PEMA SANGMO Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 96

Date: 20180129 Docket: IMM-2749-17 Citation: 2018 FC 96 Toronto, Ontario, January 29, 2018 PRESENT: The Honourable Mr. Justice Campbell BETWEEN:PEMA SANGMOApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent 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 fromthe 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 advancednew 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 ofChina. [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 documentaryevidence 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”" (AudioRecording 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 wasrequired at the hearing and I did not know that I could submit a copy of it after the hearing.

Attached as Exhibit B to thisaffidavit is a copy of my father’s RC, Registration Certificate, which confirms that he was born in Pemakoe in Tibet, he is aTibetan 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 "“theappellant had no way of knowing that the [RPD] panel wished to see her father’s Registration Certificate and did not know when it couldbe submitted”" (Appellant’s Memorandum, CTR, p. 107, para. 15).

The manner in which the RAD handled the Registration Certificateis 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 registrationcertificate 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 issuein any claim is identity, or personal and country of nationality. The Appellant was represented by an experienced andcompetent counsel at the RPD hearing. The RAD does not accept this new evidence in that it could reasonably have beenbefore the RPD pursuant to section 110(4) of the IRPA. At the hearing, the issue of her nationality was explored. TheAppellant 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 tothe RPD for its consideration prior to the decision.

The RAD does not accept the Appellant's explanation, given that this wasan 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, ( (FCA), [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 unlessthere 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 ofthe Applicant’s sworn evidence quoted in paragraph 4 above.

For this reason, I find that the decision under review is unreasonable. It isconcerning 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. JUDGMENT THIS COURT’S JUDGMENT is that the decision under review is set aside and the matter is referred back for redetermination before a differently constituted panel. There is no question to certify. “Douglas R. Campbell” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2749-17 STYLE OF CAUSE: PEMA SANGMO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: JANUARY 26, 2018 JUDGMENT AND REASONS: CAMPBELL J.

DATED: JANUARY 29, 2018 APPEARANCES : Richard Wazana For The Applicant Nicole Paduraru For The Respondent SOLICITORS OF RECORD : WAZANALAW Barrister and Solicitor/ Avocat et Notaire Toronto, Ontario For The Applicant Attorney General of Canada For The Respondent