TB8-01516

RAD File / Dossier de la SAR : TB8-01516 Private Proceeding / Huis clos Redetermination of Appeal - Nouvel examen de l'appel Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 16, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal David Matas 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX, allegedly a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and refer the matter back to the RPD for redetermination. He has presented new evidence in support of his appeal. He has requested an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers the matter back to the RPD for redetermination before a differently constituted panel. The appeal is allowed. BACKGROUND [3] In XXXX, 2012, the appellant travelled to the United States (USA) via Ethiopia. The appellant was sponsored to the USA by his wife, an American citizen. They had married in 2010. The appellant obtained a valid Green Card. In 2015, the appellant and his wife divorced. [4] In XXXX 2017, the appellant travelled to Canada via an unmarked border crossing near Emerson, Manitoba. Upon questioning by authorities, he initiated a claim for refugee protection alleging a fear of persecution by his ex-wife's family/clan, members of the larger Isaaq clan group. The appellant alleged he was born in Burao, Somalia and that he is a member of the minority Gaboye clan. He alleged that his Green Card is expired. [5] The appellant's claim before the RPD took place on November 17, 2017. By a decision dated November 27, 2017, the RPD rejected the claim finding the appellant had a viable internal flight alternative (IFA) in Erigavo, Somaliland. [6] The appellant appealed the negative decision to the RAD arguing the RPD erred by making "faulty assumptions, unsound reasoning and manifold errors" in its analysis and findings. In a decision of October 5, 2018, the RAD dismissed the appeal. The panel notes the appellant's Rule 29 Applications by new counsel were also dismissed. In this regard, the appellant was variously represented by Bashir Khan and then David Matas. Both counsels have since undertaken not to represent clients before the Board. The panel further notes Bashir Khan represented the appellant before the RPD. [7] The appellant then sought judicial review of the RAD's decision on a number of grounds, including the RAD's complete mischaracterization of the RPD's identity and credibility findings. In a decision of January 14, 2019, the Federal Court allowed the application and returned the matter to the RAD for re-determination before a differently constituted panel. The Court's decision was on the consent of all the parties. ANALYSIS [8] Pursuant to the Federal Court of Appeal's (FCA) decision in Huruglica,2 the RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard. New Evidence [9] In January 2019, the RAD Registry invited additional submissions from the appellant in response to the Federal Court's decision. In response to the RAD's invitation, the appellant submitted personal documents, as well as his submissions before the Federal Court. [10] The RAD has reviewed and assessed the proposed documents. The RAD accepts that he could not have reasonably been expected in his particular circumstances to obtain and present these updated documents to the RPD. The RAD also finds the new evidence meets the requirements as established in the Raza3 decision, subject to the necessary adaptations in the context of the RAD. The RAD has accordingly admitted the documents as new evidence. Oral Hearing [11] The panel has considered holding an oral hearing in an effort to provide a final determination of this claim. However, the panel finds it is unable to do so because the appellant's new evidence is not determinative of the claim before the RAD. The request for hearing is therefore dismissed. Merits of the Claim [12] The RPD concluded the appellant and his allegations were credible based primarily upon the presumption of truthfulness. Upon its own review of the record, the panel does not agree. For example, the panel has concerns with the appellant's apparent lack of subjective fear and also whether there is any continuing risk to him by his former in-laws etc. The RPD failed to test these issues and/or demonstrate that it did so. Without the benefit of hearing oral evidence on these issues, the RAD is of the opinion that it cannot provide a final determination of this claim. [13] The panel furthermore notes the appellant failed to provide his current status in the USA to the Board. It is his onus to do so, particularly in response to the Minister's prima facie evidence presented to the RPD. The appellant is thus instructed to provide his current status in the USA to the RPD, as well as to outline his efforts (with corroboration) to renew his Green Card. This is relevant to the Article 1E issue. CONCLUSION [14] Pursuant to paragraph 111(1)(c) of the Act, the RAD sets aside the determination of the RPD and refers this matter back to the RPD for redetermination before a different member. [15] This appeal is allowed. (signed) "D. Goff" D. Goff January 16, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-01516 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français