TB6-05096

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 :TB6-05096 TB6-05097 TB6-05098 TB6-05099 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX (A.K.A XXXX XXXX XXXX) XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 13, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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) and her children: XXXX XXXX (a.k.a. XXXX XXXX XXXX) XXXX XXXX XXXX, and XXXX XXXX XXXX (the co-Appellants) are citizens of Nigeria. XXXX XXXX XXXX is also a citizen of the United States of America (USA).They appeal a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision with its own determination that the Appellants are Convention refugees. In the alternative, the Appellants request that the RAD refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(c) and 111(2)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Appellant alleges the following: [4] The family of the Appellant's partner, having discovered that she is bi-sexual, wishes to bring her and her children to their home town to have them undergo some cleansing rituals. Fearing physical harm for her and her children, the Appellant has fled with them to Canada. [5] The Appellants' claim for refugee protection was heard on January 25, 2016. [6] In a decision of March 23, 2016, the RPD rejected the claim for lack of credibility and the Appellant's failure to satisfactorily establish her identity. THE ISSUES [7] The Appellants submit the following issues1 as grounds for appealing: * Whether the Panel erred in its assessment of the Appellant's identity. * Whether the Panel erred in its assessment of the Appellant's credibility. * Whether the Panel erred in its assessment of the documentary evidence. ROLE OF THE RAD [8] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica2 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [9] In light of the Court's ruling, when conducting an appeal of a determination by the RPD the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ANALYSIS Admissibility of Evidence Submitted on Appeal [10] Section 110(4) of the IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants. Application of Section 110(4) [12] The following new evidence was submitted by the Appellant to the RAD and must meet the test described as outlined in Section 110(4) in order to be admissible: [13] Attestation letter from XXXX XXXX (dated XXXX XXXX, 2016).3 [14] Appellant's Affidavit (dated XXXX XXXX, 2016).4 [15] Attestation letter from XXXX XXXX XXXX (dated XXXX XXXX, 2016).5 [16] 60th Birthday Invitation (undated).6 [17] Email correspondence with US XXXX in Lagos, Nigeria.7 [18] The RAD has considered the documents submitted by the Appellants as new evidence and finds them admissible pursuant to section 110(4). MERITS OF THE APPEAL Identity [19] The RPD found that the Appellant did not satisfactorily establish her identity. It noted that the Appellant indicated in her Basis of Claim (BoC) form,8 her Generic Application Form for Canada,9 and in her Schedule A Background Declaration10 that her name is XXXX XXXX XXXX and that her date of birth is XXXX XXXX, 1980. It further noted that the Appellant answered "NO" to having ever used any other name or date of birth. Biometric information, however, indicates that the Appellant had used a different name and date of birth when she applied for visas to the USA. In her USA visa application, she used the name XXXX XXXX XXXX and the birth date of XXXX XXXX, 1977. The RPD further noted that the Appellant did not amend her forms to indicate that she had used the identity reflected in the biometric information until she received notice of the Minister's intervention which included the biometric information.11 The RPD subsequently found that the Appellant did not satisfactorily establish her identity. [20] The Appellant submits that the RPD erred in its assessment of her identity. She confirms that she had made two visa applications to the USA in the name of XXXX XXXX XXXX and the birth date of XXXX XXXX, 1977. She indicates, however, that her name is in fact XXXX XXXX XXXX and her date of birth is XXXX XXXX, 1980. She submits that around the time she submitted visa applications to the USA, she was in a common law relationship with XXXX XXXX XXXX and had assumed his surname, which she used in her passport and USA visa applications. With respect to the use of the name "XXXX," the Appellant indicates that she uses both "XXXX" and "XXXX," having explained at the hearing that "XXXX" is simply a prefix that denotes royal lineage. [21] The Appellant submits that she amended her Generic Application Form prior to the RPD hearing, but that her counsel, at the time, did not submit the amended form until the day of the hearing. She submits that she should not be penalized for her counsel's error. She further submits that the RPD Rules provide claimants with the opportunity to amend their information. The Appellant also indicates that she goes by the name XXXX XXXX in all her identity documents, except for the USA visa applications and the passport used to obtain these visas With respect to the incorrect date of birth (XXXX XXXX, 1977) which was used to obtain the USA visas, she submits that the error was made at the passport office. The USA visa office was aware of the error and issued her a subsequent visa with which she travelled using her most recent passport. [22] The Minister intervened in this case in December 2015.12 The Minister's concerns involved the Appellant's identity and as result of the identity concerns, the Appellant's credibility as well. The Minister's concerns were based on the results of biometric information provided by USA authorities. As already indicated, the biometric information provided by the USA gives the Appellant's identity as XXXX XXXX XXXX with a birth date of XXXX XXXX, 1977. The biometric information is different from the information she provided in her claim and the biographic information in the passport she used to enter Canada in XXXX 2015. The Minister further noted that neither the Appellant's BoC nor any of the associated documentation she submitted as part of her claim indicated that she had ever used any other identity (name or date of birth) and in fact in her Generic Application Form for Canada she indicated "NO" to having ever used any other names or identities. [23] The RAD notes that during the RPD hearing, the Appellant was asked if she had informed her counsel that she had used the name "XXXX," to which she replied, "No." The following dialogue then ensued between the RPD and the Appellant's counsel: RPD: OK, so you did not tell counsel. And counsel when did you come to know? When you got the Minister's information?" COUNSEL: Yes, when I got the Minister's information but I was aware the two children are XXXX, I was aware that she was.... RPD: So when you got Minister's information you came to know she has used a second name? COUNSEL: Well I know she had use... she was married to XXXX but I didn't know about the US application, you know...like the claimant explained.13 [24] The RAD notes that the Appellant did not disclose, even to her counsel at the time, that she had used another identity. Although her counsel was aware that she had been in a common law relationship with XXXX, because two of her children have his name on their birth certificate, the counsel was not aware that she had made two visa applications to the USA using the name of her previous common law partner. It was not until the Minister's disclosure of the USA biometric information that the counsel became aware of the use of the second identity. [25] The Appellant submits that her true identity is XXXX XXXX XXXX and has provided the following documents as proof of her identity: Passport,14 Birth Certificate,15 Voter's Card,16 Driver's licence,17 Electronic Tax Clearance Certificate,18 and employment key card.19 The RAD accepts these documents as proof of her identity as XXXX XXXX XXXX. Credibility [26] In addition to the Appellant's identity, the RPD had a number of concerns also with her credibility. The RPD's concerns were mainly as a result of the absence of corroborative documentary evidence. The RPD noted, for example that the Appellant did not have any photographs showing that she and XXXX XXXX had attended the 60th birthday party of her husband's aunt where the Appellant's sexual orientation had been exposed to her husband's family by XXXX XXXX. Given the absence of any documentary evidence regarding this event which was central to the claim, the RPD found that the Appellant had fabricated her story about XXXX XXXX exposing her sexual orientation to her in-laws. The RPD therefore did not believe that the family of the Appellant's husband had targeted the Appellant and her children for ritual cleansing. [27] The Appellant submits that the RPD has not provided a valid reason to negate the principle of presumption of truthfulness, 20 with respect to the incident at the 60th birthday party of the husband's aunt. The Appellant also submits that the RPD violated the same principle and erred by unreasonably expecting her to provide photographic evidence of her same-sex relationship with XXXX XXXX, a relationship that took place some 22 years ago. [28] The Appellant further submits that the RPD erred in its reasoning when it questioned the authenticity of the passport pages of XXXX XXXX, another same-sex partner who provided a letter of support.21 The Appellant submits that the RPD has impugned her credibility for not having photographic evidence and then challenged the authenticity of photographic evidence when it is produced. She further submits that while the RPD has criticized her for not having produced documentary evidence in certain cases, it has not considered or properly considered documentary evidence that was available. [29] The RAD concurs with the Appellant and finds that the RPD has erred with respect to the Appellant's documentary evidence. It has impugned the Appellant's credibility for not having certain corroborative evidence and not accepted available evidence, challenging its genuineness. In both situations, the RPD has not provided valid reasons for its findings. It has placed the Appellant in a "no win" situation by starting with the assumption that she is not credible - thereby undermining the principle of presumption of truthfulness. [30] Notwithstanding its position on the RPD's findings, the RAD has significant concerns with the Appellant's use of an alternate identity in applying for her USA visas. The Appellant maintains that she assumed the surname of her ex-common law spouse, XXXX, the father of two of her children. Her identity documents such as her Birth Certificate, Voter's Card, and Driver's licence, however, are in the name that she now professes is her true identity: XXXX XXXX XXXX. Her motivation in using the alias, XXXX XXXX XXXX is unclear. She was never legally married to XXXX and the only documents she has which connects her to that name are two of her children's birth certificates. [31] The Appellant has submitted, as new evidence, a letter from XXXX XXXX22 (dated XXXX XXXX, 2016) which states that she had adopted the name XXXX "about 10 years ago," which would be around 2006. The RAD notes she applied for the USA visas in XXXX 2004 and in XXXX 2007. It is not clear as to when the relationship with XXXX ended. The two children she had with XXXX were born in XXXX 2002 and XXXX 2005 so one can assume that she was with him during some or all of that period. There is, however, no evidence before the RAD which clearly indicates the actual period that the Appellant was with XXXX, providing at least some rationale for her use of that name. If her motivation for using XXXX name was being in a common law relationship with him, the RAD questions why she has not also assumed the surname of the current common law spouse, XXXX XXXX XXXX. She indicates that he has been accepting of her bi-sexuality, that all her children view him as their father, and who by all accounts is certainly deserving of having her adopt his name. [32] The Minister notes that the Appellant did not declare the time spent in the USA, even though she was in the country for at least one month. The Minister finds that her failure to declare the alternate identity used in her USA visa applications and also to declare her stay in the USA raises serious credibility concerns. The Minister concludes that given those concerns and in light of her arrival in Canada from the USA, it is highly likely that the Appellant was in the USA for a significant period of time, which could include the date of August 01, 2015 - the day she alleges that her sexual orientation was exposed. CONCLUSION [33] The RAD is unable to confirm or set aside the RPD decision without hearing evidence that was presented at the RPD hearing and therefore exercises its discretion under section 111(1)(c) of the IRPA to refer the matter back to the RPD for redetermination by a differently constituted panel. (signed) "Anthony da Silva" Anthony da Silva July 13, 2016 Date 1 Exhibit P-2, Appellant's Record, Memorandum, at p. 175. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, at p. 162. 4 Exhibit P-2, Appellant's Record, at pp. 18-23. 5 Exhibit P-2, Appellant's Record, at p. 163. 6 Exhibit P-2, Appellant's Record, at p. 164. 7 Exhibit P-2, Appellant's Record, at pp. 166-167. 8 Exhibit RPD-1, RPD's Record, at pp. 17-30. 9 Exhibit RPD-1, RPD's Record, at pp. 77-78. 10 Exhibit RPD-1, RPD's Record, at pp. 87-90. 11Exhibit RPD-1, RPD's Record, Notice of Intervention, exhibit 7, at pp. 225-234. 12 Exhibit RPD-1, RPD's Record, at pp. 225-234. 13 Audio Recording of RPD Hearing. 14 Exhibit RPD-1, RPD's Record, at pp. 100-107. 15 Exhibit RPD-1, RPD's Record, at p. 294. 16 Exhibit RPD-1, RPD's Record, at p. 293. 17 Ibid. 18 Ibid. 19 Ibid. 20 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 21 Exhibit RPD-1, RPD's Record, at pp. 259-260. 22 Supra, footnote 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05096 TB6-05097 TB6-05098 TB6-05099