TB6-07821

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 : TB6-07821 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 July 27, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ron Shacter 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 (the Appellant), a citizen of Somalia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits new evidence in support of his appeal and requests an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to subsection 111(1)(c) of the IRPA, the RAD accepts the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel.1 The RAD finds the RPD erred in its credibility assessment. The RAD is unable to confirm or set aside the RPD decision without hearing evidence presented to the RPD with respect to the credibility of the Appellant. BACKGROUND [3] The Appellant alleges lived in the Al Shabaab controlled area of XXXX, south of the city of Mogadishu. He is Sufi. [4] Between 2012 and 2014 the Appellant was detained on XXXX occasions by Al Shabaab. During each detention he was physically abused. He was XXXX released when elders of the community spoke on his behalf. On the XXXX occasion he was released in error and subsequently fled to Kenya. From Kenya, with the services of a smuggler, the Appellant made his way to the United States (U.S.). He made a claim for asylum in the U.S. His claim was denied. [5] The Appellant arrived in Canada on XXXX XXXX, 2015 and made a claim for refugee protection the same day. [6] The Appellant had a refugee determination hearing on October 7, 2015. In a written decision issued on November 10, 2015 the RPD rejected the claim. The RPD member found that the Appellant had not established his personal and national identity. The RPD also found that the Appellant was not credible. [7] Appeal pleadings were received on December 23, 2015. In his appeal, the Appellant argues that the RPD's credibility assessment was unreasonable. ROLE OF THE RAD [8] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,2 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. [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. ANALYSIS OF THE EVIDENCE [9] The RAD will focus on whether the RPD erred in its credibility findings. Contradictions between allegations made in the Appellant's claim for asylum in the U.S. and his claim for protection in Canada [10] In its written decision, the RPD outlined contradictions between information in the Appellant's U.S. interview for asylum3 and allegations he made in his Basis of Claim (BOC) form.4 The RPD did not accept the Appellant's explanation for the contradictions. According to the recording of the hearing, the Appellant provided the following explanation for the discrepancies. He testified that an interpreter had been provided at his U.S. interview which was via the telephone. The Appellant testified that the interpreter could not hear him well and could not understand him. He explained further that he chose to continue without the interpreter because the alternative was to wait another three months in detention. The RPD noted in its decision that the interviewing officer in the U.S. "does remark that the claimants (sic) English was at such a level that the interpreter was released." The RPD indicated in its written decision that the U.S. officer's comment negated the Appellant's explanation. The RPD found that the notes of the U.S. officer indicated to the RPD that the Appellant was able "to articulate his story in detailed manner (sic)", even if it [English] was his second language. The RPD concluded by stating that it was not satisfied with the Appellant's explanation. The RAD notes that in its decision the RPD found that the Appellant tried to distance himself from his understanding of the English language. The RPD took a negative inference from the Appellant attempting to diminish his capacity in his understanding of the English language for the purposes of the hearing. [11] The Appellant pleads that the RPD unreasonably found that he attempted to conceal his understanding of English which led to the RPD's findings regarding his identity and residency in Somalia. The Appellant submits that there is no evidence that he was concealing language skills. The Appellant argues that the RPD cannot properly conclude from the U.S. asylum officer's notes that he, the Appellant, spoke English clearly. The Appellant submits that if he were that sophisticated it is illogical that he would respond to the English questions if he were trying to conceal his knowledge of English. He submits further that the RPD has no expertise in this area and should not speculate on the Appellant's competence in English. The Appellant argues that the RPD should not speculate that his knowledge of English signifies that he did not reside in Somalia. [12] For the following reasons the RAD, respectfully, cannot agree with the RPD. [13] According to the notes from the interview conducted by a U.S. asylum officer, the Appellant was not represented by an attorney, consultant or representative.5 The notes indicate that at the beginning of the interview an interpreter was in attendance, by telephone. At the beginning of the interview, upon being asked, the Appellant stated that he spoke some English. The notes indicate that the interview was conducted with the assistance of an interpreter for the first hour and then without the assistance of an interpreter for the last half hour. The interviewing officer does not state why the interpreter was dropped. The officer noted that the Appellant "said he understood and could speak English, finished in English. Applicant was clearly sufficient in English".6 The RPD, in its reasons, as indicated above, referred to the comment made by the interviewing asylum officer and used this comment to find the Appellant's explanations unsatisfactory. According to the recording of the hearing, the comment made by the interviewing asylum officer in the U.S. was never put to the Appellant. The RAD finds this to be a denial of natural justice. [14] The Appellant provides a number of submissions regarding the discrepancies between his allegations in his application for asylum in the U.S. and in his BOC form. The RAD declines to make findings on these submissions due to the denial of natural justice referred to in the previous paragraph and further perceptible examples of denial of natural justice, arising from the Record, outlined below. Further examples of denial of natural justice Lack of documentary evidence [15] The RPD commented in its decision that the Appellant put forward considerable effort to explain why he had not had contact with anyone who might provide evidence for his hearing. The RPD found that an unsolicited e-mail was submitted through the Appellant's counsel, post-hearing, attesting to the death of members of the Appellant's family. The RPD took a significant negative inference against the Appellant's credibility because he could not corroborate his allegations given his previous on-line history. The RPD found that the e-mail supplied post-hearing served to further erode the Appellant's credibility. [16] The RAD finds that the recording of the hearing contradicts the RPD's finding regarding what it referred to as an "unsolicited e-mail" provided post-hearing. The recording indicates that when questioning of the Appellant was completed the counsel for the Appellant indicated that they had a witness, via telephone, who was prepared to provide evidence regarding the Appellant's identity and the death of the Appellant's family members. At that point in the three hour hearing, the interpreter indicated that she could not remain longer. It was then agreed among the RPD, the Minister and the counsel for the Appellant that the witness would provide information in writing in a week's time. It was also agreed that the hearing would be reconvened to question the witness if it were necessary. Dates were also set for written submissions from the Minister and from the Appellant's counsel. The RAD finds it a denial of natural justice for the RPD to impugn the Appellant's credibility for providing a post-hearing document that had been agreed upon during the hearing. Contradictions between the Appellant's testimony and objective evidence [17] The RPD found issues with the Appellant's credibility because of certain testimony which it found was contradicted by independent documentary evidence. For example, the RPD found that while the Appellant testified he lived in an area dominated by the Abgal clan, the objective evidence does not support this testimony. The RPD did not put this contradiction to the Appellant. A further example occurred when the RPD found in its written decision that the Appellant testified that Al Shabaab had controlled his area since 2012 which was not consistent with objective evidence. This contradiction was also not put to the Appellant. The RPD found that the Appellant's testimony that he was selling produce from his farm was contradicted by objective evidence of droughts in that area during the time the Appellant was farming. Again, the RPD did not put this contradiction to the Appellant. The RPD noted that in the Appellant's interview with the U.S. asylum officer the Appellant alleged that Al Shabaab called him when he fled to Mogadishu but the Appellant did not make such an allegation in his BOC form or in his oral testimony before the RPD. The RPD did not put this omission to the Appellant during the hearing. The RAD finds it a denial of natural justice to undermine the Appellant's credibility when the Appellant was not provided the opportunity to provide explanations for any contradictions between his oral testimony and documentary evidence. Identity [18] According to documents in evidence before the RPD, the Minister provided a Notice of Intent to Intervene on the issues of identity and credibility; the Minister indicated that he would attend the hearing.7 At the outset of the hearing the RPD had a brief conference with the Minister and the counsel for the Appellant during which time the issues for the Appellant's hearing were discussed. The RPD advanced that credibility, including subjective fear, was the issue. The Minister and the counsel for the Appellant concurred. When the hearing then proceeded, the RPD informed the Appellant that the issue for his hearing was credibility, including subjective fear. Later in the hearing the RPD added the issue of internal flight alternative. At one point in the hearing the counsel for the Appellant stated that the Minister had no issue with identity. No comment was made to this statement either by the RPD or by the Minister. The counsel for the Appellant also indicated that there had been no issue with identity when counsel indicated that there was a witness who could provide evidence regarding identity. The RAD, thus, finds that identity was not put forth as an issue at the hearing. According to the recording of the hearing no questions were put to the Appellant regarding his identity. Nevertheless, the RPD found that the Appellant did not establish identity. The RAD finds this to have been a denial of natural justice. [19] The RAD finds that the RPD's credibility findings are insufficient to impeach the Appellant's testimony that he is a Somali at risk from the Al Shabaab. On the basis of the totality of the evidence, the RAD finds that the RPD's overall determination cannot be confirmed. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [20] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant (Appellant). Section 110(4) of the IRPA 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 the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [21] The Appellant submitted the following new evidence with her Appellant's Record. a) An e-mail and an affidavit from XXXX XXXX XXXX, both dated XXXX XXXX, 2015, with accompanying translations.8 b) Two Statutory Declarations from XXXX XXXX, dated XXXX XXXX, 2015 and XXXX XXXX, 2015, and the Appellant's Statutory Declaration, dated XXXX XXXX, 2016, regarding the Appellant's fluency in the May May language, plus a UNHCR document regarding the May May language.9 [22] The RAD is following the guidance in the Federal Court of Appeal decision of Singh, 2016 FCA 96, on March 29, 2016, in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). In assessing whether the proposed new evidence meets the statutory provisions of section 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim.10 i. The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.11 ii. It is important to note here that section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. iii. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and the materiality of the document.12 b) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,13 or that it proves a fact that was unknown to the Appellant at the time of the hearing?14 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. c) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.15 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility and relevance of the evidence. [23] If the proposed new evidence meets the tests set out in the statutory requirements and, subject to the necessary adaptations, the FCA's considerations in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be only considered in the context of the assessment made under section 110(6) of the IRPA. [24] In the case at hand, with regard to document a), an affidavit from XXXX XXXX XXXX, the Appellant argues that the evidence was not reasonably available at the time of his hearing because he did not anticipate that identity would be an issue. The Appellant argues that this belief was reasonable in view of the decision in his U.S. asylum claim in which his identity was accepted. The Appellant further argues this is why he contacted XXXX XXXX XXXX, the affiant, after the decision was rendered by the RPD. [25] The Appellant provides the same argument regarding document b). In addition, he pleads that he reasonably indicated in his BOC form that he is proficient in Somali without mentioning the May May language because he considered the Somali language includes both Mahatiri and May May. [26] For the reasons found in the following two paragraphs, the RAD finds that the Appellant could not reasonably have been expected in the circumstances to have presented the evidence, documents a) and b), prior to the rejection of his refugee claim. [27] Documents from the Appellant's claim for asylum in the U.S. were provided as evidence before the RPD.16 The U.S. authorities found that the Applicant's "identity was determined with a reasonable degree of certainty" based upon the Applicant's "credible statements". In its reasons, the RPD appears not to have considered this finding in its reasons and the RPD ought to have done so. [28] The RAD, above, has found it to have been a denial of natural justice to find that the Appellant had not established his identity. [29] The section 110(4) test requires the RAD proceed to assess the newness, credibility and relevance of the evidence. Since establishing the Appellant's identity cannot, on its own, establish the overall credibility of the Appellant's allegations, the RAD finds that the new evidence does not meet the requirements of section 110(4). Request for an oral hearing [30] The Appellant requests that an oral hearing be held under subsection 110(6) of the IRPA to explore the issue of identity. [31] The RAD may only convene an oral hearing if there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Here the RAD has rejected the new evidence because establishing the Appellant's identity would not, on its own, establish the overall credibility of the Appellant's allegations. Therefore, the RAD denies the request for an oral hearing. DISPOSITION AND REMEDY [32] Section 111(1) of the IRPA allows the RAD to: (a) confirm the determination of the RPD; (b) set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made; or (c) refer the matter back to the RPD, giving the directions to the RPD that it considers appropriate. [33] The RAD can make the referral described in 111(1)(c) only if it was of the opinion that the decision of the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.17 [34] The Appellant asks the RAD to substitute its own determination that he is a Convention refugee. The RAD is not in a position to do so. The RAD finds that there remain credibility concerns which were not properly addressed by the RPD. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. CONCLUSION [35] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason July 27, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c.27, at s. 111(1)(c). 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit RPD-1, RPD Record, pages 72-84. 4 Exhibit RPD-1, RPD Record, pages 14-26. 5 Exhibit RPD-1, RPD Record, pages 72-84. 6 Exhibit RPD-1, RPD Record, page 81. 7 Exhibit RPD-1, RPD Record, pages 113-115. 8 Exhibit P-2, Appellant's Record, pages 53-60. 9 Exhibit P-2, Appellant's Record, pages 61-67. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 13.3(a). 11 Raza, para. 16. 12 Raza, para. 13.5(b). 13 Raza, para. 13.5(a). 14 Raza, para. 13.3(b). 15 Raza, para. 13.5(a). 16 Exhibit RPD-1, RPD Record, pages 72-84. 17 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07821