TB5-07394

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 : TB5-07394 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 October 14, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack C. Martin 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, a citizen of Ethiopia, appeals decision of the Refugee Protection Division (RPD) dated June 19, 2015, rejecting her claim for refugee protection. DETERMINATION [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination by a differently-constituted panel, with direction. Background [3] This claim was initially heard by the RPD in July 2013 and the RPD rejected the claim by written reasons. The Appellant's first appeal to the RAD was allowed on November 27, 2013. The first RAD found that the RPD's credibility determination was reasonable; and the RAD remitted the matter back to the RPD as the RPD had failed to consider the risks to the Appellant due to her parent's political activities and her father's ethnicity. [4] The RPD heard the claim again on June 9, 2015, and by a decision dated June 19, 2015, the RPD rejected the claim. This appeal is regarding the June 2015 determination by the RPD. [5] The Appellant alleged before the RPD that she is afraid to return to Ethiopia and fears persecution as a result her parents' opposition to the ruling party and of her perceived ethnicity. [6] The Appellant's father is of Oromo ethnicity and her mother is Amhara. Both parents were active in the opposition party, the Coalition for Unity Democracy (CUD). In XXXX 2011, the Appellant's father was arrested and imprisoned; he was released in XXXX 2011. During detention, he was beaten and tortured by the authorities. The Appellant's father was arrested again as a suspected member of Ginbot Sebot, an illegal organization in Ethiopia. He was mistreated and was released on bail with conditions after three months in detention. [7] The Appellant and her mother were arrested at their home in 2012 and were taken to the XXXX police station. The Appellant was detained for three days, and during detention she was beaten and sexually abused. Her mother was released after nine days of detention, and in detention she was also interrogated and tortured by security agents. The Appellant attended a private clinic. Her parents, concerned for her safety, sent her to Canada in March 25, 2013. [8] The RPD found that the Appellant was not a Convention refugee or a person in need of protection. In its reasons: * The RPD stated that it was conducting a de Novo hearing. * The RPD stated in its reasons at paragraph 2: The RAD member determined that while the RAD found the RPD's questioning whether the Appellant's detention happened as described, if at all, was reasonable. As outlined above, the RAD finds that the RPD erred in not conducting a thorough analysis of the possible risks faced by the Appellant should she return to Ethiopia because her parents are members of opposition political parties. * The RPD wrote in its reasons at paragraph 3: As such, the panel limited its current assessment to the risks the claimant would face as the child of parents who were allegedly politically active and members of the Coalition for Unity and Democracy ("CUD") while taking into account the findings of the psychiatrist report. [9] The Appellant's key argument is that the RPD denied fairness by denying a full hearing to the Appellant, and stated1 in her Memorandum, "While the panel was entitled to focus on certain issues highlighted by the RAD, in the absence of specific directions by the RAD, the panel was not entitled to exclude certain issues and to adopt the reasons of the first panel." [10] The Appellant requests that the RAD allow the appeal and find the Appellant to be a Convention refugee. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD for re-determination. [11] The Appellant did not provide any new evidence in support of her appeal. Role of the RAD [12] The jurisprudence on the appropriate role of the RAD is still evolving and several questions have been certified. The Appellant cited Federal Court decision, Huruglica,2 which 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". [13] This decision is generally accepted and followed, awaiting decision by the Federal court of Appeal. Thus, I will be guided by the Huruglica decision, and arrive at my determination after a review of the totality of the evidence before me. Also following Huruglica,3 I will recognize and respect the RPD's credibility findings where it enjoys a particular advantage. In a number of recent decisions,4 the Federal Court also confirmed that the RAD may show a certain level of deference towards the RPD's credibility findings. As outlined above, the Appellant alleges that the RPD's decision contained errors concerning credibility and negative inferences, which are errors of fact. ANALYSIS De Novo Hearing [14] The Appellant argues in her Memorandum, at paragraph 17, that: At the 7 minute mark of the hearing, the member acknowledged it was a 'de novo' hearing. However, the member then said she was 'adopting the credibility findings relating to the dates of detention', as well as to the timing of when the passport was obtained, and an 'omission of the systemic discrimination' the appellant said she would face as a result of her Oromo ethnicity. [15] A review of the audio recording of the RPD's hearing shows that the RPD panel stated at the 7 minute 45 second mark that the "... focus of the hearing will be as directed by RAD." The RAD reasons do not include any such direction. Moreover, the RPD panel continued,5 "I have read both the decision of the previous member as well as RAD, and I agree with their findings, OK." The RPD may agree with the outcome, but only after doing its own analysis of the evidence. [16] After considering the totality of the evidence, the RAD finds that the RPD erred in law by not conducting a full re-determination hearing. The RPD assumed, and clearly stated, that it was limiting its inquiry and was going to rely on the RAD's finding of reasonableness on one issue related to credibility. A failure to conduct a full de Novo hearing is an error in law. It appears that the RPD misunderstood the RAD's direction that it "...refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel." At no time did the RAD limit the RPD's scope of investigation. Failure to Make Own Finding on Credibility [17] The RPD erred by adopting the credibility findings of the RPD's first panel. The first RAD panel found that the RPD's finding on the date of arrest and detention was reasonable. The RAD also stated that credibility remains an issue in sending the claim back to the RPD for re-determination. The RAD did not make a determination on the overall credibility of the Appellant. In fact, "The RAD notes that credibility was and remains a key issue in the Appellant's refugee claim".6 [18] By adopting the findings of other panels on credibility, the RPD panel fettered its discretion and responsibility. The RPD panel was obliged to make its own credibility assessment. Thus, a failure by the RPD to conduct an independent credibility assessment is an error. Microscopic Analysis [19] I find that the RPD engaged in microscopic analysis. For example, The RPD, in reasons at paragraph 28, acknowledged that the date of birth of the Appellant's father, whether it was XXXX 1946 or XXXX 1946, was a minor issue; and yet, the RPD took this in the overall and cumulative credibility assessment of its finding the Appellant was not credible. Moreover, this minor issue is peripheral to the claim. [20] Based on the forgoing, I find that the RPD panel erred for the three reasons mentioned above; therefore, this decision is not supportable. This RAD, as did the first RAD, finds that credibility remains an issue and thus, the RAD is not in a position to make a determination that the Appellant is a Convention refugee or a person in need of protection. CONCLUSION [21] The RAD refers the matter back to the RPD for redetermination by a differently constituted panel. [22] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel, with direction to conduct a complete de Novo hearing. [23] This appeal is allowed. (signed) "Atam Uppal" Atam Uppal October 14, 2015 Date 1 Exhibit P-2, Appellant's Record, at p.33, para. 4. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Ibid. 4 Youkap, Felicie Kouamo v. M.C.I. (F.C., no. IMM-5051-14), Shore, February 27, 2015, 2015 FC 249. 5 Exhibit RPD-1, RPD's Record, Audio Recording, at 8:31 minute mark. 6 Exhibit RPD-1, RPD's Record, at p. 28, para. 40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07394