MC0-08828

RAD File / Dossier de la SAR : MC0-08828 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision March 30, 2021 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Razgar Hasan Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Josée Barrette Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Minister of Citizenship and Immigration (the Minister) appeals the decision of the Refugee Protection Division (RPD) rendered on August 8, 2020, accepting the claim filed by XXXX XXXX XXXX XXXX (the Respondent) pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). The Respondent is a citizen of Lebanon who claimed refugee status on October 22, 2018, based on his sexual orientation and his role in XXXX XXXX XXXX. [2] The Minister argues that the RPD erred by failing to provide reasons as to why it rejected the Minister's application to use exhibits M-3 and M-4 at the hearing. He argues that this resulted in a breach of natural justice and asks the Refugee Appeals Division (RAD) to grant the appeal and set aside the decision of the RPD. The Respondent submits that the RPD rightfully rejected the said exhibits as they are irrelevant to the case at hand. He asks the RAD to reject the appeal and confirm the RPD's decision. OVERVIEW [3] On March 4, 2020, the Minister filed an amended notice of intervention with exhibits M-1 to M-6, including the CD of an interview requested by the RPD. [4] Following the request by the RPD to comply with section 34(3) of the Refugee Protection Division Rules (RPD Rules), on March 9, 2020, the Minister sent a formal application for permission to file late documents. [5] On March 9, 2020, the Minister received a notice of decision from the RPD allowing exhibits M-1, M-2, M-5 and M-6 to be used at the hearing. Exhibits M-3 and M-4 were rejected and removed from the file. The Minister alleges that no reasons were provided to explain why exhibits M-3 and M-4 were rejected by the tribunal. [6] On March 11, 2020, the Minister sent a letter to the tribunal, asking for reasons relating why exhibits M-3 and M-4 were rejected. [7] The RPD did not provide a response with its reasoning for not allowing the use of exhibits M-3 and M-4 at the hearing. DECISION [8] Based on my independent analysis, including the recording of the hearing, I set aside the RPD's determination and return the file back to the RPD for a re-determination with instructions. [9] The appeal is granted. STANDARD OF REVIEW [10] The RAD is required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. Although in exceptional situations where the RPD had a meaningful advantage the RAD can defer to its findings, in this case, the applicable standard of review is that of correctness.1 ANALYSIS Breach of natural justice Parties submissions [11] The Minister argues that the RPD erred in assessing whether exhibits M-3 and M-4 should have been admitted as evidence. [12] Exhibit M-3 contains Canada Border Service Agency (CBSA) interview notes dated July 11, 2018. Exhibit M-4 contains printouts extracted from the Respondent's Facebook account. [13] It is argued that these documents are highly relevant to assess the Respondent's credibility in determining his claim. The Minister submits that the RPD should have confronted the Respondent with the information contained in exhibits M-3 and M-4. [14] The Minister also advances that without any reasons as to why the documents were rejected, it is very difficult for the Minister to submit arguments to demonstrate why the decision was unfounded and the documents incorrectly rejected. [15] The Minister submits that the RPD specifically asked the Minister to submit a copy of the CD recording of the interview of July 11, 2018, and it is clear from the decision that the Board member did not listen to it. [16] Finally, the Minister submits that, on the basis of the evidence contained in exhibits M-3 and M4, the RAD should come to the conclusion that the Respondent is not credible on essential issues of his claim. [17] The Respondent argues that the admissibility of exhibits M-3 and M-4 on appeal must satisfy the test in section 110(4) of the Act. As such, it is submitted that the said documents are totally irrelevant to the case and should not be allowed in evidence. [18] With respect to exhibit M-3, the Respondent submits that this interview relates to the issue of the exclusion and has nothing to do with the core of the case before the RPD. The Respondent further advances that the date of the CBSA interview notes is not the correct date. Exhibit M-3 [19] At the outset, I note that, contrary to the Minister's argument, the RPD did provided reasons on the Minister's application for permission to file late documents at the hearing, including reasons as to why it rejected exhibits M-3 and M-4.2 [20] With respect to exhibit M-3, the RPD held that this document was redundant because it was already part of the RPD file. I agree with the RPD that this document was part of the disclosure made by the CBSA3 and was already in the RPD record. [21] I note that the RPD did not however expressly address this document in its decision. According to the jurisprudence, the tribunal is not required to make reference to all the evidence on the record. Although, if a document is important and it is omitted by the tribunal in its analysis, the RAD can conclude that the Board erred by failing to analyse essential evidence.4 In this file, such is not the case. [22] I have read exhibit M-3 and nothing in its contents can serve to invalidate the RPD's conclusions. Contrary to the Minister's argument, this document does not undermine the Respondent's credibility in any way. In fact, M-3 corroborates the Respondent's story as to his alleged fear of being persecuted because of his sexual identity and for having XXXX XXXX XXXX XXXX XXXX XXXX. [23] No error was committed by the RPD with respect to exhibit M-3. Exhibit M-4 [24] In relation to exhibit M-4, the RPD rejected the evidence because it was not accompanied by an official translation. The RPD held that the automatic translation from Arabic into French, provided by Facebook, was not in conformity with the RPD Rules. [25] I note that Exhibit M-4 consists of a series of Facebook posts where the Respondent makes reference to girls and women. I am of the view that this evidence is highly relevant to the Respondent's alleged sexual orientation as a gay man, which was a determinative issue before the RPD. As such, I agree with the Minister that the RPD should have allowed this exhibit in evidence and should have confronted the Respondent with it. [26] Although the evidence was not accompanied by an official translation, it was presented with an unofficial translation, in French, from Facebook - an uninterested third party - and the RPD was free to assess the reliability and the weight to be given to this exhibit. The RPD could have also requested the Minister to file an official translation. [27] As stated in section 170(g) of the Act, the RPD "is not bound by any legal or technical rules of evidence". Given that, this document goes to the heart of the claim, the RPD should have applied the rules of procedure and evidence with more flexibility to avoid a breach of natural justice. [28] I am of the view that the RPD erred by not allowing exhibit M-4 in evidence, which is relevant to a determinative question upon which the RPD allowed the claim. [29] That said, by virtue of Rule 9(2)(C) of the Refugee Appeal Division Rules5 and section 110(4) of the Act, exhibit M-4 in now part of the record on appeal. Contrary to the Respondent' argument, it is clear from the wording of section 110(4) of the Act6 that the admissibility criteria for new evidence listed therein does not apply to the Minister. [30] As such, I must see if it is possible for me to remedy the RPD's error on appeal. As mentioned above, given the centrality of exhibit M-4 to the Respondent's credibility as it relates to his sexual orientation, the Respondent must be confronted with the evidence and be allowed the opportunity to respond. [31] I must note that, on appeal, the RAD can only hold a hearing if all the conditions of section 110(6) of the Act are met, namely if the RAD considers that the evidence: a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; b) is central to the decision with respect to the refugee protection claim; c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [32] While, in my view, the Facebook posts meet the criteria in subparagraphs a) and b), a hearing on this evidence would not necessarily allow me to dispose of the claim as required in subparagraph c). While exhibit M-4 is relevant to the credibility of the Respondent as it relates to his sexual orientation, the Respondent also made a claim on the ground that his life is at risk because he XXXX XXXX XXXX XXXX XXXX XXXX. [33] As such, if I were to come to a conclusion, after holding a hearing, that would require me to substitute a decision to the RPD's determination related to the Respondent's sexual orientation, this would not dispose of the entire claim. Because the RPD did not address the second ground of the Respondent's claim, namely the risk he faces from members of the drug cartel, neither at the hearing not in its decision, I would not be in a position to render a decision on that part of the claim. [34] Consequently, I must return the file to the RPD for a re-determination. I instruct the RPD to consider exhibit M-4 in its credibility analysis. I also instruct the Minister to provide an official translation of exhibit M-4 to the RPD. CONCLUSION [35] Pursuant to subsection 111(1)(c) of the Act, the RAD returns the file to the RPD for re-determination by a new panel with the instructions listed above. [36] The appeal is granted. (signed) Bianca E. Suciu Me Bianca Eleonora Suciu March 30, 2021 Date BES/cl 1 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93, at paras 70-74; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at p. 90-91. 2 See RPD hearing recording, at minute 02:04:56 to 02:10:40. 3 See RPD-1, RPD record, at p. 65. 4 Michera v. Canada (Citizenship and Immigration), 2020 FC 804 (CanLII). 5 Content of the Minister's record : 9(2) In addition to the documents referred to in subrule (1), the Minister may provide, first to the person who is the subject of the appeal and then to the Division, the Minister's record containing the following documents, on consecutively numbered pages, in the following order: (a) the notice of decision and written reasons for the Refugee Protection Division's decision that the Minister is appealing; (b) all or part of the transcript of the Refugee Protection Division hearing if the Minister wants to rely on the transcript in the appeal, together with a declaration, signed by the transcriber, that includes the transcriber's name and a statement that the transcript is accurate; (c) any documents that the Refugee Protection Division refused to accept as evidence, during or after the hearing, if the Minister wants to rely on the documents in the appeal; (emphaiss added) 6 Evidence that may be presented : 110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (emphasis added) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-08828 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français