TB4-05595

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 : TB4-05595 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Subodh Singh S Bharati Barrister & 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 XXXX XXXX XXXX (the Appellant), a citizen of Yemen, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant submitted new documents to be considered as new evidence pursuant to s. 110(4) of the Immigration and Refugee Protection Act (IRPA), and seeks a hearing before the Refugee Appeal Division (RAD) pursuant to s. 110(6) of IRPA. [3] The Appellant requests that the appeal be allowed and that either the Appellant be found to be a Convention refugee or a person in need of protection or have the RPD's decision quashed and send the matter back for redetermination. DETERMINATION [4] Pursuant to Section 111(1)(c) of the IRPA, the RAD sets aside the determination of the RPD and remits the matter back to the RPD for redetermination by a differently constituted panel. This appeal is allowed. Background [5] The Appellant alleged before the RPD that he is a member of the XXXX XXXX XXXX family and at risk from members of a rival family called XXXX, who are aligned with the Al-Qaeda terrorist organization. The Appellant was raised by his late uncle, XXXX XXXX XXXX XXXX XXXX, an officer in the Yemeni military who dealt with terrorist groups in Yemen. His uncle and cousin were assassinated on XXXX XXXX, 2013. Subsequently, the Appellant was a victim of two attacks, he believes, by Al Qaeda. The Appellant decided in XXXX 2013, after the last attempt on him, that he must leave Yemen for his safety. He obtained a visa on XXXX XXXX, 2013 and left Yemen on XXXX XXXX, 2013. [6] The Appellant's claim was heard in the third sitting of November 26, 2014; the RPD allowed post-hearing disclosure of several documents accompanied by written submissions. [7] According to the RPD Reasons at paragraph 4: At the end of the sitting, the claimant's counsel asked to be given until January 6, 2014 to produce additional disclosures, the RPD allowed this request. These include: * Additional identity documents such as a birth certificate or marriage certificate; * Proof of the claimant's uncle's identity; * Proof of the claimant's uncle's death; * Newspaper articles corroborating any of the specific incidents alleged in the claimant's story; * Two police reports and; * Any other objective, corroborating evidence available. [8] The RPD rendered a written decision on May 28, 2014. The RPD's determinative issue in denying the claim was credibility and state protection. Appellant's Issues * Did the RPD err in its analysis of the police documents and newspaper report? * Did the Panel breach procedural fairness by not providing the claimant opportunity to respond to its post-hearing concerns? * Did the Panel err in its credibility analysis by focusing on minor inconsistencies? * Did the Panel err in its analysis of state protection? Role of the RPD [9] I am guided by the Huruglica1 decision by the Honourable Mr. Justice Phelan, wherein paragraphs 54 and 55, the court stated the following: [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 a "palpable and overriding error." Merits of the Appeal [10] I am going to consider the issue of procedural fairness first. [11] The Appellant submits that the RPD improperly assigned "little weight to the two police documents and the newspaper account, the Panel breached procedural fairness by failing to provide an opportunity for the Appellant to answer any concerns arising out of the post-hearing evidence."2 [12] As stated earlier, the RPD allowed the Appellant to submit post-hearing documents and the Appellant submitted seven documents. The RPD Panel gives "credit for having produced many of the documents he asked to be allowed to disclose post-hearing."3 The RPD, in its next paragraph, states: "But at least three of these documents raise concerns."4 The RPD, in the next few paragraphs, explains the concerns and uses these concerns to impugn the credibility of the Appellant. [13] A thorough review of the record persuades me that the three documents: the newspaper article and the two police reports are central to the claim. The RPD's concerns about these documents may be valid but the RPD is obliged to give an opportunity to the Appellant to provide an explanation for its concerns. In this case, the RPD failed to do so. [14] The jurisprudence on the issue of procedural fairness is extensive and it is a well-established law that denial of natural justice is an issue of law. The Federal Court in Portillo,5 a recent case, stated that issues of procedural fairness are reviewable on a standard of correctness. [15] In light of the above and having considered the facts in this case, I find that there are not enough other elements on which the RPD's credibility findings could be sufficient support to confirm the RPD's determination. I have considered that the RPD is owed some degree of deference due to the fact that the RPD had the advantage of having the Appellant before it; however, that advantage was lost when the RPD failed to resume the hearing in light of its concerns about the post-hearing evidence that was accepted by the RPD - but the RPD did not have the Appellant before it to put the discrepancies to him. It is possible that had the RPD not erred by giving the Appellant the opportunity to explain concerns, the outcome could have been different. [16] I have also considered the RPD's state protection analysis recognizing that the burden is on the Appellant to persuade the RPD that adequate state protection is not available. In this case, the RPD's finding is also tainted due to the denial of natural justice or procedural failure regarding the two police reports. Therefore, I would not have arrived at the same conclusion. [17] Based on the foregoing analysis, this appeal is allowed and, pursuant to s. 111.1(c) of IRPA, the RAD refers the matter back to the RPD for re-determination by a differently constituted panel. I also note that, in this case, the statutory requirements of s. 111(2) are met in that the decision of the RPD is wrong in law, and the RAD cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [18] Because the claim was denied and procedural fairness played a role in arriving at that determination by the RPD, I have considered if there is enough credible evidence left to have come to the same conclusion, or whether the other credibility findings are insufficient to arrive at the same conclusion that the appellant is not a Convention refugee or person in need of protection. Based on the remaining evidence, I likely would not arrive at the same conclusion that the appellant was not a Convention refugee or person in need of protection New Evidence to be considered as New Evidence [19] Since the RAD is able to dispose of this appeal without relying on new documents, there is no need to consider these documents. Thus, the request for a hearing before the RAD also is moot. DISPOSITION [20] Pursuant to Section 111(1)(c) of IRPA, the RAD sets aside the decision of the RPD and refers the matter back to the RPD for re-determination by a differently constituted panel. [21] This appeal is therefore allowed. (signed) 'Atam Uppal' Atam Uppal October 21, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Appellant's Record, p. 41, para. 44. 3 RPD's Reasons, para. 37. 4 RPD's Reasons, para. 38. 5 Portillo v. M.C.I. (F.C., no. IMM-5004-13), Russell, September 12, 2014, 2014 FC 866. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05595