TB6-07987

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 : TB6-07987 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 August 11, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal David Matas Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX who claims to be citizens of the Federal Republic of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be protected person or refer the matter back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1) (c) of 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 Somalia and cannot return there because he fears persecution. He also fears that he will be killed by the terrorist group Al Shabaab as they had threatened to do so when they killed his father. The Appellant left Somalia and travelled to the United States of America via South America where he filed for asylum, but was denied, he waived his right to an appeal and entered Canada illegally and file a claim for refugee protection. [4] The Appellant's claim was heard on November 23, 2015. By a Notice of Decision dated December 21, 2015, the RPD rejected his claim. The panel found that the determinative issue was that he was not credible. [5] The Appellant raises the following issues on his appeal:1 I. Was the Appellant's right to procedural fairness or natural justice breached as a result of the inadequate recording of the hearing provided; and II. Did the Refugee Protection Division member engage in a faulty analysis of credibility? III. Did the Refugee Protection Division member engage in a faulty analysis of lack of nexus to a Refugee Convention ground and forward looking risk? New Evidence [6] For the reasons set out below, the RAD allows this appeal. It is therefore unnecessary to consider or admit the Appellant's proposed new evidence. The Appellant may, of course, submit this evidence to the RPD, in accordance with that Division's rules, prior to the re-hearing of his refugee claim. ANALYSIS The Role of the RAD [7] While the IRPA sets out grounds for an 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. [8] The Appellant's counsel did not make any submissions on the appropriate standard of review which is to be used by the RAD. [9] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.2 [10] 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 [11] 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 [12] 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 RAD will substitute its own view and provide the correct answer.7 [13] 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 [14] 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 [15] 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. [16] 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 [17] 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. [18] 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, this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [19] 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. [20] 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. [21] 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. [22] 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. [23] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a 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. [24] 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. Application for an Oral Hearing [25] The Appellant does not request an oral hearing pursuant to Section 110(6) of the IRPA. [26] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [27] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [28] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [29] The RAD has not accepted any of the Appellant's new proposed evidence, as such, the RAD must proceed without a hearing in his appeal. ANALYSIS OF THE MERITS OF THE APPEAL [30] The Appellant argues that his right to procedural fairness or natural justice was breached as a result of the inadequate recording of the hearing provided by the RPD. In support of his argument the Appellant has put forth examples of credibility concerns, and has complied with the RAD Rule. The Appellant has clearly set out the location in the CD, which he received from the RPD, and has clearly outlined the alleged errors in his memorandum,16 and provided his response versus the responses outlined in the Reasons for Decision. The RAD has reviewed the CD where the alleged errors are located, and finds on a balance of probabilities that a breach of natural justice occurred in regards to the quality of the CD which was provided to the Appellant by the RPD. [31] It is clear from listening to the CD that the quality is extremely poor and causes the listener to be able to decipher the proceedings. The Appellant is challenging the credibility findings of the RPD and is trying to use the CD to point out that there is inaccurate information regarding the RPD credibility findings. The RAD after assessing the RPD decision and in reading the Appellant's argument has determined that without a clear audible it cannot make a true and concise assessment of the entire hearing. The errors pointed out leaves the RAD unable to clearly decipher the recording of that particular portion of the hearing. The RAD also listened to the audio of the recording and it too was unacceptable. The RAD agrees with the Appellant's argument; "that without a fully comprehensible and audible recording of the hearing, the Appellant cannot rebut or explain the findings made by the RPD panel."17 [32] The RAD agrees that there was a breach of procedural fairness, as such; I am unable to make a determination as to whether the Appellant is a Convention refugee or person in need of protection under paragraph 111(1) (a) or (b, due to the confusing testimony regarding the interaction between the Appellant and panel as the audio of the hearing is inaudible. Therefore, the matter is remitted to the RPD for redetermination by a differently-constituted panel. CONCLUSION [33] 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. [34] This Appeal is therefore allowed. (signed) "Luis F.Agostinho" Luis F. Agostinho August 11, 2016 Date 1 Exhibit P-2, Appellant's Record, at p.37, The Issues. 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, Akuffo, Allalou, and Sajad; also Bui. 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, at p. 37, para 14, Appellant's Memorandum. 17 Exhibit P-2, Appellant's Record, at p. 40, para 18, Appellant's Memorandum. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07987