TB5-08024

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 : TB5-08024 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 15, 2015 Date de la décision Panel Pasquale A. Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Idorenyin E. Amana 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] The Appellant, XXXX XXXX XXXX, is a citizen of Ghana, and appeals a decision of the Refugee Protection Division (RPD) dated April 19, 2015, rejecting his claim for refugee protection. The Appellant is requesting that the decision of the RPD be set aside and refer the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee. The Appellant is not submitting new evidence. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant lacked credibility and dismisses the appeal. BACKGROUND [3] The Appellant fears returning to Ghana because he alleges that, after the death of his uncle, XXXX XXXX XXXX, a head fetish priest, he was nominated as successor to his uncle as the head fetish priest by members of his family and the community. He alleges that he was threatened and was forced to flee Ghana. He arrived in Canada on March 25, 2014 and signed his claim for refugee protection on November 13, 2014. The RPD concluded that the Appellant was not a credible witness. ROLE OF THE RAD [4] The Appellant has not provided any submissions with respect to the role of the RAD. The RAD finds that the recent Federal Court decision in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [5] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [6] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ISSUES OF THE APPEAL [7] The RPD found that the determinative issue in this claim is credibility. However, the only issue raised by the Appellant in this appeal is that the RPD made a fundamental error in law and fact when it had concluded that the Appellant could return to Nigeria whereas the Appellant is actually a citizen of Ghana.3 ERROR IN THE DECISION OF THE RPD [8] The RAD acknowledges that in paragraph 33 of the decision, the RPD incorrectly identified the Appellant as being from Nigeria and not from Ghana. However, the RAD also notes that the decision of the RPD is 34 paragraphs long. The RPD mentions that the Appellant is from Ghana in paragraphs 1, 4, 6, 7, 9, 10, 11, 22, 23, 29, 30, and 32. The RAD concludes that the reference to Nigeria in paragraph 33 is a typographical error and did not influence the decision of the RPD. [9] No other issues were raised by the Appellant. CONCLUSION [10] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant lacked credibility. [11] The appeal is dismissed. (signed) "Pasquale A. Fiorino" Pasquale A. Fiorino September 15, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Exhibit P-2, Appellant's Record, pg. 54, parag. 14 and 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-08024