MB4-01914

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 : MB4-01914 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision November 26, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX, the appellant, a citizen of Guinea-Bissau, is appealing against the decision of the Refugee Protection Division (RPD), alleging that the latter erred in fact and in law in its determination regarding the internal flight alternative (IFA). II. DETERMINATION OF THE APPEAL [2] In accordance with subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form), which he signed on February 10, 2014, the appellant states that he is a citizen of Guinea-Bissau, born on XXXX XXXX, 1994.1 The information regarding the members of his family does not indicate where his father, mother and uncle were living, if they were still alive, but it does indicate that one of his aunts was living in Bissau and another in Bula at that time.2 [4] In his BOC Form, the appellant states that on XXXX XXXX, 2013, troops came to speak with his uncle, XXXX XXXX XXXX XXXX; the conversation became violent, and his uncle called the police. He states that the police arrived and wanted to take his uncle with them, but that the troops stepped in by force and began beating his uncle.3 [5] In his BOC Form, the appellant states that he tried to intervene along with his aunt, but that the troops threatened to attack him in the same way and that he therefore fled. He states that his aunt XXXX was raped.4 [6] In his BOC Form, the appellant states that he believes he would face harm, mistreatment or threats from the troops if he were to return to his country, given that he poses a threat to them because he could testify against them.5 [7] In his BOC Form, the appellant states that he asked the police to help him, but nothing came of it because the police have no power in the country. He states that they told him that they could do nothing since they have no power and that the troops (in other words, the soldiers) are the ones who govern the country and do what they want with impunity.6 [8] In his BOC Form, the appellant states that he went to seek refuge in Dakar, but that he did not feel safe there because it is a neighbouring country, and that his life would still be at risk there. He states that a friend of his aunt's who lived in Dakar advised him to travel to Canada to seek refuge.7 [9] In his BOC Form, the appellant states that he left his country on XXXX XXXX, 2013, and not before because he did not yet have the required documents and money.8 [10] In his BOC Form, the appellant states that he cannot return to his country because his life would be at risk there, given that even the president was assassinated and justice was not done. He states that he is still living this nightmare with respect to the soldiers.9 [11] Before the RPD, the appellant filed a few documents10 in evidence in addition to his BOC Form. B. RPD decision [12] The hearing was held on April 14, 2014, before Member Jacqueline La (the member) of the RPD, and the decision was rendered a few days later, on April 25, 2014.11 [13] On the day of the hearing, the appellant, then referred to as the claimant, appeared without a lawyer and told the member that he did not want to adjourn his hearing and was ready to proceed immediately.12 [14] In its reasons for decision, the RPD was of the opinion that the harm feared by the appellant was linked to a personal vendetta and did not arise from one of the grounds set out in section 96 of the IRPA. In reaching this conclusion, the RPD relied on the evidence showing that the appellant had been a witness of his uncle's murder, the latter having opposed the corruption and pilfering committed by the soldiers in the XXXX region, where their country home was located.13 [15] In its reasons for decision, the RPD states that the appellant's allegations were credible: [Translation] [11] The claimant's testimony was spontaneous and devoid of exaggeration. He explained that his mother had entrusted him to his uncle around the age of four, after his father had abandoned them. On XXXX XXXX, 2013, while he was still in his uncle's custody, the claimant allegedly witnessed an argument that quickly degenerated into violence between his uncle and some soldiers. His uncle eventually succumbed to his injuries, as stated on the death certificate submitted as Exhibit P-1. [12] The panel found no inconsistencies or implausibilities in the testimony that could lead it to make a negative finding with respect to the claimant's credibility. Given the principle set out in Maldonado, the claimant's allegations are therefore presumed to be true.14 [16] However, the RPD was of the opinion that it could not allow the refugee protection claim given the existence of an IFA: [Translation] [17] When asked about the reasons that would prevent him from living in Bula with his family, the claimant stated that he had witnessed his uncle's murder and that, as a result, he is wanted by soldiers who want to silence him. When asked to explain why his aunt does not seem to have experienced any problems in Bula, even though she was allegedly sexually assaulted and could also be a troublesome witness for the soldiers, the claimant answered that, because his aunt is a woman who has already been a victim of the soldiers and has been ill since then, he does not think that the soldiers will want to "kill her." Further, in his opinion, being a young man, he must pursue his studies, go out and eventually find himself a job, which would put him at risk of being traced by the soldiers. [18] The panel disagrees. [19] First of all, the panel draws no distinction between the claimant's situation and that of his aunt. Both were present during the attack of XXXX XXXX, 2013, and could be identified as potential witnesses. However, the claimant lived in Bula for three months, from XXXX 2013 until XXXX 2013, without encountering problems with the soldiers. His aunt has lived there since XXXX 2013 and, to date, nearly a year after the incident, the claimant has not been informed of any incident involving soldiers there in connection with the death of his uncle. Further, the panel is of the opinion that if the claimant and his aunt were actually targeted by the soldiers, the latter would have started by visiting and/or questioning family members about them, especially after a request was made to the local authorities to hold a funeral for his uncle in XXXX. Moreover, when asked about his reasons for believing that he is wanted by the soldiers, the claimant simply answered that his family considered that he faced a risk by remaining in the country, and offered nothing else concrete in support of his allegation. As such, the panel is of the opinion that the risk of harm alleged by the claimant is speculative, or at least, that the behaviour of the soldiers does not support the contention that there is an interest in him. [20] When asked how he managed to obtain a passport, the claimant answered that the soldiers responsible for his uncle's death "operate in the forest" in XXXX and "are not with all the other soldiers," and added that he had received help from a friend. In light of all the evidence, the panel is of the opinion that his uncle's assailants are local soldiers whose power and influence are limited to one location, namely, XXXX, and the claimant failed to establish through reliable evidence that they have sufficient reach to access his personal information and track him down anywhere in the country. [21] Finally, considering the claimant's young age, his state of health, his family's presence in Bula, the fact that he lived there for more than three months, and the fact that his aunt has lived there for more than 11 months without being harassed, the panel is of the opinion that it is not unreasonable to expect the claimant to find refuge in Bula.15 C. Grounds of appeal and decision sought [17] In his memorandum, the appellant submits that the RPD erred in fact and in law in its decision regarding the IFA.16 [18] The appellant submits that the RPD erred in law by characterizing the appellant's claim as one involving criminality. He submits that even though he does not know why his uncle was killed, the fact remains that the soldiers who killed his uncle mentioned Antonio Indjai, the general of the country's armed forces, and that, since the 2012 coup, the military has controlled the country. Consequently, in his opinion, it can be said that his case concerns imputed political opinion or family, given that his uncle appears to have been killed for political or ethnic reasons.17 [19] Regarding the error of fact, the appellant submits that the RPD did not take into account the difference between himself and his aunt. His aunt can live in hiding in her home, as she does not need to work; in contrast, he must find himself a job, which puts him at risk. He also submits that in its analysis of the IFA, the RPD failed to take into account the political situation in his country.18 [20] The appellant requests that the RAD set aside the RPD determination and grant him refugee status.19 [21] In his memorandum, the appellant does not indicate that he is presenting any new evidence before the RAD or that he is requesting that a hearing be held. IV. APPROACH TO BE TAKEN IN THIS APPEAL [22] In his memorandum, the appellant submits that the RAD, which is an appeal tribunal, has jurisdiction to hear de novo appeals, and must analyze the evidence before it and reach its own conclusions without showing deference to the RPD.20 [23] In a decision rendered on October 8, 2014, after reviewing the reasoning adopted by his Federal Court colleagues in previous decisions,21 Justice Martineau notes that they seem to have interpreted the IRPA differently and contradictorily with respect to the nature of appeals before the RAD.22 [24] Justice Martineau identified three approaches: (1) the standard of judicial review, or "reasonableness" (decision of Member Gallagher and various other RAD decisions); (2) the standard of appellate review or of "palpable and overriding error" (Garcia Alvarez, Eng and Spasoja,23 above); and (3) a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a "hybrid appeal"-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant (Huruglica,24 above).25 [25] After dismissing the first approach, that is, the reasonableness standard of review, Justice Martineau states that the second and third approaches prevail today, but that they create a real dilemma, given the differences that exist between them.26 [26] Rather than choosing between these two approaches, applying the principle of judicial comity, Justice Martineau states that he chose the path of wisdom: allowing the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada.27 [27] In a decision rendered on November 12, 2014, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although within the Federal Court, opinions diverge on the level of deference that is owed.28 [28] In a decision rendered on November 14, 2014, Justice Gagné states that in regard to the IFA, the RAD owes no deference to the RPD and it is therefore necessary for it to review the relevant evidence and to formulate its own opinion.29 [29] In a decision rendered on November 14, 2014, using firm language and identifying the member who presided in this file, Justice Martineau demonstrates that the approach used by the RAD to determine its function in relation to that of the RPD is an unacceptable outcome in law.30 He is unequivocal: an appeal before the RAD is not a judicial review. The RAD has much broader powers on appeal than those of a court of law sitting in judicial review.31 While criticizing the RAD decision-maker in this case for failing to analyze the nature of the appeal before him, though without making a final determination on the issue, Justice Martineau invited the RAD to consider the three options (true appeal, appeal de novo, and hybrid appeal) with an open mind.32 Justice Martineau then refers to a recently published article: [54] In this regard, in an article entitled "Refugee Appeal Division (RAD)-First Steps in an Important Legal Evolution" (2014) Imm L R (4th) 169, Mario Bellissimo and Joanna Mennie, specialized practitioners, argue that a "one size fits all" approach to RAD appeals is not consistent with the statutory framework. They indicate that, where RAD members have experience and skills that are superior to those of RPD members, the RAD should not show significant deference to the RPD. In addition, in order for the RAD to play a significant role and not be a mere intermediary between the RPD and judicial review in Federal Court, the RAD must not be overly deferential to the RPD's findings. Furthermore, the RPD is in no better position than the RAD to assess viva voce evidence when the RAD convenes a hearing, which favours a nuanced approach that allows a different standard to be applied to different cases.33 [30] In his decision, Justice Martineau states that, to ensure the integrity of the Canadian refugee determination process, both RPD and RAD members have the powers and authority of a commissioner appointed under the Inquiries Act (section 165 of the IRPA). They may inquire into any matter that they consider relevant to establishing whether a claim is well-founded (paragraph 170(a) of the IRPA). A member's role is therefore different from the role of a judge in a court of law.34 He also notes that from the perspective of establishing facts, determining whether there is a well-founded fear of persecution requires assessing a refugee protection claimant's subjective fear and its objective basis in light of the documentary evidence pertaining to the conditions in the country of origin.35 The intervention model that must be implemented by the RAD should be assessed in this context: On appeal, the RAD will also have access to the RPD's record (including recordings) and all the documentary evidence (including the NDP [National Documentation Package] of the country in question). Apart from a pure credibility issue (in passing, what is credibility?), one may reasonably ask whether a RAD member is in just as good a position as a RPD member to reassess the evidence in the record where it is alleged on appeal that the RPD erred in its assessment of the evidence as a whole...36 [31] Having analyzed the history of the legislation that governs the RAD today, Justice Martineau states in his decision that it enables the latter, on the one hand, to efficiently correct errors made by the RPD by conducting a complete review of questions of fact, law and mixed law and fact and, on the other hand, to ensure consistency in the decision-making process by establishing uniform jurisprudence on refugee law issues.37 [32] In conclusion, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD until such time as the Federal Court of Appeal or even the Supreme Court of Canada decides the issue definitively. He states that, in the interim, the onus will be on the RAD to review the IRPA and to adopt a new test based on an analysis that will take all the relevant factors into account. He adds that he does not believe that the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review; a composite and variable standard of review) discussed in Alyafi are the only options to consider-the absence of deference in the case of any error of law, fact or law and fact being also a possible option.38 [33] In a decision rendered on November 21, 2014, citing one of his colleagues, Justice Shore states, "Save for cases in which the credibility of a witness is critical or determinative, or where the RPD enjoys a particular advantage over the RAD in reaching a specific conclusion, the RAD owes no deference to the RPD's assessment of the evidence". 39 [34] Drawing as much as possible on the decisions rendered to date by the Federal Court, I am of the opinion that, in the instant case, I must conduct my own assessment of all of the evidence, analyze all aspects of the RPD decision and reach my own conclusion as to whether or not the appellant is a refugee or a person in need of protection. I am also of the opinion that I must show a certain amount of deference to the RPD's findings on credibility issues or on any other issue for which it enjoys a particular advantage, which, however, does not apply to interpreting questions of law, analyzing the IFA or analyzing documentary evidence pertaining to conditions in the country in question. V. ANALYSIS OF THE MERITS OF THE APPEAL [35] After listening to the recording of the hearing before the RPD and after analyzing all the evidence and the reasons for the RPD's decision, I have reached the same conclusions as the RPD. My reasons follow. A. Analysis of the appellant's claim for refugee protection under section 96 of the IRPA [36] According to the case law, in order for immediate family to be considered a particular social group within the meaning of section 96 of the IRPA, the person claiming refugee protection must establish a clear nexus between the persecution faced by the family member and the persecution he or she experienced. In other words, when the main victim does not meet the Convention refugee definition, a derivative claim based on membership in the family group cannot be allowed.40 [37] In this case, having analyzed all of the appellant's evidence, including his testimony at the RPD hearing, I conclude that he did not establish, on a balance of probabilities,41 that his uncle, who was killed by soldiers in the XXXX region, was a victim of persecution on any of the grounds set out in section 96 of the IRPA. [38] In his memorandum, the appellant submits that even though he does not know why his uncle was killed, the fact remains that the soldiers who killed his uncle mentioned Antonio Indjai, the general of the country's armed forces, and that, since the 2012 coup, the military has controlled the country. Consequently, in his opinion, it can be said that his case concerns imputed political opinion or family, given that his uncle appears to have been killed for political or ethnic reasons.42 [39] During his testimony at the RPD hearing, the appellant stated that he did not know why the soldiers, who are of the Balanta ethnic group and who had been causing problems in XXXX, had killed his uncle on Sunday, XXXX XXXX, 2013. He also stated that he knew that his uncle often spoke of the problems that he had with the soldiers because he opposed the robberies they committed.43 [40] Later during his testimony, when asked why he believed the soldiers, of the Balanta ethnic group, who work in the forest in XXXX, would search for him throughout the country and would have access to information enabling them to find him in Bula or in Bissau, the appellant answered that it was because of their leader, General Antonio Indjai of the Guinea-Bissau armed forces, who has violent contacts throughout the country. The appellant stated that since the General is also of Balanta ethnicity, soldiers who are of the same ethnicity receive more benefits. When asked by the member what made him believe that General Antonio Indjai would have been involved in his uncle's murder, the appellant answered that when the soldiers were beating his uncle with batons, they mentioned Antonio Indjai's name, but since they were speaking in Balanta, that was all that he was able to understand.44 [41] None of the information in the appellant's BOC Form indicates that during the tragic altercation between his uncle and the soldiers, the latter mentioned General Antonio Indjai, who is the leader of Guinea-Bissau's armed forces. He also included no information indicating that the soldiers who attacked his uncle belonged to the same ethnicity as the General and that, as a result, they could obtain benefits giving them access to information that would help them find him.45 [42] Lastly, the documents that he filed in evidence before the RPD do not contain any information about any of these points. Moreover, his uncle's death certificate does not mention who was responsible for the cranial hemorrhage that caused his death following a confrontation.46 [43] Accordingly, I am of the opinion that the appellant did not establish, on a balance of probabilities, that his uncle's death was the result of persecution by reason of his political opinion. In light of this, the appellant cannot argue that his own claim for refugee protection is based on one of the grounds set out in section 96 of the IRPA. [44] For these reasons, I am of the opinion that the RPD did not err by not analyzing the appellant's claim under section 96 of the IRPA. B. Existence of an IFA [45] In this case, having analyzed all of the appellant's evidence, including his testimony at the RPD hearing, I conclude that he failed to establish that no IFA was available to him in Bula, where he lived before leaving his country and where his aunt still lives. I also conclude that the appellant failed to establish that no IFA was available to him in Bissau, where, according to the statements he made upon arriving in Canada, he lived until he left his country for Senegal. My reasons follow. First prong of the IFA analysis [46] The first question to be asked when examining the issue of the IFA is whether there is another part of the country where the claimant would not be subjected to persecution or to a risk to his life.47 The claimant has the burden of establishing that he does not have an IFA in another part of his country.48 [47] In his memorandum, the appellant submits that the RPD did not take into account the difference between himself and his aunt: his aunt can remain in hiding in her home, as she does not need to work, whereas he must find a job, which puts him at risk. He also submits that, in its analysis of the IFA, the RPD failed to take into account the political situation in his country.49 [48] When he testified at the RPD hearing, the appellant stated that after his uncle died in XXXX 2013 in XXXX, where he, his uncle and his aunt went regularly, he and his aunt went to Bula, about a XXXX XXXX XXXX XXXX XXXX XXXX walk from XXXX, and that he went to Senegal on XXXX XXXX, 2013.50 [49] During his testimony, when asked whether his aunt had had any problems since going to Bula, the appellant answered that he did not think so. When asked why he could not live in Bula, the appellant answered that, as a man, he had to go out, which would put him at risk and, moreover, if at some point justice were to be done, he would be asked what had happened during the incident that caused his uncle's death. When asked whether an investigation was being conducted, the appellant answered that a friend of his uncle's was trying to launch an investigation. When asked why he believed that he was wanted in his country, the appellant stated that his entire family had told him that he could be at risk should he return because he had witnessed what had happened, and that the soldiers saw his face and think that he wants revenge.51 [50] During his testimony, when asked to explain how he had managed to obtain a passport if he is wanted in his country, the appellant answered that he had received help from someone involved in a political party and that the soldiers who are looking for him are not part of certain ministries; soldiers in his country are divided, and those who operate in the forest are members of the Balanta ethnic group. He added that the party of the person who helped him had contacts within the ministry that issues passports.52 [51] When asked why he thought that soldiers of the Balanta ethnicity operating in the forest in XXXX would search for him throughout the country and would have access to information enabling them to find him in Bula or in Bissau, the appellant answered that it was because of their leader, General Antonio Indjai of the Guinea-Bissau armed forces, who has violent contacts throughout the country. The appellant stated that since the General is also of Balanta ethnicity, soldiers who are of the same ethnicity receive more benefits. When asked by the member what made him believe that General Antonio Indjai was involved in his uncle's murder, the appellant answered that when the soldiers were beating his uncle with batons, they mentioned Antonio Indjai's name, but as they were speaking in Balanta, that was all he was able to understand.53 [52] None of the information in the appellant's BOC Form indicates that the soldiers who attacked his uncle belong to the same ethnic group as the General and that, as a result, they could obtain benefits giving them access to information that would help them find him throughout the country. He also provided no information in his BOC Form indicating that he had moved to another part of his country seeking refuge.54 [53] There is no information in the documents he filed in evidence before the RPD indicating that he moved to Bula to live with his aunt after his uncle's death. Moreover, his identity card filed in evidence indicates that he was born in Bula, but that on August XXXX, 2013, he was residing in B. Alto Bandim, Bissau.55 [54] Finally, in his IMM 5669 form, the appellant states that he was studying in Bissau until June 2013 and that he lived in Bissau from 1998 until September 2013.56 [55] Consequently, in addition to the credibility problems with respect to where the appellant lived until he left his country in XXXX 2013, I am of the opinion that, even considering the difficult situation in his country, the appellant did not demonstrate that no IFA is available to him in another part of his country, specifically in Bula or even in Bissau. It must be noted that, according to his own testimony, the appellant experienced no incidents involving the soldiers who are allegedly looking for him, up to XXXX 2013. Moreover, since he left his country, no members of his family have been visited by the soldiers who are allegedly looking for him. Finally, following his uncle's death, he was able to obtain a passport and leave his country without any interference from the soldiers who are allegedly looking for him. Second prong of the IFA analysis [56] The second question to be asked when analyzing the issue of the IFA is whether it would be objectively unreasonable or unduly harsh to expect the appellant to move to another part of his country, when he has not demonstrated that he does not have an IFA in another part of his country.57 [57] It is true that, according to the case law, the threshold must be set very high, and claimants or appellants must present actual and concrete evidence of conditions that would jeopardize their lives and safety in travelling or temporarily relocating to a safe area.58 [58] That said, whether an IFA is reasonable or not is nevertheless a flexible test taking into account the particular situation of the person concerned and his or her country.59 [59] It is true that, according to the documentary evidence, the situation in Guinea-Bissau is worrisome; for example, the evidence identifies serious human rights abuses, including arbitrary detention, and states that the corruption of certain government officials is exacerbated by the impunity they enjoy, and that they are suspected of being involved in drug trafficking.60 Moreover, this documentary evidence states that security forces arbitrarily arrest people, are involved in personal disputes and sometimes detain people without respecting the rules of procedural fairness.61 [60] Regardless, the appellant did not establish that he personally was a victim of such situations, nor did he establish that it was not objectively unreasonable or that it was unduly harsh to expect him to relocate to Bula or Bissau if he were to return to live in his country. [61] For these reasons, I am of the opinion that the RPD committed no error in concluding that the appellant had an IFA in his country. After analyzing all the evidence, I am of the opinion that the appellant did not establish that an IFA was not available to him given that, according to his own testimony, he lived in his country for a few months after his uncle's death without being subjected to threats or reprisals from soldiers. VI. CONCLUSION [62] For these reasons, I confirm the RPD's determination, that XXXX XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [63] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette November 26, 2014 Date IRB translation Original language: French 1 BOC Form, pages 11 and 22 of the RPD record. 2 Idem, page 17 of the RPD record. 3 Idem, page 11 of the RPD record. 4 Idem, pages 11 and 12 of the RPD record. 5 Idem, page 13 of the RPD record. 6 Idem. 7 Idem, page 14 of the RPD record. 8 Idem. 9 Idem, page 15 of the RPD record. 10 These documents are reproduced at pages 53 to 64 of the RPD record. 11 RPD decision, pages 3 to 8 of the RPD record. 12 Idem, paragraph 6, page 4 of the RPD record. 13 Idem, paragraphs 8 to 10, page 5 of the RPD record. 14 Idem, paragraphs 11 and 12, pages 5 and 6 of the RPD record. 15 Idem, paragraphs 17, 18, 19, 20 and 21, pages 6 and 7 of the RPD record. 16 Appellant's memorandum, page 8 of the appeal record. 17 Idem, page 9 of the appeal record. 18 Idem, page 10 of the appeal record. 19 Idem, page 11 of the appeal record. 20 Idem, pages 8 and 9 of the appeal record. 21 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494. Garcia Alvarez v. Canada (Minister of Citizenship and Immigration), No. IMM-7218-13, Shore, July 17, 2014; 2014 FC 702. Eng v. Canada (Minister of Citizenship and Immigration), No. IMM-7281-13, Shore, July 17, 2014; 2014 FC 711. Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, August 22, 2014; 2014 FC 799. Yetna v. Canada (Minister of Citizenship and Immigration), No. IMM-7567-13, Locke, September 10, 2014; 2014 FC 858. Njeukam v. Canada (Minister of Citizenship and Immigration), No. IMM-7280-13, Locke, September 10, 2014; 2014 FC 859. Spasoja v. Canada (Minister of Citizenship and Immigration), No. IMM-7630-13, Roy, September 23, 2014; 2014 FC 913. 22 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 46. 23 In Spasoja, Justice Roy ruled that an appeal before the RAD must be dealt with as an appeal and not as a quasi-judicial review. He goes on to state that an error of fact must be palpable and overriding to succeed on appeal, with the understanding, furthermore, that questions of law must be analyzed on a correctness standard. 24 In Huruglica, Justice Phelan ruled that a standard of review analysis is not an appropriate analytical approach in the context of appeals before the RAD, and that one must instead look at such factors as the purpose of the appellate tribunal, the relevant statutory provisions, comparable expertise, and comparative appellate appeal regimes. After analyzing these factors, he concluded that the RAD is required to conduct a hybrid appeal, which means that it must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. That said, according to this last decision, in conducting its assessment as part of the administrative appeal, the RAD "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'." 25 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 16. In Triastcin v. Canada (Minister of Citizenship and Immigration), No. IMM-5981-13, Shore, October 15, 2014; 2014 FC 975, at paragraph 29, Justice Shore states that his colleague's decision in Alyafi summarizes, by means of a comprehensive analysis, all of the Federal Court decisions made to date with regard to the mandates of the RAD; that decision provides an overview to help arrive at a certain stare decisis in this regard. In Diarra v. Canada (Minister of Citizenship and Immigration), No. IMM-1217-14, Beaudry, October 23, 2014; 2014 FC 1009, at paragraphs 20 to 22, Justice Beaudry refers to the three approaches identified by his colleague Justice Martineau. 26 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 43. 27 Idem, at paragraphs 42 to 46. 28 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 29 Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), No. IMM-6639-13, Gagné, November 14, 2014; 2014 FC 1072, at paragraph 34. 30 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 31 Idem, at paragraph 41. 32 Idem, at paragraph 55. 33 Idem, at paragraph 54. 34 Idem, at paragraph 68. 35 Idem, at paragraph 69. 36 Idem, at paragraph 70. 37 Idem, at paragraph 86. 38 Idem, at paragraph 91. 39 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22, citing the earlier decision in Yetna v. Canada (Minister of Citizenship and Immigration), No. IMM-7567-13, Locke, September 10, 2014; 2014 FC 858, at paragraph 17. 40 Acevedo Beza v. Canada (Minister of Citizenship and Immigration), No. IMM-4301-05, Shore, April 12, 2006; 2006 FC 478, at paragraphs 32 and 33. Zaidi v. Canada (Minister of Citizenship and Immigration), No. IMM-8779-04, Martineau, August 9, 2005; 2005 FC 1080, at paragraph 4. 41 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45: " ... in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application". 42 Appellant's memorandum, page 9 of the appeal record. 43 Recording of the April 14, 2014, RPD hearing, from 33:30 to 36:00. 44 Idem, from 49:00 to 52:50. 45 BOC Form, pages 11 to 20 of the RPD record. 46 P-1: Death certificate, reproduced at pages 53 to 55 of the RPD record. 47 Rasaratnam v. Canada (M.E.I ), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. 48 Yanez Alfaro v. Canada (M.C.I ), F.C., No. IMM-5397-05, Beaudry, April 10, 2006; 2006 FC 460, at paragraph 22. 49 Appellant's memorandum, page 10 of the record of appeal. 50 Recording of the April 14, 2014, hearing before the RPD, from 26:51 to 31:35 and 36:15 to 37:30. 51 Idem, from 37:30 to 44:30. 52 Idem, from 46:20 to 49:00. 53 Idem, from 49:00 to 52:50. 54 BOC Form, pages 11 to 20 of the RPD record. 55 P-4: Identity card, reproduced at pages 61 to 63 of the RPD record. 56 Schedule A. Background / Declaration, IMM 5669 form, signed by the appellant on February 14, 2014, reproduced at pages 38 to 41 of the RPD record. 57 Rasaratnam v. Canada (M.E.I ), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589. 58 Campos Navaro v. Canada (Minister of Citizenship and Immigration), No. IMM-3158-07, de Montigny, March 17, 2008; 2008 FC 358, paragraph 20. 59 Martinez de Argueta v. Canada (Minister of Citizenship and Immigration), No. IMM-3665-10, Rennie, March 25, 2011; 2011 FC 369, paragraph 21. Mwara v. Canada (Minister of Citizenship and Immigration), No. IMM-4360-07, Tremblay-Lamer, June 17, 2008; 2008 FC 748, at paragraph 16. 60 National Documentation Package on Guinea-Bissau, March 14, 2014: Document 2.1: United States, Department of State, Guinea-Bissau. Country Reports on Human Rights Practices for 2013, 17 pages, at page 1. 61 Schedule A. Background / Declaration, IMM 5669 form, signed by the appellant on February 14, 2014, reproduced at pages 38 to 41 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01914 19