TB5-07622

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 : TB5-07622 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 September 30, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ceri P. Forbes 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 (Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted no new evidence in support of her appeal. The Appellant ask that the Refugee Appeal Division (RAD) set aside the RPD's decision and refer the matter back to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is therefore, dismissed. Background [3] The Appellant alleged before the RPD at her hearing, that she is a citizen of Somalia, and that in 2010 she was kidnapped by the terrorist group, Al Shabaab and kept as a sexual slave for approximately two years. The Appellant further alleged that in XXXX 2012, she was able to escape from Al Shabaab, and at around the same time, her father was murdered by Al Shabaab as a result of his practise of the Sufi religion. In XXXX of 2013, the Appellant was able to flee Somalia and arrived in the United States of America (US) in March 2014. The Appellant made an asylum claim in the US. The Appellant did not wait for her claim to be determined and left the US while her claim was still being processed. [4] The Appellant alleges that in XXXX 2014, she crossed into Canada through an unmanned border in Winnipeg, Manitoba. The Appellant's destination was Toronto, ON where she wanted to join up with her sister. [5] The Appellant's application for refugee protection was heard on January 15, 2015 and May 01, 2015. In a decision of June 23, 2015, the RPD rejected the Appellant's claim finding that the Appellant had failed to provide credible and trustworthy evidence in support of her claim and was not credible in key aspects of her claim. [6] In the Appellant's submission, the RPD failed to consider documents disclosed by the Appellant, and ignored objective documentary evidence which supports the Appellant's refugee claim regarding the persecution of women. The Appellant also argue that the RPD failed to consider her claim under Section 97 of IRPA. ANALYSIS What is the Role of the RAD? [7] 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. [8] The Appellant makes no submissions on the appropriate standard to be applied in this appeal. [9] In a decision issued by RAD Member Edward Bosveld which I adopt and accept his reasoning, Member Bosveld considered at some length the legislation and jurisprudence concerning the role of the RAD.1 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [10] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact which was raised by the Appellant and, where applicable, the Respondent. [11] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [12] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.2 [13] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceed, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [14] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [15] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [16] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. Issues Raised by the Appellants [17] Did the RPD err in failing to consider the Appellants' claims under Section 97 of IRPA? The Appellant argues that the RPD's adverse credibility finding in respect to Section 96 is not determinative of the refugee claims under Section 97. While the definition in Section 96 has objective and subjective components, this is not the case in Section 97. [18] The RAD observes that, even where a refugee claim fails under Section 96 for lack of proof, it could conceivably succeed under Section 97 based solely on the claimant's profile. To adopt an example, an Anglophone Cameroonian refugee claimant might be lacking in credibility, but he could nevertheless succeed in his refugee claim because objective evidence shows that Anglophone Cameroonians are at great risk. Where the RPD decides that a claimant is not a Convention refugee, it must then determine if the facts it has accepted form the basis for concern that the person faces a danger of torture, or a risk to life, or of cruel and unusual treatment or punishment.3 [19] The Federal Court of Appeal has held that the standard of proof for the purposes of Section 97 is proof, on a balance of probabilities.4 The legal test to be met is also whether, on a balance of probabilities, the refugee claimant faces a danger of torture or a risk to life or of cruel and unusual treatment or punishment.5 [20] The Appellant argues that the RPD erred in failing to address the objective evidence before it with regard to the extensive and pervasive persecution of women, displaced persons and persons returning to Somalia from abroad and the likelihood that a person with a profile exactly like the Appellant would face serious persecution even if she had not faced persecution in the past? In other words, did the RPD fail to conduct a risk assessment pursuant to section 97 of IRPA? [21] The Convention refugee test: The test for whether a refugee claimant has a well-founded fear of persecution was set out by the Federal Court of Appeal in Adjei. While a claimant must establish his/her case, on a balance of probabilities, the likelihood of persecution is subject to a different test: whether there is a reasonable chance of persecution. This test can also be described as "good grounds," a "reasonable possibility," a "serious possibility," or "more than a mere possibility" of persecution. In Ponniah,6 the Court elaborated on the standard, holding that "reasonable chance" occupies the field above the lower limit of a minimal or mere possibility and below the upper limit of a fifty percent chance or probability. [22] A refugee claimant must establish the facts upon which he/she bases his/her claim and the civil standard is the appropriate means by which to measure such factual contentions. It was therefore not an error for the RPD to consider, on a balance of probabilities, whether the claimant's factual allegations-that she was or is being persecuted-had been established. However, when the panel considered whether the Appellant "would be" a potential target and victim, it was no longer considering facts and was instead assessing the likelihood of future harm. [23] It is unfortunate that the RPD repeatedly used the term "balance of probabilities" when referring to the Convention refugee definition, without clearly setting out the Adjei test. In its reasons, the panel wrote that, "the panel finds that the claimant is not credible with respect to her having been abuducted, tortured and sexually abused by Al Shabaab. Given the multiple findings of a lack of credibility, the panel finds that is is more probable than not that the claimant would not face a danger of torture, or a risk of cruel and unusual treatment or punishment." Later, the RPD wrote, "...Having considered all the of the evidence, the panel determines that the claimant has not established that there is a serious possibility of persecution on a Convention ground or that on a balance of probabilities, she would be subject to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment is she were to return to Somalia." In both of these passages, the RPD cites a single test in relation to both Sections 96 and 97. [24] The test for Section 97 is different, and higher, than the Adjei test for Section 96. The RPD was required to consider whether it is more likely than not that the Appellant would be subject to a risk to life or a risk of cruel and unusual treatment or punishment. As such, the risk under Section 97 is to be assessed on a balance of probabilities. [25] The RAD finds that the RPD erred in law in assessing the Appellant's likelihood of future persecution on a balance of probabilities. The RPD wrongly expressed the test for Section 96 in two instances, and when it did correctly state it, it then erred in law by also applying that lower test to Section 97. However, these errors are not fatal to the RPD's decision, for the following reasons. [26] First, the RPD concluded, on a balance of probabilities, that the Appellant's evidence was not credible. In doing so, the RPD properly applied the civil standard of proof, which is common to both Sections 96 and 97. As the Appellant's evidence was rejected, there was no credible evidence upon which to base the application of either test. It was the Appellant's lack of credibility, not the RPD's application of the tests, which caused the refugee claim to fail. There is no reason for the RAD to conclude that the outcome of the claim would have been any different had the RPD applied the tests correctly. [27] While the RPD applied the incorrect test in considering the claim under Section 97, this error was in the Appellant's favour. Rather than considering whether it was more likely than not that the Appellant would be subject to a risk to life or of cruel and unusual treatment or punishment, the RPD considered whether there was a serious possibility of such. This error could only benefit the Appellant, and her appeal cannot succeed on the basis of this error. [28] The RPD was required to consider the Appellants' profiles in assessing their claims under Section 97. That is, the RPD had to consider whether the facts it accepted could form the basis for a grant of protection under Section 97. In this case, however, the RPD reasonably accepted very few facts. It accepted the Appellant's identity and she is a citizen of Somalia.7 As the RAD understands this finding, the RPD was accepting the Appellant's name, her family relationship to the witness who where it was established that it was her sister through DNA testing, and her nationality. In the RAD's view, the finding that the Appellant and her witness are sisters and of the parents who are citizens of Somalia is not sufficient basis to be granted protection under Section 97, and the Appellant does not point to any objective evidence in support of such a contention. [29] The RAD finds that the RPD's treatment of the Appellant's claim under Section 97 was correct. [30] As such, the RAD relied upon all the evidence in the record and audio of the hearing. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. [31] The Appellant did not challenge the RPD credibility findings and as such the RAD finds no reason to disturb those findings. Disposition [32] For the reasons set out above, the RAD has found that the RPD's findings of fact were supportable, while its application of the law in respect to Section 97 was correct. [33] The RAD finds no errors of fact or law in the RPD's decision, which therefore stands. CONCLUSION [34] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho September 30, 2015 Date 1 X (Re), 2015 CanLII 19235 (CA IRB). 2 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55 3 Asu, Jude v. M.C.I. (F.C., no. IMM-682-05), von Finckenstein, December 14, 2005; 2005 FC 1693, para. 9. 4 Li, Yi Mei v. M.C.I. (F.C.A., no. A-31-04), Rothstein, Noël, Malone, January 5, 2005; 2005 FCA 1, para. 14. 5 Li, supra. 6 Ponniah, Manoharan v. M.E.I. (F.C.A., no. A-345-89), Heald, Hugessen, Desjardins, May 16, 1991. Reported: Ponniah v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.) 7 Exhibit RPD-1, RPD's Record, at p. 4, RPD's Reasons for Decision, para 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07622