TB6-06097

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 : TB6-06097 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) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 13, 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 Barrister and Solicitor 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 XXXX (a.k.a XXXX XXXX XXXX - the Appellant), who claims to be 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 not submitted any new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to substitute its own determination that he is a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he is a citizen of the Federal Government of Somalia and cannot return there because he fears persecution at the hands of the majority clan, based on his tribal affiliation. He also fears that he will be killed by the terrorist group Al-Shabaab. The Appellant fled Somalia to Ethiopia and travelled through South America, finally arriving in Canada after making a failed asylum claim in the United States of America. [4] The Appellant's application for refugee protection was heard on March 11, 2016. By a written decision of April 27, 2016, the RPD rejected the claim. It noted that the Appellant had difficulty in providing details about his national and personal identity, and producing an identity witness which the RPD partially accepted her testimony. In light of these concerns and the lack of documentary evidence to substantiate his allegations, the RPD found that the Appellant had not established his personal and national identity, and it did not find him to be credible. ANALYSIS Role of the RAD [5] 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. [6] The Appellant's counsel makes submissions on the appropriate standard of review which is to be used by the RAD.1 [7] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.2 [8] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.3 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."4 [9] The Federal Court of Appeal, in its decision, clearly states that 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 in its decision. The RAD 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.5 [10] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.6 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 choose whether it agrees with the determination of the RPD; if not, then the RAD will substitute its own view and provide the correct answer.7 [11] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law; as such, findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.8 The Federal Court of Appeal, in deliberating 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 no need for me to pigeon-hole the RAD to the level of deference owed in each case."9 [12] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident 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."10 [13] 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 from those individuals. Therefore, credibility findings which arise from that oral testimony are appropriate of deference, as are other findings of fact based on oral evidence, so 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. [14] The RAD notes that not every finding relating to credibility, however, 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.11 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.12 [15] The question becomes 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'."13 This passage has subsequently been endorsed by other decisions of the Federal Court. [16] It is unfortunate that the Federal 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.14 This leads the RAD to believe that this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [17] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.15 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [18] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [19] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [20] 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. [21] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [22] 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. Issues of this Appeal [23] The Appellant submits that the RPD erred in its credibility findings. In particular, the Appellant submits that: The RPD erred in its adverse credibility findings. The RPD erred in its adverse finding on his personal and national identity. The RPD's Findings [24] The RPD found that the Appellant had not established his identity. It based its conclusion on the inability of the Appellant to provide government documents; however, the RAD acknowledges that the documentary evidence shows it is very difficult to do; instead, the RPD turned its mind to considering the Appellant's oral testimony, its examination of the identity witness, and the lack of supporting documentation filed. [25] The Appellant argues that the RPD erred in its identity finding by disregarding relevant evidence when it drew a negative credibility finding because of the Appellant's lack of effort to have his brother assist him in obtaining documents.16 [26] It is clear from the RPD's reasons that the identity witness was one of the key elements, if not one of the central parts of its negative identity finding. The RAD is able to determine that the panel found the Appellant's identity witness' evidence to be persuasive in regards to his personal identity, but made a finding that the witness was not able to attest whether the Appellant had obtained another nationality other than Somali.17 [27] Refugee claimants have an obligation to establish their identity, on a balance of probabilities.18 Section 106 of the Immigration and Refugee Protection Act states that: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.19 [28] Similarly, Rule 11 of the Refugee Protection Division Rules requires that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.20 [29] The Basis of Claim (BoC) form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim".21 The Appellant argues that the RPD put unjustifiable requirements that go beyond Rule 11, in that the Appellant should have recruited his brother to obtain documents which he could use to support his claim in regards to identity. The RAD disagrees. The way it interrupts the RPD finding is simply that the Appellant could have done more and could have tried to use his brother to assist him. [30] The Appellant was represented by counsel before the RPD, who is very familiar with claims from Somalia. The Appellant could reasonably have been expected to know that identity was an issue, given the references to the issue in the Act, the Rules, and the BoC form. The Appellant did bring a witness, but the Appellant's evidence was found to be persuasive due to regularities between his testimony and that of the witness. [31] The Appellant was asked if he had any identity or any documents which could assist with his identity. The Appellant testified that he had left the country and had no documents. The RPD did not accept this explanation and clearly cited in its reasons why it did not find this explanation to be reasonable. The RAD has reviewed the evidence in this area, and it finds that the documentary evidence supports the RPD's findings, and therefore it is reasonable that, although the country has been without an administration since 1991, the Appellant was not able to bring one shred of documentation to substantiate his identity. Documentation indicates that, prior to 1991, the Somalian government issued documentation such as birth certificates, marriage certificates, land titles, etc. [32] The RAD relies upon the decision of Mr. Justice Nadon, as he then was, in Elazi,22 where he said at paragraphs 17 and 18: [17] I take this opportunity to add that it is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is to (sic) easy for a claimant to simply state that he has lost these documents or the facilitator has taken them. If the Refugee Division insists on these documents being produced, the facilitators may have to change their methods. [18] Minimizing the importance of the passport and air ticket as documents to be produced or ignoring their non-submission for all sorts of reasons in my opinion only serves to encourage all those whose only purpose is to take advantage of a system which is intended solely to enable genuine refugees to come to Canada. (emphasis added) The RPD's Findings [33] The Appellant submits that the RPD's findings of fact regarding the credibility of the Appellant's testimony concerning his mistreatment, torture and death threats are rendered unreasonable. [34] The RAD finds, however, that it is clear from the record that the RPD did consider the Appellant's explanations before coming to its conclusions on credibility. The RPD noted the Appellant's explanations in its reasons and provided sound reasoning in rejecting those explanations. [35] Additionally, the RAD has reviewed the credibility findings of the RPD and finds that the RPD's findings were reasonable in light of the totality of the evidence. [36] The RPD has made a finding on the lack of general credibility of the Appellant and his personal and national identity. The RPD has found that the Appellant's personal and national identity and credibility has been undermined and that the allegations giving rise to his claim for refugee protection have been damaged. Furthermore, the RPD relied on the documentary evidence before it, primarily the Appellant's asylum claim in the United States of America (USA).23 The RPD, in its reasons, made a finding that the documents and the Appellant's current allegations were consistent with the exception of one instance. [37] The RAD has reviewed all of the documentary evidence that is before the RAD and the audio of the hearing, and it found, in some instances, the testimony of the Appellant to be vague. SUMMARY AND DETERMINATION [38] The RAD recognizes the difficulty faced by the RPD in determining the identity of refugee claimants who claim to be from Somalia.24 Here, however, the RPD's treatment of the Appellant's identity is not supportable. The RPD accepted the personal identity of the Appellant by virtue of the identity witness (Mrs. XXXX XXXX XXXX) and the affidavit of a family friend XXXX XXXX to be persuasive, but not his national identity because they could not testify that the Appellant was not a citizen of any other country. The RAD rejects that finding in that it is absurd to put such an arduous onus on the witnesses, to have them establish that the Appellant is not a citizen of any other country other than Somalia. [39] The RAD finds, on a balance of probabilities, that evidence on the record does not support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it did not arrive at the same conclusion as did the RPD in its overall determination. The RAD further finds that the Appellant has satisfied his burden of establishing his personal identity. [40] The Appellant asks that the RAD find the Appellant to be a Convention refugee, submitting that it has sufficient credible evidence to determine that he has demonstrated a well-founded fear of persecution. The RAD notes that credibility was and remains one of the key issues in the Appellant's refugee claim. Despite the lack of adequate finding as discussed above, there remain credibility concerns that have been raised by the Appellant and the RAD has not seen or questioned the Appellant and therefore is not in a good position to make a credibility determination. 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. [41] The RAD directs the RPD to make a clear finding on the Appellant's national identity and to deal with the credibility concerns which arose in the RPD hearing. CONCLUSION [42] Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. [43] This appeal is therefore allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho "July 13, 2016" Date 1 Exhibit P-2, Appellant's memorandum, page 106, paragraph 1.01 2 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 3 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14-18 5 Huruglica, 2016 FCA 93, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Huruglica, FCA, para. 70. 9 Huruglica, FCA, para. 74. 10 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 11 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 12 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, which decision contains a thorough discussion of the drawing of inferences.) 13 Huruglica, Federal Court, para. 55. 14 See Yin, para. 36, citing Njeukam v Canada (Citizenship and Immigration), 2014, FC 859, 2014, 09-10, Akuffo, Allalou v Canada (Citizenship and Immigration, 2014 FC 1084, 2014-11-17, and Sajad v. Canada (Citizenship and Immigration), 2014-11-07 - 2014-11-21; also Bui v. Canada (Citizenship and Immigration), 2014-11-28, 2014 FC 1145 15 Dunsmuir 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." 16 Exhibit P-2, Appellant's Record, Appellant's memorandum, page 114, paragraph 6.01 17 Exhibit P-2, Appellant's Record, Reasons, page 8, paragraph 10 18 Yip, Fu On v. M.E.I. (F.C.T.D., no. A-921-92), Nadon, October 27, 1993. 19 Immigration and Refugee Protection Act, Section 106. 20 Refugee Protection Division (RPD) Rules, SOR/2012-256. 21 Exhibit RPD-1, RPD's Record, p. 12, Basis of Claim Form (p. 1 of 12). 22 Elazi, Iseikete Simon v. M.C.I. (F.C.T.D., no. IMM-1038-99), Nadon, February 17, 2000; 2000 CanLII 14891 (FC), 191 FTR 205, [2000] FCJ No. 212 (QL). 23 Exhibit RPD-1, RPD's record, pp. 76-94; RPD's record, pp. 121-125; RPD's record pages 126-156 24 The Federal Court has also noted that section 106 of the IRPA recognizes the difficulty in proving national identity with the usual documentation from countries with unstable civil administration, such as is the case in Somalia; see Elmi v. Canada (Citizenship and Immigration) (2008), 2008 FC 773, at para. 22, and Shafi v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129 (129 (F.C.) 2005 FC 714, at para. 27 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-06097