TB8-06853

RAD File / Dossier de la SAR : TB8-06853 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 24, 2019 Date de la décision Panel Harold Shepherd Tribunal Counsel for the person who is the subject of the appeal D. Clifford Luyt Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister D. Fraser Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Appellant, XXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX), appeals a decision of the Refugee Protection Division (RPD), dated February 19, 2018, that rejected his claim for refugee protection. DETERMINATION [2] The Refugee Appeal Division (RAD) allows the appeal and refers the matter back to the RPD for redetermination. BACKGROUND AND OVERVIEW OF APPEAL [3] The standard of review for appeals to the RAD is that of correctness, unless deference should be shown to the RPD because it enjoyed a meaningful advantage over the RAD. No issue was identified to which deference should be shown on this basis.1 No new evidence was filed and no request was made for a hearing. Personal Narrative [4] The Appellant alleges the following. He is a citizen of the People's Republic of China of Tibetan ancestry who was born in XXXX County in the XXXX District of Tibet that is located in Sichuan Province, People's Republic of China. He joined the XXXX XXXX (XXXX XXXX) XXXX at age 15, became a XXXX, and remained there for 17 years until 2006. He was forced to leave the XXXX because Chinese officials said that there were too many XXXX. He suspects that the real reason was that his family has a history of resisting Chinese authorities and because he refused to sign a declaration stating the Dalai Lama is a terrorist. He found a guide who was able to take him to Nepal in XXXX 2008. He lived beside a Buddhist monastery where he did volunteer work. The Appellant then found an agent who facilitated his travel to Switzerland in XXXX 2009 with an Indian passport. He made an asylum claim there and received a document 20 months later that said that he was a temporary resident, not a refugee. He received a Swiss travel document and attended a protest in England in XXXX 2015 against XXXX XXXX whose beliefs were considered to be erroneous. Since leaving Nepal, he has participated in annual demonstrations on XXXX XXXX, as well as other protests against Chinese treatment of Tibetans. He obtained a Canadian temporary resident visa on XXXX XXXX, 2015 with his Swiss travel document and was admitted to Canada on XXXX XXXX, 2016. He subsequently made an inland refugee claim with the assistance of counsel in June 2016. Ministerial Intervention [5] The Minister intervened in the claim as a result of a positive fingerprint match with the United States immigration database. The biometrics report shows that the Appellant was fingerprinted in XXXX, India, on XXXX XXXX, 2009 under the name of XXXX XXXX XXXX, born XXXX XXXX, 1978 in Nepal. The birthdate given in Canada for the name of XXXX XXXX XXXX is XXXX XXXX, 1974. The Appellant did not disclose this failed application for a U.S. visa in his refugee claim documents. In particular, the Appellant did not declare having been refused a visa to the United States in India in response to question 6(d) in Schedule A, nor did he disclose this name when asked for all aliases that he used in question 2 of IMM-0008. In addition, he did not disclose residency in India when asked by question 8 of Schedule A. As a result, the Minister submitted that the Appellant's identity is in serious doubt. The RPD Decision [6] The RPD concluded that the determinative issue is identity. The RPD considered the statutory requirement to provide documents in support of identity and drew an adverse inference from the Appellant's failure to provide important identity documents without an adequate explanation. Supporting documents were assessed and found to be of insufficient weight or probative value to establish the Appellant's stated identity. In the absence of credible evidence that establishes the Appellant's identity, the RPD rejected the claim, without assessing the credibility of the merits of the claim. Reasons for the Appeal [7] The Appellant submits that the RPD erred in the following ways. [8] The RPD erred by ignoring evidence from Swiss authorities that accepted his stated identity, including the reasons for decision of his asylum claim, the F card and his Swiss travel document. [9] The RPD erred in giving little weight to the letter from the XXXX XXXX in Nepal because it was said to be "very basic" and does not attest to identity, place or date of birth, or country of citizenship. On the contrary, the letter provides his place of birth. [10] The RPD erred by not giving reasons for rejecting the Appellant's explanation for the use of the name "XXXX XXXX" rather than "XXXX XXXX XXXX." Because Tibetans do not have last names, he chose the surname of "XXXX" for administrative reasons. The RPD failed to note that the date of the translation is indicated. The country of citizenship can be surmised from seventeen years of residence in a Tibetan XXXX. [11] The RPD erred in giving little weight to the letter from the XXXX in Nepal because the author did not know the Appellant in Tibet. However, it shows that he left Tibet in 2008 and lived in Nepal until 2009. [12] The RPD erred by giving little weight to the statements of two witnesses because they had not been presented as witnesses at the hearing, contrary to the Federal Court's Shahaj decision.2 [13] The RPD erred by drawing an adverse inference from the fact that Mr. XXXX had not met him before seeing him in Canada without accounting for knowledge gained through meeting the Appellant's father in China. [14] The RPD erred by drawing an adverse inference from a finding that he had not acted reasonably in trying to obtain his Resident Identity Card held by Swiss authorities. The RPD took an uneven approach by not asking the Minister if there had been any follow-up on authorization given to the Minister to obtain this document. The Appellant speculates that the RPD would have given the document little weight, if the original were not provided. [15] The RPD erred by drawing an adverse inference from the fact that his birth name of XXXX XXXX was not used in all of his immigration or refugee claim documents, as opposed to his XXXX name of XXXX XXXX XXXX. The fact that he included this name in the IMM-0008 shows that he did not willfully withhold his birth name from Canadian authorities. [16] The RPD erred by using the fact that he did not tell the truth about the merits of his Swiss asylum claim to question identity that was, in fact, accepted by Swiss authorities. The Swiss did not question his identity and issued him with an international travel document. [17] The RPD erred in concluding that he willfully withheld the fact that he applied for a U.S. visa from his Canadian immigration and refugee claim documents. When questioned why he did not disclose his trip to India in Schedule A, he replied that the question related to residency, not short trips. This question did not require that he disclose his visit to India. The RPD erred in drawing an adverse inference from this. In addition, this issue is peripheral to the claim with little relevance to its merits. Asylum-seekers are often required to use false documents to flee persecution. [18] The RPD erred by not respecting the presumption that his sworn testimony is true without giving adequate reasons to doubt it, as well as the reliability of supporting documents. This contravenes principles set out by the Federal Court in the Tran decision:3 Except in the case of a clear and substantiated finding of fraud that casts a shadow over the entirety of an applicant's evidence, the rejection of irregular identity documentation, nevertheless, leaves sworn testimony on the issue of identity un-assailed. [19] The RPD erred by ignoring the fact that he speaks Tibetan and has considerable knowledge of places in Tibet and China. ANALYSIS [20] The RPD was incorrect in stating that identity is the determinative issue. As the Federal Court noted in the Tran decision, the rejection of identity documents leaves the presumption that sworn testimony is true un-assailed, unless a general finding of overall lack of credibility has been made. Section 106 of the IRPA puts the onus on the claimant to obtain and disclose supporting identity documents. Failure to provide a reasonable explanation for not having done so can lead to an adverse inference if there are valid reasons to doubt the person's credibility.4 The determinative issue is credibility that includes identity. It was open to the RPD to reject the identity documents filed and to conclude that identity had not been established, if this had been done after a finding of overall lack of credibility had been made. The RPD failed to do this. The RPD focused on the question of identity by reference to the quality of supporting documents outside of the larger framework of the Appellant's credibility. This mistake is similar to the one identified by the Federal Court in the Tran decision. Absent a finding that the Appellant's credibility is generally unreliable, he is presumed to be telling the truth about his identity. The interpreter told the RPD at the hearing that both of them speak Kham Tibetan. This dialect is proper to the Kham region that spans the Autonomous Region of Tibet and some western provinces of the PRC. The Appellant had knowledge about local conditions and provided photographs of himself in the PRC. He provided a letter from the Tibetan Community in XXXX that attests to his membership. He filed a letter from a XXXX member of the Tibetan community who states that the Appellant's dialect of Tibetan is the same as his from XXXX XXXXKham. A letter from the XXXX XXXX in XXXX, Kham, Sichuan Province states that he was born in XXXXDege and served as a XXXX XXXX there from 1986 until 2006. The factors that the RPD identified and used to give little weight to these documents are insufficient to discredit them, absent a finding that the Appellant is not a credible and trustworthy witness. [21] At paragraph 32 of its reasons for decision, the RPD noted that the Appellant admitted that the narrative contained in his Swiss asylum claim is false. The explanation that he did this on instructions for his agent was not found to be acceptable, but without reasons for this conclusion being provided. Although this is one factor that could be legitimately taken into account in assessing overall credibility, it does not necessarily follow that his Canadian narrative is also fictitious. Adequate reasons would need to be given to support this conclusion. This was not done. The RPD was entitled to conclude that the Swiss recognition of his identity and the issuance of a temporary residence permit and travel document do not establish identity without knowing the basis for this recognition. However, this factor cannot be ignored when considering all relevant factors that relate to the issue of identity. [22] The focus of the hearing was on identity without dealing with the merits of the claim. As a result, central allegations in the Canadian narrative were not tested at the hearing and assessed in the reasons for decision. The Appellant alleges that he was asked to leave his XXXX because Chinese officials said that there were too many XXXX and because he refused to sign a statement that asserted that the Dalai Lama is a terrorist. Questions were not asked that would have allowed the RPD to assess the credibility of his narrative. For example, questions were not asked that tested whether or not he is likely a XXXX XXXX, whether he trained as a XXXX for nine years, why he waited to leave the PRC, or why was working as a volunteer work in the kitchen of a monastery in Nepal, if he were a fully-trained XXXX. If he was asked to leave the XXXX and he refused to comply with a request to sign a statement against the Dalai Lama, why does the letter from the XXXX XXXX make no mention of this and given him a good reference? If the RPD had tested the credibility of the merits of the claim and concluded that he likely fabricated his Canadian claim, as he had done in Switzerland, it would have been in a position to assess whether or not the documents provided have sufficient weight and probative value to overcome a general finding of lack of credibility. The factors identified and assessed by the RPD are not sufficient to conclude that identity had not been established without a finding that the presumption that the Appellant's sworn testimony is true had been rebutted through a general finding of an overall lack of credibility. [23] Although it is true that the RPD does not need to consider the merits of the claim if identity has not been established, there is sufficient evidence that supports identity to require a full credibility assessment. The sufficiency of identity documents should not have been abstracted from all of the facts of the claim and dealt with in near isolation.5 New Issue: Status in Switzerland [24] I have also noted a new issue that was not identified or addressed by the RPD. The Appellant misinterpreted his status in Switzerland as someone who was found not to be a refugee. A reading of the Swiss reasons for decision makes it clear that he was determined to be a refugee, as understood in both the 1951 Convention regarding the Status of Refugees and in the Swiss Asylum Act. It notes that there are two categories of those who have been determined to be Convention refugees in Switzerland. One class is granted full asylum. The second category concerns refugees sur place who became refugees because of conduct performed after leaving the country of persecution, or because of illegal exit from the country. These Convention refugees have all of the rights and privileges of asylum, with the exception that their status is temporary and must be renewed annually. The F permit shows that he was granted provisional/ temporary admission as a refugee on XXXX XXXX, 2011. The permit filed was issued on XXXX XXXX, 2015 and expired one year later. Provisional admission is based on Switzerland's obligations under article 33 of the Refugee Convention that prohibits refoulement to a county in which they have a well-founded fear of persecution. The Swiss reasons for decision indicate that temporary admission is valid until it is cancelled or it expires. Cancellation is done by decree if expulsion becomes acceptable and the person can return to the country of reference. Reference is made to rights that attach to his status, including the right to work, welfare support and the issuance of a travel document. [25] Given the finding that the Appellant's residual profile puts him at risk in the Popular Republic of China (PRC), his explanation that he came to Canada because he risked deportation to the PRC is not consistent with the stated non-refoulement purpose of temporary protection system for Convention refugees in Switzerland. Presumably, there would have to have been a material change in country conditions or in personal circumstances to justify refoulement, absent a public security issue related to criminality. The Appellant has not provided an explanation that is consistent with the information found in the Swiss asylum decision. Although the Appellant was a Convention refugee when he left Switzerland, he likely lost his status at some point after establishing himself in Canada. CBSA correctly concluded that he is eligible for referral to the RPD because he cannot return to Switzerland. However, the issue of leaving a safe haven, where he had been recognized as a Convention refugee for purposes of seeking alternate asylum elsewhere without an adequate explanation can be taken into account when assessing his subjective fear of persecution.6 [26] In addition, the Appellant arrived in Canada with a Swiss travel document that he allowed to lapse. The issue of Article 1E exclusion may be applicable, depending on the rights he had in Switzerland. The fact that he cannot return to Switzerland may or may not be a defence to Article 1E exclusion, depending on his reasons for allowing his status in Switzerland and his travel document to be cancelled. The relevant legislative texts are referred to in the decision, but were not disclosed at the hearing. Rule 26 of the RPD Rules requires the RPD to notify the Minister if there is a possibility that Article 1E exclusion applies. The Federal Court of Appeal set out the applicable factors to be considered in an Article 1E assessment as follows:7 Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [27] The issue is whether there is a possibility that 1E exclusion applies, not whether it is likely. Because the Swiss asylum documentation raises the possibility that it may apply, notification to the Minister is required. Notwithstanding the Minster's intervention on the question of identity, the RPD erred in failing to provide notice to the Minister pursuant to Rule 26 on the issue of exclusion. [28] Because the RPD did not make findings of fact that allowed it to make a general finding of lack of credibility, it erred in not providing adequate reasons to reject the testimony and evidence concerning the Appellant's identity. Given that this would require oral testimony from the Appellant, the RAD is not in a position to correct this error and substitute its own decision. The matter must be sent back to the RPD for redetermination. CONCLUSION [29] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. The RPD is directed to provide notice to the Minister pursuant to Rule 26 of the RPD Rules that there is a possibility that Article 1E exclusion may apply. (signed) "H. Shepherd" H. Shepherd May 24, 2019 Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 2 Shahaj v. Canada (Minister of Citizenship and Immigration) 2005 FC 1044 (CanLII). 3 Tran v. Canada (Citizenship and Immigration), 2013 FC 1080. 4 Amarapala v. Canada (Minister of Citizenship and Immigration) 2004 FC 12, IMM-5034-03. 5 Husein v. Canada (Citizenship and Immigration), 1998 CanLII 18842 (FC). 6 Shahpari v. Canada (Citizenship and Immigration), 1998 CanLII 7678 (FC), [1998] F.C.J. No. 429, (IMM-2327-97), April 3, 1998. 7 Canada (Citizenship and Immigration) v. Zeng, Guanqiu , 2010 FCA 118. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-06853 RAD.25.02 (April 04, 2019) Disponible en français 2 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