VB5-02291

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 : VB5-02291/2 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 XXXX XXXX XXXX Appeal considered / heard at Appel instruit à Date of decision January 19, 2016 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) Erica Jean Olmstead Conseil(s) du (de la/des) the subject of the appeal 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"), and XXXX XXXX XXXX (the "minor appellant") appeal the July 22, 2015 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on November 4, 2014 with a Notice of Decision1 being sent to the appellant on July 23, 2015. The RPD found that the appellants are neither Convention2 refugees nor persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA" or the "Act").3 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") orders that the determination of the RPD, that the appellants are neither Convention refugees nor persons in need of protection, be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member. The appeal is allowed. BACKGROUND [3] Counsel for the appellants before the RAD is different than the one they had at the RPD. The Minister has intervened before the RPD through documents only, but has not intervened for this RAD appeal. [4] The appellants do seek to present "new" evidence to the RAD pursuant to subsection 110(4) of IRPA. BASIS OF CLAIM [5] According to the allegations set out in the appellant's Basis of Claim form (BOC),4 the appellants are from Eritrea. The appellant's husband was a member of the Eritrean military force. The last time the appellant saw her husband was on XXXX XXXX, 2013 when he came to visit. He told her he would have to leave the country as he was planning on deserting the army. He left on XXXX XXXX, 2014. [6] In the middle of XXXX 2014, several security officers came to the house and asked for him. The appellant told them she had not seen him since XXXX XXXX, 2014. The appellant and the minor appellant were taken to prison in XXXX. The minor appellant was released after a few hours and the appellant was released after three days. The appellant was asked to find out her husband's whereabouts; otherwise she would be arrested again. [7] With the assistance of the appellant's father, her brother in Norway, and her aunt in Israel, the appellant and the minor appellant were able to flee Eritrea. They arrived in Canada on XXXX XXXX XXXX 2014 and made claims for refugee protection shortly after. [8] The RPD's reasons stated that the appellants' case for refugee protection was rejected on the basis that they did not, on a balance of probabilities, establish their identities as nationals of Eritrea. GROUNDS OF APPEAL [9] The appellant's submissions as to the grounds of this appeal can be summarized as follows:5 * Did the RPD Member make unreasonable credibility findings based on a trivial and microscopic examination of the evidence and discounted plausible explanations given by the appellant? * Did the RPD Member ignore and discount relevant evidence? REMEDY SOUGHT [10] The appellant has requested6 that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a determination that the appellants are Convention refugees or persons in need of protection. Alternatively, the appellant requests, under paragraph 111(1)(c) of the Act, that the RAD allow the appeal and refer the matter to the RPD for redetermination by a differently constituted Panel. ROLE OF THE RAD [11] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [12] RAD, being a new division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court (the "Court") cases that have differed in their approach of what standards should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir,7 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing decisions of administrative tribunals: reasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [13] The Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the Court cases: Iyamuremye,8 Eng,9 Alvarez,10 Huruglica,11 Njeukam,12 Yetna,13 Wahgmo14 and Alyafi,15 among others. [14] The Court in Iyamuremye, addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law, is reasonableness, and the appropriate standard of review for questions of law is correctness. That said, the Court finds that in assessing the reasonableness of the decision, the RAD should at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.16 [15] In Alvarez, Justice Shore said that: "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."17 Furthermore, Justice Shore stated that: . . . when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error.18 Justice Shore also said in Alvarez that: "the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error." 19 [16] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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." Justice Phelan also states that: ". . . that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable."20 [17] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said, "must review all aspects of the RPD's decision and come to an independent assessment. . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore: 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 a "palpable and overriding error."21 [18] The appellant submits22 that the "Federal Court has found that in reviewing a decision by the RPD, it is not appropriate for the RAD to give deference or apply the reasonableness standard of review application on judicial review. Rather, the RAD must conduct an independent assessment of the claim on appeal and the evidence which supports it." The appellant cites Federal Court cases Huruglica23, Sow24, Bahta25, Khachatourian26, and Shukurov27 in which independent assessment of the evidence has been stressed by the Court. [19] The Huruglica decision is the most thorough of all the cases thus far, and the first one where the Court has certified a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [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.28 [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."29 [20] Following the Huruglica decision, many other cases have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. There is another line of authority that suggests that the standard that RAD should apply is that of "palpable and overriding error" (Eng30, Alvarez31, Spasoja32). In Alyafi33, Djoussou34, and Siliya35) the Court notes that there are two competing approaches in the Court's jurisprudence and that the RAD Member is free to decide which approach to follow. [21] In Kanga, the Court held: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.36 [22] In this appeal, and taking into consideration the Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellants are Convention refugees or persons in need of protection, while giving a certain deference to the RPD's findings regarding the appellants credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [23] The appellant submits37 that the RPD Member made unreasonable or erroneous credibility findings. The appellant points out many areas where she finds the RPD Member erred in his credibility findings in coming to the final determination. I am of the opinion that I do not need to address them all given that I am setting aside the determination of the RPD and that the matter be returned to the RPD for redetermination by a different RPD Member. I have conducted an independent assessment of all the evidence before the RPD and the RAD, including listening to the Compact Disk (CD)38 of the RPD oral hearing in its entirety. [24] The appellant submits39 that: The Member reached his decision that the claimant was not credible and that she had not proven her identity as an Eritrean national or her marriage to the husband, based on a microscopic examination of the evidence in which he found three trivial inconsistencies. This included a perceived inconsistent use of the claimant's two family names, a perceived contradiction in the claimant's inability to identify her street address in Eritrea until pressed to do so, and the claimants assertion that she was not in communication with her daughter's biological father despite Facebook printouts which showed comments on each other's photos. The Member unreasonably rejected the plausible explanations offered by the claimant for these perceived inconsistencies. [25] The RPD Member notes the following in his decision: 40 Also subsequent to the hearing, counsel for the claimants made an application for the filing of post-hearing evidence, by way of correspondence sent to the Board on November 13, November 18 and November 21, 2014. The documents consist of a school diploma, a medical record, and work records. The Minister has not taken a position with respect to the inclusion of these documents as evidence. As noted, identity is the main issue in this claim, and accordingly the documents provided by counsel are also highly relevant. These documents are accepted as evidence, and marked as Exhibits 9, 10 and 11 respectively. [26] The RPD further finds:41 The Panel did not find the principal claimant to be a credible witness. There were a number of internal inconsistencies within her oral testimony, contradictions between her oral testimony and the documentary evidence on file, and a lack of corroborative documentation (particularly with respect to her identity). Furthermore, the Panel found the claimant's testimony to be vague, evasive, and lacking in detail. The claimants initially provided one document each in support of their identity. The principal claimant provided an Eritrean identity card issued by the Provisional Government of Eritrea (E.P.L.F.) that lists her name as "XXXX XXXX XXXX", her date of birth as simply "1984", her place of birth as "Adi Beyani", and her occupation as "student". The card bears the principal claimant's photograph, and was issued at Mendefera on XXXX XXXX, 2006. The only identification provided for the minor claimant is a Baptism Certificate issued by the XXXX XXXX XXXX XXXX. The document was issued on XXXX XXXX, 2009, and has been written in both English and Amharic. It lists the minor claimant's baptismal name as "XXXX", her name as "XXXX XXXX", her father's name as "XXXX XXXX", her mother as "XXXX XXXX", her nationality as Eritrean, and her date of birth as XXXX XXXX, 2009. The document has been signed by the minor claimant's father. [27] The RPD Member finds the appellant to be not credible in regards to the inconsistencies in the appellant's testimony surrounding her identity documents and evidence. The appellant submits that "the Member also stopped short after formulating his negative credibility assessment and wholly failed to discharge his duty to consider the remaining evidence."42 The appellant further submits that: The Federal Court43 has further stated that the RPD must be consistent in the treatment of various aspect of the claimant's testimony and that the Panel should not use evidence that was disbelieved as a premise or factual basis to undermine other aspects of the claimant's testimony. The duty to assess all the evidence before the Member remains." [28] The RPD Member finds: The principal claimant did not provide any other identity documents for herself other than the Eritrean identity card. She testified that at one time she had a birth certificate, but she was required to submit the certificate to the Eritrean authorities in order to be provided with a marriage certificate. However, the principal claimant was not in possession of a marriage certificate either. The Panel found the principal claimant's testimony vague and evasive on this issue, and the Panel does not find the principal claimant's assertion that documents such as a birth certificate and marriage certificate are only temporarily issued to Eritrean nationals by the government of that country plausible, when considered in conjunction with the Panel's review of the documentary evidence.44 The Panel notes evidence in the National Documentation Package that indicates that fraudulent identity cards are "common" and "prevalent" in Eritrea, and that "there is a market for fraudulent ID cards within Eritrea, in which disgruntled or corrupt officials issue real documents by questionable means."45 [29] I have reviewed the country documents on Eritrea relating to identity documents.46 I have specifically reviewed the country documents the RPD Member refers to in his decision. However, I do not find the RPD Member has adequately explained the connection between these country reports and the evidence that was before him. I find the RPD Member's explanation is vague; thus, the RPD Member's reasoning of why he rejected the appellant's Eritrean identity card is not clearly explained in the reasons. There is no persuasive evidence put forth by the RPD Member in his decision or in his questioning to support that the identity card is fraudulent. Where there is insufficient evidence to call into question the authenticity of a document it is not open to the Board to conclude it is not genuine.47 The Court has held that documents issued by a foreign government are presumed to be authentic,48 unless evidence (external to the document) is produced to prove otherwise, or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document into question.49 Where there is conflicting evidence, the RPD is entitled to choose the documentary evidence that it prefers, provided that it addresses the contradictory documents and explains its preference for the evidence on which it relies. In this case the RPD did not adequately provide any explanations as to why it found the identity card before it to be fraudulent. [30] Having accepted other identity documents at a later date, the RPD Member finds:50 The Panel has reviewed the post-hearing evidence filed by the claimants. The documents provided are not identity documents, but rather consist of a medical record, a course certificate, and a work certificate. The authenticities of these documents are impossible to verify by the Board. The documents also fail to establish the claimants as being physically present in Eritrea during the key time periods relevant to these claims. The Panel assigns insufficient weight to these documents as to allow them to overcome the concerns with the claimants' identities noted above. [31] The appellant submits that: Based on a full consideration of the evidence, it is clear that the Board reached its conclusion that XXXX had not proven her identity as an Eritrean National on a balance of probabilities, erroneously. Considering all the evidence that was previously submitted, including her National identity document, a medical record of her daughter's birth, a course certificate and a work certificate, all from Eritrea, a letter from an Eritrean Canadian church, a copy of her brother's Norwegian passport confirming his identity as an Eritrean National, as well as the fact that she was fluent in the Tigrinya language, and the fact that research into her status in four other countries failed to produce any information to the contrary, Ms. XXXX had in fact proven her identity as an Eritrean National. 51 [32] I note that the RPD Member has not provided adequate reasons directly relating to why he does not give weight to the post disclosure. The Court has determined that: Where the claimant provides personal documentary evidence or medical reports, specific to and corroborative of his claim, it is not sufficient to simply make a blanket statement, without explanation, that no probative value was assigned to this evidence because of a general lack of credibility on the part of the claimant.52 The RPD Member did not question the appellants on these documents and has not adequately provided fulsome reasons or explanations for why these documents are not being considered in his determination on identity. [33] I find that the RPD Member failed to reasonably assess the evidence before him. Furthermore, I find the RPD Member's continued reliance on using other credibility findings to assess the overall credibility of the identity documents is an error. He has not adequately established how all the negative credibility findings are linked to come to the final determination in finding the appellants not credible in establishing their identities. [34] I find the appellant has accurately identified errors in the RPD Member's assessment of the claim. I considered whether I could substitute the RPD determination by doing an independent assessment of the claim (as directed by Huruglica), but I find I cannot do so as the majority of the RPD hearing focused on identity alone and I do not find there is sufficient evidence for me to make a final determination. Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the person who is the subject of the appeal. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(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. [35] When read together, subsections 110(3), 110(4), and 110(6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence.53 In this appeal, new evidence was submitted by the appellants relating to their identities. However, I note that this evidence will be available for the redetermination process by the RPD and will allow for a fulsome evaluation of the claim. Therefore, I will not make a decision on the 'new evidence' and refer the matter back to the RPD for redetermination. REMEDY [36] For all these reasons, I set aside the determination of the RPD and refer the matter of the claim of XXXX XXXX XXXX and XXXX XXXX XXXX to the RPD for redetermination by a differently constituted Panel as per paragraph 111(1)(c) of the IRPA. (signed) Rena Dhir Rena Dhir January 19, 2016 Date 1 Exhibit 3, Refugee Protection Division Record (RPDR). 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 4 Exhibit 3, RPDR, Basis of Claim (BOC). 5 Exhibit 2, Appellant's Record (AR). 6 Exhibit 2, AR, Memorandum. 7 Dunsmuir v. New Brunswick, 2008 SCC 9. 8 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 9 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 11 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 12 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859. 13 Yetna v. Canada (Minister of Citizenship and Immigration), 2014 CF 858. 14 Wahgmo v. Canada (Minister of Citizenship and Immigration), 2014 FC 923. 15 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 16 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494, para. 41. 17 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 27. 18 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 28. 19 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 33. 20 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 37. 21 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 55. 22 Exhibit 2, AR, Memorandum. 23 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 24 Sow v. Canada (MCI), 2015 FC 295. 25 Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245. 26 Khachatourian v. Canada (MCI), 2015 FC 182. 27 Shukurov v. Canada (Citizenship and Immigration), 2015 FC 949. 28 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 54. 29 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 55. 30 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 31 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 32 Spasoja, Francisca v. Canada (Citizenship and Immigration), 2014 FC 913. 33 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 34 Djoussou v. Canada (Citizenship and Immigration), 2014 FC 1080. 35 Siliya v. Canada (Citizenship and Immigration), 2014 FC 120. 36 Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482. 37 Exhibit 2, AR, Memorandum. 38 Exhibit 3, RPDR, Compact Disk (CD). 39 Exhibit 2, AR, Memorandum. 40 Exhibit 3, RPDR, Member's Decision. 41 Exhibit 3, RPDR, Member's Decision. 42 Exhibit 2, AR, Memorandum. 43 Hilo v. Canada (Minister of Employment & Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199. 44 Exhibit 3, RPDR, National Documentation Package (NDP), Eritrea, September 30, 2014, item 3.6. 45 Exhibit 3, NDP, Item 3.3. 46 Exhibit 3, RPDR, NDP Package - Eritrea, September 30, 2014. 47 Gyimah, Joycelyn v. M.C.I. (F.C.T.D., no. IMM-1011-93), Gibson, November 10, 1995; Kashif, Zakria Mohammed v. M.C.I. (F.C.T.D., no. IMM-760-02), Pinard, February 18, 2003, 2003 FCT 179; Hadjalaran, Zyulhan Ismail v. M.C.I. (F.C.T.D., no. IMM-6134-99), Campbell, July 18, 2000. 48 Warsame, Mohamed Dirie v. M.E.I. (F.C.T.D., no. A-758-92), Nadon, November 15, 1993. 49 Mpoli, Noellie Ngoya v. M.C.I. (F.C.T.D., no. IMM-2098-02), Nol, April 3, 2003, 2003 FCT 398. 50 Exhibit 3, RPDR, Member's Decision. 51 Exhibit 2, AR, Memorandum. 52 Lahpai, Aung Gam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 88. 53 Subsection 110(6) of the Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-02291/2