Docket: IMM-2723-17
Citation:
2018 FC 58
Toronto, Ontario, January 23, 2018
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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ZELALEM FISIHA
WOLDEMARYAME
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Applicant
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and
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IMMIGRATION,
REFUGEES AND CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
In July 2016, the Applicant claimed refugee
protection against return to Ethiopia based on his political identity as a
member of the Coalition for Unity and Democracy (CUD) in Ethiopia. By a
decision dated October 17, 2016, the Refugee Protection Division (RPD) rejected
the Applicant’s claim for protection on the basis of a central finding that the
Applicant failed to prove his identity. On appeal, by a decision dated May 25,
2017, the Refugee Appeal Division (RAD) upheld the RPD’s decision. The present
Application challenges the RAD’s decision.
II.
The RPD’s Decision-Making on Identity
[2]
The challenge presented to the Applicant by RPD
was to meet the requirement of Rule 11 of the Refugee Protection Rules,
SOR/2012-256 and s. 106 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 [the IRPA]:
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11 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.
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11 Le demandeur
d’asile transmet des documents acceptables qui permettent d’établir son
identité et les autres éléments de sa demande d’asile. S’il ne peut le faire,
il en donne la raison et indique quelles mesures il a prises pour se procurer
de tels documents.
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106 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 documentation.
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106 La Section de
la protection des réfugiés prend en compte, s’agissant de crédibilité, le
fait que, n’étant pas muni de papiers d’identité acceptables, le demandeur ne
peut raisonnablement en justifier la raison et n’a pas pris les mesures
voulues pour s’en procurer.
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[3]
In deciding that the Applicant failed to meet
the identity evidentiary burden, the RPD made a clear statement of the
condition precedent ramification of making such a finding:
The claimant bears the onus of proving their
identity. In this case, the necessary credible evidence to reach a positive
conclusion regarding the claimant’s claim as to his personal and national
identity was not provided, and the burden was not met. As cited in Ipala,
without a proven identity, the panel cannot find a serious possibility of
persecution or risk to the person [Ipala v Canada (Minister of
Citizenship and Immigration), 2005 FC 472].
[Emphasis added]
(RPD Decision, para. 9)
[4]
Besides the Applicant’s own testimony before the
RPD, the only ostensible identity document the Applicant produced was a copy of
a purported birth certificate. The following passages from the RPD’s decision
describe how the copy of the birth certificate was handled with some suspicion:
The panel finds there is nothing to connect
this birth certificate to the claimant appearing before the panel, other than a
photo of the claimant which may or may not be affixed to the actual birth
certificate. Moreover, the panel notes that the stamps on the document are
illegible, in particular on the bottom right, where it appears that two stamps
were printed over one another. In short there are no security features on
the document, and the issuance procedures suggest little if any effort was made
to ensure that the claimant presented the birth certificate before the panel
today is, in fact, the person to whom it was issued in 2011.
[Emphasis added]
(RPD Decision, para. 12)
[5]
In the course of reaching its decision, the RPD
questioned the Applicant on his failure to produce additional identity
documentation from Ethiopia. In response, the Applicant maintained that the
state of emergency that existed in the country made it impossible for him to do
so. In the result, the RPD made a far reaching global negative credibility
finding on, not only the issue of identity, but also on the substance of the
Applicant’s claim:
The panel finds that the claimant has not
provided sufficient credible or trustworthy documentary evidence in support of
this personal identity. The panel also finds that the claimant’s evidence,
as it relates to his personal identity, nationality and identity as a member of
the CUD is neither trustworthy nor credible […].
[Emphasis added]
(RPD Decision, para. 5)
III.
The RAD’s Decision-Making
[6]
The RAD took no serious issue with the RPD’s
decision-making with respect to the Applicant’s identity. The focus of the
RAD’s decision was on the admissibility of new evidence on the identity issue: seven
pieces of documentary evidence were advanced by the Applicant for consideration
pursuant to s. 110(4) of the IRPA:
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110(4) On appeal,
the person who is the subject of the appeal may present only evidence that arose
after the rejection of their claim or that was not reasonably available, or
that the person could not reasonably have been expected in the circumstances
to have presented, at the time of the rejection.
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110(4) Dans le
cadre de l’appel, la personne en cause ne peut présenter que des éléments de
preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement
présentés, dans les circonstances, au moment du rejet.
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[7]
The standard of review is reasonableness for
factual findings reached upon applying evidence to the issues outlined in the
provision. In Singh v. Canada (Minister of Citizenship and Immigration), 2016
FCA 96, Justice de Montigny explained at paragraph 29:
For all of these reasons, I therefore
conclude that the judge correctly identified the standard of review to be
applied to the application for judicial review that was before her. In other
words, the RAD’s interpretation of subsection 110(4) of the IRPA was
subject to review on the reasonableness standard, in accordance with the
presumption that an administrative body’s interpretation of its home statute is
owed deference by a reviewing court.
[8]
The RAD admitted five news articles published
between October 16, 2016 and November 12, 2016 describing the nature of the
state of emergency in Ethiopia at that time, and a copy of an email from the
Ethiopian Consulate dated November 21, 2016 advising of its ability to verify
the legality of birth certificates issued in Ethiopia. However, the RAD did not
admit the seventh document being the Applicant’s purported Ethiopian National ID
Card.
A.
The RAD’s Findings Concerning the
National ID Card
[9]
The Applicant provided the following explanation
for the introduction of the National ID Card:
On November 25, 2016, I received my
original national ID card from Ethiopia. When I had asked my sister in Ethiopia
to send me this document earlier, she was unable to find it at our house. She
was only able to find my school document.
However, after searching and asking around,
my sister learned that my national ID card was with my neighbours in Gonder.
When my mother passed away, my sister was working in a remote area of Ethiopia,
outside Gonder and was not around. Since her children were not around when she
passed away, my mother's neighbours helped clear out her house and kept my
national ID with them for safekeeping.
As such, it took a few weeks for my sister
to trace the national ID card and to send it to me. Based on this new
information, my counsel sent a formal request for reconsideration to Legal Aid
on November 28, 2016, the day my RAD appeal was due.
[Emphasis added]
(Applicant’s Statutory Declaration dated
December 6, 2016, Certified Tribunal Record, pp. 98 – 99, paras. 42 – 44)
[10]
The RAD’s approach to deciding on the admission
of the National ID Card is available in the following paragraphs from the
decision under review:
[24] The RAD has reviewed the copy of the
Appellant's National ID (Kebele) card [footnote omitted], which he submits was
sent to him from his sister in Ethiopia. The RAD has considered the Appellant's
submission that his sister was unable to find the card in a timely manner in
order to submit it as post-hearing evidence, yet the RAD has not been provided
with information confirming when the request was made to his sister to search
for the document, or when the document was received from Ethiopia.
[25] The RAD notes that the audio recording
of the hearing confirms that both the RPD and counsel for the Appellant, on
separate occasions, clearly ask the Appellant whether it is possible to obtain
additional identity documents from family members or institutions in Ethiopia.
The Appellant adamantly states on multiple occasions he is unable to contact
anyone or obtain any documents from Ethiopia because of conditions surrounding
the state of emergency imposed in Ethiopia.
[26] The RAD notes that the Appellant's
testimony about the state of emergency in Ethiopia evolved significantly over
the course of the hearing. He initially testified that social media had been
"shut down" as part of the state of emergency and it was difficult to
get information from Ethiopia. During questioning by the RPD about obtaining
additional identity documents he testified that government offices are not open
to issue documents and the post office is not open to mail items. During
questioning by his counsel he was asked if his sister could obtain identity or
school documents from his family home and perhaps send them to him by courier.
His testimony further evolved to indicate that roads were closed and there was
a general strike so this was not possible. His counsel further asked if it
would be possible to have his sister email copies of documents to him and he
said this was not possible because the internet was also shut down.
[27] As much as the RAD has admitted new
evidence that describes the conditions experienced in the state of emergency in
Ethiopia, The [sic] RAD finds these documents do not provide evidence to
support the Appellant's allegations that many facilities and government
services are totally inaccessible. The RAD finds it reasonable to expect
that the Appellant would be able to support his statements about the current
state of emergency in Ethiopia with documentary evidence. The RAD
further finds the Appellant's testimony in this issue was designed to deflect
and avoid further exploration in respect of obtaining documents to support his
identity. The RAD finds the Appellant's testimony in respect of obtaining
any documents from Ethiopia was evasive and lacking in credibility.
[28] The RAD has further assessed the
Appellant's new evidence about the state of emergency in Ethiopia elsewhere in
this appeal. The RAD finds upon review of the evidence that it does not support
the Appellant's allegations that the state of emergency or unrest in Ethiopia
has prevented him from obtaining documents from government offices, schools or
family members, as well as accessing mail, email or courier services to send
documents to Canada. The RAD finds it reasonable to believe that had the
Appellant taken the initiative to contact his sister in Ethiopia prior to his
hearing before the RPD, that he would have been able to obtain this and perhaps
other documents to assist him in a timely manner.
[29] The RAD finds the Appellant's
allegation that the state of emergency prevented him from obtaining the
National ID card at an earlier date is not supported by credible testimony or
evidence in the record and this is unsatisfactory. The RAD finds that the
Appellant's explanation does not contain sufficient detail or persuasive
evidence to explain why he was unable to present this evidence before the RPD.
[30] The RAD finds that the National
Identity card does not meet the statutory requirements of section 110(4) and it
will not be admitted as new evidence in this appeal.
[Emphasis added]
[11]
My findings with respect to the RAD’s approach
are as follows.
[12]
In paragraph 24, the RAD made a critical
reviewable error in failing to address the Applicant’s evidence that he
received the National ID Card on November 25, 2016.
[13]
In paragraphs 25 to 28, the RAD conducted an
evidentiary evaluation by comparing the Applicant’s testimony before the RPD
and the admitted new evidence of in-country conditions in Ethiopia. To resolve
the difference observed, the RAD immediately resorted to an unfounded
implausibility finding and unfounded speculation.
[14]
In paragraph 27, the RAD effectively found that
it was implausible that the Applicant testified to the truth before the RPD
because he failed to produce documentary evidence to support his testimony. In
this respect, the RAD failed to acknowledge that the Applicant’s new evidence
was tendered to provide verifiable independent evidence of the emergency
situation in Ethiopia.
[15]
As to the Applicant’s motivation in providing
the new evidence, in paragraph 27 the RAD resorted to sheer speculation that
the Applicant’s state of emergency evidence was “designed
to deflect and avoid further exploration”. I find that the unfounded speculation
placed the Applicant in a very harmful negative light which directly affected
the outcome on the appeal.
[16]
In paragraph 28 the RAD continued to address the
discrepancy in the evidence, but adds to the conjecture about the difference by
speculating that if the Applicant had tried harder to obtain evidence through
his sister, the evidence would have been provided. I find that the RAD’s
propensity of making findings with no evidentiary basis constitutes reviewable
error as described in s. 18.1(4)(d) of the Federal Court’s Act:
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18.1(4) The Federal Court may grant relief under subsection (3) if
it is satisfied that the federal board, commission or other tribunal
[…]
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18.1(4) Les mesures prévues au paragraphe (3) sont prises si la
Cour fédérale est convaincue que l’office fédéral, selon le cas :
[…]
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d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
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d) a rendu une
décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée
de façon abusive ou arbitraire ou sans tenir compte des éléments dont il
dispose;
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[17]
In paragraph 29, the RAD made a further erroneous
finding: the Applicant did not make the “allegation”
that the state of emergency prevented him from obtaining the National ID card. The
only evidence on the record about how the National ID Card arose is that quoted
in paragraph 9 of these reasons. In addition, the finding that the Applicant
failed to explain why he was unable to present the National ID Card before the
RPD neglects the evidence that the RAD did not acknowledge: the Applicant only
received the National ID Card on November 25, 2016, being more than a month
after the rejection of the Applicant’s claim.
[18]
Finally in paragraph 30, on the basis of the
error laden fact-finding described above, the RAD rejected the Applicant’s key
documentary identity evidence.
IV.
Conclusion
[19]
For the reasons provided, I find the decision
under review is unreasonable.
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