TB5-07344

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 : TB5-07344 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 13, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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) 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 and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and refer the matter back to the RPD for re-determination, giving the directions that it considers appropriate. In the alternative, the Appellant asks the RAD to set aside the determination of the RPD and substitute its own determination that he is a Convention refugee or a person in need of protection. 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 Convention refugee. This appeal is allowed. Background [3] The Appellant alleged before the RPD that, upon return to Somalia, he will be killed by members of al-Shabaab because he refused to join them after they killed his two brothers. [4] The Appellant's application for refugee protection was heard on May 26, 2015. By a decision of June 22, 2015, the RPD rejected the claim, finding that the Appellant had not provided sufficient trustworthy and credible evidence to establish his claim. It further found that any remaining risk the Appellant may face did not rise to the level of establishing a nexus to a Convention ground. It also found that the Appellant failed to establish a personal or particularized risk pursuant to section 97(1) of the IRPA. [5] The Appellant submits that the RPD failed to have regard to the entirety of the evidence before it and erred in its credibility findings. He further submits that the RPD erred in its analysis to determine if he is a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the IRPA. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellant refers to the IRPA and the decision of the Federal Court in Huruglica1 and submits that the RAD, having appellate jurisdiction and being a specialized body itself, must engage in its own assessment of all the evidence in order to decide whether the RPD committed an error and as such, it does not owe deference to the RPD. [7] The RAD acknowledges that in Huruglica the Court considered the appropriate relationship between the RAD and the RPD. It found the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [8] Justice Phelan stated the following in Huruglica: 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. 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. [9] Considering the recent jurisprudence, including the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Admissibility of Evidence Submitted on Appeal [10] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum of Argument about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to him.3 [11] The Appellant has tendered five documents as proposed new evidence in support of his appeal. The documents are as follows: * Appellant's affidavit, dated August 6, 2015; * Declaration of XXXX XXXX XXXX (Appellant's father), dated July 27, 2015; * Declaration of XXXX XXXX XXXX (Appellant's father), dated July 27, 2015; * Declaration of XXXX XXXX XXXX (Appellant's uncle), dated July 24, 2015; and * U.S. Citizenship and Immigration Services, Questions and Answers: Credible Fear Screening, last reviewed/updated July 15, 2015. [12] The Appellant indicates in his Memorandum of Argument that his affidavit is submitted for the purpose of providing evidence as to how the evidence of his family members meets the criteria under section 110(4) of the IRPA. He also indicates that he sought the declarations from his father, mother and uncle after his negative refugee decision was rendered by the RPD in order to refute the findings of the RPD. [13] The Appellant submits that the declarations of his mother and father are provided to refute the RPD's findings that he had not established the factual basis of his refugee claim or was otherwise not a credible witness as to the facts of his case. He further submits that he could not reasonably have produced such evidence while his claim was pending before the RPD as he only became aware of the RPD findings in the decision and reasons provided by the RPD. [14] The Appellant submits that the declaration of his uncle refutes the RPD's credibility findings and corroborates his evidence about fleeing to his uncle's house after his brothers were killed by al-Shabaab. He further submits that this evidence indicates that his uncle is forced to hide his Sufi beliefs and traditions due to fear of persecution in Mogadishu. [15] The Appellant submits that the U.S. Citizenship and Immigration Services document demonstrates that the U.S. authorities use a standard of "significant possibility" which is not used in the Canadian system for refugee determination. He further submits that he could not have reasonably been expected to have provided it while his claim was pending at the RPD since he was not aware that the RPD would impugn his credibility on the basis of the "no credible fear" determination by the U.S. authorities reported in his U.S. biometrics results. [16] Following a review of all the evidence in the record, including the recording of the RPD hearing, the RAD finds that the proposed new evidence does not meet the criteria of section 110(4) as it deals with the general credibility of the Appellant and therefore was reasonably available prior to the rejection of his claim. Credibility is an issue in every claim before the Board. The Appellant could reasonably have been expected to provide this documentation prior to the rejection of his claim. Considering the above, the documents will not be accepted as new evidence in this appeal. Application for an Oral Hearing [17] The Appellant requests that a hearing be held pursuant to section 110(6) of the IRPA.4 [18] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [19] According to Section 110(6) of the IRPA the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no further evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [20] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. Since no new evidence has been accepted in this appeal, the Appellant's request for an oral hearing is denied. RPD findings - Appellant's arguments - assessment of refugee claim Identity [21] The RPD indicated in the reasons for its decision that it is satisfied on a balance of probabilities the Appellant is a national of Somalia and a member of the Ogaden sub-clan of the XXXX clan. The RAD concurs with the RPD. The Appellant provided credible testimony regarding his nationality and clan affiliation. He also provided credible and reliable corroborating documents such as the affidavit of his father,5 the affidavit of a relative residing in the United States,6 and a letter from the Somali Immigrant Aid Organization.7 Credibility - testimony and lack of corroboration [22] The RPD found the Appellant's testimony regarding his allegations to be brief and vague, and lacking specific details about any continuing risk. It noted that the Appellant had made an asylum application in the United States which resulted in credible fear not being found. It also noted that the identity witness was not able to corroborate the Appellant's allegations of persecution as he had had no contact with the Appellant's family in Somalia since 2007 or 2008. The RPD found that the Appellant had not provided sufficient credible and trustworthy evidence to establish his claim. [23] The Appellant submits that while the RPD impugned his credibility due to what it identified as brief and vague testimony regarding his allegations, the RPD reasons itself is couched in vague and general terms on the issue of why it impugned his credibility. He further submits that the RPD failed to provide clear reasons why it found his testimony to be vague or brief. The Appellant argues that his testimony was clear, he provided answers to all the questions put to him in a straightforward and consistent manner, and the RPD failed to have regard to the entirety of his testimony. He further argues that his testimony about being Sufi and believing that al-Shabaab's intent was to convert him for his religious beliefs through recruitment directly contradicted the RPD's finding that his testimony was vague about his fear of continued risk. The Appellant submits that the RPD erred by improperly relying on the "no credible fear" finding on his United States asylum claim. He argues that "credible fear" of persecution and torture are both measured at a standard of "significant possibility" in the United States while the Canadian standard differs. He also argues that the RPD is required to conduct its own fact-finding. The Appellant submits that it is well-established law that the RPD cannot properly impugn a refugee claimant's credibility solely due to a lack of corroborating evidence. He also argues that the affidavit of his father directly contradicts the RPD finding that he failed to establish the allegation that his brothers were murdered by al-Shabaab when his father states in his affidavit that al-Shabaab killed two of his sons. [24] Although a claim may be rejected as lacking in credibility if the refugee claimant's testimony is found to be incoherent or vague,8 those aspects of the testimony which appear not to be credible must be clearly identified and the reasons for such conclusions must be clearly articulated.9 In this case, the RPD indicated that it found the Appellant's testimony about his allegations to be brief and vague, and lacking specific details about any continuing risk. However, the RPD failed to consider that some of its questions to the Appellant were pointed or closed questions, requiring short answers. It further failed to consider that it did not seek additional information following the Appellant's response to many of its questions. It is not clear from the RPD's reasons what it found to be brief and vague in the Appellant's testimony and why it impugned his credibility. Although the RPD quotes certain responses given by the Appellant, it failed to elaborate or explain their significance. If the RPD believed it would be reasonable to expect a lengthier or more descriptive account of certain aspects of the Appellant's story, it failed to articulate the reasons for this in its analysis. The RAD finds that, although the Appellant may have been expected to provide lengthier or more detailed responses to some questions, he answered all the questions asked of him in a fairly clear and timely manner. When asked for further details, the Appellant responded appropriately. Considering the above, the RAD finds that the RPD was wrong to impugn the Appellant's testimony due to what it identified as brief and vague testimony. [25] The basis of the Appellant's claim is that he and his family have been persecuted by al-Shabaab in Mogadishu due to their religion (as Sufis), two of his brothers were killed and that he was personally threatened with death if he did not join al-Shabaab. The affidavit10 of the Appellant's father states that his two sons were killed by al-Shabaab. This evidence establishes the Appellant's allegation that his brothers were murdered by al-Shabaab due to their religious practice. Documentary evidence indicates that al-Shabaab commit violence against Sufis11 thereby corroborating the Appellant's allegation. After reviewing all the evidence, including the affidavit noted above and the documentary evidence, the RAD finds that the Appellant provided sufficient credible and trustworthy evidence to establish his allegations. [26] While the RPD noted that the finding of no credible fear by the United States on the Appellant's asylum application added to its concerns regarding the credibility of his allegations, it failed to consider the process, criteria and standard the United States used to make its determination. Furthermore, the RPD erred by noting that the United States finding added to its credibility concerns without explaining its rationale. The RAD finds that the RPD was wrong to rely on a decision that was based on an unidentified process with unidentified criteria and an unidentified standard in order to support its credibility finding. [27] Unless there are valid reasons to question a refugee claimant's credibility, it is an error for the RPD to require documentary evidence corroborating the refugee claimant's allegations. In other words, the RPD cannot disbelieve a claimant merely because the claimant presents no documentary or other evidence to confirm his or her testimony.12 While the RPD indicated that the identity witness was not able to corroborate the Appellant's allegations and the Appellant's father provided a very brief and unclear affidavit, the RAD notes that the witness was presented to establish the Appellant's identity, which he did, and the Affidavit from the Appellant's father was intended to corroborate his allegations which it did, although only in part. The RAD finds that the two forms of evidence were credible and adequately served their purpose. The RPD did not have valid reasons to question the Appellant's credibility therefore it was wrong to draw negative inferences from the lack of corroboration in each of the forms the evidence took. Credibility - residual risk [28] The RPD noted that it considered if the Appellant faced any potential residual risk. It found that the Appellant had not established that he faced any risk based upon his clan membership or religion. The RPD determined that any risk the Appellant faces in Somalia does not rise to the level of establishing a nexus to a Convention ground. It also determined that the Appellant failed to establish a personal or particularized risk pursuant to section 97(1) of the IRPA. [29] The Appellant refers to the documentary evidence and submits that, given the continued presence and operation of al-Shabaab in Mogadishu and its past treatment of Sufis in Somalia, he is at risk of persecution based on his religious beliefs. He further submits that he meets the definition of a person in need of protection pursuant to section 97 of the IRPA as he faces a risk on the basis that he is a Somali returnee. He argues that he faces a particularized risk of harm on a balance of probabilities due to his profile as a Somali returnee from the West and as a Sufi. [30] The RAD notes the following documentary evidence. Although al-Shabaab lost ground in 2012, it continues to carry out attacks and targeted killing, including in the capital, Mogadishu.13 Al-Shabaab factions continued to torture and unlawfully kill people they accused of spying or not conforming to their strict interpretation of Islamic law.14 Al-Shabaab members frequently committed violence against Sufism.15 Somali returnees, especially those who are visible and do not blend in, are in a category of people who could be at risk of targeted killings by al-Shabaab.16 Al-Shabaab has made recruitment and training a priority.17 Throughout Somalia the structural weakness of the security services, the limitations of the legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the widespread existence of corruption in state institutions mean that in general claimants are unlikely to be able to access effective protection from the state.18 [31] The Appellant is a young man, a Sufi, and a person returning to Somalia from abroad; all three of these risk factors would cause him to be an easy and likely target. Two of his brothers were killed by members of al-Shabaab in 2010. The Appellant was targeted for recruitment by al-Shabaab. He was threatened with death by members of al-Shabaab if he did not join them. He fled to Kenya where he encountered further problems. In XXXX 2014 the Appellant left Kenya and made his way to the United States. When his asylum claim was rejected in the United States, the Appellant travelled to Canada and filed a refugee claim. The RAD finds that the Appellant fits the profile of those who are most at risk of persecution on return to Somalia. It further finds, based on the evidence noted above, that the Appellant has established a nexus to one of the Convention grounds; namely religion. Summary [32] The Appellant submits that the RPD failed to have regard to the entirety of the evidence before it and erred in its credibility findings. The RAD agrees with the Appellant for the reasons noted above. The Appellant also submits that the RPD erred in its analysis to determine if he is a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the IRPA. The RAD agrees with the Appellant that he is a Convention refugee pursuant to section 96 of the IRPA. [33] The documentary evidence is clear in indicating that Somalia is unable to provide its citizens with adequate state protection. Furthermore, the Appellant is a young man who has limited familial support in Somalia. His two brothers were killed and his parents live in Kenya. The Appellant has demonstrated that he would have limited, if any, support from family members in Somalia. The Appellant testified that he has five years of formal schooling. He has limited work experience. He is of the Sufi faith. Considering the Appellant's age, gender, religious affiliation, lack of economic means, lack of significant familial support in Somalia, and a history which includes targeting by members of al-Shabaab, combined with a lack of adequate state protection in Somalia, the RAD finds that the Appellant has satisfied the burden of establishing a serious possibility of persecution due to his religion should he return to Somalia. The RAD therefore concludes that the Appellant has established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [34] 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 Convention refugee. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella October 13, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Exhibit P-2, Appellant's Record, at p. 8. 5 Exhibit RPD-1, RPD's Record, at p. 177. 6 Exhibit RPD-1, RPD's Record, at p. 173. 7 Exhibit RPD-1, RPD's Record, at p. 178. 8 Chen, Xing Kang v. M.C.I. (F.C.T.D., no. IMM-808-00), Gibson, November 29, 2000. 9Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm.L.R. (2d) 150 (F.C.A.). 10 Exhibit RPD-1, RPD's Record, at p. 177. 11 Exhibit RPD-1, RPD's Record, at p. 152. 12 Ovakimoglu v. Canada (Minister of Employment and Immigration) (1983), 52 N.R. 67 (F.C.A.); Attakora v.Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.); Lachowski v. Canada (Minister of Employment and Immigration) (1992), 18 Imm.L.R. (2d) 134 (F.C.T.D.); Ahortor v. Canada (Minister of Employment and Immigration) (1993), 21 Imm.L.R. (2d) 39 (F.C.T.D.). 13 Exhibit RPD-1, RPD's Record, at p. 116. 14 Exhibit RPD-1, RPD's Record, at p. 148. 15 Exhibit RPD-1, RPD's Record, at p. 152. 16 Exhibit RPD-1, Exhibit 3, National Documentation Package (NDP) for Somalia( 31 March 2015), item 2.12, at p. 79. 17 Exhibit RPD-1, Exhibit 3, NDP for Somalia (31 March 2015), item 7.5, at p. 17. 18 Exhibit RPD-1, RPD's Record, at p. 101. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-07344