Docket: IMM-3419-15
Citation:
2016 FC 195
Toronto, Ontario, February 15, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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KAMIL AYTAC
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of the
Refugee Appeal Division [RAD] dated June 26, 2015, in which the RAD confirmed
the decision of the Refugee Protection Division [RPD] determining that the
Applicant is not a Convention refugee pursuant to section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] nor a person in need of
protection pursuant to section 97 of IRPA.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant is a citizen of Turkey. He alleges
that he is of Kurdish ethnicity, that he is of the Alevi faith, and that he was
active in pro-Kurdish parties, as a result of which he alleges he was
mistreated and detained by the Turkish police.
[4]
Specifically, the Applicant submitted evidence
to the RPD that he is a member of the Kurdish Peace and Democracy Party [BDP]
and was an active supporter of the various predecessor parties to the BDP. He
alleges that he made the decision to flee Turkey in May 2012 after a crackdown
on BDP members, which put him at serious risk of long-term imprisonment and
torture. With the assistance of a smuggler, he came to Canada on October 27,
2013.
[5]
The Minister intervened in his claim on the
basis of serious concerns about the Applicant’s identity.
[6]
On February 26, 2015, the RPD rejected the
Applicant’s refugee claim, concluding that he had not established his personal
or national identity. The RAD dismissed the appeal from the RPD on June 15,
2015.
II.
RPD Decision
[7]
The RPD denied the Applicant’s application to
submit additional post-hearing identity documents and therefore did not
consider that evidence in making its decision. The RPD noted that the
post-hearing documents were relevant but gave them little probative value, as
they had not been subject to a forensic examination and no reasonable
explanation was provided as to why they were not produced earlier.
[8]
The RPD also had concerns about the Applicant’s
other identity documents. These concerns included, with respect to a photocopy
of his Turkish passport, inconsistencies in the Applicant’s testimony as to the
validity period and the circumstances of destruction of the passport and as to
the location at which he applied for a British visa. The RPD also noted that
the Applicant arrived in Canada using false documents issued in the name of
Taner Yilmaz. The photograph used in the false documents was the same as the
photograph in the Applicant’s own identity card and driver’s licence.
[9]
The RPD placed little weight upon the
Applicant’s identity card, based on a forensic report casting doubt on its
reliability. It also placed little weight upon a document from a political
organization in Turkey, as the photograph was the same one used on the
fraudulent documents and the Applicant’s personal information was handwritten,
and upon a document from a cultural organization, based on a stamp on the
document not overlapping the photograph.
III.
RAD Decision
A.
Post hearing evidence
[10]
The RAD acknowledged that the RPD did not make
specific mention of Refugee Protection Division Rule 43, which provides for factors
to be considered in deciding whether to admit post-hearing evidence. However,
the RAD concluded that the RPD’s decision did consider the factors set out in
Rule 43. The RAD found that the RPD considered the application, found the
documents to be relevant but lacking in probative value, and found that the
Applicant had not provided a reasonable explanation for their late submission.
[11]
The RAD then considered the RPD’s decision to
assign little probative value to the post-hearing documents. The post-hearing
documents included a card from the Turkish military with hand-written personal
information, a land registry document, an insurance certificate, a birth
certificate for Gulay Aytac, a family registration document, a social insurance
record card, an “international marriage certificate”,
a military discharge certificate, and some union receipts. The Applicant argued
before the RAD that the RPD erred in rejecting these documents based on its
concerns about whether his other identity documents had been legitimately
obtained.
[12]
The RAD concluded that, even if the Applicant
did not have prior credibility difficulties, many of these documents would
warrant little probative value. Some documents did not contain photographs or
biometric information and the ones that did contain a photograph were
hand-written with few security features. When considered in the context of his
credibility difficulties, the documents were found to have little probative
value.
[13]
The RAD noted that, as the documents deserved
little weight, it was not necessary to consider whether the Applicant provided
a reasonable explanation for their late submission. Nevertheless, it found
lacking the explanation that the Applicant did not realize that further
evidence of identity would be required until the hearing was concluded. The
forensic report specifically indicated that the documents do not constitute
credible evidence of identity and, despite this, the Applicant did not seek new
documents until after the conclusion of the hearing. The RAD therefore found
that the RPD did not err in denying the Applicant’s application for submission
of post-hearing documents.
(1)
Identity Finding
[14]
The RAD found that the RPD had considered the
large number of documents submitted and referred to the RPD’s reasons for
concern and resulting conclusion that the evidence did not establish the
Applicant’s identity. The RAD stated that it had considered the evidence and
reached the same conclusion. The RAD did however agree with the Applicant’s
position that it was an error for the RPD to consider the Applicant’s use of
false documents to enter Canada as part of its assessment of his identity.
Nevertheless, the RAD found that the RPD’s identity finding stood despite this
error.
(2)
Admissibility of Evidence Submitted on Appeal
[15]
The RAD referred to Section 110(4) of IRPA,
which provides that an appellant may present only evidence that arose after
rejection of his claim or that was not reasonably available, or that he could
not reasonably have expected in the circumstances to have presented at the time
of the rejection. Following consideration of applicable case law, the RAD
stated it would undertake an analysis of any proposed new evidence, not only
for its timeliness, which is largely the focus of section 110(4), but also for
its evidentiary value.
[16]
Noting the jurisprudence surrounding the factors
identified in Raza v Canada (Minister of Citizenship and Immigration),
2007 FCA 385 for the consideration of new evidence by a Pre-Removal Risk
Assessment [PRRA] officer, the RAD stated that it would look to the
factors in Raza but would not be strictly bound by them and, in applying
any Raza factor, would distinguish its own role from that of a PRRA
officer. It concluded that it is appropriate, even if new evidence meets the
test in section 110(4), for the RAD to consider whether new evidence is
relevant, credible, trustworthy and material. On materiality, the RAD adopted
an approach that focuses on whether the evidence is material enough to affect
the outcome of the RAD appeal.
[17]
The Applicant’s proposed new evidence before the
RAD included the post-hearing documents that had been submitted to and
rejected by the RPD and a “Refusal of
Entry Clearance”, apparently issued by immigration authorities in
the United Kingdom, as well as a Visa Application Submission Receipt.
[18]
With respect to the the post-hearing
documents, the RAD noted that they did not arise after the rejection of the
claim and that the Applicant could reasonably have been expected to provide
those documents to the RPD in accordance with the RPD Rules. Therefore, they
did not meet the requirements of Section 110(4). The RAD also concluded that,
even if they were to be accepted, these documents were not capable of
overcoming its serious concerns with respect to the Applicant’s identity.
[19]
The RAD similarly noted that the UK documents
were dated in 2013 and therefore did not arise after the rejection of the
Applicant’s refugee claim. Considering the Applicant’s testimony before the
RPD, the RAD found that he could reasonably have been expected to present these
documents to the RPD. Even if the UK visa refusal met the test in section
110(4), the RAD would not accept it, as it was not relevant or material. It did
not provide any indication whether the validity of the Applicant’s passport was
assessed by the UK authorities.
[20]
The RAD ruled that the Applicant’s proposed new
evidence was not admissible in the appeal and held that, having reviewed the
RPD’s decision and the evidence, it reached the same conclusion as the RPD that
the Applicant had not established his personal and national identity.
IV.
Issues and Standard of Review
[21]
Based on the Applicant’s oral argument at the
hearing, he is submitting the following issues for the Court’s consideration:
A.
The RAD’s decision represents a breach of
procedural fairness in upholding the RPD’s decision to exclude the post-hearing
identity evidence;
B.
The RAD’s decision is unreasonable in failing to
admit post-hearing evidence under s. 110 of IRPA;
C.
The RAD’s decision is unreasonable because it
did not conduct an independent assessment of the totality of the Applicant’s
evidence on the central issue of the appeal; and
D.
The RAD’s decision is unreasonable because it
relied on the findings of the RPD without regard for how an acknowledged error
in the RPD’s approach to the evidence impacted those findings.
[22]
Neither party takes issue with the standard of
review applied by the RAD with respect to its review of the RPD’s decision. The
RAD articulates a requirement to conduct an independent assessment of the
evidence in support of the Applicant’s claim.
[23]
However, the parties’ positions do diverge in
one respect on the standard of review to be applied by the Court in considering
the RAD’s decision. The Applicant submits that the standard of review is one of
reasonableness, except for the issue whether the RAD should have found the RPD
to have erred in excluding the post-hearing evidence. The Applicant argues that
this is an issue of procedural fairness that should be reviewed on a standard
of correctness. The Respondent submits that the standard of reasonableness
applies to all issues in this application.
[24]
I adopt the Applicant’s position on the standard
of review, relying on Cox v Canada (Minister of Citizenship and Immigration),
2012 FC 1220, as authority for the issue whether post-hearing evidence is
allowed by the RPD being reviewed on a standard of correctness. However, as
explained below, in this case I would reach the same conclusion on the issue to
which this standard applies, even if I were to apply the standard of
reasonableness.
V.
Submissions of the Parties
A.
The Applicant’s Position
[25]
The Applicant’s argument, that the RAD erred in
sustaining the RPD’s decision not to admit the post-hearing document, focuses
upon the assessment of the documents’ probative value, as required by RPD Rule
43. He argues that the RAD looked at this evidence through the prism of the
adverse credibility determinations that had been made with respect to the
principal identity documents submitted to and considered by the RPD. The
Applicant’s position is that it is an error to assess an identity document
based on credibility concerns unrelated to the document (see Elhassan v
Canada (Minister of Citizenship and Immigration), 2013 FC 1247).
[26]
With respect to the RAD’s decision not to admit
the post-hearing evidence under s. 110 of IRPA, the Applicant argues that
evidence can be before the RAD in only two ways, either as part of the record
of the proceedings of the RPD under s.110(3) or as new evidence admissible
under s.110 (4). He points out that post hearing evidence that was submitted to
the RPD will never be admissible as new evidence under s. 110(4), because, it
will never be the case that it “arose after the
rejection of the claim” or was not “reasonably
available” before the rejection as required by s. 100(4). Rather, post
hearing evidence refused by the RPD under Rule 43 of the RPD Rules must form
part of the “record of the proceedings of the RPD”
under s. 110(3) of IRPA.
[27]
The Applicant also notes that appellants are
instructed by the RAD Rules (s.3(3)(c)) that the record before the RAD is to
contain “any documents that the Refugee Protection
Division refused to accept as evidence, during or after the hearing, if the
appellant wants to rely on the documents in the appeal”. Unlike the case
of “new evidence” where s.3(3)(g) of the RAD
Rules instructs an appellant to make submission on how that evidence meets the
test under s.110(4) of the IRPA, there is no such direction on the
admissibility before the RAD of documents refused admission by the RPD. The
Applicant argues this is an indication that such evidence is properly before
the RAD without the need for further justification.
[28]
The Applicant submits that there is also no
reason to exclude evidence again at the RAD stage for non-compliance with the
RPD Rules, as there is no prejudice to the RAD in weighing this evidence, where
both the RAD and the Minister would have a full opportunity to test the
evidence should they see fit. Finally, the Applicant argues that the refusal to
consider this evidence is a bar on a refugee claimant’s ability to present
their case in a context where section 7 Charter rights are engaged and
where the objectives of IRPA are to facilitate refugee protection.
[29]
In relation to the identity documents that were
in evidence before both the RPD and the RAD, the Applicant argues that the RAD
did not conduct an independent assessment. It owes no deference to the RPD on
the genuineness or weight of documents. The authenticity of the documents must
be assessed in their own right and cannot be discarded solely based on
credibility concerns related to testimony or a claimant’s other documents (Ren
v Canada (Minister of Citizenship and Immigration), 2015 FC 1402 [Ren]).
The Board must engage in some assessment of each piece of evidence that goes to
identity (Teweldebrhan v Canada (Minister of Citizenship and Immigration),
2015 FC 418 [Teweldebrhan]).
[30]
The Applicant submits that the RAD’s assessment
is completely silent on a number of documents that the Applicant submitted to
prove his identity. There is no indication in the RAD’s decision that this
evidence of identity was assessed, why this evidence of identity was given no
weight, or why this evidence in combination with other evidence of identity was
not enough to establish identity on a balance of probabilities.
[31]
Finally, the Applicant submits that the RAD
erred, in upholding the RPD’s finding that the evidence as a whole did not
establish the Applicant’s identity, in light of the RAD’s own recognition that
the RPD had considered an erroneous factor (reliance on the use of fraudulent
identity papers to enter Canada) in its assessment of the whole of his
evidence. The RAD did not consider how the RPD’s conclusion was impacted by
this error.
B.
Respondent’s Position
[32]
On the subject of the post-hearing evidence and
the application of RPD Rule 43, the Respondent submits that the RAD made no
error in agreeing with the RPD that the evidence had little probative value.
[33]
In response to the Applicant’s argument under s.
110 of IRPA, the Respondent notes that this Court recently found that the RAD
has no discretion to admit new evidence that does not meet the requirements
under s.110 (4) (Deri v MCI , 2015 FC 1042 at pars 51 and 55).
[34]
The Respondent also argues that evidence found
inadmissible and therefore not considered by the RPD is, by definition, new
evidence before the RAD. An appellant must put this evidence into its record so
that the RAD may then assess whether it qualifies for admission under s.110 (4)
as new evidence. The fact that there is a specific statutory restriction on the
type of new evidence that is permissible on appeal makes clear that the RAD is
not a complete de novo appeal that allows an appellant to provide better
evidence where the evidence provided to the RPD is found lacking.
[35]
In response to the Charter argument, the
Respondent submits that the limitation in s.110(4) on admittance of new
evidence before the RAD does not preclude a refugee claimant from providing
required evidence and therefore raises no inconsistency with the principles of
fundamental justice.
[36]
The Respondent also notes that the RAD went
beyond what was required in its s.110(4) analysis and assessed the documents, finding
they were not probative.
[37]
On the subject of the identity documents that
were in evidence, the Respondent argues that the RAD clearly considered the
documents on its own and came to the same conclusion as the RPD. Specifically,
it found contradictions between testimony and evidence, inconsistent testimony
regarding photos on identity documents, problems with the Turkish identity card
issued in Canada, and a problem with the document from the political
organization in Turkey.
[38]
Further, the Respondent submits that it is trite
law that the RAD need not mention each piece of evidence and is presumed to
have considered the evidence. In this case, there were already significant
problems with more probative identity documents. When primary documents are not
credible, it is not necessary to give weight to other documents that cannot on
their own confirm identity (Diarra v Canada (Minister of Citizenship and
Immigration), 2014 FC 123 [Diarra]).
[39]
The Respondent also argues that the fact the RAD
disagreed with one, non-determinative finding, but agreed with the rest of the
findings and the overall decision, shows a clear independent analysis.
VI.
Analysis
[40]
My decision to allow this application for
judicial review turns on the requirement for the RAD to assess the totality of
the evidence in support of the Applicant’s identity. The Applicant cites a
number of authorities for this principle (e.g. Lin v Canada (Minister of
Citizenship and Immigration), 2006 FC 84 at paras 9-14; and Kabongo v
Canada (Minister of Citizenship and Immigration), 2013 FC 1086 at paras
19-22) but refers in particular to the recent decision in Teweldebrhan,
where Chief Justice Crampton held as follows at paragraphs 13-21:
[13] In reaching its conclusion that
Mr. Teweldebrhan had failed to establish his identity on a balance of
probabilities, the RPD did not refer to the letters from the two
Eritrean political organisations or the letter from Mr. Teweldebrhan’s wife.
[14] The presumption that
foreign identity documents are valid (Rasheed v
Canada (Minister of Citizenship and Immigration), 2004 FC 587 at paras
19-20; Bouyaya, above at
para 11) falls away when there is a valid reason for doubting their
authenticity (Elhassan,
above at para 21).
[15] In my view, a valid reason for
doubting the authenticity of an applicant’s foreign identity documents is that
other identity documents provided by the applicant have been established to be
fraudulent or otherwise inauthentic. Another such valid reason is where the RPD
has a reasonable basis for rejecting the credibility of explanations offered by
an applicant with respect to one or more of his or her identity documents.
[16] Stated differently, where the RPD
is satisfied one or more of an applicant’s identity documents have been
fraudulently obtained or are otherwise inauthentic, the presumption that the
applicant’s remaining identity documents are valid can no longer be maintained.
This is because the foundation for that presumption has been eroded.
[17] In this case, there were at least
two factors that, independently, provided such a valid reason for doubting the
authenticity of Mr. Teweldebrhan’s identity documents. These were: (i) the fact
that he testified that he had travelled on illegally obtained visas and on a
passport that he obtained through an “agent” in Sudan, and (ii) the two
Certificates of Baptism that he provided to the RPD were inconsistent and he
was unable to offer a reasonable explanation for that inconsistency. Had the
RPD questioned Mr. Teweldebrhan about the inconsistencies it had identified in
respect of the identification numbers on the money transfer and bus ticket
invoice, and had it not been satisfied with his responses, that would have
provided a third, independent, reason for setting aside the presumption.
[18] Elhassan, above, is
distinguishable on this point, as the RPD based its determination to give
little weight to a birth certificate on credibility findings that were found to
be unreasonable (Elhassan, above at paras 23-24).
[19] Notwithstanding that the RPD was
entitled to set aside the presumption of validity of Mr. Teweldebrhan’s
identity documents, it was still required to at least consider and assess the
authenticity and probative value of each of those documents, as well as the
affidavits and the letters that he submitted in support of his application (Jiang
v Canada(Minister of Citizenship and Immigration), 2007 FC 1292 at paras
6-7; Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 157
at para 55). The RPD’s failure to do so rendered unreasonable its determination
that Mr. Teweldebrhan had not established his identity on a balance of
probabilities.
[20] Had the RPD actually assessed the
copies of the identity documents, the affidavits and the letters that Mr.
Teweldebrhan submitted, it would have been reasonably open to it to find that
their collective probative value did not establish Mr. Teweldebrhan’s identity
on a balance of probabilities (Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558 at para 23).
[21] Instead, the RPD appeared to
dismiss outright the copies of the identity documents as well as the two
affidavits, and it did not mention the letters at all. This was unreasonable.
[41]
In the case at hand, the Applicant identifies
seven documents or categories of documents, introduced by the Applicant in
support of his identity in his RPD hearing that are not referred to in the
RAD’s decision. He argues that failure to conduct an independent assessment of
the authenticity and probative value of each of these documents represents a
reviewable error as explained in Teweldebrhan. The Respondent does not
distinguish Teweldebrhan but argues that the documents to which the
Applicant refers are tertiary documents that could not have changed the RAD’s
decision. The Respondent encourages the Court to prefer the decision in Diarra,
in which Justice Shore stated the following at paragraph 30:
[30] The Court does note
that the RPD did not expressly mention the Applicant’s mother’s death
certificate in its reasons; however, the failure to mention this document, a
tertiary document, does not, in and of itself, make the RPD's decision
unreasonable. It is clear from the jurisprudence that the RPD does not need to
address every single piece of evidence; particularly where it has found that
the applicant’s underlying claim lacks credibility (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at para
14-17). It is evident in this case that the RPD considered its probative value
prior to rendering its decision (Hearing transcript, CTR at pp 410-412).
[42]
I find that these authorities can be reconciled,
in that Justice Shore concluded based on his review of the record in Diarra
that the RPD had actually considered the probative value of the tertiary
identity document that was the subject of the applicant’s argument. Based on
these authorities, I would consider it to be a reviewable error on the part of
the RAD to have reached its decision without considering the identity documents
to which the Applicant refers unless, as argued by the Respondent, those
documents could not have changed the RAD’s decision.
[43]
Before turning to that question, I will address
the RAD’s review of the RPD’s decision to reject the post-hearing evidence, as
that review also raises concerns about considering the totality of the identity
evidence. I agree with the Applicant that the RAD’s reasons raise the issue
that it concluded that evidence to have little probative value in part based
upon credibility difficulties with other evidence, contrary to the principles
expressed by Justice Boswell at paragraphs 24 to 27 of Ren. I
acknowledge, as argued by the Respondent, that the RAD also referred to having
concerns about the probative value of the post-hearing documents, even if the
Applicant did not have other credibility difficulties. However, the RAD makes
this statement about “many”, not all, of these
documents, and its subsequent analysis of the documents’ probative value omits
the social insurance record card, the military discharge certificate, and the
family registration document that the RAD had referred to as being included in
the post-hearing documents.
[44]
Therefore, it appears from the decision that, as
with the documents that were submitted at the hearing before RPD, the RAD’s
analysis of the probative value of the post-hearing documents considers some,
but not all, of those documents. The RAD proceeds to conclude that the
Applicant did not provide a reasonable explanation for the late submission of
these documents to the RPD, and I find no error in that conclusion. The RAD
also correctly identifies that the factors that were to be considered by the
RPD under Rule 43, in considering whether to admit the post-hearing evidence,
included both the availability of a reasonable explanation for late submission
and the documents’ probative value. However, in the absence of an analysis by
the RAD of the probative value of all these documents, other than in
reliance on credibility difficulties associated with other documents, that
factor has not been properly considered. As such, my conclusion is that the RAD
erred, in a manner both incorrect and unreasonable, in its review of the RPD’s
decision not to permit submission of the post-hearing evidence.
[45]
I therefore return to the question whether the
identity documents that have not received independent assessment by the RAD
could have changed the RAD’s decision. The identity documents that were before
the RPD at the hearing, but on which the RAD was silent, are described by the
Applicant as follows:
A.
A letter from the Toronto Kurdish Community
& Information Centre confirming his personal identity based on his
knowledge of Kurmanji Kurdish and interviews with friends and relatives who
know him in Canada;
B.
Kurdish Political Party Circulars noting party
member assignments and a list of party member election duties including Mr.
Aytac’s name;
C.
Kurdish Political Party Letter addressed to Mr.
Aytac on party letterhead congratulating the Applicant on his youth
chairmanship;
D.
Kayseri Haci Veli Membership ID with his
photograph and official stamps;
E.
Alevi Cem House Membership receipts in his name;
F.
School Certificate for Applicant’s son Ekin Ali
Aytac; and
G.
Pictures of the Applicant at the Alevi Cultural
Centre in Turkey.
[46]
I agree with the Respondent’s characterization
of these documents as tertiary, particularly compared to those identity
documents that were expressly considered by the RAD in reaching its decision.
However, some of these documents (emanating from political parties) appear
similar in character to those that were the subject of the decision in Teweldebrhan,
and one bears the Applicant’s photograph, such that it is not possible to
conclude that they are without some potential probative value. As noted above,
the post-hearing documents that the RAD did not assess for probative value
include the Applicant’s social insurance record card, military discharge
certificate, and family registration document. I also note that the social
insurance record card bears a photograph.
[47]
Consistent with the analysis in Teweldebrhan,
the RAD could well have found after assessing all these documents, in
combination with its other findings, that their collective probative value did
not establish the Applicant’s identity. However, my conclusion is that it is
not possible to know whether assessment of the combination of these documents
could have changed the RAD’s decision. Therefore, my finding us that such an
assessment was required. This application for judicial review must be allowed
and the matter referred back to the RAD for re-determination.
[48]
Having reached this conclusion, it is
unnecessary for me to consider the Applicant’s arguments related to s. 110 of
IRPA. The Applicant raised a potential question of general importance for
certification in connection with that issue. However, as I have made no
decision on that issue, no question will be certified.
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