TB8-17244

RAD File / Dossier de la SAR : TB8-17244 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 26, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Eve Sehatzadeh 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] XXXX XXXX XXXX XXXX (the "Appellant") alleges to be a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The appeal is allowed and referred back to the RPD for redetermination by a differently constituted panel. BACKGROUND AND ALLEGATIONS [3] The Appellant alleges to be a citizen of Somalia. He alleges to be a member of the minority XXXX sub-clan of the XXXX clan and that he practises the Sufi faith. [4] The Appellant's parents were killed by members of the majority Marehan clan when he was young. In 2007, the Appellant's aunt was also killed by members of the Marehan clan. [5] In XXXX 2007, the Appellant went to South Africa. The Appellant's uncle, who was already in South Africa, arranged for an agent to take the Appellant from Somalia to South Africa. [6] The Appellant made a refugee claim in South Africa and was granted temporary refugee protection. While in South Africa, the Appellant experienced more problems with violence. [7] The Appellant then decided to go to the United States (US) in 2015 and made a refugee claim which was rejected. [8] The Appellant then went to Canada, arriving on XXXX XXXX 2016. The Appellant made his refugee claim, which was rejected by the RPD on the grounds he had not established his identity. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [9] In support of this appeal, the Appellant proposed the admission of a number of documents as new evidence. [10] S.110(4) of the Immigration and Refugee Protection Act (IRPA)1 provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. It is for the Appellants to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellants.3 [11] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.4 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.5 XXXX Affidavit accepted [12] Of particular interest is the affidavit of XXXX. XXXX is a Canadian citizen who left Somalia in 1991. She alleges that she is related to the Appellant through the Appellant's father's side of the family. She also alleges to have been present at the Appellant's birth in Somalia. [13] The Appellant was only able to establish contact with XXXX after the RPD decision. This contact was established through another relative, XXXX, who lives in the US. XXXX was going through family difficulties around the time of the RPD Hearing, and could not arrange contact with XXXX until after the RPD Hearing between XXXX and the Appellant. [14] As a result, I find that the affidavit from XXXX meets the requirements of s.110(4) of the IRPA as not being reasonably available. The evidence appears credible on its face, is new for the reason stated above, and is relevant to the issue of identity. [15] I therefore allow the proposed document as new evidence. NO ORAL HEARING [16] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.6 [17] In this case, the new evidence does not carry sufficient weight, that if accepted, can on its own justify allowing or rejecting the refugee claim. This is because even if the issue of identity was satisfactorily addressed, there is insufficient evidence before me to address the merits of the claim, including credibility about the Appellant's account, and whether or not he would face a serious possibility of persecution if he were to be returned to Somalia. I therefore cannot hold an oral hearing as the requirements of s.110(6) are not met. [18] I further note that the other proposed new documents do not address the credibility issue. I will address the other proposed new documents in more detail below. IDENTITY ISSUE [19] One of the central issues in this case is the Appellant's identity, including his identity as a Somali citizen, his clan affiliation as a XXXX sub-clan member, and his Sufi faith. [20] As stated earlier, I cannot hold a hearing on the strength of the accepted new evidence, since even if identity was accepted, the merits of the claim are still outstanding. I have reviewed the RPD Record and Appellant's Record, along with the RPD Hearing Audio. The vast majority of evidence and testimony related to the issue of identity, with very little discussed about the merits of the Appellant's claim. [21] Furthermore, I find that if there was sufficient evidence on the merits of the claim, and the issue of serious possibility of persecution, I would be holding a RAD hearing involving the affiant in the accepted new evidence. [22] As a result of these findings, the only remaining course of action is to refer this case back to the RPD for redetermination by a differently constituted panel. [23] This also means that the other proposed new documents can be admitted for the RPD hearing. I do not need to consider them in this appeal for admissibility, as I do not need them to make this decision to refer the matter back to the RPD. The issue of their admissibility at the RAD stage becomes moot. CONCLUSION [24] Where I am unable to confirm the RPD decision, or set aside the RPD decision and substitute my own decision without hearing evidence presented to the RPD, s.111(2)(c) of the Immigration and Refugee Protection Act (IRPA) allows me to return the case to the RPD for redetermination. [25] Pursuant to s.111(1)(c) of the IRPA, I allow the appeal and refer the matter to the RPD for re-determination by a differently constituted panel. (signed) T. Card T. Card 26 August 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 3 Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 5 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 6 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-17244 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français