MB8-16944

RAD File No. / No de dossier de la SAR : MB8-16944 MB8-16945 / MB8-16946 / MB8-16947 MB8-16948 Private Proceeding / Huis clos Reasons and Decision ? Motifs et decision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision June 9, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Raoul Boulakia Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX, you are acting as the designated representative of your daughter XXXX, who is a minor. You and your family members have stated that you are citizens of Rwanda and fear persecution in that country.1 In my decision, I am going to address you, on the assumption that you will be able to explain it to each member of your family. [2] The Refugee Protection Division (RPD) determined that you and your husband had not established your identity as Rwandan citizens and determined that you were actually citizens of the Democratic Republic of the Congo (DRC). It nonetheless acknowledged that your children were Rwandan citizens.2 The RPD found that you were not credible in your allegations of persecution or risk in Rwanda.3 [3] On appeal, you submitted two memoranda by two different lawyers.4 An initial decision by the Refugee Appeal Division (RAD) dismissed your appeal,5 but that decision was set aside by the Federal Court.6 [4] You subsequently submitted evidence, requested a hearing and asserted that the RPD erred in determining that you had not established your identity and in rejecting your refugee protection claims.7 [5] After conducting my own analysis of your record, I have concluded that the evidence that you provided on appeal is admissible (I) but that a hearing cannot be held (II). I have further concluded that the RPD erred in determining that your identity as Rwandan citizens had not been established (III). [6] Based on this conclusion, your appeal is allowed and your case is referred back to the RPD for redetermination of your refugee protection claims on the understanding that you have established your identity as Rwandan citizens. I. EVIDENCE PRESENTED ON APPEAL [7] Subrule 29(2) of the Refugee Appeal Division Rules (RAD Rules) provides that if a person who is the subject of an appeal wants to use a document or provide written submissions that were not included in the appeal record, the person must make an application to the RAD in accordance with rule 37.8 Subrule 29(1) provides that such documents must not be used unless the person is allowed to do so by the RAD. [8] Subrule 29(3) requires that the person who is the subject of the appeal include in the application to use a document that was not previously provided an explanation as to how the document meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. [9] Subsection 110(3) of the IRPA provides that, in general, the RAD is to proceed without a hearing and on the basis of the record of proceedings of the RPD. Subsection 110(4) creates an exception to this general rule. The existence of criteria governing the admissibility of new evidence on appeal helps to preserve the integrity of the process by promoting finality with respect to the factual record at the first level of decision-making, with very limited exceptions, and encouraging the narrowing of issues as matters move up the appellate ladder.9 [10] In your statement, you indicate that you are submitting four documents.10 In your memorandum, you request leave to present this evidence along with further submissions.11 [11] Subrule 29(4) of the RAD Rules provides that, in deciding whether to allow an 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 submissions with the record. I consider that your application should be allowed. My reasons are as follows. Rwandan birth certificates for your children [12] In your memorandum, you submit that these birth certificates12 are relevant and useful while the question of your identity is still pending, after the Federal Court decision that set aside the first RAD decision because it misinterpreted the identity documents it was required to analyze. You also explain why you did not obtain these birth certificates earlier,13 relying in particular on a World Bank Group report14 which explains that in Rwanda the majority of citizens do not bother to obtain a birth certificate and settle instead for an attestation.15 [13] I agree with you. These birth certificates are relevant and of significant evidentiary value, and I consider your explanation for not obtaining them sooner to be acceptable. Furthermore, I have no reason to doubt their authenticity and credibility. They are therefore admissible in your appeal as Exhibit A-1. Letters from the DRC Ministry of the Interior [14] In your memorandum,16 you ask that these letters17 be declared admissible in your appeal, as they definitively settle the issue of whether or not you are citizens of the DRC. You also explain why you did not obtain these letters earlier.18 [15] In my opinion, these letters are relevant and of significant evidentiary value, and I consider your explanation for not obtaining them sooner to be acceptable. Furthermore, I have no reason to doubt their authenticity and credibility. They are therefore admissible in your appeal as Exhibit A-2. II. ORAL HEARING BEFORE THE RAD [16] Under the RAD Rules, an appellant is required to submit a memorandum that includes full and detailed submissions as to why the RAD should hold a hearing.19 [17] In your written statement, you request an oral hearing as part of your appeal.20 In your memorandum, you assert that the new evidence presented in your appeal warrants a hearing in that it relates to your credibility and that identity is a determinative issue thereby allowing you to establish that you are indeed Convention refugees.21 [18] It is up to the RAD to determine whether or not the criteria under subsection 110(6) of the IRPA have been met.22 The RAD is under no obligation to hold an oral hearing simply because it has considered new evidence admissible. The three criteria set out in section 110(6) must be met for the RAD to hold a hearing.23 [19] It is true that your identity is a determinative issue and that, if not established, it will result in your refugee protection claims being rejected. While they are essential to a decision on your refugee protection claims, the birth certificates (A-1) and the letters from the DRC Ministry of the Interior (A-2) cannot, by themselves, warrant allowing or rejecting your refugee protection claims, as the case may be, as they do not address the credibility of your allegations regarding your fear of persecution or the risk you would face if you were to return to Rwanda. In short, the three conditions necessary for holding a hearing under subsection 110(6) of the IRPA have not been met. III. ANALYSIS OF THE APPEAL [20] The role of the RAD is not to conduct a de novo consideration of a claim for refugee protection but rather to determine whether the RPD erred as alleged.24 I conducted my own analysis of your record, primarily by reading the transcript of the RPD hearing25 and reviewing the documentary evidence, and I determined that the correctness standard had to be applied.26 A. The Refugee Protection Division made errors in the analysis of your refugee protection claims [21] Under the RAD Rules, the person who is the subject of an appeal must state: (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.27 [22] In your most recent memorandum, you indicate that you continue to rely on the submissions you made in your previous memorandum.28 You also assert that the Federal Court decision clearly indicates in light of evidence on the record that you are citizens of Rwanda, but not citizens of the DRC.29 [23] As you note in your memorandum,30 the Federal Court identifies in its decision errors that were made by both the RAD and the RPD. In this regard, I reproduce here Justice Mosley's most instructive paragraphs: 17. Based on articles 1 and 26 of the same DRC law, the fact that the Applicants have Rwandan passports excludes them from Congolese citizenship. This fact, brought to the RAD's attention in the additional submissions by the new counsel, does not appear to have been addressed by the RAD. 18. Additionally, the Applicants argue, the United Nations' Handbook on Procedures and Criteria for Determining Refugee Status (1979), states that nationality may be proved by the possession of a national passport. Possession of such a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise. The Applicants held Rwandan passports. 19. These significant considerations were given insufficient analysis and weight by the RAD. 20. The Principal Applicant submitted three government-issued photo identification documents with security features, which all state his correct date of birth. However, in applying for Canadian visas for the family in 2015 to visit their adult son studying at a XXXX XXXX XXXX XXXX XXXX, he had submitted a DRC registration document which falsely stated that he was a citizen of the DRC, a requirement apparently for holding property in that country. The document also stated that he was 14 years younger than he actually is. 21. The inclusion of the false DRC document in the visa application was not apparently intended to prove nationality in the DRC. It seems to have been used to demonstrate that the family had a reason to return home after visiting their son and brother in B.C. That intention did not provide the RAD with justification for ignoring the obvious problems with the document and treating it as a basis for questioning the Principal Applicant's nationality. The RAD's conclusions on this point are confusing and unintelligible. In my view, it was unreasonable to accord the registration document weight to discount the passport held by the Principal Applicant. 22. Other issues raised by the Applicants, such as the treatment of Ms. XXXX confusion over the date of her marriage, call into question the RPD's and RAD's credibility findings but would not justify the Court's intervention.31 B. Although your identity has been established, your cases should be referred back to the Refugee Protection Division [24] Having read the Federal Court decision, the birth certificates (A-1) and letters from the DRC Ministry of the Interior (A-2) that I have considered admissible in your appeal, as well as your Rwandan passports that have been reproduced on your record,32 I consider that you have established that you are Rwandan citizens and that you are not citizens of the DRC. [25] In terms of your fears of persecution or the risks you would face if you were to return to Rwanda today to live, I note that it has been about three and a half years since the end of the RPD hearing. The situation in your country may have changed, either in relation to the people you stated that you feared or in relation to the general conditions in your country. In my opinion, on these issues, in addition to the testimony you have given before the RPD, it is necessary to obtain up-to-date information before your claims can be allowed or rejected. In other words, I consider that I am unable to substitute the RPD's decision with the decision that should have been made without holding a hearing de novo.33 However, as I indicated earlier, since the documents that you have submitted in your appeal relate only to your identity, under subsection 110(6) of the IRPA, the three conditions necessary for me to hold a hearing have not been met. [26] I add that, without necessarily having conducted itself in a way that would constitute an appearance of bias in the eyes of an informed person,34 the RPD was nevertheless influenced in its analysis by the fact that it did not believe you and your husband to be Rwandan citizens. That being said, it is clear that the member became impatient and even arrogant at times.35 In his decision, Justice Mosley noted that it was clear that the member was frustrated at times.36 I consider that, in the circumstances, it is sufficient for me to make these simple findings without further analysis. [27] Based on my analysis of these various elements, I consider that the best remedy is to refer the matter back to the RPD for another member to hear your refugee protection claims. [28] As permitted under paragraph 111(1)(c) of the IRPA, I am directing that the RPD analyze your refugee protection claims by acknowledging at the outset that your identity as Rwandan citizens has been established but ensuring that it analyzes your fear of persecution or the risks you would face if you were to return to Rwanda on the day of the hearing de novo, taking into account the most recent evidence. CONCLUSION [29] For these reasons, I am setting aside the RPD's decision and referring the matter back to the RPD for a hearing de novo of your refugee protection claims by a different member with respect to your fear of persecution under section 96 or risk under section 97 of the IRPA should you return to live in Rwanda, on the understanding that your identity as Rwandan citizens has been established. [30] Your appeal is allowed. (signed) Alain Bissonnette Me Alain Bissonnette June 9, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Forms (BOC Forms) are reproduced at pages 18 to 75, and the documents you submitted as evidence before the Refugee Protection Division (RPD) are reproduced at pages 379 to 494 of the digital version of the RPD record. 2 RPD Reasons and Decision, January 15, 2018, pages 8 to 17 of the digital version of the RPD record, paragraphs 4 to 20. 3 Ibid., paragraphs 21-38. 4 Your first memorandum was written by Me Jacques J. Bahimanga, May 10, 2018, pages 119-147 of the digital version of this appeal record. Your second memorandum was written by Me Raoul Boulakia, August 26, 2019, pages 2-18 of the digital version of this appeal record. 5 RAD reasons and decision, October 29, 2019. 6 Habimana v. Canada (Minister of Citizenship and Immigration), No. IMM-7048-19, Mosley, February 11, 2021; 2021 FC 143. 7 Your written statement, page 4, and your memorandum, both dated March 29, 2021, pages 19-20 of the digital version of your latest appeal record. 8 Refugee Appeal Division Rules, SOR/2012-257. 9 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21, citing the Federal Court of Appeal decision in Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 10 Your statement, supra endnote 7, paragraph 1. The 4 documents are reproduced at pages 5 to 18 of the digital version of your latest appeal record. These include a research report from World Bank Group, an affidavit from XXXX XXXX, the birth certificates of XXXX, XXXX and XXXX, and letters from the DRC Ministry of the Interior. 11 Your memorandum, supra endnote 7, paragraphs 1 to 4. 12 The birth certificates are reproduced at pages 12, 13 and 14 of the digital version of your latest appeal record. 13 In XXXX affidavit, pages 10 and 11 of the digital version of your latest appeal record. 14 This report is reproduced at pages 5 to 9 of the digital version of your latest appeal record. 15 Your memorandum, supra endnote 7, paragraphs 5 to 24. 16 Ibid., paragraphs 26 to 35. 17 These letters are reproduced at pages 15 to 18 of the digital version of your latest appeal record. 18 In XXXX affidavit, pages 10 and 11 of the digital version of your latest appeal record. 19 Ibid., subparagraph 3(3)(g)(v). 20 Your statement, supra endnote 6, paragraph 15. 21 Your memorandum, supra, endnote 7, paragraph 42. 22 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 23 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 30, citing the Federal Court of Appeal's decision in Singh, supra endnote 9, paragraph 71. 24 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 25 Transcript of the first part of the RPD hearing on August 30, 2017, 57 pages. Transcript of the second part of the RPD hearing on October 24, 2017, 62 pages. Transcript of the third part of the RPD hearing on November 8, 2017, 72 pages. 26 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 27 RAD Rules, supra, endnote 8, subparagraph 3(3)(g)(ii). 28 Your memorandum, supra, endnote 7, paragraph 36. 29 Ibid., paragraph 37. 30 Ibid., paragraph 39. 31 XXXX, supra endnote 6. 32 Your passports are reproduced at pages 132 to 159 of the digital version of the RPD record. 33 In this regard, refer to subsection 111(2) of the IRPA. 34 XXXX, supra endnote 6, paragraph 23, citing the Supreme Court of Canada decision in Committee for Justice and Liberty. 35 Transcript of the second part of the hearing, supra endnote 25, page 40, when the member asks you if names were invented or, if they are known, how that knowledge was acquired, then adds: [translation] "And then they introduce themselves: 'Hello, my name is Mugisha, and I'm here to kill your father.' Is that what happened, ma'am?" 36 XXXX, supra endnote 6, paragraphs 24, 25 and 26. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MB8-16944 MB8-16945 / MB8-16946 / MB8-16947 MB8-16948 RAD.25.02 (May 19, 2021) Disponible en français 10 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 (May 19, 2021) Disponible en français