TB5-00469

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 : TB5-00469 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 Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 30, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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 N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX(the Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and to either find him to be a Convention refugee or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Background [3] The Appellant alleged before the RPD that he is a citizen of Somalia and a member of an ethnic minority. He fears persecution at the hands of the extremist group Al-Shabaab. [4] The Appellant's application for refugee protection was heard on October 30, 2014. By a decision of December 3, 2014, the RPD rejected the claim. The panel found the Appellant to be credible, and accepted his national, religious, and ethnic identity. It also accepted that the Appellant's father was killed in 1992, his mother was forced to close her business, his sister was shot, and that he suffered several incidents of abuse at the hands of Al-Shabaab. However, the RPD concluded that the Appellant's fear lacked objective basis, as objective evidence did not establish a serious possibility of future persecution in XXXX on account of the Appellant's religion or ethnicity. The panel found that there is little danger that the Appellant will be forcibly recruited by Al-Shabaab, and that any risk he does face in Somalia is a generalized one. [5] The Appellant appealed the rejection of his claim to the RAD. He argued that the RPD erred in its assessment of the risk to ethnic minorities in XXXX, in its consideration of the risk of forced recruitment, in its analysis of the persecution of Sufi Muslims, in its generalized-risk determination, and in failing to consider whether he qualified for the "compelling reasons" exception provided in section 108(4) of the IRPA. [6] By a decision of May 12, 2015, a differently constituted panel of the RAD dismissed the Appellant's appeal. The RAD conducted an independent assessment of the record, and concluded that the objective evidence did not support the Appellant's fear of persecution. It agreed with the RPD's finding that any risk faced by the Appellant upon return to Somalia is a generalized one. The RAD found that the RPD did not err by failing to consider the compelling reasons exception, but nevertheless undertook its own assessment under section 108(4) of the IRPA. The RAD accepted that the Appellant and his family suffered adversity in Somalia, and considered a psychological report setting out the ill effects suffered by the Appellant; however, it concluded that the hardship suffered by the Appellant "does not meet the high threshold for 'compelling reasons' adopted by the courts."1 [7] The Appellant sought and was granted leave to commence an application for judicial review before the Federal Court. On June 10, 2016, the Court allowed the application and returned the matter to the RAD for redetermination. The Court found that the RAD reached unreasonable conclusions on the risk faced by the Appellant as a member of a minority clan and a potential target of forcible recruitment. The Court also found that the RAD erred in its consideration of the compelling reasons exception; noting the hardships endured by the Appellant and his family, the Court held that "this evidence certainly merited consideration by the RAD of the compelling reasons exception. Its conclusion to the contrary was unreasonable on the evidence."2 [8] In addition to new evidence that was accepted by the previous panel of the RAD, the Appellant seeks to present further new evidence here. He maintains that he faces persecution in Somalia on the basis of his minority clan identity, his practice of Sufi traditions, and his perceived political opinion as a returnee from a western country. The Appellant submits that the risk here is one he faces personally and is not a generalized one. ANALYSIS Admissibility of Evidence Submitted on Appeal [9] The Appellant submitted a number of pieces of new evidence to the first RAD panel which considered his appeal; he asks the RAD to accept further evidence in the reconsideration of the appeal. [10] The issue of the "compelling reasons" exception is determinative of this appeal, for reasons set out below. It is therefore unnecessary for the RAD to consider the proposed new evidence. THE ROLE OF THE RAD [11] 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. [12] The Appellant submits that the RAD owes no deference to the RPD, and must engage in its own assessment of the evidence in order to determine whether the RPD committed an error.3 [13] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.4 [14] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.5 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.6 [15] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.7 [16] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.8 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.9 [17] There are, however, cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.10 The Federal Court of Appeal, in discussing the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.11 [18] While it is clear that some level of deference is warranted, it is less obvious how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.12 [19] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony. As such, credibility findings arising from that oral testimony are deserving of deference, as are other findings of fact based on oral evidence, as are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [20] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.13 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.14 [21] How much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD 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 a "palpable and overriding error".15 This passage has subsequently been endorsed by other decisions of the Court. [22] Although the Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.16 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [23] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 17 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [24] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached. [25] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that the RAD engage in its own review of the evidence in the RPD's record, in order to determine whether the RPD's finding is supported by that evidence. [26] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [27] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a comprehensible reasoning process whose premises are rooted in such advantages. If either the process or the outcome does not meet these requirements, the RAD will determine the findings to be in error. [28] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Compelling Reasons [29] Section 108(1) of the IRPA provides that a person is not a Convention refugee in a number of circumstances, including those where the reasons for which the person sought refugee protection have ceased to exist. Section 108(4), however, describes the "compelling reasons" exception: Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.18 [30] The Appellant argues on appeal that the RPD erred by failing to consider whether he should be afforded the "compelling reasons" exception. The RPD found that the Appellant had established considerable hardship in Somalia in the past, determined that conditions had changed in XXXX, and acknowledged a medical report describing his serious psychological difficulties. The Appellant submits on appeal that these findings meet the criteria for the compelling reasons exception. [31] The first panel of the RAD considered this argument. While it found that the RPD did not err in its failure to consider the exception, the RAD nevertheless undertook its own analysis of the issue. It accepted the RPD's findings about the Appellant's past hardship,19 and also agreed with the RPD that conditions in XXXX have changed.20 However, the RAD observed that the threshold necessary to demonstrate compelling reasons is a high one, and found that the hardship suffered by the Appellant and members of his family did not rise to this level. [32] The Federal Court disagreed. It concluded that "a finding of past persecution is implicit in the RAD's findings," and observed that such a finding, together with changed circumstances, triggers the application of section 108(4).21 [33] The Court, without discussion of considerable contrary jurisprudence,22 found that the compelling reasons exception "does not require that the claimant establish 'atrocious' or 'appalling' mistreatment." It noted that "the circumstances must at least be exceptional or extraordinary compared to other refugees...."23 [34] The Court went on to say that: The evidence before the RAD showed that Mr XXXX and his family had endured ongoing harassment, suffering and abuse in Somalia. His father was murdered. Mr XXXX suffered depression and PTSD as a result of the traumatic events he experienced. This evidence certainly merited consideration by the RAD of the compelling reasons exception. Its conclusion to the contrary was unreasonable on the evidence.24 [35] This statement poses some difficulty for the present panel of the RAD. The first panel of the RAD did indeed undertake a thorough analysis of the compelling reasons exception.25 It accepted the RPD's findings about past hardship, found that there was a change in circumstances, and then considered the "compelling reasons" exception. For reasons that are not clear to this panel, the Court appeared to fault the RAD for failing to consider the exception. The Court then found that the RAD's conclusion with respect to section 108(4) was unreasonable. [36] In this panel's view, the RAD owes deference to the credibility findings of the RPD, as the lower tribunal was in an advantageous position to assess credibility. As such, the RAD accepts that the Appellant is a citizen of Somalia, that he is a member of an ethnic minority, and that he and his family have suffered the past hardships alleged. It would seem, to follow the Court's decision in this matter, that an acceptance of these facts is an implied finding of past persecution.26 [37] The RAD also agrees with the RPD, and with the first panel of the RAD, that important circumstances affecting the Appellant have now changed. Most importantly, the XXXX area is no longer under the control of Al-Shabaab and is, at least to some extent, controlled by government forces, with some improvement in the security situation.27 [38] The Appellant has established past persecution, and there has been a change in relevant circumstances. [39] Is the Appellant entitled to the "compelling reasons" exception? His credible evidence establishes that his father was killed almost twenty-five years ago; his mother was forced by the Islamic Court Union to close her business; his sister was shot in XXXX XXXX by Al-Shabaab; and one of his uncle's wives was raped.28 The Appellant was threatened and beaten on more than one occasion and his friend was shot. A psychological assessment reports that he has major depressive disorder as well as post-traumatic stress disorder with dissociative symptoms.29 [40] A principle which underlies the "compelling reasons" provision of the IRPA is that the exception applies only to a tiny minority of refugee claimants - a special and limited category.30 The RAD does not intend to in any way minimize the suffering experienced by the Appellant and his family. However, it must note that many refugee claimants who appear before the RPD and the RAD allege that they have experienced physical, mental, emotional, and sexual abuse; they have had family members harmed or killed; they have been threatened, harassed, and beaten. It is quite common for the RPD and the RAD to receive psychological reports very similar to the one provided by Dr. XXXX for the Appellant, with very similar symptoms and diagnoses. [41] To borrow the words of the Federal Court in this case, the RAD would find that the Appellant's circumstances are not "exceptional or extraordinary compared to other refugees." Or, applying the preponderance of the jurisprudence, the RAD would find that the Appellant's past persecution was not "appalling and/or atrocious." Either way, the RAD would find that the Appellant's past treatment does not meet the high threshold for the section 108(4) exception; he is not part of a special and limited category, or of a tiny majority. [42] However, the RAD finds itself in a difficult situation, because here it has now reached the same conclusion, on the same evidence, for the same reasons, as did the previous panel of the RAD. That panel's determination on this very issue was found to be unreasonable, and it does not appear to be open to this panel to reach that same conclusion. [43] The Appellant provided credible evidence of past hardship, abuse, and mistreatment. The RAD defers to the findings of the RPD, which accepted these allegations. The RAD acknowledges the Court's conclusion that such acceptance is an implicit finding of past persecution. The Appellant has therefore established past persecution. The objective evidence, cited above and also by the RPD and the first panel of the RAD, indicates that there has been a chance of circumstances in the Mogadishu area. The previous panel of the RAD considered the "compelling reasons" exception in light of this evidence, and concluded that the Appellant's circumstances did not meet the very high threshold required by section 108(4). The Court found this conclusion to be an error. This panel of the RAD therefore finds that the Appellant's circumstances do meet the very high threshold in section 108(4), and that he is entitled to the "compelling reasons" exception. CONCLUSION [44] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld November 30, 2016 Date 1 RAD's Reasons by Member S.S. Kular (May 12, 2015), para. 73. 2 . M.C.I. (F.C., no. IMM-3632-15), O'Reilly, June 10, 2016, 2016 FC 650, para. 16. 3 Exhibit P-2, Appellant's Record (February 11, 2015), pp. 66-67. 4 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 5 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 6 Dhillon, paras. 14-18. 7 Huruglica, 2016 FCA 93, para. 103. 8 Ibid. 9 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 10 Huruglica, 2016 FCA 93, para. 70. 11 Ibid., para. 74. 12 Akuffo, paras. 34-35; see also Meilina, Yani v. M.C.I. (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233, para. 11. 13 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 72. 14 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, 2014 FC 78, which decision contains a thorough discussion of the drawing of inferences.). 15 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, para. 55. 16 See Yin, Sarom v. M.C.I. (F.C., no. IMM-2845-14), Noël, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084, and Sajad, Zeeshan v. M.C.I. (F.C., no. IMM-926-14), Shore, November 21, 2014, 2014 FC 1107; also Bui, Van Son v. M.C.I. (F.C., no. IMM-1654-14), Shore, November 28, 2014, 2014 FC 1145. 17Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 18 IRPA, Section 108(4). 19 RAD's Reasons by Member S.S. Kular (May 12, 2015), paras. 48 and 71. 20 Ibid., paras. 43-47. 21 XXXX, supra, footnote 2, para. 14. 22 The jurisprudential history of the "appalling and atrocious" criteria is thoroughly discussed in a recent decision of the Court, followed by this conclusion: "However, if the RAD had imposed the atrocious and appalling threshold, I would not find that it erred in law. The RAD cannot be faulted for relying on the jurisprudence that reflects that the level of atrocity of past persecution must be considered and the preponderance of the jurisprudence that reflects that appalling and/or atrocious past persecution is the high threshold required to establish compelling reasons. The RAD considered Suleiman; however, since Suleiman and Kotorri were decided in 2004 and 2005, other jurisprudence has continued to refer to appalling and atrocious past persecution to guide determinations of whether an applicant has established compelling reasons." (Moya, Silvia Myrian v. M.C.I. (F.C, no. IMM-2227-15), Kane, March 14, 2016, 2016 FC 315, para. 129.) 23 XXXX, supra, footnote 2, para. 15. 24 Ibid., para. 16. 25 RAD Decision by Member S.S. Kular (May 12, 2015), paras. 64-74. 26 XXXX, supra, footnote 2, para. 14. 27 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (March 14, 2014, item 4.2 and item 1.10, pp. 4-7. 28 Exhibit RPD-1, RPD's Record, pp. 16-17, Basis of Claim form. 29 Ibid., Page 71. 30 Moya, supra, footnote 22, paras. 122-123. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD File No. / N° de dossier de la SAR : TB5-00469