TB5-02743

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 : TB5-02743 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX a.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 17, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Douglas Lehrer 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), who claims to be a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee; in the alternative, he requests that the RAD set aside the decision and refer the claim back to the RPD for re-determination. This appeal is before the RAD for the second time, following the first appeal, it was sent back from the RAD to the RPD, with no directions for re-determination. The RPD's re-determination is now being appealed, therefore, the RAD will conduct its own assessment of this appeal. Determination [2] Pursuant to Section 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 alleged before the RPD that he is a citizen of Iraq. He claims to be a Kurdish citizen living in the city of XXXX. He was detained after being kidnapped by the terrorist group Al Qaeda. The Appellant was able to escape his captors and travelled to Turkey, France, Mexico and eventually entered Canada at Pearson Airport where he attempted to make a refugee claim, but was advised that the immigration office there was closed and left to exit the airport without any identity documents. [4] The Appellant's refugee claim was heard on October 21, 2014. In a decision of March 9, 2015, the RPD rejected his claim on the basis of identity and credibility. The Appellant relied upon a copy of his Iraq citizenship certificate and a Civil Status identity card as proof of identity, but the RPD panel concluded that evidence relating to the Iraq citizenship and national identity card was not enough, because the evidence given by the Appellant was internally inconsistent, especially as to their use, and issuance. The RPD put little weight on them citing documentary evidence indicating widespread fraud of identity documents.1 [5] The Appellant asks that the RAD set aside the RPD's decision and refer the matter for redetermination by a different panel of the RPD. If the RAD doubts the veracity of the declarations in the Appellant's affidavit, the Appellant requests that an oral hearing be held, pursuant to Section 110(6) of IRPA. ANALYSIS Role of the RAD [6] The Appellants have made submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent 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: [54] 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 claimant 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. [55] 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." [7] 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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: Affidavit of XXXX XXXX dated April 10, 2015.3 Appellant's memorandum [10] Portions of this memorandum set out the basis of the Appellant's refugee claim-information which predates the rejection of his claim and has already been presented to the RPD-which is already before the RAD as part of the RPD record. Page 39 of the memorandum expresses the Appellant's request to admit the new evidence; pages 48 and 49 attempt to explain why the new evidence should be admitted, pursuant to section 110(4) of the IRPA. However, the vague explanation by the Appellant is not sound, as the content of the affidavit does not provide persuasive evidence regarding the confirmation of the personal identity of the Appellant by the affiant. [11] Could the Appellant reasonably have been expected, in his circumstance, to have presented this document to the RPD before his claim was rejected? Refugee claimants have an obligation to establish their identity, on a balance of probabilities.4 Section 106 of the Immigration and Refugee Protection Act 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.5 [12] Similarly, Rule 11 of the Refugee Protection Division Rules requires 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.6 [13] The Basis of Claim (BoC) form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."7 [14] The Appellant was represented by competent counsel before the RPD. He could reasonably have been expected to know that identity was an issue, given the references to the issue in the Act, the Rules, and the BoC form. Despite this, the only identity documents he provided were two impugned documents, his Iraq citizenship certificate and a Civil Status identity card. In contrast, the new evidence submitted by the Appellant to the RAD is an affidavit from the interpreter that assisted him with his counsel, and that affidavit merely states that the Appellant speaks the Kurdish Sorani language. The affidavit does not confirm or establish the identity of the Appellant; it only establishes that he speaks the language. As such, the RAD does not find these documents persuasive and as a result does not accept these documents as proof of his identity. [15] The RAD finds that the new proposed evidence presented by the Appellant did not arise after the rejection of his refugee claim, was reasonably available for presentation to the RPD, and that the Appellant reasonably could have been expected, in the circumstances, to have presented them before his claim was rejected. The submitted affidavit does not meet the test in section 110(4) of IRPA and therefore is not admitted as new evidence in this appeal. [16] This appeal does not rest solely on the new evidence presented; the Appellant also challenges the RPD's findings on the Appellant's identity. Application for an Oral Hearing [17] The Appellant did not ask that an oral hearing be held, pursuant to Section 110(6) of IRPA, unless the RAD deemed one to be necessary. [18] The RAD has not admitted any of the new evidence submitted by the Appellant in support of his appeal. That paragraph does not raise serious issues with respect to the credibility of the Appellant, is not central to the RPD's decision, and cannot justify allowing or rejecting their refugee protection claims. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is not required and one will not be held. The RPD's Findings [19] The Appellant argues that the RPD made a number of errors in finding that he had not established his identity. Specifically: a) The Appellant argues that the RPD improperly drew an adverse inference from the Appellant's willingness and ability to use a false passport to travel to Canada. b) In assessing the Appellant's identity documents, the RPD failed to acknowledge the presumption of validly of foreign documents; c) The RPD improperly gave the Appellant's identity documents "little weight" - if they were fake, they should have been deserving of no weight; d) The RPD's finding that the circumstances of the Appellant's obtaining of his identity documents were uncorroborated by the country documentation was speculative in that there was no comprehensive evidence before the panel concerning Iraq's procedures or conditions for issuing identity documents and there was nothing in the documentation that did exist that contradicted the Appellant's evidence. [20] The RAD disagrees with the Appellant's arguments. The RPD cited clearly in its decision that its findings on the use of travelling with fake identity documents.8 The RAD reviewed the items which the RPD cited in its Reasons for Decision,9 Items 3.3, item 3.4 and 3.5 in the National Documentation Package (NDP). Those items clearly set out the procedure for the issuance, how to and when one can obtain the very documents that the Appellant presented and testified to. The item at 3.4 speaks specifically to the frequency of fraudulent certificates and 3.3 talks about the frequency of identity cards. After reviewing these items cited by the RPD in its decision, the RAD finds no error on the part of the RPD in its reference to or treatment of this evidence. [21] The RPD made its findings based on the documentation available regarding these two documents, although the RAD has not examined these documents, it would be realistic based on the evidentiary documents that these documents were given little weigh. The RPD had the opportunity to examine the documents-the RAD did not-and arguably, the RPD has some expertise in examining such documents; this presents a clear case for deference to the RPD's finding. The RAD finds that the RPD did not err in placing little weight on the Iraq Citizenship certificate and the Civil Identity card in support of the Appellant's allegations as the documentary evidence further supports the RPD's finding. [22] After assessing the evidence in this area, the RAD finds the RPD's unfavorable credibility findings on the Iraq Citizenship certificate and the Civil Identity card to be supportable. It was reasonable in light of the documentary evidence that was before the RPD. [23] In further assessing the evidence before it, the RAD finds that the RPD rather carefully noted deficiencies which were apparent on the face of the documents. The RPD had first-hand access to the documents and to the testimony of the Appellant, and has a degree of expertise in this area.10 The RPD is not required to have a document verified as long as there is enough evidence to cast doubt on its authenticity.11 In this instance, there was sufficient evidence to doubt the Iraq Citizenship certificate and the Civil Identity card. SUMMARY AND DETERMINATION [24] In regards to the identity findings made by the RPD, the RAD finds that the RPD has made sensible findings, and, as such, the RAD will not deal with the other credibility issues raised by the Appellant as they are moot due to the RPD's supportable finding that the appellant had not established his identity. [25] As he has not established his identity, neither the Appellant's refugee claim nor this appeal can succeed. [26] In assessing the evidence in its entirety in this area, the RAD arrived at the conclusion that the RPD's unfavorable findings regarding the personal and national identity of the Appellant are sound. The RAD concurs with those findings in light of the documentary evidence that was before the RPD. [27] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and as a result affords deference to the RPD's findings. The RAD also finds, on a balance of probabilities, that the evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. The RAD further finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that 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 Iraq. CONCLUSION [28] Pursuant to Section 111(1) (a) of 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 therefore dismissed. (signed) "LUIS F. AGOSTINHO" LUIS F. AGOSTINHO July 17, 2015 Date 1 Exhibit P-2, Appellant's record, RPD's Reasons for Decision, p.11, para. 30 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Exhibit P-2, Appellant's Record, RPD's Reasons, p. 10 4 Yip, Fu On v. M.E.I. (F.C.T.D., no. A-921-92), Nadon, October 27, 1993. 5 Immigration and Refugee Protection Ac S.C. 2001, c.27, s. 106. 6 Immigration and refugee Board, Refugee Protection Division Rules, SOR/2012-256. 7 Exhibit RPD-1, RPD's Record, Exhibit 2, Basis of Claim form. p.16 8 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 8, paras.14 -18 9 Exhibit P-2, Appellant's Record, RPD's Reasons and Decision, p. 13, paras. 28-31 10 Gasparyan, Sos v. M.C.I. (F.C., no. IMM-3496-02), Kelen, July 10, 2003, 2003 FC 863, para. 6. 11 Hossain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 160 at para. 4 (T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02743