TB8-24552

RAD File / Dossier de la SAR: TB8-24552 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 4, 2021 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Amedeo Clivio Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for allowing the appeal of XXXX XXXX XXXX XXXX (the Appellant) and recognizing him as a person in need of protection. [2] The Appellant is a citizen of Honduras from La Ceiba. He alleges that his older brother was a member of the violent XXXX XXXX gang.1 In 2003, he alleges that his older brother left the gang and fled to XXXX. Thereafter, the Appellant alleges that the XXXX XXXX tried unsuccessfully to recruit him and extort him for money. On XXXX XXXX, 2004, he alleges that the XXXX XXXX kidnapped him, brutalized him for three days, and dismembered his thumb from his body. While he was recovering in hospital, he alleges that the gang kidnapped and killed his younger brother. [3] The Refugee Protection Division (RPD) rejected the Appellant's claim on the basis that he has an Internal Flight Alternative (IFA) in XXXX XXXX, on the island of XXXX. The RPD also found that he is excluded from the compelling reasons exception under subsection 108(4) of the Immigration and Refugee Protection Act (IRPA).2 On appeal, the Appellant concedes that there has been a change in circumstances due to the passage of time.3 However, he argues that the IFA was not viable when he fled Honduras in XXXX 2005 and that there are compelling reasons to grant his claim. He has filed new evidence, which I have admitted. [4] This is the Appellant's second time before the Refugee Appeal Division (RAD). The first RAD panel upheld the RPD's IFA finding and did not conduct a compelling reasons assessment. In granting judicial review, the Federal Court found that the RAD erred by refusing to consider whether there were compelling reasons to grant the Appellant's claim. Specifically, the RAD erred when it assessed the viability of the IFA in 2005 with the benefit of hindsight. The Federal Court found that the proper approach would have been to determine whether the IFA was viable in 2005, and if not, assess whether there are compelling reasons to grant the claim.4 [5] My role is to look at all the evidence and decide if the RPD made the correct decision.5 Considering the Federal Court decision and new evidence on appeal, I find that the Appellant did not have an objectively reasonable IFA in XXXX when he left Honduras in 2005. I further find that he was a person in need of protection when he fled his country and that there are compelling reasons to grant his claim. DECISION [6] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. NEW EVIDENCE IS ADMITTED BUT I AM NOT HOLDING AN ORAL HEARING [7] The Appellant's claim was rejected in September 2018. He did not provide new evidence in his October 2018 Appeal Record.6 After the Federal Court granted his application for judicial review, he provided the following documents: a. Further memorandum of argument, dated XXXX XXXX, 2020; b. Psychiatric assessment, dated XXXX XXXX, 2020; and c. Further memorandum of argument, dated XXXX XXXX, 2020.7 [8] According to RAD Rule 29,8 evidence and submissions filed after the perfection of the appeal are not admissible unless I allow them into evidence. In deciding whether to allow the document, I must consider any relevant factor, including whether the document: i. Is relevant and probative; and ii. Brings any new evidence to the appeal; and iii. Could have been provided with reasonable effort with the Appeal Record. [9] If I accept evidence under Rule 29, I must consider subsection 110(4) of the IRPA,9 which states that I can only accept evidence that: i. Arose after the RPD decision; or ii. Was not reasonably available at the time of the decision; or iii. Could not reasonably have been expected in the circumstances before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.10 According to subsection 110(6) of the IRPA,11 I may only hold an oral hearing where the accepted new evidence: i. Raises a serious issue with respect to the credibility of the person who is the subject of the appeal; and ii. Is central to the decision of the claim; and iii. If accepted, justifies allowing or rejecting the claim. [11] I find that the new evidence is admissible, but that it does not permit an oral hearing. The further memorandums in items (a) and (c) are admitted [12] Counsel has submitted two further memorandums, one dated XXXX XXXX, 2020 and another dated XXXX XXXX, 2020. The first memorandum provides additional arguments following the Federal Court decision in April 2020 and therefore could not have been provided with the Appeal Record. The second memorandum provides additional legal arguments about the medical evidence in item (b) and therefore could not have been provided with the Appeal Record. I have considered these legal submissions in my assessment. However, it is not necessary for me to come to a determination regarding Counsel's nexus argument in his further memorandum.12 In my view, the determinative issues on appeal are: (1) Whether XXXX was an objectively reasonable IFA when the Appellant left Honduras in 2005; and (2) Whether his claim satisfies the compelling reasons exception. The medical evidence in item (b) is admitted but does not require a hearing [13] The psychiatric assessment from Dr. XXXX XXXX in item (b) is dated XXXX XXXX, 2020.13 Counsel has provided the Appellant's Legal Aid XXXX (LAXXXX) certificate authorization, which indicates that he was only granted full coverage on XXXX XXXX, 2020.14 Once he was provided full coverage, the Appellant and his Counsel endeavored to secure the earliest psychiatric appointment. The assessment took place from XXXX XXXX, 2020 to XXXX XXXX, 2020. Considering these circumstances, I am satisfied that the assessment could not have been provided with the Appeal Record. The assessment provides relevant and probative new evidence about the Appellant's mental health. I admit this evidence under Rule 29(4). This evidence is also admissible under 110(4) as it was not reasonably available to the Appellant prior to the RPD decision. It is credible for the purposes of admission as it is issued by a reliable source. The psychiatrist clearly outlines her qualifications, the method of assessment, and how she reached her professional opinion. The assessment is new and relevant as it provides information that was not before the RPD which goes to the viability of the IFA. [14] However, item (b) does not require a hearing as it is not determinative of the claim. This evidence does not satisfy subsection 110(6). ANALYSIS The Appellant did not have a viable IFA in XXXX when he left Honduras in 2005 [15] The RPD found that the Appellant has a viable IFA in XXXX on a forward-looking basis. On appeal, this finding is not challenged. The Appellant concedes that there has been a change of circumstances given the passage of time.15 Having assessed the evidence, I agree. It has been fifteen years since he fled Honduras and his reasons for seeking protection have ceased to exist. [16] The RPD also found that the Appellant had a viable IFA in XXXX when he left Honduras in 2005.16 It noted that the Appellant's older brother, who abandoned the XXXX XXXX gang, also lives in XXXX.17 The RPD assessed the Appellant's risk in XXXX in 2005 under the first prong of the IFA assessment. However, the RPD imported its findings about the reasonableness of the IFA on a forward-looking basis into its finding about the viability of the IFA in 2005. Counsel argues that this is an error.18 I agree. In line with the Federal Court decision granting judicial review, I have assessed the viability of the IFA in 2005 without the benefit of hindsight.19 [17] Once an IFA is proposed, it is the Appellant's burden to present evidence to show, on a balance of probabilities, that they face a serious possibility of persecution or a section 97(1) risk in the IFA, or that it would be objectively unreasonable, in consideration of their personal circumstances, to relocate to the IFA.20 In my view, the determinative issue is whether the IFA was objectively unreasonable in 2005. The threshold for the objectively unreasonable standard is high and requires actual and concrete evidence of adverse conditions which would jeopardize the life and safety of an Appellant in relocating to a safe area.21 Humanitarian and compassionate considerations that do not rise to this level should not be imported in the IFA analysis.22 The question to be answered on the second prong of the test is whether expecting the Appellant to relocate to the proposed IFA location would be "unduly harsh" in their particular circumstances. Psychological evidence and an Appellant's particular vulnerability are central to this analysis.23 [18] In the days before he left Honduras, the Appellant was kidnapped, his thumb was severed from his body, he was beaten and left nearly dead by his captors, and his younger brother was murdered. In my view, it is not reasonable to expect the Appellant to relocate to the same city where his older brother lives so soon after these severely traumatic events. It was his older brother who fled the XXXX XXXX and his association with the gang triggered the Appellant's kidnapping and his younger brother's murder. I agree with Counsel that the Appellant's "reasonable response was to sever that association, not strengthen it."24 [19] I have also undertaken an intersectional and trauma-informed assessment of the reasonableness of the IFA in 2005. As part of this analysis, I have considered the Appellant's psychiatric report. The RPD did not have the benefit of this report when making its decision. [20] The Appellant was just XXXX-XXXX years old when he was kidnapped, his thumb was severed from his left hand, and his younger brother was murdered. The Appellant had already experienced a traumatic childhood, including sexual and physical abuse by adults in his life.25 He did not continue his education beyond XXXX school, which severely impacted his coping skills.26 He has not fully grieved his brother's murder and he relives his traumatic history through nightmares and intrusive memories.27 The Appellant's psychiatrist indicates that his mental health is precarious because of the trauma he has experienced.28 She also notes that he suffers from Attention Deficit Disorder with Hyperactivity as well as chronic Post-Traumatic Stress Disorder.29 In my view, the compounding effect of the Appellant's childhood abuse, level of education, medical conditions, disability, and age weigh heavily in favour of a finding that XXXX was not a reasonable IFA at the time that he left Honduras. [21] The Appellant's psychiatrist also provides her expert opinion about the psychological impact of the Appellant's presence in Honduras, noting the "devastating" effect on his "psycho-emotional health" and the risk of "trigger[ing] all his symptoms."30 In the Appellant's very particular circumstances, I find that this risk of re-traumatization meets the high threshold of unreasonableness required, such that his life and safety are jeopardized. [22] In my view, it is unduly harsh to expect the Appellant to have relocated to XXXX in 2005. His relatively young age, psychological vulnerability, and disability render his relocation unreasonable so soon after his brother's murder and his own kidnapping and dismemberment. Having considered all the evidence, I find that XXXX was not a viable IFA at the time that the Appellant fled Honduras in 2005. [23] As I have found that the IFA was unreasonable in 2005, it is not necessary for me to go on to determine whether the RPD erred in its finding under the first prong of the IFA. Where an IFA location fails under either the safe or reasonableness prong, it is not viable. The Appellant was a person in need of protection when he left Honduras in 2005 The Appellant's claim is credible [24] The RPD did not identify any credibility concerns in its assessment of the Appellant's claim. Having reviewed the entire Record, I have no reason to find otherwise on appeal. The Appellant's testimony was detailed, spontaneous, and compelling. In addition, he provided credible evidence corroborating the dismemberment of his thumb and his brother's murder.31 I find that he has credibly established that he was kidnapped and brutalized, and that his younger brother was murdered. I also find that he has established that the XXXX XXXX are his agents of harm. The Appellant was a person in need of protection when he left Honduras [25] I further find that the Appellant faced a personalized risk to his life in 2005 that was not faced generally by others in Honduras, pursuant to subsection 97(1) of the IRPA.32 [26] The analysis of subsection 97(1)(b) claims involves two stages,33 summarized as follows: First Stage: Determine the risk faced by the Claimant or Appellant * Consider whether the ongoing or future risk is personal. * Clearly identify the basis (or initial reason) for the risk. * Clearly identify the nature of the ongoing or future risk. * Clearly identify the degree of the risk (or proximity to the risk). Consider any relevant factor, such as: o The severity and number of incidents; and o Any pattern or link between the incidents; and o Any change over time. * Determine if the ongoing or future risk is a risk to life or risk of cruel and unusual treatment or punishment. Second Stage: Examine whether the risk is faced generally by others * Compare the nature and degree of the risk faced by the Claimant or Appellant with the nature and degree of the risk faced generally by other individuals from that country. Determine whether the Claimant or Appellant personally faces a risk not faced generally by other individuals from that country. [27] I have applied this framework of analysis in my assessment. [28] First Stage: The Appellant was directly threatened, kidnapped, and harmed. I find that the risk is personal. The basis for the risk - demands for money and reprisals for his older brother's abandonment of the gang - is distinct from the nature of the risk itself - risk to life. The risk also increased in degree over time. It progressed from repeated demands for money to death threats, kidnapping, dismemberment, and the murder of the Appellant's younger brother. There is a pattern of events over time that are explicitly connected by virtue of the agent of harm's repeated threats, demands and targeting. I find, on a balance of probabilities, that the Appellant was personally and specifically targeted for death. [29] Second Stage: Criminal targeting is widespread in Honduras. Gang related violence is also prevalent throughout the country. However, the Appellant was kidnapped and personally targeted for death. I find that this risk to his life is distinguishable in nature and degree from the risk of criminality faced generally by others in Honduras. I note that the question is not whether others could eventually find themselves in the Appellant's position but, rather, whether others generally are in that position now.34 I find, on a balance of probabilities, that the risk to the Appellant's life is not faced generally by others in Honduras. [30] I find, on a balance of probabilities, that the Appellant faced a personalized risk to his life when he left Honduras in 2005. The Appellant did not have access to adequate state protection when he left Honduras [31] Finally, I find that the Appellant did not have access to adequate state protection in Honduras in 2005. Corruption and impunity are serious problems throughout the country.35 Organized criminal gangs, including the XXXX XXXX, have infiltrated state security forces and collusion with gangs is common.36 State authorities do not provide operationally adequate protection from gang violence.37 [32] Upon my review of the Board's oldest archived National Documentation Package (NDP) for Honduras from June 2007, I find that impunity, collusion, and inadequate state protection were also pervasive problems at the time that the Appellant was last in Honduras.38 I find that the Appellant did not have access to operationally adequate state protection when he left Honduras in 2005. [33] When he left Honduras in 2005, the Appellant was a person in need of protection. The Appellant's claim satisfies the compelling reasons exception, s. 108(4) of the IRPA [34] Section 108(1) of the IRPA states: 108(1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: ... (e) the reasons for which the person sought refugee protection have ceased to exist. (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, treatment or punishment.39 [35] A compelling reasons assessment under subsection 108(4) of the IRPA is required where a Claimant or Appellant has established that: i. They qualified as a Convention refugee or person in need of protection when they left their country; and ii. Their reasons for seeking protection have ceased to exist based on a change in circumstances in their country.40 [36] Where these conditions are met, a Claimant or Appellant also needs to establish they have experienced past persecution, torture, or cruel and unusual treatment or punishment such that there are compelling reasons to grant their claim. Past harm of an immediate family member may also provide compelling reasons to grant a claim.41 [37] Counsel argues that the requirements under subsection 108(4) are met and that there are compelling reasons to grant the Appellant's claim. I agree. I have already found that the Appellant was a person in need of protection when he left Honduras in 2005 and that, due to the passage of time, there has been a change of circumstances. I further I find that there are compelling reasons arising out of past cruel and unusual treatment to grant the Appellant's claim. [38] In Obstoj, the Court of Appeal held that subsection 2(3) of the Immigration Act - now subsection 108(4) of the IRPA - should be read: ...as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is compelling reason not to return them, even though they may no longer have any reason to fear further persecution.42 [39] The compelling reasons exception is meant for extraordinary circumstances.43 There are two lines of case law interpreting subsection 108(4). As the Federal Court found in Moya: "[s]ome of the subsequent jurisprudence has found that Obstoj does not require that the past persecution or be appalling, rather that appalling persecution constitutes a compelling reason and that the level of atrocity must be considered. Other jurisprudence has adopted appalling and atrocious past persecution as the threshold or level of persecution that should be established to find compelling reasons."44 In my view, the Appellant's past harm is so severe that it satisfies both lines of jurisprudence. However, I prefer the case law which holds that compelling reasons does not require appalling and atrocious past harm. Specifically, in Suleiman, the Federal Court sets out the test under subsection 108(4), as follows: [16] It must not be forgotten that subsection 108(4) of the Act refers only to "compelling reasons arising out of previous persecution, torture, treatment or punishment". It does not require a determination that such acts or situation be "atrocious" and "appalling". Indeed, a variety of circumstances may trigger the application of the "compelling reasons" exception.2 The issue is whether, considering the totality of the situation, i.e. humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject a claim or make a declaration that refugee protection has ceased in the wake of a change of circumstances [emphasis added].45 [40] I have considered the Appellant's personal circumstances and the level of atrocity that he has suffered. He was kidnapped, his thumb was severed from his body, he was beaten and left nearly dead by his captors, and his younger brother was murdered. He continues to suffer severe psychological trauma, which weighs in favour of a compelling reasons finding.46 While the harm is not recent, this does not bar the application of the compelling reasons exception.47 [41] In my view, the Appellant has suffered past cruel and unusual treatment of such a nature that the compelling reasons exception applies to him. Cruel and unusual treatment is conduct towards another person which "outrages standards of decency."48 This concept is to be "interpreted in a flexible and dynamic manner to accord with evolving standards of decency."49 Abuse from both state and non-state actors may meet this high threshold.50 Some treatment "will always be grossly disproportionate and will always outrage our standards of decency" such as "the lash, irrespective of the number of lashes imposed."51 This being the case, I find that the severing of the Appellant's thumb clearly outrages the standards of decency. This is an atrocious and appalling abuse of his basic human rights and I find that it meets the threshold of cruel and unusual treatment. I also find that the murder of the Appellant's younger brother weighs heavily in favour of a compelling reasons finding. [42] I agree with Counsel that the facts in the Appellant's claim are analogous to those in Velez.52 In this case, the Federal Court found that the Applicant's near death pursuit by a cartel and the murder of his father satisfies the criteria under 108(4). Much like the Applicant in Velez, the Appellant before me suffered a violent and near deadly pursuit by an armed group which led to the murder of his family member. In both cases, the past harm was exceptional in its severity. [43] I find that the Appellant has established that he has suffered past cruel and unusual treatment of such a nature that the compelling reasons exception applies to him. Counsel argues that to find otherwise in the Appellant's circumstances "would rob the doctrine of compelling reasons of all meaning."53 I agree. CONCLUSION [44] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. (signed) "J. Pollock" J. Pollock January 4, 2021 Date 1 The XXXX XXXX street gang is also known as XXXX XXXX, XXXX XXXX, La XXXX and the XXXX XXXX XXXX. 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 108(4). 3 Exhibit P-2, Appellant's record, Appellant's Memorandum, at para. 45. 4 XXXX v. Canada (MCI), 2020 FC 488, at paras. 25-28. 5 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 6 Exhibit P-2, Appellant's Record. 7 Exhibit P-3, Appellant's Rule 29 Application Record; Exhibit P-4, Appellant's Rule 29 Application Record. 8 Refugee Appeal Division Rules, SOR/2012-257, Rule 29(4). 9 IRPA, at ss. 110(4). 10 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 11 IRPA, at ss. 110(6). 12 Exhibit P-3, Appellant's Rule 29 Application Record, further memorandum, at pp. 8-10, at paras. 14-19. 13 Exhibit P-4, Appellant's Rule 29 Application Record, at pp. 2-6. 14 Exhibit P-4, Appellant's Rule 29 Application Record, at p. 7. 15 Exhibit P-2, Appellant's record, Appellant's Memorandum, at para. 45. 16 Exhibit RPD-1, RPD Record, RPD Reasons, at paras. 18-24, 46-53, 61. 17 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 50. 18 Exhibit P-2, Appellant's record, Appellant's Memorandum, at paras. 29-30. 19 XXXX v. Canada (MCI), 2020 FC 488, at para. 27. 20 Rasaratnam v. Canada (MEI), [1992] 1 FC 706; Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011 (FCA). 21 Ranganathan v. Canada (MCI), 2000 CanLII 16789 (FCA), at para. 15; Singh v. Canada (MCI), 2013 FC 988, at para. 40; Ohwofasa v. Canada (MCI), 2020 FC 266, at paras. 29-30. 22 Okechukwu v. Canada (MCI), 2016 FC 1142, at para. 37. 23 Singh v. Canada (MCI), 1995 CanLII 3495; Cartagena v. Canada (MCI), 2008 FC 289, at paras. 11-12; Okafor v. Canada (MCI), 2011 FC 1002, paras. 13-15; Olalere v. Canada (MCI), 2017 FC 385 at para 51-52. 24 Exhibit P-2, Appellant's record, Appellant's Memorandum, at para. 35. 25 Exhibit P-4, Appellant's Rule 29 Application Record, at p. 4. 26 Exhibit P-4, Appellant's Rule 29 Application Record, at p. 4. 27 Exhibit P-4, Appellant's Rule 29 Application Record, at pp. 4-5. 28 Exhibit P-4, Appellant's Rule 29 Application Record, at p. 6. 29 Exhibit P-4, Appellant's Rule 29 Application Record, at pp. 5-6. 30 Exhibit P-4, Appellant's Rule 29 Application Record, at p. 6. 31 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 73-78; Exhibit 5, at pp. 119-121. 32 IRPA, at ss. 97(1). 33 Portillo v. Canada (MCI), 2012 FC 678, at paras. 40-41; Guerrero v. Canada (MCI), 2011 FC 1210, at para. 28; Correa v. Canada (MCI), 2014 FC 252, at paras. 73-77, 83-84, 89-90; Prophète v. Canada (MCI), 2009 FCA 31, at para. 7; Herrera Chinchilla v. Canada (MCI), 2014 FC 546, at paras. 28-33; X (Re), 2019 CanLII 141063 (CA IRB), at paras. 13-14. 34 Correa v. Canada (MCI), 2014 FC 252, at para. 84. 35 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Honduras (30 April 2018), Item 2.1; Item 2.4. 36 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Honduras (30 April 2018), Item 1.5, at pp. 14, 40-41. 37 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Honduras (30 April 2018), Item 1.5, at p. 38; X (Re), 2019 CanLII 140894 (CA IRB), at paras. 23-24; X (Re), 2019 CanLII 133724 (CA IRB), at para. 41. 38 Exhibit RAD-1, NDP for Honduras (7 June 2007), Item 2.1; Item 2.4; Item 7.3. 39 IRPA, ss. 108(1). 40 IRPA, at ss. 108(4); Yamba v. Canada (MCI), 2000 CanLII 15191 (FCA), at para. 6; Alfaka Alharazim v. Canada (MCI), 2010 FC 1044, at paras 49-53; Salazar v. Canada (MCI), 2011 FC 777, at paras. 31-32; Sabaratnam v. Canada (MCI), 2012 FC 844, at para. 18; Moya v. Canada (MCI), 2016 FC 315, at paras. 119-120; Krishan v. Canada (MCI), 2018 FC 120, at paras. 75-77; XXXX v. Canada (MCI), 2020 FC 488, at paras. 18-20 41 Villegas Echeverri v. Canada (MCI), 2011 FC 390, at paras. 34-37; Velez v. Canada (MCI), 2018 FC 290, at para. 34 Gomez Dominguez v. Canada (MCI), 2020 FC 1098, at para. 44; The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees of the United Nations High Commission for Refugees, HCR/1P/4/ENG/REV. 4, at para. 136. 42 Canada (MEI) v. Obstoj, [1992] 2 F.C. 739 (CA), 1992 CanLII 8542 (FCA), at paras. 28-29. 43 Alfaka Alharazim v. Canada (MCI), 2010 FC 1044, at para. 51; Moya v. Canada (MCI), 2016 FC 315, at para. 122. 44 Moya v. Canada (MCI), 2016 FC 315, at para. 105. 45 Suleiman v. Canada (MCI), 2004 FC 1125, at para. 16 [emphasis added]; Kotorri v. Canada (MCI), 2005 FC 1195, at para. 27. 46 Suleiman v. Canada (MCI), 2004 FC 1125, at para. 19; Mwaura v. Canada (MCI), 2015 FC 874 (CanLII). 47 Suleiman v. Canada (MCI), 2004 FC 1125, at paras. 20, 25. 48 R. v. Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), at paras. 54, 57, 84; Revell v. Canada (MCI), 2017 FC 905, at para. 217; Canadian Doctors for Refugee Care v. Canada (AG), 2014 FC 651, at paras. 612-613; X (Re), 2020 CanLII 50469, at para. 12. 49 R. v. Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), at para. 84. 50 AB v. Canada (MCI), 2009 FC 640, at paras. 30-31; X (Re), 2020 CanLII 50469, at para. 12. 51 R. v. Smith (Edward Dewey), [1987] 1 SCR 1045, 1987 CanLII 64 (SCC), at para. 57. 52 Velez v. Canada (MCI), 2018 FC 290, at para. 34. 53 Exhibit P-3, Appellant's Record, Appellant's Memorandum, at para. 36. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: TB8-24552 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français