TC0-00648

RAD File / Dossier de la SAR : TC0-00648 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 21, 2021 Date de la décision Panel Kimberley Foreman Tribunal Counsel for the person who is the subject of the appeal Letebrhan Beyene Nugusse Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Nigeria. She is appealing a decision of the Refugee Protection Division (RPD) of December 2, 2019, denying her claim for refugee protection. [2] The Appellant submits that the RPD erred in its assessment of the relevant documentary evidence and in its finding that the Appellant had not established her identity. [3] The Appellant has provided new evidence and has requested a new hearing before the Refugee Appeal Division (RAD) based on that evidence. The Appellant has also requested that the RAD allow the appeal or return the matter to the RPD for redetermination. DETERMINATION [4] Pursuant to section 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. The appeal is allowed. Background of the Claim [5] The Appellant was raised by her uncle in Nigeria. In 2006, the Appellant came to Canada to study at the University of XXXX. Those studies were financially supported by her uncle. She remained in Canada and in 2015, her uncle informed her that she needed to return to Nigeria for an arranged marriage to a Chief. The Appellant informed her uncle that she was involved with a man in Canada and planned on getting married to him. The couple did marry, and the Appellant alleges that her uncle became furious and threatened her. The Appellant makes an additional allegation that a rumour is now being circulated in Nigeria that she is bisexual. The Appellant made a claim for refugee protection in XXXX 2017 and fears return to Nigeria because she believes her uncle will force her to marry the elderly Chief and that she will be persecuted due to her perceived sexuality. Role of the RAD [6] When reviewing the RPD decision, the panel is required to independently assess all the evidence and determine whether the RPD erred in relation to each error of law, fact or mixed fact and law. For this assessment, the panel has applied the standard of correctness as per the Federal Court of Appeal decision in Huruglica.1. New Evidence and Oral Hearing [7] The Appellant has presented new evidence with her appeal. This new evidence includes: a Nigerian passport issued XXXX XXXX XXXX 2020 (including shipping envelope from FedEx)2 and her expired Ontario Driver's License.3 [8] Subsection 110(4) of the IRPA provides that the persons who are the subject of the appeal may present only evidence that arose after the rejection of their claims, or that was not reasonably available, or that the persons could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claims. If the proposed new evidence meets the requirements of subsection 110(4), I must assess, pursuant to the Federal Court of Appeal's decisions in Raza and Singh, the newness, credibility and relevance of the evidence in order to determine whether it is admissible. [9] With regard to the Nigerian passport, the issuance of the travel document post-dates the date of rejection and the Appellant argues that she was told by their previous counsel that because she had a copy of her expired passport, and a birth certificate from Nigeria, those documents would be sufficient to establish her identity. However, when I consider the newness of the document, I note that the document relates to the issue of identity. The Appellant submits these documents were not available because she did not anticipate the RPD would disbelieve or call into question the identity documents she provided for her hearing. [10] Identity is a determinative issue at all refugee hearings, and in this case in particular, after the panel requested submissions on the issue of identity, the Appellant was alerted to the fact that there were concerns related to identity in this case. The Appellant made no attempts to obtain these documents prior to her refugee hearing, or a request to provide them as post-hearing evidence. The Federal Court of Appeal in Singh is clear, stating "the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD ...," and by submitting these documents without any reasonable explanation as to why they were not available prior to the rejection of the claim is doing just that. I find that the new passport would have been reasonably available if it had been requested. It does not meet any of the expressed s. 110(4) criteria and I therefore reject this document. [11] The second document, the expired Ontario Driver's License, pre-dates the rejection of the claim. I find that this document was reasonably available and could have been reasonably expected to help support identity in this matter. I therefore reject the admission of this document as new evidence. [12] I have not allowed any new evidence to be admitted into the Record, and therefore the test under subsection 110(6) for convening an oral hearing cannot be met and an oral hearing will not be convened. ANALYSIS [13] The Appellant argues that the panel erred in its assessment of her identity. The RPD did not accept that the Appellant's documentary evidence established her identity and did not accept the Appellant's explanation as to why she did not obtain a new Nigerian passport once her old passport was lost/stolen. [14] After an independent review of the Record and the audio recording of the hearing, I agree with the Appellant. She provided the following to establish her identity: a copy of her Nigerian passport issued in 2005,4 a Lagos State Government Birth Certificate,5 National Examination Council records issued in XXXX XXXX XXXX 2002,6 Lagos State Government High School Transcript issued in XXXX of 2006,7 as well as her Certificate of Marriage issued by the province of Ontario.8 [15] While each of these documents on their own, with their lack of security features, would fail on a balance of probabilities to establish the Appellant's identity, I find that these documents in conjunction with the copy of the Nigerian passport do establish the Appellant's identity. The lost Nigerian passport contains a CVV that was issued on XXXX XXXX XXXX 2006. This visa was issued for the Appellant to attend the University of XXXX in XXXX of 2006. This is established by the document from the University found in the Record.9 The passport number, XXXX, is the same number provided on the CVV issued by the High Commission in Lagos. [16] After a review of these documents, in concert with each other, I find that they establish the Appellant's identity as a national of Nigeria and that the decision of the RPD cannot stand. The Appellant's Allegations [17] In this case, the RPD denied the Appellant's claim solely on identity. After a review of the audio recording, I note that the panel did conduct an examination on the issue of the Appellant's alleged bisexuality, and did canvass the issue of Internal Flight Alternative (IFA); however, the panel failed to conduct a thorough examination of the central allegation of the Appellant's claim, whether or not she is at risk of a forced marriage. [18] I have reviewed the Record and I find it to be insufficient, and I am unable to substitute a decision in this case. I find that there are numerous areas that were explored by the RPD that are central to the claim. For example, there is an absence of a full examination of the allegations surrounding the Appellant's uncle in Nigeria and his threats of a forced marriage, as well as the Appellant's delay in making a claim for refugee protection while here in Canada. [19] I find that the RPD erred in its decision regarding the Appellant's identity and I am unable to make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. The matter is referred back to the RPD for re-determination. CONCLUSION [20] The appeal is allowed. Pursuant to section 111(1)(c) and 111(2) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) Kimberley Foreman Kimberley Foreman January 21, 2021 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 38-43. 3 Ibid., p. 44. 4 Exhibit RPD-1, RPD Record, Exhibit 9, pp. 263-265. 5 Ibid., Exhibit 6, p. 181. 6 Ibid., p. 182. 7 Ibid., p. 183. 8 Ibid., p. 190. 9 Ibid., pp. 184-186. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-00648 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français