TB5-11856

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 : TB5-11856 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 March 9, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Razgar Hasan 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 AND DECISION [1] XXXX XXXX XXXX XXXX(the Appellant), a citizen of Libya, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal.1 The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and refer the matter back for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. This appeal is allowed. Background [3] The Appellant alleged before the RPD that he and his family have been targeted and threatened by the Libyan Dawn militia due to their political opinions. [4] The Appellant's application for refugee protection was heard on October 14, 2015. By a decision of October 22, 2015, the RPD rejected the claim. The panel cited a number of inconsistencies in the Appellant's evidence and concluded that he was not credible with respect to his allegations of being targeted by Libyan Dawn. [5] The Appellant submits that the RPD erred by making microscopic and irrelevant credibility findings and by ignoring evidence. ANALYSIS What is the Role of the RAD? [6] While the IRPA 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 lower tribunal. [7] The Appellant submits that questions of law should be reviewed by the RAD on a standard of correctness, while questions of fact or of mixed fact and law should be reviewed on a standard of reasonableness. [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.2 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal - that is, where there is no admissible new evidence, as is the case here - the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.3 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence - that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference -such as an overall lack of credibility, based on oral testimony - the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [16] The Appellant argues that the RPD made various errors in rejecting his claim on the basis of credibility. [17] Inconsistencies in student visa application: The RPD considered the Appellant's application for a Canadian student visa. In that document, he was described as a "free employee" from XXXX 2011 to XXXX, 2014, while in another immigration form he declared that he was unemployed during much of that time. The Appellant could not explain the difference, and in fact gave slightly different evidence again in trying to clarify the discrepancy. The RPD made a negative credibility finding. [18] The RPD also noted that the visa application showed the Appellant's siblings as living in XXXX, while the Appellant's Basis of Claim (BoC) form listed them as living in XXXX. The Appellant could not provide an explanation and the RPD made another negative credibility finding. [19] The Appellant submits on appeal that he did not complete the visa application, as he used the services of an agency for this. Further, he points out that the application was never signed. He argues that, in any event, the inconsistencies identified by the RPD are completely irrelevant to the basis of his refugee claim. [20] The RAD has reviewed the visa application,4 the Appellant's BoC,5 and his oral testimony before the RPD,6 and has concluded that the RPD erred in its treatment of the alleged inconsistencies. The RPD asked the Appellant what it meant to be a "free employee," and the Appellant responded that he was at home and not employed during that time period. The RPD asked him why he provided false information, and he responded that when he applied for the visa, he did not fill out the application himself, but applied through an agency, and he believed the mistake was committed by the agency.7 [21] The RPD's reasons simply ignore the Appellant's explanation that an agency completed the form and that he was not aware of all of its contents. The Appellant points out, and the RAD observes, that the application form was not signed; this supports the Appellant's testimony that he did not complete the form. While the RPD was not obligated to accept this explanation, it was wrong to find that he had not provided an explanation.8 [22] The visa application gives the Appellant's employment history as "free employee," and uses the same term to describe his employer. The RPD understood this to mean that the Appellant was employed, and found this to contradict his oral evidence that he was unemployed. In the RAD's view, this is weak ground for a negative credibility finding. The employment information provided in the visa application could be faulted for being vague, or perhaps an improper use of the English language. It was, however, an error for the RPD to assume that "free employee" somehow indicated employment, when there was neither occupation nor employer listed. [23] Even if this was an inconsistency - and the RPD noted that when the Appellant attempted to clarify the issue, he provided more inconsistencies with respect to the actual dates - it is difficult to see how this is material to the Appellant's refugee claim. He alleges that, while he was studying in Canada, his family was threatened and attacked by the Libyan Dawn militia. Even if the Appellant gave arguably contradictory evidence about his prior employment, and even if that cannot be explained by the use of an agency to complete the visa application, how does this affect the credibility of his claim that he is targeted by an Islamic militia? [24] The RPD's credibility finding with respect to the city of residence of the Appellant's siblings is also an error. The panel failed to consider that the visa application was allegedly completed by an agency and not signed by the Appellant. The RPD also did not explain why this inconsistency undermined the Appellant's claim to fear a militia group. [25] The RAD notes that there may be instances where numerous inconsistencies in evidence may damage a refugee claimant's credibility, even if they do not directly relate to the heart of his claim. That was not the case here, where the RPD found relatively few inconsistencies. The contradictions arising out of the visa application were relatively minor and of questionable relevance to the core of the claim, while the explanation provided was not considered by the RPD. [26] Threats: The Appellant told the RPD that his family received death threats after their home was burned in XXXX of 2015. He testified that this was the reason his family fled to Egypt. The RPD wrote: The claimant was asked why he had not declared these death threats in his BOC. He provided no explanation for this material omission. The claimant's failure to indicate the existence of these death threats until the day of the hearing materially undermined his credibility.9 [27] The RPD's reasoning here is neither comprehensible nor supported by the evidence. The Appellant's BoC narrative states that he received news that his family home had been burned down, and his family fled to Egypt "because the threats they received from [Libyan Dawn] to leave the city. My father was very lucky that he was not killed or kidnapped for ransom."10 [28] The RPD was wrong to find that the Appellant had not declared the threats in his BoC. If the RPD was taking issue with the fact that these were described as "threats" instead of "death threats," this would also be wrong, in the RAD's view. It is clear from the Appellant's BoC that his family was threatened and feared death, and the use of the word "threats" instead of "death threats" constitutes a very minor omission when considered in the overall context of his narrative. [29] Profile: The Appellant claimed that he, like his father, is open-minded and has liberal views, including support for separation of state and religion and condemnation of the power of religious militias.11 The RPD found that the Appellant's allegations of being targeted by Libyan Dawn were not credible, but made neither a general credibility finding nor a specific finding with respect to the Appellant's political and religious views. As the Appellant was entitled to the presumption of truthfulness, the RAD can only conclude that the RPD did not have reason to doubt the Appellant's views. The RPD was therefore required to consider whether the Appellant has a well-founded fear of persecution because of those views. [30] The RPD also made a negative credibility finding with respect to the alleged kidnapping of the Appellant. The Appellant testified that he was kidnapped by Libyan Dawn two months prior to arriving in Canada. He was detained for a short period of time and released, possibly because his father had paid a ransom. This incident is simply not mentioned in the Basis of Claim form, and the RPD made a negative credibility finding. [31] The Appellant argues on appeal that he has witnessed civil war for years, and he forgot to mention the kidnapping because there are too many kidnapping attempts in Libya.12 With respect, this argument is far from convincing. The Appellant alleges that he fears harm at the hands of Libyan Dawn. How could he have forgotten to include in his narrative, completed with the assistance of experienced counsel, that he was kidnapped by this group? In the RAD's view, this omission is very damaging to his credibility. [32] The RPD found that the Appellant is not targeted by Libyan Dawn. This conclusion rests not only on the kidnapping inconsistency, but on the RPD's flawed analysis of the visa application and of the issue of the death threats. Even if the Appellant is not targeted by Libyan Dawn, the RPD was required to assess whether his religious and political views give rise to a well-founded fear of persecution. [33] The RPD erred in its assessment of the Appellant's credibility, and in failing to consider his profile. CONCLUSION [34] This appeal is allowed. Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. (signed) "Edward Bosveld" Edward Bosveld March 9, 2016 Date 1 While the Appellant filed a Written Statement indicating that he is relying on new evidence, the RAD notes that the evidence upon which he seeks to rely (Appellant's Record, Pages 18-26) is already before the RAD (see RPD's Record, pages 126-134) . 2 X (Re), 2015 CanLII 19235 (CA IRB). 3 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 4 RPD's Record, Page 111. 5 RPD's Record, Page 9. 6 RPD's Record, Audio Recording. 7 RPD's Record, Audio Recording, 21:17 to 23:11. 8 See RPD's Reasons, paras. 8 and 9. 9 RPD's Reasons, para. 12. 10 RPD's Record, Page 17, Basis of Claim Narrative, para. 6, emphasis added. 11 RPD's Record, Pages 11 and 17, Basis of Claim. 12 Appellant's Record, Page 77, Appellant's Memorandum of Law and Argument. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11856