TB3-08985

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 : TB3-08985 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal heard at / considered at Toronto, Ontario Appel instruit à Date of decision July 28, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack C Martin Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant") alleges to be a citizen of Eritrea. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks the RAD to refer the matter back to the RPD for re-determination. In the alternative, the Appellant asks the RAD to determine the Appellant to be a Convention refugee, or a person in need of protection. [3] The Appellant is relying on new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA or Act).1 Pursuant to section 110(6), the Appellant is not asking for a hearing at the RAD. [4] The Minister is not intervening in the appeal. DETERMINATION [5] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for re-determination by a differently-constituted panel. BACKGROUND/ALLEGATIONS [6] The Appellant alleged that she was born in XXXX, which was then Ethiopia, on XXXX XXXX, 1990. The Appellant alleged that she would face imprisonment, beating, torture, and rape because of her religion, for evading military service, and for leaving Eritrea illegally, upon return to Eritrea. [7] For further details, refer to the Appellant's Basis of Claim (BOC) form.2 Regarding her allegations, the Appellant provided additional details at the RPD hearing. [8] The Appellant came to Canada on XXXX XXXX, 2013, and filed her claim for refugee protection at an inland office of the Immigration, Refugees and Citizenship Canada. The Appellant's claim for refugee protection was heard on November 5, 2013. In a decision of November 6, 2013, the RPD rejected her claim. [9] The RPD found the Appellant not credible. The RPD found that the Appellant did not establish her identity as a national of Eritrea and that she is who she says she is. [10] The Appellant submits that there was sufficient credible evidence of the citizenship and identity of the Appellant, and that that evidence was not accepted or was ignored by the RPD. ADMISSIBILITY OF NEW EVIDENCE SUBMITTED ON APPEAL [11] The person who is the subject of the appeal may, pursuant to section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Appellant submitted new evidence pursuant to section 110(4) of the IRPA. [13] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4) of the IRPA. The RAD is guided by the Federal Court of Appeal decision in Singh;3 in addition to the statutory requirements, further analysis of the evidence is required before the RAD can accept the Appellant's proposed new evidence. In that regard, the RAD is guided by the analysis as set out in Raza4 and modified by the FCA in Singh. [14] In assessing whether the proposed new evidence meets the statutory provisions of section 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? a. Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the Appellant's refugee claim.5 b. The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may, therefore, find that the evidence did not arise after the rejection of the claim, despite the date of the document. c. It is important to note that section 110(4) of the IRPA does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, the RAD must consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. d. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered; accordingly, the RAD will proceed to assess the newness, credibility, and relevance of the Appellant's new evidence.7 (b) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in section 110(4) of the IRPA. For example, if the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before the RPD rejected the claim,8 or that it proves a fact that was unknown to the Appellant at the time of the hearing?9 If so, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (c) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the test under section 110(4) of the IRPA. Could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. [15] If the proposed new evidence meets the tests set out in the statutory requirements and in Raza, the Appellant's new evidence will be admitted as evidence in the RAD appeal. The materiality of the evidence will be considered in the context of the assessment of the evidence made under section 110(6) of the IRPA. [16] The following new evidence was submitted by the Appellant at the RAD: a. Appellant's affidavit, dated XXXX XXXX, 201311 b. Letter from the XXXX Canadian Community Centre XXXX XXXX XXXX, dated XXXX XXXX, 2013 12 c. Affidavit from XXXX XXXX, dated XXXX XXXX, 201313 d. Affidavit from XXXX XXXX XXXX, dated XXXX XXXX, 201314 e. Response to Information Request (RIR) LKA100503.E 15 f. Appellant's affidavit, dated XXXX XXXX, 2016 and documents from the Appellant's cousin XXXX XXXX16 g. Affidavit from XXXX XXXX XXXX, dated XXXX XXXX, 201617 [17] The RAD Rule 3(3)(g)(iii) directs Appellants to include an explanation of how the documentary evidence submitted to the RAD meets the requirements of section 110(4) of the IRPA. The Appellant has provided an explanation regarding why her new evidence should be allowed at the RAD.18 Appellant's affidavit, dated XXXX XXXX, 201319 and Appellant's affidavit, dated XXXX XXXX, 201620 [18] The Appellant has submitted these affidavits as part of her new evidence. In reviewing these affidavits, the RAD notes that portions of the Appellant's affidavits address the Appellant's evidence submitted/adduced at the RPD, and the related issues with the RPD's decision and reasons. The affidavits also include the Appellant's explanation for the provision of new evidence, which the RAD considers as part of her explanation of how the documentary evidence submitted to the RAD as her alleged new evidence, meets the requirements of section 110(4) of the IRPA. The RAD finds that the Appellant's affidavit dated XXXX XXXX, 2013, in and of itself, does not meet the requirements of new evidence pursuant to section 110(4) of the IRPA. Therefore, the RAD does not accept the Appellant's affidavit dated XXXX XXXX, 2013. The Appellant's affidavit dated XXXX XXXX, 2016, however, includes new information, corroborating the Appellant's evidence that her school document was mailed to her by her cousin XXXX XXXX from Eritrea. Therefore, the RAD accepts the Appellant's affidavit dated XXXX XXXX, 2016 as new evidence at the RAD. Affidavit from XXXX XXXX, dated XXXX XXXX, 2013;21 affidavit from XXXX XXXX XXXX, dated XXXX XXXX, 2013;22 Affidavit from XXXX XXXX XXXX, dated XXXX XXXX XXXX 201623 [19] The Appellant submitted the above-mentioned affidavits from persons from Eritrea in support of her personal identity and her identity as a national of Eritrea. These persons have seen/met the Appellant while she was living with her grandmother in Eritrea. One of the affiants is related to the Appellant; i.e., the Appellant's grandmother is affiant XXXX XXXX aunt. All these affidavits are dated past the rejection of the Appellant's claim. The person who is the subject of the appeal may, pursuant to section 110(4) of the IRPA, present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In consideration of the Appellant's explanation as to why she could not submit the above evidence at the rejection of her claim, the RAD finds that these affidavits satisfy the requirements of section 110(4) of the IRPA. The Appellant believed that she did not need to submit further identity documents as she had submitted her own legitimate identity documents and provided sworn testimony at the RPD. The RAD finds the Appellant's explanation satisfactory. Letter from the XXXX Canadian Community Centre XXXX XXXX XXXX, dated XXXX XXXX, 201324 [20] This letter is submitted in support of the Appellant's identity, in that she is a national of Eritrea and that she is who she says she is. The letter is based on the sworn declarations of XXXX XXXX and XXXX XXXX XXXX. Since the RAD finds the affidavits of XXXX XXXX and XXXX XXXX XXXX satisfy the criteria set out in section 110(4) of the IRPA; for the same reasons, i.e., the Appellant believed that she did not need to submit further identity documents as she had submitted her own legitimate identity documents and provided sworn testimony at the RPD. The RAD finds that this letter also satisfies the criteria set out in section 110(4) of the IRPA. Response to Information Request (RIR) LKA100503.E 25 [21] The RAD finds that the RIR is for Sri Lanka; the RIR is dated December 19, 2005. The Appellant has not provided satisfactory explanation as to how this document satisfies the provisions set out in section 110(4) of the IRPA. The RAD notes that the Appellant was represented by competent counsel at the RPD. The RAD finds that the Appellant could reasonably have been expected in the circumstances to have presented this evidence, at the time of the rejection of her claim. Therefore, the RAD rejects this evidence. [22] Based on the above reasons, the RAD admits the following items of the Appellant's alleged new evidence: affidavits from XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, the Appellant's affidavit dated XXXX XXXX, 2016, and the letter from the XXXX Canadian Community Centre XXXX XXXX XXXX. APPLICATION FOR AN ORAL HEARING [23] The RAD notes that the Appellant does not request that the RAD hold a hearing pursuant to subsection 110(6) of the IRPA.26 Regardless, the RAD assesses if a hearing ought to be held in this case. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to section 110(4) of the IRPA, present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. When read together, however, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new (section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [24] The Appellant submitted several documents as her alleged new evidence pursuant to section 110(4) of the IRPA. The RAD has admitted some of her evidence, i.e., affidavits from XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, the Appellant's affidavit dated XXXX XXXX, 2016, and the letter from the XXXX Canadian Community Centre XXXX XXXX XXXX. In consideration of the totality of the evidence, the RAD cannot hold an oral hearing because the evidence admitted does not meet the final prong of the criteria in section 110(6) of the IRPA; i.e., if the RAD were to hold a hearing to assess the credibility of the new evidence admitted, it would only go towards establishing the identity of the Appellant and it would not justify allowing or rejecting the Appellant's refugee protection claim. Since the RPD did not assess the merits of the Appellant's claim against Eritrea, the RAD would have to rehear the Appellant's entire refugee claim in order to make the determination of her claim, which is not the role of the RAD. [25] Therefore, the RAD does not hold a hearing. ANALYSIS Role of the RAD [26] The Canadian jurisprudence provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of the RPD, a first-level administrative tribunal. [27] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica27 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [28] In closing, Justice Gauthier wrote: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.28 [29] Justice Gauthier rejected the high level of deference (measured by "palpable and overriding error") found in the Supreme Court of Canada (SCC) decision in Housen v. Nikolaisen 2002 SCC 33. Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: "[In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD."29 [30] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not an issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.30 [31] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD, the matter will be referred back to the RPD for redetermination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. [32] In conducting its own independent assessment and making the determination in this appeal, the RAD considered the entirety of the evidence submitted/adduced in this case, including the recording of the RPD's proceedings, and the Appellant's Appeal Record, including the Appellant's submissions. RPD's findings and the RAD's assessment [33] The RPD found that the Appellant had not established her personal identity and that she is a citizen of Eritrea. The RPD found that the Appellant had not provided acceptable documentation establishing her identity. The RPD found that the Appellant had not made reasonable efforts to obtain such evidence and that her explanations for this shortcoming were not sufficient. The RPD found that the Appellant's testimony was not credible or trustworthy evidence of her identity.31 [34] The Appellant submits that there was sufficient credible evidence of the citizenship and identity of the Appellant, and that that evidence was not accepted or was ignored by the RPD.32 [35] In light of the new evidence admitted, the RAD finds the RPD's findings relating to the Appellant's identity, i.e., her name and that she is a citizen of Eritrea, are put into question. [36] Although the RAD has accepted some the Appellant's evidence submitted in support of her identity, the RPD did not deal with, nor rule on the merits of the claim in its reasons. In order to arrive at a conclusion as to the merits of the Appellant's refugee claim, the RAD would have to rehear the entire evidence that was already heard by the RPD, which is not the role of the RAD. [37] For these reasons, the RAD cannot confirm the determination of the RPD pursuant to section 111(1)(a), nor set aside the RPD determination and substitute a determination that, in its opinion, should have been made pursuant to section 111(1)(b) of the IRPA. The RAD refers the matter back to the Refugee Protection Division for re-determination. DISPOSITION [38] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for re-determination by a differently-constituted panel. [39] This appeal is allowed. (signed) "S.S Kular" S.S. Kular July 28, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, pp. 8-24. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA385, para.13.3(a). 6 Ibid. para. 16. 7 Ibid., para. 13.5(b). 8 Ibid., para. 13.5(a). 9 Ibid., para. 13.3(b). 10 Ibid., para. 13.5(a). 11 Exhibit P-2, Appellant's Record, pp. 8-9. 12 Exhibit P-2, Appellant's Record, p. 35. 13 Exhibit P-2, Appellant's Record, pp. 36-37. 14 Exhibit P-2, Appellant's Record, pp. 38-39. 15 Exhibit P-2, Appellant's Record, pp. 32a-34. 16 Exhibit P-4, Application to submit further new evidence, dated January 18, 2016, pp. 2-11 and pp. 19- 20 and pp. 22-23. 17 Exhibit P-4, Application to submit further new evidence, pp. 12-16 and pp. 25-27. 18 Exhibit P-2, Appellant's Record, Appellant's Affidavit, pp. 8-9; Appellant's Memorandum of Argument, pp. 46-48; Appellant's Submissions, dated, XXXX XXXX, 2015; Application to submit further new evidence, dated XXXX XXXX, 2016, pp.1-3. 19 Exhibit P-2, Appellant's Record, pp. 8-9. 20 Exhibit P-4, Application to submit further new evidence, pp. 2-11 and pp. 19- 20 and pp.22-23. 21 Exhibit P-2, Appellant's Record, p. 36-37. 22 Exhibit P-2, Appellant's Record, pp. 38-39. 23 Exhibit P-4, Application to submit further new evidence, pp. 12-16 and pp. 25-27. 24 Exhibit P-2, Appellant's Record, p. 35. 25 Exhibit P-2, Appellant's Record, pp. 32a-34. 26 Exhibit P-2, Appellant's Record, pp.32-34. 27 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 28 Ibid., at para. 103. 29 Ibid., at para. 69. 30 Ibid., at para. 70. 31 Exhibit P-2, Appellant's Record, p. 7 at para.20. 32 Exhibit P-2, Appellant's Record, Appellant's Memorandum of Argument, p. 42 at para. 3.01. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB3-08985