TB5-10842

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 File No. / N° de dossier de la SAR : TB5-10842 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 20, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Dean D. Pietrantonio Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Kamal Gill Conseil du ministre REASONS AND DECISION [1] The Minister of Citizenship and Immigration (the Minister) appeals a decision of the Refugee Protection Division (RPD) granting refugee protection to XXXX XXXX XXXX XXXX (the Respondent), a citizen of Iraq. The Minister has submitted new evidence in support of this appeal and asks the Refugee Appeal Division (RAD) to set aside the positive determination and refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. This appeal is allowed. Background [3] The Respondent alleged before the RPD that she is at risk in Iraq because her husband was a long-serving XXXX in the army of XXXX XXXX. [4] The Respondent's application for refugee protection was heard on June 19, 2015 and accepted via an oral decision. The RPD member found the Respondent to be credible, and it concluded that she has a well-founded fear of persecution by reason of imputed political opinion and religion. The panel also found that the Respondent could not expect adequate state protection and could not avail herself of a viable internal flight alternative. [5] The Minister asks the RAD to set aside that determination, submitting that the RPD's decision lacks clarity and adequate analysis, particularly with respect to the issue of subjective fear. The Respondent disagrees, arguing that the RPD did consider all of the relevant evidence, and asks the RAD to dismiss the Minister's appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] The Minister seeks to present new evidence in support of this appeal. The Respondent objects, submitting that such evidence is irrelevant.1 [7] In the RAD's view, this appeal can be disposed of without admitting the Minister's evidence. The proposed evidence cannot affect the disposition, and therefore it is unnecessary for the RAD to consider or admit it. What is the Role of the RAD? [8] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [9] The Minister makes no specific submission with respect to the standard of intervention to be applied here but does argue that the RPD's decision is unreasonable,2 which implies a deferential standard. Regardless of the standard, the Minister submits that the RPD's decision must be justifiable, transparent, and intelligible.3 The Respondent submits that the RAD is to apply a hybrid standard of review and must undertake an independent assessment of the evidence.4 [10] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.5 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [11] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [12] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [13] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.6 [14] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [15] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [16] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [17] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [18] The Minister argues that the RPD erred in failing to properly analyze the Respondent's claim under both Sections 96 and 97(1), in failing to consider the issue of subjective fear, in failing to consider the absence of evidence of targeting of the Respondent or her husband, and in failing to consider that ten years have passed since the Respondent's daughter was threatened. In the Minister's submission, it was not enough for the RPD to simply state that it considered all of the evidence; the lower tribunal was required to turn its mind to the evidence and explain how it assessed evidence that did not support its determination of the claim. [19] The Respondent submits that she was found credible by the RPD. In her submission, the RPD made clear findings and properly analyzed her claim. There is no requirement that the RPD explain each element of its decision or identify each piece of evidence in the record; its reasons need not be perfect or comprehensive. She was not required to show that she was personally targeted in the past, and could in fact prove an objective basis to her claim with evidence relating to the persecution of similarly situated persons. The Respondent finds it problematic that the Minister now makes arguments that were not raised in the Minister's intervention before the RPD. Finally, the Respondent makes detailed submissions with respect to why her actions were not indicative of a lack of subjective fear. [20] The issue of subjective fear is dispositive of this appeal, and the RAD will therefore not consider other issues raised by the Minister. [21] The Convention refugee definition, incorporated into Section 96 of the IRPA, requires a "well-founded fear" of persecution. An assessment of the fear of persecution therefore has two components: first, the refugee claimant must subjectively fear persecution, and, second, this fear must be well founded in an objective sense.7 The Federal Court of Appeal has explained that "the subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear."8 [22] Evidence in the RPD's record shows that the Respondent moved from Iraq to Bahrain in 2006, and she lived there for eight years.9 She testified that she would return to Iraq to visit her daughters and stay for periods of about a week.10 In 2008, she travelled via France to Sweden, where she visited her daughter for some weeks.11 Upon arrival in Canada, she did not promptly claim refugee protection. [23] It is possible that the Respondent's actions were not consistent with her alleged fear. She fled Iraq for her safety, but repeatedly returned to visit family members. She travelled to two European countries, both Convention signatories, but she did not seek safety there. She did not immediately seek protection in Canada. [24] It may be that the RPD considered the issue of subjective fear. As set out above, the Respondent did testify about her return visits to Iraq. It is, unfortunately, impossible to ascertain from the RPD's reasons how the panel analyzed the issue of subjective fear. [25] The RAD recognizes that the RPD's decision was delivered orally; it also understands that tight timelines and heavy caseloads make it too onerous for the RPD to refer to each and every part of the evidence.12 The RPD is presumed to have considered all of the evidence before it, even without reference to each piece.13 The RAD will defer to the RPD's findings of fact where the lower tribunal was in an advantageous position to reach such conclusions. However, the RAD must nevertheless consider whether the RPD's reasoning process is comprehensible and supported by the evidence. The more important the evidence not mentioned, the more difficult it becomes for the RAD to understand the reasoning process, and the more likely it becomes that the RAD will find the RPD to have made a finding without regard for the evidence.14 [26] Here, the RPD concluded that the Respondent has a fear of persecution. It did so in the face of evidence that may suggest otherwise, including multiple re-availments, failure to claim elsewhere, and delay in claiming. It may well be that the RPD considered the issue of subjective fear and concluded that the Respondent had provided sufficient justification for her actions. However, no such analysis appears in the RPD's reasons, and the panel's reasoning process is therefore not comprehensible. [27] In her Response to the Minister's appeal, the Respondent provides detailed explanations for each and every action which may relate to the issue of subjective fear. She submits that the RAD is empowered to make an independent assessment of the evidence, and in doing so will find that she maintained a subjective fear of persecution in Iraq.15 [28] The RAD is in a poor position to judge the Respondent's subjective fear. The RPD heard some evidence with respect to this matter, but did not indicate whether it found that evidence sufficient or persuasive. The issue of subjective fear is closely linked to credibility-a refugee claimant who says she is afraid but acts otherwise may suffer from credibility problems, as there is an inconsistency between her words and her actions. The RAD cannot question the respondent here with respect to her subjective fear,16 and therefore will not make a determination of that issue. [29] Finally, the RAD acknowledges the Respondent's argument that the Minister's appeal rests on arguments that could have been made before the RPD but were not. She submits that "the Minister, being fully aware of the evidence in the RPD's Record, must be viewed as having had no issue with the Respondent's subjective fear or credibility."17 [30] The RAD has reviewed the Minister's intervention before the RPD.18 It is clear that the Minister intervened for the purpose of asking the RPD to disjoin the Respondent's file from that of her husband, whose claim had been suspended pending an admissibility hearing. There is nothing in the intervention to suggest that the Minister had accepted the Respondent as credible or as having demonstrated a subjective fear of persecution. The Minister's intervention was in respect to a procedural matter. In any event, the RPD was required to consider each element of the refugee definition, with or without the Minister's submissions. [31] The RPD found that the Respondent had a fear of persecution, but it did not explain how it assessed significant evidence which may suggest otherwise. If the RPD did conduct an analysis of subjective fear, such assessment cannot be found in its decision. The RPD's reasoning process is not comprehensible with respect to a key element of the refugee definition, and its determination must therefore be set aside. CONCLUSION [32] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld November 20, 2015 Date 1 Exhibit P-1, Respondent's Record, p. 4, Memorandum, para. 7. 2 Exhibit M-2, Minister's Record, Memorandum, para. 10. 3 Ibid., p. 9, Memorandum, (second) para. 1. 4 Exhibit P-1, Respondent's Record, Memorandum, paras. 13 and 27. 5 X (Re), 2015 CanLII 19235 (CA IRB). 6 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014, 2014 FC 1022, para. 55. 7 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 8 Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. M.E.I. (1984), 55 NR 129 (F.C.A.), para. 14. 9 RPD's Record, p. 21, Basis of Claim form, Question 2(g). 10 RPD's Record, Audio Recording, 39:41-41:02. 11 RPD's Record, p. 46, Additional Personal History. 12 See Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998, para. 16. 13 Hassan, Jamila Mahdi v. M.E.I., (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992; (1992), 147 N.R. 317 (F.C.A.). 14 See Cepeda-Gutierrez, para. 17. 15 Exhibit P-1, Respondent's Record, p. 16, Memorandum, para. 27. 16 The RAD may not hold an oral hearing unless there is new evidence which meets the conditions in Section 110(6); while the Minister has provided new evidence, the issue of subjective fear rests on evidence that was already before the RPD and is therefore not new evidence for the purpose of Section110(6). Were the RAD to convene an oral hearing to consider subjective fear, this would result in a duplication of the RPD hearing, and would seem to contravene the provisions of Section 111(2)(b). 17 Exhibit P-1, Respondent's Record, p. 8, Memorandum, para. 19. 18 RPD's Record, pp. 323-330. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10842