TB6-03992

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 : TB6-03992 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 XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 17, 2016 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis (Davis & Grice) 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 (the Appellant), a citizen of Libya, appeals a decision of the Refugee Protection Division (RPD), dated February 22, 2016, rejecting his claim for refugee protection. DETERMINATION [2] Pursuant to subsection 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination by a differently constituted panel. [3] This appeal is allowed. BACKGROUND [4] The Appellant alleged before the RPD that he is a 40-year-old male, from XXXX. He was involved with a group that opposed the government in Libya when Gadhafi was the dictator. The Appellant was threatened by pro-Gadhafi militias in XXXX in XXXX 2013, and was accused of participating in the overthrow of the government, due to his opposition to Gadhafi. The Appellant began work for the new government in Libya in the XXXX XXXX XXXX in XXXX 2013. People working for the new government in Libya were targeted for retaliation by groups opposed to the new regime. The Appellant fears returning to Libya due to his past opposition to the Gadhafi regime, his profile as a moderate Muslim, and his employment with the new government. [5] The Appellant applied for a visa to study in Canada that was granted in XXXX 2014. He arrived in Canada on XXXX XXXX, 2014, and claimed protection on September 17, 2014. [6] The RPD rejected the claim and found that the Appellant was not credible with respect to the material aspects of the claim. [7] The Appellant is not relying on new documents referred to in section 110(4), and he is not requesting a hearing, pursuant to section 110(6). [8] The Appellant requests that the RAD set aside the determination of the RPD and find the Appellant to be a Convention refugee. In the alternative, the Appellant requests that the RAD refer the matter to the RPD for redetermination by a different member of the RPD. Issues: [9] The Appellant's issue is whether the RPD member erred in assessment of the credibility of the Appellant. ROLE OF THE RAD: STANDARD OF REVIEW [10] The Appellant did not make submissions regarding the role of the RAD. [11] However, the Federal Court of Appeal recently rendered its decision in Huruglica, and it provides direction regarding the role of the RAD: [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.1 [12] Guided by Huruglica above, I will conduct my own analysis of the record and determine whether the RPD erred and make a finding whether the Appellant is an excluded person pursuant to article 1F(b) of the Convention, and whether the Appellant is a Convention refugee or a person in need of Canada's protection. Merits of the appeal: [13] The Appellant submitted in his memorandum that the RPD's credibility findings are based on peripheral issues and are microscopic. The Appellant cited eight areas of concern, including his arguments that the RPD panel seeks to impugn the credibility of the Appellant on the basis of a discrepancy between whether he was self-employed for "about a year" or a period of five months, and whether he started his employment with the Military in XXXX or XXXX of 2013. [14] The Appellant seems to suggest that the RPD misconstrued the evidence regarding how soon after his employment he was granted scholarship to go to Canada, and erred in impugning his credibility based on the fact that the Appellant wanted to leave Libya to come to Canada and made several attempts to do so. [15] The Appellant also argues that the RPD misconstrued evidence in finding that the Appellant submitted in his narrative that he was involved in demonstrations and expressing anti-Gadhafi political opinion through XXXX. [16] The Appellant also argues that the RPD's statement regarding the XXXX being revealed in the middle of the hearing is in error, as the Appellant had mentioned the XXXX at his interview with the Minister. The Appellant also contests the RPD finding that he did not provide that the name of the group he was associated with, and he did not provide any corroborative evidence. Alleged employment for the military in 2013: [17] The RPD considered the Appellant's employment with the military, but focused primarily on the issue of when the Appellant started the job. Based on the record and a review of the RPD's decision, I find that the whole issue of whether the Appellant was ever hired by the military in Libya in 2013 is central to the claim, and that the RPD did not make it clear finding on this issue, even though the RPD had several concerns about when the Appellant started his work for the military. [18] The RPD noted the contradictions between the Appellant's testimony at the hearing and his declarations in some of the mandatory forms. The RPD noted in its reasons at paragraph 11, "I find for these reasons that the claimant should have been able to clearly articulate the dates of his employment with the XXXX XXXX XXXX. The fact he was not able to do so suggest to me that he is obfuscating his employment history. This has a negative impact on his credibility". [19] Whether or not the Appellant was employed by the Libyan military in 2013 is central to the claim, and a clear finding on this issue is essential but is missing in the RPD's reasons. There is contradictory documentary evidence on the record that shows that the Appellant worked for the Libyan military only in the year 2000, and did so only for several months to complete his mandatory service.2 This piece of documentary evidence is important in this case because the Canadian Border Services Agency asked3 the Appellant on December 29, 2014 to provide complete details of his military service, along with a copy of the military book. In response, the Appellant provided a form with information about his military service, and this form shows that he served only once as a XXXX in the XXXX and started his service on the XXXX XXXX, 2000 and finished his service on XXXX XXXX, 2000. The Appellant did not list any other employment with the military in Libya, including the alleged 2013 employment. The RPD's reasons make no reference to this document. The RAD cannot find any evidence that this issue was raised at the hearing and therefore cannot use it without providing proper notice to the Appellant. It is not clear from the RPD's reasons whether the RPD considered this document in arriving at its determination. Therefore, I find that the RPD did not provide adequate reasons. [20] The Honourable Mr. Justice Shore, in a recent decision in Sidhu,4 explains the adequacy of reasons, stating: [20] The test of adequacy of reasons has been articulated by this Court numerous times, including recently in Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323 (CanLII), 386 FTR 1:5 [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23 (CanLII), [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency, 2000 CanLII 16275 (FCA), [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36. [Emphasis added.] [21] The other concern I have about this case is the letter of support based on which the Appellant was granted a visa to enter Canada, even thought he had been twice denied visas in 2012. The Appellant's letter of support6 to get a visa to Canada is just a letter written by a XXXX XXXX posted in XXXX who wrote to the Canadian Embassy in XXXX, Libya. This letter does not show that the Appellant is an employee or when he was employed. It is rather odd that the Appellant's employer, the Libyan military in XXXX, did not write such a letter to show that the Appellant was hired by the military, when he was hired, what is his title/rank, what is his salary etc. It is also not clear whether the Appellant's neighbor, the XXXX in the XXXX XXXX XXXX, arranged to get this letter for the Appellant. [22] The Appellant was asked to provide his military book to CBSA, but he did not. It appears that the RPD did not pose questions such as where is his military book that would show the specific details of his employment. If the Appellant indeed worked for the military, it would be reasonable for the RPD to expect him to be able to provide such documents from his employer, including a letter of acceptance. In addition, there may be other avenues to corroborate the Appellant's allegation that he worked for the military, such as bank records and his identity documents from the military. [23] The Appellant is correct that under certain circumstances, it can be an error on the part of RPD to require corroborative documentary evidence. However, in this case, since the RPD had expressed concerns about the Appellant's credibility, therefore it is not an error on the part of RPD to expect corroborative evidence. In Imaniraguha v. Canada,7 the Court stated: [31] Finally, on the more general issue of credibility, it must be noted that the Applicant failed to provide corroborative evidence for his allegations that he was arrested and charged in Rwanda. This Court has previously found that it is reasonable for a tribunal to draw a negative inference from the failure to provide corroborative evidence when it relates to essential elements of an applicant's claims, as it is the case here (see Sinnathamby v Canada (Minister of Citizenship and Immigration),2001 FCT 473 (CanLII), 2001 FCT 473 at para 24, [2001] FCJ No 742; Quichindo v Canada (Minister of Citizenship and Immigration), 2002 FCT 350 (CanLII), 2002 FCT 350 at para 28, [2002] FCJ No 463). And as my colleague Justice de Montigny observed in Jarada v Canada (Minister of Citizenship and Immigration), 2005 CF 409 (CanLII), 2005 CF 409 at para 22, [2005] FCJ No 506, given that the RPD credibility finding with respect to the Applicant relied on a number of elements and implausibilities, "the reasons of an administrative tribunal must be taken as a whole in determining whether its decision was reasonable, and analysis does not involve determining whether each point in its reasoning meets the reasonableness test [...]." [24] The Court in the case mentioned above shows not only the importance of corroborative evidence under certain conditions, but it also states that the decision of the Board has to be considered as a whole. Just as the RPD must not be microscopic, similarly the Appellant has to read the decision as a whole and not microscopically. [25] The Federal Court in Jakariya v. Canada8 stated: For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. [26] I agree with the Appellant's third issue that the Appellant "was sent abroad on a scholarship by the Ministry about a year later. That is hardly "soon" as Member Gaudet states." This issue however is minor, and leaning towards microscopic critique of the RPD determination. Considered as a whole, I find that the RPD provided cogent and intelligible but insufficient reasons. [27] In this case there was no new evidence and Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record. The RAD does not have sufficient credible evidence upon which to make a determination. In this case the RAD is of the opinion that it cannot provide a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. [28] Based on the foregoing, the RPD's reasons are set aside. The RAD refers the matter to the RPD to be considered by a differently constituted panel. [29] This appeal is allowed. DETERMINATION [30] Based on the analysis above, the RAD sets aside the determination of the RPD, as per subsection 111(1)(c) of the IRPA, and the RAD refers the matter to the RPD for reconsideration by a differently constituted panel. [31] The RAD allows the appeal. (signed) "Atam Uppal" Atam Uppal May 17, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, at p. 216. 3 Exhibit RPD-1, RPD's Record, at p. at 215. 4 Sidhu, Prabhjot Kaur v. M.C.I. (F.C., no. IMM-11988-12), Shore, February 26, 2014; 2014 FC 176. 5 Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323 (CanLII), 386 FTR 1. 6 Exhibit RPD-1, RPD's Record, at p. 291. 7 Imaniraguha, Robert v. M.C.I. (F.C., no. IMM-4416-13), Noël, April 10, 2014; 2014 FC 349. 8 Jakariya, Sikkandar v. M.C.I. (F.C.T.D., no. IMM-3550-98), Pinard, July 8 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :