VB5-01981

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 : VB5-01981 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision January 13, 2016 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) David Matas 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 XXXX (the "appellant"), a citizen of Somalia, appeals the negative determination of the Refugee Protection Division (the "RPD") regarding his claim for refugee protection. As is set out in the RPD Notice of Decision dated June 18, 2015, the appellant's claim was heard by the RPD on May 28, 2015 with a written decision being rendered on June 12, 2015. The RPD determined that the appellant was neither a Convention1 refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")2 nor a person in need of protection pursuant to section 97 of that Act. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a different RPD Member, with directions. The appeal is accepted. BACKGROUND [3] The appellant is represented at the RAD by the same counsel who represented him at the RPD. The Minister intervened at the RPD "by documents only" but has not intervened at the RAD. A primary focus of this intervention was the Minister's application that the appellant be excluded from refugee protection pursuant to section 98 of the Act as a result of a criminal conviction in the United States (US). This application was rejected by the RPD. The Minister has not appealed this rejection and the exclusion matter therefore forms no part of this appeal. [4] No transcript of the RPD proceeding has been included in the Appellant's Record (AR).3 However, a compact disc (CD)4 of the RPD hearing is included in the RPD Record (RPDR) and is found at the back of that Exhibit.5 I have listened to the entirety of the CD and reviewed the RPDR. [5] The appellant does not seek to present new evidence to the RAD pursuant to subsection 110(4) of the IRPA, nor does he seek a hearing before the RAD pursuant to subsection 110(6) of that Act.6 [6] The claim was previously heard by the RPD on June 13, 2014 leading to a negative RPD determination.7 The Minister did not intervene in that proceeding. The primary basis for this first RPD determination was that it concluded that the appellant had failed to adequately establish a subjective fear of the persecution which had been alleged and had not credibly established that he faced a personally targeted risk to his life or of cruel and unusual treatment or punishment or a danger of torture should he return to Somalia. The RPD determination was appealed to the RAD and was set aside.8 In that appeal, the RAD agreed with the appellant that the RPD had erred in law in not adequately considering the persecution, risk or danger the appellant might face due to his clan and sub-clan affiliations if he returned to Somalia, and ordered that the matter be redetermined by a different RPD Member of the RPD. The appeal before me is of the second negative RPD determination which will be considered in the following. Basis of Claim [7] The 51-year-old appellant alleges that he is a citizen of Somalia and a member of the XXXX clan, a sub-clan of the Digil. He also alleges that his extended family were very strong supporters of the Mohamed Siad Barré regime that governed Somalia from 1969 until 1991. The family was well connected with that government. Some family members served in the military while others worked directly for the government, including the appellant's father. [8] The appellant has not lived in Somalia for over 30 years. In 1984 he moved to the United States (US) with his brother-in-law's family. The brother-in-law was the XXXX XXXX at the XXXX XXXX XXXX XXXX XXXX and the appellant allegedly was one of his dependents. In 1990 the appellant married a woman of Somali descent who, as a permanent resident of the US, made an application to sponsor him as a permanent resident. He was issued a work permit. However, before the application was approved the marriage broke down in 1994 and the couple were divorced. The appellant alleges that, shortly thereafter, he made an application for asylum in the US through an immigration attorney. He alleges that he lost track of this application due to the lengthy process involved and the fact that his and his attorney's addresses had changed.9 After he moved from the US to Canada on XXXX XXXX, 2013, he advised a Canada Border Services Agency (CBSA) officer that he had not followed up on this application.10 [9] While still living in the US, in 2007 the appellant married another woman who had permanent resident status in that country. The couple had three children. The two went to see an immigration attorney about how the appellant could obtain legal status in the US. The appellant alleges that he was advised that the most likely result of his making any application would be his either being sent to jail or returned to Somalia due to the fact that he had been living in the country so long without lawful status. The appellant was frightened by either prospect. [10] The appellant alleges that upon the demise of the Barré regime in 1991 his family was targeted by enemies of that regime seeking retribution. He alleges that both his father and uncle were killed by such people in the early 1990s. He also alleges that two of his brothers were killed in 2008 in the Mogadishu area with one of his brother's families also being injured. [11] The appellant alleges that, even though he has not been in the country for over 30 years, if he is returned to Somalia he faces persecution, a risk and danger due to both his family's association with the Barré regime as well as his clan and sub-clan affiliation. In addition, he fears being targeted by the Al-Shabab terrorist organization as a "Westernized returnee", as well as by those who took his family's property after the Barré government fell. He maintains that he would be unsafe everywhere in Somalia and that adequate state protection would not be available to him there. RPD Decision [12] The circumstances under which this matter has been dealt with previously by two RPD Panels and the earlier RAD appeal necessitates that this matter be referred back to the RPD for redetermination once again. [13] The first RPD determined that the claims based on section 96 of IRPA regarding alleged persecution failed for lack of subjective fear, and the section 97 claims were rejected because the appellant had failed to establish that he would be personally targeted upon a return to Somalia.11 However, as noted earlier, and as found by the RAD,12 the first RPD Panel erred in law given its failure to adequately consider the appellant's claim based on clan affiliation. In coming to this conclusion and in referring the matter back to the RPD for redetermination, it was understandably unnecessary for the RAD to consider the appeal further in so far as the RPD findings on sections 96 and 97, including the lack of subjective fear, were determinative.13 [14] The second RPD Panel14 differed from the first RPD in concluding that the appellant did have a subjective fear of persecution motivated by political retribution arising from the appellant's family's involvement with the Barré regime prior to and shortly after 1991, but also found that there was no objective evidence that that sort of activity continues in Somalia in 2015.15 [15] The second RPD Panel concluded that the deaths of the appellant's two brothers in 2008 when they were "part of the military" was not associated with the family's Barre regime connections. As well, the RPD Member was not satisfied that the Somali government had, in fact, a formal military in 2008 to which those two brothers might have belonged.16 Regarding the appellant's clan affiliation, based on country documents the RPD concluded that the appellant's main clan was among the more powerful in Somalia and that his family's previous political and financial situation reflected their having been well-established, both of which led the RPD Member to conclude that the appellant's clan profile does not represent "a significant risk in and of itself, in his returning to Somalia".17 [16] Based on objective evidence, the RPD concluded that the general situation in Somalia had improved to the point that internally displaced people and refugees were repatriating to the country in significant numbers and that, while there were difficulties with finding a job and in dealing with local people who resented this influx, the security situation in Mogadishu was improving. The Member noted that the Al-Shabab terrorist organization had lost territory in that area due to the efforts of the African Union Mission to Somalia (AMISOM). The RPD acknowledged that Al-Shabab has expressed a desire to clear the country of foreigners and those with "Western influences" but concluded that the group's main targets were the Somali Transitional Government, military forces, international aid agencies and people suspected of spying on Al-Shabab for the government. In this targeting Al-Shabab uses a mixture of assassinations, suicide attacks and improvised explosive devices.18 [17] The appellant had also claimed that he faced a risk from those who had taken his family's land many years ago; land to which he has a claim as an heir. The RPD found that this claim was vague and that the appellant knew few details about the property. The appellant testified that he had no interest in taking any steps to retake the land but was concerned that those who now hold it would want to harm or kill him in order to eliminate any possibility that he might attempt to do so. The RPD noted that members of his family had remained in Somalia. There was no evidence that they had been attacked regarding this property. The Member concluded that it was unlikely that the appellant would be victimized as a result of any property dispute.19 [18] Finally, the RPD acknowledged that Somalia is far from being a functioning or stable state able to ensure that its residents' security and liberty is respected and protected. The Member also acknowledged that the appellant's return to Somalia after 30 years would occasion hardship, including difficulty in finding employment. However, the RPD noted its earlier findings that there was no serious possibility of the appellant facing persecution for a Convention ground and then concluded that, although the appellant might even face a serious risk to the security of his person, this risk is not different than that faced generally by the population of that country. GROUNDS OF APPEAL [19] Briefly stated, the appellant's grounds of appeal are: a) In rejecting the claim relating to the appellant's family's connection with the Barré regime, the appellant submits that the RPD erred in its finding that the appellant failed to provide recent evidence that such targeting continues to occur. b) The appellant maintains that his family's association with that regime is too specific to be reflected in country condition documentation and that there was adequate other objective documentation concerning "a legacy of vengeance-seeking based on group grievances and the rise of factionalized elites".20 c) The appellant submits that the RPD's finding that the XXXX (a sub-clan of Digil), was part of one of the more powerful clans in Somalia, was flawed because she had preferred country condition information to the appellant's own evidence. The appellant submits that, having found the appellant to be otherwise credible, his evidence should not have been so easily dismissed. Moreover, other country condition information indicates that the mere fact that the members of a sub-clan are associated with a strong clan does not ensure protection from the latter for members of the sub-clan.21 d) The appellant submits that the RPD erred in failing to conclude that threats from Al-Shabab the appellant might face as a "Westernized returnee" did not constitute a nexus with a Convention ground of persecution, either independently or cumulatively. The RPD's failure to answer the question as to whether or not such threats amount to persecution necessitates that the RAD must do so in order to dispose of the appeal.22 e) The appellant submits that the RPD erred in considering alleged risks separately rather than cumulatively. The RPD has a duty to make a cumulative assessment where "a combination of small risks can add up together to one big risk".23 f) Finally, the appellant submits that the RPD erred in finding that, with respect to subparagraph 97(1)(b)(ii) of the Act, the appellant faces risks in Somalia at a level faced by others generally in that country and in not finding that the appellant faced a personalized risk.24 ORDER SOUGHT [20] The appellant seeks an order from the RAD that the appellant is a Convention refugee or a person in need of protection.25 THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [21] In the AR, the appellant makes no specific submissions with regard to the general role of the RAD and the criteria for its intervention. [22] The RAD commenced its operations in December 2012, following amendments being made to IRPA. The first Federal Court review of a RAD decision was in May 2014.26 [23] In a previous decision,27 I considered in depth and in detail the chronology of the various views of the Federal Court's jurisprudence concerning the proper role of the RAD as it has developed. These views have not always been consistent and a number of nuances have emerged. As noted above, fundamental questions have been certified, two of which were heard by the Federal Court of Appeal in late September and early October 2015 with judgment currently reserved. In the meantime and in light of the case law I referenced in my earlier decision, I have concluded that a practical and pragmatic approach28 to the matters in question is appropriate and will take that approach in this case as I had concluded in my previously cited decision: Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal. As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under section 110(6) of IRPA.29 I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters about which the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [24] A significant difficulty in conducting this appeal arises from the fact that it is the second time the matter has come before the RAD, following two separate RPD determinations, both of which are contained in the RPD record in this appeal, as is the first RAD decision. [25] In considering the role of the RAD, I acknowledge the now widely accepted direction of the Federal Court that the RAD should conduct its own, independent assessment of whether an appellant is a Convention refugee or a person in need of protection, while also respecting the credibility or other findings of the RPD where the RPD has a particular advantage in reaching its conclusions. This direction was initially articulated in Huruglica30 and has been followed in many subsequent Federal Court decisions. [26] Given this broad, overall direction that the RAD consider the ultimate and fundamental question of whether or not a person is a Convention refugee or a person in need of protection, I find that the scope and depth of my consideration is not restricted solely to the specific issues that might have been raised by the appellant or the RPD in just this current appeal, or dependent upon a specific question being raised by the Minister (or, indeed, whether the Minister has decided to intervene in any particular appeal). In situations where I wish to consider an issue that has not been specifically raised in the appeal immediately before me, I must be careful not to do so without the affected parties being given notice of that question and given an opportunity to make submissions on it. [27] Theoretically, one way to accomplish the foregoing would be to give notice to the appellant in this case and then seek his submissions. However, as my concerns arise from conflicting credibility findings directly arising from two separate RPD decisions to which I owe deference in the sense set out in Huruglica, I find that I would not be able to resolve the contradictions without hearing evidence which had previously been heard by the RPD.31 Moreover, as the appellant has not sought to present new evidence pursuant to subsection 110(4) of the Act there is no vehicle through which I could properly conduct a hearing pursuant to subsection 110(6). [28] To clarify the conundrum I find I am confronted with it is important for me to set out in greater detail the history of how this claim has gone forward. [29] The predominant feature of the approach taken by the first RPD Panel was its focus on a lack of subjective fear with respect to persecution based claims and the impact of the appellant's conduct after leaving Somalia on the credibility of his claims to be a person in need of protection as well as a lack of personalized risk. [30] This first Panel found that the appellant had established his personal identity, his citizenship as a national of Somalia, and his membership in the XXXX tribe, a sub-clan of the Digil clan. The RPD found that the appellant had a nexus with the Convention ground of imputed political opinion arising from his membership in a family who had been associated with the Barré regime and membership in a particular social group being his clan affiliation. However, the RPD also properly found that it was necessary for the appellant to establish that he had a subjective fear of returning to Somalia as well as an objective basis justifying such fear. [31] In coming to its conclusions, the RPD conducted a detailed review of the steps taken and, more importantly, not taken by the appellant during his 30 years in the United States to protect himself from being returned to Somalia where he alleges he would face persecution, risk or danger.32 In the result, the RPD concluded that the appellant demonstrated a lack of subjective fear. [32] As noted previously (and, as was found in the first RAD determination), the RPD failed to adequately consider the appellant's claim based on his clan affiliation. Having found in the appellant's favor regarding this latter issue, the RAD ordered that the matter be re-determined. The RAD therefore found it unnecessary to analyze further the RPD decision in so far as it related to findings of a lack of a subjective fear.33 Had it done so, the RAD would have had to be mindful of its obligation to defer in appropriate circumstances to the RPD's subjective fear findings. [33] The second RPD determination34 which forms the immediate basis for the appeal before me includes the Member's assessment that the appellant had testified "in a detailed and consistent manner" whereby the Member found that she "could reasonably rely on his testimony for this assessment".35 [34] The RPD accepted that the appellant's family was repeatedly targeted "in the early to mid-90s due to their connections to the Barré regime" and, importantly for the purposes of this analysis, also accepted that the appellant "has a subjective fear that the same fate will befall him if he is returned to Somalia". However, after reviewing the objective evidence (together with the lack of any evidence of others being attacked or targeted who had family connections to the Barré regime) the RPD found that the appellant's assertions about that source of persecution for him were not objectively supported. She also found that the deaths of two of the brothers of the appellant in 2008 were not connected to the Barré matter.36 [35] Upon an analysis of the objective evidence, the RPD found as well that the appellant's clan affiliation was tied into one of the most powerful clans in Somalia which, together with the appellant's family's history, left the RPD unsatisfied that the appellant's clan profile, of itself, had been adequately established as a significant risk for the appellant.37 [36] In addition, the second RPD provided reasons as to why it also concluded that the appellant's personal profile would not attract the attention of the terrorist organization, Al-Shabab, even as a "Westernized returnee" in the area of Mogadishu given that the group's ability and motivation to launch attacks in that area were directed to "higher value targets". The RPD also found it unlikely that the appellant would be victimized as a result of any potential property dispute in Somalia concerning lands that were once his family's. Finally, while the appellant might face hardship upon a return to Somalia, the RPD concluded that the risks and danger he might face would be the same as those faced generally by the population of that country. [37] As noted earlier in the Grounds of Appeal portion of this decision, the appellant submits that the second RPD erred in all of the above noted conclusions (but, presumably, not with respect to the finding of the existence of the appellant's subjective fear regarding the appellant's familial association with the Barré regime). [38] At the outset of the second RPD hearing, the Member noted that the record before her included a transcript of the first RPD oral decision as well as the first RAD written decision. She stated that no recording of the first RPD hearing was included. She then stated that the hearing before her was de novo from which one would reasonably assume that the entirety of the claim would be reheard with all pertinent issues being reviewed and considered.38 However, as is apparent from the balance of the CD of the second RPD hearing, as well as the second RPD reasons for determination, with the minor exception noted earlier and in the following, the second RPD did not elicit explicit testimony nor consider in its decision the whole question of subjective fear arising from the actions and inactions of the appellant for 30 years in the United States as had been done by the first RPD Panel. [39] The exception to my general observation was that the second RPD Member did find that the appellant had a subjective fear arising from his family's association with the Barré regime, but disposed of it on the basis of a current lack of an objective basis for that fear. However, in coming to this conclusion the Member provides no specific basis for the finding other than the Member's earlier general comments about her being able to "rely on the appellant's testimony". Nowhere in her decision does the Member consider the potential impact of the appellant's conduct (or lack thereof) to secure some status whereby he would not be susceptible to being returned to Somalia during the 30 years he was in the United States on any conclusion relating to the existence of a subjective fear at the time of the RPD hearing. The topic is largely unexplored. Moreover, to the extent the Member did consider subjective fear, that consideration was limited to the Barré related matter and did not touch upon alleged fears concerning the appellant's clan affiliation or association with lands previously owned by his family, both of which presumably would have been in existence for many years while the appellant lived in the United States. While the emergence of the activities of Al-Shaba arose later in time, nonetheless the threats it has presented to citizens of Somalia have been documented for many years, including the further six years noted by the first RPD Member39 when the appellant lived in the US after his last effort to seek advice in that country about obtaining protection there. The delay in not coming to Canada until 2014 was also left mostly unexplored by both RPD Panels. [40] There is considerable judicial authority for the proposition that a claimant for refugee protection with respect to persecution is required to establish both a subjective fear of that persecution upon a return to their country as well as an objective basis for that fear. A finding of a lack of subjective fear has been found to be determinative of a claim such that it is not even necessary to further explore the objective basis upon which the claim is based in order to reject it. With regard to claims of risk and danger under section 97, the same conduct that led to a conclusion of a lack of subjective fear regarding a Convention claim can also sometimes provide a proper basis to find that the claimant's story lacks credibility. The establishment of a subjective fear regarding persecution is not a peripheral or inconsequential matter. It is a finding that is fundamental. [41] In the circumstances I have described above, in this particular case I am left with the second RPD determination that only partially deals with subjective fear with regard to only one basis of claim. At that, there has been no analysis provided about the impact, if any, concerning the appellant's actions or inaction during his 30 years in the US as it relates to whether or not he, in reality, holds a subjective fear with respect to all of the grounds underlying the claim. The second RPD Member, although having before her the first RPD Member's decision (and the RAD decision relating to it), purported to conduct a de novo hearing without either incorporating in some fashion the first RPD Member's wider subjective fear analysis or adequately completing her own new independent analysis. [42] In the result, in attempting to fulfill my duty to independently ascertain whether or not the appellant is or is not a Convention refugee or a person in need of protection while having due deference to credibility findings of the RPD directly dependent upon the testimony of the appellant, the two approaches taken by the RPD are inconsistent, one with the other, without there being in my opinion, a mechanism by which I could prefer one over the other. As stated earlier, I have also found there is no forum through which I could make my own credibility findings about subjective fear through a RAD hearing. [43] I find that, in these circumstances, it would not be effective or efficient for me to consider in greater detail the specific grounds of appeal raised by the appellant regarding the second RPD determination because, even if I did so, I would still not have a reliable basis upon which to make a subjective fear determination which could obviate any findings I might make on the matters raised by the appellant regarding the objective basis for such alleged fears. That being so, there needs to be a new RPD hearing that is comprehensive in its nature dealing with all relevant matters. The second RPD determination is set aside and the matter is to be re-determined by a different RPD Member (i.e., excluding the Members who have already heard the claim) in accordance with by following directions. REMEDY [44] The redetermination to be conducted shall hear testimony and consider all of the sources of persecution alleged by the appellant with respect to both the alleged objective basis for the various claims and whether or not, looking forward, the appellant retains the necessary subjective fear regarding those claims. In so doing, the RPD shall consider persecution claims and claims alleging a risk or danger arising from the appellant's family's relationship with the Barré regime, the appellant's membership in the XXXX sub-clan of the Digil, the appellant as heir to lands once possessed/owned by his family, the appellant being a "Westernized returnee" if he is returned to Somalia and his potential persecution for imputed political or religious reasons by Al-Shabab or his being personally targeted regarding a danger of torture or a risk to life or of cruel and unusual treatment or punishment not faced generally by others in Somalia. The RPD shall also consider whether or not he faces persecution on a cumulative basis. In this regard it should be borne in mind that a cumulative basis analysis is restricted to events credibly found to have happened as opposed to a series of allegations which are either not credibly established or are rejected as not being credible. In this regard, the RPD must consider the guidance of Justice Crampton in Cervenakova40 as follows: [94] Relying on this Court's decision in Tetik v. Canada (Minister of Citizenship and Immigration), 2009 FC 1240, at para. 26, the Applicants submit the Board erred by failing to consider whether the various incidents that they or similarly situated persons experienced and continue to experience cumulatively amounted to persecution. However, Tetik is distinguishable from the case at bar. In that case, it does not appear that the Board questioned the credibility of any of the Applicants' claims. Rather, it found that the various types of discrimination that they had experienced did not amount to persecution, as contemplated by section of the IRPA. [95] By contrast, as I have already noted, in the case at bar the Board found that the principal Applicant was generally lacking in credibility. In addition, it did not believe any of her significant claims about what happened to her and her children. Having made these findings, the Board was under no obligation to proceed any further with its assessment of the Applicants' claims under section 96 (Odetoynibo, above; Canada (Minister of Citizenship and Immigration) v. Sellan, 2008 FCA 381, at para. 5). CONCLUSION [45] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugees nor a person in need of protection is set aside, and the matter is referred to the RPD for redetermination by a different RPD Member in accordance with my above noted directions. The appeal is allowed. (signed) "Philip MacAulay" January 13, 2016 Date 1 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 (the "Convention"). 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 RAD Exhibit 2, Appellants Record (AR). 4 RAD Exhibit 3, Refugee Protection Division Record (RPDR), Compact Disk (CD), oral hearing. 5 RAD Exhibit 3, RPDR, p. 626. 6 RAD Exhibit 2, AR, p. 11. 7 RAD Exhibit 3, RPDR, pp. 146-149. 8 RAD Exhibit 3, RPDR, pp.152. 9 RAD Exhibit 3, RPDR, pp. 18-19. 10 RAD Exhibit 3, RPDR, p. 66. 11 RAD Exhibit 3, RPDR, pp. 146-149. 12 RAD Exhibit 3, RPDR, pp. 152-162. 13 RAD Exhibit 3, RPDR, p. 159, para. 26. 14 RAD Exhibit 3, RPDR, pp. 3-11. 15 RAD Exhibit 3, RPDR, p. 7, para. 14. 16 RAD Exhibit 3, RPDR, p. 7, para.15. 17 RAD Exhibit 3, RPDR, p. 8, para. 16. 18 RAD Exhibit 3, RPDR, pp. 8-10, paras. 17-18. 19 RAD Exhibit 3, RPDR, p. 10, para.19. 20 RAD Exhibit 2, RPDR, pp. 30-32, paras. 4-9. 21 RAD Exhibit 2, RPDR, pp. 32-33, paras. 10-16. 22 RAD Exhibit 2, RPDR, pp. 33-34, paras. 17-21. 23 RAD Exhibit 2, RPDR, pp. 34-35, paras. 22-25. 24 RAD Exhibit 2, RPDR, pp. 35-38, paras. 26-38. 25 RAD Exhibit 2, RPDR, pp. 38-39, para. 39. 26 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 27 X (Re), 2015 CanLII 30384 (CA IRB) at paras. 47-80; errata note: the first two references to "RPD" in para 51 correctly should read "RAD". 28 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952 paras. 46-52; Tota v. Canada (Minister of Citizenship and Immigration), 2015 FC 890, paras. 18-19. 29 Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321, paras.14-24; Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913, paras. 42-43; Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120, paras. 24-25. 30 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, paras. 54-55. 31 The impact of paragraph 111(2)(b) is such that the RAD is to not conduct its own hearing if, in doing so, it would hear testimony previously heard by the RPD. 32 RAD Exhibit 3, RPDR, p. 147, line 1 and p.148, line 36. 33 RAD Exhibit 3, RPDR, pp. 152- 162, paras. 28-38. 34 RAD Exhibit 3, RPDR, pp.3-11. 35 RAD Exhibit 3, RPDR, p. 5, para. 8. 36 RAD Exhibit 3, RPDR, p. 7, paras. 14-15. 37 RAD Exhibit 3, RPDR, p. 8, para. 16. 38 RAD Exhibit 3, RPDR, p. 626; CD, 00:05:20 - 00:07:10. 39 RAD Exhibit 3, RPDR, p. 148, lines 23-28. 40 Cervenakova v Canada (Minister of Citizenship and Immigration), 2010 FC 1281. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-01981