Docket: IMM-1365-15
Citation:
2016 FC 26
Québec, Québec, January 8, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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MAHAD CALI
CABDI
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Refugee Appeal Division [RAD] of the
Immigration and Refugee Board [IRB] dismissing the applicant’s appeal from the
Refugee Protection Division [RPD] of the IRB decision rejecting the applicant’s
refugee claim after finding he was neither a Convention refugee nor a person in
need of protection pursuant to sections 96 and 97 of the IRPA respectively.
[2]
I am of the view that the RAD’s reasons
triggered the obligation to consider subsection 108(4) of the IRPA and the
RAD’s failure to do so is a reviewable error. For the reasons that follow the
application is allowed:
I.
Background
[3]
The applicant, Mahad Cali Cabdi is a male
citizen of Somalia born in the town of Luuq located in the southwestern Gedo
province in October, 1987. He lived in Beled Hawo, located on the border with
neighbouring Kenya and Ethiopia from 1991 to 2007 when he left Somalia.
[4]
The applicant had five siblings, his older
brother died in Somalia in 2001 as a result of inner clan warfare and his older
sister died in Somalia in a bomb attack on her home by members of the Hawieye
clan. In 2006 four unknown men attacked the applicant, accusing him of being a
non-believer and threatened to kill him if they saw him again. In mid-2007 the
applicant left Somalia, joining another brother in South Africa. That brother
was killed in South Africa a few months later by an anti-Somalian mob. In
September, 2010 the applicant himself was attacked and beaten in South Africa by
an anti-Somalian mob and left for dead. The applicant’s father was murdered in
2010 by the militant group Al-Shabaab in Somalia. The applicant believes his
father’s murder was the result of his Sufi beliefs and the applicant fears that
Al-Shabaab would target him due to his Sufi beliefs.
[5]
The applicant left South Africa in 2012 for Sao
Paulo, Brazil; he then travelled to Mexico and entered the United States.,
where he filed an unsuccessful asylum claim in June 2013. The applicant entered
Canada in April, 2014 and filed his claim for refugee protection.
II.
Consideration of Claim
A.
Refugee Protection Division
[6]
In October, 2014, the RPD rejected the
applicant’s refugee claim finding he was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of the IRPA
respectively.
[7]
The RPD was satisfied that the applicant had
established on a balance of probabilities his identity as a Somali national.
However, the RPD was not satisfied that the applicant had established his
identity as a Sufi Muslim. The RPD further concluded that the applicant had not
provided persuasive evidence that he would be at risk of clan violence if he
were to return to the Gedo province of Somalia and as such found that the
applicant would not face a serious possibility of persecution or that he is a
person in need of protection based on his clan affiliation.
[8]
Finally, the RPD, despite finding that the applicant
has failed to establish his identity as a Sufi Muslim, considered the
documentary evidence relating to the threat of Al-Shabaab especially in the
Gedo province. The RPD found the documentary evidence did not demonstrate: (1) that
Al-Shabaab controls the Gedo province; (2) that Al-Shabab had exercised any control
for some time; or (3) that Al-Shabaab harms or kills Sufis living in Gedo due
to their religious beliefs. The RPD concluded that while Somalia is a country
with many challenges, a state of instability does not in and of itself give
rise to a well-founded fear of persecution.
B.
Refugee Appeal Division (Decision under Review)
[9]
The Applicant appealed the RPD’s decision to the
RAD. In initiating the appeal the applicant sought to place a number of pieces
of new documentary evidence before the RAD pursuant to subsection 110(4) of the
IRPA and requested the RAD hold a hearing pursuant to subsection 110(6) of the
IRPA.
[10]
In February, 2015 the RAD dismissed the appeal,
confirming the RPD’s decision that the applicant is neither a Convention
refugee nor a person in need of protection.
(1)
New Evidence
[11]
In considering the applicant’s proposed new
evidence, the RAD addressed each item and conducted an analysis in light of the
requirements of subsection 110(4) of the IRPA. The RAD ultimately concluded
that the factual circumstances set out in the proposed new evidence did not
arise after the rejection of the claim, the information was reasonably
available, and the applicant could have been reasonably expected to present the
evidence at the time of the RPD hearing, which occurred in two parts.
(2)
Oral Hearing
[12]
The RAD reviewed subsections 110(3), (4) and (6)
of the IRPA, concluding that it only has a discretion to consider holding a
hearing on an appeal where new evidence has been admitted on the appeal. In
light of the RAD’s conclusion that the applicant had failed to satisfy the
requirements for the admission of new evidence, the RAD determined that it must
proceed without a hearing. The request for an oral hearing was denied.
(3)
Consideration of the RPD Decision
[13]
The RAD relied on Justice Michael Phelan’s
decision in Hurgulica v Canada (Minister of Citizenship and Immigration),
2014 FC 799, 30 Imm LR (4th) 115 to set out its role in reviewing the RPD
decision. The RAD noted that it was an appellate body reviewing all aspects of
the RPD’s decision and making an independent assessment of whether the
applicant is a Convention refugee or a person in need of protection. However
the RAD also noted that it was in a position to recognize and respect
conclusions of the RPD on issues such as credibility where the RPD enjoys a
particular advantage.
[14]
The RAD found that the RPD had erred on the
issue of the applicant’s Sufi identity and concluded the applicant did
establish his identity as a Sufi Muslim. The RAD further concluded that the applicant
had established subjective fear as a result of his family being victims of clan
warfare in Somalia and violence perpetrated by Al-Shabaab. However, the RAD
also found that the applicant had failed to establish that his subjective fear
of persecution had an objective basis. The RAD therefore found that the
applicant had not established that he would be persecuted or subjected to a
risk to life, of cruel and unusual treatment or punishment or a danger of
torture upon return to Somalia. The RAD concurred with and confirmed the RPD’s ultimate
conclusion.
III.
Issues
[15]
The application raises the following issues:
1)
Did the RAD err in refusing to admit the
applicant’s proposed new evidence pursuant to subsection 110(4) of the IRPA?
and;
2)
Did the RAD err by failing to address subsection
108(4) of the IRPA in light of its findings of past persecution?
IV.
Standard of Review
[16]
The RAD’s findings of fact and mixed fact and
law including the assessment of the documentary evidence are subject to the
reasonableness standard of review (Ngandu v Canada (Minister of Citizenship
and Immigration), 2015 FC 423 at para 12, 34 Imm LR (4th) 68 [Ngandu]).
The reasonableness standard of review also applies to questions regarding the
admissibility of new evidence before the RAD pursuant to subsection 110(4) of
the IRPA (Ngandu at para 13). Issues 1 and 2 will be reviewed on a
reasonableness standard.
[17]
The parties did not advance a position on the
standard of review to be applied to a review of the RAD’s obligation to
consider subsection 108(4) of the IRPA.
[18]
In Kumarasamy v Canada (Minister of
Citizenship and Immigration), 2012 FC 290 at paras 6, 11, 406 FTR 194 [Kumarasamy],
Justice Roger Hughes held that the Court must review the failure to consider
subsection 108(4) on the correctness standard of review. However, in Soto v
Canada (Minister of Citizenship and Immigration), 2014 FC 622 at para 18,
457 FTR 165, Justice Yves de Montigny held that “Following
the Supreme Court of Canada’s decision in Smith v Alliance Pipeline Ltd,
2011 SCC 7, the trend has been to apply the reasonableness standard, as this is
clearly a question of law within the specialized expertise of the tribunal.”
In addition Justice John O’Keefe, in Nyiramajyambere v Canada (Minister of
Citizenship and Immigration), 2015 FC 678 at para 36 held that the failure
to consider subsection 108(4) is not a question of pure law but rather is one
of fact and mixed fact and law thus attracting the reasonableness standard of
review.
[19]
A decision-maker’s conclusions with respect to
subsection 108(4) may come before the Court on judicial review in two different
circumstances. The first, as is the case here, is the failure of the decision
maker to consider the exemption. The second is the reasonableness of a decision-maker’s
findings where the decision-maker has in fact considered the subsection 108(4)
exemption. This was recognized by Justice Donald Rennie in Subramaniam v
Canada (Minister of Citizenship and Immigration), 2012 FC 843 at para 12,
10 Imm LR (4th) 124 where he states:
[12] The determinative issue in this
application is whether the Board erred by failing to consider section 108(4) of
the IRPA. While there has been some disagreement on the appropriate standard
of review for this question, the Federal Court of Appeal's reasoning in Yamba v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 457 (CA), suggests a
correctness standard. The Board is obligated to consider section 108(4) in
every case in which it finds changed circumstances under section 108(1)(e).
Thus, while any conclusion reached under section 108(4) would be reviewed on a
standard of reasonableness, there is no deference in whether to consider
section 108(4).
[20]
While Subramaniam applies a correctness
standard of review to the question of whether the Board failed to meet its
obligation to consider subsection 108(4), this approach might well be
reconciled with the reasonableness standard adopted in Soto and Nyiramajyambere.
In considering the question of reasonableness the Court must consider the
decision within the range of possible acceptable outcomes which takes it colour
from the context (Canada (Citizenship and Immigration) v Khosa, [2009] 1
SCR 339 at para 59 [Khosa]; Catalyst Paper Corp v North Cowichan
(District), [2012] 1 S.C.R. 5 at paras 16, 18; First Nations Child and
Family Caring Society of Canada v Canada (Attorney General), 2013 FCA 75 at
para 13, 444 NR 120). In some circumstances and for some questions that range
might be so narrow as to include only one reasonable outcome (McLean v
British Columbia (Securities Commission), [2013] 3 S.C.R. 895 at para 38; Stemijon
Investments Ltd v Canada (Attorney General), 2011 FCA 299 at para 24, 341
DLR (4th) 710; Ayyad v Canada (Minister of Citizenship and Immigration),
2014 FC 1101 at paras 35-36). The decision in Yamba v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 457 at paras 4-6, 254 NR 388
(CA) [Yamba], which is considered later in these reasons, suggests
that if a reasonableness standard of review is adopted in reviewing the
question of the RAD’s failure to consider the subsection 108(4) exemption then
the range of acceptable outcomes would be narrowed to one.
[21]
For the purposes of this decision I need not
resolve the question. As was the case in Mwaura v Canada (Minister of
Citizenship and Immigration), 2015 FC 874 at para 12, I am of the opinion
that the RAD’s decision on this question was both unreasonable and incorrect.
V.
Analysis
A.
Proposed New Evidence
[22]
The applicant relies on the decision of Justice
Jocelyn Gagné in Singh v Canada (Minister of Citizenship and Immigration),
2014 FC 1022 at para 55, 31 Imm LR (4th) 127 to argue that the RAD failed to
recognize, that in conducting a full fact based appeal, it must adopt a
sufficiently flexible approach to the admission of new evidence, and that in
this case it erred by failing to do so.
[23]
The respondent argues that the proposed new
evidence, or the information contained therein, was reasonably available to the
applicant and as such the proposed new evidence did not satisfy the
requirements of subsection 110(4) of the IRPA. The respondent distinguishes Singh,
noting that unlike Singh there is no indication that the applicant
mistakenly believed the proposed new evidence had been made available to the RPD.
[24]
I am satisfied that the RAD did not err in
refusing to admit the applicant’s proposed new evidence. The RAD’s decision
indicates that it was well aware of its role, that it assessed each piece of
proposed new evidence, including the applicant’s submissions on the new
evidence, in light of subsection 110(4) and, “within
the context of the totality of the Appellant’s evidence adduced at the RPD.”
The applicant’s explanation for failing to place the proposed new evidence
before the RPD was that he could not have foreseen that the RPD would make negative
findings on: (1) his identity; and (2) the question of objective risk. This is
simply not consistent with the record. I concur with the RAD’s conclusion that
the applicant had the onus to put forward his case to the RPD as to why he
should be accepted as a Convention refugee or a person in need of protection. It
was not open for him to wait to forward requisite and relevant evidence until
after the RPD rendered a negative determination.
B.
Assessment - sections 96 and 97 of the IRPA
[25]
The applicant submits that in determining the
applicant was neither a Convention refugee nor a person in need in protection
the RAD failed to have regard to the evidence before it. He further submits that
the evidence discloses that Al-Shabaab is a violent militant group which
commits abuses against Sufis and that while it lost territorial control over
some cities it still carries out violent attacks against many individuals.
Relying on Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at para 17, 157 FTR 35 (TD) the applicant
submits that the RAD erred by failing to have regard to evidence documenting
the volatile landscape of south and central Somalia and the re-establishment of
Al-Shabaab control over some areas.
[26]
I respectfully disagree. I am satisfied that the
RAD acknowledged and considered evidence contradictory to its findings, but
preferred other evidence including the 2013 British Country of Origin
Information Report [the British Report] and the March 2012 Annual Report of the
United States Commission on International Religious Freedom [the U.S. Report].
The British Report specifically addressed the question of Somalia’s
transitional government’s control in the Gedo region of the country, and the U.S.
Report notes the absence of reports of Al-Shabaab attacks on Sufis during the
reporting period of April 1, 2011 to February 29, 2012. It is not for the Court,
on judicial review, to reweigh the evidence before the RAD (Khosa at
para 61).
C.
Failure to address subsection 108(4) of the IRPA
[27]
Paragraph 108(1)(e) of the IRPA provides that a
claim for refugee protection shall be rejected if the reasons for which the
person sought refugee protection ceased to exist. However, subsection 108(4) provides
that paragraph 108(1)(e) does not apply to persons who establish that there are
compelling reasons arising from previous persecution. The relevant provisions
read as follows:
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108. (1) A claim
for refugee protection shall be rejected, and a person is not a Convention
refugee or a person in need of protection, in any of the following
circumstances:
(e) the reasons for which the person sought refugee protection
have ceased to exist.
(4) Paragraph
(1)(e) does not apply to a person who establishes that there are compelling
reasons arising out of previous persecution, torture, treatment or punishment
for refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
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108. (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants
e) les raisons qui lui ont fait demander l’asile n’existent plus.
1(4) L’alinéa
(1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
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[28]
In this case the parties dispute whether the RAD
had an obligation to conduct an analysis under subsection 108(4). Both rely on Justice
Paul Crampton’s decision in Alharazim v Canada (Minister of Citizenship and
Immigration), 2010 FC 1044, 378 FTR 45 [Alharazim] to advance their
respective positions.
[29]
Alharazim interprets
subsection 108(4) concluding that it is an exceptional provision that ought to
be narrowly circumscribed to capture truly exceptional or extraordinary
situations (Alharazim at para 49). The facts underpinning Alharazim
differ from those here.
[30]
In Alharazim Justice Crampton found that
neither an explicit or implicit finding of past persecution had been made by
the decision-maker. It was on this basis that Alharazim at para 36 was
distinguished from the earlier decision of the Federal Court of Appeal in Yamba,
which had considered what was then subsection 2(3) of the Immigration Act,
which is now subsection 108(4) of the IRPA (Kumarasamy at paras 4, 8).
In Yamba Justice Robertson states at paras 4-6:
[4] In our respectful view, the
Motions Judge was correct in holding that the Refugee Division is under an
obligation to consider the applicability of subsection 2(3) of the Act
once it is satisfied that refugee status cannot be claimed because of a change
in country conditions under paragraph 2(2)(e). This conclusion does not detract
from the fact that subsection 2(3) imposes the evidentiary burden on the
refugee claimant to "establish that they are compelling reasons" for
not returning to the country in which the past persecution arose. In support of
our position we need go no further than the analysis offered by Hugessen J.A.
(as he then was) in M.E.I. v. Obstoj , [1992] 2F.C. 739 (C.A.) at page
747 where he stated:
The solution to the conundrum, as it
seems to me, must lie in the fact the Parliament intended a consideration of
the matters raised in subsection 2(2) (and necessarily of subsection 2(3) as
well) to be included in the consideration of whether or not a person meets the
requirements of paragraph (a) of the definition [of Convention Refugee]. Such
an intention is consistent with the placing of subsections 2(2) and 2(3) in the
definition section of the Act rather than, as logic would otherwise
suggest, in or adjacent to section 69.2 dealing with cessation.
To put the matter another way,
subsections 2(2) and 2(3), while at first blush they appear to deal only with
the loss of a refugee status which has already been acquired, have in fact been
extended by Parliament and incorporated into the definition by means of
paragraph (b), so that their consideration forms part of the determination
process itself.
[5] The above passages confirms the
understanding that as the Refugee Division is under an obligation to consider
the matters set out in subsection 2(2) of the Act and since subsection 2(3)
incorporates by reference paragraph 2(2)(e), the Refugee Division must consider
the applicability of the former provision, whether or not the issue is
expressly raised by the refugee claimant.
[6] In summary, in every case in
which the Refugee Division concludes that a claimant has suffered past
persecution, but this has been a change of country conditions under paragraph
2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider
whether the evidence presented establishes that there are “compelling reasons”
as contemplated by that subsection [emphasis added]. This obligation arises
whether or not the claimant expressly invokes subsection 2(3). That being said
the evidentiary burden remains on the claimant to adduce the evidence necessary
to establish that he or she is entitled to the benefit of that subsection.
[31]
Yamba is clear,
where (1) a claimant has suffered past persecution, and (2) the reasons for
which the claimant was seeking refugee protection have ceased to exist, the
decision maker has an obligation to then consider the subsection 108(4)
exception. The question then is whether or not the two conditions precedent has
been satisfied in this case.
[32]
The RAD acknowledges at para 56 of its decision
that “members of the Appellant’s family had been victims
of violence perpetrated by Al-Shabaab and due to clan warfare in Somalia in the
past. Therefore, the RAD accepts the Appellant’s subjective fear upon return to
Somalia.” In addition, the RAD does not reject the applicant’s claim
that he was accused of being a non-believer, was severely beaten and threatened
with death while in Somalia.
[33]
There is some suggestion in the jurisprudence that
a clear statement conferring the prior existence of refugee status on the
claimant is required to trigger the compelling reasons exception in subsection
108(4) (for example JNJ v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 1088 para 41, 194 ACWS (3d) 1225). There is no clear
statement in this case. However, there is also jurisprudence establishing that
the finding can occur through implication arising from the reasoning set out in
the decision (Decka v. Canada (Minister of Citizenship and Immigration),
2005 FC 822 paras 11–15, 140 ACWS (3d) 354; Alharazim at para 36;
Kumarasamy at para 10). To require a clear statement where the finding
of past persecution, albeit implicit, is a necessary implication arising from
the reasoning of the decision, would, in my view, be to elevate form over
substance. I am of the opinion that the RAD made an implicit finding of past
persecution satisfying the first of the two preconditions.
[34]
With respect to the second of the preconditions,
the RAD notes, relying on the U.S. Report and the British Report, that the
threat Al-Shabaab poses to Sufi followers and the control exercised by Al-Shabaab
in the Gedo region has been undermined. The RAD relies on this evidence to
conclude at para 57 of its decision that “the Appellant
has not established an objective basis for his personal fear of persecution or
serious harm due to his identity as a member of the Marehan / Ali Dhere / Reer
Quule clan and/or his religious identity as a Sufi-Sunni Muslim upon return
to Somalia today [emphasis added].”
[35]
I am of the view that the RAD decision reflects
that the applicant has (1) suffered past persecution, and (2) that the reasons
for which the applicant was seeking refugee protection have ceased to exist. In
the circumstances I am of the opinion that the RAD’s failure to consider the
subsection 108(4) compelling reasons exception is a reviewable error.
[36]
The parties have not identified a question for
certification.
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