TB9-10053

RAD File / Dossier de la SAR : TB9-10053 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal Nilofar Ahmadi 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 XXXX (the "appellant") appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He asks the Refugee Appeal Division (RAD) to quash the negative determination of the RPD and substitute it with a positive determination or, alternatively, to return the matter back to the RPD for redetermination. DETERMINATION [2] The appeal is allowed. The RAD refers the matter back to the RPD for redetermination pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act").1 BACKGROUND [3] The appellant was born and raised in Saudi Arabia. He alleges he has neither citizenship nor permanent residency in any country. His father was a stateless Palestinian. His mother was a citizen of Egypt. His parents are deceased. In XXXX 2012, the appellant left Saudi Arabia to attend school in the United States (US) on a F1 student visa. He remained in the US for five years. He applied for asylum but left the country before his application was decided. [4] In XXXX 2017, the appellant entered Canada and initiated a claim for refugee protection alleging a fear of persecution against both Egypt and Saudi Arabia. [5] The appellant's claim before the RPD was heard on September 27, 2018 and March 21, 2019. By an oral decision delivered on March 21, 2019, the RPD rejected the appellant's claim finding him to be excluded from protection pursuant to Article 1E of the United Nations Convention Relating to the Status of Refugees (the "Refugee Convention")2 due to his permanent resident status in the US. The appellant argues the RPD erred in dismissing his claim, as he does not have permanent resident status in the US. ANALYSIS Role of the RAD [6] The panel has conducted an independent assessment of the evidence to assess whether the RPD decision is correct pursuant to the direction of the Court.3 New Evidence [7] Subsection 110(4) of the Act provides that an appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of his claim. [8] The appellant has submitted the following new evidence, including by way of a Rule 29 Application to admit late documents: a. A copy of the appellant's written reconsideration request made to the RPD. The RPD refused to admit these documents; b. A screenshot from the United States Citizenship and Immigration Services official government website related to the appellant's employment authorization card; c. An email from the appellant's counsel from the US confirming the appellant's asylum application has not been approved and that he does not have a green card; d. A copy of the appellant's Freedom of Information Act request for his immigration documents and the documents received. The appellant submits his proposed evidence meets the requirements for the admission of the new evidence. He also submits they clearly show the RPD erred in finding that he has permanent resident status in the US. [9] The panel has carefully reviewed the proposed evidence and accepts the appellant's explanation as to why he could not have reasonably been expected in his particular circumstances to obtain and present these documents to the RPD. The new evidence also meets the requirements as established in the Raza4 decision, subject to the necessary adaptations in the context of the RAD. The RAD has accordingly admitted the new documents and related submissions. Oral Hearing [10] The panel has considered holding an oral hearing in an effort to provide a final determination of this claim. However, the panel finds it is unable to do so because the appellant's new evidence is not determinative of the claim before the RAD, as the RPD failed to make any findings/determination about the merits of the appellant's claim for refugee protection. An oral hearing has therefore not been held. The RPD's Findings - Article 1E of the Refugee Convention [11] The appellant's hearing took place over two days. During the middle of the second sitting of the hearing, the RPD raised the possibility that Article 1E applied. The issue had not been raised during the first hearing date. The RPD explained in its reasons for decision that it did not notify the Minister because "it was only at the hearing that it was discovered there is a possibility that Section E of Article 1 applies to this claim".5 The RPD also indicated that it "was not of the opinion that the Minister would have been able to provide further information helpful to this claim".6 The RPD issued an oral decision finding the appellant excluded from protection pursuant to Article 1E because he was a permanent resident of the US. [12] The appellant argues the RPD erred by failing to give proper notice to both him and the Minister about the possible Article 1E exclusion issue. He argues the RPD breached procedural fairness. [13] The RAD finds the RPD had the discretion not to notify the Minister of possible exclusion during the hearing. As such, the RAD does not find the RPD breached the RPD Rules nor procedural fairness. [14] The appellant also argues the RPD erred, as he is not a permanent resident of the US. He argues the RPD erred by relying on a biometrics report, which misidentified his Employment Authorization Document (EAD) as a "Legal Permanent Resident Card" (LPRC). [15] Having independently reviewed the evidence, the RAD agrees that the RPD erred. Specifically, the RAD finds the RPD erred in its analysis and finding that the appellant was excluded due to Article 1E. The RAD notes the RPD's decision to exclude the appellant was based exclusively upon a biometrics report7 indicating the appellant had a LPRC in the US. The relevant part of the biometrics report indicated: DOCUMENTS: Doc #: XXXX Document Type: Legal Permanent Resident Card Expiry Date: 2019-XXXX XXXX XXXX Country of Issue: USA8 On this basis alone, the RPD concluded the appellant was a permanent resident of the US. The RPD erred in doing so for the reasons that follow. [16] The RAD notes the appellant's EAD9 was in evidence before the RPD, yet it was seemingly ignored. Having independently assessed the document, the RAD notes the EAD number is clearly identified as being XXXX, which matches the document identified in the biometrics report. The EAD expiry date is XXXX XXXX XXXX XXXX19, which also matches the expiry date of the document identified in the biometrics report. The document XXXX described in the biometrics report is the appellant's EAD. An EAD is not a LPRC. Rather, an EAD is a document issued by the United States Citizenship and Immigration Services that provides temporary employment authorization to asylum seekers and noncitizens. As clearly indicated on the EAD itself: "This card is not evidence of U.S. citizenship or permanent residence". The EAD further states, "NOT VALID FOR REENTRY TO U.S." The biometrics report was therefore plainly wrong in identifying the appellant's EAD as a LPRC. [17] The panel notes there was no other evidence indicating the appellant had permanent resident status in the US. The RPD thus erred in relying on the incorrect information contained in the biometrics report only in concluding the appellant had a LPRC and was a permanent resident of the US. Further, the RPD erred by failing to give any weight to the appellant's sworn testimony that he did not have a green card and was not a permanent resident of the US. Accordingly, the RAD finds the RPD erred in its analysis and finding that the appellant was excluded from protection pursuant to Article 1E of the Refugee Convention. The RPD's determination was not correct and was not based upon the evidence. The RAD finds the errors to be fatal to the RPD's decision, as 1E was the only issue considered by the RPD. Indeed, the RPD acknowledged that the appellant's claims against Egypt and Saudi Arabia were "not part of the consideration".10 The RAD is consequently unable to provide a final determination of this claim. CONCLUSION [18] Pursuant to paragraph 111(1)(c) of the Act, the RAD sets aside the determination of the RPD and refers this matter back to the RPD for redetermination. The appeal is allowed. (signed) D. Goff D. Goff September 9, 2020 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 2 Resolution 2198 (XXI) adopted by the United Nations (UN) General Assembly, 16 December 1966 [Hereinafter Article 1E]. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 5 Exhibit RPD-1, RPD Record, p. 4, RPD Reasons, at p. 2, lines 26-27. 6 Ibid, at lines 42-43. 7 Exhibit RPD-1, RPD Record, Exhibit 8, at pp. 353-371. 8 Ibid, at p. 362. 9 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 67. 10 Exhibit RPD-1, RPD Record, p. 4, RPD Reasons, at p. 2, line 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-10053 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français