TB5-03009

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 : TB5-03009 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 15, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru 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 XXXX (Appellant), a citizen of Cameroon, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Refugee Appeal Division (RAD) notes that in his appeal the Appellant did not provide submissions on what determination is being sought. Nevertheless, the RAD assumes that the Appellant is requesting that the RAD set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant has submitted new evidence in support of his appeal The Appellant requests that a hearing be held under section 110(6) of the IRPA. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1) (c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant was born in the southwest region of Cameroon. On XXXX XXXX XXXX XXXX he became a member of the Southern Cameroons National Council (SCNC). He was active in attending meetings and distributing SCNC paraphernalia. [4] He was first arrested by the police at XXXX on XXXX XXXX, 2011 following an SCNC meeting. During a three day detention the Appellant was interrogated, and beaten. Once released he was hospitalized for five days as a result of the beatings. He then discreetly continued his SCNC activities. [5] On XXXX XXXX, 2013 the Appellant was arrested while on his way to an SCNC celebration. He was detained at XXXX Central Police station for eight days during which time he was interrogated and beaten. Upon his release, the Appellant was required to sign a document renouncing his SCNC membership. However, the Appellant was rearrested on XXXX XXXX, 2014 as a result of partaking in SCNC activities. During torture in detention the Appellant suffered injuries that resulted in hospitalization. On XXXX XXXX, 2014 he was able to escape from the hospital through bribery. He then escaped to the village of Mator where he remained until arrangements were made through an agent for him to leave the country. [6] The Appellant made a claim for refugee protection on November 12, 2014. [7] The Appellant had a refugee determination hearing on February 5, 2015. An oral decision was provided the same day. The RPD found that the Appellant had not established his identity. Individual findings were as follows: * The Appellant's birth certificate had a number of irregularities which caused the RPD member to find that the document had been obtained fraudulently. * The Appellant's driver's licence was of extremely poor quality and contained various irregularities which caused the member to find that the document had been obtained fraudulently. * The SCNC card was not issued by the state and the RPD member, thus, concluded that the document does not suffice to establish the Appellant's identity. * Medico-legal certificates failed to mention the Appellant's date of birth or his nationality and thus, did not assist in establishing the Appellant's identity. The member also could not give weight to these documents because of credibility concerns regarding the identity documents mentioned above. [8] The RAD notes that according to the recording of the hearing, the RPD member asked the Appellant if he had identity documents for his children. The Appellant responded in the negative. Prior to counsel providing his oral submissions, the Appellant made the request to be allowed to obtain the birth certificates of the Appellant's children and provide them post-hearing. The RPD member refused the request when she reminded the counsel of the rule which requires documents to be submitted to the Board ten days prior to the hearing. The RAD understands this to be Rule 34(3)(a) of the RPD Rules. [9] Appeal pleadings were received on April 17, 2015. In the appeal, counsel argued that the RPD erred in its assessment of the Appellant's credibility with regards to the Appellant's identity. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [10] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Birth Certificates of the Appellant's Children [11] The Appellant pleads that the RPD member's denial of his request to submit his children's birth certificates post-hearing to be a denial of natural justice and a breach of procedural fairness. The RAD agrees. As stated above, according to the recording of the hearing, the RPD refused the request under Rule 34(3)(a) of the RPD Rules. The member appears not to have considered the relevant factors under Rule 43 (3) in deciding the request of the Applicant's counsel. Rule 43(3) states the following. In deciding the application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the proceedings; and (c) with reasonable effort, could have provided the document as required under rule 34. [12] In his appeal, the Appellant explains that it was not until he became aware at the hearing before the RPD that the personal identity documents he presented were insufficient to establish his identity that he appreciated the need for documents such as his children's birth certificates, as suggested by the RPD member. The RAD finds that the Appellant's argument has merit. Although the two birth certificates pre-date the hearing before the RPD, the RAD finds it reasonable that the Appellant believed that two state issued documents, his birth certificate and driver's licence, would be sufficient to establish his identity. The RAD refers to recent jurisprudence in the case of Bahta, in which the Honourable Madam Justice Simpson found that it was unreasonable to reject the Letter because the information it contained pre-dated the Board's hearing. The salient point is that it was not available to the Applicant.1 [13] The RAD has also considered the recent decision in Singh in which the Honourable Madam Justice Gagné found When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.2 [14] The RAD has examined the original two birth certificates of the Appellant's children. Information found on the birth certificate of the Appellant's son, XXXX XXXX XXXX, date of birth XXXX XXXX, 2012,3 and the birth certificate of his daughter, XXXX XXXX XXXX, date of birth XXXX XXXX, 20144 is consistent with information the Appellant provided in his Basis of Claim (BOC) form5. Each certificate was issued by the Republic of Cameroon in the year of the child's birth. The Appellant is listed on each certificate as the father of the child and the Appellant's place of birth is listed as XXXX which is consistent with information found in the Appellant's BOC6. The Appellant's occupation is listed on each certificate as XXXX XXXX which is consistent with information the Appellant provided during his hearing before the RPD and with information he provided at the port-of-entry (POE)7. The Appellant provided the envelope, dated XXXX XXXX, 2015, in which the documents were sent as evidence of their provenance. The RAD finds nothing of the face of either certificate to make it question the authenticity of each certificate. The RAD, thus, gives significant weight to the birth certificates. Educational documents [15] The Appellant provided his General Certificate of Education Ordinary Level and Advanced Level and a transcript from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.8 The Appellant argues that although the certificates were in existence at the time of his hearing before the RPD, due to the circumstances of his departure from Cameroon he could not bring them with him to Canada or produce them shortly thereafter for his hearing because his family was unable to locate them until recently. The Appellant explains in his appeal that after his hearing before the RPD his father obtained a transcript of his marks from the XXXX. Keeping in mind the decision in Bahta,9 referred to above, the RAD accepts the Appellant's explanation as reasonable. [16] The RAD has examined the original certificates and transcript. The RAD notes that the certificates contain the Appellant's birthdate of XXXX XXXX, 1989 which is consistent with information he provided at the POE10 and in his BOC11 as well as at his oral hearing before the RPD. The dates found in the certificates in which the Appellant completed his Ordinary Level and Advanced Level are consistent with information he provided at the POE12. The transcript of marks was issued by the XXXX which is consistent with the name of the educational institution the Appellant listed at the POE13. The RAD finds nothing on the face of these documents to make it question their authenticity. The documents contain the Appellant's name and corroborate information he provided at the POE with regards to his education in Cameroon. The RAD, therefore, assigns significant weight to these documents. Deed [17] The Appellant provided a Deed of Gift Inter Vivos over XXXX XXXX XXXX as evidence of his identity.14 The Appellant argues that he did not know or ought to have known at the time of his hearing that this document has the potential of establishing his identity as he believed the documents he provided at his hearing were sufficient. The RAD accepts the Appellant's argument. [18] The RAD has examined the original document. The document indicates that on XXXX XXXX, 2010 "XXXX XXXX, an adult male Cameroonian resident" made a gift of his XXXX XXXX to the Appellant, "an adult male Cameroonian XXXX".15 XXXX XXXX is listed as the Appellant's father in the Appellant's BOC16. The document was prepared by XXXX XXXX XXXX XXXX Law Firm and the firm's stamp is found on each page of the deed. The deed was witnessed. The Appellant's signature is listed as that of the "donee". While the RAD is not a handwriting expert, it notes that the Appellant's signature on the deed is remarkably similar to his signature found on his BOC17. The RAD finds nothing on the face of the deed to make it doubt its authenticity. The deed confirms the name of the Appellant and his father and also the Appellant's occupation as a cocoa farmer in Cameroon as he testified at his hearing before the RPD. The RAD, therefore, gives substantial weight to this document. ROLE OF THE RAD [19] The Federal Court decision in Huruglica18 has provided the RAD with guidance with respect to the role of the RAD. In this decision, Justice Phelan states: 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. 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." [20] Accordingly, the RAD has applied the reasoning as set out in Huruglica19 in its decision. ANALYSIS OF THE EVIDENCE Did the RPD member err in her identity and credibility determinations? The Appellant's Birth Certificate [21] According to the POE notes, the Appellant provided his birth certificate when he made his claim for protection and the certificate was seized by Citizenship and Immigration Canada (CIC) at that time20. According to the recording of the hearing, the member of the RPD ordered the birth certificate from CIC and examined the original at the hearing. [22] In her decision, the RPD member found that the birth certificate appeared to have been stained with a beige liquid. She also found that the red-coloured stamps on the certificate appeared to have been made over a black-coloured stamp in order to hide the black-coloured stamp. The RPD member concluded that the document was likely produced using a regular birth certificate which was scanned and printed and then the Appellant's personal details, as well as the signature of the "mayor", added afterwards. The RPD member made the final conclusion that the document was obtained fraudulently and she gave it no weight. [23] In his appeal the Appellant argues that it is mere speculation on the part of the panel to conclude that a document issued by a foreign authority is not genuine because it does not look like what the panel considers to be genuine. The Appellant argues further that the panel did not indicate that she had specialized knowledge as to what features one is to look for in a typical birth certificate from Cameroon. The Appellant pleads that there is no information contained in the National Documentation Package (NDP)21 that confirms what birth certificates issued in Cameroon look like and concludes that the panel, therefore, erred in law in her credibility finding related to the authenticity of the birth certificate. [24] The RAD, as did the RPD member, requested the original birth certificate from Citizenship and Immigration Canada (CIC). The RAD examined the document and agrees with the RPD's findings. The RAD had the benefit of the two original birth certificates of the Appellant's children to use for comparison. The RAD observed that the document in question appeared to be a photocopied or scanned version of a birth certificate. The RAD notes that there are two red stamps on each of the birth certificates issued in the children's names. However, observed under the two red stamps found on the Appellant's birth certificate are identical black stamps which strongly suggest photocopying or scanning. The birth certificates of the children are printed on white paper. The birth certificate issued in the Appellant's name has a mottled beige effect and appears to have been soaked in a liquid such as tea or coffee, perhaps to obscure the evidence of a copy. White paper is evident on one very small portion of the certificate, on the upper left side, where the paper remained untouched by the liquid. While the RAD finds that the Appellant's credibility is compromised for having submitted a false document to Canadian authorities, nonetheless, the RAD finds that the Appellant submitted sufficient evidence, analyzed above under 'new evidence', to establish his identity on a balance of probabilities. The Appellant's Driver's Licence [25] In her oral decision, the RPD member observed that the driver's licence was folded in three and that the outline of the form did not match the size of the paper. She found that the folds on the document did not match the form which is separated in three sections on the inside. The member observed that the Appellant's photograph had been glued to the document, not laminated. The RPD member found no security feature on the document except for a red stamp found twice on the inside of the licence. The RPD member found that the extreme poor quality of the documents and the irregularities she observed led her to conclude that the document was obtained fraudulently. The member gave the document no weight. [26] The Appellant argues that the RPD did not indicate any knowledge regarding what a Cameroonian driver's licence looks like or what features are found on a genuine licence. The Appellant argued further that to understand the member's observation of "extreme poor quality" one has to have a basis for comparison which was not provided in this case. The Appellant submits that the RPD member's finding is speculative and, therefore, unreasonable. [27] For the following reasons the RAD finds that the RPD's findings in this case is one it cannot recognize and respect. [28] The RAD has examined the driver's licence and finds nothing on its face to make the RAD conclude that it is not genuine.22 There are two identical stamps from the Ministry of Transportation one of which covers part of a photograph of the Appellant. While the document is rudimentary and not laminated, there is no information in the NDP with regards to the format of a driver's licence issued in Cameroon which could provide a basis for comparison. The RAD appreciates that the NDP provides information regarding the ease with which fraudulent documents, including drivers' licences, may be obtained in Cameroon.23 However, the fact that fraudulent drivers' licences are available does not mean that any given driver's licence is necessarily fraudulent. [29] The RAD, therefore, sets aside the RPD's determination that the Appellant has failed to establish his identity. Other evidence related to the claim [30] For his hearing before the RPD the Appellant provided as evidence to support his claim his SCNC card,24 a letter from his lawyer in Cameroon,25 two affidavits,26 two medical documents,27 an attestation from the SCNC,28 and an Undertaking issued by the Regional Division of the Judicial Police XXXX XXXX XXXX29. The RAD notes that according to the recording of the hearing before the RPD no substantial evidence was taken from the Appellant with regards to the merit of his claim. Therefore, the RAD will leave the assessment of these documents to the newly constituted panel of the RPD. Disposition [31] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the RPD; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [32] The RAD can make the referral described in 111(1)(c) only if it was of the opinion that the decision of 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.30 [33] The RAD is unable to find the Appellant to be a Convention refugee. Although the RPD erred in her decision with the single issue of identity, there is no finding in respect to the Appellant's credibility or the well-foundedness of his fear of persecution in Cameroon. The RAD is, therefore, in no position to make a determination of credibility and the merits of the claim based only on its review of the audio recording of the proceedings and the various documents provided by the Appellant at his hearing before the RPD or provided for his appeal. [34] According to Section 110(6) the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. Since this requirement has not been met, the RAD will not hold an oral hearing. CONCLUSION [35] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason July 15, 2015 Date 1 Bahta, Bethel v. M.C.I. (F.C., no. IMM-5037-13), Simpson, December 19, 2014, 2014 FC 1245 2 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022 , para 55 3 Exhibit P-2, Appellant's Record, p. 51 4 Ibid., p. 52 5 Exhibit RPD-1, RPD's Record, p. 19, questions 5(c) and 5d) 6 Ibid, page 11, line 4 7 Ibid, page 33, question 8 8 Exhibit P-2, Appellant's Record, pp. 53-55 9 Bahta v. M.C.I. (F.C.1245 no. IMM- 5037-13), 2014, Simpson, December 19, 2014 10 Exhibit RPD-1, RPD's Record, p. 32, question 3 11 Ibid, page 10, question 1c) 12 Ibid., page 33, question 7 13 Ibid. 14 Exhibit P-2. Appellant's Record, pp. 57-60 15 Ibid, page 59 16 Exhibit RPD-1,RPD's Record, p.19, question 5(a) 17 Ibid, page 22 18 Huruglica, Bujar v. M.C.I. (F.C.799 no. IMM-6362-13), Phelan, August 22, 2014; 2014 19 Ibid. 20 Exhibit RPD-1, RPD's Record, pages 42-45 21 Ibid., pages 50-67, National Documentation Package (NDP) for Cameroon, (30 April 2014). 22 Ibid., pages 46-47 23 Ibid., pages 50-67, NDP for Cameroon (30 April 2014), item 3.1, Response to Information Request (RIR) CMR104811.E 24 Ibid., pages 48-49 25 Ibid, page 74 26 Ibid., pages 75-76 27 Ibid., pages 77-78 28 Ibid., pages 81-82 29 Ibid., page 86 30 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014)