MB5-03511

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 : MB5-03511 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 12, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Claudette Menghile 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 [1] The appellant, XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he is not a refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant's memorandum did not include any new evidence in support of the appeal. On April 5, 2016, the appellant submitted documents to the Refugee Appeal Division (RAD) that had not been previously submitted. On April 8, 2016, he submitted a request to the RAD in accordance with rules 29 and 37 of the Refugee Appeal Division Rules (RAD Rules). [3] In his memorandum, he is requesting that the RAD allow the appeal, set aside the RPD determination and refer the matter to the RPD for re-determination by a differently constituted panel. In his request from April 8, 2016, the appellant is asking for a hearing before the RAD. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD determination. An error of law was committed and the RAD is unable to substitute a determination that, in its opinion, should have been made unless a hearing is held. The refugee protection claim is referred to the RPD for re-determination by a differently constituted panel. [6] The appeal is allowed. BACKGROUND [7] In his Basis of Claim Form, the appellant states that he is originally from XXXX, Cameroon. He alleges a well-founded fear of persecution because he was chosen XXXX XXXX XXXX XXXX XXXX XXXX in accordance with tradition. Given his Christian beliefs, the claimant refused to become the XXXX XXXX, which is why he fled Cameroon. [8] He alleges that after he was informed, in XXXX 2014, that he had been chosen XXXX XXXX XXXX to be XXXX XXXX XXXX, he hid at an aunt's house but was found and taken by force to the village. After being detained for five days in very precarious conditions, he was driven outside of the village where he had to participate in rituals that would culminate with his coronation. He managed to flee and, with the help of a priest, he obtained a Canadian visa. [9] The claimant arrived in Canada on XXXX XXXX, 2015. He claimed refugee protection shortly after his arrival. Impugned decision [10] On July 20, 2015, the RPD rendered its decision, stating that the claimant is a credible witness; his testimony was clear, spontaneous and detailed. However, the RPD rejected the refugee protection claim, concluding that the claimant "failed to establish, on a balance of probabilities, that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment should he relocate to Douala or Yaoundé". GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [11] The appellant submits that the RAD must respond to the following three questions:1 ? Did the RPD err in law by analyzing the appellant's case under section 97 of the IRPA instead of section 96 of the IRPA? ? Did the RPD violate the principles of natural justice and procedural fairness by failing to consider a significant portion of the documentary evidence submitted by the appellant? ? Did the RPD err in law by concluding that there is an internal flight alternative? [12] To begin, the appellant submits that the RPD erred in law by failing to analyze his refugee protection claim under section 96 of the IRPA and, in particular, his membership in a particular social group-family-and his religion. In his opinion, that error had a [translation] "considerable impact on the burden of proof," which differs depending on whether the claim is made under section 96 or 97 of the IRPA.2 [13] Second, the appellant submits that by failing to consider several pieces of documentary evidence, the RPD did not respect the principles of natural justice. More specifically, the RPD failed to consider exhibits P-2, P-3 and P-4, which demonstrate that the appellant is [translation] "still being sought." The failure to consider those evidentiary documents means that the RPD erred in its assessment of the evidence and concluded that the appellant [translation] "is not being sought by his XXXX XXXX and that their interest in trying to find him seems low."3 [14] The final issue raised by the appellant refers to the internal flight alternative (IFA). The appellant agrees that, no matter what the angle used in its analysis, the RPD must [translation] "be satisfied, on a balance of probabilities, that an internal alternative is available." However, referring to Federal Court statements in Thirunavukkarasu,4 the appellant argues that it was incumbent upon the member to determine whether there is a serious possibility of persecution in Douala and Yaoundé.5 [15] To conclude, he argues that the IFA analysis is flawed and that it [translation] "is unable to assess whether there is truly an IFA available in the two villages mentioned. The only criterion used by the member was that of the population density in those cities which, in her opinion, made it unlikely that he would be found."6 The appellant also submits that the [translation] "second prong of the IFA test, whether it would be 'unduly harsh to expect the claimant to move to another, less hostile part of the country,' was not addressed by the member."7 ADMISSIBILITY OF NEW EVIDENCE Documents not previously provided [16] On April 5, 2016, the appellant submitted to the RAD five (5) documents that had not been previously submitted with the memorandum. On April 8, 2016, he submitted a request in accordance with rules 29 and 37 of the RAD Rules in order to obtain authorization to use documents that had not been previously provided. [17] The following documents were submitted: 1. letter from the appellant's wife, dated February 11, 2016; 2. letter from a friend of the appellant's, dated February 9, 2016; 3. certificate of divorce from his wife and certificate of non-appeal; 4. article from XXXX XXXX, 2016, titled XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, from the Internet, dated February 24, 2016. [18] The provisions of subrule 29(4) of the RAD Rules state the following: In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [19] In the affidavit in support of his appeal, the appellant states that his mother was killed by his agents of persecution. He states that the documents submitted in support of his request are relevant because they confirm that [translation] "the appellant is being sought and his life is in danger because of the individuals who killed his mother."8 The appellant states that he just recently learned of those facts. The letters from his wife and his friend are being submitted to corroborate his statements. His mother's death was also reported in an Internet article dated February 24, 2016. [20] Having reviewed the documents, I am of the opinion that they meet the requirements set out in subrule 29(4) of the RAD Rules, although at this point, I conclude that the fourth document has little probative value as it appears to be a blog and I have no information about who wrote the article. Subsection 110(4) of the IRPA [21] Subsection 110(4) of the IRPA states 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. In Canada (Citizenship and Immigration) v. Singh,9 the Federal Court of Appeal states: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. [22] According to Justice De Montigny: [34] There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [23] With respect to the criteria set out in subsection 110(4) of the IRPA, Justice De Montigny also states: [35] These conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal "may present only" (" ne peut présenter ") evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD's record (s. 110(3)) and must for that reason be narrowly interpreted. (emphasis added) [24] The documents submitted on April 5, 2016, meet the legislative test. In fact, they are dated after the claim was rejected and address facts that took place after the claim was rejected. The claimant could not reasonably have been expected to submit these documents because the facts outlined in them took place after his refugee protection claim was rejected. Holding a hearing [25] In Singh,10 the Federal Court of Appeal recalls the principle according to which the RAD proceeds without a hearing. According to the Court, this principle "is subject to an exception only where the documentary evidence '(a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) is central to the decision with respect to the refugee protection claim; and (c) if accepted, would justify allowing or rejecting the refugee protection claim.'" [26] In the matter at hand, it is worth noting that the credibility of the individual involved (the refugee protection claimant) was not called into question by the RPD. Therefore, the RAD will not hold a hearing. Nevertheless, the documents submitted are crucial to assessing whether an IFA exists, which is why this matter is being referred to the RPD for re-determination by a differently constituted panel. THE RAD'S ROLE AND FUNCTIONS [27] The RAD's role when reviewing RPD decisions has resulted in differing opinions at the Federal Court, hence Justice Phelan's certified question in Huruglica,11 which is as follows: What is the scope of the Refugee Appeal Division's review when considering an appeal of a decision of the Refugee Protection Division? [28] On March 9, 2016, the Federal Court of Appeal issued a ruling in Huruglica12 regarding the applicable standard of review when the RAD reviews RPD decisions. With respect to the certified question, Justice Gauthier states: [24] With respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative to this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA. [29] On behalf of the Court of Appeal, Justice Gauthier reformulated the question as follows: [106] Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? [30] The Court of Appeal, interpreting the statutory provisions and pointing out in passing the reasons for the RAD's implementation, states: [44] I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers.... In fact, as will be explained, it is my view that the legislative intent is not ambiguous. ... [98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness. [31] Justice Gauthier describes in passing the similarities and the differences between the powers of the RPD and the RAD. She notes, among other things, that the RAD rarely holds hearings. Addressing the provisions set out in subsection 111(2) of the IRPA, the Court of Appeal points out that the RAD may refer a decision that is erroneous in fact, in law, and in mixed fact and law. According to the Court: [61] ...[t]he applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal.... [32] Moreover, the Court recognizes the following: [70] 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 credibility or weight to be given to the oral evidence it here. 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. [33] Having pointed out examples of such situations, the Court declares as follows: [74] 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. [34] In response to the certified question reformulated by the Court of Appeal, the Honourable Justice Gauthier holds as follows: [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 or 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 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. [35] In Singh,13 a decision of the Court of Appeal rendered shortly afterwards, Justice De Montigny, on behalf of the Court, states that the RAD's mandate is broad. It "may intervene to correct any error of fact, of law, or of mixed fact and law." He also states the following: "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." ANALYSIS Merits of the appeal [36] The appellant correctly identified the issues. I will now address the three questions raised in his memorandum. [37] It is worth remembering that the RPD did not call into question the fact that-as a matter of tradition or the cultural norms in his community-the refugee protection claimant became the head of the family after his father's death. His credible testimony also established that [translation] "[h]is family, XXXX, is one of a group of the three families to which the title and role of XXXX XXXX XXXX XXXX XXXX is transferred."14 The member clearly indicated that credibility was not an issue. [38] The appellant alleges that the RPD erred by failing to analyze his claim under section 96 of the IRPA, which means that it erred in its assessment of an IFA. Failure to conduct an analysis under section 96 of the IRPA [39] The failure to conduct an analysis under sections 96 or 97 of the IRPA is a question of law that does not require any deference to be shown to the RPD. In Kandel, the Federal Court states that the fact that a decision-maker does not rule on one of the grounds could, in some cases, constitute a failure to exercise its jurisdiction.15 What is more, the Federal Court also ruled that a separate analysis of the two sections is not always necessary.16 The question of whether the failure to conduct a separate analysis constitutes an error depends on the particular circumstances of each case.17 [40] In the matter at hand, I am of the opinion that the facts on record allow for an analysis under section 96 of the IRPA on the ground of religion. Here is the basis for my reasoning. [41] In Syndicat Northcrest,18 the Supreme Court states: In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to his or her self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. [42] Freedom of religion also includes the freedom not to be forced to practice or adopt rites that are contrary to our beliefs. Even though the decision was rendered in the context of interpreting the Charter of Human Rights and Freedoms, in Mouvement laïque québécois v. Saguenay (City),19 the Supreme Court also states: ...freedom of conscience and religion protects the right to entertain beliefs, to declare them openly and to manifest them, while at the same time guaranteeing that no person can be compelled to adhere directly or indirectly to a particular religion or to act in a manner contrary to his or her beliefs. [43] According to the Supreme Court, the protections guaranteed by the Charter: ...are not limited to religious beliefs. The freedom not to believe, to manifest one's non-belief and to refuse to participate in religious observance is also protected. [44] In the matter at hand, the appellant states that he is Catholic and that his Christian beliefs do not allow him to accept the title of XXXX XXXX XXXX XXXX and adhere to the rules associated with it. Those statements were not called into question by the RPD. Considering that freedom of religion also includes the freedom to refuse to submit to beliefs to which you do not adhere, I am of the opinion that the refugee protection claim must be analyzed under section 96 of the IRPA on the [translation] "ground of religion". [45] I note that during the RPD hearing, the claimant's lawyer argued that there is a "serious possibility of persecution" in the areas identified as potential IFAs. That is the test that must be applied when a refugee protection claim is based on one of the grounds set out in section 96 of the IRPA. In fact, in Rasaratnam,20 the Federal Court of Appeal establishes the criteria to be applied when assessing an IFA. With respect to the first prong, the Court states: "...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA" (emphasis added). [46] Considering the arguments presented, it appears to me as though the RPD should have indicated in its reasons why this is not the test to be applied. I am of the opinion that, in failing to analyze his claim under section 96 of the IRPA or to explain why section 96 of the IRPA does not apply, the RPD committed an error that justifies having the decision reviewed by another panel. IFA [47] The RPD concluded that there is an IFA available to the refugee protection claimant in Douala or Yaoudé. In its analysis, the RPD took into consideration the fact that his wife, mother and children had not been bothered since "they left for his wife's maternal village" and that the appellant did not know or had not heard of XXXX XXXX XXXX or XXXX XXXX XXXX visiting his family members in order to find out where he was hiding. Therefore, the RPD concluded that "their interest in trying to find him seems low." It also took into account the fact that the proposed cities are densely populated and therefore that it is "very unlikely" that he would be found. [48] It has been established by case law that an IFA must meet two criteria: the proposed IFA must be safe and it must not be objectively unreasonable for the claimant to seek refuge there. With respect to the second prong of the IFA, it must be determined whether, in light of the circumstances of the case, it would be objectively unreasonable for the claimant to seek refuge in the proposed locations. [49] In this case, I am of the opinion that the RPD's reasoning concerning the IFA, particularly the second prong, is insufficient. In fact, although the RPD is presumed to have assessed all the evidence before it and the failure to mention one element in particular does not mean it has not been assessed,21 in the matter at hand, the appellant submitted Exhibit P-3,22 a letter dated and signed in June 2015 by a village elder of XXXX, which states that members of the appellant's tribe are looking for him. In addition, he submitted as P-423 a letter from June 2015, which indicates that his wife and children are being cared for by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In light of the importance of these documents and their relevance in determining whether an IFA exists, the RPD, in my opinion, is required to comment on them in its decision. [50] These reasons are, in my opinion, sufficient to conclude that the RPD decision contains errors justifying the RAD's intervention. Although legislative provisions allow the RAD to substitute a determination that, in its opinion, should have been made, in the matter at hand, that is not possible without holding a hearing in order to question the appellant. CONCLUSION [51] Consequently, the RAD sets aside the RPD determination to the effect that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. As it is unable to substitute a determination without holding a hearing, the RAD refers the refugee protection claim to the RPD for re-determination by a differently constituted panel. [52] The appeal is allowed. Maria De Andrade Me Maria De Andrade April 12, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, page 12. 2 Appellant's memorandum, page 13. 3 Appellant's memorandum, pages 15 and 16. 4 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), (C.A.), [1994] 1 F.C. 589. 5 Appellant's memorandum, page 14. 6 Appellant's memorandum, page 17. 7 Appellant's memorandum, page 17. 8 Pages 2 to 9 from a fax received by the Refugee Appeal Division on April 5, 2016. 9 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 10 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 11 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 12 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 13 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 14 Refugee Protection Division (RPD) record, page 4, para. 3 of the decision. 15 Kandel v. Canada (Minister of Citizenship and Immigration), 2014 FC 659. 16 Ndegwa v. Canada (MCI), 2006 FC 847; Soleimanian v. Canada (MCI), 2004 FC 1660; Brovina v. Canada (MCI), 2004 FC. 17 Kandiah v. Canada (Minister of Citizenship and Immigration), 2005 FC 181. 18 Syndicat Northcrest v. Amselem, 2004 SCC 47, para. 39. 19 Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, paras. 69 and 70. 20 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706; Federal Court of Appeal No. A-232-91. 21 K.L. v. Canada (Minister of Citizenship and Immigration), 2009 FC 95. 22 Appellant's memorandum, page 127. 23 RPD record, pages 128 and 129. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03511 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-03511 2 RAD.25.02 (7 février 2014) Available in English