VB6-01621

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 : VB6-01621 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision April 6, 2017 Date de la décision Panel Tribunal Counsel for the person(s) who is (are) Roger S. Bhatti Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), allegedly a national of Eritrea, appeals a decision of the Refugee Protection Division (the "RPD") rejecting her claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the "Act or IRPA"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. This appeal is therefore dismissed. BACKGROUND [3] In her claim for refugee protection, the appellant alleged that she feared returning to Eritrea on account of religious persecution as described in her Basis of Claim (BOC) form. She alleged she left Eritrea on or about XXXX XXXX, 2015, arriving in Canada on or about XXXX XXXX, 2015. [4] The appellant's claim for refugee protection was heard by the RPD on January 4, 2016. The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated April 19, 2016. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The determinative factor in the RPD reasons was that the appellant had failed, on a balance of probabilities, to provide acceptable evidence of her identity and nationality. The RPD member also identified credibility concerns as to the appellant's testimony. [5] In making this determination, the RPD member identified the following issues: * After arriving in Canada, the appellant had provided as identity documents her national identity card, school report and baptismal certificate. The minister had presented into evidence a document analysis report which found the national identity card to be "counterfeit". While noting the other documents as tertiary and not identity documents, the baptismal certificate was found to be "probably counterfeit" and the authenticity of the school certificate to be "inconclusive". When questioned at the RPD hearing how these identity documents could have been found to be either counterfeit or at the best inconclusive, the appellant could not provide any explanation. * As post-hearing evidence, the appellant also submitted three affidavits from Canadian citizens of Eritrean background all of whom said that in their view the appellant is who she says she is and is a citizen of Eritrea. The RPD member found these affidavits to be insufficient evidence on which to base a finding of identity and citizenship. * The RPD member also identified credibility concerns relating to the appellant's testimony of how she arrived in Canada. [6] The appellant was represented at the RPD hearing by different legal counsel than in this appeal. [7] The Minister intervened at the RPD but has not intervened in this appeal. SUBMISSIONS [8] Counsel for the appellant submits the following grounds for this appeal: * The RPD member erred in law and committed a breach of natural justice in determining that neither the appellant nor the Minister had requested to question the applicants of the post hearing evidence, thus denying the appellant's request for presumption of her oral hearing. * The RPD member erred in law in concluding that because the appellant was not able to provide certain details with respect to her travel to Canada, there was an evidentiary basis for finding the appellant's testimony not to be credible. Counsel further submits that he RPD member erred in making a negative credibility finding as to the appellant's explanations as to how she arrived in Canada. * The RPD member presented inadequate reasons in repeating the document analyst's conclusions as to the authenticity of the school report submitted evidence at the RPD hearing. * The RPD member erred in making a negative credibility finding as to the appellant's explanations as to why she had not made an asylum claim in Germany. [9] Counsel for the appellant has requested that the RAD set aside the RPD decision. For purposes of this appeal, it will be deemed that the appellant requests that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee. Alternatively, it is deemed that the appellant requests that RAD set aside the determination of the RPD and refer the matter to the RPD for redetermination by another panel. CONSIDERATION OF NEW EVIDENCE [10] The appellant has not submitted new evidence in this appeal. APPLICATION FOR AN ORAL HEARING [11] The appellant has not requested an oral hearing. [12] When read together, subsections 110(3), (4), and (6) of the Act establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,2 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 decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] As indicated above, no new evidence has been accepted for this appeal. As such, the RAD must proceed without a hearing. THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [14] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica3 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. [15] Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [16] The task of the RAD is to determine whether or not the RPD was wrong in law, fact or mixed fact and law and that, in the context of the legislation, "wrong" means "not true," "incorrect" or "mistaken"; all of which "definitively points to the standard of correctness."4 [17] Although the FCA came to the general conclusion that the RAD should intervene when the RPD is wrong in law, in fact or in fact and law applying the correctness standard of review, an appeal before the RAD is clearly not a "true de novo proceeding" whereby the RPD record is not before the RAD and the RPD decision is ignored in all respects.5 [18] Justice Gauthier also rejected the high level of deference (measured by "palpable and overriding error") found in the Supreme Court of Canada (SCC) decision in Housen.6 [19] What then is the case where such findings of fact do relate to the credibility of the oral evidence heard by the RPD? Justice Gauthier stated that the provisions of the Act (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."7 Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not in issue, the FCA found: [70] 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.8 [RAD emphasis] [20] Submissions by counsel for the appellant to the role of the RAD are consistent with the principles outlined in Huruglica. Counsel further submits that a breach of procedural fairness or breach of the rules of natural justice is reviewable on the standard of correctness. [21] In consideration of the above, when conducting an appeal of a determination by the RPD, I will carry out my own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, I will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, I will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with my own analysis of the record as a whole. [22] In addition, the standard of correctness should be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [23] First ground of appeal: Counsel submits that the RPD member erred in law and committed a breach of natural justice in determining that neither the appellant nor the Minister had requested to question the affiants who provided the post hearing evidence, thus denying the appellant's request for resumption of her oral hearing. [24] In his submissions, counsel points to correspondence dated February 24, 2016 and February 29, 2016 in which he stated that the appellant made a specific request for an oral resumption of the hearing in order to question one of the applicants. [25] In reviewing the February 24, 2016 letter from former counsel at the RPD, I note that she requested an extension of time and proposed resumption "unless the Board thinks otherwise." Former counsel concludes the letter by stating that "If the Board is of the view that resumption is not necessary, then I will provide my submissions on the new timelines proposed by the Board." There is no indication in this letter that former counsel had any questions to ask any of the affiants, rather she is leaving that decision to the RPD member. [26] In written submissions received by fax dated February 25, 2016, counsel for the Minister opposed resumption to examine the affiants. Former counsel at the RPD in her letter dated February 29, 2016,9 stated that these affidavits had been provided in response to post-hearing developments and should be allowed and that a resumption of the oral hearing be granted by the RPD member "if deemed fit." In examining this correspondence, I note that neither counsel for the Minister nor former counsel at the RPD had indicated in any way that they needed to examine the affiants or had they identified questions or areas they would examine the affiants upon. [27] On March 2, 2016, the RPD member issued her decision allowing the evidence for both the Minister and former counsel but decided that there would be no resumption of the oral hearing.10 In her decision she stated: "As neither counsel have requested to question the authors of the new evidence, there would be no resumption of the oral hearing." Former counsel at the RPD's submissions dated March 14, 2016 did not make any reference to the RPD member's decision as to resuming the oral hearing to examine one or more of the affiants. [28] Counsel for the appellant submits that in her denial of the application for resumption of the hearing, the RPD member did not consider factors outlined in RPD rule 44. However, I find that the appellant is making an incorrect reference to a Refugee Protection Division (the "Rules")11 Rule 44 application in this context. An application for witnesses is to be submitted no later than 10 days before the scheduled RPD hearing. In this case, the application to enter the affidavits into evidence and request a resumption of the oral hearing at the member's discretion was made after the January 4, 2016 hearing. Under a RPD rule 44 application, it is envisaged that the witnesses would provide oral testimony but in this case written affidavits presenting the affiants' evidence that had been presented to the RPD. [29] In his submissions, counsel also refers to case law where the RPD failed to consider an application made pursuant to the RPD rules. However, this is clearly not the case here where the RPD member had addressed the application explicitly in her decision of March 2, 2016. [30] As noted in her reasons, the RPD member did allow the evidence presented in the three affidavits and accepted that affiant Y.K. personally knew the appellant as someone he had met in a shop in Eritrea in 2004. The RPD member also stated that she accepts the evidence shows on a balance of probabilities that the claimant was physically in her father's shop in XXXX in 2004. She further noted however, that even if we assume that she was in her father's shop in 2004 in Eritrea that does not show what her name or her citizenship is. The RPD member found that this is insufficient evidence on which to base a finding of identity and citizenship. I find that based on the evidence the RPD member did not commit any error coming to this conclusion. Based on my independent analysis of this affidavit, I also find that this affidavit constitutes insufficient evidence on which to base a finding of identity and citizenship. [31] The other two applicants stated that while they had not met the appellant personally, they did know the appellant's family members in Eritrea and recognized her accent. The RPD member found that these affidavits do not provide sufficient evidence on which to base a finding of identity or citizenship. I find that based on the evidence the RPD member did not commit any error coming to this conclusion. Based on my independent analysis of this affidavit, I also find that these affidavits constitute insufficient evidence on which to base a finding of identity and citizenship. [32] In his submissions, counsel appeared to be suggesting that close to the conclusion of the RPD hearing, a resumption of the oral hearing was discussed at length. However, based on my assessment of the evidence, this was only in the context of an extension of time being granted to allow the Minister to submit additional evidence being a search of the appellant's biometric data and a document analysis of the appellant's tertiary documents (certificate of baptism and the school report). The appellant's submission of the affidavits was made after the RPD hearing. As noted above, the document analysis concluded that the baptismal certificate was likely counterfeit and that results were inconclusive as to the school report. I note that in former counsel's written submissions dated March 14, 2016, limited comments were made on the document analysis but no request was made to allow resumption of the hearing for any testimony by the appellant as to these tertiary documents and the document analysis report. [33] Based on the circumstances outlined above and my independent assessment of the evidence before the RAD, I find that the RPD member did not commit any error in not allowing a resumption of the oral hearing to question the affiants. The RPD member allowed the evidence in the affidavits and did not have any credibility concern in connection with this evidence that would be addressed in the context of an oral hearing. I find there has been no error in law or breach of natural justice in the RPD member's decision not order to resumption oral hearing to examine the affiants. [34] Second ground of appeal: counsel submits that the RPD member erred in law in concluding that because the appellant was not able to provide certain details with respect to her travel to Canada, there was an evidentiary basis for finding the appellant's testimony not to be credible. Counsel submits that the RPD member failed to consider the reasons offered by the appellant as to why she could not provide a detailed account of her travel to Canada. Counsel further submits that the RPD member erred in making a negative credibility finding as to the appellant's explanations as to how she arrived in Canada. [35] In reviewing the RPD hearing transcript, when questioned by the RPD member, by the Minister and by counsel at the RPD, the appellant did not provide any details as to where she arrived in Canada and how she traveled to Vancouver. In her testimony, the appellant stated that all arrangements were within the control of the smuggler and that due to jet lag she was sleeping and inattentive to her travel details. In her reasons, the RPD member found this explanation "simply not credible." I have reviewed the transcript of the RPD hearing. I find the appellant's testimony as to her movements in Canada to be vague and evasive. I find that it was open to the RPD member to make a negative inference as to the appellant's credibility based on her testimony as to her movements after arriving in Canada. [36] Counsel submits that the RPD member failed to analyze the appellant's specific explanation that she slept through most of this journey. The RPD hearing transcript indicates that when questioned as to how she arrived in Canada and traveled to Vancouver, the appellant could provide no details as she was suffering from jet lag and mostly slept during her journey. As noted above, the RPD member found that was simply not credible that the appellant could not recall any details of her experience after arriving in Canada. While the RPD member did not make any detailed analysis of the appellant's explanation, I find that it was open to the RPD member to make a negative inference as to the appellant's credibility given the complete absence of any details in the appellant's testimony. [37] However, I also note that this credibility finding was not a determinative factor in this RPD decision. Even if the appellant was in a position to provide substantial details as to her experience after arriving in Canada, the determinative factor in the RPD's decision was the appellant's failure to provide acceptable evidence of her identity and nationality. [38] Third ground of appeal: counsel submits that the RPD member presented inadequate reasons in repeating the document analyst's conclusions as to the authenticity of the school report submitted into evidence at the RPD hearing." The document analysis of the school report was inconclusive. The appellant has not made any challenge in this appeal to the document analysis indicating that the national identity card was "counterfeit" and that the baptismal certificate was "probably counterfeit." [39] At the hearing, the RPD hearing transcript indicates that the appellant could not provide any explanation as to how the document analysis could come to the conclusion that the national identity card was a false document. Former counsel at the RPD did not further examine the appellant on this question during the RPD hearing. In her written submissions, counsel at the RPD submitted that the appellant would not have had any knowledge that the national identity document was fraudulent and that the document specialist did not say she was comparing the national identity card to a specimen from the same year. Former counsel at the RPD submitted that these documents were legally obtained by the appellant and that the document analysis was inadequate as it only addressed the printing process that was used on the seals in documents of this type. [40] In her reasons, the RPD member noted that the document analysis report was unchallenged by any other evidence and found that this did not constitute a reasonable explanation which the RPD member could rely on as credible and trustworthy evidence for the absence of genuine primary identity documents. From reading the RPD member's reasons, it is apparent that she gave little weight to the baptismal certificate and the school record, noting that they were not primary identity documents. The national identity card proffered by the appellant as proof of her identity was found to be counterfeit and the RPD member was not satisfied as to the appellant's failure to provide any explanation of how this document could be counterfeit. Given these circumstances, I find that it was open to the RPD member to assign little weight to the tertiary documents provided by the appellant. [41] Fourth ground of appeal: The RPD member erred in making a negative credibility finding as to the appellant's explanations as to how she had traveled to Canada and why she had not made an asylum claim in Germany. In connection with this, counsel also submits that the RPD member erred in stating that the appellant in the narrative of her BOC had talked repeatedly about her wish to go to Europe. Counsel submits that the appellant only referred once in her narrative to Europe and that all details of her travel including where to seek asylum were under the control of the smuggler who ultimately brought her to Canada. [42] I note that in her BOC the appellant had referred to Europe in paragraphs 14, 15 and 17 of her narrative. At the hearing, the appellant testified that all details of her travel were under control of the smugglers and then she had no opportunity to claim asylum in Germany and she was only there for a short period of time and indeed only aware she was in Germany the day she was being taken to Canada. While the RPD member did not make specific a negative credibility inference as to the appellant's travels before reaching Canada and failure to make an asylum claim in Germany, it is apparent that these factors contributed to her overall negative credibility assessment of the appellant. However, as noted above this credibility finding was not a determinative factor in this RPD decision. The determinative factor in the RPD's decision was the appellant's failure to provide acceptable evidence of her identity and nationality. The appellant had proffered identity documents found to be counterfeit and was not able to provide a satisfactory explanation to the RPD member that would counter the document analysis report. Given these circumstances, it was open to the RPD member to make an overall negative credibility assessment of the appellant and I find that the RPD member committed no error in this respect. [43] Based on my independent assessment of the evidence, I find that the appellant is neither a Convention refugee nor a person in need of protection as detailed in my reasons above. REMEDY [44] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the "Act or IRPA"),12 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. This appeal is therefore dismissed. (signed) "Douglas Fortney" April 6, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 110 (3) - Procedure Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110 (4) - Evidence that may be presented On appeal, the person who is the subject of the appeal may 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. Hearing 110(6) - Hearing The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Huruglica, ibid, paras. 59-66. 5 Huruglica, ibid, paras. 78-79. 6 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. 7 Huruglica, supra, para. 69. 8 Huruglica, supra, para. 70. 9 RPD Record, pp. 235-236. 10 Exhibit 1. 11 44 (1) Providing witness information - If a party wants to call a witness, the party must provide the following witness information in writing to the other party, if any, and to the Division: (a) the witness's contact information; (b) a brief statement of the purpose and substance of the witness's testimony or, in the case of an expert witness, the expert witness's brief signed summary of the testimony to be given; (c) the time needed for the witness's testimony; (d) the party's relationship to the witness; (e) in the case of an expert witness, a description of the expert witness's qualifications; and (f) whether the party wants the witness to testify by means of live telecommunication. 12 Immigration and Refugee Protection Act, S.C. 2001, c. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB6-01621