TB5-09240

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 : TB5-09240 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 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 20, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and 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 (the Appellant), a citizen of Somalia, appeals a negative decision of the Refugee Protection Division (RPD) dated July 30, 2015. DETERMINATION [2] Pursuant to ss. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) refers the matter back to the RPD for re-determination with direction. This appeal is allowed. Background [3] The Appellant alleged before the RPD that he was born in Mogadishu, Somalia. He left Somalia in 2000 and fled to South Africa where he claimed refugee protection and was granted temporary status, renewable every three months. The Appellant is from the Marehan clan, a sub clan of Darod, and a practising Sufi. The Appellant fears persecution and possibly death by Al Shabab due to his Sufi beliefs and because he lived outside Somali for fourteen years. He fears he may be forced to join Al Shabab or pay them money. [4] The Appellant left South Africa and travelled through nine countries in the Americas before reaching the USA, where he claimed protection after his second attempt to enter the country from Mexico. His claim was denied in September 2014. The Appellant entered Canada illegally and claimed protection. [5] The Appellant's did not submit documents for consideration as new evidence and did not seek an oral hearing before the RAD. [6] The RPD stated in its reasons: ...that any risk the claimant faces does not arise to the level of establishing a nexus to a Convention Refugee ground. In other words, a general threat of being a victim or witness of a radical fundamentalist group such as Al-Shabaab does not establish a nexus. The panel also determines the claimant failed to establish a personal or particularised risk under section 97(1) of the Act. The risk the claimant faces is not different than the generalized risk of violence faced by all citizens in Somalia, including men such as the claimant having majority clan membership and of a majority religious group who fear being extorted and/or recruited by Al Shabab. 1 [7] The Appellant submits that he ought to be declared a Convention refugee or a protected person. The Appellant requests that the RAD refer the matter back to the RPD for re-determination Issues [8] The Appellant did not specify issues but appears to submit that the RPD ignored some of the contradictory evidence that is material to the claim. The issue, in my opinion, is as follows: is the Appellant a Convention refugee or a protected person? Role of the RAD/ Standard of Review [9] The Appellant submitted that "The RAD ought to independently evaluate the claim, not assess the reasonability of the findings of the RPD." This statement is consistent with the following. [10] Justice Phelan, in Huruglica,2 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 a first-level administrative tribunal. That decision states: [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 an "overriding and palpable error". [11] The jurisprudence on the appropriate standard of review or the role of the RAD is still evolving but, at present, the decision of Justice Phelan in Huruglica, above, is widely accepted and followed. Guided by this decision, I will consider the evidence to determine whether the Appellant is a Convention refugee or a person in need of protection. [12] Since there is no new evidence, the RAD will consider the merits of the appeal based on the record and the Appellant's Memorandum. ANALYSIS [13] The RPD found that there is no nexus to the Convention in its reasons at paragraph 13. The Appellant, on the other hand, makes a statement that there is nexus to the Convention, that being imputed political opinion. However, the RAD finds that neither the RPD nor the Appellant support their statement further. This leaves the RAD wondering how they arrived at their respective statements. Documentary evidence points to Al Shabab as being a terrorist organization with links to Al Qaida and appears to promote the Wahhabi form of Islam. [14] Huruglica guides the RAD to recognize and respect the credibility findings of the RPD where it enjoyed a particular advantage. However, in this case, the RPD did not make a credibility finding, even though it found the Appellant to be a member of the a major Darod clan and Marehan subclan, and that he has been out of Somalia for about 14 years. [15] The Appellant also submitted that the RPD accepted that the Appellant has been out of Somalia and lived in South Africa. The RAD notes that the Appellant's wife and their two children still remain in South Africa. The Appellant argues in paragraph 27 of the Memorandum that the Appellant should be declared a Convention refugee following the "...RIR SOMI05094. In the alternative, the RAD ought to consider the fact that the Appellant is a returnee from the West who has been away for many years, is westernized and practices Sufism, together to see if the Appellant merits protection, i.e. in a cumulative sense." The Appellant does not support how he arrived at that position. The document referred to by the Appellant (SOM105094.E) starts with the following statement: Sources report that the improved stability and security situation in Somalia has prompted members of the Somali diaspora to return to their country of origin (DRC Jan.2013; UN 9 July 2013). According to a July 2013 news article by the United Nations News Centre, '[w]ith parts of Somalia showing signs of increasing stability ... some Somalis have spontaneously decided to move back to areas under Government control.' ...A report published in 2013 by the UN Office for the Coordination of Humanitarian Affairs (OCHA) states that 'over 42,000 IDPs [internally displaced persons] and refugees have spontaneously returned to their areas of origin between January and October 2013.' [16] The RIR mentioned by the Appellant (SOM 105094.E) does not appear to support the Appellant's argument. The RIR does suggest that "...tensions exist between diaspora and non-diaspora Somalis due to 'perceptions of a sense of superiority among the diaspora, employment advantages, and segregation in society'." Despite the reported possibility of threats by Al Shabab against returnees, there is no evidence that returnees, like the Appellant, are being personally targeted. [17] RPD found that: ...the claimant failed to establish a personal or particularised risk under section 97(1) of the Act. The risk the claimant faces is not different than the generalized risk of violence faced by all citizens in Somalia, including men such as the claimant having majority clan membership and of a majority religious group who fear being extorted and/or recruited by Al Shabab. [18] This finding is not adequately supported and thus, the RAD is unable to find how the RPD arrived at this finding. The RPD's reasons are supposed to provide clear and transparent reasons for arriving at its finding that the risk is generalized. [19] The RPD had a duty to set out its findings of fact and the principal evidence upon which those findings were based. It is an issue of procedural fairness which requires that decision makers provide adequate reasons to justify their decisions. Mr. Justice Pinard in, Zarghami,3 cited the following Via Rail Canada decision to explain the obligation on the Immigration and Refugee Board to provide adequate reasons. [20] In VIA Rail (above) the Federal Court of Appeal, in explaining the obligation to provide adequate reasons, stated at paragraph 22: [22] The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion.... Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based.... The reasons must address the major points in issue. The reasoning process followed by the decision-maker must be set out...and must reflect consideration of the main relevant factors.... [21] The Honourable Mr. Justice Shore in a recent decision, Sidhu,4 to explain the adequacy of reasons stated: [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, 386 FTR 1: [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, [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, [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.] [22] Based on the foregoing, I find that the RPD did not provide adequate reasons for its finding regarding persecution due to religious grounds. [23] Based on the evidence before me, I do not have sufficient credible evidence on which to make a finding whether the RPD's findings are supportable, and whether the Appellant is a Convention refugee or a person in need of protection. [24] Therefore, the RPD is directed to remit the matter to differently constituted panel to reconsider the claim and make a clear credibility finding. It appears from the evidence, that the Appellant's statements regarding his purpose for going to the USA changed and that the US authorities noticed several material omissions. The Appellant's reasons for making a refugee claim in Canada also appears to be significantly different that those provided by the Appellant in the USA. Moreover, the Appellant's fear in Somalia, as declared by him, is from a businessman to whom his parents owe $1500. Since the RAD does not have an explanation for these numerous issues, the RAD is not in a position to make a finding whether the Appellant is a protected person or not. DISPOSITION [25] Pursuant to section 111(1)(c) of the IRPA, the RAD allows the appeal and refers the matter to the RPD for redetermination with direction that the panel consider both Convention grounds and provide adequate reasons. [26] This appeal is allowed. (signed) "Atam Uppal" Atam Uppal October 20, 2015 Date 1 Exhibit RPD-1, RPD's Record, p. 7, para. 13. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Zarghami, Shirin v. M.C.I. (F.C., no. IMM-4258-05), Pinard, February 13, 2006, 2006 FC 151. 4 Sidhu, Prabhjot Kaur v. M.C.I. (F.C., no. IMM-11988-12), Shore, February 26, 2014; 2014 FC 176. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09240