TB7-10250

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 : TB7-10250 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 12, 2018 Date de la décision Panel Cynthia Pay Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 OVERVIEW [1] This decision is about XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Somalia. He is appealing a decision of the Refugee Protection Division (RPD) which denied his claim for refugee protection on the basis that he had not established his identity. The Appellant alleges that he fears for his life if he has to return to Somalia, as he has been targeted for extortion by a tribal warlord who killed his wife, and he and his family have been condemned to death by Al-Shabaab who killed his brother. [2] His claim was heard on May 5, 2017. In its reasons dated May 16, 2017, the RPD found that the Appellant had not established his identity, as he did not provide any primary identity documents. It refused to accept late disclosure of three documents providing evidence about his identity. It further found that the Appellant's identity witness was not suitable to establish his identity either. The RPD also determined that the Appellant lacked credibility, as it found that he was inconsistent regarding the level of his English language proficiency, and that there were discrepancies between his United States credible fear interview and his Canadian refugee claim. [3] The Appellant has appealed this decision to the Refugee Appeal Division (RAD). He has submitted new evidence and requests an oral hearing. The new evidence is an identity witness who was in Somalia at the time of the Appellant's refugee hearing. He requests that the RPD accept and consider the new evidence, argues that the RPD erred in rejecting his late-filed evidence and in its finding that he has not established his identity, and requests that the RAD set aside the determination of the RPD and find that he is a Convention refugee or a person in need of protection or, in the alternative, refer the matter back to the RPD. DECISION [4] After considering his arguments and the evidence, I find that the RPD erred in refusing to admit the Appellant's late-disclosed evidence. As this finding is determinative of his appeal, I do not address the issue of the Appellant's new evidence or other arguments. I allow the Appellant's appeal, but because the RPD did not address the substance of his claim, I must refer the matter to the RPD for redetermination pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act ("the IRPA"). ANALYSIS Did the RPD err in refusing to accept late-disclosed evidence? [5] At his hearing on May 5, 2017, the Appellant provided late disclosure of three documents supportive of his identity: a. A letter dated December 30, 2015 from XXXX XXXX, a community organization providing support to immigrant and refugee communities from the Horn of Africa. The letter is based on an interview with the Appellant, and is supportive of the Appellant's Somali nationality. b. Documents from the Standing Committee for Refugee Affairs of South Africa dated XXXX XXXX, 2012. These documents provide a renewal of the Appellant's refugee status there, which corroborates his departure from Somalia and his time in South Africa. c. A letter from the Appellant's father dated May 2, 2017 that is supportive of his identity and allegations. [6] The RPD found that the Appellant's explanation, that he had given the documents to an interpreter who failed to pass them on to his legal representative, was confusing and evasive, and refused to accept the documents. It determined that he had had over a year to provide them, and had at least two of the documents in his possession for months. As a result, the RPD held that the Appellant could have reasonably disclosed the documents within the time frame set out in the Refugee Protection Division Rules ("the Rules") but failed to make an effort to do so, and that he failed to provide a reasonable explanation for his late disclosure. [7] The Appellant argues that the RPD erred in refusing to accept these documents, and I agree. [8] Rule 36 of the Refugee Protection Division Rules outlines the procedure for documents that are not submitted within the timeframes set out in Rule 34: Use of undisclosed documents 36 A party who does not provide a document in accordance with rule 34 must not use the document at the hearing unless allowed to do so by the Division. In deciding whether to allow its use, 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 hearing; and (c) whether the party, with reasonable effort, could have provided the document as required by rule 34. [9] The RPD made its decision to exclude the late-filed documents based on the fact that they were disclosed late, and based on its finding that the Appellant could, with reasonable effort, have disclosed it within the timelines set out in Rule 34. The Appellant argues that the RPD erred in taking the view that all three factors set out in Rule 36 must be satisfied, and submits that the RPD must consider any relevant factor, including, but not limited to, the three factors set out in the Rules. [10] I agree with the Appellant's argument, and find that the RPD erred in failing to consider other relevant factors, in particular the documents' relevance and probative value.1 The documents disclosed late by the Appellant are relevant to the issue of his identity and elements of his narrative, such as the timeline of events and allegations. The letter from XXXX XXXX provides support for the Appellant's claim of Somali nationality. The letter from the Standing Committee for Refugee Affairs of South Africa provides corroboration of the Appellant's identity and his departure from Somalia to South Africa. The letter from the Appellant's father is supportive of his identity and some of his allegations, including the killing of his first wife and brother. I find the exclusion of these documents to be an error, especially given the fact that the RPD made its negative decision on the basis of identity. [11] Rule 36 sets out factors that must be considered if relevant, but does not require that each of the factors be met, and further does not provide an exhaustive list of factors. There may be other relevant factors that must be considered by the RPD in deciding whether to allow the use of late-disclosed documents. [12] I find that the RPD erred in excluding these documents, as it did not consider the criteria of relevance and probative value set out in the Rules for the acceptance of late disclosure. NEW EVIDENCE (signed) "Cynthia Pay" Cynthia Pay February 12, 2018 Date [13] The Appellant has submitted new evidence for consideration by the RAD, an affidavit by a witness who was in Somalia at the time of his hearing and therefore could not attend. The witness provides evidence regarding the Appellant's identity. [14] Because I have allowed the appeal on the basis of the RPD's error regarding the late-disclosed evidence, I do not need to address the Appellant's request to present new evidence or his request for an oral hearing. This evidence can be presented by the Appellant at his new RPD hearing. CONCLUSION [15] On the basis of the findings outlined above, I allow the appeal. I find that the RPD erred in excluding documents that were relevant and probative regarding the issue of the Appellant's identity. As a result, I refer the matter to the RPD for redetermination pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act. 1 E.g., S.E.B. v. M.C.I. (F.C., no. IMM-5668-04), O'Keefe, May 8, 2005 FC 791, at para 25; Mbirimujo, Tukondja v. M.C.I. (F.C., no. IMM-5442-12), Noël, May 27, 2013, 2013 FC 553, at paras 22 to 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-10250