TB4-07553

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 : TB4-07553 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 15, 2014 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal D. Clifford Luyt Barrister & 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 Kevin MacLennan Conseil du ministre REASONS FOR DECISION [1] XXXX (a.k.a. XXXX XXXX) (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant claims to be a citizen of Tibet. The Appellants' minor son, XXXX XXXX, a citizen of Singapore, was on the original claim for refugee protection with the RPD. The Appellants' minor son was not included in the appeal to the Refugee Appeal Division (RAD), nor was any evidence produced on his behalf in the Memorandum of Appeal. As a result, the minor claimant from the RPD refugee claim will not be considered in this appeal. [2] The Appellant has not submitted new evidence in support of his appeal, nor does he request an oral hearing. The Appellant asks that the RAD set aside the decision of the RPD or in the alternative refer his claim back to the RPD for redetermination. DETERMINATION [3] Pursuant to ss. 111(1)(a) of Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [4] The Appellant claimed before the RPD that he had no freedom in Tibet. He stated he could not speak freely or practice his religion; nor could he worship his holiness the Dalai Lama, read books written by the Dalai Lama, or chant his prayers. He alleges that should he return to Tibet, he would be detained and imprisoned because of his religious beliefs, and his political opinions. [5] The Minister for Public Safety and Emergency Preparedness intervened in these claims for refugee protection, on March 24, 2014, citing the reasons for Ministerial intervention, and the Minister's involvement at the hearing. The basis for the Minister's intervention is exclusion pursuant to article 1F(b) of the United Nations Convention Relating to the Status of Refugees as well as concerns regarding the Appellant's identity, credibility, and the well-foundedness of his claim. It is noted that prior to the Minister's intervention, the Appellant had filed his refugee claim under the name of XXXX, although he had traveled to Canada using a visa obtained under the name of XXXX XXXX. [6] The Appellant and his minor son's application for refugee protection was heard over two sittings: on May 8, 2014, and July 31, 2014. [7] After the May 8, 2014 hearing, submissions concerning the 1F(b) of the Appellant, were tendered by the Minister's representative on May 23rd, 2014, and by the Appellant's counsel on June 10, 2014. [8] At the July 31, 2014 hearing, questions were asked of the Appellant regarding the issue of the minor claimant, and his country of citizenship. Questions and submissions were requested of the Appellant's counsel, and none were tendered. [9] The decision regarding the 1F(b) was given orally on July 31, 2014. The RPD found that the Appellant was excluded from refugee protection pursuant to article 1F(b), and that no evidence was adduced regarding a claim against Singapore for the minor claimant. ROLE OF THE RAD [10] The RAD finds that the recent Federal Court 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. 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 Appellant 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." [11] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [12] The Appellant does not dispute that his offenses were "non-political." [13] The Appellant agrees with the proposition that use of a false passport and identity for purposes other than a Convention refugee claim, is an offense in Canada carrying the sentence of imprisonment of 10 years or more, and therefore an offense that gives rise to the presumption of seriousness.2 The Appellant also states that it is also likely that the requirement of a "political" offense or "duress" is not met in this case. [14] The Appellant challenges the RPD's finding, under article 1F(b), as to whether the Appellant had committed serious non-political crime by using a false Nepalese passport to travel to Singapore, and maintaining a false identity as XXXX XXXX, the name in the false passport. The Appellant states that the RPD's claim that the Appellant has committed a serious, non-political crime is a rebuttable one, based on mitigating circumstances. [15] The Appellant submits that the RAD may consider inclusion even though it was not considered by the RPD, or in the alternative find that the Appellant is not excluded pursuant to article 1F(b), and refer the matter back to the RPD for decision on inclusion. Merit of the Appeal [16] The RPD did not agree with the Appellant's counsel's submission that the Appellant's right to marry and found a family mitigates the Appellant's actions in acquiring and using a fraudulent document to move and establish himself in Singapore. The RPD's reasoning was that in accepting counsel's proposition that a stateless individual could, if they desire to marry and found a family, acquire a non-genuine document and live wherever they choose. The RPD found that the actions of the Appellant using a false identity to enter and remain legally in Singapore, as well as work, get married, and open a bank account under the false identity are comparable to the offenses of the use of a forged document, or uttering a forged passport which are serious crimes in Canada. The RPD relied on the Minister's documentation and submissions submitted below. [17] Section 57 (1) of the criminal code of Canada states: 57. (1) Forgery of uttering forged passport-Everyone who, while in or out of Canada, (a) for just a passport, or (b) knowing that a passport is forged (i) uses, deal with her acts on it, or (ii) causes or attempts to cause any person to use, deal with, or act on it, as if the passport were genuine, is guilty of an indictable offense and liable to imprisonment for a term not exceeding fourteen years. [18] Section 368 of the criminal code of Canada states: 368. (1) Use, trafficking or possession of forged document-Every one commits an offense who, knowing or believing that a document is forged, (a) uses, deals with her acts on it as if it were genuine; (b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine; (c) transfers, sells or offers to sell it or makes it available, to any person, knowing that or being reckless as to whether an offense will be committed under paragraph (a) or (b); or (d) Possesses it with intent to commit an offense under any of paragraphs (a) to (c). (1.1). Punishment-everyone who commits an offense under subsection (1) (a) is guilty of an indictable offense and liable to imprisonment for a term of not more than 10 years; or (b) is guilty of an offense punishable on summary conviction. (2). Wherever forged-For the purposes of proceedings under this section, the place where a document was forged is not material. [19] The Appellant did not appeal this documentation. The RAD, in reviewing the documentation, has no reason to disturb the documentation, or the RPD's finding. The RAD finds that the documentation presented is valid and that the Appellant had committed the offenses listed above. The Appellant made a choice to use forged documentation in order to continue his life. He testified that he had no status in India, but was living there without duress. The RAD is unaware of whether the Appellant could have made other choices, but clearly, according to the documentation, he was living in India, and could have continued to do so. The Appellant argues that his wife, a citizen of Singapore, could not have acquired status in India, but does not substantiate this with any documentation. No testimony was given during the hearing that substantiated the Appellant's claim. No documentation was produced by the Appellant to support his claim that his wife traveled to India, they met, decided to marry, and moved to Singapore. [20] The RPD relied on the factors identified in Jayasekara3 and listed the following: elements and facts; the penalty imposed; the mode of prosecution; and any mitigating or aggravating element surrounding the crime committed. The RPD also relied on the Federal Court of Appeal that stated that the measure of a serious crime is the view in which Canadian law takes of the offense, and not necessarily the seriousness of the penalty imposed in the other country. The RPD found that the Minister had established that there are serious reasons for considering that the Appellant has committed a serious non-political crime prior to his admission to Canada as a refugee claimant, and therefore determines that he is excluded from refugee protection pursuant to article 1F(b) of the UN Convention Relating to the Status of Refugees. [21] The Appellant submitted that the most relevant factors in this case were the facts and mitigating circumstances underlying the commission of the offense. [22] The Appellant advances the fact that he acted under serious constraints as he was a political exile/refugee from Tibet who could not receive a Chinese passport. The Appellant was living in India with no legal status, and therefore could not legally sponsor his wife to India. The Appellant also states that his wife, as a citizen of Singapore, would have no right to reside permanently in India. While arguably short of criminal law defense of duress, the Appellant's only option that would allow them to live together was for the Appellant to travel to Singapore, be granted legal entry there, and be sponsored to Singapore by his wife. The Appellant was unable to obtain any legal documents in India because of his date of arrival, 2004. The Appellant argues that under the circumstances, he had no realistic alternative but to use a false passport and identity if he wished to live with, and raise family with his wife. The Appellant argues that the right to marry and enjoy family life are enshrined in the International Covenant on Civil and Political Rights, to which Canada is a party. The Appellant quotes Article 23 in support: 1. Family is a natural and fundamental group unit of society and is entitled to protection by society and the state. 2. The right of men and women of marriageable age to marry and to found a family shall be recognized. [23] The RAD in reviewing the documentation in the claim finds that the Appellant was born in XXXX, XXXX Nepal. No documentation was produced to substantiate the Appellant's claim that he was born in Tibet and escaped to India. If the Appellant had been born in Tibet, as claimed, he should have possessed identification from China. No probative evidence was produced in the documentation to substantiate this aspect of the Appellant's claim. A letter from the XXXX XXXX XXXX XXXX XXXX in XXXX, dated December 11, 2013, states that the Appellant arrived via the XXXX XXXX XXXX reception centers. There is no documentation to substantiate this statement, and the RAD is unable to substantiate the statement in this letter. This letter is in direct opposition to the Appellant's statement of birth mentioned above. Both cannot be correct, without documentation to substantiate the differences between these two documents. [24] The RAD in listening to the testimony and reviewing the documentation finds that the Appellant made a decision, and that decision involved, in Canadian jurisprudence, being found guilty of a punishable offense. The Minister stated in his Notice of Intervention, dated October 9, 2014, that the Appellant erred in equating stateless individuals to the Appellant's situation of having a right to marry and enjoy family life in Singapore and mitigates his decision to use a false passport to travel to establish himself in that country. The panel concurs, as stated above; the Appellant had to make a decision, and chose to commit a crime in supporting this decision. [25] The Appellant states that he was a citizen of China and therefore could not seek the protection of China as a Tibetan. The Appellant's claim is based on the fact that he was a Tibetan Chinese who escaped to India to avoid a precarious circumstance in China. These facts are the basis for the Appellant's argument that he is stateless, and had no alternative but to falsify documentation in order to marry his wife in Singapore. As stated above, the documentation does not support the basis of the Appellant's claim. No documentation was tendered to indicate that the Appellant ever lived in Tibet, China, nor was there any documentation tendered to support his arrival and living conditions, after his birth in Nepal. The RAD finds, because of the lack of probative documentation regarding the circumstance of the Appellant, that the alleged mitigating circumstances do not reflect the Appellant's actual circumstance. The RAD agrees, given the documentation presented, that the Appellant has Tibetan nationality, but does not find that the Appellant lived in Tibet or that he fled from Tibet to go to India. CONCLUSION [26] As previously mentioned, the Appellant does not dispute the fact that he committed a crime based on Canadian jurisprudence which meets the requirements for exclusion as set out in 1F(b). The RAD concurs with the RPD and finds, on the totality of the record and that there are serious reasons for considering that the Appellant committed the crimes for which he is accused; crimes that do not meet the exception allowed for refugees escaping persecution. DETERMINATION [27] The RAD finds that the RPD's analysis was correct in mixed fact and law. The factors with respect to Article 1F(b) of the Refugee Convention were thoroughly considered and the RAD finds that the RPD's conclusion is supported by its analysis. The RAD also finds that the mitigating circumstances alleged by the Appellant are not supported by the documentation presented by the Appellant. [28] Accordingly, this appeal is dismissed. (signed) "Robert S. Garner" Robert S. Garner December 15, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Durango, Faidiver v. M.C.I. (F.C., no. IMM-9420-11), Boivin, September 14, 2012 FC 1081. 3 Jayasekara, Ruwan Chandima v. M.C.I. (F.C.A., no. A-140-08), Létourneau, Sharlow, Pelletier, December 17, 2008; 2008 FCA 404. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07553