TB6-10922

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 : TB6-10922 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 8, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Joshua Blum 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 Greg Whitelock Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant) claims to be a Syrian citizen. He also claims to be a Sudanese citizen but claims that citizenship was acquired under false pretense by his father. In addition, the Appellant holds a Permanent Resident Card (green card) issued on XXXX XXXX, 2016 and expired on XXXX XXXX, 2016. He appeals a decision of the RPD denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that he is a Convention refugee. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently constituted panel. DETERMINATION [2] Pursuant to subsection 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 alleges that he was born in Syria. His family left Syria and moved to Saudi Arabia shortly after the Appellant was born. He alleges that he has spent most of his life living and working in Saudi Arabia. [4] In 2006, the Appellant moved to the US with his wife and two children, and he was granted permanent residence in the United States (US). Between 2007 and 2014, he continued to work in Saudi Arabia but returned to the US every six months to retain his status in the US. In 2014, the Appellant started working in the US as a XXXX XXXX XXXX XXXX XXXX. In XXXX 2015, he returned to Saudi Arabia for employment. On XXXX XXXX, 2016, the Appellant traveled to Canada and made a refugee claim. On XXXX XXXX, 2016, the Appellant's permanent residence status expired. [5] The Appellant had a refugee determination hearing on July 8, 2016. The Minister of Citizenship and Immigration intervened before the RPD in writing and argued that the Appellant was excluded under article 1E. In an oral decision of July 8, 2016, the Appellant was excluded from refugee protection, pursuant to Article 1E of the United Nations Convention on the Status of Refugees1 and section 98 of the Immigration and Refugee Protection Act. The RPD further found that the Appellant was a citizen of Sudan and that the Appellant failed to establish a serious possibility on a Convention ground or that he would face a risk to life, or a risk of cruel and unusual treatment or punishment, or torture, if he were to return to Sudan. [6] The Appellant submits that the RPD made the following errors in rendering its decision: (a) The RPD erred in law in placing the burden on him to show that he was not excluded from protection; (b) The RPD applied the wrong standard of proof and ignored evidence and testing in failing to consider whether there is a serious possibility that he could be denied re-entry into the United States; and (c) The RPD erred in its finding with regard to his Sudanese citizenship be disregarding his undisputed sworn testimony and failing to address the relevant Sudanese nationality law. ROLE OF THE RAD [7] The RAD finds that the Federal Court of Appeal's decision, in Huruglica,2 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. [8] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in subsection 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 refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the 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. [10] The Appellant has tendered the following as proposed new evidence in this appeal: (a) Recent correspondence with the US consulate in Toronto with regard to the Appellant's application for a re-entry visa; (b) The Appellant's affidavit; and (c) A birth certificate that the Appellant alleges his father submitted to Sudanese authorities in order to acquire the Appellant's Sudanese citizenship. [11] The Appellant submits that the proposed new evidence meets the test of subsection 110(4) of the IRPA. [12] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in subsection 110(4). If the evidence is found to meet the statutory requirement to be admitted, further analysis of the evidence is required before the RAD can accept the proposed new evidence. In this regard, the RAD is guided by the Federal Court of Appeal's decision in Singh.3 Accordingly, the RAD has adapted the analysis in Raza4 to the assessment of evidence submitted to the RAD. [13] The Appellant submits that, regardless of the foregoing, the proposed new evidence is probative, and, as such, it should be admitted to the records based on ss. 7 and 24(1) of "The Canadian Charter of Rights and Freedoms. The RAD finds that, in light of the Federal Court's decision in Singh,5 the RAD does not have the jurisdiction to admit evidence if it does not meet the statutory requirements of the IRPA. [14] In assessing whether the proposed new evidence meets the statutory provisions of subsection 110(4), the RAD considered the following: (a) 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.6 (b) 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.7 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. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD 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. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.8 (e) 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,9 or that it proves a fact that was unknown to him at the time of the hearing?10 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) 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 the refugee claim? If so, the evidence need not be considered.11 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza,12 the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. Recent Correspondence with the US Consulate [15] Given the determinative issue in this appeal is the Appellant's citizenship in Sudan, the RAD finds that the proposed new evidence relating to the Appellant's Permanent residence in the United States is not relevant, and, as such, it shall not be admitted as new evidence. The Appellant's Affidavit [16] The Appellant submits that, while his affidavit is not "new" in the sense that it largely contains evidence that was presented at his RPD hearing, he argues that it should be admitted because he was not represented at his RPD hearing, and he did not know all of the facts that should be put forward to help the decision-maker render an informed decision about his claim. He also argues that it also sets out why the other evidence meets admissibility requirements to be admitted as evidence and was produced and dated after the rejection of his claim. [17] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that, though the Appellant was self-represented at this RPD hearing, he tendered a copious amount of evidence in support of his claim. He was well aware of the issues and responded to the Minister's intervention. In addition, while his Basis of Claim (BoC) did not include a separate written narrative, the RAD notes that a separate narrative is not required. The Appellant had the opportunity to testify at his hearing in order to put forward all the facts to help the decision-maker render an informed decision about his claim. The RAD finds that the affidavit of the Appellant is not new evidence within the meaning of subsection 110(4) of the IRPA, and, as such, it is not admitted as new evidence in this appeal. Birth Certificate [18] The Appellant submits that he was relying on his family to help him locate the birth certificate in question so that he could tender it at his RPD hearing. He argues that it was only after his hearing that his mother located the birth certificate. As such, he argues that it was not reasonably available to tender prior to the rejection of his claim. [19] The RAD finds the birth certificate meets the statutory requirements to be admitted as evidence in his appeal. Oral Hearing [20] Subsection 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under subsection 110(4), subsection 110(5) or Minister's 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. [21] The RAD is further guided by the Federal Court's decision in Singh13 in the context of its assessment of the materiality of the evidence tendered by the Appellant. The RAD finds for reasons noted in the Merits of the Appeal that little weight can be given to this evidence. Accordingly, the RAD finds that the new evidence does not raise a serious issue with regard to the credibility of the Appellant, is not central to the RPD's decision, and would not justify allowing or rejecting the refugee protection claim. Accordingly, the RAD has no discretion to hold a hearing. MERITS OF THE APPEAL Determinative Issue [22] The RAD finds that, notwithstanding the allegations of error, the determinative issue in this appeal is country of reference-in this case, Sudan. [23] The Appellant submits that the RPD had before it unchallenged sworn testimony that the Appellant's Sudanese nationality was acquired through fraud and that it could easily be revoked. He argues that neither he nor his father had ever lived in Sudan and that he had to pretend to be younger than he was to even have a chance to be naturalized. He submits that the RPD made no negative findings with regard to his credibility as a witness and offered no reason to doubt his testimony on the fraudulent acquisition of his Sudanese nationality; as such, he argues that his testimony must be treated as accepted by the RPD. Furthermore, he submits that the RPD never examined the provisions of Sudanese nationality law, which demonstrate both that the Appellant did not have a legal right to citizenship and was at risk of having his citizenship rescinded because of fraud. Furthermore, the Appellant submits that the Sudanese Nationality Act sets out a legal requirement that, in order to naturalize Sudanese, the person concerned must have live in Sudan for five years. [24] While the RPD's Reasons could have been more fulsome, the RAD finds, after its own review of the evidence in the record, that there is valid reason to find that the Appellant holds Sudanese citizenship. The RAD notes that the Appellant declared in his BoC that he is a citizen of Sudan and that he acquired it as a family member of his father.14 In addition, the Appellant declared in his BoC that his father hold's Sudanese citizenship.15 More importantly, the RAD notes that the Appellant has tendered a number of documents that corroborate that he himself holds Sudanese citizenship, including: a valid Sudanese passport issued to him in 2013;16 an expired Sudanese passport;17 a certificate of Civil Register issued on XXXX XXXX, 2013 indicating that he obtained citizenship through naturalization;18 and a Certificate of Citizenship through naturalization that was issued in 2005.19 [25] An examination of the recording of the hearing indicates that the Appellant testified that he did not want to exercise his right to go to Sudan because he believed that the passport was obtained by nefarious means by his father and that he was concerned that it would be discovered if someone conducted an investigation of how he obtained his citizenship. The RAD notes that the Appellant testified that he obtained citizenship in Sudan through naturalization as a minor. He further testified that, at the time he acquired citizenship by naturalization, he was 23 or 24 and that he believed his father did "something" to get around the fact that he was not a minor. He further testified that his expired passport shows a correction to his date of birth. [26] Furthermore, the Appellant argues that he has never lived in Sudan. He argues that since the nationality law of Sudan establishes that to be naturalized, he would have had to be a minor or to have lived in Sudan for five years, and his citizenship by naturalization must have been obtained by fraud. The Appellant has tendered a birth certificate as new evidence in this appeal. He relies on his birth certificate to support his allegation that he was granted naturalization as a minor because his birth certificate misrepresented his age. He argues that, because of this misrepresentation, his Sudanese nationality could be revoked. [27] The RAD is not persuaded by this argument. Although the birth certificate, which was issued in 2003, indicates that the Appellant was born in 1986 when he in fact was born in 1980, the RAD finds that the Appellant has not established that the naturalization was granted on the basis that his age was misrepresented on this birth certificate. [28] The Appellant's argument for submission of the new evidence suggests that, at the time of his RPD hearing, he was aware that his father had tendered a fraudulent birth certificate in order to obtain his citizenship. The RAD notes, however, that the Appellant's testimony with regard to how his father was able to obtain citizenship for him was vague and speculative. His testimony was that he believed that his father must have done "something" because he was not a minor at the time. [29] The RAD finds it reasonable to expect that, if the Appellant was aware of this information and was intending on tendering this document at his RPD hearing, as he has argued, he would have informed the panel member at his hearing. However, as noted, the Appellant's testimony about what his father did to acquire his citizenship in Sudan was vague and non-specific. [30] Furthermore, the RAD notes that although the Appellant claimed that his citizenship by naturalization was granted on the basis of the fraudulent birth certificate which states that he was born in 1986, the RAD notes that the Appellant's Sudanese passport,20 his expired Sudanese passport,21 and the Certificate of Civil Register, indicating that he obtained citizenship through naturalization,22 all bear his correct date of birth. The RAD finds it reasonable to expect that, if his citizenship was granted on the basis that he was born in 1986, these documents would reflect his date of birth as 1986. The RAD notes that the Appellant acknowledged that, while the expired passport may have initially contained an incorrect date of birth, it was subsequently corrected to reflect his true date of birth. [31] The RAD finds, accordingly, little weight can be given to the birth certificate as evidence that it was used to obtain his citizenship. [32] The RAD also notes that the nationality law of Sudan has a provision for the granting of citizenship by naturalization regardless of age or the need for residency. Section 9 of the Act states that: Notwithstanding any provision to the contrary in this Act, the President of the Republic may, upon the recommendation of the Minister, grant Sudanese nationality by naturalization to any alien.23 [33] The RAD also notes that the Appellant acknowledged in testimony that his current Sudanese passport is a valid passport and that he could travel to Sudan on the strength of that passport. The evidence reveals that the Appellant has exited and entered Saudi Arabia numerous times on the strength of that passport. The RAD finds it reasonable to expect that, if his citizenship was granted on the basis that he was born in 1986, as he had alleged, then his passport and his certificate of naturalization would reflect his age as such. The RAD finds that this undermines that the Appellant's allegation that his citizenship was gained by fraudulent means. [34] In addition, the Appellant has acknowledged that he has had Sudanese citizenship since 2003 and that he has had at least two Sudanese passports issued to him on the basis of his Sudanese citizenship-the most recent passport being issued in 2013. He had used that passport to travel internationally and has experienced no difficulty. There is no evidence that he has ever been accused or suspected of obtaining his citizenship through fraudulent means. The RAD further finds his ability to acquire Sudanese passports and to travel internationally on the strength of those passports undermines his allegation that his passport or citizenship could be perceived to have been acquired through fraudulent means. [35] The RAD finds that there is insufficient evidence in the record which establishes that the Appellant's naturalization was based on his status as a minor or that this birth certificate was the evidence relied upon by the Sudanese authorities to grant his citizenship. [36] The RAD finds that the passport is prima facie evidence of the Appellant's Sudanese citizenship and that the Appellant has a right to travel to Sudan-a fact acknowledged by the Appellant. The Appellant has not alleged that he will be persecuted or that he is at risk of harm in Sudan. As the Appellant's Sudanese citizenship is dispositive of this appeal, there is no need to consider Article 1E. CONCLUSION [37] On the basis of the totality of the evidence and the cumulative findings and negative inferences noted above, the RAD agrees with the RPD and finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that, on a balance of probabilities, he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Sudan. [38] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau December 8, 2016 Date 1 Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Reissued, Geneva, December 2011. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022. 6 Raza, 2007 FCA 385, para. 13.3(a). 7 Raza, 2007 FCA 385, para. 16. 8 Raza, 2007 FCA 385, para. 13.5(b). 9 Raza, 2007 FCA 385, para. 13.5(a). 10 Raza, 2007 FCA 385, para. 13.3(b). 11 Raza, 2007 FCA 385, para. 13.5(a). 12 Raza, 2007 FCA 385. 13 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022. 14 Exhibit RPD-1, RPD's Record, Appellant's Basis of Claim, question 4, p. 14. 15 Exhibit RPD-1, RPD's Record, Appellant's Basis of Claim, question 5, p. 14. 16 Exhibit RPD-1, RPD's Record, Exhibit 5, pp. 128-141. 17 Exhibit RPD-1, RPD's Record, Exhibit 6, pp. 158-159. 18 Exhibit RPD-1, RPD's Record, Exhibit 6, pp. 156-157. 19 Exhibit RPD-1, RPD's Record, Exhibit 6, pp. 165-166. 20 Exhibit RPD-1, RPD's Record, Exhibit 5, pp. 128-141. 21 Exhibit RPD-1, RPD's Record, Exhibit 6, pp. 158-159. 22 Exhibit RPD-1, RPD's Record, Exhibit 6, pp. 156-157. 23 Exhibit RPD-1, RPD's Record, Exhibit 4, National Documentation Package (NDP) for Sudan (May 31, 2016), item 3.1, Sudan: The Sudanese Nationality Act 1994 and Sudanese Nationality Act (Amendment) 2011. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10922