TB5-02005

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 : TB5-02005 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Date(s) of hearing N/A Date(s) de l'audience Appeal heard/ considered at Toronto, Ontario Appel instruit à Date of decision September 8, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Somalia, is 33 years of age. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks the RAD to send the matter back to the RPD for redetermination, giving the direction that it considers appropriate. [3] The Appellant is relying on new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA or Act)1. The Appellant is requesting an oral hearing, if deemed necessary, pursuant to section 110(6) of the IRPA. [4] The Minister is not intervening in the appeal. DETERMINATION [5] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. This appeal is allowed. BACKGROUND/ALLEGATIONS [6] The Appellant alleged that he is a citizen of Somalia, and belongs to the minority Hawiye clan, sub-clan XXXX. He fears the militant group Al-Shabaab upon return to Somalia. In XXXX 2011, his brother was killed by Al-Shabaab due to his brother's work at the XXXX XXXX as a XXXX XXXX. The Appellant alleged that Al-Shabaab threatened him because they had seen him enter a government building; thereby, ascribing to him the role of a Somalian government supporter. For details, refer to the Appellant's Basis of Claim (BOC) form.2 The Appellant provided additional information at the RPD hearing. [7] The Appellant arrived in Canada on XXXX XXXX, 2014, and filed his claim for refugee protection. His refugee claim was heard on November 17, 2014. In the decision of January 22, 2015, the RPD rejected his refugee claim. [8] The RPD found the Appellant not to be a credible witness. [9] The Appellant submits that the RPD erred in its credibility findings. The Appellant submits that the RPD erred in its assessment of the claim under section 97 of the IRPA. APPLICATION TO FILE DOCUMENTS UNDER RULE 37 OF THE RAD RULES [10] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the refugee claimant. Section 110(4) of the IRPA provides that 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. [11] The Appellant submitted new evidence pursuant to section 110(4) of the IRPA. [12] Regarding the admissibility of new evidence, the RAD is guided by the Federal Court of Appeal (FCA) decision in Singh.3 In addition to the statutory requirements, further analysis of the evidence is required before the RAD can accept the proposed new evidence. In that regard, the RAD is guided by the analysis as set out in Raza4 and modified by the FCA in Singh. [13] The RAD's analysis of the admissibility of the proposed new evidence begins with the test set out in section 110(4) of the IRPA. If the proposed new evidence meets the tests set out in the statutory requirements, and the factors in Raza, the evidence will be admitted as evidence in the RAD appeal. The materiality of the evidence will be considered in the context of the assessment of the evidence made under section 110(6) of the IRPA. [14] The Appellant submitted the following documents as his alleged new evidence with the appeal record which was received at the Board on March 11, 2015. * Appellant's affidavit dated March 11, 20155 * U.S. asylum claim papers6 * Letter of XXXX XXXX XXXX XXXX7 * Marriage certificate8 [15] On April 23, 2015, the Appellant made an application pursuant to Rule 29 of the RAD and submitted several documents,9 including originals of the documents submitted with the appeal record. The Appellant also submitted the translations of the identity documents that were submitted with the appeal record. In addition, the Appellant submitted proof of receipt of these documents in Canada. [16] The RAD Rule 3(3)(g)(iii) directs applicants to include an explanation of how the Appellant's documentary evidence submitted to the RAD meets the requirements of section 110(4) of the IRPA. The Appellant has provided explanation for why his alleged new evidence ought to be admitted at the RAD.10 The Appellant submits that he submitted his U.S. asylum papers, his marriage certificate, and the affidavit of XXXX XXXX XXXX XXXX because the RPD had not found his testimony to be credible. Since credibility is an issue in all refugee claims, and the Appellant was represented by counsel at the RPD, the RAD assesses if the Appellant could have presented these documents at the rejection of his claim. [17] Regarding the Appellant's U.S. asylum documents, the RPD asked the Appellant why he had not submitted those to the RPD. The Appellant testified that he had tried, however, had been unable to acquire them in time for his hearing at the RPD. The evidence on the record shows that the Appellant received the documents on or about March 9, 2015. Therefore, the Appellant submits that he could not reasonably have been expected in the circumstances to have submitted these documents at the rejection of his claim, as these documents were not reasonably available to the Appellant before the RPD hearing or at the rejection of his claim. [18] The Appellant submits that his affidavit dated March 11, 2015, includes information on events that occurred after the rejection of his claim, i.e., that his family has thereafter relocated, and thus he requests that his affidavit be admitted as new evidence as well. [19] The Appellant submits that he also received XXXX XXXX XXXX XXXX letter after the rejection of his claim; and that he received this document to corroborate his allegations because the RPD did not believe his story. [20] The Appellant submits that he could not have reasonably been expected to submit his alleged new evidence at the rejection of his claim because he believed that his own testimony would have been sufficient to establish his claim. [21] In consideration of the Appellant's explanation, the RAD finds that the above documents meet the requirements set out in section 110(4) of the IRPA because the RAD finds that the Appellant could not reasonably have been expected in the circumstances to have submitted these documents at the rejection of his claim, as these documents were not reasonably available to the Appellant before the RPD hearing or at the rejection of his claim, or he could not reasonably have been expected in the circumstances to have submitted these documents at the rejection of his claim. The RAD also considers if the documents meet the Raza factors. In this context, the RAD finds the documents corroborate the Appellant's allegations of his alleged risk of harm from Al-Shabaab in Somalia; therefore, the RAD finds that the documents also satisfy the Raza factors. [22] The RAD also accepts the originals, and translations of the identity documents that were submitted with the appeal record; the RAD accepts the Appellant's explanation as to why these documents were not submitted with the appeal record. [23] The RAD accepts the Appellant's new evidence. APPLICATION FOR ORAL HEARING AT THE RAD [24] Section 110(3) of the 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. The person who is the subject of the appeal may, pursuant to Section 110(4), 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. When read together, however, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new evidence (section 110(4)), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim (section 110(6)). The Appellant has provided new evidence as per Section 110(4) of the IRPA; the RAD has admitted the Appellant's new evidence. [25] The RAD finds that the Appellant's new evidence is relevant to the Appellant's refugee claim; however, it does not raise a serious issue with respect to the credibility of the Appellant's core allegations. Moreover, the RAD finds that the Appellant's new evidence admitted at the RAD in and of itself would not justify allowing or rejecting the Appellant's refugee protection claim (section 110(6)). Therefore, the Appellant's request for a hearing at the RAD is denied. ROLE OF THE RAD [26] The Canadian jurisprudence provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of the RPD, a first-level administrative tribunal. [27] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica11 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [28] In closing, Justice Gauthier wrote: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.12 [29] Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: "[In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD."13 [30] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not an issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.14 [31] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD, the matter will be referred back to the RPD for redetermination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. [32] In conducting its own independent assessment and making the determination in this appeal, the RAD considered the entirety of the evidence submitted/adduced in this case, including the recording of the RPD's proceedings, and the Appellant's Appeal Record and the new evidence admitted at the RAD. MERITS OF THE APPEAL [33] The RPD found the Appellant not credible because of inconsistencies in his evidence and because he failed to provide documents in support of his allegations, including his U.S. asylum documents. Therefore, the RPD found that the events that the Appellant claimed had happened to him in Somalia did not occur.15 [34] In reviewing the totality of the evidence submitted/adduced at the RPD, the RAD finds that the RPD focused on peripheral issues in arriving at its overall negative credibility findings. For example, the RPD found that the discrepancies in the Appellant's evidence relating to the date of his marriage,16 and the mode of his travel from Brazil to El Salvador17 negatively impacted his overall credibility. The RAD is aware that inconsistencies and contradictions in an applicant's evidence, cumulatively, can lead to an overall negative credibility; however, the facts under scrutiny in such a case must have direct relevance to the core elements of the claim. The marriage certificate, in some circumstances, would be relevant in order to establish the Appellant's personal identity and/or his citizenship; however, this was not an unresolved issue at the RPD in this case. The RPD had accepted that the Appellant is who he says he is and that he is a national of Somalia. Regarding whether the Appellant traveled by air or by car is not central to the issues in this claim; moreover, the Appellant accepted that it was a mistake and that he had actually travelled by air from Brazil to El Salvador. The RAD accepts the Appellant's explanation. In respect to the above, the RAD finds that the RPD focused relatively heavily on peripheral issues in its 'reasons for decision'. The RAD accepts the Appellant's submissions that the RPD was microscopic in assessing the Appellant's overall credibility. [35] Regarding the Appellant's failure to provide documents in support of his allegations, the RAD finds that the RPD did not duly consider the Appellant's explanation regarding why he had not been able to obtain the asylum documents from the U.S. in time for his RPD hearing. The RAD finds that the evidence shows that the Appellant had made reasonable efforts to obtain those documents but was unable to do so in time for the RPD hearing or at the rejection of his claim. The RAD accepts the Appellant's explanation and does not draw a negative inference from the Appellant's failure to submit those documents at the RPD. [36] The RAD also finds that the RPD did not assess the personal risk to the Appellant, i.e., by taking into consideration that his brother had been killed by Al-Shabaab because of his employment at the XXXX XXXX. The RPD did not assess the Appellant's profile for being a member of a particular social group, i.e., the family. The evidence in this case shows that the Appellant's brother had incurred death at the hands of Al-Shabaab. The RPD found that the Appellant did not satisfy the panel that his brother truly worked for a XXXX XXXX and that his brother was killed for doing that work.18 The RAD notes that the RPD's analysis for this finding is non-existent; the RPD provides no reasons as to why the RPD had found the Appellant's testimony in this regard not to be trustworthy. The RAD finds that the RPD made this negative credibility finding based on peripheral facts in the case. Therefore, the RAD finds the RPD's finding to be untenable. [37] The RPD also did not assess the personal risk of harm to the Appellant at the hands of Al-Shabaab in Mogadishu, and thus made no clear determination as to whether or not the Appellant would be personally at risk in Mogadishu under his particular situation and circumstances. If the Appellant were to have been determined to be personally at risk in Mogadishu, the next question would be if the Appellant has any safe haven in other parts of Somalia where Al-Shabaab is known to have minimal presence. The RPD did not assess the availability/unavailability of a viable internal flight alternative for this Appellant, in his particular situation and circumstances. [38] The Appellant submits that even though the RPD found him not to be credible, the RPD erred by failing to assess that he would face a risk of harm upon return to Somalia.19 Since the RAD finds that the RPD did not duly assess the Appellant's profile, and erred in its overall credibility findings, the RAD finds it not necessary to comment on issues relating to this aspect of the RPD's 'reasons for decision'. [39] The Appellant also submits that upon return to Somalia today he would be at risk of harm at the hands of Al-Shabaab because he would be returning from the west.20 In this respect, the RAD finds that even if the Appellant is found not to be a Convention refugee or a person in need of protection, based on the documentary evidence, the Appellant may have a sur place claim, and as such may qualify to be a person in need of protection pursuant to section 97(1) of the IRPA. Under the circumstances of this case, therefore, the RAD points out that it would be incumbent on the decision maker to assess whether the claimant is a refugee sur place pursuant to section 97(1) of the IRPA. [40] Based on the above, the RAD finds that the RPD did not duly assess the merits of the Appellant's refugee claim. Having conducted its own independent assessment of the totality of the evidence in this case, the RAD finds that the Appellant's allegations of fear of Al-Shabaab upon return to Somalia need to be reassessed in the context of the totality of evidence on record. [41] Under the circumstances of this case, the RAD cannot assess the Appellant's refugee claim because it would mean that the RAD would have to re-hear the Appellant's entire claim, which is not the role of the RAD. [42] Due to the above-mentioned issues with the RPD's assessment of the Appellant's claim, the RAD cannot confirm the RPD determination in this case. The RAD has insufficient evidence on record to assess the risk of harm to the Appellant at the hands of Al-Shabaab upon return to Somalia, and thus to make a determination of his claim. Therefore, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. DISPOSITION [43] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. [44] This appeal is allowed. (signed) "S.S. Kular" S.S. Kular September 8, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, at pp. 11-22. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 Exhibit P-2, Appellant's Record, item 3, Appellant's affidavit, pp. 11-14. 6 Exhibit P-2, Appellant's Record, item 3, pp. 17-49. 7 Exhibit P-2, Appellant's Record, item 3, pp. 58-59. 8 Exhibit P-2, Appellant's Record, item 3, p. 61. 9 Received at the Board on April 23, 2015. The documents include: originals for pages 52, 59, 61-62 of the Appellant's Record and documents contained in Exhibit C of the Appellant affidavit dated April 14, 2015; affidavit of Mr. XXXX, the Appellant, dated April 14, 2015; and translations for pages 50-51 of the Appellant's Record. 10 Exhibit P-2, Appellant's Record, item 6, Memorandum of Argument, at paras. 37-47, pp. 117-120; and Appellant's affidavit, dated April 14, 2015. 11 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 12 Ibid., at para. 103. 13 Ibid., at para. 69. 14 Ibid., at para. 70. 15 Exhibit P-2, Appellant's Record, item 1, Notice od Decision and RPD Reasons and Decision, at para. 22, p. 8. 16 Exhibit P-2, Appellant's Record, item 1, Notice od Decision and RPD Reasons and Decision, at paras. 15-17, pp. 6-7. 17 Exhibit P-2, Appellant's Record, item 1, Notice od Decision and RPD Reasons and Decision, at para. 18, p. 7. 18 Exhibit P-2, Appellant's Record, item 1, Notice of Decision and RPD Reasons and Decision, at para. 20, pp. 7-8. 19 Exhibit P-2, Appellant's Record, item 6, Memorandum of Argument, at para. 34, pp. 116-117 20 Exhibit P-2, Appellant's Record, item 6, Memorandum of Argument, at para. 35, p. 117. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR :