TB7-21566

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 / Dossier de la SAR : TB7-21566 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 15, 2018 Date de la décision Panel N. Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Pablo Andres Irribarra Valdes Conseil(s) (de la/des) personne(s) 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 XXXX (the Appellant), appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) allow her claim and find that she is a Convention refugee or person in need of protection, or refer the matter back to the RPD for redetermination before a differently constituted panel. [2] The Appellant submits new evidence before the RAD and is requesting a hearing. Background [3] The Appellant's claim was heard by the RPD on August 1, 2017. The RPD allowed for post-hearing disclosure and submissions due August 14, 2017. The Appellant's claim for refugee protection was denied in a written decision on October 2, 2017. [4] The Appellant alleges that she is a lesbian and has been in a secret same-sex relationship for many years. She was also forced by her family to marry a man with whom she has had three children. The Appellant alleges that she was often abused physically, sexually, and emotionally by her husband for many years. The precipitating incident causing her to eventually leave Uganda was when her husband caught her and her same-sex partner having sex. As a result he physically assaulted her, while her partner managed to escape. [5] With the assistance of an agent the Appellant was able to flee Uganda and travel to Canada in XXXX 2017. She made a claim for refugee protection in May 2017. [6] On July 27, 2017 a few days before the RPD hearing, the Minister intervened in this claim on both credibility and program integrity1, providing evidence of the Appellant's positive fingerprint match from the United States (USA) of an application for a US visa by XXXX XXXX XXXX in XXXX 2007. The Appellant amended her Basis of Claim (BOC)2 indicating that she did attempt to flee her abusive marriage in 2007 and had forgotten that she attempted to obtain a US visa with the assistance of an agent who recommended she apply under an alias. [7] The RPD denied the claim based upon the determinative issues of identity and credibility. Determination [8] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. Role of the RAD [9] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.3 The RAD will only defer to the RPD in instances where the RPD has a meaningful advantage.4 Appellant's Arguments on Appeal [10] The Appellant argues that the RPD erred in its assessment of her identity in the following ways: * The RPD erred by reaching unreasonable conclusions based upon the evidence; * The RPD breached procedural fairness when it did not afford the Appellant the opportunity to respond to concerns raised by her post-hearing disclosure but relied on inconsistencies in the documents in coming to a decision; * The RPD's denial of an application to adjourn the hearing to allow the Appellant to respond to Minister's disclosure is a breach of natural justice; * The RPD erred by ignoring key documents that supported the Appellant's identity, and; * New evidence meets the requirements of 110(4) and addresses concerns expressed by the RPD in its decision, and also justifies the scheduling of a hearing. New evidence [11] The Appellant submits new evidence: a) Letter from village chairperson, dated XXXX XXXX, 20175 b) Affidavit from village chairperson, dated XXXX XXXX, 2017 and associated identity card6 c) Two Affidavits from half-brother of Appellant, dated XXXX XXXX, 2017 and associated identity card and photograph of Appellant7 [12] Subsection 110(4) of the IRPA provides that an Appellant 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 expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellant.9 [13] The second step in the analysis for new evidence, if the requirements in s. 110(4) are met, is to consider it in relation to the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal (FCA) held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness. The RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [14] The Appellant submits that the new evidence was not reasonably available prior to the rejection of the decision for the following reasons. With respect to the evidence from the village chairperson, (items a and b) the RPD had allowed and accepted post-hearing disclosure. The RPD then relied on problems with the post-hearing disclosure in its decision. The Appellant argues that she was not given the opportunity to respond to the RPD concerns as the RPD did not reconvene a hearing or put its concerns to the Appellant. This new evidence provides explanations for concerns the RPD had referred to in its reasons. [15] I do not agree with the Appellant's submissions. The Appellant submitted post-hearing documents that contained anomalies on its face. This evidence came from the Appellant. The new evidence post-hearing seeks to provide further clarification for the anomalies on the documents before the RPD. The Appellant had the responsibility to provide any clarification it needed to when it submitted the original post-hearing disclosure. I do not find the new evidence admissible as it directly relates to the Appellant's evidence already before the RPD. This was reasonably available and expected in my view. [16] With respect to the affidavit from the Appellant's half-brother, (item c), the Appellant explains in her Memorandum that her half-brother initially had refused to provide any corroboration for her as he had been reluctant to help. It was only after the RPD decision that the Appellant again contacted him and he agreed to provide an affidavit. I find this new evidence does not meet the legislative test as the Appellant never indicated that this evidence was possible or that she had been attempting to get it prior to the rejection of the RPD as she indicated in her affidavit.11. The Appellant was asked specifically at her hearing whether she was trying to get any other documents from Uganda and she testified "No." At no time did she indicate to the RPD during the hearing or in the weeks following the hearing, when she was given the opportunity to obtain more documents, that she was attempting to obtain corroboration from her half-brother. I find this evidence was reasonably expected and therefore inadmissible. [17] As no new evidence is admissible there is no jurisdiction for the RAD to hold a hearing. Analysis of the appeal No breach of natural justice [18] The Minister intervened in the RPD claim submitting evidence that the Appellant had previously applied for a US visa under the name "XXXX XXXX XXXX" with a date of birth of XXXX XXXX, 1978.12 The Appellant amended her BOC and submitted the amended BOC to the RPD on July 31, 2018. In her amendment she stated that she did not recall that she had applied for a US visa at the time she filled out her BOC form. She states that she only recalled that she had done so after receiving the disclosure from the Minister's Representative on July 27. 2017. [19] At the hearing before the RPD held on August 1, 2017, the Appellant requested an adjournment in order to address the Minister's submissions. This request was denied, however the RPD allowed for any post-hearing documents and submissions to be made after the hearing. The hearing focused solely on the Appellant's identity. [20] I do not find there was a breach of procedural fairness in this instance. The Appellant was able to respond to the Minister's disclosure by providing further details in her BOC via an amendment and during her testimony. She also provided further documents at the hearing 13 which was accepted by the RPD. Finally the RPD did accept post-hearing disclosure and submissions from the Appellant which was also accepted into evidence.14 [21] The Appellant also submits that the RPD breached procedural fairness when it refused to allow an adjournment following the Ministerial intervention. The Appellant was able to amend her BOC and the RPD accepted this and other documents on the day of the hearing. The RPD also allowed for post-hearing disclosure and submissions. I see no breach of procedural fairness. While the Appellant argues that she had no opportunity to respond to the concerns raised by the RPD in its reasons, the concerns related to problems on the face of the documents themselves as well as the sufficiency of those documents in establishing the Appellant's identity. I see no error in the RPD analysis. The Appellant's credibility is undermined by the Minister's evidence [22] As stated earlier, the Minister intervened a few days prior to the hearing on the issue of credibility and program integrity when it found a positive fingerprint match for the Appellant under a different alias: name and date of birth. The Appellant amended her BOC to reflect that she had forgotten that she had attempted to leave her abusive marriage in 2007 and had enlisted the help of an agent. The RPD found the Appellant's explanations for omitting such pertinent evidence unreasonable. The RPD found the risk the Appellant took, by falsifying her name, date of birth, and obtaining fraudulent documents and submitting to an interview, were significant enough that it was unreasonable for the Appellant to not have recalled this. [23] I find that it was open to the RPD to make such a finding. Having conducted my own assessment of the evidence I also find it unreasonable that the Appellant would forget about this previous attempt and only remember once the Minister's Representative provided the information. The Appellant was prompted numerous times from the time she made a refugee claim to filing her Basis of Claim (BOC) form to disclose any previous attempts to leave, aliases, or applications to travel. For example, Form IMM 0008 asks if the applicant has used any other names and the Appellant only cited her maiden name.15 Another question is asked as to whether applicants have ever been refused refugee status or visa to Canada or any other country and the Appellant indicated "No". 16 And, on the BOC, the Appellant was asked at question 2(f) why did you leave at that time and not sooner, or a later time17 and the Appellant provided no details regarding her previous attempt to leave her situation in 2007 as she alleges. [24] I find the Minister's evidence undermines the Appellant's overall credibility and see no error in the RPD analysis. [25] The Appellant takes issue with the RPD finding that she omitted in her BOC other instances of abuse that would have led her to try to leave in 200718. I agree with the Appellant on this point that there was no omission in the narrative. The Appellant does explain that she had been abused for many years and refers to incidents in the early years of her marriage. While I agree that the RPD made a finding that cannot stand, this does not affect the overall credibility assessment conducted by the RPD on the significant omission of the Appellant's attempt to leave in 2007. Evidence considered by the RPD in relation to the Appellant's identity National Identity card and the Appellant's name [26] The Appellant testified during her hearing that her National Identity Card was obtained for her by the agent facilitating her travel to Canada. The Appellant describes providing the agent with money in exchange for the card. The process of obtaining the card is both problematic and undermines the credibility of the card. The RPD found there were other reasons to question the veracity of the card. The RPD found a spelling error on the card due to an additional "." I do not agree with the RPD conclusion or characterization that this is a spelling error and the card is fraudulent for this reason. However, the National Identity Card is problematic for another reason, as it contains the Appellant's married name. [27] According to the testimony of the Appellant she changed her name to her married name, however she was not officially married and therefore there is no marriage certificate. The RPD had concerns that an official document would bear the Appellant's married name when this was not her official name (as she did not have an official marriage and no legal change of name occurred). I agree that it is unreasonable to have a national identity card reflect a name that is not an official name. [28] The Appellant appears to use her married name in some instances and not others (such as on the children's birth certificates). This in my view is problematic. The Appellant was asked about this by the immigration officer when she first made her refugee claim, during the eligibility interview19. There the officer asked her how she was able to change her name to her husband's without officially doing so. The Appellant testified that she did not know. The Appellant was asked by the officer how she was able to have her national identity card reflect her married name which was not officially registered and the Appellant did not know. While the Appellant did suggest that it was probable that an individual can decide which name to use on official documents, I find this unlikely. The National Documentation Package (NDP) includes the recent Registration of Person Act of 2015.20 This act specifies the requirements one must fulfill to change the name of an adult. 36. Change of name of an adult. (1) Any person, being over the age of eighteen years or a widower, widow, divorced person or a married person, who wishes to change his or her name, shall cause to be published in the Gazette a notice in the prescribed form of his or her intention to do so. (2) Not less than seven days after the publication of the notice, the person intending to change his or her name may apply in the prescribed form to the registration officer of the registration center in which his or her birth is registered. [29] While this act was not in force at the time of marriage, it is clear that at the time of the issuance of the national ID card there was legislation that specifically refers to expectations regarding changes of one's name. [30] I find the national ID card is unreliable as a form of identity for the Appellant based upon its content as well as the way it was procured. I find the Appellant's explanation for her use of her married name on some documents and maiden on others is lacking in credibility and her explanations related to her national ID card undermines her credibility. The birth certificates [31] The Appellant argues that the RPD came to an erroneous conclusion as to the reliability of the children's birth certificates due to the misspelling of the surname of the father of the children. The RPD also found the likelihood that the National Identification Number (NIN) listed on the certificates is the one attributed to the Appellant's ex-husband. The Appellant submits that the RPD came to an unreasonable conclusion when it found a minor spelling error on the documents and when it found the NIN is likely the father of the children. [32] I have reviewed the evidence in the RPD Record as well as the evidence found in the National Documentation Package (NDP) and do not agree with the submissions made by the Appellant. [33] All the birth certificates, the three for the children who are in Uganda and the birth certificate for the Appellant, were issued since the Appellant arrived in Canada. The Appellant's own certificate was issued May 30, 2017 and her children's were all issued on June 30, 2017.21 The Appellant was asked about how they were obtained and she testified that her mother obtained them all for her by providing the names and correct dates of birth. [34] The Appellant's maiden name is listed as her full name on all the certificates. This does not correspond to the name she uses on her national ID card. All three of her children's birth certificates bear the same misspelling of their father's name. While the spelling error is minor, it does appear to have been made 3 times. The information contained on the certificates do not fully correspond to the objective evidence of what is contained in the certificates. According to the objective evidence, birth certificates shall contain: 39. Certificate of birth. (1) Upon receipt of the application in the prescribed form and upon payment of the prescribed fee, the Authority shall issue a certificate in the prescribed form of the birth of any person compiled in the prescribed manner from the records and register in the Authority's custody. (2) A certificate of birth issued under subsection (1) shall contain- the information concerning the child which shall include; (i) name; (ii) place of birth; (iii) date of birth; (iv) sex; (v) nationality; (vi) National Identification Number or Alien Identification Number of a child who is a citizen and alien respectively. (b) the information concerning the parents of the child which shall include the name, nationality, National Identification Number or Alien Identification Number for citizens and Aliens parents respectively; and (c) any other information as may be prescribed by the Minister. (3) The information contained in a certificate of birth issued under this Act is presumed to be correct and it may be received as evidence in any judicial proceedings. (4) A child who has been entered in the register and has been issued with a certificate of birth shall be issued with another certificate of birth upon adoption.22 [35] While there appears to be a NIN number, the certificates are missing the NIN that is listed on the Appellant's National Identity Card (national ID), contrary to the objective evidence. Given the numerous inconsistences in the documents as well as the Appellant's testimony regarding how they were obtained, I afford the certificates no weight. [36] The Appellant argues that the RPD failed to refer to the original of the documents even though they were disclosed. I see no error in the RPD not referring to the original documents. The findings are related to errors on the face of the documents as well as how they were procured. There is no reason or requirement to refer to the originals. [37] The Appellant also argues that the RPD did not consider the multitude of other documents submitted that can corroborate her identity, including making findings on post-hearing disclosure. The Appellant did submit many documents such as affidavits, school certificates, and medical documents.23 I find these are not only less probative, but insufficient to overcome the problems with documents submitted to corroborate her identity, namely her national ID card and birth certificates. The children's school certificates for example, are insufficient to overcome problems related to the Appellant's own documents issued to her24. Furthermore, her omission in disclosing a previous alias undermines her overall credibility. Plausibility finding [38] The Appellant argues that the RPD erred in making plausibility findings related to the agent keeping the Appellant's passport that she travelled on and not providing her with the name or nationality of the individual she was purporting to be. [39] I find this argument non-determinative both for the RPD and the Appellant and therefore will not be addressing this. [40] In summary, I find that the RPD generally did not err in finding the Appellant was lacking in credibility with respect to her identity and has not established her identity on a balance of probabilities. In the absence of a valid passport the Appellant submitted a number of documents to establish her identity. Key among those was her national ID card and her birth certificate, along with the certificates for her children. These all contained anomalies that are not reasonably explained. While I acknowledge that the Appellant submitted many other documents including statements from family members attesting to her identity, these do not overcome the credibility problems found on the face of the Appellant's documents, as well as the inherent problems with Appellant's credibility based upon the Ministerial intervention. For these reasons the appeal is dismissed. Conclusion [41] The RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, as per paragraph 111(1)(a) of the IRPA. The appeal is dismissed. (signed) "N. Qadeer" N. Qadeer November 15, 2018 Date 1 Exhibit RPD-1, RPD Record, Exhibit 6, at pg. 324. 2 Exhibit RPD-1, RPD Record, Exhibit 8, at pg. 32. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-18), Diner, November 14, 2018; 2018 FC 1145. 5 Exhibit P-2, Appellant's Record, Exhibit "B" at pp. 31-33. 6 Ibid, Exhibit "C" at pp. 34-37. 7 Ibid, Exhibit "D" at pp. 38-43. 8 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, at para 51. 9 Section 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para 64. 11 Exhibit P-2, Appellant's Record, at p.15 12 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 327. 13 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 334-360. 14 Exhibit RPD-1, RPD Record, Exhibits 11 and 12, at pp. 369-390. 15 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 47. 16 Ibid at p. 62 17 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 15. 18 Exhibit P-2, Appellant's Record, Appellant's Memo, at p.56, para. 27-28. 19 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 47. 20 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Uganda (30 July 2017), Response to Information Request, Immigration and Refugee Board of Canada, item 3.10, at pp. 25-26. 21 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 79 and 84-85. 22 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Uganda , item 3.10, at pp. 26-27. 23 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 73-158. 24 Exhibit P-2, Appellant's Record, Memorandum, at p.64 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-21566 RAD.25.02 (September 18, 2018) Disponible en français 13 RAD.25.02 (September 18, 2018) Disponible en français