TB8-08800

RAD File / Dossier de la SAR : TB8-08800 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 30, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Cemal Acikgoz Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant") alleges to be a citizen of Tanzania. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is dismissed. BACKGROUND AND ALLEGATIONS [3] The Appellant alleges to be a citizen of Tanzania. The Appellant's claim was based on his membership of a Particular Social Group (PSG) as a bisexual man. [4] The Minister of Immigration, Refugees and Citizenship Canada (the "Minister") intervened at the RPD stage on the basis that the Appellant had not established his identity. This was due to biometric information coming from the United States (US) and a lack of information in the Integrated Customs Enforcement System (ICES) corroborating that the Appellant entered Canada in the manner alleged. [5] The RPD rejected the Appellant's claim on the basis he had not established his identity. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [6] In support of this appeal, the Appellant proposed the admission of affidavits and associated identity documents from family members and friends, and a request for an oral hearing for at least some of them to testify about the Appellant's identity. [7] S.110(4) of the Immigration and Refugee Protection Act (IRPA)1 provides that the Appellants may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellants.3 [8] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.4 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. All documents rejected [9] The Appellant has stated that the proposed documents were new and probative. However, the Appellant has not explained why none of these documents were available before the RPD decision was rendered. This is required under Rule 3(3)(g) of the RPD Rules. [10] I note that there is also nothing in any of the documents that could indicate why none of the affiants could provide their statements or provide oral testimony before the RPD decision was rendered. [11] In examining these documents, I can find nothing obvious that indicates that the evidence post-dates the RPD decision, or was not available ahead of the RPD decision. I note that the Appellant, with the benefit of paid counsel, knew that identity was an issue. It therefore cannot be said that the Appellant could not reasonably have been expected in the circumstances to have presented the evidence at the time of the RPD Rejection. [12] I therefore find that none of the proposed documents meet the requirements of s.110(4) of the IRPA and are all rejected. NO ORAL HEARING [13] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.5 [14] As no new evidence has been accepted, the requirements of subsection 110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [15] The Appellant submitted a Memorandum of Appeal. However, the Memorandum contained only two basic things: a. A recitation of the general rules and caselaw governing RAD appeals; and, b. An application for new evidence and a RAD oral appeal, which was already rejected above. [16] The Appellant did not advance any grounds of appeal. It should be remembered that RAD appeals are an Appellant driven process. [17] I find that the determinative issues in this appeal are identity and credibility stemming from the identity evidence. RAD ANALYSIS [18] I have conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellant's Memorandum,6 the RPD Decision,7 and the Appellant's Basis of Claim (BOC) form.8 Appellant has not established his identity [19] The Appellant has made no arguments regarding how the RPD might have erred in the course of assessing the Appellant's case. As stated earlier, RAD appeals are an Appellant driven process. It is not for me to make out the Appellant's case for him. [20] I am required to conduct an independent analysis of the evidence available. [21] In the course of conducting my independent analysis, I found the Minister's evidence including the biometrics showing a completely different identity matching the Appellant's fingerprints9 and ICES record confirming the same10 to be compelling. [22] I concur with the RPD's analysis that the Appellant's explanation that he appropriated his US roommate's identity is not a credible explanation. The fact that the Appellant never mentioned his time in the US is also problematic. When confronted with this, the Appellant stated he was in the US between 2004 and 2008. However, this was inconsistent with the fact his fingerprints were taken in 2000. This was but one example of the Appellant's constantly evolving testimony. [23] I also concur with the RPD's findings that the Tanzanian driver's licence11 is not reliable, due to the stamps indicating for which types of vehicles the Appellant was licensed to drive did not match those he testified he could drive. [24] I also concur with the RPD's finding that the Appellant's membership card of the Civic United Front12 is also not reliable, due to being issued in 2007, when the Appellant was supposed to have been in the US. [25] Overall, in reviewing the Appellant's testimony, I found the Appellant to be completely unreliable. His testimony constantly evolved when challenged multiple times, and the explanations were never credible. [26] In reviewing the RPD's decision, along with the evidence available, I find the RPD did not err in finding the Appellant had not established his personal identity. CONCLUSION [27] After conducting my independent analysis, and remembering that the Appellant did not advance any substantive grounds of appeal, I find the RPD did not err in its findings and decision. Its decision is upheld. [28] Pursuant to s.111(1)(a) of the IRPA, the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection is confirmed. [29] The appeal is dismissed. (Signed) T. Card T. Card 30 July 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 3 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 5 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 6 Exhibit P-2, Appellant's Record, Pages 81-89. 7 Exhibit RPD-1, RPD Record, RPD Decision, Pages 3-12. 8 Ibid., Exhibit 2, Pages 13-25. 9 Ibid., Exhibit 5, Pages 62-64. 10 Ibid., Page 65. 11 Ibid., Exhibit 7, Pages 82-84. 12 Ibid., Exhibit 6, Pages 70-71. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-08800 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français