TB5-03224

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 : TB5-03224 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 XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 1, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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 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 the Refugee Appeal Division (RAD) to set aside the determination of the RPD and refer the matter back to the RPD for re-determination by a different panel, or set aside the determination of the RPD and substitute that decision with one of its own finding that the Appellant is a Convention refugee or a person in need of protection. Further, if the RAD raises a serious credibility issue, the Appellant seeks an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant alleged before the RPD that he will be targeted by Al Shabaab due to his ethnicity as a member of the minority clan, XXXX. The Appellant's father and two brothers were killed on or about XXXX XXXX, 2014, presumably due to their work with Non-Governmental Organizations (NGOs) and for their support of the Somali government, presumably by Al Shabaab. Further details are available in the Appellant's Basis of Claim (BOC) form.1 [4] The Appellant's application for refugee protection was heard on December 5, 2014. A negative decision was rendered on February 26, 2015. The RPD found that there were credibility issues identified and there was a viable Internal Flight Alternative to Mogadishu or to Kismayo. [5] The Appellant submits that the RPD has made references in the Reasons and Decision2 to erroneous facts that were never asserted by the Appellant in his evidence, nor stated in his testimony. The Appellant submits that the number of factual errors suggests that the panel mistook the Appellant's claim with the claim of another refugee claimant. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant "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." [7] Even where a document meets the test in section 110(4), this does not require the RAD to admit it into evidence without any further consideration. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.3 [8] The proposed new evidence may be discussed a little later in this document. Role of the RAD [9] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,4 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." [10] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [11] The Appellant argues that the RPD has made reference in the Reasons and Decision to erroneous facts that were never attested to by the Appellant in his evidence nor in his testimony and that the RPD must have mistook the Appellant's claim with the claim of another refugee claimant. [12] The Appellant argues that the RPD asserted in its Reasons and Decision that the Appellant was married on XXXX XXXX, 2012.5 The Appellant argues that he was married on XXXX XXXX, 2014.6 [13] The Appellant argues that the RPD asserts that it asked the Appellant whether he had a marriage certificate7and wrote that the Appellant made no attempt to obtain a copy of that marriage certificate. The Appellant argues that he was never asked by the panel about his marriage certificate and in fact had provided a copy of his marriage certificate prior to the hearing for submission to the RPD. [14] The Appellant argues that the RPD wrote8 that the Appellant testified that his sister attended his wedding however; the Appellant does not have a sister, nor was he asked about his wedding during his hearing.9 [15] The Appellant argues that the RPD wrote that the Appellant fled to Ethiopia where he remained for five years before coming to Canada.10 The Appellant actually fled to Kenya from Somalia, arriving in Kenya on XXXX XXXX, 2014.11 [16] The Appellant argues that the RPD wrote12 that the Appellant travelled to Canada using a British passport which was procured for him by the Appellant's Uncle, XXXX. In fact, the Appellant traveled to Canada using a false/improperly obtained Canadian passport.13 [17] The RAD has read the documents disclosed in the records of this file and has listened to the audio recording of the hearing. The RAD must agree with the Appellant's arguments as listed above. It is obvious that the panel has confused two claims on which he was working and as a result, has rendered a decision based on misinformation. [18] The RAD finds that there are so many major issues of mistaken information as to render the decision of the RPD as reversible. Even though there are many issues argued by the Appellant which the RAD has not spoken to, the errors of fact herein are so egregious as to make further study of this appeal as redundant. Therefore, the RAD will not assess the new evidence and will not conduct a full assessment of the merits of the case as, without a full hearing of the evidence the RAD could not render a reasonable decision. Disposition [19] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "David Lowe" David Lowe June 1, 2015 Date 1 Exhibit RPD-1, RPD's Record, Exhibit 2. 2 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 2. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 5 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 3, para 5. 6 Exhibit RPD-1, RPD's Record, Exhibit 1, IMM 0008, Question 13(b), at p.28. 7 RPD Audio CD, December 5, 2014 at 00.16.22 to 02.41.00. 8 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 6, para 18. 9 RPD Audio CD, December 5, 2014 at 00.16.22 to 02.41.00. 10 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 4, para 8. 11 Exhibit RPD-1, RPD's Record, Exhibit 2, Basis of Claim, Question 2(g), p. 15. 12 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 3, para 6. 13 Exhibit RPD-1, RPD's Record, Exhibit 1, IMM 0008 (Schedule 12) at question 5, p. 36. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03224