VB5-02939

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 : VB5-02939 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 Appeal considered at Vancouver, BC Appel instruit à Date of decision February 26, 2016 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) Odaro Omonuwa 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Somalia appeals the decision of the Refugee Protection Division (the "RPD") issued verbally on August 6, 2015 with the written Notice of Decision being issued September 9, 2015, denying his claim for refugee protection. No new evidence has been submitted1 pursuant to section 110(4) of the Immigration and Refugee Protection Act (the "Act").2 [2] The appellant does not take a position regarding a hearing pursuant to section 110(6) of the Act.3 [3] In the memorandum of his counsel the appellant has a heading entitled "PART IV - ORDER SOUGHT"4 but does not identify what order he is seeking. After reading counsel's memorandum this RAD concludes that the appellant is asking the Refugee Appeal Division (the "RAD") to set aside the determination of the RPD and find the appellant to be a Convention5 refugee as per section 96 of the Act or a person in need of protection as per section 97 of the Act. In the alternative the RAD determines the appellant asks that the decision of the RPD be set aside and the matter be returned to the RPD for re-determination by a differently constituted Panel. [4] A copy of the Appellant's Record was provided to the Minister on October 19, 2015. The Minister has not responded and so it is deemed that the Minister is not intervening in this appeal. DETERMINATION [5] Pursuant to section 111(1)(c) of the Act, the RAD sets aside the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection and directs that this matter be referred back to the RPD for re-determination by a differently constituted Panel and that the new Panel consider this claim under sections 96 and 97 of the Act. This appeal is allowed. BACKGROUND [6] The appellant is a Somali citizen. He was born in XXXX on XXXX XXXX, 1988. He lived in XXXX until fleeing Somalia in XXXX 2013. He married in the summer of 2012 and has no children. [7] His father owned and operated a XXXX XXXX in XXXX. This was the sole means of income for the family. [8] When the extremist group Al-Shabaab took control of XXXX they took exception to activities they considered "non-Islamic" such as XXXX XXXX. They approached his father many times to shut the XXXX down but he did not comply. In XXXX 2013 they murdered his father. [9] His father had not shared with the appellant the problems he was having. As the XXXX was the only source of income for the family the appellant re-opened it. He did this one week after the death of his father and it was not until he was operating the XXXX did he realize that Al-Shabaab took exception to his business. [10] Once the XXXX was re-opened the appellant began to receive death threats. The appellant moved out of the family home in order to reduce his visibility to Al- Shabaab. [11] Members of Al -Shabaab came to his house looking for him. They threatened to kill his mother and the appellant because they refused to close the "anti-Islamic business". [12] The appellant and his mother came to the conclusion it was not safe for the appellant to live in Somalia. She sold her house to finance the appellant escaping Somalia. [13] He fled Somalia and eventually ended up in the United States (U.S.), entering that country on or about February 8, 2014. He made a claim for asylum but it was denied. [14] He entered Canada illegally on or about June 9, 2015 and made a refugee claim immediately. ISSUES [15] The appellant has identified the following issues in support of his application to have the RAD set aside the RPD decision.6 I have reworded them for clarity. 1) Did the RPD err by not assessing this claim under section 96 of the Act? 2) Did the RPD err in finding that the appellant would not, on the balance of probabilities, face a risk to his life or a risk of cruel or unusual treatment or punishment? NEW EVIDENCE [16] The appellant has not submitted any new evidence. THE ROLE OF RAD [17] The appellant made submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision.7 It is the appellant counsel's opinion that the RAD should conduct an independent assessment of the evidence and come to its own determination based on its review of the relevant evidence. I agree. My reasons are as follows. [18] While the Act 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 RPD. The first Federal Court review of a RAD decision was in May 2014.8 Since that time there have been a number of Federal Court (the "Court") decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal brings more clarity to the standard of review I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal. [19] I have examined the various Court decisions regarding the role of the RAD and find that the process of a hybrid appeal proposed by Mr. Justice Phelan in Huruglica9 is consistent with the common thread found in the majority of the Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [20] Mr. Justice Phelan determined that, in conducting its assessment, 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [21] In keeping with the majority of the Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion based on that evidence. ANALYSIS RAD Hearing [22] Section 110(3) of the Act directs the RAD, with certain exceptions, to proceed without a hearing on the basis of the record of proceedings from the RPD. Section 110(6) states the RAD may hold a hearing if, in its opinion, the documentary evidence referred to in subsection (3): a) raises a serious issue with respect to the credibility of the person who is subject of the appeal; b) is central to the decision with respect to the refugee protection claim; and, c) if accepted, would justify allowing or rejecting the refugee protection claim. [23] As no new evidence has been entered there is no statutory authority to order a hearing,10 hence, no hearing will be ordered in this matter. Identified Issues 1) Did the RPD err by not assessing this claim under section 96 of the Act? Answer - Yes [24] The RPD dealt with a nexus to a Convention ground in its decision, however, the reasons are confusing and do not support the RPD's ultimate finding that the appellant did not have a nexus to a Convention ground. The RPD states: Your claim fails, whether under section 96 or 97 of our Act, because you have not established a personalized forward-looking risk on the balance of probabilities. There is no evidence before me that there is a nexus to this claim, that you have a nexus to one of the Convention grounds.11 Your claim was examined as a person in need of protection, which would require that you need to establish that you face a risk to your life or cruel and unusual treatment or punishment if you remained in XXXXX. The assessment is under section 97 of our Act. 12 Nexus to the Convention grounds was not advanced during this hearing and even in my own examination of the circumstances, I did not see a nexus. That is why I am assessing your claim on the balance of probabilities.13 [25] The RPD states in its Reasons that it analyzed the appellant's claim under section 97 of the Act having found that there was no evidence before it to support a nexus to a Convention ground which would require an analysis under section 96 of the Act. [26] The RPD then contradicts itself by stating that the claimed failed under sections 96 and 97 because the appellant failed to establish a forward-looking risk. [27] It is not possible for the RPD to come to a determination that the claim failed under section 96 for lack of forward-looking risk when the RPD did not analyze the claim under section 96. This is internally contradictory. Religion [28] More significantly the RPD determined that there was no (emphasis added) evidence to establish a nexus to a Convention ground but does not enter into a cogent analysis to explain why or how it came to this determination in view of the evidence before it. The RPD stated if the appellant was threatened by Al-Shabaab it would be for reasons of extortion or a terrorist group trying to promote their extremist views. It goes on to conclude, ". . . this does not provide you with a nexus to one of the Convention grounds."14 [29] Extortion by Al-Shabaab was never mentioned at the hearing. The evidence does not support the RPD's finding that if Al-Shabaab did threaten the appellant it would be for reasons of extortion. Nor does the RPD explain how it came to this conclusion. [30] The evidence before the RPD strongly suggests links to Convention grounds and it is not apparent to this RAD how the RPD could come to the determination that there was no evidence before it that would suggest a link to the Convention. A few examples are listed below. [31] The appellant states in his BOC that operating a XXXX was not acceptable to the religious standards of Al-Shabaab and his father had been advised of this by the militants. He further documented that he was told that operating the XXXX was a sin and was non-Muslim and the Al-Shabaab believed he was an infidel.15 [32] In his narrative he stated his mother was advised by Al-Shabaab to tell the appellant to stop doing anti-Islamic business.16 [33] In his U.S. claim the appellant identifies religion as a basis of his claim he also states the Al-Shabaab wanted to kill him as they see operating a XXXX as a sin.17 He repeats that Al-Shabaab view the operation of a XXXX as a sin several times in his U.S. asylum claim. [34] He again identifies that religion is a basis for his U.S. claim and adds it is because of a different interpretation of Islam.18 He identifies religion as a basis of claim again twice later in the same application.19 [35] In the interview attached to the U.S. claim the appellant is asked if he feared harm as a result of his religion. He responded, "Yes".20 Political Opinion [36] Country documents state that Al-Shabaab maimed and killed persons suspected of converting from Islam or those who failed to adhere to the group's edicts21 as is the evidence in this matter. [37] The country documents further state that Al Shabaab imposed its own interpretation of Islamic law and practices on other Muslims through violence.22 [38] It is difficult to understand how the RPD could come to the conclusion that nexus to a Convention ground was not advanced during the hearing when the evidence of religious and/or political persecution was replete throughout the documents entered in evidence. [39] If, at the end of the hearing the RPD was not convinced a nexus had been established then procedural fairness dictates that it should have identified to appellant's counsel that this was one of the issues that he should address. The RPD did not do this but rather only identified credibility, identity, and forward looking risk as outstanding issues.23 [40] Having conducted an independent review of all the relevant evidence I find that the RPD erred in finding that there was no nexus to a Convention ground. This RAD finds that the appellant had established a nexus to a Convention ground in possible religious and/or political persecution, real or perceived. [41] This error caused the RPD to not consider this claim under section 96 of the Act and therefore this claim must be returned to the RPD for re-determination. [42] Having come to this determination there is no need to analyze issue number 2. DECISION [43] Pursuant to section 111(1)(c) of the Act, the RAD sets aside the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection and directs that this matter be referred back to the RPD for re-determination by a differently constituted Panel and that the new Panel consider this claim under sections 96 and 97 of the Act. This appeal is allowed. (signed) "Gordon C. McRae" Gordon C. McRae February 26, 2016 Date 1 RAD Exhibit 3, page not numbered. Letter dated October 29, 2015 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 3 RAD Exhibit 3, page not consequently numbered. Page 2 of 2 of letter dated October 29, 2015. 4 RAD Exhibit 3, p. 37. 5 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. 6 RAD Exhibit 3, p. 28. 7 RAD Exhibit 3, p. 29. 8 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 9 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 10 Balde, Amadu Tema v. Canada (Citizenship and Immigration), 2015 FC 625, at para. 32. 11 RAD Exhibit 1, p. 3, lines 14 to 17. 12 RAD Exhibit 1 p. 3, lines 21 to 24. 13 RAD Exhibit 1 p. 6, lines 22 to 24. 14 RAD Exhibt 1 p. 3, lines 20 and 21. 15 RAD Exhibit 1, pp. 10 and 11, questions 2(a) and 2(b). 16 RAD Exhibit 1, p. 14. 17 RAD Exhibit 1, p. 100, questions 1 and 1B. 18 RAD Exhibit 1, p. 110, question 3.1 c. 19 RAD Exhibit 1, p. 111, question 4.6 and p. 118, question B. 1. 20 RAD Exhibit 1, p. 115 21 RAD Exhibit 1, p. 75, National Documentation Package (NDP), Somalia, July 17, 2015, Item 12.1 Somalia. International Religious Freedom Report for 2013. United States. Department of State. 28 July 2014, at p. 1. 22 RAD Exhibit 1, p. 75, NDP, Somalia, July 17, 2015, Item 12.1 Somalia. International Religious Freedom Report for 2013. United States. Department of State. 28 July 2014, at p. 3. 23 RAD Exhibit 2, Audio Recording of RPD Hearing at 1:05:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-02939