Docket: IMM-2749-17
Citation:
2018 FC 96
Toronto, Ontario, January 29, 2018
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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PEMA SANGMO
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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]
The Applicant claims refugee protection on the
basis that she is a citizen of Tibet and no other country, and fears
persecution from the Chinese government. By decision dated November 23, 2016,
the Refugee Protection Division (RPD) rejected the Applicant’s claim, in part,
on a finding that since she was born in India, the Applicant is a citizen of
India. On appeal to the RAD the Applicant advanced new evidence to establish
that, regardless of the fact that she was born in India, because her father was
born in Tibet, she is a citizen of China.
[2]
The interpretation of foreign law was a primary
outstanding issue before both the RPD and the RAD. However, as described below,
on a purely evidentiary basis, I find that the RAD’s decision must be set aside
because of fundamental reviewable error.
[3]
Before the RPD the Applicant testified to her
understanding that her father was born in Tibet, and was in possession of
documentary evidence to establish this fact but did not have the evidence with
her to produce into the record. However, when asked by her Counsel “if required can you produce copies of your parents’ RCs [Registration
Certificates]” the Applicant replied “yes, I
can” (Audio Recording of the RPD hearing; 1:30.05+). The RPD did not
request that the evidence be produced.
[4]
Before the RAD, the Applicant supplied the
following affidavit evidence:
At the [RPD] hearing the member asked about
my father’s RC (Registration Certificate). I did not know that this was
required at the hearing and I did not know that I could submit a copy of it
after the hearing. Attached as Exhibit B to this affidavit is a copy of my
father’s RC, Registration Certificate, which confirms that he was born in
Pemakoe in Tibet, he is a Tibetan national and that he arrived in India by land
route.
(Appellant’s Affidavit, sworn December 30,
2016, Certified Tribunal Record, pp. 95-96)
[5]
Counsel for the Applicant argued that the copy of
the Registration Certificate should be admitted into evidence because “the appellant had no way of knowing that the [RPD] panel
wished to see her father’s Registration Certificate and did not know when it
could be submitted” (Appellant’s Memorandum, CTR, p. 107, para. 15).
The manner in which the RAD handled the Registration Certificate is as follows:
The second item of new evidence was a
photocopy of the, [sic] "Registration Certificate Number Residential
Permit" (Exhibit P-2, Appellant’s Record, Appellants [sic] Memorandum, at
pp. 17-19) of the Appellant's father. The registration certificate indicates
that her father was born in Tibet (China). The Appellant stated that she had no
way of knowing that the [RPD] panel wished to see her father's Registration
Certificate, and was unaware when it could be submitted. The first issue in any
claim is identity, or personal and country of nationality. The Appellant was
represented by an experienced and competent counsel at the RPD hearing. The RAD
does not accept this new evidence in that it could reasonably have been before
the RPD pursuant to section 110(4) of the IRPA. At the hearing, the issue of
her nationality was explored. The Appellant was asked about documentation to
show her parents' places of birth, and she mentioned that she did not happened
[sic] to have it with her. The RPD hearing was on May 25, 2016, and the RPD's
decision was rendered on November 21, 2016; a time period of almost six months.
It is not reasonable or credible that this document could not have been
presented to the RPD for its consideration prior to the decision. The
RAD does not accept the Appellant's explanation, given that this was an issue
for the RPD.
[Emphasis added]
[6]
A foundational principle with respect to the
making of a credibility finding is stated by Justice Heald in Maldonado v
Canada (Minister of Employment & Immigration, ([1980] 2 F.C. 302) (FCA)
at paragraph 5:
When an applicant swears to the truth of
certain allegations, this creates a presumption that those allegations are true
unless there be reason to doubt their truthfulness.
[7]
I find that there is absolutely no evidence on
the record before the RAD to support the negative credibility finding and
rejection of the Applicant’s sworn evidence quoted in paragraph 4 above. For
this reason, I find that the decision under review is unreasonable. It is concerning
that, on a basis of such a capricious credibility finding, the RAD rejected the
very evidence that the RPD failed to request, and that the RAD could apply to
determine the contentious issue of the Applicant’s citizenship at the base of
her claim, being fear of persecution should she be required to return to China.
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