TB9-12400

RAD File / Dossier de la SAR : TB9-12400 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.aXXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel Joel Bousfield Tribunal Counsel for the person who is the subject of the appeal Jonathan Richard J. Lage Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision in the appeal of XXXX XXXX XXXX XXXX XXXX. He appeals the Refugee Protection Division (RPD) decision dated April 4, 2019, rejecting his claim for refugee protection. He is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that he is a Convention refugee or a person in need of protection. In the alternative, he requests that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. He has requested to submit new evidence, but not an oral hearing. DETERMINATION [2] The appeal is allowed. The RAD finds the RPD's decision is wrong and therefore sets it aside. However, as the RAD finds that it cannot confirm the RPD's decision or substitute its own decision about the claim under subsections 111(1)(a) or (b) of the Immigration and Refugee Protection Act (IRPA)1 without hearing evidence that was presented to the RPD, it refers the claim back to the RPD under subsection 111(1)(c) of the IRPA for re-determination by a differently constituted panel. BACKGROUND Basis of Claim [3] The appellant was born in Jeddah, Saudi Arabia. He has never been to Yemen. His family and tribe are located in the province of Hadhramaut in southeastern Yemen. He fears for his life in Yemen at the hands of the government, Houthi rebels, the Saudi-led coalition and/or extremists. The rest of the central allegations in the case are set out in paragraph [2] of the RPD decision. RPD Decision [4] The RPD rejected the claim because it found the appellant's fear of the government and of forced recruitment not credible, and therefore that the appellant does not have a well-founded fear of persecution and does not face a probable risk to his life or a danger of torture or a risk of cruel and unusual treatment or punishment in Aden in southwestern Yemen. The RPD found that the appellant could live safely in Yemen in southwestern Aden and therefore rejected the claim. REQUEST FOR ADMISSION OF NEW EVIDENCE DECLINED [5] The appellant requested that the RAD admit several items of new evidence.2 As the RAD has allowed the appeal based on the evidence that was before the RPD, the RAD declines to address the admissibility of this evidence because the requests are moot. The new items are therefore not admitted and were not considered in deciding the appeal. ANALYSIS Determinative Issue [6] The determinative issue in this appeal is whether the RPD made objective basis and internal flight alternative (IFA) assessment errors. For the following reasons, the RAD finds that it did. [7] In rendering this decision, the RAD has done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. Aden [8] The RPD found the appellant's fear of the government and of forced recruitment not credible, and therefore, that he does not have a well-founded fear of persecution and does not face a probable risk to his life or a danger of torture or a risk of cruel and unusual treatment or punishment in Aden in southwestern Yemen. The RPD therefore found that the appellant could live safely in Yemen in southwestern Aden and rejected the claim. [9] The RPD characterized this finding as an objective basis rather than an IFA finding because the appellant has never been in Yemen, and therefore the concept of IFA does not apply to his claim. The RPD decided that it only needed to assess the objective basis of his fear in Aden and that it did not also need to assess whether it was reasonable to expect the appellant to go to Aden under the second prong of the IFA test. The RPD therefore did not assess reasonableness factors in regards to the appellant going to live in Aden. [10] The appellant argues that the finding was an IFA determination and that the RPD was wrong to make it for a number of reasons, including that the RPD should have assessed reasonableness factors weighing them against the appellant being able to live in Aden. [11] The RAD agrees that the RPD made a critical error here. The Aden finding was an IFA finding. As such, the RPD was wrong in relieving itself of the burden of assessing reasonableness factors simply because the appellant has never been in Yemen. The evidence is clear that the appellant nevertheless does a have a real and substantial connection to the province of Hadhramaut in southeastern Yemen, which is in another part of the country a fair distance away from Aden, through his extended family and his tribe. Moreover, if the appellant had left Hadhramaut and gone to Jeddah, Saudi Arabia as an infant, the RPD very clearly would still have had to characterize the finding as an IFA finding, and therefore would have had to assess reasonableness factors in regards to the appellant seeking refuge in Aden. Furthermore, the appellant is a citizen of Yemen and should not be denied the benefit of an assessment under the second prong of the IFA test simply because of the technicality of his birth outside of Yemen. Finally, it is clear from the RPD's reasons that it was focussing on safety in one part of the country - Aden, and not in the whole country, a telltale indication of a narrow IFA determination rather than an overall, country-wide, well-foundedness determination. Second prong reasonableness factors therefore should have been assessed. [12] The RAD has listened to an audiotape of the hearing. The RPD did not probe second prong reasonableness factors in questioning the appellant about Aden. The RAD therefore finds that it cannot determine whether Aden is a reasonable IFA for the appellant in an independent analysis. [13] However, the RAD also finds that it agrees with the RPD and disagrees with the appellant about the credibility of the appellant's alleged fear of the government and of forced recruitment in Aden. The RAD therefore finds that it cannot substitute a positive decision about his claim based on the evidence before it either. CONCLUSION [14] The RAD is allowing the appeal and setting aside the RPD's decision. As the RAD has found that it cannot confirm the RPD's decision or substitute its own decision as to whether or not the appellant is a Convention refugee or a person in need of protection, the RAD therefore refers the claim back to the RPD under subsection 111(1)(c) of the IRPA for re-determination by a differently constituted panel. (signed) JOEL BOUSFIELD Joel Bousfield July 27, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant Record, at pp. 27-59; Exhibit P-3, Rule 29 Application, Dated March 19, 2020; and Exhibit P-4, Rule 29 Application, Dated April 29, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12400 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français