TB5-06789

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-06789 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 15, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Christina M. Gural 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] The Appellant, XXXX XXXX, is a citizen of Albania, and appeals a decision of the Refugee Protection Division (RPD) dated June 13, 2015, rejecting her claim for refugee protection. The Appellant is requesting that the decision of the RPD be set aside and the matter be referred back to the RPD or that the Refugee Appeal Division (RAD) substitutes a determination that the Appellant is a Convention refugee. The Appellant is submitting new evidence and requesting that an oral hearing be held. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant arrived in Canada on a visitor's visa in November of 2014. In January 2015, while in Canada, she was informed by her family in Albania that a member of the XXXX family, a family with whom the Appellant's family had an ongoing conflict had been killed and a blood feud declared between the two families. ROLE OF THE RAD [4] The Appellant has not provided any submissions with respect to the role of the RAD. The RAD finds that the recent Federal Court decision in Huruglica1 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". [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. NEW EVIDENCE Documentary Evidence [7] The Appellant submitted new evidence in the form of a letter from the Commune of Kastrat dated July 20, 2015.3 [8] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) which states: 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. [9] As with respect to the first test, the date of the document, the RAD notes that the new evidence is dated after the decision of the RPD and therefore will allow this document as new evidence. However, for reasons provided below, the RAD gives this document little evidentiary weight. WHETHER TO HOLD AN ORAL HEARING [10] New documentary evidence can justify holding an oral hearing pursuant to subsection 110(6) of IRPA which states: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3): a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; b) that is central to the decision with respect to the refugee protection claim; and c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [11] The RAD finds that, although all of section 110(6) factors have been met, the discretionary nature of the section allows the RAD to determine that an oral hearing is not required. The purpose of oral hearings before the RAD is to ensure that the Division does not come to conclusions on serious issues of credibility. The concerns of the RAD with respect to the new evidence center on issues that are on the face of the document. The RAD finds that convening a hearing would serve no purpose. ANALYSIS OF THE MERITS OF THE APPEAL [12] The RPD found that the determinative issue in this claim was credibility. The RPD found that the Appellant was not credible. The Appellant raises the issue of credibility in her appeal. [13] The RAD had an opportunity to listen to the recording of the RPD hearing and found that the only issues considered by the RPD member were credibility and well-founded fear. The issue of state protection was not raised by the RPD. [14] The RAD considers that the issue of state protection to be a determinative issue in this Appeal but because state protection was not raised at the RPD hearing, the RAD will not deal with the issue. For this reason, the refugee claim must be re-heard by a differently constituted member of the RPD. CONCLUSION [15] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter back to the Refugee Protection Division for re-determination by a differently-constituted panel and recommends that the issue of state protection be canvassed along with the issues of credibility and well-founded fear. This appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 15, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, pg. 26-28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06789