Docket: IMM-3196-15
Citation: 2016 FC 763
St. John’s, Newfoundland and Labrador, July 11, 2016
PRESENT: The Honourable Madam Justice
Heneghan
BETWEEN:
ABDULKARIM AHMED
(a.k.a.: ABDULKARIM MOHAMED AHMED)
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1]
Mr. Abdulkarim Ahmed (the “Applicant”) seeks
judicial review of the decision dated June 10, 2015 of the Immigration and
Refugee Board, Refugee Appeal Division (the “RAD”) confirming the
decision of the Immigration and Refugee Board, Refugee Protection Division (the
“RPD”), refusing his refugee claim.
[2]
The Applicant claims to be a citizen of Somalia
and a member of the Reer Aw Hassan clan. He sought protection, pursuant
to section 96 and subsection 97(1) of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (the “Act”), on the basis that he would be harmed by
members of Al Shabaab, Ethiopian troops and other armed groups in Somalia.
[3]
The RPD rejected the claim in a decision dated
February 27, 2015 because it found that the Applicant was not credible and
would likely not be sought by Al Shabaab. The RPD concluded that his
identity as a citizen of Somalia was established but his membership in the Reer
Aw Hassan clan was not.
[4]
In presenting his appeal to the RAD, the
Applicant submitted new evidence and requested an oral hearing, pursuant to
subsections 110(4) and 110(6) of the Act, respectively. The new evidence the
Applicant sought to introduce consisted of excerpts from the Country of Origin
Report on Somalia, the South Africa refugee document for the Applicant’s brother
and his marriage certificate.
[5]
The RAD found that the documents constituted new
evidence within the meaning of subsection 110(4) of the Act. However, it
concluded that the new evidence was not central to the RPD’s decision and did
not justify allowing the claim. Accordingly, it did not hold an oral hearing.
[6]
The RAD found that, contrary to the RPD’s
decision, the Applicant had not established his identity as a citizen of
Somalia. It also found him to be not credible.
[7]
The Applicant argues that the RAD erred by
engaging in an unreasonable, microscopic assessment of the evidence, relying on
the decision in Attakora v. Canada (Minister of Employment and
Immigration) (1989), 99 N.R. 168 (F.C.A.).
[8]
The Applicant also submits that the RAD breached
procedural fairness by not giving him notice that the issue of national
identity would be raised. He says his national identity was accepted by the RPD
and accordingly, he did not argue the issue before the RAD. He relies upon the
decision in Ojarikre v. Canada (Citizenship and Immigration), 2015 FC
896 in this regard.
[9]
Finally, the Applicant argues that the RAD erred
by failing to hold an oral hearing since credibility and identity were the determinative
issues before it.
[10]
Subsequent to the hearing of this application
for judicial review on February 4, 2016, the Federal Court of Appeal delivered
its decision in Minister of Citizenship and Immigration v. Singh, 2016
FCA 96. Pursuant to a Direction issued on April 1, 2016, the parties were given
the opportunity to comment on the application of that decision to this matter.
The Applicant did not avail himself of this opportunity.
[11]
The Minister of Citizenship and Immigration (the
“Respondent”) argues no breach of procedural fairness occurred because the RAD is
not required to hold an oral hearing even where the criteria in
subsection 110(6) of the Act are met, and the Applicant was on notice that his
identity was at issue. He also submits that the RAD’s identity and credibility
findings are reasonable.
[12]
The Respondent, in response to the April 1, 2016
Direction, argued the decision in Singh, supra is not relevant to
this proceeding.
[13]
The first issue to be addressed is the applicable
standard of review.
[14]
The RAD’s identity and credibility
findings should be reviewed on the standard of reasonableness; see the decisions
in Gebremichael v. Canada (Citizenship and Immigration), 2016 FC 646 at
paragraph 8 and Ghauri v. Canada (Citizenship and Immigration), 2016 FC
548 at paragraph 22. The issue of procedural fairness is reviewable on
the standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43.
[15]
Section 110(6) of the Act describes when the RAD
may hold a hearing:
|
(6) The Refugee Appeal Division may hold a hearing if, in its
opinion, there is documentary evidence referred to in subsection (3)
|
(6) La section
peut tenir une audience si elle estime qu’il existe des éléments de preuve
documentaire visés au paragraphe (3) qui, à la fois :
|
|
(a) that raises a serious issue with respect to the credibility of
the person who is the subject of the appeal;
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a) soulèvent une
question importante en ce qui concerne la crédibilité de la personne en
cause;
|
|
(b) that is central to the decision with respect to the refugee
protection claim; and
|
b) sont
essentiels pour la prise de la décision relative à la demande d’asile;
|
|
(c) that, if
accepted, would justify allowing or rejecting the refugee protection claim.
|
c) à supposer
qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou
refusée, selon le cas.
|
[16]
Receipt of new evidence by the RAD does not inevitably
mean that an oral hearing will be held. In my opinion, subsection 110(6) gives
the RAD discretion whether to conduct an oral hearing when it accepts new
evidence. Since it has discretion, the RAD is not obliged to conduct an oral
hearing, if the criteria in subsection 110(6) are made out.
[17]
In my opinion, the RAD did not err by failing to
hold an oral hearing. However, it committed a reviewable error by failing to
put the Applicant on notice that it was concerned with the RPD’s finding that
he is a Somali citizen.
[18]
Identity is always an issue in a claim
for refugee protection; see the decision in Yang v. Canada (Citizenship and
Immigration), 2009 FC 681.
[19]
At paragraph 7 the RPD said: “[t]he panel determines that the claimant is, on a balance of
probabilities, a citizen of Somalia.”
[20]
In my opinion, it was a breach of the duty of
procedural fairness for the RAD to take issue with this finding without giving
notice to the Applicant and this error justifies judicial intervention.
[21]
The Applicant, in his Memorandum of Arguments, seeks
costs in this proceeding.
[22]
According to section 22 of the Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, costs may
be awarded in immigration judicial review proceedings where there are “special reasons” for doing so.
[23]
Special reasons include unfair or improper
conduct of the part of the Respondent or conduct which causes a delay in the applicant’s
application being determined in a timely manner; see the decision in Paul v.
Canada (Minister of Citizenship and Immigration) (2010), 92 Imm. L. R. (3d)
271.
[24]
I am not persuaded that the Applicant has
demonstrated any special reasons for an award of costs and no costs will
be awarded.
[25]
In the result, this application for judicial
review is allowed and the matter is remitted to a differently constituted panel
of the RAD for redetermination. There is no question for certification proposed.
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