TB5-11733

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 : TB5-11733 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 26, 2016 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Miro Angelov 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] The Appellant, XXXX XXXX XXXX, is a citizen of China, and appeals a decision of the Refugee Protection Division (RPD) dated September 25, 2015, rejecting his claim for refugee protection. The Appellant is submitting new evidence and is requesting a hearing. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refers the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. Background [3] The Appellant fears returning to China because he fears persecution on account of his Falun Gong practice. He travelled to the United States in XXXX of 2004 where he alleges he made a claim for asylum which was denied. In XXXX of 2015, he successfully crossed the Canadian border at Niagara Falls, Ont., concealed in a car. At the RPD hearing the Appellant provided no documentation to establish his identity. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 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. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. MERITS OF THE APPEAL [6] The RPD found that the only issue was that of identity. It concluded that the Appellant had discharged the burden of establishing his identity. [7] The Appellant submits the following as new evidence: a) a copy of his Chinese passport which he obtained at the Chinese XXXX XXXX XXXX, b) a copy of his birth certificate, c) a copy of his residential card, d) a declaration signed by his brother with whom the Appellant has been residing since his arrival in Canada along with DNA tests e) a copy of the Birth Certificates of the Appellant's wife and his children f) copy of the declarations from the Appellant's village g) a copy of the Appellant's marriage certificate h) affidavit of the Appellant's wife i) a copy of the receipt from the Chinese XXXX XXXX XXXX2 [8] Prior to carrying out an analysis of these documents pursuant to s. 110(4), the RAD would like to make the following credibility concerns with respect to the Birth Certificate of the Appellant, the Birth Certificates of the Appellant's wife and his children, the Appellant's marriage certificate, the affidavit of the Appellant's wife, and the declarations from the Appellant's village. [9] Rule 28 of the RAD, specifically states that: 28 (1) All documents used by a person who is the subject of an appeal in an appeal must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator. (2) All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator. (3) A translator's declaration must include the translator's name, the language and dialect, if any, translated and a statement that the translation is accurate. [10] The Appellant submitted an affidavit from Mr. XXXX who declared that he translated the Appellant's resident card from Chinese into English.3 With respect to the copy of the Appellant's birth certificate, the copy of the Birth Certificates of the Appellant's wife and his children, the copy of the declarations from the Appellant's village, and the copy of the Appellant's marriage certificate, although there is an English translation of these documents, there is no affidavit of translation attached to them, as is required by Rule 28. The RAD, therefore, cannot ascertain that these documents have been properly translated from Chinese into English. The RAD therefore cannot accept these documents and will not carry out a S.110 analyses of these documents. NEW EVIDENCE Documentary Evidence [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) which states: On appeal, 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. The Affidavit of the Appellant's brother [12] The Appellant provided an affidavit from his brother to support his identity along with DNA results. The date of these documents is after the rendering of the RPD decision. With respect to the second test as to whether the Appellants could not reasonably have been expected in the circumstances to have presented the documents at the time of the rejection, the RAD finds that the Appellant could have presented this new evidence prior to the rejection of the claim since the document. [13] The Appellant's brother declares that the Appellant has been living with him in Toronto since the Appellant arrived in Canada in XXXX of 2015. The Appellant was aware that he had no documentation to support his identity when the RPD hearing was held. This affidavit, along with the DNA tests, could have been provided to the RPD by the Appellant since he had been living with his brother well before the date of the RPD hearing. The RAD therefore rejects this new evidence. The Appellant's residence card [14] The RAD notes that the card was issued to the Appellant on XXXX XXXX, 1988, which is prior to the RPD rendering its decision. The Appellant stated at the RPD hearing that he was not in possession of any identification documents. He has not provided any explanation to the RAD as to how he came in possession of the residence card, when he came in possession of it, and how he came into possession of it. There is nothing in the Appellant record that would indicate if the card was mailed to him from China, who mailed to him, when he received it, or whether he was in possession of it prior to the RPD hearing. The RAD, therefore, will not accept this document into evidence. The Appellant's Passport issued by the Chinese XXXX XXXX XXXX [15] At the RPD hearing, the Appellant alleged that he had Chinese passport prior to his arrival to Canada which had expired. He stated that he destroyed it because it was an expired passport. However, the RAD notes that an expired passport, although it may not be used for travel purposes, may still be utilized as a source of identity. The Appellant then submits as part of his new evidence, a passport issued to him by the Chinese XXXX XXXX XXXX XXXX. The passport is dated after the rendering of the RPD decision and therefore meets the first part of the test. [16] However, for reasons that follow, the RAD will not accept the passport into evidence. It is practical to assume that an individual does not walk into a counselor office and demand a passport without providing proof of citizenship of that country. The RAD safely assumes that the Appellant, when applying for his passport at the Chinese counselor office in Toronto, must have provided some identification documents in order for the XXXX to have issued him a passport. The question becomes not so much which documents did he present but when did he apply for his passport. The Appellant provided no evidence as to when he applied for his passport at the XXXX XXXX XXXX XXXX. [17] The RAD must repeat that, at the RPD hearing the Appellant provided no identity documents. If the Appellant applied for his passport prior to the RPD hearing, then he must have had in his possession identity documents which he did not present to the RPD. Even if these documents were in the possession of the XXXX XXXX, it was reasonable for the Appellant to notify the RPD that his identity documents were with the XXXX XXXX where he had applied for his passport. If the Appellant applied for his passport after the RPD hearing, there is no evidence as to when he obtained the identity documents which he submitted to XXXX XXXX XXXX, from whom he received it, how he received them, and when he received them. The decision of the RPD is dated September 25, 2015. The passport is dated XXXX XXXX, 2015. The Appellant submitted a pick up form indicating that he submitted his passport application to the XXXX XXXX on XXXX XXXX, 20154 which is just over a month and a half after the RPD decision. This means that within just over XXXX XXXX after the RPD decision, from XXXX XXXX, 2015 to XXXX XXXX, 2015, the Appellant asked for, and obtained his identity documents. [18] The RAD notes that the Appellant arrived in Canada in XXXX of 2015, and the RPD hearing was held XXXX XXXX after, on September 16, 2015. During that XXXX XXXX interval, the Appellant made no effort to obtain any identity documents. The RAD has a difficult time believing how an Appellant, who was represented by experienced counsel, being fully aware that he had to establish his identity to the RPD, made no effort to obtain any identity documents and yet, within a month of receiving his RPD decision, he presents identity document to the Chinese XXXX XXXX XXXX where he applied for his passport. For all of these reasons, the RAD does not accept the passport as new evidence. Merits of the Appeal [19] The RPD found that the main issue was identity. The RAD therefore will deal with the issue of identity. The issue before the RAD is not that the RPD made a finding with respect to the Appellant's identity based on the documents that the RPD did not believe. Rather, the RPD made a finding based on the fact that the Appellant provided no identity documents to the RPD. [20] S. 106 of the Act states: 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. [21] At the RPD hearing, the Appellant was questioned as to what documents were in his possession for him to establish his identity. He alleged that he had an expired Chinese passport prior to his arrival to Canada. He stated that the agent who assisted him in coming to Canada destroyed it after they crossed the Canadian border. The RAD does not agree with this explanation. The RAD notes that an expired passport, although it may not be used for travel purposes, may still be utilized as a source of identity. It was reasonable for the Appellant to have kept the expired passport as proof of his identity. [22] The Appellant alleged that he had made an asylum claim during his stay in the United States. The RPD questioned him extensively on whether he had any documents from his alleged asylum application in the United States. He stated that he did not have any. From the oral evidence at the RPD hearing, the RAD concludes that the Appellant made no effort to obtain any documents from the United States asylum application which may have assisted him in establishing his identity at the RPD hearing. [23] The Appellant submits to the RAD that he notified the RPD at the hearing that he had identity documents in his possession.5 However, the Appellant did not identify in his Record to which documents he was referring to. [24] The RAD, therefore, agrees with the finding of the RPD that the Appellant had no identity documents in his possession at the time of RPD hearing and that he did not provide a reasonable explanation for his lack of documentation. DECISION [25] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a convention refugee nor a person in need of protection. [26] The Appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino April 26, 2016 Date 1 Huruglica: 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. 39-81. 3 Exhibit P-2, Appellant's Record, at p. 47. 4 Exhibit P-2, Appellant's Record. 5 Exhibit P-2, Appellant's Record, at p. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11733