TB5-03103

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 : TB5-03103 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 8, 2015 Date de la décision Panel Cathryn Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt 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 ministre REASONS FOR DECISION [1] XXXX XXXX, claiming to be a citizen of China, has appealed a negative determination of the Refugee Protection Division (RPD) dated July 31, 2014. He has not submitted new evidence in support of his appeal. The Appellant is not asking that an oral hearing be held pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). The Appellant requests that the Refugee Appeal Division (RAD) allow the appeal and the Appellant should be declared to be a Convention refugee, and that in the alternative, the matter should be referred to a different RPD member for redetermination on the basis of the decision and reasons of the RAD. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD for redetermination. BACKGROUND [3] The Appellant alleges that, although born in India of Tibetan parents, he has no status in India and has no right of citizenship or permanent residence in India. He has a Registered Foreign Certificate that must be renewed. He fears that as a Tibetan, he may be sent back to China. He would be persecuted on the basis of his religion and political opinion. He is a follower of the Dalai Lama and he would not be allowed to freely pursue his religious beliefs in China. Since the Chinese government is the agent of persecution, he would not be safe in ay part of Tibet. [4] The Appellant's hearing was held on December 18, 2014 and the decision was issued on March 6, 2015. The Minister of Citizenship and Immigration intervened in writing by filing a Notice of Intervention.1 ROLE OF THE RAD [5] Counsel for the Appellant has made submissions that the RAD should follow the Federal Court Decision in Huruglica. [6] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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.3 [55] 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 an "overriding and palpable error."4 [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,5 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [9] In the case at hand, based on the evidence and the pleadings, the RAD focused on two issues in assessing this appeal. a) Did the RPD err in its credibility findings? b) Did the RPD err in its treatment of the evidence before it (failure to consider the totality of the evidence)? [10] The determinative issue in the RPD reasons were identity and country of reference. The RPD also found the Appellant was not a credible witness. [11] The pleadings outline the following allegations: a) The RPD's credibility findings and consequently the determination that the Appellant was a citizen of India is erroneous. b) The RPD erred in failing to consider the totality of the evidence. Indian Citizenship and Passport [12] The RPD reasons states that the Minister's position is the Appellant is a citizen of India, in possession of a genuine Indian birth certificate and of a genuine Indian passport.6 The Appellant submits that he takes issue with the RPD's findings, and therefore the Member's determination that India was a country of reference in the claim. [13] The Appellant submits that neither the Appellant nor the Minister submitted that the Appellant was a citizen of India. The Appellant submitted that he was a citizen of China, not India, while the Minister7 argues that he was stateless and that India was his country of former habitual residence. The Minister did not suggest that the Indian passport was genuine. The RAD finds the Appellant's argument has merit in this regard. The RAD has reviewed submissions from the Minister8 and finds the Minister's position was not that the Appellant was a citizen of India nor was he in possession of a genuine Indian passport. The Minister submitted that as the Appellant "has no permanent status in India he is a stateless individual of Tibetan ethnicity born in India." .9 [14] The RAD notes that the RPD acknowledged that there was no evidence before the panel to establish whether the unseen passport is genuine or not. The RPD noted the Appellant has testified that the passport and visa were fraudulently obtained. The RAD notes the Appellant indicated on the IMM0008 document, Schedule 12, Additional Information,10 that the passport used by the Appellant was not a genuine document. Travel to Canada [15] The Appellant submits that the RPD found that, despite raising the question, the Appellant could not corroborate his arrival in Canada on XXXX XXXX, 2014, by means of a boarding pass, itinerary or any other document. However, the transcript shows that the Appellant was never asked if he had such corroborating documents. [16] The RAD finds, from a review of both the transcript provided by the Appellant in the pleadings,11 and the audio recording, that the Appellant's argument is persuasive in this regard. [17] The RAD notes the RPD reasons show "When raised at the hearing, the claimant did not have any proof by passport, boarding pass, itinerary or any other document to corroborate his testimony that he entered Canada in XXXX 2014." [18] The RAD finds the RPD failed to put to the Appellant questions concerning the absence of a boarding pass, itinerary or any other document to corroborate his arrival in Canada on XXXX XXXX, 2014, nor was this concern raised by the RPD during the hearing. As a result, the matter was not explored further in the Applicant's testimony or in counsel's submissions. [19] The RAD notes the RPD relied on the Elazi12 decision to support its negative inference drawn from the Appellant's failure to produce his Indian passport where, The Board's analysis of Mr. Li's identity was related to its assessment of his credibility. It was not patently unreasonable for the Board to draw a negative inference regarding Mr. Li's credibility based upon the fact that he had no passport, plane ticket, or boarding pass. Those documents would have provided, at the least, evidence about where Mr. Li's journey to Canada commenced. [20] Given the significance the RPD applied to the absence of this type of documentation in its assessment of the Appellant's credibility and the genuineness of the passport in question, the RAD finds the RPD is obligated to pose questions concerning the documents (boarding pass, itinerary or any other document) to the Appellant and provide him with an opportunity to respond before making an adverse credibility finding. The RAD therefore finds the RPD drawing adverse inference from the failure to produce any travel documents, and for alleging an entry date and means not corroborated by the Canadian authorities is not supportable. [21] The RAD also notes the RPD found the Appellant was able to travel with ease through India, points of Europe and Canada without issue. The RPD found that there was no evidence before them to establish whether the unseen passport is genuine or not. [22] The RAD notes the documentary evidence13 that states: ...the authenticity of passports is more reliable than many of the other identity documents, but is "not beyond doubt" (11 Apr. 2014). In correspondence with the Research Directorate, an official at the Embassy of Canada in New Delhi indicated that the most common fraudulent identity document that they encounter is the national passport since most of the identity documents they encounter relate to migration (Canada 21 Apr. 2014). According to the AHRC representative, having a passport does not necessarily prove identity, since it is possible to obtain one by bribing officials (14 Apr. 2014). [23] There is no persuasive evidence before the RAD that the RPD factored into its analysis the documentary evidence concerning the availability and prevalence of fraudulent identity documents. Therefore, the RAD finds the RPD's adverse credibility inference regarding the Appellant establishing his passport was fraudulent is not supportable. [24] The Appellant relies on the judgment of the Federal Court of Appeal in Attakora14 where the Court held: Finally, the Board found that the applicant's credibility was weakened by his statement that, while on the plane to Canada, he destroyed a passport, Canadian visitor's visa and airline ticket, all of which were in the name of a friend and had been used by him in order to get away. The Board, after noting that the applicant had said that he had destroyed the documents because he was afraid that, if they were discovered, he might be arrested and sent back, concluded, without more, that this element of his testimony lacked credibility. The Board's finding on this point is, to say the least, puzzling. There is certainly nothing inherently incredible in a refugee saying that he has destroyed false travel documents in order to avoid detection and arrest once they have served their purpose. In the circumstances of this case, the destruction of such documents could not have had any conceivable relevance to any issue which the Board had to decide. [Footnote: See on this point Moustafa Salamat v. Immigration Appeal Board et al., Court file A-223-87, judgment of March 8, 1989.] I can only conclude that the Board's insistence upon its significance is founded jupon some erroneous view of the law. Does the Board think that only persons who arrive here with their travel documents in order can be refugees? Or those who arrive with false documents have some obligation to preserve them? [25] The RPD considered the Registration Certificate15 (RC) and states that "Although a Tibetan who takes out Indian citizenship ought not to continue to possess an RC, the fact that the claimant has one set to expire soon does not establish whether or not he is an Indian citizen. The RPD went on to note the importance of the RC, which is needed to travel, work and remain in India. [26] The Appellant submits that the RPD failed to consider the fact that the Appellant possessed a Registration Certificate16 (RC). The Appellant further submits that the RC is issued to non-citizens only, under regulations governing foreigners. As noted by counsel before the RPD in submissions, documentary evidence17 was to the effect that no Tibetan possessing an RC could be an Indian citizen and that possession of an RC therefore proved that the holder was not an Indian citizen. Furthermore, the evidence stated that children of parents with RC's are not citizens of India either. The Appellant had presented evidence that his parents both have RCs18. The Appellant submits that since he was not born between January 26, 1950 and July 1, 1987, the window during which anyone born in India is supposedly a citizen by birth, but was rather born in 1994; he could only have become an Indian citizen through his parents. [27] In addition, the Appellant submits that overwhelming evidence exists that even Tibetans born during the 1950 to 1987 "window", are not recognized as Indian citizens despite legislation apparently to the contrary. The Appellant points to paragraphs 14 to 27 of counsel's submissions, received by the RPD on January 5, 2015, citing the relevant documentary evidence to that effect.19 [28] The Appellant points to the Wanchuk20 decisions of the Federal Court, cited by counsel in submissions, stand for the proposition that the Indian authorities arrogate to themselves the discretion whether or not to grant citizenship to supposedly qualifying Tibetans and that they almost invariably refuse to grant it. [29] The Appellant argues that the RPD could not conclude that the presumption of truth to the Appellant's testimony that he was not an Indian citizen could be rebutted merely by his non-disclosure of his Indian passport. [30] The RAD finds the Appellant's argument persuasive in this regard. A review of the totality of the evidence finds the RPD was not correct in concluding that the Appellant had not rebutted the presumption that his Indian passport was genuine, without considering and engaging in the documentary evidence and jurisprudence. [31] The RAD finds the RPD failed to address whether the acquisition of Indian citizenship is within the control of the Respondent. A review of the audio recording and the transcript shows that questions were posed to the Appellant by the RPD asking why the Appellant could not go back to India. He responded that he did not have status and he had no permanent resident documents to stay in India. He feared deportation to Tibet. The RPD further asked the Appellant; if you are not a citizen of India, why didn't you apply to become one; your parents were born in India, you were born in India, why not apply for status? The Appellant responded that since my parents don't have any status, there's no chance for me to obtain status. Despite this information, the RPD did not explore further why the Appellant's parents had never applied for citizenship or if he had had taken any steps to seek citizenship. [32] However, Counsel for the Appellant in questioning asked the Appellant if his parents ever applied for Indian citizenship. His response was that they inquired at the Municipal Office in XXXX but were told they were not eligible for citizenship rights. He also put forth that because his parents do not have citizenship, he is not eligible. He also stated that he and his family do not know any Tibetans in India who have applied and been given citizenship. [33] The RAD finds the RPD should not have assumed as a forgone conclusion that the Appellant had Indian citizenship. While it is clear the RPD considered the Response to Information Request included in the Minister's submissions21 as the RPD acknowledged that RCs are necessary for work purposes, etc., there is no persuasive evidence that the RPD considered the totality of the relevant documentary evidence. It was the responsibility of the RPD to review the ample documentary evidence, both in the National Documentation Package for India and that disclosed by counsel22 representing the Appellant at his hearing in regards to the applicability of Tibetans residing in India obtaining citizenship from the India authorities and difficulties that Tibetans face in obtaining citizenship in India. [34] The RAD relies on the Federal Court decision Mahmood23 which states: A Board is under a duty to justify its credibility findings with specific and clear reference to the evidence, particularly when the evidence is cogent and relevant to the Applicant's allegations. This duty is particularly important when a claimant's credibility is affected by implausibility findings of the Board. [35] It is not incumbent on an RPD member to assess every sentence of the documentary evidence before him or her. However, counsel highlighted and made submissions on the issue of Indian citizenship for the Appellant and the documentary evidence that is relevant to the key component of the Appellant's claim. [36] The RAD also notes the RPD is not required to refer to each and every piece of documentary evidence before it. However, the more significant in the reasoning of the board the evidence not specifically mentioned and analyzed in the Board's reasons is, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,24 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [37] Furthermore, the more important the evidence that is not mentioned and analyzed in the tribunal's reasons, the more willing a Court will be to infer that findings of fact were made without regard to the evidence.25 [38] In the RAD's view, when the RPD reaches a conclusion that is related to or contradicted by a particular document, the RPD should explain its reasons for giving little or no weight to that evidence. [39] The RAD finds the RPD erred in its treatment of the evidence. Further, the RPD did not adequately address, nor factor into its analysis the totality of the evidence before it, specifically the above-noted documentary evidence concerning the Appellant's eligibility to acquire Indian citizenship as a Tibetan being born and residing in India and his ability to acquire a fraudulent passport. Accordingly, the RAD finds that this decision must be set aside. SUMMARY [40] The RAD finds, based on a review of the audio recording and the record, the RPD erred in its evaluation and the treatment of the Appellant's evidence. As such, the RPD's decision cannot stand. [41] In the RAD's view, the only appropriate remedy in this matter is to refer the matter to the RPD for redetermination. [42] The Appellant also contests that the RPD erred in impugning the Appellant's credibility because of the absence of travel documentation; it could not be established how long the Appellant had been in Germany and whether or not he had status there and the Appellant's testimony regarding his passport and Canadian visa, to be "vague and not cogent". However, it is not necessary for the RAD to deal with further issues, as the RPD's findings, discussed above, are sufficient to dispose of this appeal. Disposition and Remedy [43] Section 111(1)(b) of IRPA allows the RAD to set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made. The RAD may only refer the matter back to the RPD if the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.26 [44] The RAD considered the totality of the evidence before it and found that it could not substitute a decision for that of the RPD without hearing evidence that was presented to the RPD. [45] The RAD noted that under section 111(1)(b) it has the jurisdiction to substitute a determination that should have been made. The RAD noted that several credibility issues were raised in evidence presented at the hearing and throughout the proceedings. [46] The RAD noted that the RPD is in the best position to make a finding on the credibility of a claimant given that they have the opportunity to hear directly from a claimant at the hearing. The RAD's ability to hold a hearing is limited to new evidence. The Appellant did not present new evidence for this appeal. Given the credibility concerns, the RAD finds that it is not in a position to substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. As such, the RAD refers the matter back to the RPD for a de novo hearing. DETERMINATION [47] This appeal is allowed. Pursuant to Section 111(1)(c) of the IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. (signed) "C. Forbes" Cathryn Forbes July 8, 2015 Date 1 RPD's Record, Exhibit 5, pp. 238-251. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Ibid., Huruglica, para. 54. 4 Ibid., Huruglica, para. 55. 5 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 6 RPD's Record, Exhibit 5, pp. 238-251 7 Ibid. 8 RPD's Record, Exhibit 5. 9 RPD's Redord, Exhibit 2, p. 24. para. 2 10 RPD's Record, Exhibit 1, pp. 40-43. 11 Appellant's record, pages 16 to 59 12 Elazi v. Canada (M.C.I.), 2000 CanLII 14891 (FC), at paragraphs 17 and 18 13 RPD's Record, Exhibit 3, National Documentation Package (NDP) for India (31 October, 2014), Item 3.5 14 Attakora, Benjamin v. M.E.I. (F.C.A., no. A-1091-87), Heald, Mahoney, Hugessen, May 19, 1989. Reported: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) 15 RPD's Record, Exhibits 1 and 4 16 RPD's Record, Exhibit 4 17 RPD's Record, Exhibit 1. 18 RPD's Record, Exhibit 7, pp.252-262 19 RPD's Record, Exhibit 8 20 Wanchuk, Lobsang v. M.C.I. (F.C., no. IMM-3511-13), O'Reilly, September 16, 2014, 2014 FC 885 21 RPD's Record, Exhibit 5 22 RPD's Record, Exhibit 4, pp. 123 to 237 23 Mahmood, Ibrahim v. M.C.I. (F.C., no. IMM-9843-04), Blanchard, November 9, 2005, 2005 FC 1526 24 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, paras. 7-8. 25Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 26 Immigration and Refugee Protection Act (IRPA), S.C. 2001, s.111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03103