Date: 20240319
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Docket: IMM-2599-23
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Citation: 2024 FC 428
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Ottawa, Ontario, March 19, 2024
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PRESENT: Mr. Justice O'Reilly |
BETWEEN:
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ABDULAI YAKUBU
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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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AMENDED JUDGMENT AND REASONS
I. Overview
[1] In 2016, Mr Abdulai Yakubu arrived in Canada and sought refugee protection. He claimed to be a citizen of Ghana and said he fled his home country out of fear of persecution arising from a family dispute over property.
[2] A panel of the Refugee Protection Division rejected Mr Yakubu’s claim; the RPD found that Mr Yakubu had failed to prove his identity.
[3] Mr Yakubu appealed to the Refugee Appeal Division; the RAD also concluded that Mr Yakubu failed to provide satisfactory evidence of his identity. As a result, the RAD found it unnecessary to consider the merits of Mr Yakubu’s refugee claim.
[4] Mr Yakubu now seeks judicial review of the RAD’s decision. He submits that the decision was unreasonable because the RAD refused to consider new identity evidence, namely, a copy of his Ghanaian passport. In addition, Mr Yakubu faults the RAD for refusing to overturn the RPD’s decision on the basis that the RPD had failed to consider Mr Yakubu’s birth registration certificate as evidence of his identity. Finally, Mr Yakubu maintains that he was entitled to an oral hearing because the RAD, in effect, made a negative credibility finding against him.
[5] I agree with Mr Yakubu that the RAD’s treatment of the issue of identity was unreasonable. The RAD should also have considered whether Mr Yakubu was entitled to an oral hearing. Therefore, I will grant this application for judicial review and order another panel of the RAD to consider Mr Yakubu’s case.
[6] The sole issue is whether the RAD’s decision was unreasonable.
II. Was the RAD’s decision unreasonable?
[7] The Minister submits that the RAD’s findings regarding the new evidence presented by Mr Yakubu and the lack of proof of his identity were both reasonable. No oral hearing was required, according to the Minister.
[8] I disagree with the Minister’s submissions.
[9] In respect of the new evidence, the RAD correctly noted that Mr Yakubu had stated at his RPD hearing that he did not have a copy of his passport, but he was applying for a new one. It was also true that Mr Yakubu had not managed to find a copy of his passport during the almost six years between making his refugee claim and the RPD decision. He testified that he had lost his passport while travelling between South America and the United States.
[10] However, Mr Yakubu explained that it was only after the RPD rendered its decision that he was able to obtain a copy of his passport from the person who had assisted him with his travels. According to Mr Yakubu, the passport was not reasonably available at the time of the RPD hearing and he could not have reasonably been expected to produce it sooner. Therefore, he says, the passport qualified as new evidence under s 110(4) of the Immigration and Refugee Act, SC 2001, c 27 (see Annex for provisions cited). In contrast, the RAD found that Mr Yakubu had “not explained why this document was not reasonably available prior to the RPD’s decision.”
In effect, the RAD seems to have disbelieved Mr Yakubu’s assertion that he had been unable to obtain a copy of his passport until after the RPD hearing, but it provided no explanation for that adverse credibility finding.
[11] The RAD also found that the RPD had not failed to consider Mr Yakubu’s birth registration certificate as evidence of his identity. The RAD pointed out that the RPD had referred to the certificate when comparing the name on that document with the name on Mr Yakubu’s voter identification card – the names were the same. Therefore, the RAD concluded that the RPD had not overlooked Mr Yakubu’s birth registration certificate. There are three problems with the RAD’s conclusion. First, the RPD did not list the birth registration certificate among the documents it considered on the issue of identity. Second, since the name on the certificate matched the name on Mr Yakubu’s voter identification card, the certificate corroborated evidence of Mr Yakubu’s identity. Third, the certificate provided independent evidence of Mr Yakubu’s identity that the RPD did not explicitly assess.
[12] The RAD correctly noted that the RPD did mention the birth registration certificate in passing. But mentioning a document is not the same as considering its evidentiary significance. I find that the RAD’s affirmation of the RPD’s decision on the issue of identity was unreasonable.
[13] On the issue of an oral hearing, the RAD stated that it could not hold an oral hearing because there was no admissible new evidence before it, citing s 110(6) of the Immigration and Refugee Protection Act. However, the criteria for holding an oral hearing are separate from those that apply to new evidence. The RAD may order an oral hearing when documentary evidence discloses a serious issue about an appellant’s credibility, credibility is central to the person’s claim, and the evidence, if accepted, could justify granting or rejecting the claim. Here, the RAD appears to have made a credibility finding regarding Mr Yakubu’s passport and that finding related to a central issue in Mr Yakubu’s refugee claim, namely his identity. If the RAD had admitted the passport, Mr Yakubu’s identity may have been established, allowing for a consideration of the merits of his refugee claim.
[14] Given my conclusion that the RAD’s decision was otherwise unreasonable, I need not decide whether it should have held an oral hearing. I merely point out that there was a live issue that the RAD failed to consider.
III. Conclusion and Disposition
[15] The RAD’s treatment of the issue of identity was not transparent, intelligible, or justified on the evidence – it was unreasonable. I must, therefore, allow this application for judicial review and order another RAD member to reconsider Mr Yakubu’s appeal. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT IN IMM-2599-23
THE COURT’S JUDGMENT is that
The application for judicial review is allowed and another member of the Refugee Appeal Division shall reconsider the applicant’s appeal.
No question of general importance is stated.
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"James W. O’Reilly" |
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Judge |
ANNEX
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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imm-2599-23 |
STYLE OF CAUSE:
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ABDULAI YAKUBU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING:
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TORONTO, ON
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DATE OF HEARING:
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FEBRUARY 14, 2024
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AMENDED jUDGMENT AND REASONS: |
O’REILLY J
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DATED:
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MARCH 19, 2024
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APPEARANCES:
Richard A. Odeleye |
For The APPLICANT |
Gregory George |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Richard A. Odeleye Toronto, ON |
For The APPLICANT |
Attorney General of Canada Toronto, ON |
FOR THE RESPONDENT |