MB4-00281

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 : MB4-00281 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX a.k.a XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Québec Appel instruit à Date of decision May 29th, 2014 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la/ personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] Mr. XXXX XXXX XXXX (a.k.a XXXX XXXX), who identifies himself as a 21 years old citizen of Afghanistan, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence but has not requested an oral hearing. DETERMINATION OF THE APPEAL [1] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Law (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Mr. XXXX XXXX is not a Convention Refugee pursuant to s. 96 of IRPA and/or a person in need of protection pursuant to s. 97 of IRPA. BACKGROUND [2] The Appellant alleges that if he returns to Afghanistan he will be targeted by insurgents identified as the Taliban. This is because the Appellant alleges that his father worked for XXXX XXXX in Afghanistan by owning or XXXX XXXX XXXX XXXX XXXX XXXX from Pakistan to the Bagram and Kandahar XXXX XXXX in Afghanistan. [3] The Appellant alleges that in 2008 when the Taliban became aware of his father's activities they attacked XXXX XXXX and in response the father moved his family to Pakistan. The Appellant also alleges that although his younger brother was kidnapped by the Taliban, he escaped before he could be employed as a suicide bomber. [4] The Appellant alleges that he secured an agent and fled the region with his younger brother to eventually make a refugee claim in Norway. This claim was denied and the Appellant, again with the aid of an agent, managed to enter Canada by flying from Greenland to lqaluit. [5] The Appellant submitted a claim for refugee protection after being placed in secondary inspection upon arrival. In a decision dated January 9, 2014, the RPD denied the claim based on a conclusion that the Appellant had not effectively established his identity. The Appellant appealed the decision of the RPD in a form received by the Immigration and Refugee Board (IRB) on January 21, 2014. The Appellant then submitted an Application for an Extension of Time to File or Perfect an Appeal on February 21, 2014. The Minister of Public Safety of Canada intervened in a letter dated March 19, 2014 to argue that this extension should not be granted. In a decision dated April 7, 2014 the RAD determined that the Appellant should be granted an extension. SUBMISSIONS [6] The Appellant alleges that the RPD has committed errors in its decision. The Appellant argues that the RPD erred in its determination that the Appellant's passport was not sufficient to establish his identity as a citizen of Afghanistan. The Appellant goes on to provide a copy of a birth certificate which the Appellant argues was not available at the time of the RPD hearing but which strengthens the Appellant's argument that he is in fact a citizen of Afghanistan. [7] The Appellant also questions the RPD's credibility finding with respect to the Appellant's family. The Appellant argues that the RPD's analysis was truncated in the sense that the focus was on the evidence related to whether the Appellant's father owned a XXXX business as opposed to the Appellant testimony related to the risk that the Appellant's family faced at the hands of the Taliban. [8] The Appellant also argues that because he is an alcoholic, a return to Afghanistan will present a serious fear of persecution. The Appellant does not explicitly state the outcome of an appeal that he seeks, but it can be assumed that the Appellant seeks to have the RPD decision set aside and that the Appellant be recognized as a Convention Refugee. In the alternative, the Appellant would probably seek to have the RPD decision returned to the RPD for a redetermination by a different panel. STANDARD OF REVIEW [9] I note that the Federal Court uses the 'reasonableness' standard of review to evaluate RPD decision-making in the area of credibility (Qazi v. M.C.I. (2005) FC 1204). I conclude that this should also be the standard of review for the RAD in its evaluation of RPD credibility assessments. In addition, this conclusion derives from a reading of a decision of the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers' Association (2010) ABCA 399, which is one of the few Canadian judicial decisions where the role of an appellate branch of a specialized knowledge tribunal is analyzed. The Court in this case notes 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" (Paragraph 82). The Court went on to conclude 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" (Paragraph 95). [10] With respect to the issue of identity, the Federal Court uses the 'reasonableness' standard of review to evaluate RPD decision-making in the area of identity (Bagire v. M.C.I., 2013 FC 816; Zheng v. M.C.I., 2008 FC 877). Considering this jurisprudence and the Newton decision noted above, I conclude that this should also be the standard of review for the RAD in its evaluation of RPD identity conclusions. [11] Given the standard of review of 'reasonableness', my objective is to review the RPD decision for the "existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. NEW EVIDENCE [12] My approach to the acceptance of new evidence is to evaluate it based on Section 110(4) of IRPA. Based on Section 110(4), this evidence, although not new, might meet a first threshold in that it was not reasonably available at the time when the RPD rejected the claim. I would argue, however, that whether this evidence should be admitted, it should also be evaluated using the various tests found in Raza1 which is a Federal Court of Appeal case assessing the admission of evidence in Pre-removal Risk Assessment (PRRA) claims. There are parallels in the legislative wording of the acceptance of evidence to the RAD appeal and to a PRRA claim, therefore, I would argue that the Raza case has relevance and gives guidance in this assessment. [13] Using Raza, the admission of the birth certificate evidence is dependent on whether it meets the criteria of credibility, newness, relevance and materiality. In this case, the evidence clearly does not meet the criteria of credibility. This is because the documentation is overwhelming that birth certificates are unusual in the context of Afghanistan and there is a flourishing trade in fraudulent birth certificates and other documentation. This on its own would be sufficient to deny acceptance of this document in the context of the many problems with this claim which are not rebutted in this Appeal, but I would add that there are other features of this particular birth certificate which raise questions. [14] The documentation notes that at best perhaps 10% of the population of Afghanistan were given birth certificates. The practice of giving birth certificates was simply not wide spread in Afghanistan, especially in areas outside urban areas.2 According to another source, aside from this being a rare practice (giving birth certificates) they are difficult to secure after the fact: Birth certificates are rare, according to a representative of the Afghanistan Research and Evaluation Unit (AREU) (16 Apr. 2006), a donor-funded, Kabul-based research organization that seeks to improve Afghan lives (AREU n.d.). The AREU Representative explained, in correspondence with the Research Directorate, that birth certificates "may in certain very unusual circumstances be obtained from the hospital and approved by the Interior Ministry" (16 Apr. 2006). No information on the exact nature of these "unusual circumstances" could be obtained by the Research Directorate within the time constraints of this Response. An official from the Embassy of the Republic of Afghanistan in Ottawa also stated in a telephone interview with the Research Directorate that birth certificates have historically not been issued in Afghanistan (22 Nov. 2007). However, the Embassy Official stated that if birth certificates are not obtained immediately after a child's birth, they are difficult to acquire later on (Afghanistan 22 Nov. 2007).3 [15] On top of these problems of the unlikelihood of there being a birth certificate in the first place and the difficulty of getting a copy of this document, there is the reality that fraudulent documents, especially for those seeking asylum in the west, are easily available in Afghanistan and Pakistan. According to one source: CPAU stated that it is possible to obtain all types of false documents in Afghanistan, including ID cards, birth certificates, driving licenses, marriage certificates, night letters from Taliban, and even news paper articles. However, CPAU added that since it is expensive and risky (risk of being caught up by local police) to obtain these documents in Afghanistan, people tend to order them from agencies in Pakistan who produce and send them to Afghanistan. CPAU mentioned that there is a street/ market in the city of Peshawar in Pakistan called Ghesseh Khani (meaning "story telling": ed.) where a large number of false documents used by Afghans stem from. CPAU also knew of agencies who officially call themselves "travel agents" and who keep offices providing "asylum stories" and documents needed to verify the stories as a package to Afghans who intend to seek asylum in the Western countries.4 [16] I view this analysis is sufficient for me to dismiss this evidence as not credible. But even setting aside these general problems, there are other problems with this evidence. The Certificate of Live Birth (Memorandum of Argument, p. 7) has the Appellant being born in the XXXX XXXX XXXX, XXXX. As far as I can tell this hospital is in XXXX5, which would be one of the few places that might give a birth certificate in the first place given that Nangarhar province, like most areas of Afganistan in 1992, was a developing area, much of it mountainous, in a 'failed state' situation. I note that the Appellant's BOC narrative dated July 18, 2013 states that he was born in the 'XXXX district' of Afghanistan which would have included the city of XXXX in the period when the Appellant was born. The problem with the Appellant being born in XXXX is that this is a city the mention of which would likely have arisen prior to this if he had in fact been born there. In addition, in the Appellant's memorandum it states that "it was not possible for him to sent [sic] it to me because of cross border isolated Region" (Memorandum of Argument, p. 5). [17] In this case, the Appellant's cousin, who is sending the birth certificate, is in Kabul and if the birth certificate was in XXXX, this would be a relatively easy place to get to from Kabul. XXXX, is, after all, a relatively large city about XXXX kilometers away on the main road to the XXXX XXXX and XXXXand Pakistan. [18] In addition, the document itself is partly in English, which raises questions because this would likely be a modern reissue. This is because in the period that the Appellant was born, Ningarhar province and XXXX in particular, was under control of warlords (mujahideen commanders) after a period of Soviet domination. In April 1992 the communist Najibullah regime fell apart and Kabul fell to a mix of warlords and this area quickly became a combat zone. Although it is clear that the CIA was aiding the mujahideen in this period, like the tazkira from the Communist Period before the establishment of the Islamic State of Afghanistan in 19926, I would not expect to see much English on an original birth certificate form from this period. Overall, I conclude that this document is not credible and it is not accepted into evidence. ANALYSIS Issue 1: Did the RPD err in making an "unreasonable" determination with respect to the Appellant's claim and identity? [19] The Appellant argues that the RPD should have accepted the Appellant's passport as evidence of identity and explained why "he did not believe that claimant was afraid of the Smugglers and the possibility that would hurt my family". [20] The RPD did not err in this area because the Appellant was found not credible for a range of reasons that are identified in detail in the RPD decision. I find the RPD's adverse conclusion of the Appellant's credibility is not addressed in any detail by the Appellant, which is to say that no specific arguments are advanced to show why, and in what way, the RPD got it wrong with respect to the Appellant's identity determination. It is the Appellant's responsibility as set out in the RAD rules (Rule 3(3)) to specifically identify evidence and provide detailed arguments to support the arguments in the Appellant's Memorandum of Appeal. [21] For example, in the memorandum the Appellant argues that he may have 'explained wrong by the translator' as to why he did not have his tazkira. I note that the RPD identified several conflicting versions of a response to the question of the disposition of the tazkira (RPD Decision, Paragraph 22). It is not sufficient to argue that the translator got it wrong and one version is correct (i.e., the agent took it) when the RPD has identified the Appellant giving various versions of a 'boating incident' in which the Taliban was lost and reaching an adverse credibility conclusion based on several inconsistencies. The logic advanced by the Appellant that it would not make sense to travel with two different identities (Memorandum of Argument, p. 4), as a reason to give up his tazkira does not make sense in itself. The Appellant is familiar with the logic of making a refugee claim, having just completed the Norway process, and would likely be aware that he would have to show he was Afghani to secure a status in Canada. Giving up his tazkira to the agent would clearly not be advantageous in this situation. [22] I would note that the importance of the tazkira relates to the core problem identified by the RPD which is that this is the main identification document for Afghanis but this is missing in this case. When coupled with the RPD's observation that the Appellant did not provide any identity document which predated his arrival in Canada, and taking into consideration various credibility concerns, I find the RPD can reasonably conclude that "there was enough evidentiary material to rebut the presumption of the validity of the Afghan passport issued by the embassy in Ottawa" (RPD Decision, Paragraph 26). [23] In addition, given that the RPD concludes that the Appellant's identity has not been effectively established, the arguments of risk in Afghanistan related to the Taliban targeting his family (Memorandum of Argument, p. 5), is not applicable. This is because the Appellant has not established that his identity and nationality is Afghani and therefore until this question is answered any risk to the Appellant's family cannot be assessed. Issue 2: Is there a potential new ground for asylum available to the Appellant if I accept that the Appellant is an alcoholic? [24] The Appellant argues that he would be at risk because his "family is from conservative pashtoon ethnic" (Memorandum of Argument, p. 6) and he might be killed upon return because he is an alcoholic. [25] Ultimately, this question cannot be addressed until the Appellant's identity is fully established. For example, even if I accept that the Appellant is a Pashtun, his citizenship is crucial to analyze his risk. The fact is that there are large numbers of Pashtuns in Pakistan, India, Iran and even UAE and Tajikistan. In the absence of evidence of identity with citizenship, which is the responsibility of the Appellant to provide, this type of analysis cannot be undertaken. [26] In terms of the analysis and conclusions in the RPD decision coupled with the evidence surveyed, I conclude that the RPD's decision is reasonable and "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". REMEDIES [1] For all these reasons, I confirm the determination of the RPD, as noted above (i.e., identity not established), namely, that Mr. XXXX XXXX XXXX (a.k.a XXXX XXXX), is neither a "Convention refugee" nor a "person in need of protection". Therefore, this appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher May 29, 2014 Date /sb 1 Raza, Syed Masood Raza v. Minister of Citizenship and Immigration and Minister of Public Safety and Preparedness 2007 FCA 385. 2 National Documentation Package, Afghanistan, May 3, 2013, Tab 2.4, Paragraph 32.04. 3 National Documentation Package, Afghanistan, May 3, 2013, Tab. 3.4. 4 National Documentation Package, Afghanistan, May 3, 2013, Tab 1.11, p. 50. 5 A recent UN survey of XXXX district shows that there are no hospitals there, however, at the time of the birth of the Appellant, XXXX district included XXXX city. http://www.aims.org.af/afg/dist_profiles/unhcr_district_profiles/eastern/nangarhar/behsud.pdf. 6 National Documentation Package, Afghanistan, May 3, 2013, Tab 3.10, pp. 12-13 for index of Attachments. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 N° de dossier de la SAR/RAD File No.: MB4-00281 9