TB3-06062

RAD File No. / N° de dossier de la SAR : TB3-06062 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) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 17, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Constance Nakatsu 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 (de la) ministre [1] XXXX XXXX, who claims to be a stateless person of Tibetan ethnicity, has appealed a negative determination of the Refugee Protection Division (RPD) dated August 9, 2013. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] Ms. XXXX (the Appellant) alleges that she is a Tibetan. The Appellant alleges that her parents fled Tibet for India in 1959. The Appellant alleges that she was born in India; however, she does not have any status there. She alleges that she is a follower of the Dalai Lama and that she fears harm and mistreatment because of her support for the Dalai Lama. She alleges that she is an activist for the Tibetan cause and that she attended protests on XXXX XXXX, 2013 and other important events. [4] The Appellant alleges that she left India on XXXX XXXX, 2013 and came to Canada via Frankfurt, Germany. The Appellant made her claim for protection on April 18, 2013. [5] The Minister submitted a Notice of Possible Intervention1 on May 10, 2013 given that the Appellant's fingerprints were found to be an exact match to fingerprints held by the US Department of State. The fingerprints were under the name of XXXX XXXX XXXX, national of Taiwan, born on XXXX XXXX, 1980. The person had applied for a non-immigrant visa in Taipei on XXXX XXXX, 2007 and XXXX XXXX, 2007, and the person was refused a temporary resident visa in Taipei on XXXX XXXX 2008. [6] On June 17, 2013, the Minister intervened with observations.2 The observations indicated that a query of Citizenship and Immigration Canada's (CIC's) Field Operation Support System (FOSS) revealed that XXXX XXXX XXXX, born XXXX XXXX, 1980, citizen of Taiwan, was refused a Canadian visitor's visa on XXXX XXXX, 2008 by the Taipei office. The observations indicate that the US fingerprint match and the FOSS notes support two different identities which gave rise to serious concerns relating to the Appellant's identity and credibility: her residency in Taiwan, her Taiwanese citizenship, her alias as XXXX XXXX XXXX, and a refusal of a Canadian visa. [7] The Appellant's refugee determination hearing was held on June 25, 2013, and written reasons were issued on August 9, 2013. In its reasons, the RPD panel found the following: 1. The Appellant has failed to provide credible or trustworthy evidence to establish her identity and nationality. 2. The RPD drew a negative inference to the Appellant's lack of knowledge of the information contained in the alleged fraudulent passport she used to travel to Canada. 3. The Green Book provided in support of the Appellant's Tibetan citizenship did not establish the Appellant's identity because it lacked security features; it did not cite any contributions to Tibetan authorities in exile since 2010, and the Appellant did not know about the process of obtaining a Green Book. 4. The RPD found that the letter from the XXXX XXXX XXXX XXXX did not establish the Appellant's identity because it lacked a reference number; the copy of the letter submitted to the IRB did not contain a date while the original presented at the hearing contained a date; there was a spelling error in the letterhead but not in the stamp on the letter, and there were formatting concerns with the letter; the Appellant did not know the name of the leader of the camp despite indicating that the camp was small and that she lived there all her life; the letter did not indicate what documents were used to establish the Appellant's identity; and the letter did not contain a photograph or any security features. 5. The RPD found that the letter from the XXXX XXXX XXXX XXXX did not establish the Appellant's identity as it did not contain a date despite there being a space for the date; the letter is not signed, and it did not provide the position of the author in the company; it only provides the first name of the author; the letter does not indicate what means of corroboration the Appellant provided, and the letter does not have any security features. 6. The RPD found the birth certificate did not identify the claimant, given that the Appellant failed to mention the existence of a birth certificate in her disclosures before or at the beginning of the hearing. The RPD also found the birth certificate had concerns on its face, including no photograph or other identifying information such as fingerprints. 7. The bonafide certificate was found not to establish the Appellant's identity based on its lack of a photo or other unique identifying information, and in light of the totality of the evidence before the RPD. 8. The RPD found the concerns with the Appellant's testimony regarding the issuance and status of her registration certificate (RC) and her failure to apply for an identity certificate after 2009. 9. The RPD found that the Appellant did not make serious efforts to get identity documents from others in Toronto which would have been reasonably available to her. The RPD drew a negative inference with respect to the Appellant's credibility based on this. 10. Given that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish her personal identity and her nationality, the RPD did not have to move on with an analysis of the allegations. [8] An Appeal Record was received by the RAD on September 30, 2013. The Appellant's counsel alleged that the RPD made several errors including: 1. The RPD erred in law in its finding that the Appellant has not established her identity. 2. The RPD erred in not finding that the Appellant was a citizen of Taiwan given that it preferred the biometrics report to the other identity documents provided by the Appellant. The RPD erred by not assessing the claim against Taiwan. 3. The RPD erred in not considering the fact that the Appellant's mother and siblings had come to Canada from India and had been found to be Convention refugees. [9] The Appellant did not provide any new evidence and did not request a hearing. The Appellant asks that the RAD set aside the determination and find that the Appellant is a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for re-determination. STANDARD OF REVIEW [10] The RAD focused on three issues in assessing this appeal: a) Did the RPD err in fact by not finding that the Appellant was a citizen of Taiwan? b) Did the RPD err in law by not assessing the claim against Taiwan? and c) Did the RPD err by making an unreasonable finding that the Appellant has not established her identity as a stateless Tibetan? [11] In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,3 which take into account the list of factors in Dunsmuir.4 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. These factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [12] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. [13] Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,5 noted that the factors in deciding the standard of review are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [14] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute: the Immigration and Refugee Protection Act. Section 162 of IRPA gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." With respect to the respective roles of the RPD and the RAD in the context of IRPA, the powers of each Division are the same, although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [15] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;6 however, the presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and the RAD, and the limits imposed on the RAD in IRPA highlighted below. [16] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.7 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing8 and assesses the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [17] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the RAD's ability to consider evidence. The RAD is not a tribunal of first instance but reviews decisions made by the RPD or considers the decision in light of new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.9 The RAD's authority to consider new evidence and hold hearings in the case of appeals brought by a refugee protection claimant, unless responding to evidence presented by the Minister, is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.10 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.11 [18] Given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD is in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".12 [19] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".13 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD and that the RPD's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.14 [20] In the case at hand, the RAD will apply the reasonableness standard to issues of fact and mixed law and fact. Appellant's counsel also alleged that the RPD made errors of law by not making a finding that the Appellant was a citizen of Taiwan and by not assessing the claim against Taiwan. In assessing and selecting the appropriate standard of review for errors of law, the RAD is guided by Dunsmuir. 15 Dunsmuir establishes two standards of review: correctness and reasonableness. Dunsmuir reiterated that: "it is without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law".16 ANALYSIS OF THE MERITS OF THE APPEAL [21] In Assessing the Appeal, the RAD focused on three issues: a) Did the RPD err in fact by not finding that the Appellant was a citizen of Taiwan? b) Did the RPD err in law by not assessing the claim against Taiwan? and c) Did the RPD err by making an unreasonable finding that the Appellant has not established her identity as a stateless Tibetan? Errors in the Assessment of the Appellant's Status in Taiwan [22] The RAD considered whether the RPD erred in not making a finding that the Appellant was a citizen of Taiwan. Appellant's counsel argued that the RPD erred in not finding that the Appellant was a citizen of Taiwan and in not assessing the claim against Taiwan. In the pleadings, counsel indicated that the RPD: "found that she preferred the Biometrics Report establishing that the claimant had used the name XXXX XXXX XXXX in applying for a visa to the United States. The document used was a Taiwanese passport. While the Board held that she preferred (emphasis added) the Biometrics Report to all of the other documents, she did not reach any conclusion other than to find that the claimant had not established her identity".17 [23] Counsel does not direct the RAD to where the RPD made a finding that it preferred the biometric report to all of the other documents, either in the Reasons or in the transcript of the hearing. The RAD carefully reviewed the RPD's written Reasons and finds that there was no mention of the RPD preferring the biometric report to all of the other documents. A review of the section of the Reasons which addressed the biometric evidence18 describes the biometric evidence and the FOSS results and compares that to the Appellant's Basis of Claim (BoC) documents, which indicated that the Appellant was a stateless citizen of Tibet, that she had not applied for a Canadian visa or been refused a visa to any country, and that she had lived in India since her birth. The Reasons indicates that the Appellant was asked for her explanations for the inconsistencies between her BoC and the biometric report contents. The RPD makes no findings and did not indicate that it assigned any inference to the inconsistency between the biometrics report and the BoC. In fact, the RPD concludes with: ... having considered the totality of the evidence before it, including counsel's and the Minister's representations, relevant documents, statutory provisions and case law, and the oral evidence provided by the claimant during the hearing, the panel finds, on a balance of probabilities, that the claimant has failed to produce sufficient credible or trustworthy evidence to establish her personal identity and her national identity as a citizen of Tibet.19 [24] In the pleadings, counsel did not argue that the RPD erred by ignoring the biometric evidence and the FOSS notes, or in the weight that it placed on this evidence. As such, it was open to the RPD to make a finding based on its weighing of the totality of the evidence. [25] The RAD noted that the submissions20 of counsel after the RPD hearing argue that there was not sufficient evidence before the RPD that the Appellant was a citizen of Taiwan. In the submissions, counsel (same counsel for the Appeal) argued that the Appellant had never travelled to Taiwan or made an application for a visa to the United States. The submissions go on to state that: There is indirect evidence which can lead to the conclusion that the claimant is a citizen of the Republic of China, there is no direct evidence of citizenship. I would submit that very simply, the Minister can ask the authorities in Taiwan if the claimant is a citizen...It is respectfully submitted that she has proven that she was born in India of Tibetan parents. [26] Given that counsel argued in its submissions that the Appellant was not a citizen of Taiwan, the RAD finds that it cannot then argue at the RAD that the RPD erred by not finding that the Appellant was a citizen of Taiwan and failing to assess the claim against Taiwan. [27] Based on a review of the record, the RAD finds that the Appellant's counsel has failed to provide evidence that the RPD made a finding that it preferred the contents of the biometric report to the other identity evidence of the Appellant. As such, the RAD finds counsel's assertions of an error were completely without merit. [28] Similarly, given that the RPD did not make a finding that the Appellant was a citizen of Taiwan. The Appellant and her counsel argued that the Appellant was not a citizen of Taiwan at the initial RPD hearing. The onus is on the Appellant to establish his or her personal identity and citizenship. For these reasons, the RAD finds that the RPD did not err in failing to assess the claim against Taiwan. [29] The RAD notes that it is puzzled by counsel's pleadings. The RAD has been provided inconsistent arguments regarding the nationality of the Appellant. In the file, identity evidence and affidavit21 presented in support of the appeal, the Appellant argues that she is a citizen of Tibet. The pleadings prepared by counsel indicate that the RPD erred by not assessing the claim against Taiwan, which Appellant's counsel is putting forward as another country of citizenship, despite the fact that the same counsel argued in post-hearing submissions to the RPD that the Appellant was not a citizen of Taiwan. The RAD questions counsel's approach of asking the RAD to comment on the Appellant's citizenship in Taiwan, when the Appellant maintains in the affidavit included in the pleadings that she is a citizen of Tibet. Appellant's Identity as a Stateless National of Tibet [30] The RAD considered whether or not the RPD erred in finding that it was not provided with sufficient credible or trustworthy evidence in support of the Appellant's personal identity and nationality as a stateless national of Tibet. [31] The RAD finds that the RPD took care to assess the totality of the identity evidence before it. It considered the evidence issued by the US and Canadian governments; it addressed each and every document the Appellant provided in support of her identity in its reasons; it considered the Appellant's failure to obtain additional documents that were accessible to her in Canada, and it assessed the Appellant's testimony in relation to what document she used to enter Canada. [32] The RAD noted that the Appellant's pleadings did not allege any errors in the RPD's assessment or treatment of the identity documents that the Appellant presented in support of her claim to be a stateless person who had lived in India her whole life. The Appellant's counsel made no specific comments on the RPD's treatment of the identity documents provided by the Appellant. [33] Counsel also did not argue in the pleadings that the RPD's overall determination that the Appellant failed to provide sufficient credible or trustworthy evidence to establish her personal identity or nationality in the pleadings was unreasonable. The pleadings solely indicated that the RPD did not consider the fact that the Appellant's mother and siblings had come to Canada from India and had been found to be Convention refugees. The RPD's Reasons did not comment on the Appellant's mother's and siblings' status in Canada and how it relates to the Appellant's identity; however, the RAD finds that the RPD made a general finding, based on the totality of the evidence, that the Appellant did not provide sufficient credible or trustworthy evidence to attest to her personal identity or nationality. The RAD noted that the RPD was not provided with credible or trustworthy documentary evidence to attest to the relationship between the Appellant and her family members, despite the fact that the Appellant's mother attended for the first part of the hearing. The RPD found that there was no way for the RPD to know that the birth certificates are true documents that relate to the Appellant based on the Appellant's failure to mention that she had birth certificates, and her unreasonable explanations on concerns with the issuance of the documents, concerns on the face of the documents, and the lack of unique identifying information such as a photo or fingerprints on the documents. Given that the Appellant has not established her personal identity, the RAD finds that the RPD did not err in not commenting on the status of the Appellant's alleged family members in support of her identity and nationality. [34] Based on the unchallenged credibility findings related to the documents provided by the Appellant to attest to her personal identity and nationality, the RAD finds that the RPD's finding that the Appellant has failed to provide sufficient credible and trustworthy evidence in support of her personal identity and nationality was reasonable. [35] A review of the Reasons confirms that the RPD carefully analyzed the oral testimony of the Appellant as well as the documents she provided in support of her identity. The RPD's findings were transparent and justified in the evidence. The RPD also correctly considered and applied the provisions of Section 106 of IRPA and RPD Rule 11, which deal with the provision of acceptable documentation to establish a claimant's identity. The RPD supported its finding related to the Appellant's lack of knowledge related to the passport she used to come to Canada with appropriate jurisprudence in the Su22 decision. The RPD considered the availability and prevalence of fraudulent documents in India. [36] For the reasons highlighted above, the RAD finds that the RPD did not err in finding that the Appellant has failed to provide sufficient credible or trustworthy evidence in support of her personal identity and nationality. SUMMARY AND DETERMINATION [37] The RAD found that the RPD's determination that the Appellant did not provide sufficient credible or trustworthy evidence to establish her personal identity and nationality was reasonable. The RAD therefore confirms the determination of the Refugee Protection Division that the Appellant is not a Convention refugee, nor is she a person in need of protection as per Section 111(1)(a) of IRPA. [38] The RAD dismisses the Appeal. (signed) "Daniel McSweeney" Daniel McSweeney November 17, 2013 Date 1 RPD's Record, Exhibit 6, pp. 154 - 158. 2 RPD's Record, Notice of Intent to Intervene, pp. 199 - 209. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 4 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 IRPA, s. 110 (1). 7 IRPA, s. 107. 8 IRPA, s. 170. 9 IRPA, s. 110(3). 10 IRPA, s. 110(4). 11 RAD Rule 57. 12 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 13 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 14 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at paragraph 47. 15 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 16 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at paragraphs 48 - 50. 17 Appellant's Pleadings, paragraph 8, p. 43. 18 RPD's Record, RPD's Reasons, paragraph 8. 19 RPD's Reasons, paragraph 36. 20 RPD's Record, Exhibit 12, Counsel's Submissions, pp. 115-122. 21 Appeal Pleadings, Appellant's Affidavit, pp. 15 - 17. 22 Su, Zhi Hang v. M.C.I. (F.C. no. IMM-3420-06), Barnes, June 26, 2007; 2007 FC 680. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06062