified that the passport presented to the RPD was the first passport he had ever applied for. The RAD infers a negative credibility on the Appellant due to this testimony in which the Appellant contradicted his own testimony. The RAD notes that when the Appellant was confronted with the contradiction, he gave no explanation for it. [11] The Appellant writes in his Memorandum4 that the RPD had no doubt as to the passport submitted under the name of XXXX XXXX XXXX being a fake, so the Appellant argues that the panel knew that the Appellant was speaking the truth. However, the Appellant does not explain, to the satisfaction of the RAD, why he would not have insisted to the psychotherapist that she include both the false name and his alleged true name in her report nor why he did not request the authors of the other documents of support do the same. That would not have been an unreasonable request and surely anyone attempting to help a refugee claimant would have had the flexibility to do that. [12] The RAD finds that this issue seriously impugns the credibility of that document (the passport for XXXX XXXX) and of the Appellant. [13] The Appellant argues that he was under great stress at his hearing. [14] The Appellant provided his hospital card and his voter's card but neither was given much weight by the RAD, due largely to the overall credibility concerns with the contradictory testimony mentioned above, coupled with the easy availability of such forged documents in Ghana. [15] There are other issues regarding the Appellant's credibility which the RAD takes note of, but as the three most serious issues of credibility are discussed above, the RAD is satisfied that these issues show that, on a balance of probabilities, the Appellant is not a trustworthy or credible witness. The RAD, after its independent assessment of the evidence, concurs with the RPD on the issue of identity. The RAD finds that the Appellant has failed to present sufficient clear and convincing evidence of his legitimate identity. Disposition [16] The RAD has found that the RPD's decision will stand. The Appellant requests "...a hearing for arguments regarding the legal and factual issues in this case as a hearing affords a better opportunity to present and respond to arguments."5 However, as there is no new evidence submitted, the RAD must adhere to the requirements of section 110 (6) of the IRPA. The relevant part of the IRPA reads as follows: (6) 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. [17] As the Appellant has not submitted any new evidence in support of his appeal, the RAD cannot hold an oral hearing. The request for an oral hearing is denied. CONCLUSION [18] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe October 7, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit P-2, Appellant's Record, Memorandum, at p. 14, para. 8. 3 Exhibit P-2, Appellant's Record, Memorandum, at p. 14, para. 8. 4 Exhibit P-2, Appellant's Record, Memorandum, at p.14, para. 6. 5 Exhibit P-2, Appellant's Record, Written Statement, at p. 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05587