TB8-20390

RAD File / Dossier de la SAR : TB8-20390 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 3, 2021 Date de la décision Panel Cynthia Pay Tribunal Counsel for the persons who are the subject of the appeal Daniel T. Kebede Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This decision is about XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Eritrea. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant alleges that he fears returning to Eritrea because he fears persecution on the basis that he escaped from serving in the mandatory National Service and because he left the country illegally. The RPD rejected his claim on the basis that he had not established his claimed identity on a balance of probabilities. He arrived in Canada by air but presented no identity documents and only scant details of his journey here to officials at the airport. He later obtained a birth certificate and student identification card in support of his claimed identity, which the RPD gave little weight because it found that the Appellant's account of how he obtained his birth certificate to be inconsistent with objective country condition evidence, and because the panel found that it could not identify whether the photo on the student card was that of the Appellant. The affidavits provided by the Appellant in support of his claimed identity were given little weight because the affiants were not present to identify the Appellant in person. The Appellant argues that the RPD erred in this finding and provides new evidence to the Refugee Appeal Division (RAD) in support of his claimed identity. After considering his arguments and all of the evidence, I disagree with and cannot uphold the RPD's findings on the Appellant's identity evidence. Because of outstanding credibility concerns that were not canvassed by the RPD, however, I am unable to substitute my own decision. As a result, I must return his claim to be re-heard by the RPD. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [3] The Appellant claims that the authorities in Eritrea are looking for him because he has escaped mandatory National Military Service and for leaving the country illegally, and that he will also face persecution on the basis of his attempt to claim refugee protection in Canada. He alleges that he was compulsorily drafted into National Military Service in XXXX 2017 in Eritrea. He attempted to escape and was sent into detention, where he claims that he faced inhumane treatment, but reports that he managed to escape from there in XXXX 2017 and made his way to Sudan. He then came to Canada with the assistance of a smuggler in XXXX 2018. Because he arrived with no identification documents and was viewed as providing little information on his journey to Canada, immigration officials recommended that he be detained. According to his testimony, the Appellant was released in XXXXorXXXX XXXX of that year. He made a refugee claim here in XXXX 2018, which was heard by the RPD on XXXX XXXX XXXX 2018. [4] In its oral reasons provided the same day, the RPD rejected the Appellant's claim on the basis that he had not established his identity. It found that his identity documents were insufficient, as the Appellant's account of how he obtained his birth certificate was inconsistent with objective country condition evidence about the application procedure, and because the the panel could not identify from the photocopy of the card whether the photo on the card was that of the Appellant. Further, it gave his affidavits little weight because the affiants were not present to testify and personally confirm that the affidavit was referring to the person who was at the hearing. As a result, the RPD found that there was insufficient evidence to establish his claimed identity. [5] The Appellant argues that the RPD erred in these findings, and he provides new evidence in support of his claimed identity and requests an oral hearing. He argues that the RPD erred in its assessment of the objective country condition evidence regarding the process to apply for birth certificates in Eritrea. Further, he submits that his student identification (ID) card was seized by Canadian authorities, and if the RPD had trouble assessing the photocopy available, they should have requested an opportunity to inspect the original, which was not available to him. In addition, he argues that the RPD erred in giving no weight to his affidavit evidence, as the panel should have at least considered it, even if the affiants could not attend in person to testify. Finally, he argues that the RPD erred in failing to consider objective country condition evidence which suggests that identity documents maybe be difficult to obtain, since Eritrean citizens are not allowed to travel outside the country and passport and exit visa applications are often denied. He submits that his evidence is sufficient to establish his identity and his claim. ANALYSIS ROLE OF THE RAD [6] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.2 In this appeal, I was able to review and clearly understand the recording of the hearing and the record, and I do not find that the RPD was in an advantageous position in assessing this evidence. I therefore do not apply a deferential standard. NEW EVIDENCE AND RULE 29 APPLICATION [7] The Appellant submits the following new evidence: * Affidavit of XXXX XXXX XXXX dated XXXX XXXX XXXX 2018;3 and * Letter from the Eritrean Canadian Community Centre of Metropolitan Toronto dated XXXX XXXX XXXX 2018, accompanied by a statement by XXXX XXXX XXXX dated XXXX XXXX XXXX 2018.4 The Appellant also provides an affidavit, which I accept regarding his explanation for why the new evidence is being submitted to the RAD. The Appellant argues that the new documentary evidence was not reasonably available at the time of the rejection of his claim. [8] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellant may present only evidence that arose after the rejection of his claim, that was not reasonably available, or that could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. If the new evidence meets one of the criteria set out in subsection 110(4), then the RAD may assess its admissibility further based on its credibility, relevance and newness.5 [9] Affidavit of XXXX XXXX XXXX: The Appellant provides an Affidavit of XXXX XXXX XXXX dated XXXX XXXX XXXX 2018. XXXX states that he met the Appellant in XXXX XXXX Eritrea in XXXX 2000 when he was visiting relatives who lived near the Appellant's family. XXXX stayed for two months and saw the Appellant regularly, and in future years as well, the last occasion in 2016. XXXX left Eritrea in 2017, and reconnected with the Appellant in XXXX 2018, when they met each other at a church celebration. The Appellant argues that this letter was not reasonably available at the time of the rejection of his claim in XXXX 2018, as he did not meet XXXX again until XXXX 2018. [10] I accept that this letter meets the criteria for new evidence as argued by the Appellant, as I accept his explanation that he was not in contact with XXXX until after the rejection of his claim. I find that this letter was not reasonably available at the time of the rejection of the Appellant's claim and further that the letter is relevant to his claimed identity. [11] Letter from the Eritrean Canadian Community Centre and statement by XXXX XXXX XXXX: The Appellant has provided a letter from the Eritrean Canadian Community Centre dated XXXX XXXX XXXX 2018, accompanied by a statement by XXXX XXXX XXXX dated XXXX XXXX XXXX 2018 for consideration as new evidence. He argues that this letter and note were not reasonably available at the time of the rejection of his claim as he did not know about the existence of this community organization serving the Eritrean community until after the rejection of his claim. I accept this explanation, as he arrived in Canada in XXXX 2018, was in detention for a few months, and had his hearing soon after in XXXX 2018. I find that the letter was not reasonably available until after the rejection of his claim, find that it is relevant, and admit the letter as new evidence. [12] The Appellant also makes an application under Rule 296 and requests to submit the following new evidence: * Affidavit of XXXX XXXX XXXX dated XXXX XXXX XXXX 2021; and * Excerpt from Canada Border Services Agency (CBSA) Disclosure document package dated January 11, 2021. [13] As provided under Rules 29 and 37 of the Refugee Appeal Division Rules, a person who does not provide a document or written submissions with their record must not use the document unless allowed by the RAD. A person must make an Application in accordance with Rule 377 and must also show that the documents meet the criteria for acceptance of new evidence under subsection 110(4) of the IRPA. In deciding the Application, the RAD must consider any relevant factors, including the document's relevance and probative value; any new evidence the document brings to the appeal; and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with their record. [14] The Appellant argues that these documents meet the criteria for acceptance under s.110(4) and that they will help to establish his identity. I accept that the documents meet the criteria for acceptance under Rule 29 and s.110(4), as they are new and could not have been provided with the Appellant's record; further, they are relevant to his claimed identity, and were not available at the time of the rejection of his claim. ORAL HEARING [15] The Appellant requests an oral hearing. Section 110(6) of the IRPA provides that the RAD may hold an oral hearing if there is new documentary evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Based on my review, I find that the new evidence would not justify allowing or rejecting the Appellant's claim, as although I cannot uphold the RPD's findings on the Appellant's identity evidence, I am also unable to substitute my own determination regarding his identity, as there are outstanding credibility issues in relation to his identity which were not canvassed during his RPD hearing. Further, because the RPD found that his identity was not established and that this was determinative, it did not canvass the Appellant's allegations. As a result, I find that I cannot provide an oral hearing. The RPD erred in its findings regarding the Appellant's identity evidence [16] Birth certificate: The RPD found that the Appellant's evidence regarding how he obtained his birth certificate was inconsistent with objective country condition evidence on the application process and gave it little weight. The Appellant testified that he applied for the birth certificate in 2013 with his mother and that they provided a copy of her ID card with the application, as he had previously had a birth certificate but it had been destroyed in a fire.8 The RPD found that this did not accord with the application procedure as set out in the objective country condition evidence, which stated that a baptismal certificate and witness statements were also needed. It also noted that the birth certificate was not issued contemporaneously to the Appellant's birth. As a result, the RPD assigned very little weight to the birth certificate. [17] The Appellant argues that the RPD erred in this finding, as it ignored other evidence in the National Documentation Package (NDP) that stated that the government of Eritrea does not issue birth certificates at birth but rather in response to an application; it does not record births contemporaneously; and that it has changed its policy and procedure regarding identity documents several times. [18] Based on my review of the evidence provided in the NDP for Eritrea, I agree and find that the RPD erred in this finding, as I find that the evidence regarding the application process for birth certificates does not indicate a clear and consistent process. As noted by the RPD, one source quoted in the objective country condition evidence states that a hospital birth record, baptismal certificate and witness statements are required.9 The same document states that for replacement birth certificates, a request can be made to the municipality where the birth was previously registered. No further details about that process are provided.10 Another document in the NDP states that less than 40% of births are registered in Eritrea, and that birth certificates issued 90 days after birth require a government-issued clearance paper plus the presentation of the child with three witnesses to verify their identity. Further, this document states procedures for the issuance of civil status documents are different throughout the country.11 A third document describes the process as involving writing to the Area Administration to request a birth certificate. The Area Administration will check the registration of the family in the physical file; if the person is not registered, a vaccination card, support letter of the local administration, and parent ID cards will be required.12 Based on my review of the objective country condition evidence, I disagree with the RPD's finding that the birth certificate should be given little weight because his account of how he obtained it was not consistent with the objective country condition evidence about the process, as a number of different processes are described. [19] I find, however, that the provenance of the birth certificate was not canvassed at the Appellant's hearing and has not been established, and I am unable to make my own determination of the authenticity and weight to be accorded to this document. The Appellant had no identity documentation when he arrived in Canada and testified that he received the birth certificate and student ID card "by post" in XXXX 2018 when he was in detention.13 These documents were seized by CBSA and only photocopies were available at the Appellant's RPD hearing. Neither the panel or the Appellant's representative asked him how he obtained these documents and where they came from. I find that this is a significant gap in the evidence regarding the Appellant's identity documents, which prevents me from being able to fully assess this evidence. [20] Student ID card: The Appellant provided a student ID card that he received after he arrived in Canada and was seized by Canadian authorities while he was in detention. Only a photocopy was available at the RPD's hearing. The panel found that it was unable to identify the Appellant as the person who was represented in the photograph on the card. [21] The Appellant argues that the RPD erred in this finding, as it has been seized by Canadian authorities, and he had no ability to obtain the original. He argus that if the panel had concerns, it could have requested the original document for inspection. [22] I agree with the Appellant's argument, and find that the RPD erred in faulting the document on the basis of the poor quality of the photocopy, when the Appellant had no ability to obtain the original card for inspection by the RPD. I agree that the panel should have requested the original or at least a better copy if it had concerns with the quality of the photocopy, or should not have made a finding on this basis if it did not do so.14 [23] Affidavits: The Appellant provided three affidavits in support of his claimed identity. The RPD found that one of the affidavits was not translated and gave it no weight, although the original draft in English was provided. The other two were also given little weight because the affiants were not present to identify the Appellant in person as the individual appearing before the RPD, and found that there was very little evidence in support of the Appellant's claimed identity. [24] The Appellant argues that the RPD erred in doing so, as they were sworn documents, and both affiants claimed that they knew him since childhood. Further, the RPD should have given him an opportunity to bring his witnesses, since it rejected most of his other identity evidence. [25] I agree that the RPD erred in giving the affidavits little or no weight, as they were sworn documents, and should have been considered by the panel. [26] In summary, I disagree with the RPD's findings on the Appellant's identity evidence and cannot uphold its decision. Outstanding credibility issues regarding the Appellant's identity [27] The Appellant has submitted new evidence in support of his claimed identity, and requests that the RAD substitute its own determination that he has established his identity and his claim. [28] Based on my review of the evidence, I find that, despite his new evidence, there are significant outstanding credibility issues in relation to his claimed identity and I am unable to substitute my own determination. [29] As discussed above, the Appellant has provided a copy of a birth certificate and a student ID card, but the issue of how he obtained these documents was not addressed by the Appellant or canvassed by the RPD. He testified that he obtained them by mail after his arrival in Canada but did not explain how he obtained them. There is no evidence regarding who sent these identity documents to him or where they came from. In the circumstances of this case, I cannot find that these documents are authentic or credible in the absence of any evidence regarding how they arrived in Canada. [30] Further, as noted by the CBSA, the Appellant has provided only very sparse information regarding his travel to Canada. As outlined in the CBSA documentation, he arrived at Pearson International Airport with no travel documents or identification. He claimed that he travelled from Eritrea to Sudan on foot, where he was helped by a man named XXXX to fly to Egypt. Another man named XXXX helped him to board a plane from Egypt to Canada but exited the plane after boarding. He states that he was shown a passport by XXXX, but it was never given to him. He claims that his travel was arranged by his sister, who lives in Switzerland, but he could not provide her address or phone number. He stated that he did not know what flight he arrived on or which airline that he took to Canada.15 The issue of the Appellant's travel to Canada was not canvassed or explained during the Appellant's RPD hearing. I find that this issue is a significant outstanding credibility concern with respect to both his identity and his allegations, as the question of where he was and how he travelled to Canada was not canvassed during his RPD hearing. [31] Another outstanding credibility issue regarding the Appellant's identity involves the fact that he claims to have never obtained a National Identity Card, which according to the objective country condition evidence is mandatory for everyone in Eritrea after age 18.16 He claims that his mother suggested that he needed to obtain a birth certificate at this age,17 but it is unexplained why he was not required to obtain a National Identity Card, especially since he claims that he was applying for other identity documentation from the government at the age of 18. When asked by the panel why he did not obtain a National Identity Card, since he was supposed to obtain one at that age, the Appellant testified that he was not interested in getting it while he was there.18 I find that this is unexplained, as the Appellant would have turned 18 in XXXX, but he remained in Eritrea for five more years after that, and claims that he was enrolled in school and was working during that time. [32] I note further that the question of why the Appellant did not provide any supportive evidence from family members that he claims are still in Eritrea, including his parents and wife, was also not addressed during his hearing. He claims in the affidavit provided with his appeal that he was unable to obtain corroboration from his family in Eritrea, but this issue was not canvassed in his RPD hearing. [33] Although the Appellant has provided a number of affidavits in support of his claimed identity, including affidavits by XXXX XXXX,19 XXXX XXXX XXXX,20and XXXX XXXX XXXX,21 who all claim to have known the Appellant in Eritrea, I find that they are insufficient to establish his identity in the context of the credibility concerns outlined above. XXXX states that he knew the Appellant since childhood, but provides little detail in his affidavit such as when they last had contact; XXXX affidavit is similarly terse, simply stating that: I confirm to you that I know XXXX XXXX XXXX XXXX, I have known him since childhood when I was working in XXXX XXXX Eritrea. I was a businessman at that time. I also know his entire family in Eritrea, particularly his mother, XXXX XXXX and his father XXXX XXXX.22 A letter from the Eritrean Canadian Community Centre states that the organization verified the Appellant's identity based on their interview with XXXX XXXX XXXX, who provided a statement confirming that he knew the Appellant as a child in Eritrea, but that he left the country in 2009. I give this evidence some weight but find that it is insufficient to establish his claimed identity in the context of the significant gaps in evidence outlined above. Although the affidavits do provide corroboration of the Appellant's claimed identity, I find that this evidence does not overcome the credibility gaps that I have identified. [34] The Appellant has also provided documents from CBSA that he argues helps to establish his identity. This evidence consists of an affidavit of XXXX XXXX XXXX dated XXXX XXXX XXXX 2021 and XXXX XXXX XXXX 2021. Based on this evidence, it appears that the Appellant is currently, unfortunately, experiencing homelessness, and was arrested on XXXX XXXX XXXX 2021 by Toronto Community Housing Special Constables for trespassing, as he is "actively seeking shelter day to day."23 He was transported to the Immigration Holding Centre in Toronto and is currently in detention. [35] The CBSA Notice of Arrest under the IRPA provided with the CBSA materials includes the following statement: IDENTITY DOCUMENTS XXXX XXXX XXXX XXXX did not have any identity documents with him at the time of arrest however his identity is established.24 The Appellant argues that this evidence, in addition to his other evidence, establishes his identity. [36] Based on my review, I find that this additional evidence, along with the other evidence provided, is not sufficient to establish the Appellant's claimed identity. Although the document states that his "identity is established," I find that this conclusion does not mean that the Appellant's identity is established for the purposes of his refugee claim. It does not explain on what basis the CBSA made this conclusion. Further, this conclusion was made for the purpose of a notice of arrest by CBSA, not for a refugee claim, and does not include elements required for a refugee claim such as a determination of his nationality. Finally, it is not my own finding. Based on my review of the partial package of CBSA disclosure materials, I find that the statement by CBSA is a confirmation that the person arrested was the same person who has made this claim, and not that his claimed identity for the purpose of his refugee determination has been confirmed. [37] Finally, the Appellant argues that the RPD erred in failing to consider objective country condition evidence which suggests that identity documents maybe be difficult to obtain, since Eritrean citizens are not allowed to travel outside the country and passport and exit visa applications are often denied, and that the RAD should also consider this context. I consider this submission, but also note as discussed above that there is information in the NDP which suggests that identification documents such as the National Identity Card are not only available, but mandatory for all citizens over 18. Summary of RAD findings [38] On the basis of the errors discussed above, I disagree with and find that I cannot uphold the RPD's findings on the Appellant's identity evidence. I cannot substitute my own determination in the Appellant's claim, however, as I find that there are too many gaps in the evidence regarding his identity and further, none of his allegations have been canvassed. CONCLUSION AND DIRECTION [39] On the basis of the findings outlined above, I allow the appeal and I send this matter back to the RPD to be redetermined by a differently-constituted panel. [40] I direct the RPD to request that the Appellant's original birth certificate and student ID. card be provided for inspection by both the panel and the Appellant. (signed) Cynthia Pay Cynthia Pay February 3, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Huruglica, ibid., at para. 70; X(Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant's Record, at pp. 8-9. 4 Ibid., at pp. 11-13. 5 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII), cited in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230, at para. 64. 6 Exhibit P-3, Rule 29, January 25, 2021. 7 Rule 37, Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/ 2012-257. 8 RPD Hearing Recording, May 15, 2018, at approx. 0:19, 0:38-0:43. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Eritrea (April 30, 2018), item 3.6: Identification documents, including national identity cards and birth certificates; requirements and procedures for obtaining and renewing identity documents, both within the country and abroad (2009-August 2013), Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) ERI104539.E, 16 Sepetember 2013, at p. 5. 10 Ibid., at pp. 5-6. 11 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Eritrea (April 30, 2018), item 3.10: Requirements and procedures to obtain a birth certificate, both within and outside the country; information on regional differences (2014-May 2017), IRB, RIR ERI105812.E, 6 June 2017. 12 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Eritrea (April 30, 2018), item 3.9: Birth certificates issued by the Public Registration Office of Zoba Maekel [Maakel] (Central Zone); including whether the certificate has a standard format and appearance (2013-November 2014), IRB, RIR ERI105012.E, 2 December 2014, at p. 1. 13 RPD Hearing Recording, May 15, 2018, at approx. 0:17-0:19. 14 I acknowledge, however, that the panel explained at the beginning of the hearing that the file had only been assigned to them 15 minutes before the hearing began. 15 Exhibit RPD-2, Revised RPD Record (July 23, 2020), Exhibit 2, at pp. 52-53, 74-75. 16 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Eritrea (April 30, 2018), item 3.6, supra, footnote 9, at p. 1. 17 RPD Hearing Recording, May 15, 2018, at approx. 0:19-0:20. 18 Ibid., at approx. 0:20. 19 Exhibit RPD-2, Revised RPD Record (July 23, 2020), Exhibit 6, at p. 111. 20 Exhibit RPD-2, Revised RPD Record (July 23, 2020), Exhibit 7, at p. 178. 21 Exhibit P-2, Appellant's Record, at pp. 8-9. 22 Exhibit RPD-2, Revised RPD Record (July 23, 2020), Exhibit 7, at p. 178. 23 Exhibit P-3, Rule 29, January 25, 2021, at p. 16. 24 Ibid., at p. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-20390 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