TB5-02104

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 : TB5-02104 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXa.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 11, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Swathi Sekhar 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 China. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find her to be a Convention refugee or refer her claim back to the RPD for redetermination by a differently-constituted panel. NEW EVIDENCE ON APPEAL [2] The Appellant submitted new evidence in support of her appeal. The RAD will not deal with this new evidence in that it does not deal with the determinative issue in this claim; identity. The new evidence presented is related to the Appellant's circumstance regarding the birth of her child in Toronto and the subsequent problems that have occurred. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act1 (IRPA), the RAD confirms the determination of the RPD, but for different reasons. The Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Memorandum of appeal [4] The Appellant argues that she was declared a vulnerable person and that the RPD ignored the psychological evidence. The Appellant argues that the internal flight alternative (IFA) for China, which was given in the RPD`s decision, is untenable. Background [5] The Appellant was born and lived in a small village in the XXXX part of China close to Dongguan city. The Appellant described a difficult upbringing by her parents and an uncle. At 15 years of age, XXXX 2006, after attending a restaurant with her uncle, she was kidnapped by two men, beaten and raped. The Appellant was sold to a warlord who continually beat and raped her. In 2009, the Appellant became pregnant for the first time and was taken to a local hospital for an abortion. The second pregnancy in 2012 ended the same way. OnXXXX XXXX XXXX, 2014, the Appellant realized that she was pregnant again, and the rapist who committed this act, fearful of repercussions from the warlord, provided her with false documentation and drove her to the airport. The Appellant came to Canada via Bangkok. The Appellant received support from some people in Chinatown, Toronto, and was driven to the FCJ Refugee Center. [6] The Appellant's refugee hearing was held on December 23, 2014, and in a decision dated February 4, 2015, the refugee claim was denied. ROLE OF THE RAD [7] The Appellant submitted that the standard of review should be reasonableness. [8] The RAD finds that the Federal Court 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: 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 [Appellant] 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.3 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."4 [9] 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 in 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. Merits of the Appeal [10] The RPD found that the Appellant was a citizen of China, and that the she had a legitimate IFA in Fujian, China. [11] The Appellant submitted one identity document: a birth certificate.5 The date of issuance of the birth certificate is XXXX XXXX, 1991, and the alleged date of birth of the Appellant is XXXX XXXX, 1991. According to the most recent National Documentation Package (NDP), China did not begin using the format of the birth certificate presented by the Appellant until 1996.6 [12] The Resident Identity Card (RIC) numbers of her alleged parents, listed on the alleged Birth Certificate, had 18 digits. The NDP states that the Chinese government began issuing 18 digit numbers for the RIC in 1999. [13] The RAD finds, on a balance of probabilities, that the birth certificate given in documentation is fraudulent and does not prove the identity of the Appellant. [14] Section 106 of the IRPA states that: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.7 [15] Rule 11 of the RPD Rules states that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.8 [16] The RAD sent a letter to the Appellant's counsel, XXXX XXXX, on May 1, 2015 with a request for a submission on the issue of identity and the issues noted concerning the birth certificate submitted. The submissions were due on May 8, 2015. The RAD received a phone call on May 11, 2015 requesting an additional day or so. The Appellant's counsel was given until Tuesday, May 12 to make a submission on this issue of the birth certificate or the identity of the Appellant. A copy of the letter is included in the file. [17] The Appellant's submission was received by the RAD on May 12, 2015. [18] The Appellant submitted an affidavit reaffirming the date of her birth, and stating that one day in 2006, her uncle had given her the birth certificate in a restaurant. She further states that the certificate has been in her sole possession since, and no one has ever taken it for any purpose. [19] The Appellant submits, given that she was an unregistered second child, that this birth certificate corroborates her account of events. The Appellant further submits that given her uncle was going to sell her, he would have obtained this birth certificate sometime between 1999 and 2006. The Appellant further submits that if the RAD has questions about the actual authenticity of the Appellant's identity document, it is open to the RAD to send it to the RCMP for forensic analysis. [20] The Appellant supports her identity as a Chinese, and as a black child by her language, dialect, and her inability to speak English. The Appellant also submits that her identity is established by her knowledge of policies related to her circumstance in China. [21] The Appellant further submits that her identity is established by the evidence submitted by friends, doctors, and service providers in Canada confirming her story. [22] The RAD considered the jurisprudence. In the Yip decision, the Federal Court held that the claimant has the fundamental obligation to establish his or her identity on a balance of probabilities.9 In the Kante decision, the Court affirmed that the claimant must come to a hearing with all of the evidence that he or she is able to offer and believes is necessary to prove their claim.10 [23] In the Su decision, Madam Justice Snider of the Federal Court stated the following: "Proof of identity is a pre-requisite for a person claiming refugee protection as without it, there can be no sound basis for testifying or verifying the claims of persecution or indeed for determining the applicant's true nationality."11 [24] More recently, in the Getaneh decision, Mr. Justice Shore of the Federal Court stated: The establishment of identity is the key by which to commence any immigration proceeding. Without the identification of an individual, no commencement point to a narrative exists. Every narrative needs a designation, a point of view of an individual from whom a narrative emanates. Without an identifiable individual, a story never formally begins.12 [25] The RAD finds that the birth certificate submitted is fraudulent, and because of the obvious discrepancies between the document and the NDP, it is not necessary to send the document to the RCMP for forensics. [26] With respect to the other documentation included by service providers and doctors, the information provided indicates a number of issues, but does not verify her identity. Her ability to have knowledge of Chinese, and speak the language, verifies that she has been brought up in, on a balance of probabilities, a Chinese environment, but does not establish her identity, place of birth or her Chinese nationality. [27] The Appellant submits that she is knowledgeable about matters as they refer to her particular situation as an unregistered child, and a black child. Again, this knowledge can be learned, and is not probative in determining the Appellant's identity. [28] After considering the documentary evidence and the jurisprudence, the RAD finds that the Appellant has not established her personal and national identity, on a balance of probabilities. Conclusion [29] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD but for different reasons. The Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner June 11, 2015 Date 1 As enacted by S.C. 2001, c. 27 [IRPA]. 2 Huruglica v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 [Huruglica]. 3 Huruglica, ibid., at para 54. 4 Huruglica, ibid., at para 55. 5 RPD's Record, Exhibit 1, Birth Certificates, pp. 48 and 49. 6 RPD's Record, Exhibit 3, National Documentation Package (NDP) for China (October 31, 2014), item 3.2. 7 IRPA, supra, footnote 1. 8 Rule 11, Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256 [RPD Rules]. 9 Yip v. M.E.I. (F.C.T.D., no. A-921-92), Nadon, October 27, 1993. 10 Kante v. M.E.I. (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. 11 Su v. M.C.I. (F.C., no. IMM-4632-11), Snider, June 14, 2012; 2012 FC 743, at para 3. 12 Getaneh v. M.C.I. (F.C., no. IMM-1091-12), Shore, November 1, 2012; 2012 FC 1279, at para 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5 02104