MB8-22894

RAD File No. / N° de dossier de la SAR : MB8-22894 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 Montréal, Quebec Appel instruit / entendu à Date of decision August 6, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Ubald Lalanne 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 [1] The appellant, XXXX XXXX, a citizen of Haiti, alleges a well-founded fear of persecution by reason of his political opinion. In his Basis of Claim Form (BOC Form), he alleges that during the elections in 2010, he campaigned for the XXXX party in his hometown of XXXX. He states that XXXX XXXX, a candidate from an opposition party, was causing him troubles, making the appellant flee to the Dominican Republic in XXXX 2012. [2] After receiving a visa, he left for Brazil in 2014. The information provided in his IMM 0008 form indicates that he obtained permanent resident status in Brazil.1 While at work, a colleague who was jealous that the appellant had received a promotion allegedly began causing him troubles. [3] In 2016, Brazil faced a political crisis and a recession. The appellant left with the goal of coming to Canada. He arrived in Canada in the summer of 2017. He fears returning to Haiti because XXXX XXXX is currently a XXXX. IMPUGNED DECISION [4] The Refugee Protection Division (RPD) decided that the appellant did not establish his identity in a credible manner. The RPD did not give probative value to the birth certificate submitted under Exhibit P-7.2 This was because the appellant was unable to remember the amount paid to obtain the document, he had presented various statements as to the date he had obtained the document, and the document itself contained incongruences. [5] As for the laminated first page of his passport, the RPD considers that the document is apocryphal due to the circumstances in which he obtained his passport and because it was not his signature on the document. Arguments submitted on appeal [6] In order to support his identity, the appellant attached three new documents to his memorandum of appeal, including a National Identity Card issued in 2005 under the name XXXX XXXX (his mother's family name). [7] The appellant states that despite the fact that these documents were issued before the date that the refugee protection claim was rejected, he did not have them in his possession until he knew the verdict of his claim. He pleads that he was not aware that his identity would be an issue since he submitted the original copy of his birth certificate, a copy of the biometric page of his passport, and a copy of a visa issued by the Brazilian authorities. Furthermore, he pleads that neither the American nor the Canadian authorities doubted his identity upon his arrival. ADMISSIBILITY OF NEW DOCUMENTS [8] The appellant attached the following three documents to the memorandum of appeal: * National Identity Card issued on XXXX XXXX, 2015, under the name XXXX XXXX XXXX * School record for the 2005-2006 academic year for XXXX XXXX XXXX * School record for the 2006-2007 academic year for XXXX XXXX XXXX [9] He submits that these documents satisfy the requirements in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) because he did not have them in his possession when he arrived in Canada or at the hearing before the RPD. He believed that he had presented the RPD with credible and trustworthy documents to establish his identity. It was not until his refugee protection claim was rejected solely due to his identity that he took steps to obtain these documents. [10] I am of the opinion that the appellant demonstrated that the requirements in subsection 110(4) of the IRPA had been met. The National Identity Card is a document that establishes a person's identity. I will allow the appellant's arguments. Taking into consideration the other documents that were submitted before the RPD, I have no reason to doubt that he would not have usually submitted these documents. Despite the fact that the appellant's name on his passport is different than on his identity card, I am of the view that this document appears to be credible, relevant, and is sufficient to establish his identity since it was his mother's family name. Conduct of an oral hearing [11] An oral hearing can only be held before the RAD if the provisions found in subsection 110(6) of the IRPA are respected. In Singh, 3 the Federal Court of Appeal reiterated the principle that the RAD proceeds without holding an oral hearing. According to the Court, this principle "[...]is subject to an exception only where the documentary evidence (a) [...] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) [...] is central to the decision with respect to the refugee protection claim; and (c) [...] if accepted, would justify allowing or rejecting the refugee protection claim." [12] Taking into consideration the nature of the new evidence, it is not necessary to decide whether the RPD erred when it examined the documents submitted before it. Given the legislative provisions, I cannot decide whether to allow or reject the refugee protection claim. Consequently, I am returning this case to the RPD in order for this refugee protection claim to be examined in light of the new evidence. CONCLUSION [13] For these reasons, I set aside the RPD's determination that the appellant, XXXX XXXX, failed to establish his identity and as a result, is not a "Convention refugee" or a "person in need of protection" pursuant to section 97 of the IRPA. [14] The appeal is allowed. Maria De Andrade Me Maria De Andrade August 6, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, page 71. 2 RPD record, pages 95 and 96. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-22894 RAD.25.02 (April 4, 2019) Disponible en français 3 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 4, 2019) Disponible en français