Docket: IMM-412-15
Citation:
2015 FC 1231
Fredericton, New-Brunswick, November 3, 2015
PRESENT: The
Honourable Mr. Justice Bell
|
BETWEEN:
|
|
KASSIM MOHAMED
ALI
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction and Overview
[1]
Kassim Mohamed Ali seeks judicial review of a
decision of the Refugee Appeal Division [RAD] in which it (RAD) dismissed an
appeal from the Refugee Protection Division’s [RPD] determination that Mr. Ali
is neither a Convention refugee as contemplated by s 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], nor is he a person in
need of protection as contemplated by s 97(1) of the Act.
[2]
For the reasons set out herein, I would dismiss
the application for judicial review.
II.
Relevant Facts
[3]
Mr. Ali is a citizen of Somalia, born on January
1, 1985. In March 2013, he travelled to Ethiopia and arrived in Canada in
September 2013. Mr. Ali is Muslim by faith (Islam Sunni) and a member of the
Shanshee sub-clan of the Reer Hamar. Before the RPD, Mr. Ali testified that in
Somalia, he and his family owned and operated a farm where they raised
livestock, including cows and sheep, and owned and operated a shop where they
sold food, teas, cigarettes and candy.
[4]
Mr. Ali claims that by reason of his hidden
relationship with an unmarried woman who became pregnant, he fears revenge from
her family and persecution from Al-Shabaab, as his actions are considered to be
‘against Islam’. The record does not disclose
when the relationship occurred, the age of the parties at the time of the
relationship, or their age at the approximate date of conception. I understand
the pregnancy was terminated prior to the birth of the child. Mr. Ali further claims
that, as a member of a minority clan, he does not have protection from
persecution should he return to Somalia.
III.
Impugned Decision
[5]
The RPD accepted that Mr. Ali is a national of
Somalia. However, it concluded that he failed to provide persuasive evidence
supporting an objective fear of persecution or corroborating his subjective
fear that Al-Shabaab or his ex-girlfriend’s family are seeking him out, and
intending to inflict harm upon him. The RPD further found that Mr. Ali failed
to prove that he or his family experienced threats or acts of violence, as
members of the Reer Hamar clan. The RPD concluded that Mr. Ali did not present
persuasive objective evidence supporting his fear of returning to Somalia.
[6]
Mr. Ali appealed this finding to the RAD. He
raised three issues: first, that the RPD did not apply the proper legal test
for a s 96 determination; second, that as a displaced person who is also a
member of a minority clan, he has no protection and could be robbed, killed, or
forced to fight for an Islamic group; and finally, that his relationship with
an unmarried woman, which resulted in a pregnancy, could lead to revenge
killing by her family or revenge for his anti-Islamic conduct by Al Shabaab.
[7]
With respect to the first issue, the RAD concluded
the RPD improperly applied s 96 of the Act when it (the RPD) stated that Mr.
Ali did not “provide persuasive evidence that, should
he return to Somalia, he would face problems as a member of the Reer
Hamar” [My emphasis.]. The
test clearly is not whether Mr. Ali would ‘face
problems’. The RAD articulated the proper legal test as being whether
there is a ‘serious possibility’ of persecution
due to Mr. Ali’s membership in a minority clan should he return to Somalia. The
RAD then considered the jurisprudence of this Court, documentary evidence such
as the United Nations High Commission on Refugees Handbook [UNHCR Handbook], and
Mr. Ali’s testimony before the RPD, to conclude he (Mr. Ali) did not face a
serious possibility of persecution, based upon clan membership.
[8]
With respect to the second issue, the RAD found
that Mr. Ali's statements regarding fear of persecution due to his membership
in a minority clan and as a displaced person were speculative and that the
documentary evidence contradicts his assertions. It found that Mr. Ali did not
present objective evidence to support his statement that Al-Shabaab targets
individuals with a profile similar to his.
[9]
Finally, the RAD found that Mr. Ali did not show
he is more likely than not to face a risk of harm from his ex-girlfriend’s
family as contemplated by s 97(1). The RAD reached a similar conclusion with
respect to a risk of harm from Al Shabaab or others in the Islamic community.
IV.
Issues
[10]
Mr. Ali contends the RAD: (i) failed to apply
the proper standard of review to the RPD’s findings; (ii) erred by conflating
its s 96 and s 97(1) analysis; (iii) failed to refer the matter to a
differently constituted panel of the RPD for redetermination upon concluding
the RPD erred in its interpretation of s 96; and (iv) rendered an unreasonable
decision given a fulsome assessment of the evidentiary record.
V.
Standard of Review
[11]
The RAD’s interpretation of the legal standard
encompassed by each of sections 96 and 97 of the Act relate to questions of law
of general application and is to be assessed on the correctness standard (see Vozkova
v Canada (Minister of Citizenship and Immigration), 2011 FC 1376, [2011]
FCJ No 1682 at para 20; Pushpanathan v Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982, [1998] SCJ No 46).
[12]
The RAD’s decisions to deny Mr. Ali’s claim to
refugee status (s 96) or status as a person in need of protection (s 97)
constitute questions of mixed fact and law, and are to be assessed on the
reasonableness standard of review (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]). This Court will only intervene if it
concludes the RAD’s decision falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, above at para 47).
VI.
Relevant Provisions
[13]
Attached hereto as Appendix ‘A’ is the definition of Convention refugee and person
in need of protection, found in ss 96 and 97 of the Act, as well as s 111
of the Act.
VII.
Analysis
A.
Standard of review applied by the RAD
[14]
The case law is somewhat divided on the scope of
review that should be applied by the RAD with respect to the RPD’s findings (Taqadees
v Canada (Minister of Citizenship and Immigration), 2015 FC 909, [2015] FCJ
No 911 at para 11). However, the current trend in the jurisprudence holds that
the RAD must independently assess the matter before it and substitute its own
determination where it differs from the RPD’s view (see Huruglica v Canada (Minister
of Citizenship and Immigration), 2014 FC 799, [2014] FCJ No 845 [Huruglica];
Alyafi v Canada (Minister of Citizenship and Immigration), 2014 FC 952,
[2014] FCJ No 989; and Bahta v Canada (Minister of Citizenship and
Immigration), 2014 FC 1245, [2014] FCJ No 1278). However, where there are
questions of credibility, factual findings or other matters on which the RPD
has a particular advantage (see Huruglica, above at paras 54-55; Palden
v Canada (Minister of Citizenship and Immigration), 2015 FC 787, [2015] FCJ
No 816; and Yetna v Canada (Minister of Citizenship and Immigration),
2014 FC 858, [2014] FCJ No 906) deference may be accorded to the RPD. The RAD followed
the approach adopted in Huruglica, in which the RAD conducts a hybrid
form of appeal which requires it to make its own determination based on an
independent assessment of the evidence, but which allows it to afford deference
to the RPD on certain issues.
[15]
Mr. Ali submits the RAD failed to take a ‘fresh look’ and failed to conduct its own analysis of
the evidence. With respect, I disagree. Although the RAD briefly referred to
the RPD’s findings relating to Mr. Ali’s testimony, it also assessed the appeal
based upon documentary evidence such as the UNHCR Handbook and country
conditions. In my view, the RAD conducted its own analysis of the material
before it, all the while showing deference to the RPD’s factual and credibility
findings, where appropriate.
B.
Application of ss 96 and 97of the Act
[16]
Mr. Ali contends the RAD, after concluding the
RPD erred in its formulation of the legal test under s 96 of the Act, made the
same error (incorrect formulation of the legal test) in paragraph 29 of its own
reasons. In paragraph 29 the RAD states: “I do not have
sufficient credible evidence that he was targeted or will be targeted by
Al Shabaab or his ex-girlfriend’s family upon return to Somalia” [My
emphasis.]. Mr. Ali contends the use of the word ‘will’
demonstrates the RAD erred by failing to employ the phrase ‘serious possibility’ in assessing his (Mr. Ali’s) fear
of persecution under s 96. The Respondent counters by asserting the impugned
sentence was employed only to assess the evidence and was not intended to be a
statement of the standard of proof applied by the RAD. The Respondent contends
that a full reading of the decision demonstrates the RAD knew and applied the
correct legal test. Notably, the Respondent refers to the fact that the RAD observed,
at the beginning of its reasons, that the RPD failed to apply the correct test.
Other portions of the RAD decision support the Respondent’s position. At
paragraph 12 of its reasons the RAD states there is no ‘serious possibility’ of persecution should Mr. Ali
return to Somalia. Further, in paragraph 21 the RAD states that Mr. Ali did not
present sufficient credible evidence to establish a ‘serious
possibility’ of persecution due to his membership in the minority clan. The
RAD also refers to the test of ‘serious possibility’
of persecution at paragraph 23 of its reasons. Upon reading the RAD’s decision as
a whole, I am of the view it was aware of, and properly applied, the legal test
set out in s 96 of the Act (see Alahaiyah v Canada (Minister of
Citizenship and Immigration), 2015 FC 726, [2015] FCJ No 723 at paras 47-50).
[17]
With respect to Mr. Ali’s relationship with an
unmarried woman and the possible revenge killing by her family, the RAD
considered the risk under s 97. Unlike s 96, s 97(1) does not require a nexus
to a Convention ground but does require a claimant to establish an objective
fear of persecution. Mr. Ali contends there is no practical difference between
the burden of proof under s 96 and the burden under s 97. However, I am persuaded
by the series of cases holding that the standard of proof under s 96 is
somewhat less than that of a balance of probabilities while that required of s
97 is the civil standard. See Li v Canada (Minister of Citizenship and
Immigration), 2005 FCA 1, [2005] FCJ No 1 at para 14 wherein this Court
concluded the proper standard of proof for a s 97(1) determination is ‘on a balance of probabilities’ and Canada
(Minister of Citizenship and Immigration) v A011, 2013 FC 580, [2013] FCJ
No 685 at para 30 where this Court concluded that the burden of proof of
personal risk under s 97(1) requires a higher standard than the test of ‘a serious possibility’ under s 96 see also Santanilla
Bonilla v Canada (Minister of Citizenship and Immigration), 2013 FC 656,
[2013] FCJ No 724 at para 43 and Chan v Canada (Minister of Employment and
Immigration), [1995] 3 S.C.R. 593, [1995] SCJ No 78 at para 120). I am
satisfied the RAD was correct in applying a ‘balance of
probabilities’ standard of proof to its s 97 analysis.
[18]
Finally, Mr. Ali contends the RAD should have
conducted a separate analysis under s 97. While such an approach is preferable,
and clearly was not undertaken in this case, I disagree with Mr. Ali that the
failure to have done so constitutes ‘reviewable error’. I would first note that
in my view the concept of ‘reviewable error’ is
now subsumed in the test of reasonableness. Let me explain. The pre-Dunsmuir
approach taken by this Court was to determine whether the decision-maker’s
failure to conduct a separate analysis under s 97 amounts to an irrelevant error
or one that is “reviewable”. This determination was to be made based upon the
facts of each case (Bouaouni v Canada (Minister of Citizenship and
Immigration), 2003 FC 1211, [2003] FCJ No 1540; Kandiah v Canada (Minister
of Citizenship and Immigration), 2005 FC 181, [2005] FCJ No 275).
[19]
In my view, the advent of Dunsmuir calls
for a new approach. No longer is the Court to consider whether one particular
error is “irrelevant” or “reviewable” but rather; whether based upon the
deference doctrine, the decision as a whole meets the test of reasonableness. Accordingly,
the RAD’s analysis under s 97 will stand if the decision-making process is
justified, transparent and intelligible, and if it falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above at
para 47). Whether a decision-maker decides to deal separately with a claim
under s 97 is to be afforded deference, given his or her specialized expertise and
the particular nature of the issues (Velez v Canada (Minister of Citizenship
and Immigration), 2010 FC 923, [2010] FCJ No 1138 at paras 23, 48 [Velez]).
Furthermore, the reasonableness of the analysis under s 97 must be assessed in
light of the circumstances of each case (El Achkar v Canada (Minister of
Citizenship and Immigration), 2013 FC 472, [2013] FCJ No 500 at para 29 [El
Achkar]), within the context of the decision as a whole (see Agraira v
Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36,
[2013] 2 S.C.R. 559 at para 53, citing Construction Labour Relations v Driver
Iron Inc, 2012 SCC 65, [2012] 3 S.C.R. 405; Newfoundland and Labrador
Nurses’ Union v Newfoundland & Labrador (Treasury Board), 2011 SCC 62,
[2011] SCR 708 at para 14 [Newfoundland Nurses’]).
[20]
Two of the grounds advanced by Mr. Ali, those
concerning persecution based upon minority clan membership and religion, fall
clearly within s 96 of the Act. Since the standard of proof, that of a balance
of probabilities, under s 97 is higher than it is under s 96, it was
unnecessary for the RAD to undertake a fulsome analysis under the higher
standard. The RAD demonstrated it understood its role under s 97 (Rajadurai
v Canada (Minister of Citizenship and Immigration), 2013 FC 532, [2013] FCJ
No 566 at para 46) with respect to the fear of revenge from family members. I
find the RAD's analysis under s 97 to be justifiable, transparent and
intelligible. The failure to conduct a separate analysis under s 97 for the Convention
refugee grounds advanced by Mr. Ali is reasonable in the circumstances (see El
Achkar and Velez, above).
C.
Additional Challenges to the Reasonableness of
the RAD’s decision
[21]
In addition to the above challenges to the
reasonableness of the RAD decision Mr. Ali brings a potpourri of issues,
including assertions that (i) once the RAD decided the RPD had applied the
wrong legal test it (RAD) should have remitted the matter to another member of
the RPD for redetermination; (ii) the RAD erred in failing to conclude that
documentary evidence of marginalization of Reer Hamar constitutes persecution;
(iii) the RAD improperly assessed Mr. Ali’s assertion that Ethiopia does not
accept Somalian refugees by noting that Somalian refugees are in Ethiopia; and
(iv) in the face of conflicting country condition information the RAD was
selective in its assessment of the evidence to which it assigned weight and
failed to consider other relevant evidence.
[22]
My analysis of these challenges to the
reasonableness of the decision is brief. Section 111 of the Act states that the
RAD may refer a matter back to the RPD if
it cannot render a decision without hearing the evidence. The error
identified by the RAD was clearly a question of law; namely, the standard of
proof required by s 96 of the Act. The RAD did not err by assessing the
evidence (taking a fresh look) and making its own determination based upon the
correct standard. In my view, it was unnecessary to hold a new hearing in order
to re-evaluate the evidence that was before the RAD (see Spasoja v Canada
(Minister of Citizenship and Immigration), 2014 FC 913, [2014] FCJ No 920
at para 18).
[23]
When Mr. Ali was in Ethiopia, he did not claim
refugee protection. He explained in his Basis of Claim Form [BOC Form] that the
Ethiopian government did not accept Somalis as refugees and did not offer them
protection. The RAD noted that this assertion is contradicted by documentary
evidence which demonstrates that the majority of refugees in Ethiopia are
Somalis. Whether Somalis may claim refugee status in Ethiopia is not
determinative of the reasonableness of the decision. The RAD simply made an
observation based upon the evidence before it that Somalian refugees are found,
in large numbers, in Ethiopia. That evidence appears to contradict statements
made by Mr. Ali. The RAD cannot be faulted for having referred to this
contradiction.
[24]
Finally, with respect to grounds (ii) and (iv)
set out in paragraph 21 above, documentary evidence corroborates the fact that
the Reer Hamar may have been subjected to some degree of exploitation or
marginalization. However, the RAD found that discrimination alone does not
amount to persecution. The RAD assessed country conditions and attempted to ‘balance’ conflicting evidence against the backdrop
that Mr. Ali and his family owned and operated a farm and a shop and appeared
to live in relative peace before he left Somalia. The ‘balancing’ of the evidence is integral to the RAD’s
role and demonstrates one of the many reasons for the deference doctrine. The
perceived inadequacy of reasons is not a stand-alone ground of unreasonableness
(Newfoundland Nurses’, above at para 14). Furthermore, the decision must
be read within the context of the whole of the evidence (Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association,
2011 SCC 61, [2011] 3 S.C.R. 654). Mr. Ali’s assertion that some evidence was
ignored or accorded improper weight must be considered within the context of
the whole of the evidence and the decision. It is not the Court’s role to seek
a treasure trove of error within the decision or the decision-making process (Newfoundland
Nurses’, above at para 16). The ultimate test remains one of
reasonableness.
VIII.
Conclusion
[25]
I am of the view the RAD correctly interpreted
the standard of proof required by sections 96 and 97 of the Act. I am further
satisfied that it reasonably applied the law to the facts. In sum, I find the
decision to be justifiable, transparent and intelligible. Furthermore, it falls
within the range of possible and
acceptable outcomes which are defensible in respect of the facts and law.
I would therefore dismiss the application for judicial review.
[26]
The application for judicial review is dismissed
without costs.
[27]
Neither party proposed a question for
certification and none is certified.
Email this Content