MB5-04510

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 : MB5-04510 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 at Montreal, Quebec Appel instruit à Date of decision March 1, 2016 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Me Jessica Lipes Conseil de la personne en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX a citizen of Mali, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The Tribunal has read the Appellant's Record, reviewed all documentary evidence submitted before the RPD and has listened to the recording of the hearings of both June 18, 2015 and September 3, 2015. No new evidence was submitted to the RAD under s. 110(4) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (hereafter, the "Act"). The Appellant requested that the appeal be allowed and the Appellant's claim for refugee status allowed, or that the matter be returned to the RPD for a new hearing. DETERMINATION OF THE APPEAL Confirms RPD determination [3] Pursuant to ss. 111(1)(a) of the Act, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) is not a "Convention Refugee" pursuant to s. 96 of the Act nor is he a person in need of protection pursuant to s. 97 of the Act. BACKGROUND Basis of the claim [4] The Appellant alleges that he is a XXXX XXXX XXXX XXXX XXXX boy from XXXX who is the son of a single mother. He alleges that he left school in fourth grade due to being teased and bullied about his homosexual tendencies. He and his mother were living in a home with his uncles, who he alleges began to be violent towards himself and his mother around 2012. He and his mother moved to the city of XXXX and his mother enrolled him in a type of XXXX camp. He was ejected from this camp when he turned down the advances of a young woman, as he says he was more interested in a young man. He alleges that the bullying started again, and as people recognized him he was unable to sign up for another XXXX camp elsewhere in the city. His mother enlisted the help of an agent and sent him to Canada. [5] When the Appellant arrived in Montreal, Canada, on XXXX XXXX, 2015, he claimed asylum and he said that he was XXXX XXXX old. The Direction de la protection de la jeunesse took charge of him for a short period of time and then asked PRAIDA to intervene as they could not establish that he was a minor. [6] He underwent two interviews with Canada Border Services agents, fingerprinting, a luggage search and body search. The Appellant was detained. At his first hearing before the Immigration Division on XXXX XXXX, 2015, the Appellant was represented by PRAIDA, and an observer from Action Refugies Montreal was in the room. The Minister of Public Security contested his release from detention on the grounds that his identity had not been established. The Appellant acknowledged that he had travelled with an authentic passport from XXXX which had been altered so as to insert his own photograph. The Appellant had no other documents of identity with him. [7] The Immigration Division hearing was translated into XXXX. However, on arrival at the airport, the Appellant advised the authorities that he spoke French fluently with his friends at school and did not need an interpreter. It seems that both the DPJ and PRAIDA had some doubt the Appellant was a minor. The representative from PRAIDA states that he took the Appellant aside, told him he was safe and suggested to him that it would be safe to tell the truth about his age and identity, even if he was over 18. At the conclusion of the hearing, the issue of identity remaining inconclusive, the Appellant was kept in detention and a new hearing set for XXXX XXXX, 2015. (Immigration Division decision of XXXX XXXX, 2015) [8] On April 22, 2015, in addition to the member, the Appellant, the Minister, a representative from PRAIDA, and an interpreter - several more people were present: the newly appointed lawyer for the Appellant, the Red Cross, The United Nations High Commission on Refugees, and Action Refugies Montreal. The question of identity was paramount. The member notes in his decision that he himself was struck by how very tall the Appellant was, "by any measure". The member notes that the DPJ continued to refuse to assist the Appellant on this file as it was still impossible to establish how old he was. The member relates the efforts made by the Appellant to contact family members to assist him in proving his identity. The member notes how cooperative the Appellant was throughout these steps. In conclusion, the Appellant remained in detention as he had no money, no friends, family or contacts in Canada, and he had not been able to establish his identity. (Immigration Division decision, XXXX XXXX XXXX 2015) [9] On XXXX XXXX, 2015, at his next detention hearing before the Immigration Division, it was reported that the Appellant had filed for refugee status, had a hearing date, and was released to a shelter organized by Quebec Social Services. (Paragraph 6, Minister's Notice of Intervention) [10] The Minister of Public Safety intervened in the Appellant's hearing before the Refugee Protection Division, alleging that the Appellant had not established his identity. The Minister filed twelve exhibits at the RPD. Remedy sought [11] The Appellant requests that the RAD either overturn the RPD decision and find the Appellant to be a Convention refugee or a person in need of protection or refer the matter back to the RPD for a new hearing before the RPD. ROLE OF THE RAD [12] In the case of Huruglica1, followed by Yetna2 and Njeukam3, the Federal Court directed that the RAD approach its work as a "hybrid" type of appeal. According to Justice Phelan at paragraph 54, "It (the RAD) must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention Refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision." In paragraph 55, the Honourable Justice Phelan states that "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion, but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". Justice Phelan also notes at paragraph 38 that the RAD owes no deference to the RPD with respect to the RPD's assessment of country condition evidence. [13] In the decision of Spasoja4, Justice Roy concurs with the approach set out by Justice Phelan in Huruglica at paragraphs 12, 13, 24, and 25, with respect to the standard of review not being reasonableness and with respect to the RAD making an independent assessment of the evidence. However, at paragraph 39 of Spasoja, Justice Roy states that in his opinion, the RAD should intervene on questions of fact only where there is a palpable and overriding error. [14] In the decision of Alyafi5, Justice Martineau compares the currents of jurisprudence in the Federal Court and suggests that RAD members choose to follow either Spasoja or Huruglica until such time as we receive further direction from the Federal Court of Appeal. I choose to follow the reasoning of the Court in Huruglica. [15] In this decision, I have followed and will apply the reasoning in the Huruglica decision with respect to the issue of deference to the RPD in their assessment of credibility of the Appellant's identity in this file. The RPD had the advantage of hearing the Appellant and investigated all matters of credibility of his identity thoroughly at the hearing. The RPD Decision and the Appellant's Allegations [16] The RPD held two hearings on this file, to allow the Minister time to have the documents filed by the Appellant evaluated by an expert. The RPD refused to grant refugee protection on the basis that the Appellant had not supplied any reliable documents to establish his identity. The RPD decision does not deal with the basis of the claim. The RPD rendered a fourteen page decision in which paragraphs 38 - 67 analyze the Appellant's testimony and the documents provided by him and by the Minister. The RPD notes that it analyzed the evidence on the presumption that the Appellant was a minor, a vulnerable person, and a person who alleged having but four years of schooling but that these presumptions did not relieve the Appellant of his obligation to establish his identity. The RPD also mentions that he found the Appellant had the appearance of someone older that his alleged age, that he was alert throughout the hearings, appeared to follow the proceedings, was thoughtful in his responses and that he testified in a satisfactory manner. (RPD decision, paragraphs 42, 43, 63) [17] The Appellant's counsel challenges the RPD decision for the following reasons: 1. The RPD did not apply Chairperson's Guideline 3 with respect to child refugee claimants and did not consider the psychological evaluation in assessing the Appellant's credibility; 2. The RPD conducted an overzealous assessment of the Appellant's identity; 3. The RPD should have given weight to the letter from the Appellant's mother. Each of these arguments will be reviewed in turn below. 1. The RPD did not apply Chairperson's Guideline 3 with respect to child refugee claimants and did not consider the psychological evaluation in assessing the Appellant's credibility with respect to his identity [18] The Appellant's counsel argues that the RPD appears to have drawn its own conclusions about the mental capacity of the Appellant without sufficient regard for the Chairperson's Guidelines on questioning children and without considering the psychological evaluation submitted. The Appellant argues that the RPD states numerous times in its decision that the Appellant appeared older and more mature than his alleged age, and gave weight to the fact that the Appellant had chosen to come to Canada after doing his own internet search. (Paragraphs 15, 16, Appellant's Memorandum) Counsel argues that these conclusions about the Appellant's maturity were directly contradicted by the expert evidence on the file. Counsel for the Appellant then argues that as a result of the RPD's lack of appreciation of the Appellant's age and his vulnerability, the RPD exaggerated his maturity and thus made incorrect conclusions about key portions of evidence such as the different ways of spelling his name, the Appellant's lack of awareness of his identity documents, and his capacity to search the internet. [19] The RAD notes that the Appellant was represented both by a Designated Representative and experienced immigration counsel at the hearing. The RAD listened to the hearings and did not hear an aggressive or inappropriate tone in the questioning by the RPD. The RAD finds that the RPD writes about his observations with respect to the Appellant's testimony. It appears that the RPD was impressed with what he describes as polite, thoughtful and clear testimony given by the Appellant. (RPD decision, Paragraph 62) [20] The RAD notes that the RPD does not refer to the psychological evaluation of the Appellant in its decision. The RAD reviewed this evaluation in detail to determine if this was an error of the gravity such as to require a new hearing. The psychological report is written by a person whom the RAD presumes is a psychologist, and who signs the report with the letters, PhD, DEA, OPQ, APQ, and CPA after her name. The report is thorough and describes in plain language, with great detail, the two meetings with the Appellant, the psychological tests administered, and certain cultural conditions of XXXX which may explain certain of the Appellant's behaviours. The writer suggests that the Appellant may have limited intellectual capacity and limited communication skills. The writer also notes that the Appellant had adapted very well to his new environment and shown an aptitude to integrate and function in terms of geographic orientation, food, groceries, hygiene, and communication. The report concludes by recommending that it be noted: that the Appellant may have difficulty expressing himself; that the Appellant should be followed by a psychologist and have more intelligence tests administered; that the Appellant should be connected with support groups; that he should remain in a type of group home so that he is not socially isolated. [21] In reading the RPD decision, within the context of this report, the RAD does not find any specific recommendations or conclusions that were not respected by the RPD. The RAD does not find that omitting to specifically mention the psychological evaluation was a reviewable error. The RPD specifically does mention that the panel considered the fact of the Appellants status as a minor, and as a vulnerable person with little formal schooling. The RPD then concludes, after observing the Appellant testify on two occasions - in June and then in September, that the Appellant was testifying in a thoughtful, polite manner and that he appeared to be following the proceedings. The RAD finds that this shows that the RPD was sensitive to the Appellant's situation and was reflecting on the Appellant's behavior throughout the proceedings. Whether or not the psychological evaluation was specifically mentioned, it is clear to the RAD that the RPD was careful in considering all aspects of the Appellant's psychological behavior in the hearing room. 2. The RPD conducted an overzealous assessment of the Appellant's identity [22] Counsel for the Appellant argues that it was unfair of the RPD to expect the Appellant to be able to provide full details about the identity documents submitted as it was not him that obtained the documents. Counsel also argues that it was not unreasonable for the Appellant to change the spelling of his name when he received the alleged birth certificate from XXXX. Counsel suggests that as the birth certificate was found to be "apocryphal" and not fraudulent, the RPD was not entitled to reject it as proof of the Appellant's identity, but instead, should have relied on the Appellant's explanations. Counsel notes that most XXXX XXXX olds do not consult their identity documents to see how their names are spelled, and emphasizes the Appellant's lack of formal schooling. Counsel explains at length about the possible differences in spelling being due to the difference in sounds and characters between the "Latin alphabet" (sic) and the Arabic alphabet. [23] The RPD decision reviews the Appellant's birth certificate from paragraphs 46-55. The RPD notes first of all that an expert analysis by the Minster established that the birth certificate was qualified as "apocryphal" and contained irregularities which made its origin suspicious. (paragraph 47, RPD decision) The RPD concluded that this qualification of apocryphal reversed the presumption of authenticity. Added to this issue, the RPD noted that the Appellant had spelled his name in a different way on all of the other documents submitted to the RPD prior to receiving the certificate. This fact caused the RPD to further doubt the credibility of the Appellant with respect to his identity. In paragraphs 51-54, the RPD expresses its doubt on the fact that the Appellant is in fact only XXXX XXXX old, with four - five years of schooling. The RPD considers that the Appellant testified that when his mother asked him where he wanted to go, he was able to do an internet search and determine that he wanted to come to Canada. On this basis, the RPD finds that the Appellant should have been able to spell his name according to his birth certificate. [24] The RAD does not find that the logic of the RPD is compelling on this point. The RAD finds that the issue of the Appellant's internet search and the issue of changing the spelling of his name are two separate issues. The RAD finds that the RPD's reasoning with respect to the internet search makes inherent practical sense: the RAD also finds it is not plausible that a person with very limited schooling, who could barely read or write, would be able to quickly do a search of the world on the millions of possible internet sites and consider the advantages and disadvantages and settle on the advantages of going to Canada. [25] However, the RAD does not find that this implausibility leads logically to the conclusion that the Appellant should have been able to spell his name as it is written on his birth certificate. These issues are separate. On the issue of the birth certificate, the RAD gives more weight to the argument of Appellant's counsel at paragraphs 37 - 52 of the Appellant's Memorandum. The RAD finds that it is possible for any person of any level of education to not be aware of the spelling of their names on their birth certificate. The RAD also finds it is reasonable for the Appellant to have wanted to change the spelling of his name once the new document arrived. However, despite this conclusion, the RAD finds that there is still no evidence on the file that counters the Minister's expert evaluation of the birth certificate that concludes it is apocryphal for several reasons. [26] In addition to an analysis of the Appellant's birth certificate, the RPD also considered and weighed the Minister's evidence, submitted as M-8, and M-10 to M-12, of the expert analysis of all of the secondary documents pertaining to the identity of the Appellant. The documents in question are a birth certificate, a marriage certificate, a death certificate of the person alleged to be the Appellant's father, XXXX XXXX; (M-8, M-10, M-11) and a birth certificate of the person alleged to be the appellant's mother, XXXX XXXX (M-12). The RPD analyses these documents in paragraphs 56-58 and notes that each of these documents was found by the expert analysis to be apocryphal, for multiple reasons. Counsel for the Appellant does not address these conclusions. The RAD concludes that there is no document submitted on this claim that was found to be authentic aside from the passport altered with the Appellant's photo with which he travelled to Canada. 3. The RPD should have given weight to the letter from the Appellant's mother [27] Counsel for the Appellant argues, at paragraphs 54-60 of the Appellant's Memorandum, that the RPD erred by not giving weight to the letter from the Appellant's mother. The letter is not signed, but was accompanied by a photocopy of an identity card with an alleged photograph of the Appellant's mother. Counsel suggests that it should be considered an important piece of information as it was his mother who sent him out of the country. The Appellant explained that the document was not signed because his mother was illiterate. [28] The RPD found this letter self-serving, and without probative value. The RPD rejects the photocopy of the identity card because it is not possible to conduct any sort of expert evaluation of the document. The RPD rejects the letter because it is impossible to connect it to the letter writer and thus give it weight. [29] The RAD notes that the letter appears to have been written by a lawyer on behalf of the Appellant's mother. The facts of the letter are similar to the facts alleged by the Appellant. The RAD finds that it is not possible to give any weight to this letter by itself when all of the identity documents submitted are found to be apocryphal and, as stated by the RPD, it is not possible to evaluate the identity card sent by photocopy. REMEDIES [30] For all these reasons, the Tribunal confirms the determination of the RPD that the Appellant, XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) is neither a "Convention refugee" pursuant to s. 96 of the Act, nor a "person in need of protection" pursuant to s. 97 of the Act. CONCLUSION [31] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk March 1, 2016 Date /cos 1 Huruglica v. M.C.I. 2014 FC 799. 2 Yetna v. M.C.I. 2014 FC 858. 3 Njeukam v. M.C.I. 2014 FC 859. 4 Spasoja v. M.C.I. 2014 CF 913. 5 Alyafi v. M.C.I. 2014 CF 952. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD File No. / N° de dossier de la SAR : MB5-04510 3