TB5-08073

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 : TB5-08073 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 19, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Clarisa Waldman 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] The Appellant, XXXX XXXX XXXX is a citizen of the Ukraine, and appeals a decision of the Refugee Protection Division (RPD) dated July 9, 2015, rejecting his claim for refugee protection. The Appellant is submitting new evidence but is not requesting a hearing. The Appellant is requesting that the RAD set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD to be heard by a differently constituted panel. BACKGROUND [3] The Appellant fears returning to the Ukraine because of his alleged sexual orientation. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court decision, in Huruglica,1 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. The RPD found that the Appellant was not a credible witness. Merits of the appeal [8] The allegations in this claim are worthy of a story line in a romance novel. It is unfortunate that the decision of the RAD must turn on a technicality which could have been easily averted by the RPD if the panel had not favoured a speedy decision over a fully reasoned decision based on procedural fairness. [9] The RPD hearing was held on two different sittings: March 12, 2015 and May 8, 2015 with the RPD rendering its decision on July 9, 2015. The RPD found that the Appellant was not a credible witness. One of the concerns raised by the RPD in its decision was the fact that the Appellant had stayed in Canada from November 2007 to March 2008 before returning to the Ukraine. Although the RPD did discuss the legal impact of the Appellant's return to the Ukraine, it did not fully canvass the legal implications of the issue of re-availment. [10] At the end of the second sitting, counsel for the Appellant questioned him with respect to his gay activities in Canada. The Appellant testified that, just a week prior to the sitting, he had entered into a relationship with a Mr. XXXX XXXX. Counsel asked the Appellant if XXXX was willing to testify and the Appellant replied that he was. [11] The transcripts of the sitting provided by the Appellant in his Appeal Record are not very clear as to what the intention of counsel was on this point. He does not directly ask the panel that he wanted to call XXXX as a witness but it seems that counsel is content with the RPD deciding whether to call XXXX as a witness. The Appellant's counsel is a member of the Law Society of Canada and therefore an officer of the court. The RAD would never imply that counsel's lack of clear intention as to whether he wanted to call XXXX as a witness was a procedural trap; but the RAD does wonder as to why counsel - an experienced counsel at that - would not make his intentions clear. [12] The ruling of the RPD is also not clear from the transcript. There is no clear indication as to whether the RPD panel is stating that the RPD is not going to call XXXX as a witness or whether the RPD is refusing a request from counsel - which again the transcripts don't show that counsel made such a request - that he wants to call XXXX as a witness. It is important to note that the transcripts do not indicate whether XXXX was present in the vicinity of the hearing room during the second sitting. The transcripts also do not indicate that counsel objected to the ruling of the RPD. [13] The RPD does allow counsel to submit an affidavit sworn by XXXX as post hearing evidence along with written submissions by counsel. The RPD does accept the affidavit as post hearing evidence but rejects its contents. In his written submissions to the RPD, counsel does not make any objection to the ruling of the RPD with respect to XXXX testifying at the oral hearing. [14] However, things change once a negative decision was rendered by the RPD. In his memorandum to the RAD, counsel now argues that there was a breach of natural justice when the RPD did not allow XXXX to testify. In his written decision, the RPD acknowledges that in his affidavit XXXX does state that he was in the vicinity of the hearing room during the second sitting, ready to testify. [15] Although the RAD finds the actions of counsel surrounding XXXX testimony somewhat chary in that it was only at the end of the second sitting that counsel brings into evidence the existence of XXXX, that counsel's intentions are not very clear as to whether he wanted to call XXXX as a witness, that counsel does not ask for a postponement of the hearing in order to call XXXX as a witness, that he does not object to the RPD ruling neither during the second sitting nor in his written submissions to the RPD, the RAD therefore, must allow the appeal not because the RAD believes there is clear cut evidence that natural justice has been breached but because the RAD believes that it is the safest legal course of action. DISPOSITION [16] The RAD will refer the matter back to the RPD to be heard by a differently constituted panel. The new panel is to canvass the issue of reavailment and to afford the Appellant the opportunity to call XXXX as a witness. CONCLUSION [17] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter back to the RPD to be heard by a differently constituted panel. [18] The appeal is allowed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino October 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08073