VB5-01032

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 : VB5-01032 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision 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 October 16, 2015 Date de la décision Panel Rena Dhir 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 (the "appellant"), appeals the March 25, 2015 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on March 5, 2015 with a Notice of Decision1 being sent to the appellant on March 30, 2015. The RPD found that the appellant is neither a Convention2 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act ("IRPA" or the "Act").3 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of IRPA, the Refugee Appeal Division (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. The appeal is allowed. BACKGROUND [3] Counsel for the appellant before the RAD is the same as he had at the RPD. The Minister has not intervened before the RPD or the RAD. [4] The appellant does not seek to present "new" evidence to the RAD pursuant to subsection 110(4) of IRPA. BASIS OF CLAIM [5] According to the allegations set out in the appellant's Basis of Claim form (BOC),4 the appellant belongs to the XXXX tribe in Libya originating from XXXX XXXX. The appellant fears he will be killed by the people from XXXX especially a group called XXXX XXXX which is a militia group. [6] The appellant also fears the XXXX militias and his cousin, XXXX XXXX who also works for this militia group. The appellant wrote against the XXXX Militias on XXXX and XXXX. He began to write against the XXXX militias around XXXX 2012 while he was in Canada. The appellant returned to Libya in XXXX 2012 and stayed in XXXX until XXXX 2012. The appellant was followed by an unknown car in XXXX or XXXX 2012. He returned to Canada in XXXX 2012. [7] After his return to Canada, the appellant received about three XXXX audio threats from unknown XXXX militias around XXXX 2013 asking him to stop writing. The appellant returned to Libya in XXXX 2013 to visit his family. This is the time the appellant had the confrontation with his cousin, XXXX XXXX, who worked with the XXXX militias. His cousin was aware of the appellant's writings against the XXXX militias on XXXX. The appellant was able to escape from XXXX and the XXXX militias and returned to Canada on XXXX XXXX, 2013. [8] XXXX and the XXXX militias continued to look for the appellant. When they could not find him, they kidnapped the appellant's father and brother and tortured them. The appellant's father fled to Tunisia. [9] The appellant's student visa expired on XXXX XXXX, 2013 in Canada and his application for renewal was refused on XXXX XXXX, 2014. The appellant moved to Edmonton where his brother's wife's uncle assisted him in applying for refugee status. The appellant made a claim for refugee protection in Canada on November 26, 2014. [10] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on the issue of credibility. GROUNDS OF APPEAL [11] The appellant's submissions as to the grounds of this appeal can be summarized as follows:5 * Were the Panel Member's credibility findings unreasonable or erroneous? REMEDY SOUGHT [12] The appellant has requested6 that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a determination that the appellant is a Convention refugee or person in need of protection. Alternatively, the appellant requests, under paragraph 111(1)(c) of the Act, that the RAD allow the appeal and refer the matter to the RPD for redetermination by a differently constituted Panel. ROLE OF THE RAD [13] 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. [14] RAD, being a new division, has struggled with the standard of review to be used in RAD appeals based on several Federal Court (the "Court") cases that have differed in their approach of what standards should be used. Initially, RAD followed the Supreme Court of Canada (the "Supreme Court") case Dunsmuir7 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing decisions of administrative tribunals: 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. [15] The Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. These decisions include the Court cases Iyamuremye,8 Eng,9 Alvarez,10 Huruglica,11 Njeukam,12 Yetna,13 Wahgmo,14 Alyafi,15 among others. [16] The Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed 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. 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.16 [17] 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."17 Furthermore, Justice Shore 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."18 Justice Shore also said in Alvarez 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." 19 [18] 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 claimant 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."20 [19] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said, "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." Furthermore: 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."21 [20] The appellant submits22 that the "the standard of review for RAD appears to be an unsettled issue. It is the appellant's respectful submission that in this appeal the presiding RAD Member should also review the RPD records, conduct his or her own analysis of the evidence including credibility assessment of the appellant." [21] The Huruglica decision is the most thorough of all the cases thus far, and the first one where the Court has certified a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows: [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.23 [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."24 [22] Following the Huruglica decision, many other cases have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. There is another line of authority that suggests that the standard that RAD should apply is that of "palpable and overriding error" (Eng25, Alvarez26, Spasoja27). In Alyafi28, Djoussou29, and Siliya30, the Court notes that there are two competing approaches in the Court's jurisprudence and that the RAD Member is free to decide which approach to follow. [23] In Kanga, the Court held: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.31 [24] In this appeal, and taking into consideration the Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed 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 a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, all agree 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 [25] The appellant submits32 that the RPD Member made unreasonable or erroneous credibility findings. The appellant points out many areas where he finds the RPD Member erred in his credibility findings in coming to the final determination. I am of the opinion that I do not need to address them all given that I am setting aside the determination of the RPD and that the matter be returned to the RPD for redetermination by a different RPD Member. I have conducted an independent assessment of all the evidence before the RPD and the RAD, including listening to the Compact Disk (CD)33 of the RPD oral hearing in its entirety. Delay in Claim [26] The appellant submits34 that the "delay in claiming is a relevant issue to consider but it was unreasonable and an error for the Panel Member to make it a determinative issue, given the evidence of the current danger in Libya before the Panel including evidence of personal danger." The appellant submits35 that he "acted in a timely manner in relocating to Edmonton, retaining a Calgary lawyer, changing counsel to his current counsel when the Calgary counsel procrastinated." The appellant further submits36 that "the Panel Member was unreasonable to deem the appellant to have knowledge of the refugee claim information simply because he had university education from Libya, he had English language skills and he had resided in Canada since 2009. Immigration and refugee law and system are complex and can be convoluted and confusing to lay people who are not trained or who do not work in the immigration and refugee system." [27] First, I disagree with the appellant in that the RPD Member made delay in claiming a determinative issue. Rather, the RPD Member finds that "the determinative issues in this claim are credibility and the objective basis for his fear of persecution."37 Furthermore, the RPD Member finds "The main credibility issues with the claimant's evidence are a delay in claiming and contradictions between his testimony and this documentary evidence"38 and that "the Panel finds that the combined effects of the delay in claim and the provision of false documents are determinative of the claimant's credibility."39 Clearly the RPD Member had other credibility concerns other than the delay in claiming which resulted in the final negative determination. [28] The RPD Member noted that the appellant was "without valid immigration status from XXXX 2013 until he applied for refugee protection on November 26, 2014."40 The RPD Member further finds in his decision: 41 The claimant attributed the delay in making his refugee claim in Canada to a series of events. He testified that he initially sought to judicially review the decision of Citizenship and Immigration Canada to deny him an extension of a study permit. No corroborating documentation was provided to indicate the claimant did in fact seek to have the denial of the study permit judicially reviewed. The claimant only found out about the refugee claim process after speaking with a relative in May 2014. This relative suggested that the claimant should move from Toronto to Edmonton, which the claimant did. The claimant initially retained a lawyer to assist him with is refugee application on May 6, 2014, but this lawyer procrastinated in providing assistance, causing the claimant to retain new counsel (his current counsel) in October 2014 and filing his application for protection shortly thereafter. The aspect of the claimant's explanation for the delay in claim that the Panel found particularly problematic with respect to the claimant's credibility is the period between XXXX and May 2014. The claimant alleges he fled Libya in an urgent manner due to an imminent threat to his life. This threat was magnified shortly after his return to Canada, when he learned that his father and brother had been abducted. However, upon learning that his status in Canada would not be renewed and that he was facing return to the country where he feared death, the claimant chose not to discuss the problems he had in Libya with the attorney who was assisting him resolve his immigration matters. The claimant's explanation for not even broaching the subject with the lawyer he retained was that this lawyer's speciality was the "appeal process." It is unreasonable to the Panel that the claimant would choose not to discuss the life-threatening situation he was facing with a lawyer he retained to assist him resolve his problems for the sole reason that this particular lawyer specialized in only one aspect of immigration law. Essentially, the claimant would have the Panel believe that he was unaware of the existence of a refugee claim process in Canada until May 2014, when he spoke to his relatives who resided in Edmonton. The Panel believes this assertion to be false. The claimant is university educated, has resided in Canada since 2009, and was sufficiently fluent in the English language to the degree that he was able to complete his Basis of Claim Form (BOC) without the assistance of an interpreter. Information regarding Canada's refugee protection system is widely available. The claimant's explanation for not asking for assistance from his family members in Canada prior to May 2014 was that he had not "thought broadly in that sense," and that all of his concentration had been focused on renewing his study permit. When the Panel considers all of these factors, it finds sufficient reason to make considerable negative inference against the claimant's credibility and the subjective basis for his fear of the XXXX militia. [29] I agree with the RPD Member that, given the appellant's education and time spent in Canada and his interactions with professionals in the immigration field, it would be reasonable to expect the appellant to seek refugee protection earlier. Delay has been recognized by the Court as an important factor in assessing a claimant's credibility and their subjective fear. In Mesidor,42 Mr. Justice Shore pointed out that: ". . . the courts have consistently held that a claimant's delay in filing a refugee claim can justify the rejection of a refugee claim in a case where this delay was not satisfactorily explained." Although in this case the appellant did have explanations for the delay in making a claim, I agree with the RPD Member that these are not sufficient or satisfactory given the appellant's education level and interactions with professionals dealing with immigration matters. [30] However, I also note that the Courts have said that "the delay in making a claim for refugee status is not a decisive factor in itself."43 In the RPD Member's final determination, he had many other credibility concerns regarding the evidence heard and submitted by the appellant at the RPD hearing. The RPD Member states in his decision that "further detracting from the claimant's credibility are contradictions between his testimony and the documentary evidence filed in the claim." 44 As noted in my analysis below, I find the RPD Member has failed to accurately assess the evidence in coming to these no credibility findings. Libyan Police Reports, Mother's Letter, Sister's Letter, Medical Notes [31] The RPD Member finds the appellant to be not credible in regards to the inconsistencies in the appellant's testimony surrounding the police reports45 and the inconsistencies in the police reports themselves. The appellant submits "that the Panel Member erred in failing to recognize that Libya has been in a very chaotic situation and conflicts still continue today since the fall of former leader Gadhafi."46 The appellant cites the US Department of State report regarding the quality of police services and performances and argues "the Panel Member's expectation regarding the completion and accuracy of information in the police report and the inconsistency of letterhead are the result of the Panel Member's Canadian experience with the Canadian police services and the Panel Member's expectation in these regards is unreasonable without regard to the chaotic situation and the poor quality of police services in Libya". [32] The RPD Member finds47 that: Further detracting from the claimant's credibility are contradictions between his testimony and the documentary evidence filed in the claim. Of particular note are the police reports the claimant submitted to corroborate the kidnapping and torture of his father and brother. The claimant testified that his father fled from Libya to Tunisia after this incident occurred, and that his whereabouts were currently unknown at the time of the writing of the BOC on November 13, 2014. However, the police reports indicate that the claimant's father, XXXX XXXX XXXX XXXX, came to the police centre in XXXX, Libya on XXXX XXXX, 2014 in order to make the police report. The claimant first attempted to explain this contradiction by stating that it was a translation error. When it was pointed out to the claimant the translation was correct, the claimant changed his explanation, and stated that the police must have "made a mistake" as it was the claimant's cousin who had in fact obtained the reports from the police, not the claimant's father. The Panel does not accept these explanations for several reasons. The identity of a person filing a police report is a pretty basic piece of information that even the most incompetent police officer should be able to correctly note on a report. The fact the claimant initially attributed the contradiction to a translation error indicated to the Panel the claimant was grasping for explanations to account for the inconsistency. Lastly, as will be noted in the following paragraph, there were a number of other irregularities with the police reports that give the Panel cause to question their authenticity. Despite the fact the incident related in the police reports occurred in XXXX 2013, the police reports were not issued until XXXX XXXX, 2014. The claimant's explanation for the delay is that the incident was originally reported the same day that it occurred; however because the report was being made late in the day, no report could actually be generated by the police at that time, and they were directed to come back to the station if they required an actual paper-copy of the report. However, the reports prepared on XXXX XXXX, 2014 make reference to previous reports that were prepared relating to this incident. The substance of the reports themselves is exceedingly vague, with no details of the incidents other than the date being prepared. The location of the incident, suspected identity of the attackers, and the fact the claimant's father and brother were actually abducted by the attackers is not noted. Lastly, despite having been issued from the same police centre within a month of each other, the letterhead on the reports contained in Exhibit 6, pages 1 to 5, appears completely different from the letterhead of a report contained in Exhibit 4, pages 55 to 56. The letterhead on the document appears to have been "cut and pasted" haphazardly onto the page. When all of the above is considered, the Panel finds on the balance of probabilities that these documents are fraudulent. [33] Specifically, the RPD Member found the appellant did not adequately explain why the police reports stated that the brother and father had come to the police station on XXXX XXXX, 2014. From my review of the CD of the RPD oral hearing, I note that the appellant testified at first that it was a translation error. However, the RPD Member asked the interpreter to re-translate the police reports and the reports were found to be accurate. The appellant then went on to testify that the police must have made an error. The appellant testified that "when they went to report, it was night time and the original copy of the report has to be kept by the police and at that time, because of the time of day there was no one to record the incident of the report but they did take note of it and said if they want the report then come back any other time, as we will have it in our archives." However, taking into consideration the appellant's arguments on police efficiency in Libya, the appellant's explanation does not suggest that in any way. Rather, the appellant was able to provide an explanation that may seem like the police have proper procedures in place. However, due to the appellant's various explanations that are not consistent with each other, I find the appellant has made many speculations as to why the information on the police reports is not consistent with other evidence before the RPD so I do not entirely disagree with the RPD Member's negative credibility finding on this issue. [34] However, after extensive questioning by the RPD Member, the appellant testified that the names and dates on the police report were incorrect. Thus, the RPD Member made a finding that the police reports are fraudulent. This finding is problematic as the RPD Member does not provide further explanations as to how he came to this finding. There is no persuasive evidence put forth by the RPD Member in his decision or in his questioning to support that the police reports are fraudulent. Where there is insufficient evidence to call into question the authenticity of a document it is not open to the Board to conclude it is not genuine.48 The Court has held that documents issued by a foreign government are presumed to be authentic,49 unless evidence (external to the document) is produced to prove otherwise, or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document into question.50 Where there is conflicting evidence, the RPD is entitled to choose the documentary evidence that it prefers, provided that it addresses the contradictory documents and explains its preference for the evidence on which it relies. In this case there were some inconsistencies in the appellant's testimony, but the RPD did not adequately provide any explanations as to why it found the police reports fraudulent and did not adequately address the country conditions on police effectiveness in Libya. The appellant submits that the RPD Member's finding "is unreasonable without regard to the chaotic situation and the poor quality of police services in Libya". I agree with the appellant that the RPD member erred in his assessment of the police reports and did not adequately explain why he gave no weight to all the police reports. I further agree that the RPD Member did not adequately address all the evidence in making his negative credibility finding surrounding the police reports. I also find that the RPD member's analysis on the police reports being fraudulent is weak in that he simply points to the appearance of the letterhead being "cut and pasted haphazardly onto the page". However, the RPD member did not adequately explain which police report is fraudulent considering there are two separate police reports disclosed. Therefore, I find the RPD member erred in his finding of the police reports being 'fraudulent'. Encounter with XXXX militia/the Appellant's cousin XXXX XXXX, Mother's Letter, Sister's Letter, Medical Letters [35] The RPD Member found the appellant not to be credible about the incident involving his cousin XXXX. The appellant submits51 that "the Panel Member's microscopic examination of evidence in regard to this event was unreasonable. The Panel Member was over zealous in trying to establish inconsistency in the appellant's evidence by questioning him repeatedly for a long time but still unable to prove any inconsistency." The appellant further submits52 "that the Panel Member failed in providing clear and valid reasons why he could not believe the occurrence of this event given the consistent testimony by the appellant". The appellant also submits53 that "the Panel Member in paragraph 22 determined that the appellant's testimony regarding his encounter with XXXX militia and his cousin XXXX XXXX did not contain inconsistency". The RPD Member finds:54 The Panel does not accept that the seminal event in this claim, the altercation between the claimant and his cousin XXXX, occurred in the manner described by the claimant, or that the claimant's father and brother were abducted and tortured by the XXXX militia. However, the Panel found the claimant's testimony on this issue problematic for a number of reasons. The claimant testified that he was driving with his friend when they approached the road block where the claimant's cousin XXXX was posted along with some other XXXX militia members. XXXX ordered the claimant and his friend out of their vehicle. He informed the claimant that he had seen the claimant's XXXX postings that were negative of the XXXX militia, and accordingly he was going to take the claimant back to the XXXX militia base. He pointed his weapon at the claimant and ordered him to come with him. At this point (or prior to XXXX aiming the firearm at the claimant), the claimant began to yell loudly. This caused a number of other people who were nearby to intervene in the situation. In the resulting chaos, the claimant and his friend returned to their vehicle, backed up the car, drove around the roadblock and people, and continued on their way. The claimant's version of this event is problematic for a number of reasons. It was unclear from the claimant's testimony at what point he began to yell at XXXX, thus drawing out the people who intervened in the altercation. The claimant was not able to describe what the other XXXX militia members who were with XXXX at the roadblock did in response to any aspects of the seminal event, including the altercation between the claimant and XXXX, the intervention of the crowd that allowed the claimant to escape, or the claimant's escape itself, in which he simply drove around the roadblock the militia had ostensibly set up to prevent people from travelling in precisely the manner the claimant did. [36] From my review of the recording of the RPD hearing, I note that the RPD Member did question the appellant on this particular incident extensively. The appellant did provide answers to the RPD Member's questions. However, I find the RPD Member's negative credibility findings involve minor concerns which reflect a microscopic analysis of the evidence. The RPD Member also made a negative credibility finding involving the inconsistency in other documents before him. The Mother's letter55 refers to XXXX as 'XXXX XXXX', and also states that her son, the appellant, was hit during the checkpoint incident. The RPD Member finds:56 The letter provided by the claimant's mother57 states that the claimant was hit by XXXX during their altercation, which was contrary to the claimant's testimony. The claimant's explanation for the inconsistency was that his mother had thought he was hit, because she saw a red mark from where the claimant had been grabbed by XXXX. While this explanation may in fact be true, it does nothing to increase the reliability of the claimant's mother's evidence, as she apparently did not have an accurate understanding of what had transpired. She also refers to the claimant's assailant as "XXXX XXXX," despite the fact that the assailant was one of her relatives. [37] The RPD Member also finds:58 The letter provided by the claimant's sister59 describes the claimant as "our son." [38] And the RPD Member finds:60 The medical report61 provided by the claimant to detail injuries suffered by his father and brother when they were attacked have been written in English, despite the fact Arabic is the official language in Libya.62 The claimant speculated that this may have been done because the doctor studied abroad, but provided no real explanation. [39] The appellant submits that "it is unreasonable for the Panel Member to dismiss this relevant evidence simply because the medical reports were written in English and the Panel Member did not point out to any documentary evidence before him that shows that a medical report from Libya cannot be written in English." 63 Regarding the above credibility issues, the RPD Member has not provided any reasons for why he does not believe the appellant's explanations. Furthermore, I find this is a microscopic analysis of the evidence and the RPD Member has made his own speculations in his findings rather than providing reasons for why he does not accept the appellant's explanations. I find the RPD Member did not provide a clear explanation for why he did not find the appellant's explanations reasonable. The Courts have said that "if the RPD believes only some of the claimant's story, it is obliged to say what parts it rejected and why.64 It is not enough to say that the evidence is not believed, since this creates an appearance of arbitrariness. 65 [40] Accordingly, having reviewed all the evidence before the RPD and the RAD, including the RPD oral hearing in its entirety,66 I find the appellant has accurately identified errors in the RPD Member's assessment of credibility of the claim. XXXX postings against XXXX militias and fear of XXXX militias [41] Furthermore, the appellant submits "the RPD Member's reasons are unsupported by the evidence at hand and solely dismissed this evidence based on previous negative credibility findings." 67 The Court has determined that "where the claimant provides personal documentary evidence or medical reports, specific to and corroborative of his claim, it is not sufficient to simply make a blanket statement, without explanation, that no probative value was assigned to this evidence because of a general lack of credibility on the part of the claimant."68 [42] The RPD Member finds:69 The Panel accepts the claimant has made a number of remarks critical of the XXXX militia on his XXXX page, as well as remarks critical of other militias. The Panel does not accept that the claimant has ever suffered harm from the XXXX militia because of these XXXX postings, or that there is more than the mere possibility he would face harm from the XXXX militia because of these postings if he were to return to Libya. Due to the credibility issues noted within these reasons, the Panel finds the incident between the claimant and his cousin, XXXX, did not occur, and that the claimant's father and brother were not abducted and tortured by the XXXX militia as a result of this incident. The Panel notes the claimant's testimony regarding other incidents that occurred in Libya that gave the claimant reason to fear for his safety. These incidents included some threats made through an online chat program, an attempted robbery, and an incident that occurred in XXXX 2014 when the claimant's brother was attacked by some militia members at the family farm. The claimant did not connect these incidents to his alleged problems to the XXXX militia. The claimant ignored the online threats because he did not think they were serious. There is no evidence that would indicate that either the attempted robbery in XXXX or XXXX 2012 or the attack on the farm was connected to the XXXX militia's objections to the claimant's political opinion. [43] The RPD Member further finds:70 The Panel also notes that the militias in Libya suppress freedom of expression by harassing, abducting, and detaining journalists for investigating reports of militia activities.71 There is also evidence to support that the government monitored email and internet communications. However, there is no evidence that the XXXX militia would target someone simply for posting certain material on that person's personal XXXX page. The claimant is not a journalist or other similarly situated person who would be well-known for his publicly expressed views. The only medium by which he expresses his opinion is XXXX, an internet application on which the claimant entirely controls who has direct access to the material, posted by the claimant. There are over XXXX XXXX XXXX XXXX users in Libya,72 and the Panel does not find it plausible that any of the militias in Libya would have the means or the inclination to monitor all of these users for opinions that would be critical of the militias. [44] I find that the RPD Member failed to reasonably assess the evidence before him. Furthermore, I find the RPD Member's continued reliance on using other credibility findings to assess the overall claim is an error. He has not adequately established how all the negative credibility findings are linked to come to the final determination in finding the appellant not credible. [45] The Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.73 I find that the RPD Member has not adequately assessed all the evidence before him in finding the appellant not to be at risk of harm. I also find the RPD Member has erred in his assessment of the country documents when assessing the appellant's claim of fear of persecution. [46] Despite all the inconsistencies raised by the RPD Member in his findings, I find the RPD Member did not explain why he did not believe the appellant despite the appellant giving explanations during the RPD oral hearing. Furthermore, I find the RPD Member erred in its negative findings of fact which is peripheral to the risk feared by the appellant, especially as it relates to his activities in Canada and his fear of the militias in Libya. [47] I find the appellant has accurately identified errors in the RPD Member's assessment of the claim. I considered whether I could substitute the RPD determination by doing an independent assessment of the claim (as directed by Huruglica), but I find I cannot do so without hearing evidence that was presented to the RPD Member. I therefore allow the appeal and refer the matter back to the RPD for redetermination. REMEDY [48] For all these reasons, I set aside the determination of the RPD and refer the matter of the claim of XXXX XXXX XXXX XXXX to the RPD for redetermination by a differently constituted Panel as per paragraph 111(1) (c) of the IRPA. (signed) "Rena Dhir" Rena Dhir October 16, 2015 Date 1 Exhibit 3, Refugee Protection Division Record (RPDR). 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 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 4 Exhibit 3, RPDR, Basis of Claim (BOC), pp. 20 to 35. 5 Exhibit 4, Appellant's Record (AR). 6 Exhibit 2, AR, Memorandum. 7 Dunsmuir v. New Brunswick, 2008 SCC 9. 8 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 9 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 11 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 12 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859. 13 Yetna v. Canada (Minister of Citizenship and Immigration), 2014 CF 858. 14 Wahgmo v. Canada (Minister of Citizenship and Immigration), 2014 FC 923. 15 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 16 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494, para. 41. 17 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 27. 18 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 28. 19 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, para. 33. 20 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 37. 21 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 55. 22 Exhibit 2, AR, Memorandum. 23 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 54. 24 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799, para. 55. 25 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 26 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 27 Spasoja, Francisca v. Canada (Citizenship and Immigration), 2014 FC 913. 28 Alyafi v. Canada (Citizenship and Immigration), 2014 FC 952. 29 Djoussou v. Canada (Citizenship and Immigration), 2014 FC 1080. 30 Siliya v. Canada (Citizenship and Immigration), 2014 FC 120. 31 Garcia Kanga v. Canada (Citizenship and Immigration), 2012 FC 482. 32 Exhibit 2, AR, Memorandum. 33 Exhibit 3, RPDR, Compact Disk, oral hearing. 34 Exhibit 2, AR, Memorandum. 35 Exhibit 2, AR, Memorandum. 36 Exhibit 2, AR, Memorandum. 37 Exhibit 3, RPDR, Member's Decision. 38 Exhibit 3, RPDR, Member's Decision. 39 Exhibit 3, RPDR, Member's Decision. 40 Exhibit 3, RPDR, Member's Decision. 41 Exhibit 3, RPDR, Member's Decision. 42 Mesidor, Josue Peterlee v. M.C.I. (FC, no IMM-2233-09), Shore, December 4, 2009, 2009 FC 1245, note 5, para. 12. 43 Huerta, Martha Laura Sanchez v. M.E.I. (F.C.A., no. A-448-91), 1993, 157 N.R. 225. 44 Exhibit 3, RPDR, Member's Decision. 45 Exhibit 3, RPDR, Police Reports, pp. 200 to 201, 508 to 509, 511 to 512. 46 Exhibit 3, RPDR, Member's Decision. 47 Exhibit 3, RPDR, Member's Decision. 48 Gyimah, Joycelyn v. M.C.I. (F.C.T.D., no. IMM-1011-93), Gibson, November 10, 1995; Kashif, Zakria Mohammed v. M.C.I. (F.C.T.D., no. IMM-760-02), Pinard, February 18, 2003, 2003 FCT 179; Hadjalaran, Zyulhan Ismail v. M.C.I. (F.C.T.D., no. IMM-6134-99), Campbell, July 18, 2000. 49 Warsame, Mohamed Dirie v. M.E.I. (F.C.T.D., no. A-758-92), Nadon, November 15, 1993. 50 Mpoli, Noellie Ngoya v. M.C.I. (F.C.T.D., no. IMM-2098-02), Nol, April 3, 2003, 2003 FCT 398. 51 Exhibit 2, AR, Memorandum. 52 Exhibit 2, AR, Memorandum. 53 Exhibit 2, AR, Memorandum. 54 Exhibit 3, RPDR, Member's Decision. 55 Exhibit 3, RPDR, p. 182. 56 Exhibit 3, RPDR, Member's Decision. 57 Exhibit 3, RPDR, p. 182. 58 Exhibit 3, RPDR, Member's Decision. 59 Exhibit 3, RPDR, pp. 518 to 519. 60 Exhibit 3, RPDR, Member's Decision. 61 Exhibit 3, RPDR, pp. 44 to 54. 62 Exhibit 3, RPDR, National Documentation Package (NDP), Libya, March 14, 2014, Item 1.3. 63 Exhibit 2, AR, Memorandum. 64 Ramirez, Ana Gabriela Espriella v. M.C.I. (F.C.T.D., no. IMM-2540-98), McKeown, April 20, 1999. 65 Guzman, Luis Martinez v. M.C.I. (F.C.T.D., no. IM-472-97), Nadon, December 22, 1997. 66 Exhibit 3, RPDR, CD-Oral Hearing. 67 Exhibit 2, AR, Memorandum. 68 Lahpai, Aung Gam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 88. 69 Exhibit 3, RPDR, Member's Decision. 70 Exhibit 3, RPDR, Member's Decision. 71 Exhibit 3, RPDR, NDP, Items 2.1 and 2.2. 72 Exhibit 3, RPDR, NDP, Item 2.5. 73 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-01032