Docket: IMM-918-16
Citation:
2016 FC 1418
Ottawa, Ontario, December 30, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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CHIZOBA OZOMBA
DAVID CHIDIOGO
OJINKEYA (MINOR)
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Applicants
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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
I.
Overview
[1]
Ms. Ozomba alleges she is a citizen of Nigeria.
Her son David was born in the United States and is a citizen of that country.
The applicants claimed protection on arrival in Canada. The Refugee Protection
Division [RPD] of the Immigration and Refugee Board [IRB] denied their claim.
The RPD found that Ms. Ozomba had failed to establish her identity and that
David had failed to establish subjective or objective fear of persecution.
[2]
The applicants appealed the RPD decision to the
Refugee Appeal Division [RAD]. In doing so, Ms. Ozomba sought to place new
evidence before the RAD relating to her identity. The RAD refused to accept the
new evidence on the basis that it did not meet the requirements of subsection
110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
[IRPA]. The appeal was dismissed.
[3]
The applicants seek to set aside the RAD’s
decision and ask this Court to declare them to be Convention refugees or
persons in need of protection. In the alternative, the applicants ask that the
matter be returned for redetermination by a differently constituted panel. In
written submissions the applicants argued that the RAD erred: (1) in applying
the wrong standard of review in considering the RPD decision; (2) by refusing
to admit and consider the new evidence; and (3) in not granting an oral
hearing. The applicants further submit that the RAD's determination on the
issue of identity was unreasonable.
[4]
Although the applicants assert in written
submissions that the RAD applied the wrong standard of review, they advanced no
arguments in support of this position. The issues raised in the application
are:
A.
Did the RAD err in refusing to admit new
evidence and denying the request for an oral hearing?
B.
Is the decision reasonable?
[5]
I am not convinced that the RAD erred in
addressing the applicants’ new evidence or denying the request for an oral
hearing. The RAD’s findings do not warrant the intervention of this Court. The
application is denied for the reasons that follow.
II.
Standard of Review
[6]
There is no dispute as between the parties on
the standard of review. Where the Court is reviewing a decision of the RAD
involving questions relating to the admissibility of new evidence under
subsection 110(4) of the IRPA a reasonableness standard of review is to be
applied (Canada (Citizenship and Immigration) v Singh, 2016 FCA 96 [Singh
FCA] at para 29 and Ogundipe v Canada (Citizenship and Immigration),
2016 FC 771 at para 19). The RAD’s findings with regard to questions of identity
and credibility are questions of fact that are also to be reviewed on a
reasonableness standard (Canada (Citizenship and Immigration) v Kabunda,
2015 FC 1213 [Kabunda] at para 17).
III.
Analysis
A.
Did the RAD err in refusing to admit new
evidence and denying the request for an oral hearing?
[7]
The RAD first identified the proposed new
documentary evidence which included:
A.
Government of Enugu State of Nigeria
Identification Certificate [Document A];
B.
Letter of Identification/Attestation dated
December 9, 2015 [Document B];
C.
Letter of Attestation of Birth, from National
Population Commission [Document C]; and
D.
Letter from Enugu State Association [Document
D];
[8]
With respect to Documents A and B the RAD
identified inconsistencies in the documents and concluded on a balance of
probabilities that the documents were not genuine. The RAD concluded that it
would assign the documents little to no weight. The RAD also concluded that Ms.
Ozomba had failed to adequately explain why this documentation was not
available prior to the RPD hearing where identity was an issue.
[9]
With respect to Document C, the RAD noted
spelling errors on the document and also noted that it “…
is very different from the Attestation of birth that [Ms. Ozomba] presented at
her RPD hearing”. Specifically, the RAD noted that Document C was
issued by a different state, and at a different date. The RAD also concluded
that Document D, a letter from a Toronto-based organization attesting Ms.
Ozomba’s membership and participation in their charitable events, failed to
indicate how Ms. Ozomba had been identified. The RAD noted that “[t]here is nothing to tie this letter specifically to the
principal Appellant.”
[10]
The RAD noted that each of the documents
advanced as new evidence postdated the RPD decision. The RAD also noted Ms.
Ozomba’s explanation for each of the documents, that she had not reasonably
foreseen that the RPD would take issue with the identification evidence she had
placed before it and that she therefore obtained the additional documentation
to establish her identity before the RAD. However, the RAD concluded that she
had failed to provide any persuasive evidence to demonstrate that the proposed
new evidence did not exist, or if it did exist, why she could not have been
expected to place the evidence before the RPD. The RAD concluded that these
documents failed to meet the requirements of subsection 110(4) of the IRPA and
were not admissible.
[11]
Ms. Ozomba placed one other piece of evidence
before the RAD: a Greyhound Canada receipt and itinerary showing a one-way
travel between Toronto and Ottawa. Ms. Ozomba explained that this evidences an
attempt to obtain a new passport from the Nigerian Embassy in Ottawa. The RAD
did not address this document.
[12]
Having found all the new evidence inadmissible,
and after reviewing subsections 110(3), 110(4) and 110(6) of the IRPA, the RAD
concluded that it was required to proceed without an oral hearing. The
applicants’ request for an oral hearing was therefore denied.
[13]
The applicants submit that all the proposed new
evidence should have been admitted. They submit that the RAD's concerns with
Documents A and B were based on speculation and it should have requested a
forensic expert to assess authenticity in light of the concerns.
[14]
With regard to Document C the applicants argue
that it was unreasonable for the RAD to set aside this document solely because
it contained a spelling error and because it was issued by a state other than
the state where Ms. Ozomba was born. The applicants argue that any agency or
corporate body could have committed spelling errors and the applicants advanced
a reasonable explanation for the differences between Document C and the
documentation before the RPD. As for the “Letter from
Enugu State Association”, the applicants submit that its exclusion was
unreasonable as was the failure to address the proof of transport from Toronto
to Ottawa.
[15]
The applicants rely on Abdullahi v Canada
(Minister of Citizenship and Immigration), 2015 FC 1164 [Abdullahi],
to argue that subsection 110(4) of the IRPA should be interpreted to allow for
the admission of new evidence where an applicant is surprised that the evidence
presented to the RPD was not sufficient to establish identify. They further
submit that if an oral hearing had been granted, the RAD’s concerns could have
been addressed. I disagree.
[16]
The Federal Court of Appeal has stated that
where the RAD is considering a request to admit new evidence “[t]here is no doubt that the explicit conditions set out in
subsection 110(4) have to be met.” (Singh FCA at para 34). Those
explicit conditions require that the new evidence a party seeks to place before
the RAD be evidence that: (1) arose after the rejection of the claim by the
RPD; (2) was not reasonably available; or (3) was reasonably available, but
that the person could not reasonably have been expected in the circumstances to
have presented the evidence, at the time of the rejection.
[17]
The applicants do not dispute that the new
evidence itself (as opposed to the documents containing that evidence) existed
at the time of the RPD hearing. There is also no evidence on the record to
indicate that the existing evidence was not reasonably available to the
applicants. Rather, relying on Abdullahi, the applicants submit that
they could not reasonably have foreseen the need for the evidence. However, Abdullahi
is a decision that follows from a unique factual circumstance, a point made
recently by Justice Simon Fothergill in Canada (Minister of Citizenship and
Immigration) v Desalegn, 2016 FC 12 at para 23, where he stated:
[23] Abdullahi must be
understood within its unique factual context. In that case, the RPD instructed
the claimant to provide an affidavit or letter from his roommate to establish
his identity. The claimant provided a letter. The RPD then faulted him for not
providing an affidavit. Justice Hughes found this to be unreasonable because
the claimant had been presented with both options. Abdullahi cannot be
taken as authority for the proposition that an appellant before the RAD may
present new evidence every time he or she is surprised by the RPD’s decision.
[18]
Abdullahi does
not assist the applicants here. Identity was clearly an issue before the RPD
and it is trite to note that it is the applicants that bear the onus of
establishing identity. In doing so, an applicant has the obligation to put
their best foot forward in advancing their claim before the RPD. It is not open
to an applicant “… to wait to forward requisite and
relevant evidence until after the RPD rendered a negative determination.”
(Cabdi v Canada (Minister of Citizenship and Immigration), 2016 FC 26 at
para 24). This is exactly what has occurred here.
[19]
The RAD did not address the Greyhound Canada
receipt and itinerary showing a one-way trip between Toronto and Ottawa.
However, this document is of no value in establishing identity. It simply shows
that a ticket was purchased for travel. It does not demonstrate that the travel
took place that the purpose of the trip was to visit the Nigerian Embassy, nor
a refusal to issue a new passport, as Ms. Ozomba alleges. The applicants note
the RAD’s failure to address this piece of evidence but they do not argue that the
failure to do so, in itself renders the decision unreasonable. In my view, it
does not.
[20]
The RAD considered the proposed new evidence and
undertook a detailed analysis of that evidence. Having reasonably concluded
that the explicit conditions set out in subsection 110(4) of the IRPA had not
been met, the RAD had no authority to admit that evidence (Singh FCA at paras
34 and 35). While the RAD also highlighted concerns with the credibility and
trustworthiness of Documents A, B and C, non-compliance with the explicit
conditions set out in subsection 110(4) of the IRPA was determinative of the
issue.
[21]
Having concluded that the new evidence was not
admissible, the RAD reasonably concluded that it must proceed without an oral
hearing (subsections 110(3) and (6) of the IRPA and Singh FCA at paras
48 and 71). The RAD did not err in refusing to admit new evidence and in
denying the request for an oral hearing.
B.
Is the decision reasonable?
[22]
The identity of a refugee claimant “… is at the very core of every refugee protection claim”
and the Court should be cautious about intervening in such decisions (Kabunda
at para 18 citing Barry v Canada (Minister of Citizenship and Immigration),
2014 FC 8 at para 19 and Toure v Canada (Minister of Citizenship and
Immigration), 2014 FC 1189 [Toure] at para 32). The burden is on the
claimant to establish identity.
[23]
In this case, the RAD noted that the RPD’s
credibility findings deserved deference. However, it also undertook an
independent assessment of the evidence and provided reasons for its
conclusions, including its determination that the RPD was justified in not
accepting a poor quality copy of a passport as proof of identity given the “… impossibility of verifying its genuineness …”. The
decision reflects the requirements of justification, transparency and
intelligibility and falls within the range of possible, acceptable outcomes in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
IV.
Conclusion
[24]
The RAD reasonably concluded that the
applicants' new evidence was inadmissible and the request for an oral hearing
was to be denied. The decision itself is reasonable and the application is
denied.
[25]
The parties have not proposed a question for
certification and none arises.
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