TB4-12128

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 : TB4-12128 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 25, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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 AND DECISION [1] XXXX XXXX (the Appellant), a citizen of Pakistan, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be a Convention refugee or return the matter to the RPD for redetermination. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he is a citizen of Pakistan who lived from 2006 to 2014 in South Korea. He alleges that he is gay and that, upon return to Pakistan, he will be harmed or killed because of his sexual orientation. [4] The Appellant's application for refugee protection was heard on November 4, 2014. By a decision of November 14, 2014, the RPD rejected the claim. The panel found that the Appellant had not established his identity with credible evidence, and therefore he could not be a Convention refugee or a person in need of protection. [5] The Appellant submits that the RPD erred in its assessment of his identity. He also submits new identity evidence in support of his appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that an Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for an Appellant to make full and detailed submissions in his or her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.2 [8] The Appellant asks the RAD to admit his Pakistani National Identity Card, his birth certificate, and a letter from his mother explaining how these identity documents were obtained.3 As requested by the RAD, the Appellant provided the original of these documents, as well as the courier envelopes in which they arrived in Canada from Pakistan. [9] The Appellant was questioned in the RPD hearing about his identity documents. He explained that his National ID card and birth certificate were in Pakistan and that these documents were difficult for him to obtain, as he was estranged from his family. The RPD rejected this explanation, noting that he had a supporting affidavit from his mother and therefore could have asked her to obtain the documents.4 In fact, the Appellant explains on appeal that his mother did send him the documents, but they arrived after his RPD hearing. He attempted to provide the documents to the RPD, but they were rejected, as a decision had already been rendered. [10] The letter from the Appellant's mother is dated November 14, 2014, and the birth certificate bears the same date. According to the waybill on the courier envelope, the documents were sent on November 15, 2014. Both of these documents arose on the same day as the rejection of the Appellant's refugee claim. While in the strictest sense, this timing does not meet the restriction in Section 110(4) that the evidence must arise after the rejection of the claim, the RAD finds that, for the purpose of this appeal, the documents did arise after the rejection of the claim. The documents were created in Pakistan on the same date that the RPD signed its decision rejecting the Appellant's claim; it would be unreasonable to expect the Appellant to provide such documents prior to the rejection. In fact, the documents were sent promptly, and the Appellant attempted to provide them to the RPD, only to find that his claim had already been determined. In these circumstances, the RAD finds that the letter and the birth certificate arose after the rejection of the refugee claim and therefore meet the test in Section 110(4). [11] The Appellant's National ID card was issued in 2008 and therefore did not arise after the rejection of the Appellant's claim. He explained before the RPD that it was not available to him, as he was living in South Korea prior to coming to Canada and as the ID card was with his father, from whom he was estranged. His mother was later able to obtain the card and sent it to the Appellant, as set out above. The RAD finds that the ID card was not reasonably available to the Appellant at the time of the rejection of his claim, and it therefore meets the test in Section 110(4). [12] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances". This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility and trustworthiness of proposed new evidence. [13] The RAD has considered the proposed new evidence and examined the original birth certificate and National ID Card. The RAD has no reason to doubt that the documents are credible and trustworthy, and admits it as new evidence in this appeal. The Role of the RAD [14] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [15] The Appellant makes no specific submissions on the standard to be applied here to the decision of the RPD. [16] As this appeal can be determined on the basis of the new evidence presented by the Appellant, it is not necessary for the RAD to determine the appropriate standard by which to review the decision rejecting his refugee claim. The Appellant's Identity [17] The RAD has accepted the Appellant's new evidence, which includes a Pakistani National ID Card as well as a recently re-issued copy of his birth certificate. Both documents contain security features, and the RAD has no reason to doubt their veracity. The RPD record contains biometric evidence, which, through fingerprints and a photograph, also corroborates the Appellant's identity.5 [18] Having considered this evidence, the RAD finds, on a balance of probabilities, that the Appellant has established his personal identity as XXXX XXXX and his national identity as a citizen of Pakistan. [19] The Appellant's personal and national identity is not, however, determinative of his refugee claim. That claim is based on another aspect of his identity-his alleged sexual orientation. The RPD's treatment of this important issue is puzzling. The panel wrote that it "did not take testimony with regards to the claimant's sexual orientation since it finds that on a balance of probabilities he has not established his identity." In the very next sentence, the RPD found that "the core element of the claim lacks credibility."6 If the RPD did not hear testimony on the core element of the claim, how could it reach a conclusion on the credibility of that aspect of the Appellant's identity? This was clearly an error. Disposition [20] The RPD rejected the Appellant's refugee claim on the basis of his failure to establish his identity. The RAD has found that the Appellant's new evidence in this appeal does establish his personal and national identity. The RPD's decision therefore must be set aside. [21] The Appellant asks the RAD to substitute its own determination that he is a Convention refugee. The RAD is unable to do so. The RPD did not examine the core of the Appellant's claim, and as such there is insufficient evidence in the record on which the RAD could make a finding with respect to the Appellant's sexual identity. Although the RPD wrote that credibility was a determinative issue, that identity and credibility are intertwined, and cited a number of credibility concerns, it did not make an overall determination with respect to the Appellant's credibility. [22] For these reasons, this matter must be reheard by another panel of the RPD. The RAD has found that the Appellant has established his personal and national identity, and the RPD is directed to accept this finding unless contrary evidence arises in the rehearing of the refugee claim. The RAD makes no determination with respect to the Appellant's credibility, his subjective fear, or his sexual identity. CONCLUSION [23] Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld March 25, 2015 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014; 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Appellant's record, pp. 61-68. 4 RPD's Reasons, para. 15. 5 RPD's Record, pp. 107-111. 6 RPD's Reasons, paras. 17-18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12128