TB5-09091

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 : TB5-09091 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 December 1, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 (the Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant requests an oral hearing according to section 110(6) of the IRPA. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that this Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection in accordance to section 97 of the IRPA. Background [3] The Appellant alleged before the RPD that he fears returning to Somalia because he will be persecuted by Al Shabaab. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [4] The Appellant's application for refugee protection was heard over three dates beginning on December 2, 2014, and continuing on June 5, 2015 and again on August 4, 2015. A negative decision was rendered in writing on August 11, 2015. The RPD found that the Appellant was not a credible witness and had failed to establish credible and trustworthy evidence of his identity or of the risks he claims to face. [5] The Appellant submits that the RPD erred in its assessment of whether or not the Appellant was familiar enough with the practices of Sufism, as the RPD cited no evidence to support its findings in that regard. The Appellant submits that the RPD erred in its overall assessment of the identity of the Appellant with specific regard to the Appellant's religious beliefs and affiliations. [6] The Appellant submits that the RPD erred in fact when it said that federal forces took the town of Garbharey without footnote reference; when, in fact, the federal forces took territory near the town, but not the town. ANALYSIS Admissibility of Evidence Submitted on Appeal [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [8] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.3 Application of Section 110(4) [9] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in their circumstance, to have presented the evidence to the RPD prior to the rejection of their claim. If they could not have been expected to do so, the evidence meets the requirements of the section. [10] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.5 [11] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [12] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [13] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness", these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in section 110(4). [14] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.7 While Raza predates the introduction of IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). The Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.8 The RAD presumes that Parliament, in creating section 110(4), was well aware that this provision is almost identical in wording to section 113(a)-which provides a strong indication that Parliament intended the test from Raza to be used by the RAD.9 [15] In Iyamuremye,10 the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under the IRPA. Subsequently in Ghannadi,11 the Court held that the RAD should consider the factors in Raza, but noted that these are merely considerations to be taken into account and not necessarily determinative of admissibility. In Singh,12 the Court found that the factors in Raza are based specifically in the language of section 113(a) and are not transferable in the context of an appeal before the RAD. The Court found that it was unreasonable for the RAD to strictly apply the Raza factors without distinguishing its own role from that of a Pre-Removal Risk Assessment (PRRA) officer who is bound by section 113(a).13 [16] In Singh, the Court wrote that: ...in order for there to be a 'full fact-based appeal' before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.14 [17] The Court also held that the "...main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally according to the French version) have been expected in the circumstances to have presented.'"15 [18] The Court did not discuss Iyamuremye or Ghannadi in its analysis of sections 110(4) and 113(a). It did, however, certify the following question: In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? [19] The question of whether the Raza factors are applicable to evidence that passes the test in section 110(4) is still unsettled.16 It has been found that the application of the Raza criteria by the RAD is reasonable;17 it has also been held that the application of those factors without modification is an error.18 The Raza factors have also been described by the Court as "useful guidance".19 [20] While trusting that the matter will eventually be resolved by the Federal Court of Appeal, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. Although it may be inappropriate to strictly apply the factors in Raza, given that they are not specific to section 110(4) and were not crafted for use in an appellate process, the RAD's consideration of new evidence cannot end with the application of the test in section 110(4). To limit its analysis to that provision would be to ignore other provisions of the IRPA-such as sections 162(2) and 171(a.3). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [21] In Denbel, the Federal Court held that: When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.20 [22] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of section 110(4), but also to consider whether it has evidentiary value and, if so, how much. While the factors in Raza are indeed helpful guidance, the RAD would undertake a very similar analysis even if it would completely disregard that decision. [23] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances". This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [24] While the IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.21 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "...deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [25] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in section 110(4). [26] The RAD will also consider whether the proposed new evidence is material. In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [27] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,22 and the officer has no power to reconsider or set aside the RPD's decision. A PRRA will, in most cases, take place a year or more after the RPD's decision.23 In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [28] However, as the Court noted in Singh, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The RAD appeal is meant to be decided within four or five months of the RPD's decision. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. It is of paramount importance that the RAD may look only to admissible new evidence when considering whether to hold a hearing under section 110(6).24 [29] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD were to apply the materiality factor as defined in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. Further, the RAD is not asking-as the PRRA officer is under Raza-whether the RPD's decision would have been different. The RAD is considering whether the RAD thinks the determination should have been different or whether the RPD decision was in error. [30] For example, it is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity and, in such situations, the RPD is not required to go further to consider the evidence of persecution.25 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD, and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality, even though they could be the basis for a successful appeal. [31] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. While the PRRA officer is required to focus on a single issue-risk to the applicant-the RAD is required to consider both whether the RPD decision is in error and, after having reviewed all of the evidence, whether the Appellant is a protected person. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal, rather than the RPD's decision, is therefore preferred. [32] For these reasons, the RAD will apply the following factors to evidence that passes the test in section 110(4): (a) The RAD will consider whether the proposed new evidence is credible or trustworthy; (b) The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal;26 (c) The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [33] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [34] The RAD has canvassed all of the proposed new evidence and has thoroughly read the submissions regarding the new evidence and finds as follows. [35] The affidavit of Ms. XXXX27 is a document which could have been provided in time for the hearing before the RPD. The affiant was scheduled to testify before the RPD; however, when the hearing date was changed, she was no longer available to testify at the new date. There is no reasonable excuse presented to explain why the affiant could not have given this affidavit to the Appellant in time for the hearing's new date. Simply saying, as counsel for the Appellant does,28 that this was beyond the control of the Appellant, is insufficient. Why was the Appellant unable to ask for the affidavit once he found out that the affiant was unable to attend the next hearing date? The Appellant was represented by counsel and should have been advised of the importance of such evidence. This evidence does not comply with the rules as set out above and consequently will not be allowed into evidence. [36] The second item to consider is the evidence of XXXX XXXX XXXX.29 Once again, there is no reasonable explanation for the submission of this document, post decision. The Appellant states only that he believed this evidence was not necessary as he had arranged for "other evidence" and that Mr. XXXX was working in Alberta. Again, this document could have reasonably been obtained and presented before the RPD's decision was rendered and the only explanation given is not reasonable. For this reason, the RAD rejects this document as new evidence. [37] Counsel submits that section 110(6) "...clearly contemplates that the hearing [(oral hearing requested)] would be held before the evidence [(new evidence submitted)] is accepted or refused."30 Counsel is clearly wrong. Section 110(6) clearly says the RAD may hold a hearing if there is documentary evidence referred to in subsection (3). [Emphasis added] Such evidence does not exist if a document has not been allowed into evidence in accordance to section 110(4), first. The hearing referred to may only go ahead if such evidence has been allowed, first. Even then, the oral hearing is at the discretion of the RAD. The RAD sees no need, in this particular case, to hold a hearing, as the RAD has decided the appeal on the basis of the evidence submitted. [38] The third document presented as new evidence is the affidavit from the Appellant's mother.31 The Appellant's mother, XXXX XXXX XXXX, lives in a refugee camp in Kenya. She is registered in XXXX XXXX camp under registration number XXXX. The Appellant did not know the whereabouts of his mother until after the decision was handed down. The Appellant was notified of his mother's address by a cousin living in the U.S.A. who called the Appellant on August 20, 2015, nine days after the decision was made. The RAD finds this explanation to be reasonable and finds the content of the affidavit to be material to the claim. The RAD will therefore allow this affidavit into evidence. Role of the RAD [39] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,32 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". [40] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [41] The Appellant argues that the RPD erred in its overall assessment of the Appellant's religious beliefs and affiliations. This is the only real issue for the RAD to assess, as it is determinative in this claim/ appeal. [42] The question is whether or not the Appellant is a Sufi. If he is a Sufi, then he would most certainly, or at least on a balance of probabilities, face a risk to his life from Al- Shabaab should he return to Somalia. According to documents at the Board, Al Shabaab considers practitioners of Sufism as apostates,33 and accordingly Sufis are frequent targets of violence by Al Shabaab. Other documents34 at the Board lay out the large areas of Somalia controlled by Al Shabaab, and also speak to how Al Shabaab remains firmly ensconced in areas technically under government control. The RAD finds that any Sufi returning to Somalia faces a risk to life from Al Shabaab. [43] The RPD did not err in its findings based on the evidence before it at the hearings. However, as the RAD accepts the affidavit of the mother of the Appellant at its face value, the RAD finds that the Appellant is a Sufi Muslim and as such, on a balance of probabilities, would face persecution should he return to Somalia, at least to XXXX or XXXX. As there was no discussion of an internal flight alternative by the RPD, the RAD will not visit that possibility as to do so would be unfair to the Appellant at this time. Disposition [44] The RAD has found that the RPD's decision cannot stand. CONCLUSION [45] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection in accordance to section 97 of the IRPA. (signed) "David Lowe" David Lowe December 1, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 12- 24. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected"; see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 51. 3 Refugee Appeal Division Rules, section 3(3)(g)(iii). 4 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 5 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 7 Raza, Syed Masood v. M.C.I. (F.C.A. no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Ibid., Raza, paras. 13-15. 9 The presumption of consistent expression holds that "it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings." Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 214- 215. 10 Iyamuremye, Oscar v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014, 2014 FC 494, para. 45. 11 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras. 17-18. 12 Singh, para. 56. 13 See also Khachatourian, Robert v. M.C.I. (F.C., no. IMM-4928-14), Noel, February 13, 2015, 2015 FC 182, para. 37. 14 Singh, para. 55. 15 Singh, para. 58. 16 Deri, para. 56. 17 For example, Oluwole, John v. M.C.I. (F.C., no. IMM-6525-14), Southcott, August 14, 2015, 2015 FC 953, paras. 10 and 39; Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-6839-14), Strickland, August 13, 2015, 2015 FC 967, para. 59; Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, paras. 40- 44. 18 For example, Shukurov, Sharof v. M.C.I. (F.C., no. IMM-6058-14), Fothergill, August 6, 2015, 2015 FC 949, para. 26; Ajaj, Firas Salem Munef v. M.C.I. (F.C., no. IMM-5604-14), Gascon, July 28, 2015, 2015 FC 928, paras. 61-63; Ching, Wai Kheong v. M.C.I. (F.C. no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, para. 56; Khachatourian, para. 37. 19 Niyas, Mohamed Zayan v M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 20 Denbel, para. 43. 21 There is a great deal of support for this view. "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33, at para. 64. 22 Cupid, Keturah Laverne v. M.C.I. (F.C., no. IMM-1737-06), Snider, February 16, 2007, 2007 FC 176, paras. 4, 25, and 26. 23 IRPA, s. 112(b.1). 24 Singh, para. 53. 25 Liu, Yanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 26 See Raza, at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 27 Exhibit P-2, Appellant's Record, p. 19. 28 Exhibit P-2, Appellant's Record, Memorandum, p. 28, para. 9. 29 Exhibit P-2, Appellant's Record, pp. 23- 24. 30 Exhibit P-2, Appellant's Record, p. 28. 31 Exhibit P-2, Appellant's Record, p. 13. 32 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 33 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (31 March 2015), item 12.3. 34 Ibid., item 4.2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09091