TB6-03500

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 : TB6-03500 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 15, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal David Matas 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"), a citizen of The Federal Government of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find him to be Convention refugee or a person in need of protection or refer his claim back to the RPD for re-determination by a differently-constituted panel. Application for an Oral Hearing [2] The Appellant does not request an oral hearing pursuant to section 110 (6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [3] Pursuant to Section 111(1) (c) of Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [4] The Appellant alleged before the RPD that he is a national of The Federal Government of Somalia. The Appellant further alleged that he does not wish to return to Somalia as he fears being persecuted by the major clans as he belongs to a minority clan. The Appellant fled Somalia via Ethiopia to South America, and to the United States of America where he filed a claim for asylum but was rejected, and eventually arrived at the Canadian border. The Appellant made a claim for protection in Canada on XXXX XXXX, 2015. ANALYSIS New Evidence [5] For reasons set out below, the RAD allows this appeal. It is therefore unnecessary to consider or admit the Appellant's proposed new evidence. The Appellant may, of course, submit this evidence to the RPD, in accordance with that Division's rules, prior to the re-hearing of his refugee claim. The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] In the Appellant's submission he argues that two points;1 1) Did the Refugee Protection Division member engage in a faulty analysis of credibility? And, 2) Did the Refugee Protection Division member engage in a faulty analysis of lack of nexus to a Refugee Convention ground and internal flight alternative? [8] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.2 [9] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.3 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD."4 [10] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD should then provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [11] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision by applying a standard of correctness.6 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to choose whether it agrees with the determination of the RPD; if not, then RAD will substitute its own view and provide the correct answer.7 [12] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law, as such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.8 The Federal Court of Appeal, in deliberating the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: "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."9 [13] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident how much deference is owed, and to what findings. As the Federal Court observed in Akuffo, "[T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed."10 [14] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. Therefore, credibility findings which arise from that oral testimony are appropriate of deference, as are other findings of fact based on oral evidence, so are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [15] The RAD notes that not every finding relating to credibility however, warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.11 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.12 [16] The question becomes how much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD 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 a 'palpable and overriding error'."13 This passage has subsequently been endorsed by other decisions of the Federal Court. [17] It is unfortunate that the Federal Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.14 This leads the RAD to believe, this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [18] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 15 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [19] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [20] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [21] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [22] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [23] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Issues of this Appeal [24] Did the Refugee Protection Division member engage in a faulty analysis of credibility? [25] The Appellant argues that the RPD erred in its credibility and failed to provide adequate reasons for its findings. The RPD's Findings [26] Section 96 of the IRPA is clear on who should be considered a Convention refugee. To be considered a Convention refugee, a refugee claimant must have a well-founded fear "...of persecution for reason of race, religion, nationality, membership in a particular social group or political opinion". The existence of a nexus between the alleged persecution and one of the five grounds listed in the definition of "Convention refugee" under section 96 of the IRPA is principally a question of mixed fact and law. Mr. Justice Blanchard in La Hoz16, following a pragmatic and functional analysis, found that the appropriate standard of review for such an issue is reasonableness simpliciter. At paragraph 44 of La Hoz, supra, Blanchard J. states the following: After reviewing the criteria of the pragmatic and functional analysis, I find that, with respect to determining whether there is a nexus between a refugee claim and the persecution grounds under section 96 of the Act, the appropriate standard of review is reasonableness simpliciter. This was Gibson J.'s finding in Jayesekara v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1014. [27] The Appellant argues due to that the acts to which he was subjected to in Somalia, he fears if he returned to Somalia although he belongs to a minority sub clan, there is no guarantee that his sub clan which belongs to a major clan would offer him any protection. The RPD did not agree and found that these acts and his fears, if he returned to Somalia, are not related to his membership in a sub clan, but rather because it did not find him credible as a result of inconsistencies in his testimony. In other words, the RAD interprets that the RPD found that there was no nexus between the fears alleged by the Appellant and the five grounds set out in the Convention. The RPD also found that the Appellant was not a person in need of protection under section 97 of the IRPA. [28] The RPD decision in the case at bar was delivered in an oral context and not written. Oral decisions are not in and of themselves problematic. That being said, procedural fairness requires that decision-makers provide adequate reasons to justify their decisions. In VIA Rail Canada Inc. v. National Transport Agency et al., [2001] 2 F.C. 25 (C.A.), [2000] F.C.J. No. 1685, the Federal Court of Appeal explained the obligation to provide adequate reasons at paragraph 22: [22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.... Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based.... The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out...and must reflect consideration of the main relevant factors.... [29] This case was cited with approval by Mr. Justice Pinard in Zarghami v. Canada (Minister of Citizenshp and Immigration), 2006 FC 151, [2006] F.C.J. No. 215 (QL), to explain the obligation on the Immigration and Refugee Board to provide adequate reasons. Based on VIA Rail Canada Inc., supra, and Zarghami, supra, the RPD in this case had a duty to set out its findings of fact and the principal evidence upon which those findings were based. [30] With regard to the analysis involving section 97 of the IRPA, the RPD's decision appears to meet the duty of procedural fairness to provide adequate reasons. However, the analysis of section 96 of the IRPA leaves lacks a more detailed analysis. [31] The Appellant further argues that in regard to numerous credibility findings, the Panel erred when it failed to provide adequate reasons for its findings. The Appellant sets out numerous examples where they allege the errors were made by the Panel.17 The RAD has reviewed the evidence in these areas and concludes after listening to the audio of the hearing, that the RPD has not provided fulsome and adequate reasons in regards to these findings. It would have been better if the Panel had provided fulsome reasons for why it did not accept or did not find some of the explanations provided by the Appellant credible. The RPD also failed to undertake a more fulsome analysis of the Internal Flight Alternative (IFA)18; it suggested that IFA was an issue at the onset of the hearing. Although counsel made submission on the IFA, they too lacked any reasoning and details.19 As stated above, the RPD has a duty to provide adequate reasons, as such, in the case at bar, this has not been done. The RAD finds the Appellant's argument in this area to be supportable. [32] The RAD after reviewing the totality of the evidence in this area finds that the appropriate standard of review for issues of procedural fairness is correctness as set out in Sketchley.20 Since the duty of procedural fairness to provide adequate reasons was breached in this case, the RAD sets aside in part the decision of the RPD and refer the matter for a rehearing addressing the issues of credibility and internal flight alternative to the Lower Shabelle region. Disposition [33] The Appellant takes issue with other findings in the RPD's decision. In the RAD's view, the failure to provide adequate reasons findings set out above are sufficient to dispose of this appeal. [34] The Appellant asks that the RAD find the Appellant to be a Convention refugee, submitting that it has sufficient credible evidence to determine that he has demonstrated a well-founded fear of persecution. The RAD notes that credibility was and remains a key issue in the Appellant's refugee claim. Despite the lack of adequate reasons discussed above, credibility still remains a concern. The RAD has not seen or questioned the Appellant and therefore is not in a good position to make a credibility determination. For these reasons, the RAD will not substitute its own determination for the RPD's unsupportable decision but will instead refer the matter back to the RPD with instructions to address the issues of credibility and internal flight alternative to the Lower Shabelle region. CONCLUSION [35] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. [36] This appeal is allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho April 15, 2016 Date 1 Exhibit P-2, Appellant's Record, Memorandum of Appellant, at p. 21, paras 7-8. 2 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 3 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14-18. 5 Huruglica: M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Huruglica, FCA, para. 70. 9 Huruglica, FCA, para. 74. 10 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 11 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 12 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, which decision contains a thorough discussion of the drawing of inferences.) 13 Huruglica, Federal Court, para. 55. 14 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 15 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 16 La Hoz v. Canada (Minister of Citizenship and Immigration), 2005 FC 762, [2005] F.C.J. No. 940 (QL) 17 Exhibit P-2, Appellant's Record, pp. 22-23, paras 16-21. 18 RPD audio hearing, 01:08:11 - 01:10:36 19 RPD audio hearing, 02:03:33 - 02:03:46 20 Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (QL) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :