TB6-03572

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 : TB6-03572 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 XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 2, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Thaer Abuelhaija 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 XXXX, a citizen of Yemen, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and grant him the protection as a Convention refugee. [3] The Appellant is not relying on any evidence referred to in section 110(4) of the Immigration and Refugee Protection Act1 (IRPA), and is not requesting that a hearing be held at the RAD under section 110(6) of the IRPA. The Appellant is, however, open to having a hearing if it is deemed to be beneficial to his case. [4] The Minister is not intervening in this Appeal. DETERMINATION [5] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination. The appeal is allowed. BACKGROUND/ALLEGATIONS [6] The Appellant fears persecution, risk to his life or risk of cruel and unusual treatment or punishment, or danger of torture, upon return to Yemen due to his political opinion. [7] The Appellant alleged that Sunni Muslims are persecuted in Yemen due to the continued rise in Shia militia, including the Houthi. [8] The Appellant alleged that he started off his political activities by protesting on the streets in Sana'a with friends and activists in 2011, including taking part in demonstrations. The Appellant alleged that he always participated in the peaceful demonstration against the former Ali Abdullah Saleh who stepped down in 2012 after 33 years in power. The Appellant alleged that even after the President Saleh stepped down, the military and the security forces were very loyal to him and they started to crackdown on the demonstrators. [9] The Appellant started to pursue higher education, and came to Canada in XXXX 2013. While the Appellant was in Canada, the Houthi took control over Sana'a, the capital of Yemen. The Houthi later put the elected President of Yemen under house arrest along with his ministers. The militia started killing peaceful demonstrators in Sana'a, Taiz and Aden. Amidst all this, the President escaped house arrest and went to Aden and declared it to be the new capital of Yemen. [10] In XXXX 2014, the Appellant's mother got very sick. At the time, the Appellant's father was under house arrest and thus the family could not go anywhere. The Appellant returned to Yemen to help the family and stayed there until XXXX XXXX, 2015. During his stay in Yemen, he XXXX XXXX expressing opposition against the Houthi political views. The Appellant was involved in XXXX XXXX XXXX about the Houthi hatred against the Yemeni peaceful society and about how the Houthi were trying to create new Iran in Yemen. [11] In the first week of XXXX in 2015, the Appellant was kidnapped by the Houthi militia in Sana'a. During his abduction, the Appellant was tortured, they broke his XXXX XXXX XXXX XXXX. The Appellant's father was able to secure his release by paying a large sum of money to the Houthi. The Appellant was released with instructions that the Appellant was not allowed to have relations, nor to communicate or attend any meetings with his friends and colleagues. The Appellant was told that he was being monitored, and was told to leave the country and not to come back, and that if he were to report the incident to the authorities he would be torched and killed. Upon release, the Appellant left Yemen and drove to Saudi Arabia by car. [12] Further details regarding the Appellant's claim for refugee protection are outlined in his Basis of Claim (BoC) Form narrative.2 He provided additional details at his RPD hearing. [13] The Appellant arrived in Canada on XXXX XXXX, 2015. Shortly thereafter, the Appellant filed his claim for refugee protection. The Appellant's claim was heard on December 18, 2015. In a decision delivered on the same day, the RPD rejected the claim under both sections 96 and 97(1) of the IRPA. [14] The RPD found the Appellant not to be credible in that he had ever attracted anyone's attention as alleged due to either his own political activities or profile or because of his family's political profile. The RPD found the Appellant's abduction was consistent with a rampant generalized risk that has ravaged Yemen and is consistent with the current country conditions documents. Therefore, the RPD determined that the Appellant is neither a Convention refugee nor a person in need of protection. [15] The Appellant submits that the RPD failed to consider country documents in evidence showing that Iran-supported militia, the Houthi, are in conflict with Saudi-backed Sunnis, Islah and others in Yemen. The Appellant adds that Sunnis are persecuted in Yemen. The Appellant submits that the RPD erred in finding that extortion was not persecution. The Appellant submits that the RPD failed to consider that the Appellant was kidnapped by the Houthi militia due to his political activities and his own and his family's profile. The Appellant submits that the RPD did not refer to the threats that the Appellant received in captivity in regards to his political activities. AN ORAL HEARING AT THE RAD [16] As mentioned earlier, the Appellant is not requesting an oral hearing pursuant to section 110(6) of the IRPA. Nonetheless, the RAD considers if a hearing be held at the RAD in this case. [17] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's 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. When read together, however, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new evidence admitted under section 110(4), 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. The Appellant has provided no new evidence as per section 110(4) of the IRPA. [18] Therefore, the RAD must proceed without an oral hearing. ROLE OF THE RAD [19] The Canadian jurisprudence provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of the RPD, a first-level administrative tribunal. [20] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica3 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [21] In closing, Justice Gauthier wrote: 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.4 [22] Justice Gauthier rejected the high level of deference (measured by "palpable and overriding error") found in the Supreme Court of Canada (SCC) decision in Housen v. Nikolaisen 2002 SCC 33. Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: [In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.5 [23] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not in issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.6 [24] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's 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, the matter will be referred back to the RPD for redetermination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. [25] In conducting its own independent assessment and making the determination in this appeal, the RAD considered the entirety of the evidence submitted/adduced in this case, including the recording of the RPD's proceedings, and the Appellant's Appeal Record, including the Appellant's submissions7 and the case law submitted with the appeal.8 THE RPD'S FINDINGS AND THE RAD ANALYSIS Section 96 analysis [26] The Appellant's profile, including his political activities and his family's profile: The Appellant wrote in his BoC narrative that he started off his political activities by protesting on the streets in Sana'a with friends and activists in 2011, including taking part in demonstrations. The Appellant testified at the RPD that he was not involved in any political activities in Yemen prior to his first visit to Canada in XXXX 2013. The Appellant was asked to explain this discrepancy in his evidence; the Appellant alleged that his BoC form narrative contained errors. The RPD did not find his explanation satisfactory because the Appellant had made some corrections to his BoC at the start of the hearing, including the narrative, and thereafter confirmed that all information in his BoC was complete, true and correct. The RPD drew a negative credibility finding from this inconsistency. [27] The RAD finds the Appellant's explanation to be not satisfactory as well. The Appellant was represented by counsel at the RPD, and was aware that he could make corrections to his documentation prior to the start of the RPD hearing. The evidence shows that the Appellant did make some corrections to his BoC, including to the narrative, at the start of the RPD hearing. Moreover, after making those corrections, the Appellant confirmed that all information in his BoC, including the narrative, thereafter was complete, true and correct. Therefore, in this respect, the RAD concurs with the RPD in its negative credibility finding. [28] In XXXX 2013, the Appellant came to Canada to study. In XXXX 2014, the Appellant returned to Yemen because his mother was very sick at the time. The Appellant wrote in his BoC narrative that during the time he stayed in Yemen, i.e., XXXX 2014 to XXXX 2015, he was XXXX XXXX that were in opposition to Houthi political views, and that he was involved in XXXX XXXX XXXX about the Houthi hatred against the peaceful Yemeni society and how the Houthi were trying to create new Iran in Yemen. The Appellant testified at the RPD hearing that, prior to leaving Canada for Yemen, he knew that all of the family members, including him, would likely be observed by the Houthi because of the family's heightened profile, and given the fact that the Houthi had already kidnapped his maternal uncle. He added that due to the love of his country he became politically active anyway. He testified that his political activities included educating the others, mainly friends, neighbours and family, against the Houthi. He testified that his activities involved only talking to the others about the atrocities committed by the Houthi. The RPD asked the Appellant to explain the discrepancy in his evidence, i.e., XXXX XXXX versus talking orally to people. The Appellant provided no reasonable explanation other than stating that some of those people he spoke to might have prepared leaflets. The RPD drew a negative credibility finding due to this discrepancy in the Appellant's evidence. [29] In reviewing the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD finds that the Appellant did not provide a satisfactory explanation for the discrepancy in his evidence, and the discrepancy remained unresolved. In this respect, the RAD concurs with the RPD's negative credibility finding. [30] The Appellant wrote in his narrative that his family's situation was very bad; it was not easy for them to go anywhere because his father was still placed under forced residence and not allowed to leave the house. The Appellant testified at the RPD hearing that since 2004 up until then (the day of the RPD hearing), his father had been working with the XXXX XXXX XXXX and also ran a XXXX XXXX company. He further alleged that because his father had decided to keep a low profile, he has not had ongoing problems with the Houthi rebels. The Appellant testified that his father had not intended to be involved in any of this, i.e., the political activities. This discrepancy in his evidence was put to the Appellant. The Appellant's explanation was that his father suspected or knew that he was closely observed by the Houthi and that in the event he did anything improper they might have then retaliated against him. The Appellant's counsel attempted to have the Appellant provide further explanation relating to this discrepancy, yet the Appellant remained vague in his answers and did not provide satisfactory explanation for the discrepancy. The Appellant stated that his father could not do his job like he would have wanted to, and that he could not work like he did before. [31] The discrepancy remained unresolved. Therefore, the RPD drew a negative credibility finding due to this discrepancy in the Appellant's evidence. In reviewing the totality of the evidence in this case, including the recording of the RPD proceedings, the RAD concurs with the RPD. The RAD finds that the Appellant did not provide satisfactory explanation as to why his testimony contradicted the allegations in his narrative. [32] In consideration of the forward-looking risk to the Appellant, the RPD asked the Appellant if he had been involved in any political activities while in Canada. The Appellant testified that he had not been involved in any political activities in Canada. [33] Due to the above adverse credibility findings, the RPD found the Appellant to be not credible in that he was involved in political activities in Yemen. The RPD found the Appellant not credible in that he had ever attracted anyone's attention due to his Sunni religion and/or political activities or profile or because of his family's profile. [34] The RPD determined that the Appellant is not a Convention refugee. Section 97(1) analysis [35] The RPD then assessed the Appellant's claim under section 97(1) of the IRPA. The RPD accepted that the Appellant was kidnapped. In this respect, the RPD found that the Appellant's kidnapping incident, as unpleasant as it must have been to the Appellant, was consistent with a rampant generalized risk that has ravaged Yemen and is consistent with the conditions of the country presently. Therefore, the RPD found that the Appellant's kidnapping does not provide a foundation for establishing a personal risk for the Appellant pursuant to section 97(1) of the IRPA.9 The RPD determined that the Appellant is neither a Convention refugee nor a person in need of protection. [36] In its own independent assessment, the RAD concurs with the RPD in its negative credibility findings relating to the Appellant's own political activities and his own family's political involvement in Yemen. The RAD, however, is of the opinion that this, in and of itself, does not pre-empt further consideration of the Appellant's particular situation and circumstances. [37] The evidence establishes that the Appellant is a Sunni Muslim. The RAD finds the country documents in evidence10 provide substantial evidence in support of the Appellant's allegations of widespread conflict between the Iran-supported militia, the Houthi and the Saudi-backed Sunnis, Islah and others in Yemen. The RPD accepted that the Appellant was kidnapped. In reviewing the totality of evidence, including the recording of the RPD proceedings, the RAD is unable to establish, on a balance of probabilities, if the Appellant was kidnapped by the Houthi. The evidence, however, shows that the Appellant was physically tortured during captivity. The Appellant had submitted a medical report corroborating fracture of his hand/finger.11 Further, the RAD finds the Appellant's evidence showing that he was released by his captors with instructions that he was not allowed to have relations nor to communicate or attend any meetings with his friends and colleagues is significant. The RPD did not take issue with this aspect of the Appellant's evidence. Moreover, the RPD also did not take issue with the fact that, a couple of months before the Appellant left Canada to return to Yemen, the Appellant's maternal uncle had been kidnapped by the Houthi. [38] Furthermore, the RAD finds the RPD did not consider the evidence submitted in support of the Appellant's father's heightened social and political profile, i.e., member in the XXXX XXXX XXXX of the XXXX XXXX XXXX,12 and XXXX at the XXXX XXXX XXXX, XXXX XXXX XXXX.13 The evidence shows that the Appellant's father apparently needed XXXX XXXX.14 Further, the RAD finds the RPD did not give due consideration to the Appellant's father's business relations with the spokesperson of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX15 that is in conflict with the Houthi. [39] The RAD finds that, due to the RPD's selective handling of the evidence in this case, the question that remained unanswered is: would the Appellant be persecuted, or personally face a risk to his life or a risk of cruel and unusual treatment, or a danger of torture because of his and/or his family's social and political profile, and because he is a Sunni Muslim? The RAD finds the RPD did not assess the risk of harm to the Appellant upon return to Yemen, in his particular situation and circumstances. Therefore, the RAD finds the RPD erred in finding that the Appellant's abduction and subsequent torture by his captors constitutes a generalized risk of harm. [40] The RAD finds the evidence in this case shows that the Appellant was abducted, tortured during captivity, and released after his father paid his captors a large sum of money; and moreover, the captors released him on conditions that he were not to have relations, nor to communicate or attend any meetings with his friends and colleagues. Despite the above-mentioned facts, the RAD is unclear as to who abducted the Appellant and why he was abducted; the RAD finds the evidence on record is lacking in this respect. [41] Based on the totality of the evidence in this case and the above reasons, the RAD finds the evidence, on a balance of probabilities, establishes that the Appellant's abduction was not the result of generalized criminality that the citizens of Yemen face generally. The RAD finds the RPD erred in this respect. Therefore, the RAD cannot confirm the RPD's determination. SUMMARY [42] The RAD does not confirm the RPD's determination. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and grant him the protection as a Convention refugee. The RAD cannot substitute its own determination because the RAD will have to re-hear the whole claim, which the RAD cannot do pursuant to sections 110(3), (4), and (6) of the IRPA. [43] Despite the numerous negative credibility findings by the RPD, which the RAD concurs with, the RAD finds the Appellant's personal situation and circumstances need to be assessed in the context of the totality of the evidence submitted/adduced in this case. The RAD is of the opinion that further reliable and satisfactory evidence needs to be adduced to establish why the Appellant was kidnapped and by whom. [44] The RAD refers the matter back to the RPD for redetermination. DISPOSITION [45] Pursuant to subsection 111(1)(c) of the IRPA, the RAD refers the matter back to the RPD for redetermination before a differently constituted panel. [46] Accordingly, this appeal is allowed. (signed) "S.S. Kular" S.S. Kular May 2, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit RPD-1, RPD's Record, Exhibit 2, the Appellant's Basis of Claim (BOC) Form, pp. 9-21. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Ibid., at para. 103. 5 Ibid., at para. 69. 6 Ibid., at para. 70. 7 Exhibit P-2, Appellant's Record. Memorandum, pp. 9-13. 8 Exhibit P-2, Appellant's Record, Case Law, p. 14. 9 Exhibit P-2, Appellant's Record, Notice of Decision and Written Reasons, p. 7. 10 Exhibit RPD-1, RPD's Record, RPD Exhibits 3 and 4. 11 Exhibit RPD-1, RPD's Record, Medical report of XXXX XXXX Hospital, p. 107. 12 Exhibit RPD-1, RPD's Record, Membership Identification of the Appellant's father, pp. 270-271. 13 Exhibit RPD-1, RPD's Record, XXXX Identification of the Appellant's father at XXXX XXXX XXXX, pp. 272-273. 14 Exhibit RPD-1, RPD's Record, XXXX XXXX of the Appellant's father, pp. 268-269. 15 Exhibit RPD-1, RPD's Record, Partnership Agreement, pp. 256-257, and online articles, pp. 96-106. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-03572