VB5-00745

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 : VB5-00745 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX and XXXX XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision August 24, 2015 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) Simon YU Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX, also known as XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (the "appellant"), a national of Libya, appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") orders that the determination of the RPD that the appellant is neither a Convention2 refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The RAD also finds that it is unable to make a decision under paragraphs 111(1)(a) or (b) of the Act inasmuch as it cannot do so without hearing evidence that was presented to the RPD. The appeal is allowed. BACKGROUND [3] The appellant alleges a fear of persecution in Libya from the Libyan Shield Force, which is a paramilitary organization that wants to harm him because they identify him as a supporter of the former Gaddafi regime. [4] The appellant first came to Canada in XXXX 2013 as a student with a valid Libyan passport and a student visa. He returned to Libya in XXXX 2014 after the death of his father in order to assist his family in attending to his late father's affairs. The appellant returned to Canada on XXXX XXXX, 2014 in order to remove the belongings from his residence. He then returned to Libya on XXXX XXXX, 2014. [5] On XXXX XXXX, 2014, the appellant was kidnapped by a group of four men that were members of the Libyan Shield Force. They identified the appellant by name, stated that they were eliminating people that were supporters of Gaddafi, and demanded money from the appellant. The appellant was kept by these individuals and tortured until XXXX XXXX, 2014, when his mother paid these individuals a sum of money. Upon the appellant's release he was told he must leave Libya. [6] The appellant left Libya on XXXX XXXX, 2014, by crossing the border by land into Tunisia. After he left Libya, members of the Libyan Shield Force attended his family home to ensure that the appellant had in fact left. [7] The appellant arrived in Canada on XXXX XXXX, 2014 and applied for refugee protection at the immigration office in Edmonton on December 18, 2014. [8] The RPD heard the appellant's refugee protection claim on February 16, 2015. The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated February 24, 2015. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The RPD found that the determinative issue was credibility. The RPD Member found the appellant not to be a credible witness and that he had not established that he was identifiable in Libya as a supporter of the regime of Muammar Gaddafi or that he would be identified as a Gaddafi supporter if he returned to Libya. [9] The appellant is represented for this appeal by the same legal counsel as at his RPD hearing. SUBMISSIONS [10] Counsel for the appellant has identified the following grounds for this appeal: * that the RPD Member erred in his credibility findings; and, * that the RPD Member breached the rules of natural justice. [11] The appellant has requested that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee or a person in need of protection or, in the alternative, order that the RPD refer the matter back to a different Member of the RPD for redetermination with such directions that the RAD considers appropriate. [12] The Minister has not intervened in this appeal. Consideration of New Evidence [13] No new evidence has been submitted for this appeal. Application for an Oral Hearing [14] The appellant has not requested an oral hearing at the RAD. STANDARD OF REVIEW/ROLE OF THE RAD [15] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [16] Counsel in his submissions stated that the RAD is required to conduct an independent assessment of all the evidence to make its own determination. I will now consider the broader issue of the role of RAD when conducting an appeal of a determination by the RPD. [17] Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick3 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: reasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact and mixed fact and law. [18] In recent months, the Federal Court (the "Court") has issued several somewhat differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the recent Court cases Iyamuremye,4 Eng,5 Alvarez,6 and Huruglica,7 among others. [19] In Iyamuremye the Court found that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. [20] That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.8 [21] In Alvarez, Justice Shore said that, "the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts."9 Justice Shore also stated that, "when analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error."10 Justice Shore also stated that, "the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error."11 [22] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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 appellant is a Convention refugee or a person in need of protection." Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable. [23] Justice Phelan found that the RAD "must review all aspects of the RPD's decision and come to an independent assessment . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Justice Phelan also found that "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 a 'palpable and overriding error'." [24] Justice Noël in Yin,12 found that it is appropriate for the RAD to employ a reasonableness analysis to credibility findings made by the RPD. Justice Zinn also adopted this position in Krishnapillai.13 [25] In this appeal, I have conducted a review covering all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [26] As stated earlier, the determinative issue in the RPD decision was credibility. The RPD Member found the appellant not to be a credible witness and that he had not established that he was identifiable in Libya as a supporter of the regime of Muammar Gaddafi or that he would be identified as a Gaddafi supporter if he returned to Libya. [27] At the RPD hearing, the appellant testified that he was a supporter of the regime of Muammar Gaddafi, explaining that Gaddafi "knew everything that was good for the country" and that during the period of Gaddafi's rule there was "security, safety, police, there was army and there was honourable life." The appellant testified that he was unaware of any criticism of the Gaddafi regime and that he had participated in about 20 to 25 demonstrations in support of the regime from May to October 2011. The RPD Member found the appellant's explanations as to why he was a Gaddafi supporter contradictory and inconsistent with what one would expect from a university educated individual who spent the majority of the past two years living outside of Libya. [28] Counsel for the appellant submits that the appellant's "...relationship and love for Gaddafi was based on love for a father who would supply the country with security and all of the comforts of life that they needed for Libya". The appellant is a well-educated 26 year-old male who lived in Syria during the Civil War in 2011 and possesses extensive international travel experience in Tunisia, Malaysia and Canada. While the appellant may have been part of the privileged society that benefited under the Gaddafi regime, I agree with the RPD Member that it does stretch credulity that an educated young man such as the appellant would profess to be unaware of any criticism of the Gaddafi regime. While this finding was not in itself determinative, it certainly contributed to the RPD Member's overall negative credibility assessment of the appellant. [29] I note that in the appellant's Basis of Claim (BOC) Form, the first reference to any political connection of the appellant to the Gaddafi regime occurs on page 37 of the Appeal Record where the appellant indicates he participated in demonstrations in support of Gaddafi while in Tunisia in July and August 2011. In the RPD hearing, the claimant testified that between May to October 2011 he participated in approximately 20 to 25 demonstrations in support of the Gaddafi regime. In his reasons, the RPD Member stated that no mention is made of the appellant's participation in these demonstrations in his BOC. [30] The audio recording of the RPD hearing indicates that the RPD Member first asked him why his BOC did not provide information of his political activities and the appellant responded that he did not believe his attendance at these demonstrations warranted mention. The quantity of, or the exact timing of the appellant's alleged participation in such demonstrations is inconsistent between his BOC and testimony and may reflect some embellishment of his claim. However, the statement by the RPD Member that his participation in such demonstrations was omitted from his BOC is incorrect. The RPD's Member's negative credibility inference in this respect is unreasonable. [31] The RPD Member also considered the absence in his BOC of any reference to corroborative evidence of the appellant's participating in demonstrations in favor of the Gaddafi regime to be a significant omission. At the hearing, the appellant testified he had no corroborative evidence of his participation in such demonstrations as he had burned photographs due to fear of danger to himself, presumably if he was found to be in possession of such photographs by Libyan Shield militants. As the RPD Member found that such details would have been highly relevant and central to the claimant's fear of persecution, the RPD Member considered this to be a significant omission and drew a further negative credibility inference. The RPD Member's conclusion in this respect was likely coloured by his first finding that the appellant had failed to make any mention in his BOC of having participated in pro-Gaddafi demonstrations. However, as noted above this previous finding was incorrect. I find that the RPD's Member's negative credibility inference as to the absence of any corroborative evidence of his participation in such demonstrations to also be unreasonable. [32] The RPD Member also found the appellant's description of his kidnapping by Libyan Shield forces to be implausible. The appellant explained that even under torture he refused to reveal his mother's phone number from XXXX XXXX, 2014 until XXXX XXXX, 2014. The RPD Member found it implausible that his attackers would have the means to determine that he was a supporter of the Gaddafi regime from activities that occurred more than three years earlier, learn of his return to Libya and track him to the bank where he was attending to his father's affairs, yet not have the means to learn of his mother's phone number in order to simply contact her directly to demand ransom. [33] Counsel for the appellant submits that this implausibility finding constitutes speculation on the part of the RPD Member as to the abilities of the Libyan Shield force and how they operate. In general terms, an RPD Member is entitled to use common sense in analyzing such details in any claim for refugee protection. However, previous jurisprudence has highlighted that an implausibility finding should only be made in the clearest of circumstances. In this case no evidence was presented as to how Libyan Shield operates. The RPD Member's implausibility finding was also likely affected by his previous negative credibility finding as to the appellant having attended pro-Gaddafi demonstrations in the first place. Under these circumstances I find the RPD Member's implausibility finding to be unreasonable. [34] In reviewing details of the appellant's kidnapping as outlined in his BOC and later on in his testimony, a credibility issue is apparent that was not identified in the RPD reasons. In his BOC narrative at page 47 of the Appeal Record, the appellant states that he returned to Libya to settle his father's estate as his family was having problems getting food because his father's previous employer had not paid the salary owed to his father. When asked at the RPD hearing how his family paid the ransom, the audio recording of the RPD hearing indicates that at about the 01:59 timestamp reference he responded that his family paid the $75,000 USD in cash that was kept hidden at the family home. While this statement does present credibility concerns, I have already found that the RPD Member's key credibility findings were unreasonable. [35] Having considered the issues as discussed above, I find to be unreasonable the RPD Member's negative credibility findings as to the appellant's central allegations of having been kidnapped in Libya due to his previous political activities in support of the Gaddafi regime. Based on all the above, the RPD decision is hereby set aside as the RPD Member's credibility assessment is the determinative factor in his decision. [36] The appellant also identified natural justice issues as being the second ground of this appeal. As this appeal has been determined on the basis of the first issue identified by the appellant, there is no need to further analyze this other ground of appeal as identified by the appellant. REMEDY [37] Section 111 of the Act states: 111(1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that the 12th or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. (RAD emphasis) [38] Having concluded that the RPD determination must be set aside; would it be appropriate for the RAD in this case to substitute the RPD determination with one that finds that the appellant is, in fact, a Convention refugee or a person in need of protection? I find that I am unable to do so for the following reasons. [39] I have found that the RPD Member's credibility findings were unreasonable as to central allegations by the appellant. If I were to attempt to assess the credibility of the appellant's allegations and further test the documentary evidence, it would be necessary for me to hear his viva voce evidence. To do so would require the RAD to hear evidence that was presented to the RPD. I also find that it would not be appropriate for the RAD to attempt to assess the credibility of such evidence simply on the basis of the audio recording of the RPD hearing and without giving the appellant an opportunity to explain. In any event, as the appellant has not sought to introduce documentary evidence under subsection 110(4) of IRPA, there is no basis upon which a hearing might be undertaken by the RAD under subsection 110(6) of the Act. DECISION [40] Pursuant to paragraph 111(1)(c) of the Act, the RAD orders that the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. (signed) "Douglas Fortney" Douglas Fortney August 24, 2015 Date Judicial Review - Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Dunsmuir v. New Brunswick, 2008 SCC 9. 4 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 5 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 7 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 8 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, para. 41. 9 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 27. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 33. 12 Yin v. Canada (Citizenship and Immigration), 2014 FC 1209, paras. 35-39. 13 Krishnapillai v. Canada (Citizenship and Immigration), 2015 FC 781. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-00745 RAD File No. / N° de dossier de la SAR : VB5-00745