Docket: IMM-3148-15
Citation:
2016 FC 709
Ottawa, Ontario, June 23, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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YACIN DJAMA ALI
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, the Minister of Citizenship and
Immigration (now referred to as the Minister of Immigration, Refugees and
Citizenship) [the Minister] seeks judicial review pursuant to section 72 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a
decision of the Refugee Appeal Division [RAD] dated June 1, 2015, which
reversed the finding of the Refugee Protection Division [RPD] to find that the
respondent, Yacin Djama Ali, is a Convention refugee.
[2]
The issue in dispute focuses on Mr. Ali's identity,
more specifically whether he is a citizen of Somalia or Djibouti, the
determination of which provides the reference country to assess whether he
would face a risk of persecution upon return to his country of citizenship.
[3]
The RPD had found that it is more likely than
not that Mr. Ali successfully applied for and obtained Djiboutian citizenship
based on his father's birth in Djibouti and his claim to have obtained and used
a Djiboutian passport. The RPD found that his explanations about his citizenship
and his passport were not consistent. The RPD concluded that he is a citizen of
Djibouti and that he is not at risk in Djibouti.
[4]
On appeal to the RAD, Mr. Ali submitted an
affidavit from his father. The affidavit states that neither Mr. Ali nor his father
is a citizen of Djibouti. The RAD accepted this as new evidence, attached
significant weight to it, and concluded that the RPD erred in finding that Mr.
Ali is a citizen of Djibouti. The RAD found that he is a citizen of Somalia and
no other country and would face a risk of persecution in Somalia because he is
a member of a minority clan.
[5]
On judicial review, the Minister argues that the
RAD erred in its application of the standard of review, erred in its
application of subsection 110(4) of the Act, regarding new evidence, and erred
by not independently assessing all the evidence and by not deferring to the
RPD's factual and credibility findings.
[6]
For the reasons that follow I find that the
RAD's decision is reasonable. The RAD reasonably accepted the new evidence,
conducted a sufficiently thorough independent assessment of all the evidence,
and found that the RPD had erred. The RAD, therefore, substituted its decision
as contemplated by paragraph 111(1)(b) of the Act. The application is
dismissed.
I.
Background
[7]
The respondent, Mr. Ali, claims to be a citizen
of Somalia but has never lived in Somalia. He was born in the United Arab
Emirates [UAE] but has no right of citizenship in the UAE and cannot return
there due to allegations made against him by his employer. However, Mr. Ali had
a Djiboutian passport which he used extensively. He claimed that he was not
aware that it was not genuine until after he arrived in Canada. He also claimed
that he was not aware that a person could only have a passport of the country
of their citizenship.
[8]
Mr. Ali alleges that he will be targeted by the
terrorist group Al Shabaab in Somalia and that he will not be protected from Al
Shabaab because he is a member of a minority clan, the Tumal.
[9]
Mr. Ali travelled to the United States from the
UAE on March 16, 2014 with a US visa and his Djiboutian passport. He did not
claim asylum in the US. He states that he walked across the Canadian border at
Buffalo undetected and then took a taxi to a relative's home in Toronto on
April 9, 2014. He made a refugee claim on May 1, 2014.
[10]
Mr. Ali used his Djiboutian passport in his US
visa application, upon his arrival in the US, and in four previous United
Kingdom visa applications. Upon arrival in Canada, he was also in possession of
a UAE resident identity card, which indicated that he is a national of
Djibouti.
[11]
With respect to his citizenship and that of his
parents, he claims that his father was born in Djibouti, but is a Somali
citizen. If his father had a claim to Djiboutian citizenship, his father would
have lost it when he obtained Somali citizenship. He also states that his
mother was born in the UAE, but is a Somali citizen.
[12]
The RPD noted the evidence of Mr. Ali's Somali
passport issued in 1978, his mother's Somali passport, his parent's marriage
contract, which notes they are Somali nationals, and Mr. Ali's medical record
from 1991-92 which refers to his nationality as Somali.
[13]
However, the RPD found, based on its analysis of
the documentary evidence relating to Djiboutian law, that both Mr. Ali and his
father could have a claim to Djiboutian citizenship.
[14]
The RPD concluded that it is more likely than
not that Mr. Ali applied for and obtained Djiboutian citizenship in 2004, based
on his father's birth in Djibouti. The RPD noted that Mr. Ali represented
himself as a citizen of Djibouti to national authorities of various countries
who were satisfied that he is a Djiboutian citizen.
[15]
The RPD gave more weight to Mr. Ali's initial
assertion that he believed his Djiboutian passport was genuine than to his
recantation after making a refugee claim. The RPD noted that Mr. Ali's
testimony was inconsistent and unreliable. However, the RPD found that it was
likely true that Mr. Ali believed that he was a citizen of Djibouti until after
his arrival in Canada.
[16]
The RPD addressed the risk Mr. Ali would face in
Djibouti and found that he is not a Convention refugee or a person in need of
protection.
II.
The Decision Under Review
[17]
The RAD reversed the finding of the RPD and
found that Mr. Ali is a citizen of Somalia and would face a risk in Somalia.
[18]
Mr. Ali submitted an affidavit from his father
dated February 26, 2015 as new evidence to the RAD. In the affidavit, his
father states:
- That he is not a
citizen of Djibouti because he does not have a birth certificate and the
Djiboutian authorities have not accepted his documentation.
- That his son, Mr.
Ali, is not a citizen of Djibouti or France.
- That his recent
Somali passport was stolen.
- That he had
purchased a Djiboutian passport for Mr. Ali and provided it to him.
- That he had sent
an earlier letter or affidavit stating the same which was not received by
his son, Mr. Ali.
[19]
The RAD noted the requirements of subsection
110(4) and the factors established in Raza v Canada (Minister of Citizenship
and Immigration), 2007 FCA 385, 289 DLR (4th) 675 [Raza]. The RAD
found that the affidavit was new evidence because it answered questions put to Mr.
Ali during the RPD hearing.
[20]
The RAD stated that it would follow the guidance
of Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC
799, [2014] 4 FCR 811 [Huruglica FC], and would conduct an independent
assessment of the RPD's determination of whether Mr. Ali is a Convention
refugee or a person in need of protection, and would defer to the RPD on issues
of credibility or where the RPD had an advantage in reaching its conclusions.
[21]
The RAD found that Mr. Ali's birth certificate
(which identifies his parents as Somali), his parents' marriage certificate
(which identifies his parents as Somali), and his student medical record for
1991-2004 (which identifies him as Somali), corroborated the statements in his
father's affidavit.
[22]
The RAD found that the RPD failed to give
sufficient weight to the documentary evidence which shows that Mr. Ali's
parents are Somali and that Mr. Ali is a Somali citizen.
[23]
Based on the objective country condition
evidence and the affidavit of Mr. Ali's relative stating that he was a member
of a minority clan and that he would be at risk upon return to Somalia, the RAD
concluded that Mr. Ali is a Convention refugee. The RAD set aside the
determination of the RPD and substituted its decision.
III.
Issues
[24]
This judicial review raises three related
issues:
- Whether the RAD
applied the appropriate standard of review in the appeal of the RPD
decision;
- Whether the RAD
erred in admitting the new evidence; and,
- Whether the RAD
erred in its analysis of the evidence on the record and by not deferring
to the RPD's factual and credibility findings.
IV.
The Standard of Review
[25]
The RAD is tasked with conducting an appeal of
the RPD's decision. The Court conducts a judicial review of the RAD's decision.
[26]
In Canada (Minister of Citizenship and
Immigration) v Huruglica, 2016 FCA 93 at para 103, [2016] FCJ No 313 (QL) [Huruglica
FCA], Justice Gauthier clarified the uncertainty regarding the standard of
review to be applied by the RAD; the RAD should fulfill its appellate role and
apply the standard of correctness when reviewing an RPD decision.
[27]
However, as the parties agree, although the RAD’s
decision preceded the decision in Huruglica FCA, the Court of Appeal
confirmed the requirement for an independent assessment of the evidence that
was established in the Federal Court's decision.
[28]
As discussed below, the level of deference the
RAD may owe to the RPD on credibility and other factual findings will vary
depending on the case and the jurisprudence will evolve.
[29]
The Court reviews the RAD's determinations of
factual issues and issues of mixed fact and law on the reasonableness standard.
This includes determinations regarding the admissibility of new evidence (Canada
(Minister of Citizenship and Immigration) v Singh, 2016 FCA 96 at para 29,
[2016] FCJ No 315 (QL) [Singh FCA].
[30]
The reasonableness standard focuses on "the existence of justification, transparency and
intelligibility within the decision-making process" and considers "whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). The
Court will not re-weigh the evidence or re-make the decision.
V.
Did the RAD apply the appropriate standard of
review in its appeal?
[31]
The Minister acknowledges that the RAD did not
have the benefit of the Federal Court of Appeal's decision in Huruglica FCA
at the time of its appeal, but submits that, regardless of whether the RAD
applied a correctness or other standard, the RAD did not conduct the
independent assessment of the evidence required.
[32]
The RAD stated that it would conduct an
independent assessment in accordance with Huruglica FC and would defer
to the RPD on credibility and factual findings where the RPD had an advantage.
The Minister submits that it did not do so.
[33]
The respondent, Mr. Ali, submits that the RAD
fulfilled its appellate role as contemplated by the Court of Appeal. Based on
the RAD's assessment of the evidence on the record, including the new evidence,
the RAD determined that the RPD was wrong in fact and corrected the error.
The RAD's selection of the
standard of review was reasonable
[34]
Regardless of whether the RAD identified the
correctness standard or another standard, its approach was reasonable; it
conducted an independent assessment of the evidence, which is the same approach
called for in Huruglica FCA.
[35]
Huruglica FCA
does not dictate a single standard of review for issues of credibility or oral
evidence. Justice Gauthier described several scenarios at paras 69-74 to
highlight the situations where the RAD should be cautious in substituting its
decision and, alternatively, where the RAD should consider deference to the
RPD. Justice Gauthier did not set out specific criteria, noting at para 74 that
the RAD should be given the opportunity to develop its own jurisprudence.
[36]
Justice Gauthier stated at para 70, that, with
respect to whether deference is owed to the RPD: "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."
[37]
In the present case, the RAD did not defer to
the RPD's factual and credibility findings. As found below, that approach was
reasonable.
VI.
Did the RPD err in accepting the affidavit as
new evidence?
[38]
The Minister argues that the RAD erred in its
application of subsection 110(4) regarding the admission of new evidence and
its application of the factors set out in Raza, above. The Minister submits
that the affidavit did not meet the statutory criteria nor did it reflect the
guidance in Raza.
[39]
The RPD accepted evidence of Mr. Ali's father's
Somali citizenship and did not find his father to be a citizen of Djibouti. The
Minister submits that the affidavit affirming his citizenship as Somali was,
therefore, not relevant and inconsequential. The RPD found that Mr. Ali could
and probably did obtain Djiboutian citizenship as a result of his father's
birth in Djibouti, not because of his father's citizenship.
[40]
The Minister also submits that the RAD did not
properly consider whether the affidavit was credible, particularly given that Mr.
Ali's father had previously provided a fraudulent passport to Mr. Ali and did
not tell Mr. Ali until after his arrival in Canada.
[41]
Mr. Ali submits that the RPD's central and
determinative finding was that he had a claim to Djiboutian citizenship and
obtained Djiboutian citizenship based on his father's birth in Djibouti. His
father's affidavit attests that neither Mr. Ali nor his father is a citizen of
Djibouti. Mr. Ali submits that the RAD reasonably found that the new evidence
was not available at the time of the RPD decision. The RAD accepted his
explanation that the information had been previously sent but had not been
received. Mr. Ali argues that the Court should defer to the RAD's
interpretation and application of the criteria in subsection 110(4) of the Act (Singh
FCA at para 29).
The RAD did not err in accepting
the new evidence
[42]
Subsection 110(4) of the Act provides:
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110. (4) On
appeal, the person who is the subject of the appeal may 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.
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(4) Dans le cadre
de l’appel, la personne en cause ne peut présenter que des éléments de preuve
survenus depuis le rejet de sa demande ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas
normalement présentés, dans les circonstances, au moment du rejet.
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[Emphasis added.]
[43]
In Singh FCA, Justice de Montigny noted
that the RAD cannot disregard the statutory criteria of subsection 110(4) and
that the Raza factors (credibility, relevance, newness, and materiality)
remain applicable to determinations by the RAD to admit new evidence, with some
adaptation regarding the materiality factor (see paras 47-49 regarding
materiality).
[44]
Justice de Montigny stated at para 49: "Not only are the requirements set out in Raza
self-evident and widely applied by the courts in a range of legal contexts, but
there are very good reasons why Parliament would favour a restrictive approach
to the admissibility of new evidence on appeal."
[45]
Although Justice de Montigny acknowledged that a
restrictive approach to admitting new evidence was intended and justified, he
also noted, at para 64, that the RAD has the flexibility to apply the relevant
criteria depending on the circumstances of each case: "It
goes without saying that the RAD always has the freedom to apply the conditions
of subsection 110(4) with more or less flexibility depending on the
circumstances of the case."
[46]
In the present case, the RAD flexibly applied
the Raza factors in its application of the statutory criteria. The RAD
found that the evidence could not reasonably have been provided previously. It
accepted the explanation provided by Mr. Ali's father that he had previously
sent this information to Mr. Ali and it failed to arrive from Kenya, finding
that there was no reason to disbelieve the affiant. The RAD also found that the
evidence was relevant and material in its assessment of whether Mr. Ali is a
Somali citizen.
[47]
With respect to the Minister's submission that
the affidavit does not contradict any of the RPD's findings because the RPD
accepted Mr. Ali's father's Somali citizenship, the RPD's finding was not that
clear or specific. Rather, the RPD found that Mr. Ali is a citizen of Djibouti
based on his father's birth there and his use of the Djiboutian passport. The
affidavit clearly responds to this, indicating both that Mr. Ali's father is
not Djiboutian and that Mr. Ali is not Djiboutian.
[48]
The role of the Court is not to re-weigh the
evidence or re-determine whether the new evidence should have been accepted,
but to determine whether the RAD's findings are reasonable. The Court would not
necessarily arrive at the same conclusion regarding the new evidence given the
lack of information about the efforts made by Mr. Ali to obtain the first
affidavit, how or when it was originally sent by Mr. Ali's father, why a copy
of the original was not re-sent, and whether Mr. Ali advised the RPD that this
evidence would be provided and was en route. However, it is not the role
of the Court to make this determination.
[49]
The RAD accepted Mr. Ali's explanation about his
inability to provide the evidence earlier and that the evidence in the affidavit
was credible. The RAD concluded that the evidence met the statutory criteria
and was consistent with the guidance provided in Raza. That
determination falls within a range of possible, acceptable outcomes based on
the evidence as assessed by the RAD.
VII.
Did the RAD err in its analysis of the evidence
on the record and by not deferring to the RPD's factual and credibility
findings?
[50]
The Minister submits that the RAD did not
conduct a thorough independent assessment of all the evidence on the record as
required, and either glossed over or ignored the key parts. The RAD did not
defer to the credibility or other findings of the RPD even though the RPD had
heard from Mr. Ali directly and had conducted a detailed assessment of the
evidence on the record.
[51]
The Minister notes several findings of the RPD
that were simply not addressed by the RAD. For example, Mr. Ali's reliance on
his Djiboutian passport to obtain visas, its renewal, and the UAE residence
card and other documents which noted him to be Djiboutian were not addressed.
In addition, Mr. Ali testified that his father's friend in the Djiboutian
government assisted his father to obtain the passport, but this does not
explain why Mr. Ali's passport first issued in the UAE in 2004 was later
renewed in 2009. The RAD also failed to address the RPD's credibility findings
relating to Mr. Ali's account of when he discovered that his Djiboutian passport
was not genuine.
[52]
Mr. Ali responds that the RAD is not required to
defer to all the RPD's factual findings given the RPD's error regarding his
citizenship. The Federal Court of Appeal in Huruglica FCA noted that the
RAD should be given the opportunity to develop its own jurisprudence regarding
the level of deference.
[53]
Mr. Ali submits that the RPD did not enjoy any
advantage over the RAD in the assessment of his citizenship. The RAD was
equally able to assess the foreign documents and the Djiboutian and Somali
laws.
[54]
Mr. Ali adds that once the RAD concluded that
the RPD erred in making the finding that he is a citizen of Djibouti, the RAD
was required to assess his objective risk regardless of any negative
credibility determination (Attakora v Canada (Minister of Employment and
Immigration), [1989] FCJ No 444 (QL), 99 NR 168 (FCA)).
The RAD did not err in its
analysis of the evidence on the record
[55]
The RAD stated, based on Huruglica FC,
that it would defer to the RPD on issues of credibility or where the RPD had an
advantage in reaching its conclusions. That was a reasonable approach.
[56]
Although there is no specific mention in the RAD
decision that the RAD considered whether the RPD had such an advantage and
whether any deference was owed, it is implicit that the RAD found that no
deference was owed to the RPD's factual findings. The RPD did not enjoy any
advantage over the RPD in its analysis of the National Documentation Package,
which described the laws and traditions regarding citizenship in Somalia and
Djibouti. Based on the RAD's assessment, which included the new evidence, it reached
a different conclusion.
[57]
The RAD's analysis of the evidence on the record
appears superficial in comparison with the RPD's analysis. However, once the
RAD accepted the new evidence, which clarified that Mr. Ali was not a citizen
of Djibouti, the evidence before the RAD changed and its assessment of the
record in light of the new evidence also changed.
[58]
As Mr. Ali notes, even if there were credibility
findings, the evidence accepted by the RAD confirmed that Mr. Ali is Somali and
the RAD was required to objectively assess the risk he would face upon return
to Somalia.
[59]
The RAD did what the Act permits and expects; it
found that the RPD had erred and that it could correct the error and substitute
the decision that should have been made pursuant to paragraph 111(1)(b) of the
Act.
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