TB4-11000

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 : TB4-11000 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX A.K.A. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 29, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt 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 (the Appellant) who claims to be a citizen of Tibet (China) by birth, appeals a decision by the Refugee Protection Division (RPD), denying his claim for refugee protection. The Appellant has submitted new evidence. He has not requested an oral hearing. He requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee. Alternatively he requests that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. Background [3] The Appellant alleged he was born in XXXX, Tibet on XXXX XXXX, 1983, and he became a monk at XXXX XXXX Monastery when he was eight years old. He wanted to meet the Dalai Lama and he left Tibet in XXXX 1999 and entered a monastery in India. He has an I.C. (Identity Certificate) which indicates he was born in India. He alleges the I.C. and his travel document were improperly obtained. He has no right to return to India. The Issues [4] The panel indicates the determinative issues in this case are identity, in particular whether he was stateless or a national of either China or India, and whether he has a well-founded fear of persecution in his countries of reference. [5] The Appellant submits the issues in this case concern the following: What is the standard of review? Did the Member err in finding the Appellant is not a citizen of China (Tibet) and that he is stateless? Does the new evidence establish that he is a citizen of China (Tibet)? Was the Member's credibility determination erroneous? The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [8] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [9] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [10] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [11] The Appellant submits that the RAD should follow the judgement in Huruglica in reviewing and assessing this appeal. The RAD agrees and has noted above its view of its role in regard to this appeal. Citizenship and Nationality [12] The panel noted the Appellant submitted an I.C. issued by the Government of India on XXXX XXXX, 2008 and valid until XXXX 2018 which indicates he was born in XXXX, India on XXXX XXXX, 1983. He further submitted a Tibetan Green Book, a letter from a monastery and a letter from a Tibetan Reception Centre indicating he was born in XXXX, Tibet. [13] The panel further noted the Appellant's visa application indicates he was born in India and that his parents and his brother are living in India. The panel noted as well that the Appellant's Basis of Claim (BOC) form indicates that his parents live in XXXX, Tibet and that he was born in Tibet. [14] The Appellant indicated that the information in the I.C. and in the visa application is not truthful concerning his nationality. He agreed however it was his signature on the visa application and testified he did so because the person who helped him told him to sign if he wanted to get a visa. [15] The panel found the Appellant was not a credible witness and further found the Appellant stated the documents were fraudulent because it would be easier to establish his claim if he were a citizen of China and not India. The panel weighed the evidence before it and found that the Appellant was born in India. The Minister's Intervention [16] The Minister submitted that the Tibetan Green Book has no security features and is not a reliable identity document; that the Appellant is not a national of China; that the information declared by the Appellant in his visa application was that he was born in India; that the Indian Citizenship Act entitles the Appellant to Indian citizenship; that if the Appellant is not found to be a citizen of India he is a stateless person whose former habitual residence is India; and that the Appellant has not identified a risk in India nor has he made a claim against that country. [17] The panel provided an analysis of the Appellant's Green Book and noted its lack of security features, problems with its provenance as the Green Book was obtained by a relative, and the lack of a full translation. The panel drew a negative inference in this regard. [18] The panel considered as well a copy of a letter from a Tibetan Reception Centre containing a list and photos of a number of individuals, and which states the Appellant was twelve years old and had arrived at XXXX from XXXX, Tibet on XXXX XXXX, 1999. The Appellant was unable to present the original of the document and he explained one of the people on the list received the original and he did not know who held it. The Appellant further testified he received the copy of the document from a friend in India. The panel found the provenance of this document to be questionable and questioned the reliability of the Appellant's evidence as to how he obtained it, and further found the document to be likely false. [19] The panel noted a letter from the XXXX XXXX Monastery indicated the Appellant was born in XXXX, Tibet, and that he had been at the monastery from 1999 to May 2014. The panel noted there was no envelope submitted indicating how he had received the letter, and found this limited the weight it could give the document and therefore the panel gave the document no weight. The panel noted as well that the Appellant's evidence contradicted his documents in regard to his age when he arrived in India and the panel assigned the documents little weight. [20] The panel concluded that the evidence concerning the Appellant's Tibetan nationality is insufficient to establish that he was born in XXXX, Tibet. The panel further noted that the Appellant failed to provide documentation that would have established he was born in and lived in Tibet, in particular a hukou and a letter from the monastery in Tibet. [21] The Appellant testified he had a hukou and it was being sent though a person and had not yet been received, and the Appellant provided an explanation as to why it would take a long time for the document to reach him. The panel noted the document did not materialize in time for the hearing and drew a negative inference in this regard. Admissibility of Evidence Presented on Appeal [22] Section 110(4) of the 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 of the claim. The Appellant submits a copy of his family hukou.2 The RAD finds the Appellant's explanation for the delay in disclosing this document to be credible. The RAD further finds the document is relevant and material to the case at bar and it is admitted. Tibetan Documentary Evidence [23] In regard to the Appellant's corroborating evidence that he was born in Tibet, the Appellant submits that the panel erred in its credibility findings. The RAD has reviewed the documentation disclosed by the Appellant and it has considered as well the panel's concerns regarding the Green Book's absence of security features, the failure to disclose a fully translated Green Book, the failure of the Appellant to obtain the Green Book himself, and the reliance on a copy of a Tibetan Reception Centre letter which among other problems contradicted evidence regarding the Appellant's age on arrival in India. [24] The RAD finds the panel had legitimate concerns regarding some of this evidence but some of its findings are unclear. The RAD notes the panel indicated in regard to one document that it gave it no weight and then that it gave it little weight. The RAD further notes the panel gave the Monastery letter no weight merely because the disclosure was not accompanied by an envelope. The RAD finds this is insufficient evidence on which to base this finding. The RAD notes as well that the panel was concerned about the authenticity of the Green Book because some pages were missing, even though basic identity information including the place of birth was available in the part of the document that was disclosed. The panel did not make clear what information was missing. [25] The RAD notes however that the panel indicated the Appellant's failure to disclose a hukou was a significant aspect of its finding. The RAD further notes that the Appellant has now disclosed a copy of a hukou, and although this document also has no security features and is only a copy, the RAD accepts as credible the explanation of the Appellant as to why the original was not sent. Indian Documentary Evidence [26] The panel noted the Appellant travelled to Canada on an Indian I.C. which indicates he was born in XXXX, India. The panel further noted the I.C. was issued in 2008 and it would expire in 2018. The panel noted as well the document contains a photo and it permitted the Appellant to obtain a visa for travel to Canada. The panel found that the evidence that the Appellant was born in India is more reliable than that purporting he was born in Tibet. The panel concluded he was born in India on XXXX XXXX, 1983. The Appellant noted in this regard that his Indian documents, which he testified were fraudulent, also lack any security features. Analysis of Documentary Evidence [27] The RAD is presented with two sets of documents, one set corroborating the Appellant's birth in Tibet and another set corroborating his birth in India. None of these documents contain security features that facilitate judgement regarding their authenticity. The RAD finds however that the preponderance of the evidence, particularly in the context of the new evidence disclosed by the Appellant indicates he was likely born in China. While some doubt remains in the context of the panel's concerns about some of the Appellant's Tibetan documents, the RAD shall give the Appellant the benefit of the doubt and find, on a balance of probabilities, he was born in China. Statelessness and Access to Indian Citizenship [28] The RAD agrees with the Appellant that even if the panel's conclusions that he was born in India to Tibetan parents is correct, the panel's finding of statelessness is nonetheless wrong. [29] The panel considered the documentary evidence concerning the rights of ethnic Tibetans to obtain Indian citizenship if they were born in India between January 26, 1950 and July 1, 1987. The panel found the Appellant is entitled to Indian citizenship by virtue of his birth, but noted he may encounter difficulties in obtaining his birthright as an Indian citizen. The panel further found that having acquired Indian citizenship at birth he cannot be a Chinese citizen. [30] The panel found as well that the Appellant is a stateless person of Tibetan ethnicity, born in India, with the legal right and ability to apply for Indian citizenship. The panel acknowledged this legal right is not automatic, but found this would render the Appellant stateless and that the Appellant referred to himself as stateless in his visa application. [31] Having found the Appellant to be stateless and that he lived in India since at least 1999, the panel further found India to be the country of former habitual residence and the country of reference for his claim. [32] The Appellant submits that the panel's key credibility findings concerning his nationality were made in error. The Appellant notes the panel disbelieved that the evidence regarding his birth in his I.C. and visa application is false because it was presumed to be in the Appellant's interest to have been born in China rather than India. [33] The Appellant argues the panel was wrong in this assumption because a person born in India between 1950 and 1987, as believed by the panel, cannot be deemed an Indian citizen and his claim has to be assessed against China and not India. [34] In support of its submission, the Appellant cites the Federal Court's decision in Wanchuk3 in which the Court held that obtaining Indian citizenship was not within the India-born applicant's control. The Court further stated that a Tibetan born in India would have to apply for citizenship, despite the provisions of the Indian Citizenship Act, and there is only a mere possibility that such an application would result in the granting of citizenship. [35] The Appellant further cites another RAD decision4 in which the RAD rejected an identical decision by the RPD. The Appellant notes that in both this case and the case at bar, the Appellant was perceived to have been born in India and to have the right of citizenship at birth. In both cases the RPD panel acknowledged that obtaining this birthright was not automatic and there were serious obstacles in obtaining citizenship. In both cases however the RPD panel found the Appellant had acquired Indian citizenship at birth and therefore according to Chinese citizenship law they were not Chinese citizens and therefore stateless. [36] Furthermore, the RAD in the decision5 rejected this analysis, and found the RPD panel's decision rested "rather precariously on the distinction between "effective" and "technical" status in India, or de jure and de facto citizenship. The RAD indicated the panel relied upon "a distinction without meaning", noting that "one either holds citizenship in a country or does not" and "one cannot be both a citizen and a non-citizen." [37] Additionally, the RAD found that while the Appellant "may, on paper, have been entitled to citizenship at birth, such entitlement is meaningless if not recognized by the authorities who bestow the benefits and privileges of citizenship."6 The RAD noted that as a result of the panel's flawed citizenship analysis, it found the Appellant to be stateless and assessed his claim against India, the country of former habitual residence. The RAD concluded this was an error and the panel's determination was set aside. [38] The RAD in the case at bar has reviewed and assessed the panel's finding and analysis concerning the Appellant's acquisition of Indian citizenship at birth and fully considered the RAD's finding in above decision7 concerning this matter. The RAD adopts as its own these reasons and finding concerning this matter. [39] The RAD finds, on a balance of probabilities, that the Appellant is a citizen of China and despite his lengthy residence in India, his claim must be assessed against China. The RAD acknowledges that while it is unlikely that the Appellant would be required to return to China by Indian authorities, the fact remains he has no permanent status in India and he is not in control of his status situation in that country. There is objective evidence of oppression of ethnic Tibetans in China and the RAD further finds the Appellant would be at risk of persecution if he were to return to China. Disposition [40] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. (signed) "Milton Israel" Milton Israel April 29, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 P-2, Appellant's Record, pp. 28-39. 3Wanchuk, Lobsang v. M.C.I. (F.C., no. IMM-3511-13), O'Reilly, September 16, 2014, 2014 FC 885. 4RAD TB4-05594, Bosveld, October 15, 2014. 5 Ibid. 6 Ibid. 7 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-11000