TB5-03007

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 : TB5-03007 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 7, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt Barrister & Solicitor Conseil(s) du (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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX claims to be a Tibetan citizen of China. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and determine him to be a Convention refugee. In the alternative, the Appellant asks that the RAD refer his refugee claim back to the RPD for re-determination by a differently-constituted panel with reasons and direction, in particular on the basis that the Appellant is a citizen of Tibet (China) alone. [3] The Appellant is not relying on new evidence pursuant to Section 110(4) and he is not requesting an oral hearing pursuant to Section 110(6) of the Immigration and Refugee Protection Act (IRPA or Act).1 The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [5] The Appellant is a XXXX-year old ethnic Tibetan; he was born and raised in India. The Appellant's grandparents fled from Tibet after the Chinese occupation of Tibet. The Appellant's parents and the Appellant himself were born in India. He alleges that neither he nor his parents are entitled to citizenship in India. His parents have obtained registered foreigners' certificates, which allow them to remain in India. The Appellant does not have one because he left India around the time he was supposed to get one. Upon return to India, the Appellant fears deportation to China where he would be persecuted because he is Tibetan, an advocate for a Free Tibet, and a follower of Dalai Lama. [6] The Minister of Citizenship and Immigration intervened at the RPD on the basis of credibility, alleging that the Appellant is a citizen of India, not China, as the Appellant entered Canada on an Indian passport, which the Minister believed to be genuine. [7] The Appellant's claim for refugee protection was heard on December 23, 2014. In a decision of February 23, 2015, the RPD rejected his claim. The RPD found that the Appellant was not a credible witness. [8] The Appellant submits that the RPD ought to have, but did not, consider the issue of citizenship based on the totality of the evidence before it. The Appellant submits that the evidence showed that it was overwhelmingly improbable that he was an Indian citizen. ROLE OF THE RAD [9] The Appellant makes submissions2 in regard to the standard of review, cites the Huruglica3 case, and submits that the RAD is required to conduct its own assessment of the RPD decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection.4 The RAD considers the Appellant's submissions. [10] In assessing the appeal, the RAD is guided by the Canadian jurisprudence, including the Huruglica decision which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per Subsection 111(1)(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [11] The RAD adopts and applies the Huruglica case law in this appeal. DETERMINATIVE ISSUE [12] The determinative issue in this appeal is credibility relating to the Appellant's assertion that the Indian passport he used to enter Canada was fraudulent, and that he is not a citizen of India, and that he is a citizen of China only. MERITS OF THE APPEAL [13] The RPD found that the Appellant was not a credible witness with respect to his assertion that the Indian passport he used to enter Canada was fraudulent. The RPD found that the Indian passport the Appellant used to enter Canada was genuine, and that the Appellant is not a citizen of China but a citizen of India. [14] The Appellant testified at the RPD that on XXXX XXXX, 2014, he entered Canada. The Appellant arrived in Canada on a student visa. The Appellant testified that he entered Canada using an Indian passport in his own name, containing his photograph, his true birth date, and bearing his signature. The Appellant testified that the Indian passport he used to travel to Canada was not a genuine document. In this respect, the RPD found the Appellant not to be credible. [15] The RAD reviewed the totality of the evidence submitted/adduced in this case. The Appellant stated in documents submitted to the Canadian authorities that he was born in India on XXXX XXXX XXXX XXXX.5 The Appellant submitted his Indian passport number XXXX to the Canadian authorities in XXXX XXXX in India to acquire XXXX visa to come to Canada.6 The Appellant testified, and the Citizenship and Immigration Canada had confirmed that the Appellant travelled to Canada on an Indian passport number XXXX.7 The Appellant had indicated in official papers, filed with the Canadian authorities, that he was a citizen of India, and that his Indian passport was a genuine document.8 [16] The Appellant, however, testified at the hearing that his Indian passport was not a genuine document, and that he is a citizen of China and no other country. The Appellant testified that the entry in the Schedule 12 Form indicating that his Indian passport was a 'genuine' document is incorrect. The Appellant testified that he did not know the meaning of 'genuine', and adds further that the Schedule 12 Form was not completely translated to him. In this respect, in reviewing the totality of the evidence submitted/adduced in this case, the RAD finds the Appellant not credible. [17] The RAD finds the Appellant is not an unsophisticated person. The RAD acknowledges that the Appellant is XXXX-year old (XXXX-year old at the time of the hearing at the RPD), relatively young person; however, he has completed schooling in India,9 and had obtained admission to an XXXX XXXX XXXX XXXX in Canada.10 The RAD finds the Appellant had stated in his official papers, submitted to the Canadian authorities, that he is able to communicate in English.11 The Appellant had an interpreter, during his attendance at the office of the Citizenship and Immigration Canada; the interpreter made a declaration that the content of the Appellant's application were accurately interpreted in Tibetan to the Appellant.12 The Appellant declared that the information provided within or attached to his Basis of Claim Form was complete, true and correct and that he was able to read English and that he had fully read and fully understood the entire content of the form and all attached documents when he signed under Declaration A on September 26, 2014.13 He declared that the information provided within, or attached to his Generic Application Form for Canada was truthful, complete and correct when he signed under Declaration on September 26, 2014;14 and within, or attached to Schedule 1215 and Schedule A16 when he signed those under Solemn declaration on October 28, 2014. Moreover, the Appellant was represented by counsel at the time he completed and filed his forms for refugee protection in Canada.17 Further, the onus is on the refugee claimant to provide accurately the requisite information to the Canadian authorities while submitting his refugee claim forms. [18] Based on the totality of the evidence submitted/adduced in this case, the RAD finds the Appellant not credible in his assertion that the Indian passport he used to enter Canada was fraudulent. The RAD finds, on a balance of probabilities, the Indian passport the Appellant used to enter Canada was genuine, The RAD finds the Appellant is not a citizen of China but a citizen of India. [19] In the context of this case, the Indian Citizenship Act 1955 (No. 57 of 1955) (the Act) is important because it defines the acquisition of Indian citizenship by birth. Specifically, the Act states that a person born in India between January 26, 1950 and July 1, 1987 is an Indian citizen by birth irrespective of the nationality of his/her parents. The Appellant's father was born in India on XXXX XXXX XXXX XXXX; the Appellant's mother was born in India on XXXX XXXX XXXX XXXX.18 Therefore, the RAD finds the Appellant's parents would have been eligible to obtain Indian citizenship by law.19 By default, the Appellant, in the circumstances, would have been a child of Indian citizens, and thus would be an Indian national by birth. In this regard, the RAD finds the Appellant travelled to Canada on an Indian passport, which the RAD finds, on a balance of probabilities, to be genuine. Based on the totality of the evidence submitted/adduced in this case, the RAD finds the Appellant not credible in his assertion, that is that the Indian passport he used to enter Canada was not genuine. Based on the analysis and the reasons in the foregoing, the RAD finds the Appellant is not a citizen of China but a citizen of India. [20] The RAD acknowledges the Appellant provided the RPD with the Green Book; however, the Green Book submitted had expired on XXXX XXXX, 2010.20 Moreover, the Appellant did not provide sufficient reliable and satisfactory information relating to the purported Green Book. The RPD did not accept the Green Book as reliable and satisfactory corroborating evidence in support of the Appellant's identity as a national of China. The Appellant provided no other documentation in support of his identity as a national of China. The fact that the Appellant's parents allowed his Green Book to expire led the RPD to conclude that the Appellant had other identity documentation to support his identity while residing in India, namely, his Indian passport. [21] Based on the totality of the evidence submitted/adduced in this this case, the RAD concurs with the RPD that the Appellant had a genuine Indian passport that he used to acquire the student visa to come to Canada, and to travel to Canada. The RAD finds the Appellant has not established, on a balance of probabilities, that he is a citizen of China. [22] Regarding the Appellant's claim for refugee protection, the Appellant has not claimed a well-founded fear of persecution in India, or that his removal to India would subject him personally to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment. He has not rebutted the presumption that India can provide adequate protection to its citizens.21 [23] In order to gain refugee protection in Canada, the refugee claimant must establish that he has a well-founded fear of persecution in his country/countries of nationality. The RAD finds India is a country of nationality for the Appellant. The RAD finds as the Appellant has not established a refugee claim against India, he is not entitled to Canada's protection. DISPOSITION [24] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and finds that the Appellant is neither a Convention refugee nor a person in need of protection. [25] This appeal is dismissed. (signed) "S.S. Kular" S.S. Kular July 7, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, item 4, Memorandum of Argument, paras. 6-8, pp. 13-20. 3 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Exhibit P-2, Appellant's Record, item 4, Memorandum of Argument, para. 8, p. 20. 5 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (06-2014) E, Citizenship and Immigration Canada, Generic Application Form for Canada, p. 23 and IMM 0008 (12-2012) E, Schedule 12, p. 28; Exhibit 2, Basis of Claim Form, Question 1(c), p. 11.. 6 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, Citizenship and Immigration Canada, GCMS Information Request: Application, pp. 43-61; Exhibit 5- Minister's Exhibits, pp. 264-268. 7 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 5- Minister's submissions, pp. 258-260. 8 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (12-2012) E, Schedule 12, p. 28; and Citizenship and Immigration Canada, GCMS Information Request: Application, p. 45. 9 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 7, item 3, p. 291. 10 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, Citizenship and Immigration Canada, GCMS Information Request: Application, pp. 43-61. 11 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (06-2014) E, Citizenship and Immigration Canada, Generic Application Form for Canada, p. 25; Exhibit 2, pp. 18-19 12 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (12-2012) E, Schedule 12, p. 31. 13 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 2, Citizenship and Immigration Canada, GCMS Information Request: Application, p. 19. 14 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (06-2014) E, Citizenship and Immigration Canada, Generic Application Form for Canada, p. 27. 15 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (12-2012) E, Schedule 12, p. 31. 16 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 5669 (12-2012) E, Schedule A, p. 35. 17 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, IMM 0008 (12-2012) E, Schedule 12, pp. 28-31. 18 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 4, pp. 140-156. 19 Tretsetsang v. M.C.I. (F.C., no. IMM-67-14), Mosley, April 14, 2015; 2014 FC 455. 20 Exhibit RPD-1, RPD's Exhibits, RPD Exhibit 1, pp. 38-41. 21 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB5-03007