TB4-08553

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 : TB4-08553 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 25, 2015 Date de la décision Panel Luis F. Agostinho 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 Barrister and Solicitor 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, (the Appellant), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal and requests an oral hearing. Oddly the Appellant asks the Refugee Appeal Division (RAD) to allow her appeal, and a new hearing ordered at the RPD (given that the RAD would not be able to find that the Appellant is a protected person or a Convention refugee given, that identity was the determinative issue at the Refugee Division).1 DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he faces persecution in Somalia because of her ethnicity as a member of a minority clan. She claimed that she left Somalia for Italy in XXXX 2008 and around one year later went to the United Kingdom, where she resided without status for approximately three and half years. The Appellant, in XXXX 2013, while attending service at a mosque, stole a purse from a female worshiper which contained a passport along with other identity documents and credit cards. The Appellant using the stolen passport was able to purchase an airline ticket and flew to Toronto in XXXX 2013 where she was stopped by CBSA officers at the airport. The Appellant then made a refugee claim at the airport and admitted to the officers that she was using a stolen passport. [4] The Appellant's application for refugee protection was heard on November 29, 2013 and June 19, 2014. By a decision of September 04, 2014, the RPD rejected the claim. The panel noted that the Appellant did not present probative identity documents, and her identity witness gave inconsistent evidence. The RPD found that the Appellant had not established her personal or national identity. [5] The Appellant argued that the RPD erred in finding that she did not establish her identity. She has submitted new identity evidence to the RAD in support of her appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that an Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [7] It is for an Appellant to make full and detailed submissions in his/her Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [8] While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in Section 110(4). [9] The RAD has, in voluminous appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.4 While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). The Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.5 [10] The RAD will apply the following factors to the evidence that passes the test in Section 110(4). [11] The RAD will consider whether the proposed new evidence is credible and trustworthy. [12] The RAD will assess the relevance of the evidence - whether it is capable, together with the other evidence in the proving or disproving a fact at issue in either the refugee claim or the appeal.6 [13] The RAD will determine whether the evidence is material, in the sense that it would be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of IRPA. [14] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [15] The Appellant's proposed new evidence consists of the following: * An affidavit of XXXX XXXX, dated October 27, 2014, attesting to the identity of the Appellant.7 * Document (a) is an affidavit from a Somali individual living in Toronto. Mr. XXXX claims that he met the Appellant by chance in XXXX 2014, when the Appellant came into his store with a friend, the same month her claim was rejected. Mr XXXX claims that he and the Appellant's family were neighbours in Mogadishu, Somalia, but doesn't state where or what proximity the families resided. Mr. XXXX in his affidavit declares that he operates a furniture store on XXXX XXXX in Toronto, and that in XXXX 2014-the same time after the rejection of the Appellant's refugee claim--he met the Appellant at his store, where they recognized each other and spoke together. [16] The Appellant's witness evidence must be considered in context. The Appellant brought an identity witness, Ms XXXX XXXX, to testify at her RPD hearing. The witness testified at the RPD that she was a good friend of the Appellant's family. The witness testified that her family had a shop in the XXXX XXXX. When the Appellant testified before the RPD, however, she and the witness had inconsistent testimony in many areas, such as to the ages when they last saw each other. The Appellant testified that she was ten years old and the witness was fifteen. The witness testified that she was ten years old and the Appellant was five or six years of age. The locations of the family shops were also not consistent. The Appellant testified that her father was a well-known shoemaker, the witness, who allegedly lived two doors down and was familiar with the Appellant's family shop, was not aware that the Appellant's father was a shoemaker. [17] The RAD has considered this context in assessing documents (a), the Appellant has shown a willingness to acquire a witness to bolster her refugee claim, in RAD's view, and this creates credibility concerns with the evidence of further witnesses. In addition, the Appellant's ability to find identity witnesses by casual chance seems too good to be true. She happened to be at the XXXX Restaurant in Toronto when she ran into a neighbour from Somalia whom she had not seen since she was five or six years old, and the neighbour was ten years old, yet she recognized her in the restaurant. [18] Despite her prior difficulty in proving her identity, the Appellant found yet another witness, again by chance, some unknown time later in XXXX 2014. Then, as her claim was about or was rejected, she happened to walk into a furniture store that is owned by MrXXXX XXXX, who turned out to be an old neighbour from Somalia. This is remarkable, because Mr. XXXX came to Canada in XXXX 1987 and states that the Appellant was a toddler when he last saw her. Mr. XXXX left Somalia in 1987 when he was 23 years of age, and the Appellant was three years of age, but 27 years later they recognize each other. The affiant declares that he and his wife know members of the Appellant's family, but does not provide details on how he knows them, etc. Mr. XXXX does not provide details about the Appellant's clan, and family, or any details about how his family and the Appellant's family interacted. Mr. XXXX does not provide any details how he or his wife interacted with the Appellant in Somalia. Mr. XXXX last saw the Appellant in 1987, some 27 years before they apparently met by chance in Toronto, just as the Appellant's refugee claim was rejected or about to be rejected. [19] The document in (a) does not meet the test in Section 110(4), even if it met that test, it would not be admissible, as it is not credible for the reasons set out above. [20] For these reasons, the RAD does not admit the Appellant's proposed new evidence. Application for an Oral Hearing [21] The Appellant asks in her Written Statement that an oral hearing be held, pursuant to Section 110(6) of IRPA. [22] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person, who is the subject of the appeal may, pursuant to Section 110(4), 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." [23] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [24] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [25] The RAD has not admitted any of the new evidence submitted by the Appellant in support of his appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. Role of the RAD [26] The Appellant has made no 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,8 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." [27] Accordingly, the RAD will conduct its own assessment 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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [28] The Appellant submits that the RPD finding is reasonable given the state of evidence before it.9 The Appellant argues that if the witness is credible, then the Appellant's identity would be established.10 [29] The Appellant does not challenge the RPD's finding in respect to her identity witness. [30] The Appellant also provided the RPD with a letter from the Somali Immigration Aid Organization. The letter states that they interviewed an individual named XXXX XXXX, who advised them that she knew the Appellant, and knew her family. The individual, Ms XXXX, attended the hearing, however she was found not to be credible as her testimony and that of the Appellant were inconsistent. [31] The Appellant called an identity witness, but the testimony between them was inconsistent and, as a result, the RPD found them not to be credible. In this context, it was not an error for the RPD to find that the Appellant had failed to establish her personal and national identity with credible and trustworthy evidence. Having carefully reviewed the evidence, the RAD reaches the same conclusion. [32] As she has not established her identity, neither the Appellant's refugee claim nor this appeal can succeed. SUMMARY AND DETERMINATION [33] In assessing the evidence in its entirety in this area, the RAD arrived at the conclusion that the RPD's unfavorable findings regarding personal and national identity of the Appellant. The RAD finds it concurs with those findings in light of the documentary evidence that was before the RPD. CONCLUSION [34] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho February 25, 2015 Date 1 Appellant's memorandum, page 27, paragraph 6 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 5 Ibid., Raza, paras. 13-15. 6 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 7 Appellant's Record, Page 20. 8 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 9 Appellant's record, page 27, paragraph 4 10 Appellant's record, page 25, paragraph 5 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08553