TB6-18481

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 : TB6-18481 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 May 9, 2017 Date de la décision Panel Pasquale FIORINO Tribunal Counsel for the person(s) who is(are)the subject of the appeal Phillip J.l. Trotter 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 XXXX., is a citizen of the United States of America and of the Bahamas, and appeals a decision of the Refugee Protection Division (RPD) dated September 13, 2016, rejecting his claim for refugee protection. The Appellant is submitting new evidence and is requesting a hearing. The Appellant is requesting that the RAD set aside the decision of the RPD and refer the matter back to the RPD or that the RAD substitute a determination that the Appellant is a Convention refugee. 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. BACKGROUND [3] The Appellant fears returning to the Bahamas due to his sexual orientation and to the United States of America due to his sexual orientation and the fact that he is a black individual. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court of Appeal 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. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [6] The RPD found that the Appellant was a citizen of both the Bahamas and the United States of America. The RPD found that the Appellant had failed to rebut the presumption of state protection in the United States. The Appellant submits that the RPD erred in its state protection analysis for the United States. NEW EVIDENCE [7] The Appellant has submitted an article from CNN entitled "Make America White Again" and dated November 29, 2016. Given the disposition of this appeal, the RAD will not deal with the new evidence. ANALYSIS ON THE MERITS OF THE APPEAL [8] The Appellant submitted his passport from the Bahamas which indicates that he was born in the state of Florida. The Appellant stated that his American passport was stolen when his car was stolen. He produced no other documentary evidence, including a birth certificate, to indicate that he is a citizen of the United States. The RPD concluded that he was a US citizen based solely on his oral testimony. The RAD is of the opinion that the RPD needed to provide more evidence in its reasons as to why it accepted the Appellant's identity as a US citizen. [9] The RPD then concluded that the Appellant had failed to rebut the presumption of state protection in the United States. The Appellant submits that the RPD erred in its state protection analysis. The RAD is of the opinion that the RPD did not conduct a proper state protection analysis. [10] The RPD provided a lengthy analysis of the law with respect to state protection in paragraphs 11 through 17, but dedicated on paragraph 18 to analysing state protection in the country at hand. But what is more troubling to the RAD is the fact that the RPD did not engage in an analysis of state protection. As the Federal Court has stated "The Board must actually analyse the evidence it references and consider how that evidence relates to the issue of state protection."2 It is imperative that the RPD conduct an appropriate state protection analysis to determine whether the Appellants have discharged the onus of providing clear and convincing evidence that the state is either unwilling or unable to provide them with adequate protection. [11] The RAD therefore determines that the matter shall be referred back to the RPD to be heard by a differently constituted panel with the following instructions: a) That the RPD shall provide detailed reasons as to why it concludes that the Appellant is a citizen of the United States or is not a citizen of the United States; b) And that the RPD shall conduct an analysis to determine whether the Appellant has discharged the onus of providing clear and convincing evidence that the state is either unwilling or unable to provide him with adequate protection. DECISION [12] Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. [13] The Appeal is allowed. (signed) "Pasquale Fiorino" Pasquale Fiorino May 9, 2017 Date 1 M.C.I. v. Huruglica, Bajer (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Navarette, Ana Maria v. M.C.I. (F.C., no. IMM-6187-12), Rennie, April 26, 2013, 2013 FC 436, at para 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-18481