TB7-16652

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 : TB7-16652 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 July 18, 2018 Date de la décision Panel L. Gamble Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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 the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She submits that the RPD erred in its assessment of her identity. She also submits that her new documents presented in the present appeal establish her identity. DETERMINATION [2] As will be addressed in these Reasons, having found that the Appellant has established her personal and national identity, and in light of the country condition documents pertaining to Eritrea, I am allowing the appeal and substituting the RPD's decision with my own determination, namely, that the Appellant is a Convention refugee. [3] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes its own determination that the Appellant has established her personal and national identity as an Eritrean citizen, on a balance of probabilities. BACKGROUND [4] The Appellant alleges a fear of returning to Eritrea on account of her imputed political opinion, namely, that in April 2013 she refused government pressure to join the People's Front for Democracy and Justice (PFDJ) party, resulting in her arrest and detention in XXXX 2016. She states that she was mistreated and sexually assaulted during her period of detention, and that she was released on conditions in XXXX 2016 and fled Eritrea illegally via XXXX in XXXX 2016. She arrived in Canada in XXXX 2016 and made an inland refugee claim shortly thereafter. [5] The RPD rejected the Appellant's claim finding that she had failed to establish her personal and national identity on a balance of probabilities. The RPD had credibility concerns with the Appellant's identity evidence, finding that the documents she presented did not establish her identity, and therefore rejected her claim. ANALYSIS Role of the RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness, as per Huruglica.1 In assessing issues involving credibility of oral testimony, the RAD applies the RAD modified standard of reasonableness where the RAD determines the RPD had a meaningful advantage in assessing oral testimony.2 Admissibility of Evidence Submitted on Appeal [7] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim, or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. This section establishes a disjunctive test. It is for the Appellant to make full and detailed submissions in the Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the present appeal. If the factors in subsection 110(4) are not met, the RAD does not have discretion to admit the evidence. [8] If the submitted new evidence meets the requirements of subsection 110(4), the RAD will consider the criteria as set out by the Federal Court of Appeal in Singh.3 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions for the admissibility of new evidence include: credibility, relevance and newness. [9] The Appellant has tendered ten documents as proposed new evidence in support of the present appeal, consisting of: a. two affidavits from identity witnesses; b. a letter from the Appellant's mother and a copy of her mother's identification; c. a copy of the Appellant's birth certificate issued in XXXX, Ethiopia, prior to the independence of Eritrea; d. copies of the Appellant's secondary school transcripts from Eritrea; e. a copy of the Appellant's father's death certificate; f. a medical/psychological report from XXXX XXXX XXXX in Canada.4 [10] The Appellant submits that these documents meet the requirements of subsection 110(4) as they were not reasonably available to her prior to the rejection of her refugee claim before the RPD. She states that she had previously requested her personal documents from her mother in Eritrea prior to her hearing, but that her mother was only able to locate them recently, and that the Appellant only reconnected with her two new identity witnesses in August 2017, after her claim had been rejected. [11] I find that items (a) to (e) meet the statutory requirements of subsection 110(4). Based on affidavit evidence, the Appellant connected with XXXX XXXX XXXX, a person the Appellant worked with in Eritrea, in Canada after the Appellant's claim for refugee protection was rejected. Likewise, the affidavit of the second witness, XXXX XXXX XXXX, indicates that the witness was a refugee claimant herself and thus not in a position to confirm her own identity, much less the Appellant's, prior to her own claim being accepted in August 2017. Therefore, the affidavits from both identity witnesses - identified together as item (a) - were not reasonably available prior to the rejection of the Appellant's claim. [12] In addition, items (b) to (e) were sent from the Appellant's mother and, according to the Appellant, were only received after the rejection of her claim. Given that the Appellant testified consistently about her efforts to obtain further personal documents from her mother during her hearing before the RPD, I will allow them, as they appear to not have been reasonably available to her prior to the rejection of her claim. [13] However, in respect of item (f), the medical/psychological report issued in Canada, the document states that the Appellant was availing herself of the clinic's medical/psychological services since XXXX 2017, which pre-dates the Appellant's RPD hearing. The Appellant submits that she did not know she should provide evidence of this until after it was raised at her RPD hearing. She asserts that even though she had counsel, she did not understand the need to provide counselling report because "communication issues can result with the use of a third person, interpreter."5 I find that this explanation is insufficient, as it does not explain why the Appellant made no efforts to obtain and submit this report as post-hearing disclosure before the RPD given that she presently asserts that the necessity for such a report was made clear to her at the RPD hearing. As such, this evidence is rejected as I find it is not new and was reasonably available to have been presented to the RPD prior to the rejection of her claim. Request for an Oral Hearing [14] In this appeal, the Appellant's new evidence pertains to establishing her national identity, which the RAD has accepted below, in order to find that her identity as an Eritrean citizen has been established on a balance of probabilities. The RAD is able to make this determination based on the RPD record and the new evidence under 110(4) and without an oral hearing. Therefore, the RAD chooses not to hold an oral hearing in this case. Merits of the Appeal [15] The Appellant argues that the new evidence submitted establishes her identity and supports her credibility. My review of the new evidence and the evidence on record indicates that this is so: the new evidence is largely consistent with the evidence provided by the Appellant before the RPD, and, together with the sworn statements of the two new identity witnesses, satisfies me that the Appellant is who she says she is, and that she is a citizen of Eritrea. [16] Given that the country conditions in Eritrea (as discussed below) are such that for this Appellant, once her personal and national identity has been established, she falls into multiple identified risk profiles, I need not go on to address the Appellant's arguments with respect to her credibility. [17] I find that the Appellant has provided sufficient credible evidence to establish her personal identity and her identity as an Eritrean national, on a balance of probabilities. Considering the Appellant has established that she is a citizen of Eritrea on a balance of probabilities, the RAD must now assess whether her fears of returning to Eritrea are well-founded. Objective evidence on well-founded fear of persecution [18] I have found that the Appellant has established, on a balance of probabilities, that she is who she says she is and that she is an Eritrean national. Moreover, objective country condition documents indicate that those opposed to, or perceived to be opposed to, the authoritarian regime in Eritrea face severe mistreatment or punishment in that country. [19] The United Kingdom Home Office Guidelines and the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines6 indicate that compulsory military service is for all citizens between the ages of 18 and 50. Military service is indefinite and thus violates the international human rights law against forced labour and slavery. There is widespread evidence of routine torture of conscripts. Refusing service has penalties of extrajudicial execution, indefinite imprisonment and torture. The Guidelines state that the nature of mandatory military service in Eritrea is persecutory and requires a grant of protection to Eritreans of military service age.7 Eritreans living abroad since childhood and those born in exile are not exempt from military service. Hence, Eritreans who are forcibly returned, or who return voluntarily, will be subject to conscription in the military service if they satisfy the age criteria and are medically fit.8 Women in national service "frequently" experience sexual abuse and rape by military leaders, including their commanding officers.9 Given the Appellant's age, and her testimony that she had not completed her national service prior to leaving Eritrea, the independent evidence is such that the Appellant would face a serious risk of conscription into service if she returns to Eritrea. [20] Furthermore, according to the independent documentary evidence, failed asylum seekers are punished as traitors in Eritrea and perceived as having been critical of the regime. The documents indicate that any Eritrean who is deported from a foreign country faces imprisonment.10 Thus, I find that the Appellant would face more than a mere possibility of persecution if she were to return to Eritrea on this basis as well. [21] The RAD finds that the objective evidence supports the Appellant's subjective fears. The RAD finds that the Appellant has established a well-founded fear of persecution in Eritrea. As the state is the agent of persecution, she cannot expect adequate state protection in her particular circumstances, nor can she avail herself of a viable internal flight alternative. Therefore, the RAD finds that there is more than a mere possibility that the Appellant would be persecuted if she returned to Eritrea based on political opinion, being a person opposed to forced conscription and as a failed asylum-seeker. CONCLUSION [22] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant has established her personal and national identity as an Eritrean citizen, on a balance of probabilities. In light of the objective country documentation on Eritrea, I find that the Appellant has a profile which gives rise to a finding that she is a Convention refugee, as she has a well-founded fear of persecution in Eritrea. This appeal is allowed. (signed) "L. Gamble" L. Gamble July 18, 2018 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 Ibid, at paras. 69-74. Also see X (Re), 2017 CanLII 33034 (CA IRB). 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Exhibit P-2, Appellant's Record, pp.55-77. 5 Ibid, p.86, para 17. 6 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Eritrea (31 March 2017), item 1.3, United Kingdom. Home Office (December 2014) and item 1.4, HCR/EG/ERT/11/01, United Nations. High Commissioner for Refugees (20 April 2011). 7 Ibid. 8 Ibid. 9 Ibid, item 1.3 at p.15. 10 Ibid, item 1.3 and item 14.4, Norway. Norwegian Country of Origin Information Centre, Landinfo (15 April 2015). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-16652