TB4-10375

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 : TB4-10375 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 18, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Reni Chang Barrister and 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 (the Appellant) claims to be a citizen of the Republic of Eritrea. She 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. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD. The Appellant is neither a Convention refugee nor a person in need of protection. Her appeal is dismissed. Background [3] The Appellant alleged before the RPD that she fears returning to Eritrea because she will be persecuted due to her Pentecostal faith and activities in Eritrea. She also fears returning to Eritrea as a failed refugee claimant. [4] She alleges that she converted to the Pentecostal faith while living in Eritrea. In July 2013, she was together with two fellow practitioners when Eritrean authorities entered her home and arrested them. She was held in a prison for 30 days during which time she was mistreated. She was released from custody under the condition that she not practice her faith. [5] Nonetheless, the Appellant continued to practice her faith. In May 2014, she and fellow worshippers arranged to meet in her home for a common prayer session. The Appellant left the prayer session for a brief time and upon returning she observed Eritrean authorities arrest her fellow practitioners. Fearing she would be again arrested, the Appellant went into hiding. Using the services of a smuggler she was able to leave the country via Sudan. [6] The Appellant's application for refugee protection was heard on October 3, 2014. In a decision of October 9, 2014, the RPD rejected her claim finding that the Appellant had not established her identity and that she was not credible about key aspects of her claim. [7] The Appellant submits that the RPD erred in its assessment of her identity when it failed to give the appropriate weight to her identity documents. The Appellant further submits that the RPD erred in drawing adverse credibility findings based on misconstrued evidence. ROLE OF THE RAD [8] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 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." [9] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 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. [10] 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 is 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. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and Appellant. Subsection 110(4) of the IRPA provides that the person who is 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. [12] The Appellant has tendered new evidence in support of her appeal. 1. Affidavit of the Appellant and Original birth certificate; 2. Affidavit of XXXX XXXX XXXX; 3. Affidavit of XXXX XXXX XXXX; 4. Affidavit XXXX XXXX XXXX XXXX 5. Affidavit of XXXX XXXX XXXX; and 6. Eritreans 'fleeing conscription drive' for Ethiopia - UNHCR," BBC News, November 20, 2014. [13] The Appellant submits that the proposed new evidence meets the test of s.110(4) of the IRPA because the evidence is new, credible, material and relevant and was not reasonably available to her. The Appellant argues that the evidence also meets the modified criterion of Raza3as defined in Singh.4 The Appellant argues that the evidence establishes her Eritrean nationality. [14] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: [15] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.5 [16] The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [17] It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD's hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [18] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD's hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.7 [19] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, 8 or that it proves a fact that was unknown to him at the time of the hearing?9 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [20] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the evidence. [21] Assuming that the RAD finds that the proposed evidence meets the statutory requirements of s. 110(4) of the IRPA, the RAD would proceed to assess the credibility, relevance, and materiality of the document.11 The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.12 [22] Credibility - Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Evidence that passes the test in s. 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.13 [23] Relevance - The RAD must consider whether the evidence is relevant to the appeal, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered.14 [24] Materiality - Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. Affidavit of the Appellant and original birth certificate [25] The Appellant tendered her own affidavit15 deposed following the negative determination of her claim in which she provided an explanation for not providing her original birth certificate at the RPD's hearing. The RAD finds that the Appellant had an opportunity to testify at her hearing and to provide explanations for her failure to provide this evidence. As such, the RAD does not accept the Affidavit is new evidence as per s. 110(5) of the IRPA. Although the Appellant has tendered the original birth certificate in this appeal, the Appellant has not made an application to have the birth certificate considered as new evidence in this appeal. [26] Notwithstanding the forgoing, even if the RAD had allowed the birth certificate as new evidence in this appeal, the RAD could give it little weight in establishing the Appellant's nationality. In examining the document, the RAD noted that although the birth certificate is alleged to be original; it bears the hallmarks of a document that has been repeatedly photocopied. The typeface and logo are blurred and "washed out" while the entries of the biographical data contained in the certificate are crisp indicating that biographical data was entered onto the birth certificate after it was photocopied. The RAD finds that it is reasonable to expect that an original birth certificate would not have the appearance of having been photocopied several times. [27] The RAD also notes that the data entered onto the certificate bears three different fonts. The RAD finds it reasonable to expect that the fonts would be identical if all of the data was entered at the time the certificate was issued. The RAD finds that these identified issues on the face of the certificate undermine the reliability of the document. [28] Furthermore, the RAD notes that the birth certificate lacks identifying features which tie the document to the Appellant. The certificate does not have a photograph, fingerprints or other features which verifies that the birth certificate is the birth certificate of the Appellant. For all of these reasons, the RAD cannot afford the birth certificate weight in establishing the Appellant's Eritrean nationality. Affidavit of XXXX XXXX XXXX16 [29] The Appellant submits that this affidavit was only prepared after the RPD's determination. The affiant states that he came to know the Appellant while they were both living in Ethiopia in 1997. The Affiant left Ethiopia in 1998 and traveled to the US. He became reacquainted with the Appellant shortly after her refugee claim was rejected. He affirms that he believes that the Appellant is Eritrean based on the dialect she used to communicate with him when they were living in Ethiopia. [30] While the affidavit appears to meet the requirements of s. 110(4) of the IRPA, little weight can be given to the evidence it provides. The affiant had no direct knowledge of the Appellant's nationality at the time they were living in Ethiopia and does not profess to have any direct knowledge at this time. His evidence of her nationality is based on his assumption that she is Eritrean because of the dialect she used when speaking to him. The RAD finds that this is insufficient to establish her nationality. It is not uncommon for individuals to have acquired the ability to speak in different dialects. There is no evidence that the affiant has the ability to discern different dialects or that he has knowledge that only persons from Eritrea are able to use that dialect. Furthermore, the RAD notes that the affiant has not had any contact with the Appellant since 1998 and does not have any direct knowledge of her citizenship or nationality since that time. Affidavit of XXXX XXXX XXXX17 [31] The affiant states that he also met the Appellant when they were both living in Ethiopia. He further states that he attended the same wedding as she did in Eritrea in 2009 but lost contact with her after that until August 2014, prior to her refugee hearing. The RAD finds that the evidence offered by this affidavit did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection. In fact, it was available to the Appellant prior to her hearing. The RAD has considered whether the Appellant reasonably could have been expected in the circumstances to have presented the evidence prior to the rejection of her refugee claim. [32] The RAD notes that the Appellant was represented by competent counsel at her refugee hearing. In the absence of persuasive evidence of nationality identification, the Appellant ought to have known that her identity would be a significant issue at her hearing. This witness was available to her and she has not provided any argument why she was not able to acquire an affidavit from him prior to the rejection of her claim. As such, the RAD finds that this evidence does not meet the test set out in s. 110(4). [33] Notwithstanding the foregoing, even if the evidence had met the test of s. 110(4), the RAD finds that it could place little weight on this evidence in establishing the Appellant's identity as a national of Eritrea. The Affiant had no direct knowledge of the Appellant's nationality at the time they were living in Ethiopia and does not profess to have any direct knowledge at this time. His evidence of her nationality is based on his assumption that she is Eritrean because of the dialect she used when she spoke to him. The RAD finds that this is insufficient to establish her nationality. It is not uncommon for individuals to have acquired the ability to speak in different dialects. There is no evidence that the affiant has the ability to discern different dialects or that he has knowledge that only persons from Eritrea are able to use that dialect. Furthermore, the RAD notes that the affiant lost contact with the Appellant for many years and does not have any direct knowledge of her citizenship or nationality since that time. Affidavit of XXXX XXXX XXXX18 [34] The Appellant submits that this affidavit was prepared on October 8, 2014 and was submitted to the RPD under Rule 43 of the RPD Rules. However, the Affidavit was rejected because the Affidavit was not received by the RPD until after the decision was made on October 9, 2014. The Appellant argues that given it was not received by the RPD until after the rejection of the claim; it ought to be considered as new evidence within the meaning of s. 110(4). [35] The RAD agrees; however, the RAD finds that the Appellant has not provided any argument why this document could not have been tendered prior to the rejection of the claim. It is not sufficient to merely state that the evidence was not tendered prior to the rejection of the claim; some explanation of why that was the case is required in order to determine if the evidence meets the test set out in s. 110(4). It is clear from the record, that the evidence contained in this affidavit was available to the Appellant prior to her hearing. The RAD notes that the Appellant tendered a letter in the RPD's hearing from the Eritrean Canadian Community Centre of Metropolitan Toronto,19 in which the affiant is identified as a witness who knows the Appellant and her family. Unfortunately, the Appellant has not provided any explanation why she could not have tendered the evidence contained in the affidavit at her hearing or prior to the rejection of her claim. The RAD notes that the Appellant was represented by competent counsel who ought to know that the Appellant's identity was an important issue at her hearing, particularly in light of the lack of identity documents. As such, the RAD finds that the evidence does not meet the test in s. 110(4) of the IRPA. [36] The RAD further finds that even if the RAD had found the evidence meets the test set out in s. 110(4), the RAD would not be able to give the evidence significant weight in establishing the Appellant's nationality. Although the affiant claims to know that the Appellant is Eritrean, he does not profess to personally know her. He claims to know her father and believes she is his daughter based on what she has told him about her family members only. His affidavit indicates that that the first time he met her was at his church in Toronto. He has no personal knowledge of her identity or of her nationality. Affidavit of XXXX XXXX XXXX20 [37] The Affiant served as the interpreter for the preparation of the Appellant's refugee claim application including the preparation of her Basis of Claim (BOC) form. The affiant affirms that the Appellant speaks the Tigrinya language with the accent and dialect of an Eritrean. The affiant also affirms that he believes that the Appellant has learned the Tigrinya language from an Eritrean and that the circumstances of her treatment in Eritrea are consistent with the experiences of other Eritreans with whom he is familiar. [38] The RAD finds that it is clear that evidence contained in this affidavit was available to the Appellant prior to her refugee claim being heard and prior to the rejection of her claim. The Appellant has not provided sufficient argument why it was not tendered previously. The RAD notes that the Appellant was represented by competent counsel who ought to know that the Appellant's identity was a determinative issue and that this evidence was available. In light of the lack of persuasive identity documents tendered by the Appellant, the RAD finds it reasonable to expect that the Appellant would have sought to tender all the evidence available to her to help corroborate her identity at her RPD hearing. Accordingly, the RAD finds that the Appellant has failed to establish that this evidence meets the tests set out in s. 110(4). [39] The RAD further finds that even if this evidence has been admitted as evidence in this appeal the RAD could give it little weight in corroborating the Appellant's national identity or personal identity. The affiant had no personal knowledge of the Appellant prior to her refugee claim and has no personal knowledge of where she was born or where she has lived throughout her life or if she has citizenship in any other country. BBC Article dated November 20, 2014 [40] The Appellant submits that this article provides an update on the situation in Ethiopia and in particular provides evidence of a renewed conscription drive by the Eritrean government. The Appellant argues that there is no other evidence in the record which speaks to this issue and as such, it falls within the scope of s. 110(4) of the IRPA as new evidence. [41] The RAD finds that while this evidence may very well provide additional evidence on the merits of the claim and the risk posed by the Appellant as an Eritrean, it does not provide evidence of the Appellant's identity as a national of Eritrea. The determinative issue in this appeal is the Appellant's personal and national identity. As such this evidence is not relevant to the determination of this appeal. [42] Accordingly the RAD finds that none of the Appellant's proposed new evidence is accepted as evidence in this appeal. Application for an Oral Hearing [43] The Appellant has requested an oral hearing pursuant to s. 110(6) be held in the event the RAD finds that the record is insufficient to grant refugee status. Section 110(6) states that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s. 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 s. 110(3) must be understood in relation to s. 110(4). [44] When read together, s. 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (s. 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 Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [45] The RAD has not admitted the Appellant's proposed new evidence as evidence in this appeal. As such, the RAD must proceed without a hearing in her appeal, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Was the RPD's Assessment of Identity Flawed? [46] Unreasonable assessment of identity documents not before the panel - The RPD found that the Appellant did not provide acceptable and reliable documents suitable to establish her identity as a national of Eritrea. The Appellant submits that the RPD erred in its treatment of the corroborative identity evidence she tendered and that there is sufficient evidence on the record which establishes she is an Eritrean national. [47] The Appellant argues that the RPD erred when it gave no weight to the copy of the Appellant's birth certificate, the letter from XXXX XXXX XXXX, letter from the Eritrean Canadian Community Centre of Metropolitan Toronto and the Eritrean identification cards of the Appellant's family members. Copy of Birth Certificate [48] The Appellant argues that RPD erred in giving no weight to the Birth Certificate because it failed to confront her about the truth and accuracy of the copy. The Appellant argues that the failure to confront her about the whether the copy was a true representation of the original was unfair because it deprived her of her right to respond. [49] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that this is a matter of weight that should be applied to the document. The RPD did question the Appellant about the photocopy and asked where the original was. The claimant submitted a photocopy of a birth certificate.21 When asked where the original birth certificate was, she said that her uncle emailed it to her from Angola. The claimant was asked what office she originally obtained the certificate from and she could not recall the name of the office. The panel places no weight on a photocopy of an identity document where there is no reasonable explanation for not presenting the original. Furthermore the claimant was unable to specify the office that issued the birth certificate in Eritrea. The panel finds the claimant's lack of identity documents unreasonable and further evidence of her lack of credibility.22 [50] It was then open to the RPD to consider what weight it ought to give the document. There was no need for the RPD to question the Appellant about whether the copy was an accurate representation of the document. The RAD notes that photocopies of documents do not contain security features and it is impossible to determine if it is a copy of a genuine document. The RAD agrees with the RPD's finding in this regard. Remaining documents [51] The Appellant further argues that RPD erred in its treatment of the remaining documents. The Appellant argues that the RPD globally evaluated the documents based on its credibility findings of her testimony. The Appellant argues that the RPD ought to have conducted an independent assessment of each of the documents prior to making a finding on the totality of the evidence. [52] The RAD finds that the Appellant's argument has merit in this regard. The RAD finds that the RPD's failure to conduct an independent assessment of the Appellant's corroborating documents is an error. Even though the RPD's reasons lack an analysis of why the documents should not be afforded weight, the RAD finds that based on its own assessment of the documents in question; there is sufficient evidence in the record for the RAD to give little weight to these documents. [53] Letter from XXXX XXXX XXXX.- The Appellant tendered a letter which was apparently sent by her mother's cousin. In the letter, the cousin provides information on their relationship and claims that the Appellant is his niece. He also provides information to corroborate that the Appellant's family had been living in Ethiopia and that they were removed to Eritrea. He also affirms that he was aware that the Appellant was married and had been living in Eritrea; her husband has since died; that she was a protestant Christian; and 'that she left Eritrea because she was being persecuted by the government because of her Christian faith. While the cousin claims to have this information, he does not explain how he came to know all of this information given that he states he is a resident of Angola. The cousin does not state that he has any first-hand knowledge of the Appellant's circumstances in Eritrea or that he had been living in Eritrea at the time. The letter has the appearance of a document which was prepared to coincide with the Appellant's BOC narrative. The RAD also notes that the letter is silent on the determinative issue of whether the Appellant is a national of Eritrea. The only contact with the Appellant described by the cousin was when the Appellant was in Sudan. The RAD finds that the letter does not provide sufficient persuasive evidence to corroborate that the Appellant is a national of Eritrea. [54] Eritrean Canadian Community Centre of Metropolitan Toronto - The Appellant tendered a letter from Eritrean Canadian Community Centre which claimed that the Appellant is an Eritrean citizen. The author of the letter indicates that there were two Eritrean witnesses who had come forward to confirm the identity of the Appellant. The RAD notes the letter from the Eritrean Canadian Community Centre does not indicate how the two individuals interviewed know the Appellant and does not provide important facts or dates to confirm this fact. The letter does not indicate that the person writing it took efforts to double check or verify the statements from the two individuals. For example, were the two individuals interviewed separately and were their statements as to when and how they know the Appellant verified with statements by the Appellant? While the letter provided the names of the individuals, the letter does not indicate the relationship between the Appellant and the persons who confirmed her identity. The Appellant did not provide any identity documents related to the two persons who attested to her personal identity. The two individuals did not provide to the RPD any statements, affidavits or letters to support the credibility of the statement made in the letter. Finally, the RAD finds that the unverified statements made to a community agency volunteer cannot be afforded weight. As such the RAD finds that the letter from the Community Centre cannot be afforded weight. [55] Eritrean identification cards of the Appellant's family members - The Appellant tendered photocopies of the Eritrean Identification of individuals she claims are her family members. In particular, the Appellant tendered copies of identification of her mother, her uncle and her cousin. The Appellant argues that these documents establish that she is Eritrean. [56] The RAD finds that it can place little weight on these documents. The RAD notes that these documents are only photocopies and as such, it is impossible to verify that they are copies of genuine documents. Also, the RAD notes that none of these documents serve to establish with certainty a relationship between the persons named in the documents and the Appellant. Furthermore, the documents are all at least 13 years old. Even if these were genuine documents, they would not establish the Appellant is a national of Eritrea. Accordingly, the RAD gives these documents little weight. Failure to obtain primary identity documents [57] The Appellant argues in her pleadings that the RPD erred in drawing adverse credibility findings with regard to her testimony concerning why she was unable to tender other personal identification documents. The Appellant argues that the RPD erred when it misconstrued the evidence in the record and did not have an evidential foundation to reject her explanation. The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the RPD questioned the Appellant about the absence of her primary identity documents. While the Appellant provided an explanation, it was open to the RPD to reject that explanation. The RPD provided sound reasons for rejecting the explanation for her failure to tender primary identity documents. The Appellant's account of the whereabouts of her identity documents as well as her failure to produce her original birth certificate are lacking in credibility. The panel finds that the Appellant is unable to establish that she is a national of Eritrea or that she is who she says she is, on a balance of probabilities. The Appellant was asked where her national identity document is. She testified that Eritrean officials came to her home while she was in prison and took all of her documents. In her BOC she refers to learning this from her mother, with whom she lived with. 23 The Appellant was asked when this happened. She was unable to say. She testified that she "did not know because she was in prison at the time." According to her evidence, she returned to her home with her mother following her release sometime in XXXX 2013. The panel finds the Appellant's explanation unreasonable. Again she was unable to specify a date yet she would have known given she returned to her family home and lived with her mother, who reported the incident to the Appellant. The Appellant was asked why she thought the officials would take all of her documents. The Appellant said she did not know. The Appellant alleges that she is a Pentecostal practitioner, a religion that is illegal in Eritrea.24 She has testified that she was caught on two occasions worshipping and was imprisoned for it and released with conditions to stop practicing. She testified that she had to go to the XXXX office whenever she was called for meetings. The panel considered the Appellant's evidence that all of her identity and school documents were taken within this context. The panel finds that given the Appellant's alleged profile and the evidence that Eritrea monitors their citizens' mobility throughout the country; for example, citizens are required to have a "menkesakesi" a permit paper to travel around inside the country, and there are internal checkpoints throughout the country,25 it is unlikely that the Appellant's documents would be taken from her home and not returned to her. Given the Appellant's activities were suspicious, illegal, and scrutinized, it appears unreasonable for her documents to be taken such that she would have difficulty being monitored or reporting to the authorities. When asked why her documents would be taken away from her, making it difficult for the authorities to identify her if required, the Appellant said she "didn't know" and was never asked to produce her documents. The panel finds that given the Appellant's testimony that she does not know when the documents were taken, even though her mother was at home when the authorities took them, and her explanation for the authorities taking all of her documents despite the objective evidence that the government monitors its citizens movement and activities, the panel finds the Appellant's account lacking in credibility.26 [58] The RAD finds that given the particular profile of the Appellant, the RPD's reasoning in rejecting the explanation is sound. [59] The RAD agrees with the RPD's finding that the Appellant has failed to provide sufficient reliable documents and credible evidence, to establish her identity as required by s. 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules. The burden of establishing identity must be satisfied before the RPD goes on to consider the merits of the claim and whether the Appellant, in this case, faces a serious possibility of being persecuted or is a person in need of protection. The RPD rightly found, on a balance of probabilities, that the Appellant has not established her identity. In light of this finding, the RAD finds the Appellant's argument must fail. Disposition [60] The RAD finds that the Appellant has not established her identity. CONCLUSION [61] Pursuant to s. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [62] This appeal is dismissed. (signed) "L. Favreau" L. Favreau February 18, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022. 5 Raza, para. 13.3(a). 6 Raza, para. 16. 7 Raza, para. 13.5(b). 8 Raza, para. 13.5(a). 9 Raza, para. 13.3(b). 10 Raza, para. 13.5(a). 11 Raza, para. 13.5(b) 12 Raza, paras. 14, 15. 13 Raza, para. 13.1. 14 Raza, para. 13.2. 15 Appellant's Record, pp. 378-381. 16 Ibid, pp. 382-390. 17 Ibid., pp 391-401. 18 Ibid., pp 402-404. 19 Ibid., p. 37. 20 Ibid., pp. 406-409. 21 RPD's Record, Exhibit 6. 22 Appellant's Record, RPD Decision and Reasons, p.7; para. 17. 23 RPD's Record, Exhibit 2, BOC narrative, para. 14. 24 RPD's Record, Exhibit 3, National Documentation Package for Eritrea, 14 March 2014, item 12.2. 25 Ibid., item 3.3. 26 Appellant's Record, Reasons and Decision, pp.6-7, para.14-16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10375