TB5-13611

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 : TB5-13611 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 March 23, 2016 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alla Kikinova Barrister & Solicitor 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"), who claims to be a citizen of Sudan, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant is submitting new evidence and she is requesting an oral hearing. She requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the Immigration and Refugee Act ("IRPA"), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant states in her Basis of Claim form ("BOC") that she is a citizen of Sudan and has no citizenship or residency rights in any other country. She says that her mother was a XXXX in Sudan and an active member of the Sudan People's Liberation Movement ("SPLM") as well as her father. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She says that her mother was imprisoned by the government and then freed by the SPLM. She fled to Egypt and then to the United States of America ("USA"). She came to Canada on XXXX XXXX, 1998 and applied for refugee protection. Her application was accepted and she became a Canadian citizen. [4] The Appellant says that the SPLM helped the rest of the family to flee to Egypt in 1994. Since that time she has not returned to Sudan. She was married to an Egyptian citizen and they have one daughter. She maintains that Sudanese women in Egypt are subject to discrimination, harassment and attacks from individuals who believe that the government of Sudan supported the Muslim Brotherhood and also because of their physical features that identify them as non-nationals. Women who do not wear the hijab (scarf) are targeted by the Muslim Brotherhood. She does not wear a hijab and she does not intend to wear one. [5] She states that if she were to return to Sudan she would be arrested, detained and tortured and may be killed. She has no residency rights in Egypt and she would be targeted by Egyptians as a Sudanese foreigner. ROLE OF THE RAD [6] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 54 and 55 of the foregoing decision: [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". [7] Accordingly, the RAD will review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) The Appellant failed to establish her identity with credible evidence. New Evidence [9] The Appellant submits the following documents as new evidence: (a) An undated document entitled Statement Affirmation in the name of XXXX XXXX XXXX and a photocopy of a Canadian Passport in the name of XXXX XXXX XXXX; (b) A genetic test report dated January 31, 2008; (c) An affidavit sworn by XXXX XXXX XXXX and XXXX XXXX on December 28, 2015; (d) A document sworn by numerous individuals of the Sudanese Community Centre, dated December 28, 2015; (e) A document signed by XXXX XXXX XXXX XXXX XXXX, with a heading Sudanese Canadian Community Association of XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX, Ontario. (f) Photocopy of a card listed as a "Driver's Licence - Egypt" in the Index of new evidence. (There is no translation with the card); (g) Photocopy of a membership card of "XXXX XXXX" in the name of XXXX XXXX listed as "Gym Club card - Egypt" in the index of new evidence. (h) Photocopy of an undated document by XXXX police force with an occurrence number. [10] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims 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. [11] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [12] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [13] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.5 [14] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [15] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [16] However, the RAD acknowledges the Federal Court decision in Singh, where the Court wrote that: ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. 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.7 [17] The Appellant submits that she was unaware that the issue of her identity was under review and required additional documents. It was unreasonable to expect her to present the evidence of her identity prior to hearing the circumstances as they were presented. [18] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. The requirements to prove identity are clearly outlined in section 106 of the IRPA as well as Rule 11 of the RPD Rules. The RPD hearing was held on June 4, 2015 and October 27, 2015. Oral and reasons and decision were given on October 27, 2015. The Notice of Decision was sent out on November 24, 2015. The appellant submits that the new evidence meets the threshold under section 113 (sic.) of the IRPA. She was absolutely unaware that the issue of her identity was under review and required additional documents. [19] The submissions do not mention how the evidence meets the requirements of section 110(4) of the IRPA. The submission that the Appellant did not know that she had to prove her identity is blatantly incorrect. The RPD made it clear that identity was an issue when the first day of hearing was adjourned to inform the Minister and give the Appellant the opportunity to provide further identity evidence. Identity is always an issue in claims for refugee protection. [20] The Statement of Affirmation is undated and therefore, will not be admitted. The genetic test is dated before the RPD hearing and there is no persuasive evidence that it was not reasonably available at the dates of the hearing. The affidavits of XXXX XXXX XXXX and XXXX XXXX states matters that were known prior to the hearing and there is no persuasive evidence as to why it was not presented at the hearing. The same rationale applies to the letter from members of the Sudanese Community Centre and the letter from the XXXX XXXX of the Sudanese Canadian Community Association. There is no persuasive evidence that the driver's licence from Egypt and the gym membership were not reasonably available prior to the hearing. The occurrence number from the XXXX, Ontario police is undated and has no probative value. [21] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a convention refugee or person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination.8 [22] The RAD will not admit the new evidence since it does not meet the requirements of subsection 110(4). [23] The RAD finds that there is no basis to hold an oral hearing under the provisions of subsection 110(6) since there are no new documents admitted in evidence. Submissions [24] The Appellant submits that the RPD erred by drawing a negative inference as to her credibility because of the misinformation she provided to the visa departments at the time of application for a visitor's visa to Canada and USA. This was an irrelevant consideration which tainted the whole decision. She had stated on many occasions that she was ready to do literally anything to escape danger in Egypt and Sudan. She admitted using false documents and confirmed that some of her personal data was incorrect. The Federal Court has stated that the culture of lies does not absolve the Board of responsibility of addressing important evidence and arguments to support the Appellant's claim that she is telling the truth now.9 [25] The Appellant further submits that the RPD erred when it stated that "once a claimant submits a document that is fraudulent as though it were real, the RPD is under no obligation to accept any further identity documents provided by the claimant." The Appellant admitted from the beginning that the passport she was using to travel to Canada was fraudulent. The only document that she represented to be genuine was her Sudanese passport seized by immigration. [26] The Appellant states that she provided her full name and nationality under oath at the beginning of the hearing. She also has family in Canada and presented her mother's sworn testimony confirming her identity as well as a Sudanese birth certificate. In addition, her father was present and willing to provide oral testimony as to her identity. The Appellant argues that the RPD's conclusion that her identity could not be confirmed is unreasonable. [27] The Appellant argues that her mother's sworn statement revealed that a DNA test was presented confirming that she is the biological mother of the Appellant. It was not reasonable to deny the identity due to discrepancies in the date of birth in light of the existing DNA results. The Appellant admitted to using fraudulent documents and she and her mother advised the RPD that there were discrepancies between dates of birth in different ID documents and the discrepancy occurred due to inadvertent clerical errors made by Sudanese authorities. [28] The Appellant further submits that there was a denial of natural justice due to the failure of her counsel before the RPD to properly present the case. Counsel did not anticipate that identity was an issue. At the hearing counsel stated that he did not think that identity would be an issue and he was not ready to provide submissions as to her identity. He also stated that he did not send the necessary notice advising that the Appellant's father would be testifying at the hearing because he did not think that identity would be an issue. The counsel's failure to properly consider the issues in the claim and failure to analyze the identity issue denied the Appellant the opportunity to present her claim on the merits of the risk she faces on return. [29] The Appellant states that the RPD member refused counsel's request for an adjournment to present further identity evidence. It was obvious for the RPD member to recognize that the claim was not being presented properly. The Member had discretion to allow additional evidence and to allow the father's testimony. The Appellant submits that the Member failed to observe a principle of natural justice and failed to consider the consequences for the Appellant. Analysis [30] The Appellant states that she was born on XXXX XXXX, 1984 in XXXX XXXX, Sudan. She went to Egypt in 1994 when she was 10 years of age. She testified that it was never her intention to stay in Egypt. The RPD found her testimony to be very evasive, specifically regarding her identity, her identity documents and her status in Egypt. The RPD found that she was not a credible witness. The RPD stated that she failed to provide sufficient trustworthy and credible evidence to establish her true identity, including her date of birth and citizenship. The RPD concluded that on a balance of probabilities, her testimony on the issue of her identity was not trustworthy or credible. [31] The RAD has reviewed the documentary evidence presented to the RPD as well as transcripts from two different days before the RPD, namely June 4, 2015 and October 27, 2015. The Appellant argues that she was not aware that identity was an issue before the RPD and that her lawyer was incompetent since he did not recognize that identity was an issue. [32] In reviewing the June 4, 2015 transcript, the RAD notes that all the questions of the RPD were related to identity and to her status in Sudan and Egypt. The RPD then told the Appellant and her counsel that the hearing was being adjourned in order to invite the Minister to participate in the claim. The RPD stated that it was unclear as to the Appellant's status in Egypt. The Appellant indicated that she had used at least two different passports and the Member believed that program integrity issues had been raised. The Member stated that it is a paper application for her to acquire citizenship in Egypt as well. The RPD wanted assistance in trying to find out the Appellant's current status in Egypt. The RPD also stated that if the Appellant was able to find any copies of her documents in Egypt regarding her identity and status that would be very helpful. The Member clearly stated that, before the claim could be analyzed, it was necessary to be satisfied as to the Appellant's identity. Because she had different passports and she also used different passports to come to Canada, credibility concerns were raised so that identity had not been established yet. [33] The RPD made it very clear that identity was still an issue. When the hearing reconvened on October 27, 2015, the RPD asked whether the Appellant had produced any documents in regard to her status in Egypt and the response was that there were no documents on that issue. The RPD reiterated in its questions that one of the issues was whether the Appellant had any status of citizenship in Egypt. She was married to an Egyptian citizen and the RPD stated that it was its understanding that she was also entitled to Egyptian citizenship. She said that was true but it could only be done with the consent of the husband. She stated that he refused to give her his consent to get the citizenship because he felt that she was not safe. He thought that she was oppressed and needed to find a safe place to live. She then stated that she did not file a request for citizenship in Egypt because she did not feel that Egypt is a country where she would like to stay. [34] The RPD found that she clearly had access to fraudulent documents. She admitted to having a contact that had provided her with fraudulent Sudanese passports. She admitted using one of these fraudulent passports in travelling to and from Japan. She also used a fraudulent Sudanese passport to apply for a visitor visa to come to Canada. The RPD found that it was unclear which passport and which identity was genuine, if any. She admitted to having at least three fraudulent passports with different biometric details. The biometric report from Citizenship and Immigration Canada showed that she used another name and another date of birth from that presented to the RPD than those she used when she applied to visit the United States of America ("USA"). When she was asked to explain this inconsistency she said she could not remember which name and/or passports she used. She thought she might have used the family name XXXX which was her husband's father's name. However, then she stated that she was not married at that time and could not provide an explanation for the different name. [35] The RPD asked her to explain why she was traveling with fraudulent passports and why she did not use her own genuine passport in her various visa applications to Canada and the USA. She replied that she did not think about it. She describes that her mother tried to sponsor her to come to Canada, however, by her own affidavit, the application was refused due to discrepancies in her biometric details. Her sister submitted a letter but she provided the wrong birthdate for the Appellant. She was not able to provide a reasonable explanation as to why her own sister would give the wrong birthdate. [36] The RPD pointed out that when she came to Canada she said that she was a permanent resident of Egypt. In her generic application form to Canada she also said that she was a permanent resident of Egypt. However, when the RPD tried to ask the questions about her status in Egypt it found her response to be inconsistent and evasive. The RPD stated: "Today she said that she had no status in Egypt and never applied for any status. She said that she had an exemption to be in Egypt but she had destroyed the document showing that status." As the RPD said, she was repeatedly asked to provide identity documents and she could not provide any documents that could be found credible and trustworthy. [37] The RAD agrees with the RPD that she has not established her identity. There are no persuasive documents that establish her citizenship. There are differences in birthdates and details in the documents she has presented. In accordance with Huruglica10 the RAD gives deference to the credibility findings of the RPD in that it had the particular advantage of hearing the oral testimony and observing the Appellant. [38] There is no evidence that the Appellant has reported the alleged negligence of her counsel to the Law Society of Upper Canada or any other professional disciplinary body. An individual is responsible for choosing his/her counsel and the consequences that flow from that choice. The RPD made it abundantly clear that identity was an issue and also that identity had not been proven when the matter was adjourned on June 4, 2015. The Appellant was aware that this was the circumstance that caused the adjournment. The Minister did subsequently intervene and the Appellant would have been aware of the further concerns about identity. [39] The onus is on the Appellant to prove her case, including identity. The RPD tried to give the Appellant every opportunity to present her evidence and to explain inconsistencies. The Appellant did not give notice that she wished her father to give evidence. She had the opportunity to do so when the matter was adjourned. The RPD gave clear reasons why the oral testimony would not be allowed. The RPD is not in a position to determine whether counsel is presenting the matter correctly. In this case, the RPD encouraged counsel and Appellant to present evidence to prove identity including her status in Egypt. [40] There has been no denial of natural justice in the decision of the RPD. The RAD concludes and agrees with the RPD that the Appellant has failed to establish her identity with credible evidence. DISPOSITION [41] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Ken Atkinson" Ken Atkinson March 23, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 In the French version of 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, 28 October 2014, 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 5 Deri v. M.C.I., (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, [2008] 1 F.C.R., para. 16. 7 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022. 8 Cabdi, Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15), Gleeson, January 8, 2016, 2016 FC 26. 9 Tahmoursati, Moshen Shafeie v. M.C.I. (F.C., no. IMM-7146-04), Russell, September 16, 2005, 2005 FC 1278. 10 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :