KIBROM KEBEDOM Applicant v. THE MINISTER OF, 2016 FC 781

Date: 20160713 Docket: IMM-4623-15 Citation: 2016 FC 781 St. John’s, Newfoundland and Labrador, July 13, 2016 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:KIBROM KEBEDOMApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Kibrom Kebedom (“the Applicant”) seeks judicial review of the decision of the Immigration and Refugee Board,Refugee Protection Division (the “RPD”), denying his claim for protection, pursuant to

section 96 and subsection 97(1) of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant claims to be a citizen of Eritrea. He alleges to be at risk of persecution as a consequence of mandatoryconscription into the National Service. He was ordered to report for National Service in July 2014 and fled instead. He also alleges to beat risk of persecution as a refugee claimant. [3] The RPD found that the Applicant’s claim had no credible basis.

His identity was the determinative issue before the RPD.The RPD rejected the claim on the basis that his identity documents were insufficient, on a balance of probabilities, to establish hisidentity as a citizen of Eritrea. [4] In support of his identity, the Applicant submitted a birth certificate, a school report card and copies of his parent’s identitycards.

The RPD assigned these documents no weight. [5] After the hearing held on September 17, 2015, the Applicant, by letter dated September 20, 2015, requested the opportunityto submit post-hearing evidence and asked the matter remain under reserve for five days. [6] The RPD refused the Applicant’s request to file further evidence. It found that he had not provided any information as towhat documents he sought to adduce, their relevance or why the documents could not be filed earlier. [7] The Applicant raised four issues in this application for judicial review: A.

Did the RPD breach procedural fairness by refusing to allow the Applicant to submit post-hearing evidence; B. Was the RPD’s assessment of the Applicant’s evidence unreasonable; C. Were the RPD’s plausibility findings unreasonable; D.

Did the RPD commit a reviewable error by finding that the claim had no credible basis. [8] As a preliminary matter, the Minister of Citizenship and Immigration (the “Respondent”) objects to the inclusion in theApplicant’s Application Record of the post-hearing evidence that was not accepted by the RPD. [9] The Respondent submits that an application for judicial review should be conducted on the basis of the record before thedecision maker. He argues that the evidence does not fall within the narrow exceptions to that general rule, relying upon the decision inOntario Assn. of Architects v.

Assn. of Architectural Technologists of Ontario, [2003] 1 F.C.R. 331. [10] The Respondent argues that the RPD is under no duty to accept the evidence and properly exercised its discretion in denyingthe request to provide evidence after the close of the hearing; see the decision in Farkas v. Canada (Minister of Citizenship andImmigration), 2014 FC 542 at paragraph 12. [11] The first issue to be addressed is the applicable standard of review. [12] The refusal to accept new evidence after the close of a hearing involves discretion. In this case, the Applicant frames thisrefusal as an issue of procedural fairness.

An alleged breach of procedural fairness is reviewable on the standard of correctness; see thedecision in Behary v. Canada (Citizenship and Immigration), 2015 FC 794. [13] The Board’s credibility and identity findings are reviewable on the standard of reasonableness; see the decision in Aguebor v.Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). [14] Reasonableness is concerned with the justification, transparency and intelligibility of the decision-making process, andrequires that the decision fall within a range of possible, acceptable outcomes; see the decision in Dunsmuir v.

New Brunswick, 2008SCC 9 , [2008] 1 S.C.R. 190 at paragraph 47.

[15] The Respondent’s objection to the Applicant’s inclusion of the post-hearing evidence in his Application Record will beaddressed next. [16] The Applicant submits that the post-hearing evidence was adduced to establish a breach of procedural fairness, which is arecognized exception to the general rule that judicial review should be conducted on the basis of the evidence before the decision maker. [17] I agree that material extraneous to the material before the decision maker can be introduced in an application for judicialreview in support of an argument about a breach of procedural fairness; see the decision in Ontario Assn. of Architects, supra atparagraph 30.

I reject the Respondent’s arguments on this issue. [18] However, as set out below, I am not persuaded that any breach of procedural fairness occurred.

I will ignore the proposedpost-hearing evidence that is included in the Application Record, for the purpose of deciding this application. [19] The third issue is whether the RPD breached the duty of procedural fairness by not allowing the Applicant to provide post-hearing evidence. [20] Rule 43(3) of the Refugee Protection Division Rules, SOR/2012-256 sets out factors to be considered when a party makes anapplication to provide a document as evidence after a hearing as follows:

(3) In deciding the application, the Divisionmust consider any relevant factors, including(3) Pour statuer sur la demande, la Sectionprend en considération tout élément pertinent,notamment :(

a) the document’s relevance and probativevalue;

a) la pertinence et la valeur probante dudocument;(

b) any new evidence the document brings tothe proceedings; and

b) toute nouvelle preuve que le documentapporte aux procédures;(

c) whether the party, with reasonable effort,could have provided the document asrequired by rule 34

c) la possibilité qu’aurait eue la partie, enfaisant des efforts raisonnables, detransmettre le document aux termes de larègle 34. [21] I agree with the Respondent that the RPD is under no legal duty to accept post-hearing evidence. [22] Discretionary decisions are subject to judicial intervention if made for improper reasons or with reference to irrelevantconsiderations; see the decision in Maple Lodge Farms v. Government of Canada, (SCC), [1982] 2 S.C.R. 2. [23] I am not persuaded that the RPD erred in the exercise of its discretion to refuse the post-hearing evidence.

The letter fromApplicant’s Counsel dated September 29, 2015 does not indicate what evidence he sought to file or why that evidence could not havebeen filed in accordance with Rule 34.

The Applicant had not met the criteria set out in Rule 43(3). [24] The next issue to be addressed is the reasonableness of the RPD’s assessment of the Applicant’s evidence. [25] The RPD gave the Applicant’s birth certificate no weight, despite finding that it “does not contain any flaws on its face.” Itfound that, in light of the availability of fraudulent documents and its finding that the Applicant was not credible, the birth certificate wasneither credible nor trustworthy. [26] In my opinion, the fact that fraudulent identity documents are available in Eritrea and in the Eritrean expatriate community inCanada is not a sufficient basis to reject the Applicant’s birth certificate; see the decision in Chen v.

Canada (Minister of Citizenship andImmigration), 2015 FC 1133. [27] The availability of fraudulent documents in a country does not, per se, mean that the Applicant was not credible. [28] It follows that the RPD’s assessment of the birth certificate was unreasonable, in light of the standard of reasonablenessreferred to above. [29] The remaining issue is the no credible basis finding. [30] A finding of no credible basis may only be made where there is no trustworthy or credible evidence that could supportrecognition of the claim; see the decision in Rahaman v.

Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 3 F.C.R. 537at paragraph 28. Since I have found that the RPD’s assessment of the Applicant’s birth certificate was unreasonable, I conclude that thefinding of no credible basis is also unreasonable. [31] In my opinion, the RPD’s no credible basis finding is also flawed since the Applicant’s knowledge of Tigrinya, the mostwidely spoken language in Eritrea, is credible evidence that could support the recognition of his refugee claim; see the decision in Tranv.

Canada (Citizenship and Immigration), 2013 FC 1080 at paragraph 8. [32] In the result, this application for judicial review is allowed and the matter is remitted to a differently constituted panel of theRPD for redetermination. There is no question for certification proposed. JUDGMENT THIS COURT’S JUDGMENT is that this application for judicial review is allowed and the matter is remitted to a differentlyconstituted panel of the RPD for redetermination. There is no question for certification arising.

"E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: imm-4623-15 STYLE OF CAUSE: KIBROM KEBEDOM V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: april 13, 2016 JUDGMENT AND reasons: HENEGHAN J. DATED: July 13, 2016 APPEARANCES : Molly Joeck For The Applicant Marcia Pritzker-Schmitt For The Respondent SOLICITORS OF RECORD : Jared Will & Associates Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada Toronto, Ontario For The Respondent