TB4-07898

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 : TB4-07898 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 5, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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 Dan Morse Hearings Officer Conseil du ministre REASONS FOR DECISION [1] The Minister of Public Safety (the Appellant) appeals a decision of the Refugee Protection Division (RPD) granting refugee status to XXXX XXXX XXXX XXXX XXXX (the Respondent). The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute its own, finding the Respondent not to be a Convention Refugee or a person in need of protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is a Convention refugee. This appeal is dismissed. Background [3] The Respondent was born in the city of Abu Dhabi, United Arab Emirates (UAE) in 1988. In 2011, the Respondent and his brother were both deported to Somalia. Shortly after having arrived in Somalia, the Respondent and his brother were kidnapped by the terrorist group Al-Shabaab. The Respondent and his brother were able to escape shortly thereafter and, with the help of an uncle, they fled to Kenya. The Respondent, with the aid of an agent, fled to Sweden where he made a claim for Asylum under a false name. The claim was denied and, before the Swedish authorities could deport him, he fled to Canada on XXXX XXXX, 2012 where he made a claim for refugee protection upon arrival. [4] This RPD's decision comes as a result of a determination of the case at bar by the same exact three-member panel. This is the second time the RPD's decision granting the Respondent's refugee protection has been appealed to the RAD. The original decision was appealed by the Minister, and the RAD sent it back to the RPD to be determined. The decision of October 30, 2013 is substantially the same as the original decision which was rendered by the same three-member panel back on March 05, 2013. [5] The Respondent's application for refugee protection was originally heard on February 21, 2013. By a decision of March 05, 2013, the RPD accepted the claim. It found the Appellant to be a credible witness and confirmed him to be a Convention refugee. [6] As a matter of some background, the RAD notes the following, when making an assessment of the appeal in its entirety. [7] The Minister appealed the first RPD's decision on the ground that the RPD had proceeded before front-end security screening had been completed, contrary to the IRB Chairperson's Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening. [8] In the first appeal, the Minister did not challenge the RPD's credibility findings or any other aspect of the RPD's initial decision. [9] The RAD allowed the Appeal because of the RPD's failure to follow the instructions, however, as a result of the Minister's failure to challenge the substance of the original RPD's decision, the RAD allowed the appeal with specific directions, which is found in paragraph 66 of its decision: [66] The Respondent's refugee claim is referred back to the RPD with the following directions. The matter is to be heard by the same RPD panel as initially heard the claim, if at all possible. The RPD is to consider and properly apply the Instructions Governing the Management of Refugee Protection Claims Awaiting Front-end Security Screening. In hearing and deciding the claim, the RPD is to consider only evidence arising out of the security screening and issues raised by that evidence, and is to accept the findings of the first RPD panel unless those findings are disturbed by the evidence and issues arising out of the security screening. [10] The Minister has now challenged the RPD's credibility findings for the first time, more than a year after his first appeal. [11] The Appellant submits to the RAD that the RPD erred in its credibility assessment of such items as information on the Respondent's claim in Sweden, that he used a false name to make the claim and by ignoring said evidence. The Minister further argues that the RPD did not take these into consideration when making its credibility findings. [12] The Respondent argues that the Minister's appeal is an abuse of process, since none of these concerns were raised in its first appeal.1 The Respondent cites the Federal Court decision in Canada (Citizenship and Immigration) v. Parekh, 2010 FC 692. The RAD has reviewed the case and finds that the test for abuse of process is set out in paragraph 24 of that decision as follows: [24] Generally speaking, a court will find that an attempt to apply or enforce legislation has become an abuse of process when the public interest in the enforcement of legislation is outweighed by the public interest in the fairness of administrative or legal proceedings; see Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at par. 120, where the test is set out as follows: In order to find an abuse of process, the court must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted" ([Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (looseleaf)], at p. 9-68). According to L'Heureux-Dubé J. in [R. v. Power, [1994] 1 S.C.R. 601], at p. 616, "abuse of process" has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be "unfair to the point that they are contrary to the interests of justice" (p. 616). "Cases of this nature will be extremely rare" (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive. [13] The RAD has deliberated whether that test establishes abuse of process in this case. The RAD, after careful consideration of the claim in its entirety and the situation as a whole, concludes that there has not been an abuse of process in the case at bar when you apply the test as set out. As stated in the above case, "for there to be an abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be "unfair to the point that they are contrary to the interests of justice" (p. 616). "Cases of this nature will be extremely rare" (Power, supra, at p. 616). [14] The RAD does not find any evidence to support a conclusion that an abuse of process took place. While it may have been preferable for the Minister to challenge the substance of the RPD's decision in the first appeal, this is not one of those "extremely rare" cases that rises to the level of abuse of process. In particular, the legal landscape with respect to RAD decisions has changed. At the time of the first appeal, the RAD was applying the reasonableness standard to the review of credibility decisions by the RPD. Since then, in Huruglica,2 the Federal Court has instructed that, while the RAD can recognize and respect credibility findings by the RPD, it must also conduct an independent assessment of the refugee protection claim that is being appealed. Due to this change in the standard of review applied by the RAD, an appeal on the substance of the RPD's decision may have a greater likelihood of success today than it would have a year ago, justifying the new arguments raised for the first time in this appeal. [15] The Minister requests that an oral hearing take place, pursuant to section 110(6) of IRPA, in order to deal with evidence it argues was ignored by the RPD.3 The RAD does not concur with the Minister in this respect; the evidence was before the RPD when it dealt with the first hearing, and thus they were aware, and when they also made their second decision. The RAD is acutely aware that an oral hearing at the RAD cannot be based solely on evidence that was in the RPD's record. [16] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] When read together, sections 110(3) and 110(6) establish that the RAD may only hold a hearing if it has accepted new documentary evidence that was not present in the RPD record. [18] The Appellant has not submitted any new evidence. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. ROLE OF THE RAD [19] The Minister's representative has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. In fact, the Minister relies on Huruglica4 in defence against the abuse of process argument in its reply. The RAD finds that the recent Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [20] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. The RAD adopts and follows the analysis of this case in dealing with the appeal. ANALYSIS [21] In its initial appeal, the Minister argued that the RPD breached the principles of natural justice by holding a hearing without completion of security screening, thereby committing an error of law. The RAD, as a result of its assessment of that Appeal, sent the matter back to the RPD for redetermination.6 It would be noteworthy to mention that the Minister did not challenge the substance of the RPD's original decision. I also note that when the RAD made its first decision, it was approximately 10 months before the Federal Court decision in Huruglica. [22] In the second decision dated August 27, 2014, the RPD advised that an oral hearing had not reconvened, and that the same three-member panel stood by their original decision, since no new evidence had been introduced by the Minister or the Respondent, and they had followed the RAD's directions. The RPD's Findings [23] The Appellant argues that, in the RAD's decision of October 30, 2013, the RAD failed to make an independent assessment of the findings of fact in the RPD's decision of March 06, 2013. Further, the Appellant argues that the current RPD's decision completely ignores the fact that the Respondent lived in Sweden for a lengthy period of time under another identity, filed an asylum claim under that name and that, upon his arrival in Canada, the Respondent misrepresented himself when he failed to disclose his alternate identity at the port of entry, his refugee intake forms and in his initial Basis of Claim (BoC) form. [24] The RAD has carefully considered the RPD's reasons,7 which are thoughtful and, for the most part, thorough. The RPD did mention, in its initial decision of the Respondent's hearing back on March 05, 2013, details about the Respondent having lived in Sweden and filing an asylum claim which was rejected. In the Reasons for Decision, the RPD clearly stated that the Respondent provided evidence regarding his use of an alternate identity and his claim for asylum in Sweden.8 [25] The redetermination hearing was not convened by the panel (same three-member panel who presided over the first hearing). In a letter dated July 29, 2014, the three-member panel advised the Respondent and the Minister that an oral hearing would not be convened as they had not received any new evidence from the Minister as anticipated, and the RPD was carrying out the directions which were set out in the decision9 by the RAD. In a letter dated August 20, 2014, the Minister acknowledged that it had no new evidence to adduce in this case arising out of the Respondent's security screening. The three-member panel clearly stated that they were repeating their original findings and reasons for the decision based on the record of the original hearing. [26] I also note that, had the Minister challenged the RPD's credibility findings the first time around, it is unlikely the RAD would have issued the directions that it had. As a result of the Minister's failure to do so, the RAD now has before it arguments that could have been brought up a year ago, notwithstanding the change in the law brought about by Huruglica. While the Minister's second appeal may not be an abuse of process, it is clearly a very inefficient use of the Board's resources. [27] The RAD conducted an independent assessment of the evidence in its entirety and finds, after listening to the audio of the hearing, that the RPD has not ignored or misconstrued the evidence which was before it; there is no specific point that establishes that the RPD did ignore the specific evidence that the Minister is relying upon. The RAD listened to the audio recording of the hearing, and like the RPD found no inconsistencies, omissions, etc. The Minister also argues that the RPD should have questioned the Respondent about his decision to make a claim in Sweden under a false identity. The Minister further argues that the RPD should have insisted that the Respondent obtain his immigration records from Sweden. [28] The RAD notes that the Respondent had already admitted to making a claim for refugee status under a false identity in Sweden, so it is not clear what this additional questioning or request for further disclosure would have accomplished. The RPD decided that it knew enough, a decision that the RAD must recognize and respect. Upon a review of the audio recording and the RPD record, the RAD concluded that it arrived at the same decision that the RPD did. [29] The RAD follows the legal principle in that the RPD is presumed to have looked at all the evidence. If the RPD does not mention significant evidence, that may be enough to establish that it has overlooked it. The RAD relies upon the FC decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667, where the FC said: [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. [my emphasis] Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [30] The RAD finds the evidence is that the Respondent made a claim in Sweden, but that he made the claim under a false identity; even if mentioned, it would not have established an error. It follows that, under Cepeda, the RPD did not have to mention this evidence. [31] In its Reasons, the RPD clearly made findings of credibility in regards to the Respondent; by finding him to be a credible witness;10 the RAD respects and recognizes these credibility findings and defers in this regard to the RPD. DISPOSITION [32] The RAD, having assessed the evidence in its entirety, has arrived at the same conclusion as the RPD did. CONCLUSION [33] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Respondent is a Convention refugee. [34] This appeal is, therefore, dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho January 5, 2015 Date 1 Respondent's memorandum, page 17, paragraph 9 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 3 Appellant's record, page 9. 4 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 5 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 6 Exhibit P-3, RAD decision TB3-04221. 7 Respondent's Record, page 3, and RPD's Record, page 28. 8 RPD Record, pages 29-30, Reasons for Decision, paragraphs 5-7. 9 Exhibit P-3. 10 RPD Record, page 31, Reasons for Decision, paragraph 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07898