MB5-01193

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. / No de dossier de la SAR : MB5-01193 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 29, 2016 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Chad, is appealing against the February 27, 2015, decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He is asking the Refugee Appeal Division (RAD) to allow his claim. [2] The appellant is submitting documents that he claims to be new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and is requesting a hearing before the RAD. [3] The Minister did not intervene in this appeal, but he intervened before the RPD. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination rendered on February 27, 2015, and refers the matter for re-determination by a differently constituted RPD panel. [5] The appeal is allowed. FACTUAL BACKGROUND [6] In his Basis of Claim Form (BOC Form), the appellant alleges that his father, XXXX XXXX XXXX XXXX, was XXXX of XXXX XXXX [XXXX XXXX], a XXXX XXXX of the ruling party called the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX XXXX 2012, he was allegedly murdered by a rival militant within the XXXX XXXX XXXX XXXX, who has XXXX XXXX XXXX XXXX XXXX XXXX in the XXXX region. An attempt to resolve the murder out of court was rejected by the family of the appellant, who found the murder to be politically motivated. A number of complaints were filed with the Chadian authorities, but to no avail. [7] Since then, the appellant has insulted Mr. XXXX each time he sees him. In XXXX 2014, the appellant was allegedly summoned by the Agence nationale de sécurité (ANS) [national security agency] and warned to keep away from Mr. XXXX. In early XXXX 2014, it is alleged that the appellant had an altercation with Mr. XXXX, during which the latter threatened him. On XXXX XXXX, 2014, the appellant was assaulted and injured. On XXXX XXXX, 2014, the appellant left Chad. IMPUGNED DECISION [8] In its February 27, 2015 decision, the RPD rejected the refugee protection claim, finding that the appellant was not credible with respect to key aspects of his claim and that he had failed to establish that he was the son of the murdered XXXX XXXX XXXX XXXX. The decision can be summarized as follows: - There were contradictions between the documentary evidence and the appellant's testimony on such things as: a) the issuance of an American visa to the appellant based on the statement that he was the XXXX XXXX XXXX XXXX XXXX XXXX; b) the contents of the appellant's uncle's letter, which was filed, as to the absence of any mention that the murder was political in nature; c) the period during which the appellant's uncle left Chad; - the appellant's behaviour was inconsistent with that of someone who fears for his life, since he did not claim asylum in the United States and since it was not until he was stopped after illegally entering Canada that he claimed refugee protection; - the appellant did not establish that he was the son of XXXX XXXX XXXX XXXX, and the documents filed by the appellant differ from the articles as to the spelling of the given name; - a negative inference is drawn by the RPD due to the appellant's lack of efforts to obtain documents corroborating the complaints allegedly filed with the Chadian authorities and documents corroborating that his father was involved in politics; - the RPD attaches no probative value to the letter from the appellant's mother or to the letter from the appellant's uncle; - and, as for the letter from Dr. XXXX, although the RPD accepts the diagnosis, given the appellant's undermined credibility, this letter does not establish the circumstances surrounding the assault. APPELLANT'S ARGUMENTS [9] In his memorandum, in addition to the arguments on the standard of review that the RAD must follow, arguments that I will get to later in my reasons, counsel for the appellant claims that the RPD committed errors that can be summarized as follows: - The failure to have claimed in the United States is not determinative in itself, and the RPD did not take into account the appellant's explanations, his brief stay in that country and the fact that the documentary evidence, including the doctor's letter filed with the RPD, demonstrates the appellant's subjective fear; - The visa was obtained by the appellant's uncle, and the appellant explained that he was a Gorane, a different ethnicity from that of XXXX XXXX XXXX XXXX, so it was impossible for him to be XXXX XXXX XXXX; - The appellant provided his birth certificate along with some other documents to establish his relation to his father. There is no contradiction stemming from the spelling of the appellant's given name, and it is the same person. The appellant had asked the RPD for a delay in order to submit additional documents, but there was no reply from the RPD. Also, the appellant has filed reams of new documents to demonstrate his credibility on this point. - The RPD needed to consider the medical evidence concerning both the appellant's psychological state and the scars on his body, which show that he went through a serious situation in his country. ADMISSIBILITY OF NEW EVIDENCE [10] The appellant filed a number of documents as new evidence within the meaning of subsection 110(4) of the IRPA. [11] To begin, subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD 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] To date, the Federal Court has rendered a number of decisions regarding the admissibility of evidence under subsection 110(4) of the IRPA. In Iyamuremye,1 commenting on the Federal Court of Appeal's decision in Raza,2 the Honourable Justice Shore states the following: This case law established a legal meaning to the general application of the words "new evidence," which, in the Court's view, is consistent with Parliament's clear intention with regard to subsection 110(4) to require that the RAD review the RPD's decision as is, unless new, credible and relevant evidence arose after the rejection, that might have affected the outcome of the RPD hearing if that evidence had been presented to it. [13] In Ghanadi3 and Denbel,4 the Federal Court states that the RAD must consider the factors set out in Raza when analyzing the admissibility of documents presented on appeal. [14] Furthermore, in Parminder Singh,5 the Federal Court emphasizes the importance of distinguishing the role of a PRRA officer from that of a RAD member when interpreting subsection 110(4) of the IRPA in relation to paragraph 113(a) of the IRPA: ... [57] In sum, I am of the view that it was unreasonable for the RAD to strictly apply the Raza test in interpreting subsection 110(4) of the Act all the while failing to appreciate that its role is quite different from that of a PRRA officer. [15] Furthermore, I also considered Sow,6 which concurs with the decision of the Honourable Justice Gagné in Singh7 when it states: [16] The RAD was wrong to import the approach to the receipt of new evidence recognized in Raza v. Canada, 2007 FCA 385, [2007] R.C.J. No 1632. An appeal to the RAD is not the equivalent of a Pre-Removal Risk Assessment [PRRA]. Indeed, it has been repeatedly held in this Court that a PRRA is not an appeal from an unfavourable refugee determination. The reasons for strictly limiting the receipt of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal from a refugee determination, particularly given the truncated timeline for completing the underlying RPD proceeding. [16] I have read and analyzed all of the evidence on the record. [17] Regarding the following documents, copies of which were received with the appeal record (death certificate,8 medical certificate9 and photographs),10 they must be examined in connection with the originals received on June 26, 2015, and in light of the provisions of subsection 110(4) of the IRPA. In my opinion, although I have taken account of the appellant's assertions that he had requested at the hearing before the RPD additional time to file new documents, these documents do not constitute new evidence within the meaning of subsection 110(4) of the IRPA, for the following reasons. [18] First, it must be pointed out that even though the medical certificate was dated after the refugee protection claim was rejected, the fact remains that it attests to a death that allegedly occurred on XXXX XXXX XXXX 2012, nearly three years before the certificate was issued and therefore before the refugee protection claim was rejected. Not only did the appellant not produce before the RPD an official document attesting to the death of the person he alleges to be his father, but he also neglected to explain why such a document, a medical document prepared at the time of death, was not reasonably available or, if it was, why it could not have been reasonably presented before the rejection. What is more, the medical certificate is not a new piece of evidence since it aims to round off evidence that was not presented before the RPD. [19] Furthermore, the death certificate filed with the appellant's record does not correspond to the original document11 received on June 26, 2015. While both documents are dated the same day, that is, XXXX XXXX, 2015, they contain substantive differences in terms of the location of the seal and the official stamp in the margin and the location of the seal at the bottom of the document. There is also a substantive difference as to the name of the deceased's wife. Given these significant differences, I attach no probative value to these documents and, consequently, I find that these two documents do not constitute new evidence under subsection 110(4) of the IRPA. [20] As for the photographs received with the appellant's record and the additional ones12 received on June 26, 2015, no explanation is provided by the appellant, be it in terms of the period or the circumstances. Moreover, the appellant provides no explanation as to why they were not reasonably available or, if they were, why they could not reasonably have been expected to have been presented before the rejection. [21] Also, the appellant filed a letter from XXXX13 and a letter from Dr. XXXX14 with the appellant's record. First, despite these documents having been dated after the refugee protection claim's rejection, contacts with the authors of these documents precede the rejection and they provide a medical follow-up on the appellant. Second, it should be pointed out that the appellant had filed with the RPD a medical letter15 from Dr. XXXX and that the RPD did not dispute the diagnosis. In the circumstances, I find that these letters do not constitute new evidence within the meaning of subsection 110(4) of the IRPA. [22] Regarding the documents received on November 5, 2015, there is the appellant's affidavit, two invitations,16 an automobile ownership statement,17 a letter of support relating to the change in constitution,18 a press release,19 a tasking order,20 an information sheet21 and a national identity card.22 Since these documents were not filed with the appellant's record, I find that despite the absence of an explicit reference to the Rules, I must analyze them first in light of subrules 29(3) and (4) of the Refugee Appeal Division Rules. [23] Subrule 29(4) states the following: In deciding whether to allow an application, the Division must consider any relevant factors, including a) the document's relevance and probative value; b) any new evidence the document brings to the appeal; and c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [24] In my opinion, these documents do not meet the tests in subrule 29(4), for the following reasons. First, although counsel for the appellant claims that the appellant has asked his family for the said documents since his arrival in Canada, these assertions are not supported by the appellant's testimony before the RPD regarding the lack of efforts to obtain them. Second, although counsel for the appellant claims that the appellant encountered several difficulties obtaining them, there are no explanations about these difficulties. And third, although I analyzed the appellant's affidavit, it simply introduces the documents and, in this context, the appellant alleges that his mother had to travel from her village to XXXX to send him the documents. In my opinion, this does not provide any explanation as to the period of this travel or the existence of any difficulties. For these reasons, I find that the appellant did not establish the documents' admissibility pursuant to subrule 29(4). [25] I would also like to point out that I attach no probative value to the national card that was filed, and here is why. First, the card does not correspond to the one referred to in the aforementioned death certificate. Second, according to the copy of the identity card23 filed with the RPD, this document expired in 2012. Third, I do not find it credible that the Chadian authorities would issue an identity card on XXXX XXXX, 2015, expiring on XXXX XXXX XXXX 2025, for someone who died nearly three years previously. And fourth, although counsel for the appellant claims that these documents prove the appellant's family relationship, I do not agree, since they do not establish this alleged family relationship. [26] For all these reasons, I find that these documents do not meet the tests set out in subrule 29(4) or in subsection 110(4) of the IRPA. [27] In addition, the appellant had submitted VHS cassettes,24 but at the request of counsel for the appellant, they were returned to him.25 On my instructions, the RAD Registry wrote26 to counsel for the appellant to ask whether the appellant wanted the VHS cassettes to be entered into evidence, and if so, to submit them by March 21, 2016. To date, the RAD has not received the said cassettes and, as a result, they have not been analyzed. HEARING BEFORE THE RAD [28] In the memorandum filed, counsel for the appellant requests that a new hearing be held before the RAD. [29] At the outset, it should be noted that under subsection 110(3) of the IRPA, the RAD proceeds without a hearing, on the basis of the record of proceedings of the RPD. In addition, under subsection 110(6) of the IRPA, the RAD may hold a hearing if evidence presented on appeal is found admissible and raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim and would justify allowing or rejecting the refugee protection claim. [30] In this case, the appellant has presented no new evidence within the meaning of subsections 110(3) and 110(4) of the IRPA and, consequently, there is no cause to hold a hearing before the RAD.27 SCOPE OF THE APPEAL [31] Counsel for the appellant refers in her memorandum to various court decisions regarding the standard of review conferred on the RAD. [32] Like counsel for the appellant, I am of the opinion that the scope of the RAD appeal must be examined in light of the IRPA and jurisprudence on that subject. [33] First, the IRPA does not expressly set out the standard of intervention to be applied by the RAD when reviewing decisions rendered by the RPD. The introductory wording under subsection 110(1) of the IRPA states the following: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [34] In addition, with respect to the RAD's decisions, the IRPA provides under subsection 111(1) that the RAD shall confirm the determination of the RPD, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. [35] Furthermore, I interpret the provisions of subsection 111(2) of the IRPA to mean that the intent of Parliament is to favour the finality of decisions. In fact, it states that the RAD may only refer the matter to the RPD for re-determination if the RPD's decision is wrong in law, in fact, or in mixed law and fact, and if it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [36] To date, the Federal Court has rendered several decisions concerning the RAD's standard of review or intervention and its role in hearing appeals against RPD decisions. [37] Thus, an appeal to the RAD is not in the nature of a judicial review. It is an error for the RAD to apply the standard of reasonableness; it must conduct its own assessment of all the evidence.28 [38] Also, Federal Court decisions rendered to date reveal two lines of jurisprudence regarding the standard of review or intervention to be applied by the RAD. [39] First, several decisions29 state that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. [40] Second, in Huruglica,30 the Honourable Justice Phelan states that "[u]nlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made'...and the RAD must conduct an independent assessment of the application in order to arrive at its own opinion."31 To do so, the RAD is required to conduct a hybrid appeal and must review all aspects of the RPD's decision.32 [41] With respect to the deference that the RAD owes to the RPD's findings, the Honourable Justice Phelan states that it may well be justified to show "deference to [the] RPD's decision in a circumstance where a witness' credibility is critical or determinative."33 However, with respect to interpreting documentary evidence on country conditions, the Honourable Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."34 [42] In my analysis, with respect to my role and functions as a RAD member, I have considered the provisions of the IRPA, as well as all of the Federal Court's decisions concerning the RAD and, in particular, Huruglica. Thus, I am of the opinion that the RAD is a specialized tribunal and that I must conduct an independent assessment of all the evidence in order to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA and, consequently, whether the RPD's determination is well founded, taking into account the evidence before the RPD, the appeal records and any new evidence within the meaning of subsection 110(4) of the IRPA or any evidence gathered during a hearing according to subsection 110(6) of the IRPA, if applicable. It should be noted that, in this case, the appellant did not file any new evidence and there was no hearing before the RAD. [43] Also, if there are errors on questions of law or if there are erroneous conclusions-or conclusions not supported by the evidence-on questions of fact or of mixed law and fact that are at the heart of essential elements of the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [44] To support my analysis, I would like to point out that I reviewed the RPD's reasons for decision and that I listened to the recording of the hearing held before the RPD. I also read and analyzed all the evidence on the record, as well as the appellant's memorandum. I will address the RPD's findings and explain why I am referring the matter for re-determination by a differently constituted panel of the RPD. RPD's conclusions [45] First, the RPD found that the appellant's behaviour was inconsistent with that of someone who would fear for his life if he returned to Chad, since he did not claim asylum in the United States, where he stayed for a few days. Counsel for the appellant claims that the RPD did not take into account the appellant's particular circumstances, that this failure to claim asylum in the United States is not determinative and that the medical evidence establishes a subjective fear. [46] From my analysis of the recording of the hearing, the appellant testified that it was his first trip abroad and that upon leaving Chad, he wanted to seek refuge. He arrived in the United States on XXXX XXXX XXXX 2014, and a few days later he travelled by bus to Buffalo. On XXXX XXXX, 2014, he illegally crossed the border. I concur with counsel for the appellant that under Canadian case law, this failure to claim asylum in the United States is not generally determinative. Furthermore, having considered all of the evidence, including the appellant's particular circumstances, I draw no negative inference as to his subjective fear. [47] In light of the documentary evidence filed, the RPD accepted that XXXX XXXX XXXX of XXXX XXXX in Chad, XXXX XXXX XXXX XXXX, had been murdered on XXXX XXXX XXXX 2012. But it found contradictions between the appellant's testimony and the documentary evidence filed as regards the political nature of this murder, and that he had not established that his father was in fact the one who had been murdered. [48] I subscribe fully to the RPD's findings regarding the murder's political nature alleged by the appellant, and here is why. First, the documentary evidence indicates that it was after a dispute with Mr. XXXX XXXX wife that he was killed and that the murderer was one of his in-laws. Confronted by the RPD with this documentary evidence, the appellant recognized that it was a brother-in-law, but that he was convinced that it was XXXX XXXX who was behind the whole thing. Also, like the RPD, although the appellant testified that his uncle had told him that the crime was political, there is no mention of this in the letter of support sent by his uncle. Confronted with this lack of mention, the appellant stated that he could not explain it. In my opinion, the appellant did not credibly establish that the murder was political in nature. [49] In addition, the RPD found that the appellant had not established his relation with the person murdered in XXXX 2012. While I concur with the RPD that there is a difference in the spelling of the deceased's name between the birth certificate and the articles reporting the death, the RPD did not explain in its reasons why it was rejecting his explanations about this spelling. Also, there is the letter35 from the appellant's alleged uncles in which the authors mention that the appellant is their nephew and that the person murdered on XXXX XXXX, 2012, was their older brother. While the RPD analyzed this document in its reasons as to the nature of the murder, it made no reference to it when it found that the appellant had not established his relation with the deceased. Like the RPD, I find that the alleged relation between the appellant and XXXX XXXX XXXX of XXXX XXXX, murdered on XXXX XXXX, 2012, is central to the refugee protection claim. Consequently, the absence of any finding by the RPD on this subject in light of the uncles' letter is a determinative error. The matter must be referred to the RPD for re-determination [50] For the reasons mentioned above, I find that the RPD made a number of errors, one of which proved to be determinative. It is also my opinion that re-examination is necessary on essential parts of the refugee protection claim, particularly as to his alleged relation with the deceased, the evolution of the situation between the alleged death and the appellant's departure from Chad, including the appellant's knowledge about the alleged murderer. Although I listened to the recording of the hearing held before the RPD and took all of the evidence into consideration, in accordance with subsection 111(2) of the IRPA, I cannot substitute my own determination for that of the RPD without holding a new hearing to reconsider the evidence presented to the RPD. [51] Since I am referring the matter to a differently-constituted panel of the RPD, I find that it is not necessary that I analyze the other points raised by counsel for the appellant. CONCLUSION [52] Having reviewed all the oral and documentary evidence and considered the foregoing reasons under subsection 111(1) of the IRPA, I set aside the RPD's determination and refer the matter to a differently constituted RPD panel for re-determination of the refugee protection claim. [53] The appeal of XXXX XXXX XXXX is allowed. Louis Cousineau Me Louis Cousineau March 29, 2016 Date IRB translation Original language: French 1 Iyamuremye v. M.C.I., 2014 FC 494, para 45. 2 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), A-11-07, Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 3 Ghannadi v. Canada (Minister of Citizenship and Immigration), No. IMM-1458-14, Manson; 2014 FC 879, paras. 17 and 18. 4 Denbel v. Canada (The Minister of Citizenship and Immigration), No. IMM-3827-14, Mosley; 2015 FC 629, paras. 40 to 44. 5 Singh v. M.C.I., 2014 FC 1022. 6 Sow v. M.C.I., 2015 FC 295, Barnes. 7 Supra, footnote 5. 8 Appellant's record: (page 10): death certificate dated XXXX XXXX, 2015. 9 Appellant's record: (page 11): medical certificate dated XXXX XXXX, 2015, regarding the death of XXXX XXXX XXXX XXXX on XXXX XXXX, 2012. 10 Four photographs without dates or explanations. 11 Copy of death certificate of XXXX XXXX, 2015 (Oiginal). 12 Six other photographs measuring 18mm X 12.5 mm and two passport-size photographs. 13 Appellant's record: (pages 16 to 18): letter of April 10, 2015 from XXXX. 14 Appellant's record: (pages 19 and 20): letter dated April 8, 2015. 15 RPD record: (pages 100 and 101): Exhibit P-4: Letter of February 13, 2015. 16 Invitations #XXXX and XXXX to a XXXX XXXX on XXXX XXXX XXXX/2012. 17 Document dated 15-07-2009. 18 Undated letter accompanied by a list of persons dated January 15, 2001. 19 Press release of XXXX XXXX XXXX-2010. 20 Tasking order of XXXX XXXX, 2012. 21 Undated information sheet. 22 National identity card in the name of XXXX XXXX XXXX XXXX issued XXXX XXXX XXXX XXXX2015, expiring XXXX XXXX XXXX-2015. 23 RPD record: (page 94): Exhibit P-3 b). 24 Received November 5, 2015. 25 VHS cassettes returned November 24, 2015. 26 Written note faxed on March 10, 2015. 27 Sajad v. M.C.I., No. IMM-926-14, the Honourable Justice Shore, November 21, 2014; 2014 FC 1107, paragraph 17. 28 In particular, Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Spasoja v. M.C.I., 2014 FC 913; Huruglica v. M.C.I., 2014 FC 799. 29 Idem, the first three decisions cited in footnote 8. 30 Supra, footnote 28, Huruglica 31 Ibidem, paragraph 47. 32 Ibidem, paragraph 54. 33 Ibidem, paragraph 37. 34 Ibidem, paragraph 38. 35 RPD record: (page 92 and 93): Exhibit P-3: letter of February 19, 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01193 14 RAD.25.02 (2014.09.11) Disponible en français