TB6-01374

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 : TB6-01374 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 21, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal David P. Yerzy 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 FOR DECISION [1] XXXX XXXX ("the Appellant") a citizen of the Federal Government of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find him to be a Convention refugee or a person in need of protection or refer his claim back to the RPD for redetermination by a differently constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. Background [3] The Appellant alleged before the RPD that he is a national of the Federal Government of Somalia. The Appellant further alleged that he does not wish to return to Somalia, as he fears being persecuted by the major clans as he belongs to a minority clan and the terrorist group Al-Shabaab. The Appellant fled Somalia via Kenya to South America and eventually arrived at the Canadian border. The Appellant made a claim for protection in Canada on October 11, 2015. [4] The Appellant's refugee claim was heard on December 04, 2015 and December 08, 2015. The RPD, in a written decision issued on January 20, 2016, concluded that the Appellant had failed to establish the key elements of his claim and had not established that he was not a person in need of protection, as he had not established his personal and national identity and was not credible. [5] The Appellant argues that the RPD erred in basing its decision on negative inferences regarding his credibility. In the Appellant's submission, it is indicated that the RPD made unreasonable inferences, erroneous plausibility findings, and relied upon trivial inconsistencies to make credibility findings. The Appellant further argues that the RPD failed to provide adequate reasoning for some of its findings, in particular to his identity witness. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? [7] The Appellant's counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,1 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." [8] 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. [9] In a decision issued by RAD Member Edward Bosveld, which I adopt and accept his reasoning, Member Bosveld considered at some length the legislation and jurisprudence concerning the role of the RAD.2 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [10] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact which was raised by the Appellant and, where applicable, the Respondent. [11] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [12] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.3 [13] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [14] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [15] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [16] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. Issues of this Appeal [17] The Appellant submits that the RPD erred in its credibility findings. In particular, the Appellant submits that: (a) The RPD erred in its adverse credibility findings. (b) The Appellant argues that the RPD erred in its credibility and failed to provide adequate reasons for some of its findings. Application for an Oral Hearing [18] The Appellant requested an oral hearing, pursuant to Section 110(6) of the IRPA. [19] 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". [20] 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. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [21] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, 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. [22] The Appellant has submitted no new evidence in support of his appeal. Since the RAD has not received any new evidence filed with this appeal, his application for an oral hearing is denied. The RPD's Findings [23] The RPD's decision in the case at bar was delivered in a written context and not orally. Oral decisions are not in and of themselves problematic. That being said, procedural fairness requires that decision-makers provide adequate reasons to justify their decisions. The Honourable Mr. Justice Shore in a recent decision, in Sidhu,4 defined adequacy of reasons as follows: [20] The test of adequacy of reasons has been articulated by this Court numerous times, including recently in Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1: [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23 (CanLII), [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency, 5 [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36. [Emphasis added.] [24] In VIA Rail Canada Inc. v. National Transport Agency et al., [2001] 2 F.C. 25 (C.A.), [2000] F.C.J. No. 1685, the Federal Court of Appeal explained the obligation to provide adequate reasons at paragraph 22: [22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.... Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based.... The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out...and must reflect consideration of the main relevant factors.... [25] This case was cited with approval by Mr. Justice Pinard, in Zarghami,6 to explain the obligation on the IRB to provide adequate reasons. Based on VIA Rail Canada Inc., supra, and Zarghami, supra, the RPD in this case had a duty to set out its findings of fact and the principal evidence upon which those findings were based. [26] The Appellant further argues that, in regard to numerous credibility findings, the panel erred when it failed to provide adequate reasons for its findings. The Appellant sets out examples where they allege the errors were made by the panel. The RAD has reviewed the evidence in these areas and concludes, after listening to the audio of the hearing, that the RPD has not provided fulsome and adequate reasons in regard to all of these findings. The RPD, in paragraph 17 of the Reasons for Decision, does not give adequate reasons why it did not accept the evidence before it, as submitted by the Appellant in regard to the identity witness. The Appellant further argues that the RPD ignored evidence which was submitted by the Appellant at this hearing.7 It would have been better if the panel had provided fulsome reasons for why it did not accept the documents produced and submitted at his hearing or find the identity witness was not credible. [27] As stated above, the RPD has a duty to provide adequate reasons as such in the case at bar, where it has not. The RAD finds the Appellant's argument in this area to be supportable, but not in all other areas. [28] The area where the RAD does not find the RPD's findings to be supported is largely confined to the lack of reasoning why it did not accept or give fulsome reasons why it rejected the evidence presented by the Appellant at his hearing. It would have been better for the RPD to articulate in its reasons why it gave no weight to the evidence of the identity witness and why it found him not to be credible. [29] The RAD, after reviewing the totality of the evidence in this area, finds that the appropriate standard of review for issues of procedural fairness is correctness, as set out in Sketchley.8 Since the duty of procedural fairness to provide adequate reasons was breached in this case, as such the RAD sets aside in part the decision of the RPD and refers the matter for a rehearing addressing the issue of credibility. DISPOSITION [30] The Appellant takes issue with other findings in the RPD's decision. In the RAD's view, the failure to provide adequate reasons findings set out above are sufficient to dispose of this appeal. [31] The RAD notes that personal and national identity and credibility was and remains a key issue in the Appellant's refugee claim. Although the RAD does not necessarily disagree with the RPD's finding that there are credibility concerns in regard to the personal and national identity aspect in this claim for refugee protection, it does not negate the absence of evidence to support its finding, as stated in its reasons. Despite the lack of adequate reasons discussed above, there remain credibility concerns that have been raised by the Appellant. The RAD has not seen or questioned the Appellant and therefore is not in a good position to make a credibility determination. [32] For these reasons, the RAD will not substitute its own determination for the RPD's unsupportable decision but will instead refer the matter back to the RPD without directions. CONCLUSION [33] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel without directions. [34] This appeal is allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho March 21, 2016 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 X (Re), 2015 CanLII 19235 (CA IRB). 3 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 4 Sidhu, Prabhjot Kaur v. M.C.I. (F.C., no. IMM-11988-12), Shore, February 26, 2014, 2014 FC 176. 5 2000 CanLII 16275 (FCA). 6 Zarghami, Shirin v. M.C.I. (F.C., no. IMM-4258-05), Pinard, February 13, 2006, 2006 FC 151, [2006] F.C.J. No. 215 (QL). 7 Exhibit RPD-1, RPD's record, pp. 152-157. 8 Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (QL). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-01374