VB6-01289

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 :VB6-01289 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision July 21, 2016 Date de la décision Panel Patricia Broad Tribunal Counsel for the person(s) who is(are) Odaro Omonuwa Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, also known as XXXX XXXX XXXX (the "appellant"), has appealed the decision of the Refugee Protection division (the "RPD") rejecting his claim for refugee protection. He requests to submit new evidence. He also requests that an oral hearing be held. He requests that the Refugee Appeal Division (the "RAD") set aside the RPD decision and refer the matter to the RPD for a new hearing with a differently constituted panel. DETERMINATION OF THE APPEAL [2] I find the decision of the RPD to be wrong in mixed law and fact. I am unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the issue of credibility and on other issues. [3] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [4] The appellant states that he is from Somalia. He lived in the Hiran region. He based his claim for refugee status in accordance with section 96 of the Act. He alleges as follows. He was orphaned at a young age. He was able to live in a United Nations International Children's Emergency Fund (UNICEF) camp for about six years. In XXXX 2010, the Al Shabaab attacked the UNICEF compound, or the school. He was detained by them and sentenced to death. He managed to escape and for years made his way to Canada. Further detail will be discussed in the decision. [5] The hearing of his claim was held on February 11, 2016 and a negative decision issued on March 29, 2016. The RPD denied his claim on the basis that there was insufficient credible evidence of a serious possibility of persecution should he return to Somalia and that she did not find that the appellant had established his identity in accordance with section 106 of the Act. The RPD did not issue an oral decision at the end of the hearing into the claim. A written decision dated March 29, 2016 was released to the parties. [6] The hearing was recorded on a compact disc (CD) and that was released to the parties. However, the day of the hearing, the RPD member also dictated a draft of her reasons for the decision on to the recording system. This too was included, in error, on the CD which was released to the parties. [7] In his memorandum (the "memo"), the appellant appealed on the basis that there were two decisions on record. He stated that there were significant differences between the two decisions. Consequently, the appellant was unable to establish the reasons for the decision with sufficient clarity to appeal the reasons. He stated that this constituted a breach of natural justice. He pointed out three differences between the dictated reasons and the written decision. By inference, the appellant also raised issues pertaining to bias and credibility. This will be discussed in the analysis portion of the decision. [8] On May 18, 2016, the RAD wrote to the appellant's representative and requested confirmation of all relevant references with respect to differences in the dictated reasons and the written decision. [9] On May 18, 2016, the appellant's representative wrote and stated that given the length of recording and the written reasons, it would be impossible to identify all of the differences, omissions and additions. Further, it was his position it was not a legal requirement for every single difference between both "decisions to be set out on appeal as the substance of the legal error and ground of appeal" were "clearly identified". ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [10] At the hearing, a UNICEF identification (ID) card was with Arabic and Somali writing was presented. The Somali portion was translated by the interpreter at the hearing. This translation was included on record at the hearing by the RPD member, who noted that she included it as part of the appellant's documents. The RPD member considered the ID card at the hearing and stated that she found that the date for the Arabic portion was 1997 and it was different that the date in the Somali language. When the appellant appealed to the RAD, he submitted a print out from a high school that had a translation of Arabic numbers. While the appellant's counsel is not clear in his memo with respect to how this meets the test for new evidence, he comments that the appellant could not have foreseen that the content of the ID card would be in issue. [11] Section 110(4) of the Act states that: 110(4) Evidence that may be presented - 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. [12] The RPD took issue with the date in an Arabic portion of the wording on the ID at the hearing. The issue regarding the contents of the ID card arose during the hearing. I find that the appellant could not have reasonably been expected in the circumstances to have presented the Arabic translation at the time of the rejection. [13] I have also considered whether this new evidence met the criteria expressed in Raza2 as considered in Singh.3 I find that the evidence is credible as there is nothing to contradict it on record and it appears to have a school stamp on it as well as a web address. It is new as it contradicts the finding of fact made by the RPD that the Arabic date on the ID card was 1997 instead of 1996. Further, it is relevant as the RPD noted that the dates were not consistent in her decision. For these reasons, I have admitted the printout from an educational institution which shows the Arabic numbers as evidence on record. DECISION ON WHETHER TO HOLD AN ORAL HEARING [14] In his memo, the appellant notes that whether or not the RAD holds a hearing is up to RAD. However, he believes "that this is a case where some form of hearing would be appropriate." [15] These submissions are so vague it is difficult to address it. It does not specify why the appellant is arguing that a hearing should be held. I have determined that it is not necessary for me to have a hearing. The grounds upon which the RAD may hold a hearing is very limited. Section 110(6) addresses when the RAD holds a hearing and stipulates that the RAD may hold a hearing when there is documentary evidence referred to in subsection (3): * that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; * that is central to the decision with respect to the refugee protection claim; and, * that, if accepted, would justify allowing or rejecting the refugee protection claim. [16] Section 110(3) states: 110(3) Procedure - Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division 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 person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. [17] Section 110(6) speaks to a conjunctive test; and all three grounds must be met before a hearing is held. In this case, the documentary evidence consists of a print out from an educational institution. I accept that the Arabic numbers on the appellant's ID card are consistent in the Arabic and the Somali language. Both state that he was born in 1996. It would have been preferable for an interpreter to confirm this; however, in this case and in these circumstances, I find that there is sufficient evidence to conclude this is the case. That being said, the document does not raise a serious issue of credibility that is central to the claim and would lead to a decision that would allow or reject the claim. The finding of fact that the appellant was born in 1996 does not justify accepting or rejecting the appellant's claim; the decision does not hinge on this issue. The reasons to reject this claim are discussed in the analysis of the decision. [18] The grounds for a hearing in accordance with section 110(6) have not been met. There will not be a hearing in this appeal. THE SCOPE OF A RAD APPEAL [19] The role of the RAD has been considered in depth by the Federal Court of Appeal. In Huruglica,4 Madame Justice Gauthier wrote that the RAD must apply to the standard of correctness when considering RPD decisions where there is a finding of fact and mixed law and fact which does not raise an issue of credibility of oral evidence. After doing an independent analysis of the record to determine if the RPD erred, the RAD provides a final determination by confirming the RPD decision or by setting aside the RPD decision and substituting its own decision for it. If the RAD cannot provide a final determination without hearing the oral evidence presented to the RPD, the RAD can refer the matter back to the RPD for a determination. ANALYSIS OF THE MERITS OF THE APPEAL [20] I have carried out an independent analysis of the evidence on record. I have reached the following conclusions. There are a series of errors in the RPD decision which, alone, would not be tantamount to a finding that the decision cannot stand. However, when taken as a whole, the cumulative effect of the errors is such that the decision is incorrect in law and fact and must be re-determined. The Decision [21] A CD of the hearing was released after the hearing. However, there was further information on the CD. After the RPD member had closed the hearing, and the parties had left, she dictated a draft of her reasons onto the recording system. These dictated reasons were downloaded onto the CD which was released to the parties. In other words, the draft of the reasons for the decision was released to the parties. On March 29, 2016, a written decision was issued. The appellant argues that the dictated reasons constitute a decision and the written reasons constitute a decision. Further, the appellant has argued that there are numerous significant differences in the reasons provided on the CD and in the written decision. This constitutes a breach of natural justice in that the appellant could not know with certainty why his claim was rejected. Is there more than one decision? [22] The Tribunal finds that there is not more than one decision on record in this matter. This is because the reasons that were dictated and were on the CD that was released to the parties do not constitute a decision but rather a draft that has no force and effect. [23] Rule 68 of the RPD Rules5 stipulates that a decision given orally must be given at the hearing. Specifically, it states that: 68(1) When decision of a single member takes effect - A decision made by a single Division member allowing or rejecting a claim for refugee protection, on an application to vacate or to cease refugee protection, on the abandonment of a claim or of an application to vacate or to cease refugee protection, or allowing an application to withdraw a claim or to withdraw an application to vacate or to cease refugee protection takes effect (a) if given orally at a hearing, when the member states the decision and gives the reasons; and (b) if made in writing, when the member signs and dates the reasons for the decision. [24] In this case, the RPD member clearly states that she would not be able to give an oral decision and closed the hearing about what appears to be an hour before she dictated the "reasons" for the decision. The parties were not present when she did so. I cannot conclude that these reasons were a decision given orally at a hearing when the hearing was concluded. In short, the oral reasons were not a decision; the written decision dated March 29, 2016 is the decision. There is only one decision on record. [25] For these reasons, I find that there is one clear decision on record; that decision is the written decision dated March 29, 2016. The draft decision is of no force and effect. The ID Card [26] The RPD member stated that she did not find that the UNICEF ID card was credible evidence of the appellant's identity; it showed, at the very most, that the appellant was a "student at one time in Somalia, perhaps in Hiran, or that a person by this name was as [the RPD member could not] attribute this card to the claimant and given the birthdate anomaly and the lack of a clear photograph."6 [27] She stated that the record years of the appellant's dates of birth are not consistent between the Arabic and Somalian calendar without a reasonable explanation.7 Counsel provided a print out from what appears to be a school about Arabic numbers and how they are written. His print out from the education faculty support his argument that 1997 in Arabic numerals could resemble 1996 in western numerals. I agree that no conclusions should be reached on portions of documents that are not translated unless a member has taken the proper steps such as indicating that she had specialized knowledge. [28] The RPD member provided other reasons for not giving the identity card weight. She noted that the picture was not distinguishable and from this she says that his identity has not been established. In this case, it is difficult to understand how the clarity of the picture would be of assistance in this matter. The translation of the card provided by the Immigration and Refugee Board's interpreter states that the UNICEF ID card was issued in 2005 and expires in 2006. Given that the appellant had stated that his age was 19 at the time of the hearing, it is more likely than not that any picture of him on an ID that was issued in 2005 and expired in 2006 would have a picture of him when he was about eight or nine years old. In these circumstances, a picture is unlikely to assist with identity. Even if he was not 19 at the hearing, the picture would be about ten years old. The fact that the picture was not legible would not be sufficient to find that it was not his card; it is not determinative. Further, the RPD member speculated as to the need for a signature in the absence of citing evidence to confirm that all UNICEF ID cards have signatures. This is speculative reasoning. [29] The appellant has argued that the Arabic and the Somali years were the same on the ID card. I have considered that and noted another concern that was perceptible on the record. The appellant's testimony about where he got the ID card was vague. However, the decision did not address whether the appellant had provided a reasonable explanation for the lack of documentation or had taken reasonable steps to obtain documentation in spite of the appellant's testimony that he attempted to contact UNICEF and that he did not think that any Somali organization would help him. This is particularly important in a country like Somalia where, as the RPD member recognizes, acquiring identity documents is difficult. In other words, having rejected the appellant's UNICEF ID card, the RPD should have considered whether he attempted to acquire any other documentation and whether his steps taken to do so were reasonable. [30] Even if the card was rejected as evidence, it was incumbent on the RPD to address the complete test of section 106 of the Act, namely whether the appellant attempted to acquire any other documentation and whether his steps taken to do so were reasonable. However, this in and of itself would not be sufficient to find that the decision cannot stand; the reasons also rely on the appellant's credibility which is discussed further in the decision. Allegation of Bias [31] The appellant's memo alludes to an allegation of a reasonable apprehension of bias. He states that the RPD member was very antagonistic toward the claimant and counsel and seemed to have made up her mind to deny the claim prior to the hearing. He does not overtly state that he is appealing on the issue of bias; however, the inference was made. It is disconcerting that a clear allegation of bias was not made at the first opportunity or even in the memo itself. An allegation of bias must be raised at the first available opportunity and if not, maybe considered to have been waived.8 Nonetheless, for the sake of completeness I am addressing this issue. [32] The test of bias is set out in the Supreme Court's decision in Committee for Justice and Liberty v Canada:9 [. . .] the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [33] As stated in the Chairperson's Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division,10 the RPD member is to start with questioning.11 The tone of the questioning must be judicious.12 At times, the RPD member forcefully questioned the appellant; she asked for a significant amount of detail, asked leading questions where the answer would be to his detriment and seemed to indicate that a conclusion about the question had already been reached, such as her question where she states "you should have been able to read it, no?"13 Indeed, the questioning at times was aggressive. [34] Counsel stated that she was antagonistic to the appellant and to him; however, there were not a lot of interruptions, there was not constant animosity. I did not find that the questioning constituted harassment. An informed person, thinking the matter through realistically and practically, would not conclude that it was more likely than not that the RPD member, consciously or subconsciously, would not decide fairly. Her mandate was to get to the truth of the matter.14 In so doing, while her questioning was extensive and energetic in the presence of a Minister's representative, there is not sufficient evidence to conclude that she would not decide fairly. For these reasons, in these unique circumstances, I find that the RPD member was not biased nor was there a reasonable apprehension of bias. [35] That being said, the aggressive tone to some of her questioning and speculative reasoning resulted in an uneven tone to the hearing. I do not find that it does to the degree where this, in and of itself, would not be sufficient to find for the appellant. However, there are other considerations. Credibility [36] Counsel for the appellant did not expressly raise the findings of credibility as a ground of appeal. However, paragraph 15 of the appellant's affidavit states he answered the questions honestly. This seems to be challenging the RPD's negative findings of credibility. The bulk of the reasons for denying the appellant's claim rest on credibility. For the sake of completeness, I have addressed the credibility findings. [37] In this particular instance, the RPD member did not have any advantage in assessing the credibility that would lead deference to her finding regarding credibility. The RPD member does not state that there were any difficulties with the appellant's testimony to lead to the conclusion that she would have been in a better position than I to judge it. While she comments on his language ability and that he appeared to be "somewhat sophisticated", her findings of credibility rest mostly on the content of the evidence. [38] Some of the decision's reasoning about the appellant's credibility is flawed. For instance, the RPD seems to place a great deal of weight on the fact that the notes of the US Credible Fear interview discuss the UNC while the appellant is clearly discussing a UNICEF camp. There are typographical errors in the notes of this interview; given that the appellant did not write out the statement in his first language I do not give this discrepancy any significant weight. The RPD member drew a negative inference from it and notes that the appellant did not correct the mistake. Placing the onus on an appellant to correct mistakes made by an authority figure in a second language is an unreasonable basis to find that an appellant was not credible. Tied to this was her doubt that the appellant was 19 years old although there was no evidence to contradict this statement. It is a convoluted finding to say that an ID card shows at the very most that an appellant was at best a student in Somalia and then to say that there is insufficient evidence of his being from Somalia.15 Further, as noted by counsel, the appellant wrote that he knew a little English in his record of sworn statement in proceedings under section 235(b)(1) of the U. S. Immigration and Nationality Act dated February 2, 2015.16 [39] In this case, I am not convinced that inconsistent statements in the documentary evidence should be a basis to find that an appellant is not credible. Notes from a port of entry should be treated with caution. In some of these documents, no interpreter was provided. I did not see sufficient evidence of English language skills that I would conclude he had a perfect understanding of English and should be held to be completely accountable for all of his statements. [40] Granted, as stated in Warsame,17 the mere fact alone that someone may hail from Somalia is not sufficient to find in their favour. Further, there are some consistencies and accuracies in the RPD member's reasons with the evidence before her that led to a negative finding of credibility. [41] That being said, there are also some concerns with the reasoning. The RPD member also proceeded to conclude that the appellant's statements regarding working for UNICEF were not objectively well founded. She did so on the basis of her reading of a document that she described as a U.S. Department of State Report, covering a Human Rights Watch from 2013. The RPD member questioned the appellant about a quote in this document which indicated that the Al Shabaab did not permit UNICEF to operate in the Beledweyne area. However, having reviewed the report and the former version of the report referred to on the record, I do not find this quote. Further, having examined documentation on record, I found that the quote was in the item at 2.3 of the National Documentation Package from the United Kingdom's Home Office entitled "Somalia: Country of Origin Information Report", dated August 5, 2013.18 It is difficult to conclude that, although the quote was read to the appellant and he did not disagree with it, it is fair practice to question an appellant on a quote when giving an improper citation. It would be exceedingly difficult to find the quote without the proper citation. I do not find that the appellant was given a fair opportunity to address the quote without having an opportunity to consider the context in which it was given. A further injustice arises when a negative inference about the appellant's credibility is drawn regarding the UNICEF compound in the Beledweyne area based on an improperly identified document. [42] I agree there are issues with the appellant's credibility. There were points in his testimony that were vague on issues that are material to his claim. Some of the RPD's points about the appellant's credibility have substance to them. However, these points are buried in a decision that has significant concerns. [43] Further, while the appellant testified that he had scars on his body from torture, and the notes from the Canada port of entry documents states that there was a "dark round scar on on right shin near ankle from rifle butt strike scar on inner thigh from bayonet stab scar on left side of head in hair from rifle strike" [reproduced as written], this important area was not examined during the hearing. SUMMARY [44] I have conducted an independent review of the evidence in this matter. I have considered the appellant's arguments as well. When considering the cumulative effect of the lack of consistency in the tone of the hearing, questioning on documents with incorrect citations and drawing negative inferences from it, inconclusive sentences, conclusions based on speculation, I find that there is sufficient reason to refer the matter to the RPD for reconsideration. I find that the RPD member erred in fact by basing findings of fact on speculation and in law by not properly applying section 106 of the Act. The cumulative effect of these errors is such that I am unable to find that this RPD decision is correct and/or that the findings of credibility can stand. While some of the concerns raised about credibility had some basis, there were too many errors on the record with regards to her findings of credibility in addition to other errors to outweigh what had a basis. While I did not find that she had a particular advantage by being at the hearing, I am not able, with the record before me, to consider the evidence to make a determination regarding credibility. In other words, I cannot make a decision to confirm or set aside the RPD determination with the record before me. REMEDIES [45] For reasons given, the decision of the RPD is wrong in mixed law and fact. I am exercising my discretion under section 111(1)(c) of the Act to refer the matter back to the RPD for redetermination before a newly constituted panel in accordance with these reasons for decision. (signed) "Patricia Broad" Patricia Broad July 21, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; hereinafter Huruglica. 5 Refugee Protection Division Rules, SOR/2012-256. 6 Refugee Protection Division (RPD) Record, RPD decision, para. 34. 7 RPD Record, RPD decision, para. 33. 8 Khakh v Canada (Minister of Employment and Immigration) [1994] 1 FCR 548, 1993 CanLII 3007 (FC)m http://canlii.ca/t/4gnb. 9 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, at p. 394. 10 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson, Pursuant to PARAGRAPH 159(1)(h) of the Immigration and Refugee Protection Act: Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Effective date: December 15, 2006 Amended December 15, 2012. 11 Available on the Immigration and Refugee Board website. 12 Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.), as summarized in Mohammad, Selim v. M.C.I. (F.C.T.D., no. IMM-2390-99), Lemieux, March 16, 2000. 13 Recording of hearing, at 3:21. 14 Maksudur, Rahman v. M.C.I. (F.C.T.D., no. IMM-5784-98), Nadon, September 8, 1999. 15 RPD Record, RPD decision, para. 34. 16 Hereinafter the Record of Sworn Statement. 17 Warsame v Canada (Citizenship and Immigration), 2016 FC 596, at para. 40. 18 Exhibit 3, The National Documentation Package for Somalia, Item 2.3, July 15, 2015, at p. 69. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB6-01289