VB5-03733

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 : VB5-03733 Private Proceeding / Huis clos Amended 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 Vancouver, BC Appel instruit à Date of Decision June 30, 2016 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor 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 November 3, 2015 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on October 20, 2015 with a Notice of Decision being sent to the appellant on November 6, 2015. The RPD found that the appellant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act").1 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Act, 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 member of that Division. BACKGROUND [3] The appellant was represented before the RPD. The appellant is represented by different counsel before the RAD. The Minister has not intervened before the RPD or the RAD. [4] The appellant does seek to present "new" evidence2 to the RAD pursuant to subsection 110(4) of the Act. BASIS OF CLAIM [5] According to the allegations set out in the appellant's Basis of Claim form and statement,3 the appellant is a national of Somalia and belongs to the minority clan called Madhibaan. The appellant was able to attend school in Kismayo despite continuous harassment and threats from both teacher and schools due to his minority clan affiliation. [6] On XXXX XXXX, 2013, the appellant's father was killed by armed men from the Darood clan. In Somalia, the appellant began dating a girl named XXXX in early 2013 who was from the Ogaden tribe. They met at a language school where they were learning English. Due to clan differences, XXXX family did not approve of their relationship. On XXXX XXXX, 2014, XXXX brother, a military officer for Juba administration, and two armed men attacked the appellant. The appellant was detained for five days but was released on the condition that he does not meet XXXX. [7] However, the appellant and XXXX continued their relationship in hiding despite the threats. On XXXX XXXX, 2014, XXXX family became aware of their continuing relationship and they attacked the appellant's home. The appellant was not at home at that time. The appellant hid at his aunt's home until he could flee Somalia. He fled to Kenya in XXXX 2014 and with money collected from his relatives, the appellant found a smuggler. The appellant travelled to Brazil, Venezuela, and other Latin and Central American countries before he arrived in the United States (US). He applied for asylum in the US but was denied. The appellant arrived in Canada and made a claim for refugee protection. [8] On April 2015, XXXX also fled Somalia and went to Kenya. Her family attacked the appellant's family and broke the appellant's mother's arm and beat her up. They also burnt down the appellant's family home. [9] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on the issue of credibility. GROUNDS OF APPEAL [10] The appellant's submissions as to the grounds of this appeal can be summarized as follows:4 * Did the RPD member apply the presumption of credibility? * Did the RPD member made the decision without regard to the evidence? * Is the RPD member's decision perverse? * Was the RPD member unfair to the appellant? * Was the RPD member's reasoning irrational? * Did the RPD member misread the country condition information? CONSIDERATION OF NEW EVIDENCE [11] Subsection 110(4) of the Act provides that 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 they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The appellants are required to provide full and detailed submissions as part of their memorandum and provide explanations for how the proposed new evidence meets the requirements of subsection 110(4), and how it relates to their claims.5 [13] Once the 'new evidence' has been accepted by the RAD, the RAD is also guided by the recent Federal Court of Appeal (the "FCA") case, Singh.6 In Singh, the FCA has said: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. [14] In Singh,7 the FCA also said: [54] [. . . ]The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. [15] The RAD will assess the evidence on 'newness' as outlined in subsection 110(4). If it passes this test, the RAD will go on to assess the 'new evidence' on credibility and relevance before admittance of such evidence for the RAD appeal. [16] The appellant has submitted two documents as new evidence8 pursuant to subsection 110(4) of the Act: 1) Affidavit from XXXX XXXX XXXX.9 2) Affidavit from XXXX XXXX XXXX10 [17] Counsel for the appellant submits that both new documents are evidence "that the appellant could reasonably have been expected in the circumstances to have presented at the time of the rejection, because the appellant could not reasonably have anticipated the scepticism and illogicality of the Division member."11 Both these documents refer to the appellant's clan affiliation. I note that this issue was presented to the appellant at the hearing. I find both these documents relate to the essential elements of the appellant's allegations. I would have expected the appellant to provide this to the RPD. The appellant's arguments above do not provide a reasonable explanation for why this information was not before the RPD. Such evidence which contradicts the findings of the RPD does not make it new evidence. Therefore, I decline to admit either of these documents as new evidence. [18] Considering that neither of the documents have been accepted as 'new evidence' by the RAD, I do not find that it is necessary to continue with any further analysis of these documents. ORAL HEARING [19] The appellant has requested an oral hearing pursuant to subsection 110(6) of the Act. [20] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the RPD Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [21] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,12 in which case, according to subsection 110(6), 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 decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [22] However, no 'new evidence' has been accepted for this RAD appeal. Thus, the application for an oral hearing is denied. [23] As such, the RAD will proceed without a hearing in this appeal. REMEDY SOUGHT [24] The appellant has requested that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a positive determination. In the alternative, the appellant requests that the RAD, under paragraph 111(1)(c), refer the matter to the RPD for redetermination by a differently constituted panel. ROLE OF THE RAD [25] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [26] RAD, being a new Division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court (the "Court") cases that have differed in their approach of what standard should be used. [27] The appellant has not made any submissions on the role of the RAD for this appeal. [28] In the FCA decision for Huruglica Justice Gauthier states: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.13 [29] In Youkap,14 the Court confirmed that the RAD may show a certain level of deference towards the RPD's finding when credibility issues are involved, and that the RAD must conduct an independent assessment of the evidence as a whole. Furthermore, the RAD has a duty of deference regarding the credibility findings of the RPD as the RPD has had the opportunity to hear the witness.15 This has also been stated by the recent FCA decision, Huruglica,16 where Justice Gauthier states: [11] [. . .] These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [. . .] [14] Turning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This "suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand" [. . . .]17 [30] In this appeal, and taking into consideration the recent FCA decision in Huruglica,18 with respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Otherwise, where an issue concerning credibility of oral evidence is evident, I will be applying the points set out in Huruglica19 which is to conduct an independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [31] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD member in his credibility assessment. Given the result of this appeal, I will not be making a finding on all the arguments put before RAD by the appellant. Education [32] The appellant submits that the RPD member erred in applying the objective evidence regarding education for minorities in Somalia to the appellant's situation. Specifically, the appellant submits that the RPD "makes the irrational jump from some to all" when assessing the country condition reports. The appellant submits that "the reasoning of the Division member when addressing the education of the appellant is legally faulty and confused."20 [33] The RPD member finds:21 [10] Objective evidence says that minority clans and more acutely, the Madhiban, experience limited access to education and the majority are excluded from attending school with other clans. The evidence indicates that generally in Somalia that education is private and the schools are owned by the majority clans. Most children, who are part of the minority clans, do not go to school in order to work to contribute to the family income.22 They are marginalized, disenfranchised and denied a range of basic human rights. They cannot afford a decent life as they are only able to work in the most undesirable jobs. The claimant's education, in light of the objective evidence, demonstrates that his circumstances were not consistent with treatment of Madhiban in Southern Somalia.23 I would reasonably expect, considering, the objective human rights report as to the abhorrent treatment of the individuals belonging to minority communities, that the claimant would have had some difficulties in attending school, not just as he said being teased at school. I do take a negative inference against the claimant's identity as a member of this particular clan, as his testimony was unreasonably vague and general to those circumstances. [34] I have reviewed all the evidence before the RPD and the RAD in its entirety, including the objective evidence pertaining to the issues raised by the appellant on education for minority clans in Somalia. I find that the RPD member did err in her analysis of the country documents and how she used them to conclude that the appellant lacks credibility. The RPD member cites Item 5.13,24 from the National Documentation Package (NDP) of Somalia, which primarily deals with minority women. This country report notes that: Though the right to education is constitutionally guaranteed in all three regions, Somalia has very low female literacy levels. Across the three regions, nearly 75 per cent of women aged 15-24 are illiterate, for instance, and enrolment rates at all educational levels remain markedly lower for girls compared to boys. In South-Central Somalia, while a relatively accessible system of private schools is in place, these are una?ordable to the large majority of minority members. [35] In reviewing the RPD member's decision, I note that she states "Objective evidence says that minority clans and more acutely, the Madhiban, experience limited access to education and the majority are excluded from attending school with other clans. The evidence indicates that generally in Somalia that education is private and the schools are owned by the majority clans. Most children, who are part of the minority clans, do not go to school in order to work to contribute to the family income."25 I do not agree with the RPD member's assessment of the objective evidence. It is clear that the country documents note that 'most' children from minority clans do not have access to education in Somalia. However, the appellant provided a reasonable explanation as to how his father worked to send him to school and also testified to discrimination and harassment while going to school. I find the RPD member's interpretation of the objective evidence is incorrect and thus, I find that her credibility finding is not adequate. [36] The RPD member made a negative inference in concluding that it is not possible for someone from a minority clan to be able to afford to pay for his children to go to school due to lack of employment opportunities. However, I find that the RPD member erred in her finding and did not provide a reasonable argument for why it was not possible for the appellant's family to send him to a private school. It is clear from the evidence that after the appellant's father's death, the appellant's brother had to quit school due to financial difficulties. The appellant also testified about what his father did for employment. I find that the RPD member did not explain clearly why she did not accept this explanation or find the appellant's explanation credible. [37] I concur with the appellant that the RPD member has erred in her assessment of the country reports when making her negative credibility findings. Overall Credibility [38] I have made an independent assessment by reviewing all the evidence before the RPD and now the RAD for this appeal. Overall, I find the RPD member's findings are speculative and she has not provided adequate reasons for why she discounted the appellant's testimony and simply refers to the testimony as vague. The Federal Court has held that adverse findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.26 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences.27 [39] I concur with the appellant's arguments and find that the RPD's findings were speculative and therefore were not reasonable. For example, the RPD argued that the appellant was not able to explain how he was able to obtain education given his family's limited ability to earn income and thus found him not credible that he was from the Madhibaan clan. Furthermore, the RPD member makes a finding that the appellant is not credible in his story that he dated his girlfriend and took her out. Again, the RPD member is speculating that this is not done based on her assessment of societal norms in a male dominated society. I do not find that this finding is persuasive to discount that it could never happen. [40] The RPD member also ignored evidence where the appellant testified that he stopped taking his girlfriend out after his father's death due to financial difficulties. Furthermore, the RPD member's finding that it is unreasonable that the appellant would continue to date his girlfriend despite the threats he was receiving from her family is weak and inadequate. I find the RPD member's findings are flawed and incomplete. Furthermore, I find the negative inferences made by the RPD member are inadequate and incomplete, and I find that the RPD member has not adequately addressed the appellant's testimony and has ignored relevant evidence in making these findings. CONCLUSION [41] Accordingly, having reviewed all the evidence before the RPD and the RAD, including listening to the CD of the RPD oral hearing.28 I find the appellant has accurately identified errors in the RPD member's assessment of the claim. I considered whether I could substitute the RPD determination by doing an independent assessment of the claim, but I find I cannot do so without hearing evidence that was presented to the RPD member. I therefore allow the appeal and refer the matter back to the RPD for redetermination. REMEDY [42] For all these reasons, I set aside the determination of the RPD and refer the claim of XXXX XXXX XXXX to the RPD for redetermination by a differently constituted panel as per paragraph 111(1)(c) of the Act. (signed) Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 Exhibit 2, Appellant's Record (AR), pages 26, 29; Exhibit 4. 3 Exhibit 3, Refugee Protection Division Record (RPDR), Basis of Claim form. 4 Exhibit 2, AR. 5 Refugee Appeal Division Rules, SOR/2012-257, section 3(3)(g)(iii). 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 8 Exhibit 2, AR, pages 26, 29; Exhibit 4. 9 Exhibit 2, AR, page 26. 10 Exhibit 2, AR, page 29, Exhibit 4. 11 Exhibit 2, AR, memorandum. 12 Subsection 110(6) of the Act. 13Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 14 Youkap v. Canada (Minister of Citizenship and Immigration), 2015 FC 249. 15 Koffi v. Canada (Minister of Citizenship and Immigration), 2016 FC 4. 16 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 17 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 18 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 19 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 20 Exhibit 2, AR, Memorandum. 21 Exhibit 3, RPDR, Member`s Decision. 22 Exhibit 3, RPDR, NDP, Item 5.13. 23 Valtchev Sousko, v M.C.I., 2001 FCT 776. 24 Exhibit 3, RPDR, NDP Package, Somalia, July 17, 2015, Item 5.13. 25 Exhibit 3, RPDR, Member's Decision. 26 Kong, Win Kee v. M.E.I. (F.C.T.D.), (IMM-471-93), Reed, January 27, 1994. 27 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D.), (IMM-3392-97), Muldoon, February 12, 1999. 28 Exhibit 3, RPDR, CD- Oral Hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : VB5-03733 RAD File No. / No de dossier de la SAR : VB5-03733