Canada Immigration Case-law Canada Sow, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

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Judgement for this Case: Click here!

IMMIGRATION — Refugee status — Requirements — Identity — Refugee claimant alleged that she was citizen of Mauritania — In hearing before Refugee Protection Division (RPD) claimant produced single identity document in form of photocopy of birth certificate — RPD was not satisfied with claimant’s explanations for failing to produce original birth certificate or additional reliable identity documentation — RPD was also concerned by claimant’s inability to answer basic questions about her life in Mauritania — RPD concluded that claimant had not established her personal or national identity and had not made reasonable attempts to do so — RPD also drew significant negative credibility inference from claimant’s testimony in support of her identity and nationality — Claimant appealed RPD finding to Refugee Appeal Division (RAD) where she sought to strengthen her claim with e-mail evidence about her subsequent but failed efforts to obtain better identity documents — RAD refused to admit any of newly adduced evidence on basis that it either did not comply with admissibility criteria in s. 110(4) of Immigration and Refugee Protection Act (Can.) or was irrelevant — In its decision RAD stated that e-mail documents were not evidence that arose after rejection of claim, and then stated that same documents did arise after rejection of claim, thus contradicting itself Claimant applied for judicial review — Application granted; matter remitted for reconsideration on merits by different decision-maker — RAD’s rejection of at least some of evidence tendered on behalf of claimant was unreasonable — Section 110(4) of Act must be applied by RAD with degree of flexibility commensurate with surrounding circumstances — While e-mails did no more than establish failed attempts by counsel to obtain better identity documentation, emails were not irrelevant — Section 106 of Act states that evidence bearing on unsuccessful steps taken to obtain identity documentation is relevant and may overcome concern about adequacy of what was produced — This appears to be recognition that, in some parts of world, cogent identity documentation may be difficult, if not impossible, to obtain and legitimate refugee claimants ought not to be prejudiced by that fact alone — While more could have been done to attempt to overcome identity concerns of RPD and RAD, this did not displace obligation of RAD to apply required standard of review to evidence or to reasonably accept and assess evidence put to it

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