TB8-08818

RAD File / Dossier de la SAR : TB8-08818 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 26, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Warren Chin Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the "Appellant") is a citizen of China. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The appeal is dismissed for different reasons than those reached by the RPD. The Appellant is excluded under Article 1E of the United Nations Convention. BACKGROUND [3] The Appellant is a citizen of China. The Appellant alleges that he protested against local officials, and as a result of his participation in protests, he now fears the Public Security Bureau (PSB). [4] The Appellant came to Canada in 2017 and made his refugee claim. The RPD refused the Appellant's claim on the basis he was found not to be credible. [5] At the RPD stage, the minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened on paper, on the grounds of credibility and that the Appellant should be excluded under Article 1E due to permanent residence in the United Kingdom. [6] The RPD did not address the Article 1E issue on the basis that it did not need to, due to the credibility problems otherwise identified. NO NEW EVIDENCE OR ORAL HEARING [7] The Appellant did not submit any new evidence to be considered under s.110 (4) of the Immigration and Refugee Protection Act (IRPA).1 No analysis of new evidence is therefore required. [8] The Refugee Appeal Division (RAD) did request the Appellant provide submissions regarding the Article 1E issue. This was provided by the Appellant on 23 May 2019.2 [9] As an oral hearing can only be held where there is new evidence that has been admitted under s.110 (4), and since there is no new evidence in this case, no oral hearing is required. ISSUES IN APPEAL [10] The Appellant argued the following issues in his appeal: (a) The RPD erred in its assessment of what constitutes political opinion. (b) The RPD erred in its assessment of the Appellant's ability to leave China using his own passport [11] I find that the determinative issue is whether the Appellant is excluded under Article 1E. ARTICLE 1E ANALYSIS [12] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellants' Memorandum,3 the RPD Decision,4 and the Principal Appellant's Basis of Claim (BOC) form,5 amongst other documents. RPD erred by not conducting Article 1E analysis first [13] The RPD stated that it did not need to conduct an Article 1E analysis as it found the Appellant was not credible. [14] I find that the RPD is incorrect on this point. The RPD is meant to conduct any exclusion analysis first, and if it finds an applicant is excluded, it must refuse the application on that basis without referring to the merits of the claim. I find the RPD erred by not doing this. [15] Having determined that the RPD erred by not conducting an Article 1E analysis, the next step is for me to conduct my own independent Article 1E analysis. Appellant is excluded under Article 1E [16] The Minister provided documentation relating to the Appellant's Canadian Temporary Residence Visa (TRV) application.6 This includes a copy of the Appellant's Global Case Management System (GCMS) summary7 and a colour copy of the Appellant's identity card from the United Kingdom (UK) Home Office.8 [17] The Minister argued that the Appellant submitted his application including his UK identity card which states that the Appellant has Indefinite Leave to Remain (ILR) which is the British term for permanent residence, and the card itself was valid until XXXX XXXX 2026. The Minister argued that on this basis, the Appellant has status in the UK substantially similar to that of a UK citizen. It is further noted that the Appellant has not made any claim that he would be harmed if he were to be sent to the UK. On this basis, the Minister has argued the Appellant should be excluded under Article 1E due to his permanent residence in the UK. [18] The Appellant has argued9 that the UK identity card was fake, and that it was for the Minister to provide the Board with UK biometrics to prove the Appellant has status in the UK. I do not agree with this assertion. Both the UK and Canada are members of the five-eyes intelligence sharing group, and would share migration information including when a visa application is made, including whether details such as the card's identity number and the applicant's identity details are actually registered with the Home Office. If the card were truly a fake, this would have come up in routine checks during the Appellant's TRV application. [19] It is well established in Canadian jurisprudence that foreign issued documents are presumed to be genuine unless there is reason to believe otherwise. Decisions issued by the RPD and the RAD always need to give sufficient reasons to explain why they believe a foreign issued document to be fraudulent. This principle applies to any participating party, including the Minister, and including the Appellant. The Appellant needs to rebut the presumption that the document is fake. It is not for the Minister to prove that the document is genuine. [20] I am not satisfied that the Appellant has established that the UK identity card is fraudulent, beyond his say-so. Conversely, I note that the Canadian authorities assessed the Appellant's application, including the provided details in the UK identity card, and after conducting its checks, were satisfied that the information provided and the documents provided were genuine. I find on a balance of probabilities that the UK identity card is genuine. [21] I disclosed a publication by the UK Home Office about the rights of those with ILR10 and gave Counsel until 19 July 2019 to comment. No submissions were received. [22] I note that based on this publication, those with ILR are free to live, work and study in the UK like UK citizens. Based on the evidence in front of me, I find on a balance of probabilities that the Appellant has a right to permanent residence in the UK, and that this is substantially similar to the rights UK citizens have. [23] I have also considered whether there is any risk to the Appellant if he were to be returned to the UK. The Appellant has not advanced any argument or evidence that he would face a risk of harm if sent to the UK, and find on a balance of probabilities that he does not face a serious possibility of harm if he were sent to the UK. [24] Having conducted my analysis, I find on a balance of probabilities that the Appellant should be excluded under Article 1E due to his permanent residency status in the UK. Time extension request [25] The Appellant also stated in his submissions11 that if I found that the Minister had established that the Appellant should be excluded, could I "...grant the claimant time to make an application to the UK government for a 'returning resident visa' in an attempt to demonstrate that he has never had status in the UK."12 [26] I note it is for the Appellant to advance all the documentation with the appeal by the date of perfection, or to make a proper Rule 29 Application. The Appellant has not indicated they have already made this application and is effectively asking me to pre-disclose what my findings will be ahead of my finalised decision. [27] I find this request does not meet the requirements of either a s.110(4) or Rule 29 application and I do not need to consider it any further. CONCLUSION [28] Pursuant to s.111 (1)(a) of the IRPA, the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is confirmed but for different reasons than those given by the RPD. I find that the Appellant is excluded following Article 1E as a permanent resident of the UK. [29] The appeal is dismissed. (signed) "T. Card" T. Card July 26, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-3, Article 1E Submissions, 23 May 2019. 3 Exhibit P-2, Appellants' Record, Pages 54-68. 4 Ibid., Pages 4-12. 5 Exhibit RPD-1, RPD Record, Exhibit 2, Pages 12-23. 6 Exhibit RPD-1, RPD Record, Exhibit 6, Pages 179-253. 7 Ibid., Page 180. 8 Ibid., Page 192. 9 Exhibit P-3, Article 1E Submissions. 10 Exhibit RAD-1, Member Disclosure. 11 Exhibit P-3, Article 1E Submissions, Page 2. 12 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-08818 RAD.25.02 (April 04, 2019) Disponible en français 6 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.25.02 (April 04, 2019) Disponible en français