TB5-06094

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 : TB5-06094 TB5-06095 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 5, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) Norris Ormston Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The minor Appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, allege to be citizens of Somalia, and appeal a decision of the Refugee Protection Division (RPD) dated May 26, 2015, rejecting their claims for refugee protection. The RPD appointed Norris Ormston as the designated representative of the minor Appellants. The Appellants are submitting new evidence and are not requesting an oral hearing; and, in the event the Refugee Appeal Division (RAD) does not set aside the RPD's determination and substitute a positive decision, the Appellants are requesting that the RAD refer the matter back to the RPD. [2] The RPD hearing was held on April 14, 2015 and May 20, 2015. A decision was rendered on May 26, 2015. The RPD found that the Appellants did not establish their identities as required by s. 106 of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [3] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellants did not establish their identities as required by s. 106 of the IRPA. BACKGROUND [4] The Appellants allege that they were born in Kenya from Somali parents. They arrived in Canada on January 19, 2015. As proof of their identity, the Appellants submitted vaccination certificates and a letter from an individual who claims to be the Appellants' father. After examining the original vaccination certificates and questioning the designated representative with respect to these documents, the RPD concluded that the vaccination records had been altered and "...are not the vaccination records that belong to the claimants."1 The Appellants do not challenge this finding of the RPD in this appeal that the vaccination certificates had been altered. [5] With respect to the letter from an individual who claims to be the Appellants' father, the RPD concluded that "...the letter from Idris Abdi does not provide sufficient persuasive evidence to establish, on a balance or probabilities, the personal or national identities of the claimants."2 ROLE OF THE RAD [6] The Appellants have provided submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 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] While there has been some conflict in the case law from the Federal Court regarding the standard to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,4 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellants are Convention refugees or persons in need of protection and will consider only the issues raised by the Appellants. ANALYSIS OF THE MERITS OF THE APPEAL [9] The RPD found that the determinative issue in these claims was the identity of the Appellants. Issues Raised by the Appellants [10] The Appellants raise the issue of identity and submit new evidence to attempt to establish the identity of the Appellants as citizens of Somalia. New Evidence Documentary Evidence [11] The Appellants submitted new evidence in the form of: a) The Constitution of Kenya; b) School records of the Appellants and school letters; c) The birth and marriage certificates of XXXX XXXX XXXX, who alleges to be the father of the Appellants. [12] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) which states: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [13] With respect to the first test, the copy of the Constitution of Kenya predates the rendering of the RPD's decision and was readily available to the Appellants. The Appellants provided no explanation as to why they could not have submitted this document prior to the rendering of the RPD's decision. The RAD therefore will not accept the copy of the Constitution of Kenya as new evidence. [14] With respect to the school records and the certificates of Idris, the RAD will accept them as new evidence but, for the reasons which will follow, gives them little evidentiary weight. School Records and Letters [15] The issue in this appeal is the identity of the Appellants. These documents do not provide any information with respect to the identity of the Appellants as citizens of Somalia. The only information that is provided is that the Appellants were students at this particular school. Certificates of Idris [16] The same arguments apply to the birth and marriage certificates of Idris. These do not establish that Idris is the father of the Appellants, nor do they establish the identity of the Appellants as citizens of Somalia. [17] For these reasons the RAD gives little evidentiary weight to the new evidence. [18] The RAD finds that the Appellants have failed to establish their identity as citizens of Somalia. CONCLUSION [19] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellants have not established their identities as required by s. 106 of the Immigration and Refugee Protection Act. [20] The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 5, 2015 Date 1 RPD's Record, RPD's Reasons and Decision, p. 7, para. 14. 2 Ibid., p. 9, para. 17. 3 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 4 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06094 TB5-06095