TB6-01160

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 : TB6-01160 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 6, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bola Adetunji 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), a citizen of Tanzania, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and has requested an oral hearing. The Appellant has also asked the Refugee Appeal Division (RAD) to find him to be a Convention refugee or, in the alternative, refer the matter back to a different member of the RPD for a redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant alleged before the RPD that upon return to Tanzania he will be harmed by members of his community or imprisoned by the Tanzanian police because he is gay. [4] The Appellant's application for refugee protection was heard on September 25, 2015. In a decision of January 4, 2016, the RPD rejected the claim, finding that the Appellant lacked credibility and was unable to satisfactorily establish his identity. [5] The Appellant submits the following issues1 as grounds for appealing: a) Is the RPD's finding that the Appellant did not establish his identity reasonable given the existence of the Appellant's valid Zanzibar identification card, and are the RPD's findings on the Appellant's identity sustainable given the new evidence of his identity? b) Are the RPD's findings regarding the Appellant's credibility reasonable? ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The RAD must consider whether the proposed new evidence arose after the rejection of the refugee claim, whether it was reasonably available prior to the rejection of the claim, and whether the Appellant could reasonably have been expected to have presented the evidence to the RPD prior to the rejection of his claim. [8] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants. [9] The following evidence was submitted by the Appellant to the RAD and must meet the test described in Section 110(4) in order to be admissible: 1) Order of the Police (XXXX XXXX, 2015). 2) A Certificate of Completion from the State University of XXXX.2 3) School Leaving Certificate of Secondary Education (2005).3 4) Certificate of Secondary Education.4 5) Certificate in XXXX XXXX from XXXXInstitute XXXX XXXX XXXX. 6) Certificate of Services from XXXX XXXX XXXX. 7) Letter from Zanzibar-Canadian Association. 8) Letter from Department of Births and Deaths - Zanzibar. 9) Newly issued Appellant's Birth Certificate. 10) Copy of Page from Applicant's Passport. 11) Order of the Police (XXXX XXXX, 2015). 12) XXXX XXXX Newspaper (XXXX XXXX, 2015). 13) Warrant in First Instance (XXXX XXXX, 2015). [10] The RAD considered the Appellant's new evidence and finds the following documents inadmissible as per the explanations following each of the documents referenced: 1) Order of the Police (XXXX XXXX, 2015) - as indicated by the Appellant this document was previously disclosed and is therefore not new. 2) XXXX XXXX Newspaper (XXXX XXXX, 2015) - the Appellant's claim was heard on September 25, 2015 and rejected on January 4, 2016. As per Section 110 (4), the RAD finds that, not only did this evidence arise prior to the rejection of the claim, but was also reasonably available to the Appellant, through his sister who has provided documents to the Appellant, and that reasonably he would have been expected to present. [11] The RAD, with the exception of the two documents referenced above, accepts all other documents listed as new evidence. Request for an Oral Hearing [12] The Appellant has requested an oral hearing before the RAD. Section 110(6) of the IRPA provides that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Subsection (3): (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The RAD has determined that an oral hearing cannot be held in this case according to Subsection 110(6)(c). Even if the new evidence were accepted by the RAD, it would not be in a position to allow or reject the claim as there would remain other issues of credibility and substance. An oral hearing, pursuant to Section 110(6) of the IRPA, is therefore, denied. ANALYSIS OF THE MERITS OF THE APPEAL Is the RPD's finding that the Appellant did not establish his identity reasonable given the existence of the Appellant's valid Zanzibar identification card and are the RPD's findings on the Appellant's identity sustainable given the new evidence of his identity? [14] The RPD found that it did not have any objective evidence related to the procedure used in issuing a Zanzibar ID, and since the Zanzibar identification card was issued without verification of identity documents, the RPD gave it little weight in terms of establishing the Appellant's identity. [15] The Appellant submits that the RPD erred in assigning no weight to the Zanzibar identification card. He argues that there was no evidence before the RPD on how such documents are issued. Further, he submits that even though he testified that he provided a letter from the Shah to have the identity card issued, without any evidentiary foundation, the Board arguably erred in assuming that the letter from the Shah is not verification of the applicant's identity. [16] The RAD notes that the RPD indicated that it assigned "little weight" to the Zanzibar identification card, not "no weight", as stated by the Appellant. The RAD finds this to be a moot point as the Appellant had submitted, as new evidence, numerous documents supporting his identity. The RAD therefore finds that the RPD's findings with respect to the Appellant's personal and national identity are not sustainable in light of the new evidence, and that the Appellant has provided sufficient evidence to establish, on a balance of probabilities, that he is who he says he is. Are the RPD's findings regarding the Appellant's credibility reasonable? [17] The RPD had concerns with the credibility of the Appellant. Those concerns arose primarily as a result of the discrepancies between the Appellant's explanations as to how he obtained various identity documents and objective evidence available to the RPD. Additionally, the RPD found the Appellant's failure to include in his Basis of Claim (BOC) form narrative, that the police had visited his family home in Tanzania and that an Order of the Police had been issued in his name, to be a significant omission that further undermined his credibility. The RPD also noted that the police document did not include any information as to why the Appellant was wanted for questioning and concluded that his testimony that he is being investigated by police on account of his sexual orientation is an embellishment. [18] The Appellant submits that he had disclosed that the police had become involved and were looking for him. He submits that the RPD erred in concluding that there is a significant omission in not having provided details in what the police did in looking for him, or that the police had issued an order to his family. [19] At the hearing, the RPD asked the Appellant: "So why didn't you mention [in his narrative] that there were any letters or visits [from police]" He replied: "I was not receiving the letter. Yeah, I was not receiving, that [sic] why I didn't mention." The RAD disagrees with the RPD and finds that the Appellant's explanation is a reasonable one: that at the time he submitted his BOC he had not yet received the police document. [20] In its Reasons and Decision, the RPD went on state that the Appellant had disclosed several documents at various times before the hearing and after having filed his BOC narrative, and that he therefore had several opportunities to disclose the police document if in fact he had only received it after having filed his BOC. The RAD notes, however, that the question of not having disclosed the police document earlier was never put to the Appellant, and therefore finds that the RPD cannot draw a negative inference in this respect. This was a further error in the credibility analysis. [21] The RAD notes that the hearing proceeded without the assistance of an interpreter even though a Swahili interpreter had been requested in the Appellant's BOC. The RAD also notes that the Appellant had agreed, during a pre-hearing conference, to proceed in English and that at the beginning of the hearing he was asked by the RPD: "So you are waiving your right to having a Swahili interpreter, is that correct?" To which he replied: "Yeah, yeah." The RAD further notes that counsel for the Appellant did not object to the absence of an interpreter at any point in the proceeding. Nonetheless, the RAD noted that throughout the hearing, the Appellant had difficulty understanding some of the questions and provided limited responses to many of the questions. This is an issue of natural justice and the RAD finds that RPD should have postponed the hearing when confronted with the Appellant's communication difficulties at various points during the hearing. The RAD also finds that the Appellant's counsel did not adequately represent the interests of the Appellant in not insisting on the assistance of interpreter. [22] For the reasons previously mentioned, and in light of the Appellant's difficulties in communication, the RAD finds that it is an error to conclude that the Appellant was not credible based on his testimony at the hearing. CONCLUSION [23] The RAD finds the decision of the RPD to be wrong in law. The RAD is unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the issue of sexual orientation. [24] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for redetermination by a differently constituted panel. (signed) "Anthony da Silva" Anthony da Silva April 6, 2016 Date 1 Exhibit P-2, Appellant's Record, p.119. 2 Exhibit P-2, Appellant's Record, p. 84. 3 Exhibit P-2, Appellant's Record, pp. 69, 70. 4 Exhibit P-2, Appellant's Record, pp. 71-74. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :