TB6-03423

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 : TB6-03423 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 6, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor 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") alleges to be a citizen of Somalia. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant submits that if the Refugee Appeal Division (RAD) were to have been satisfied as to the identity of the Appellant, then he ought to be determined as a protected person or a Convention refugee due to his membership in a minority clan and risk of harm from Al-Shabab. In the alternative, the Appellant asks the RAD to refer the claim back to the RPD for re-determination. [3] The Appellant is relying on new evidence pursuant to section 110(4), and he is requesting an oral hearing pursuant to section 110(6) of the Immigration and Refugee Protection Act (IRPA or Act).1 [4] The Minister is not intervening in the appeal. DETERMINATION [5] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for re-determination by a differently-constituted panel. BACKGROUND/ALLEGATIONS [6] The Appellant fears returning to Somalia due to his minority clan status and risk of harm from Al-Shabab. [7] The Appellant is from the XXXX clan. The Appellant alleged that XXXX clan members are frequently persecuted by other Somali clans; they have no protection because XXXX clan has no militia to protect its members. [8] The Appellant fears a risk of harm from Al-Shabab because Al-Shabab has accused them of spreading Western values. The Appellant XXXX XXXX XXXX, assisted by his brother. They XXXX XXXX and XXXX XXXX, and XXXX XXXX in their XXXX. On XXXX XXXX, 2012, some Al-Shabab men came to the Appellant's XXXX where he and his brother were sleeping. The Al-Shabab men threatened to burn them alive for spreading Western values. The Appellant and his brother jumped out the window and ran away. The Al-Shabab started to shoot at them; the Appellant's brother was shot down and killed that day. [9] The Appellant went to his uncle's house; the next morning, his uncle arranged for him to flee Somalia and go to Ethiopia. The Al-Shabab went to his home to look for him. Thereafter, the Appellant's family fled Somalia, and went to Kenya. [10] The Appellant's uncle sold the Appellant's family property and sent the proceeds to the Appellant. The Appellant hired a smuggler to take him to the United States of America (U.S). Travelling through several countries in South and Central America, the Appellant arrived in the U.S. on XXXX XXXX, 2013. The Appellant filed his claim for asylum in the U.S. The officer who interviewed him found that the Appellant had credible fear. The immigration judge, however, denied his asylum claim and Withholding of Removal order. Thereafter, the Appellant was moved to a detention centre; he was later released on XXXX XXXX XXXX 2014. [11] On XXXX XXXX, 2014, the Appellant crossed the U.S. - Canada border; the Appellant was picked up by the police and taken to Winnipeg where he filed his claim for refugee protection. [12] The Appellant's application for refugee protection was heard on February 8, 2016. In the decision dated February 23, 2016, the RPD rejected the claim. The RPD found that the Appellant had failed to establish his identity; therefore, the RPD rejected the claim. [13] The Appellant submits that the RPD erred in finding that he had not established his identity as a national of Somalia. ADMISSIBILITY OF NEW EVIDENCE SUBMITTED ON APPEAL [14] The Appellant submitted new evidence pursuant to section 110(4) of the IRPA. [15] The following new evidence was submitted by the Appellant at the RAD: a. Appellant's affidavit2 b. Translated copy of a notarized letter from XXXX XXXX XXXX3 c. Translated copy of a notarized letter from XXXX XXXX XXXX4 d. Translated copy of a notarized letter from XXXX XXXX XXXX XXXX5 e. Affidavit from XXXX XXXX XXXX and his refugee claim documents6 [16] The RAD Rule 3(3)(g)(iii) directs Appellants to include an explanation of how the documentary evidence submitted to the RAD meets the requirements of section 110(4) of the IRPA. The Appellant has provided an explanation regarding why his new evidence should be allowed at the RAD.7 Appellant's affidavit8 [17] The RAD notes that portions of the Appellant's affidavit address the Appellant's evidence submitted/adduced at the RPD, and the related issues with the RPD's decision and reasons. The affidavit does not include any facts that arose after the RPD hearing. The affidavit includes the Appellant's explanation for the provision of new evidence which the RAD considers as part of his explanation of how the documentary evidence submitted to the RAD as his alleged new evidence meets the requirements of section 110(4) of the IRPA. The RAD finds that the Appellant's affidavit in and of itself does not meet the requirements of new evidence pursuant to section 110(4) of the IRPA. Therefore, the RAD does not accept the Appellant's affidavit as new evidence. Affidavits of XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX9 [18] The Appellant submitted undated affidavits of XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX. The RAD finds that these affidavits pertain to incidents that occurred prior to the rejection of the Appellant's claim. [19] The RAD finds that the affidavits from XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX nor do not meet the requirements of section 110(4) of the IRPA. [20] The RAD finds that the affidavits are undated and the information contained in them arose prior to the rejection of the claim. The RAD finds the Appellant's explanation for not submitting these additional documents at the rejection of the claim unsatisfactory. The Appellant submitted that he believed the document from his mother that he submitted at the RPD would have been sufficient. The RAD finds that the Appellant's identity was an issue at the RPD. The RAD finds that neither the Appellant nor his counsel asked the RPD for permission to submit post-hearing documents in support of the Appellant's identity. [21] Further, the Appellant has not provided a satisfactory explanation regarding if the above evidence was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented this evidence, at the rejection of his claim. [22] Based on the above reasons, the RAD finds that these affidavits do not meet the requirements of section 110(4) of the IRPA. The RAD does not accept these as new evidence. Affidavit from XXXX XXXX XXXX and his refugee claim documents10 [23] The Appellant submitted the affidavit of XXXX XXXX XXXX dated XXXX XXXX XXXX 2016 and documents relating to his refugee claim in Canada. The Appellant's RPD decision is dated February 23, 2016. This affidavit was created on XXXX XXXX, 2016; in this respect, the RAD finds that the document arose after the rejection of the Appellant's claim. The RAD finds that the content reported therein, however, did not arise after the rejection of the Appellant's claim. Nonetheless, in consideration of the Appellant's submissions in that he did not think that his being in Brazil was important to his claim, the RAD accepts this evidence because the Appellant could not have reasonably been expected to present this evidence at the rejection of his claim. [24] The RAD finds that the Appellant's proposed new evidence, i.e., affidavit from XXXX XXXX XXXX and his refugee claim documents, satisfies the criteria set out in section 110(4) of the IRPA. The RAD accepts these documents as new evidence. APPLICATION FOR AN ORAL HEARING [25] The Appellant requests that the RAD hold a hearing pursuant to subsection 110(6) of the IRPA.11 Section 110(3) of the 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) of the IRPA, 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. When read together, however, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal 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. [26] The Appellant submitted several documents as his alleged new evidence pursuant to section 110(4) of the IRPA. The RAD has admitted some of his evidence, i.e., affidavit from XXXX XXXX XXXX and his refugee claim documents. The RAD cannot hold an oral hearing because the evidence admitted does not meet the final prong of the criteria in section 110(6) of the IRPA; i.e., if the RAD were to hold a hearing to assess the credibility of the new evidence admitted, it would only go towards establishing the identity of the Appellant and it would not justify allowing or rejecting the Appellant's refugee protection claim. Since the RPD did not assess the merits of the Appellant's claim against Somalia, the RAD would have to re-hear the Appellant's entire refugee claim in order to make the determination of his claim, which is not the role of the RAD. [27] Therefore, the Appellant's request for an oral hearing is denied. ANALYSIS Role of the RAD [28] The Canadian jurisprudence 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 the RPD, a first-level administrative tribunal. [29] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica12 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [30] In closing, Justice Gauthier wrote: 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 [31] Justice Gauthier rejected the high level of deference (measured by "palpable and overriding error") found in the Supreme Court of Canada (SCC) decision in Housen v. Nikolaisen 2002 SCC 33. Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: "[In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD."14 [32] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not in issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.15 [33] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's 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, the matter will be referred back to the RPD for re-determination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. RPD's findings and the RAD's assessment [34] The RPD found that the Appellant was not a credible witness. The RAD finds that the crux of the RPD's negative credibility findings focused on the Appellant's failure to establish his identity as a national of Somalia. The RPD did not make viable findings on the merits of the claim, i.e., his fear of persecution as a member of the minority XXXX clan and/or his fear of harm at the hands of Al-Shabab. [35] Appellant's identity: The RAD finds that the RPD erred by failing to provide transparent and intelligible reasons for some of its identity-related findings. For example, referring to the documentary evidence submitted by the Appellant, the RPD's reasons for its findings are unclear. The RPD wrote: To the extent that the letter from the Somali Immigrant Aid Organization can corroborate the claimant's clan membership based on his language, the panel accepts the following statement in the letter (without accepting everything in the letter): "(...) we have confirmed with XXXX XXXX who is XXXX clan member that Mr. XXXX XXXX XXXX is a XXXX from Somalia." The panel finds on a balance of probabilities that the claimant is in fact a member of the XXXX clan because of these reasons. However, in light of the panel's numerous negative credibility findings, the panel does not believe on a balance of probabilities that the claimant is from Somalia.16 [36] The RAD finds that the RPD does not clarify why it accepts only parts of the observations identified in the letter other than saying that "..., in light of the panel's numerous negative credibility findings, the panel does not believe on a balance of probabilities that the claimant is from Somalia". In this respect, the RAD finds the Appellant's argument to be meritorious.17 [37] The Appellant submits that the RPD failed to consider the affidavit of XXXX XXXX XXXX18 (the Appellant's biological mother). In reviewing the RPD's reasons, it is clear that the RPD did not consider this affidavit in making its determination that the Appellant has failed to establish his identity as a citizen of Somalia. The RAD finds that the RPD erred by not considering this documentary evidence. The document is a relevant and significant piece of evidence, which was submitted to corroborate the Appellant's identity and his allegations relating to his risk of harm upon return to Somalia. [38] The Appellant had also submitted documents relating to his asylum claim in the U.S. The RAD finds that the identity information reported in those documents is consistent with the evidence submitted/adduced at the RPD. The Appellant submits that the RPD erred by failing to take into account that the Appellant's evidence (at the RPD) was consistent with his evidence provided to the American authorities.19 In reviewing the RPD's reasons, the RAD finds that the RPD did not consider the consistency in the Appellant's evidence provided to the RPD and to the American authorities in making its negative credibility findings. The RAD finds this to be an error. The RAD finds that it is incumbent on the RPD to consider all relevant and probative evidence and then provide reasons for not giving it sufficient weight in arriving at its findings, in this case, in making its determination of the Appellant's identity as a citizen of Somalia. [39] Further, the RPD found that the evidence of the identity witness does not overcome the RPD's negative credibility findings regarding the Appellant's identity. In this respect, the RAD finds it unclear as to what the RPD's reasoning and the inferred finding is. The RPD wrote: Even if the claimant was in Somalia in 2006 during the witness' visit, this does not establish the claimant's nationality or his whereabouts with respect to establishing identity before the panel.20 [40] The RAD finds that the RPD failed to account for the totality of the evidence provided by the witness; i.e., the witness' relationship to the Appellant, where the witness saw the Appellant in 2008. The RPD provided no clear reasons as to why it discounted the witness' testimony in establishing the Appellant's identity as a national of Somalia. Therefore, the RAD finds that the RPD made an error by ignoring significant parts of the witness' testimony provided to support the Appellant's identity as a national of Somalia. [41] Despite the above, the RAD finds that the RPD's negative findings relating to the Appellant's failure to provide some documentation corroborating his alleged ties to Somalia and his travel from Somalia to the U.S. and then to Canada is reasonable. For example, the RAD finds it reasonable for the Appellant to have provided some documentation from his uncle regarding the money he had sent to the Appellant from Somalia to Ethiopia. Regardless, the RAD finds that the above-mentioned errors make the RPD determination of the Appellant's identity untenable. [42] Merits of the claim: The RAD finds that the RPD did not duly assess the merits of the Appellant's claim. The RAD, however, notes that the RPD appears to attempt to address the merits of the claim somewhat in one part of its reasons.21 For example, the RPD reviewed and assessed the evidence relating to the XXXX that the Appellant alleged to have XXXX in XXXX. In this respect, the RPD found that the Appellant "was either not XXXX XXXX XXXX in XXXX in 2012, or was not living in XXXX to begin with, or in the alternative, has not been forthcoming with the Board about the opening of the XXXX XXXX."22 The RAD finds that the RPD's findings in this respect cover a wide spectrum, and make the reader wonder/speculate regarding which is the real issue that is being addressed. Moreover, the RAD finds that the findings are reflective of speculative reasoning without providing reasons for individual finding contained therein. Therefore, the RAD finds that the RPD did not assess the merits of the claim. [43] The RAD considered the entirety of the evidence submitted/adduced at the RPD, including the recording of the RPD's proceedings, and the Appellant's Appeal Record, including the Appellant's new evidence admitted at the RAD. The RAD has accepted some of the Appellant's alleged new evidence. The RAD, however, denied the Appellant's application for a hearing to be held at the RAD. [44] The RAD is of the view that even if the RAD were to hold a hearing, and then if the RAD were to accept the Appellant's identity, the RAD would still need to go on and deal with the merits of the claim. As the RPD had already heard evidence as to the merits of the claim (for instance asked about the XXXX he XXXX), it would mean that the RAD would be re-hearing the evidence that the RPD had already heard, which is not the role of the RAD. Therefore, the RAD cannot substitute but must send the matter back to the RPD, pursuant to section 111(1)(c) of the IRPA, for re-determination. [45] For these reasons, the RAD will not substitute its own determination pursuant to section 111(1)(b) of the IRPA, but refers the matter back to the RPD for re-determination. DISPOSITION [46] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for re-determination by a differently-constituted panel. [47] This appeal is allowed. (signed) "S.S. Kular" S.S. Kular July 6, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, p. 11. 3 Exhibit P-2, Appellant's Record, p. 29. 4 Exhibit P-2, Appellant's Record, p. 30. 5 Exhibit P-2, Appellant's Record, p. 31. 6 Exhibit P-2, Appellant's Record, pp. 17-27. 7 Exhibit P-2, Appellant's Record, Appellant's Affidavit, p. 11; Appellant's Memorandum, at paras. 6-12, pp. 32-34. 8 Exhibit P-2, Appellant's Record, p. 11. 9 Exhibit P-2, Appellant`s Record, pp. 12-16, 29-31. 10Exhibit P-2, Appellant`s Record, pp. 17-27. 11 Exhibit P-2, Appellant's Record, pp.32-34. 12 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 13 Ibid., at para. 103. 14 Ibid., at para. 69. 15 Ibid., at para. 70. 16 Exhibit P-2, Appellant's Record, RPD Reasons, at para. 20, pp. 8-9. 17 Exhibit P-2, Appellant's Record, Argument, at para. 52, p. 43. 18 Exhibit P-2, Appellant's Record, Argument, at para. 34, p. 39. 19 Exhibit P-2, Appellant's Record, Argument, at para. 49, p. 43. 20 Exhibit P-2, Appellant's Record, RPD Reasons, at para. 21, p. 9. 21 Exhibit P-2, Appellant's Record, RPD Reasons, at paras. 12-14, pp. 5-6. 22 Exhibit P-2, Appellant's Record, RPD Reasons, at para. 14, p. 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-03423