TB4-12133

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 : TB4-12133 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 April 1, 2015 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 AND DECISION [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant requests that the Refugee Appeal Division (RAD) allow the appeal. [3] The Appellant filed a RAD Rule 29 application,1 and submitted new evidence in support of her appeal. The Appellant is relying on new evidence submitted pursuant to Section 110(4) of the Immigration and Refugee Protection Act ("IRPA" or the "Act").2 The Appellant requests that the RAD hold a hearing pursuant to Subsection 110(6) of the IRPA. The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination, before a differently-constituted panel. This appeal is allowed. BACKGROUND [5] The Appellant alleged that she is a citizen of Ethiopia. She fears returning to Ethiopia due to her political opinion. She joined the Coalition for Unity and Democracy (CUD) in 2005. In XXXX 2008, the CUD disbanded and split into three different factions. The Appellant moved to Kuwait on XXXX XXXX, 2009. She continued her membership activities with the CUD in Kuwait. In XXXX 2013, the Appellant returned to Ethiopia to attend her aunt's funeral. On XXXX XXXX, 2013, as she was preparing to leave for Kuwait, she was arrested by the Ethiopian armed security agents. The Appellant was detained for fifteen days. During the detention, the Appellant was tortured; she was beaten, her head was immersed in dirty water, and she was raped. The Appellant was released on bail, with conditions that she was to report every month in XXXX XXXX XXXX (Jail), not to leave XXXX without the consent of security officials, and to stay away from any political opposition. The Appellant was warned that failing the conditions, she would be executed. With the help of a high profile businessman, the Appellant's father was able to arrange for the Appellant to leave Ethiopia safely. The Appellant went back to Kuwait; she was employed as XXXX XXXX in Kuwait. In mid-2014, the Appellant had the opportunity to travel to Canada with her employer. She arrived in Canada on XXXX XXXX, 2014. On August 26, 2014, the Appellant filed her claim for refugee protection at an inland office of the Citizenship and Immigration Canada (CIC). [6] The Appellant's family was actively involved with CUD as well; later, they became active supporters of the Unity for Democracy and Justice (UDJ) party. The Appellant's father and her brothers had been detained, and suffered persecution and torture due to their support of the CUD party, and the UDJ party. [7] Further details regarding the Appellant's allegations are included in her Basis of Claim (BoC) form narrative.3 Additional details were provided by the Appellant at the hearing. [8] The Appellant's application for refugee protection was heard on November 6, 2014. In a decision of November 26, 2014, the RPD rejected the claim. ROLE OF THE RAD [9] In assessing the appeal, the RAD is guided by the recent Huruglica4 decision, which outlines the approach that the RAD should take as an appellate body in reviewing the first level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision, and comes to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made as per Section 111(b) of the IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country conditions evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. [10] The RAD adopts and applies the Huruglica case law in this appeal. The RAD considered the Appellant's submissions.5 MERITS OF THE APPEAL [11] The RPD found that the Appellant failed to establish her identity, on a balance of probabilities. The RPD found the Appellant's explanations regarding where she was prior to coming to Canada were also lacking in credibility.6 [12] The RAD finds the Appellant submitted several school documents,7 as well as her Ethiopian driver's license8 that was issued in Addis Ababa, in support of her identity as a citizen of Ethiopia. The RPD found that the Appellant provided secondary forms of identity documents, and added that a person can attend school in Ethiopia without being a citizen of that country or can drive in Ethiopia without being a citizen of that country. The RPD added that driver's license merely allows an individual to operate a motor vehicle and nothing else. The RPD added that what this means is that the Appellant had a driver's license in Ethiopia; it does not establish her identity as an Ethiopian citizen.9 [13] The RPD then stated that "While the panel acknowledges that the claimant's driver's license indicates that she is an Ethiopian citizen, in the absence of objective documentary evidence to corroborate that only citizens of Ethiopia can be issued a driver's license, the panel is unable to rely on this document to establish her purported Ethiopian identity."10 [14] The RAD finds the RPD's above-mentioned statement quite puzzling. The RPD did not rule that the Appellant's driver's license was not genuine. The RPD acknowledged that the Appellant's driver's license "indicates that she is an Ethiopian citizen"; regardless, the RPD dismissed the driver's license as a document sufficient to support the Appellant's identity as an Ethiopian national because in the absence of objective documentary evidence to corroborate that only citizens of Ethiopia can be issued a driver's license, the RPD was unable to rely on this document to establish the Appellant's Ethiopian identity. [15] The Appellant submits that it did not matter if only Ethiopian citizens were issued driver's licenses; what matters is that the license, an official document, accepted as genuine by the RPD, says she is a citizen.11 In this respect, the RAD finds the Appellant's submissions meritorious; the RAD finds it immaterial whether only citizens or citizens as well as non-citizens can be issued a driver's license in Ethiopia in order to assess the relevance and probative value of this document in establishing the Appellant's Ethiopian nationality. The Appellant alleged that she was born in Jimma. The RAD reviewed the Appellant's driver's license. It shows that the Appellant was born in Jimma; moreover, it shows that she is Ethiopian national. [16] Among other things, the Appellant's driver's license has the following information: 1. Name - XXXX XXXX XXXX 2. Date of birth - XXXX/XXXX/1987 3. Place of birth - Jimma 4. Nationality - Ethiopian 5. Issued at - Addis Ababa 6. The license is International [17] The license also has the Appellant's picture on it. [18] In reviewing the totality of the evidence adduced at the RPD, the RAD finds the information on the Appellant's driver's license is consistent with the Appellant's testimony and other documentation submitted. [19] The RAD finds the Appellant's driver's license, obviously accepted as genuine official document by the RPD, contains information that the RPD needed to duly assess in order to determine the probative value of this document in establishing the Appellant's identity as an Ethiopian national. [20] In reviewing the totality of the evidence in this case, the RAD finds the RPD failed to assess the relevance and the probative value of this document in establishing the Appellant's identity as an Ethiopian national. The RAD finds this is an error. RAD RULE 29: APPLICATION TO FILE NEW DOCUMENTS [21] The Appellant filed a Rule 29 application to submit new evidence that was not included with the Appeal Record. The RAD does not need to decide this application as it would have no bearing on the outcome of the appeal. Even if this application was allowed, in order to fully assess the evidence, the RAD would have to rehear almost all of the evidence presented at the RPD, which the legislative scheme does not permit. The Appellant is free to submit this evidence at the RPD. Accordingly, the Appellant's request for hearing at the RAD is denied as well. DISPOSITION [22] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination before a differently-constituted panel. This appeal is allowed. . (signed) "S.S. Kular" S.S. Kular April 1, 2015 Date 1 P-2, Appellant's Record, the Appellant's Application Record. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 3 Exhibit RPD-1, RPD's Record, Exhibit 2, Appellant's BoC Narrative. 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit P-2, Appellant's Record, item 3, Memorandum of Argument. 6 Exhibit P-2, Appellant's Record, item 1, RPD's Decision and Reasons, para. 40. 7 Exhibit RPD-1, RPD's Record, Exhibit 4. 8 Ibid. 9 Exhibit P-2, Appellant's Record, item 1, RPD's Decision and Reasons, para. 21. 10 Ibid. 11 Exhibit P-2, Appellant's Record, item 3, Memrandum of Argument, para. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-12133