Docket: IMM-5580-14
Citation:
2015 FC 906
Ottawa, Ontario, July 24, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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LIBAN MAHAD
ABDI
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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
I.
Introduction
[1]
The Applicant claims that he is a Sufi Muslim
from a minority clan in Somalia and that he would be murdered by a terrorist
organization called Al-Shabaab if he stayed in Somalia. He allegedly fled to Kenya on August 15, 2013, and found his way to Canada on November 10, 2013. The Applicant asked for
refugee protection shortly after he arrived in Canada.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board [IRB] rejected the Applicant’s claim because he
had not supplied enough evidence to prove he was from Somalia. Since there was
no functioning administration in that country which could produce official
identity cards, the Applicant had produced an identity witness, Mr. Farah, who
claimed that he used to sell livestock to the Applicant’s father in Somalia,
but the RPD did not find Mr. Farah credible. His testimony was inconsistent
with that of the Applicant on many details, including where Mr. Farah lived,
what kind of animals he sold, and how many animals the Applicant’s father would
typically purchase. In addition, the RPD found that a letter from the Somali
Immigrant Aid Organization, which purported to confirm the Applicant’s
identity, had a significant omission; the letter never mentioned that this
organization allegedly found Mr. Farah for the Applicant. The RPD therefore
rejected the Applicant’s claim.
[3]
The Applicant appealed the decision of the RPD to
the Refugee Appeal Division [RAD] of the IRB, but his appeal was dismissed on
June 25, 2014. The RAD confirmed that the Applicant was not entitled to
protection under either section 96 or subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act]. The Applicant now
seeks judicial review pursuant to subsection 72(1) of the Act, asking
the Court to set aside the RAD’s decision and order a different panel of the
RAD to re-determine his appeal.
II.
Issues
[4]
The parties submit four issues for the Court’s
consideration:
1.
Did the RAD err in its assessment of new
evidence?
2.
Did the RAD err in its determination respecting
the appropriate standard of intervention?
3.
Did the RAD err in assessing the credibility
findings made by the RPD?
4.
Did the RAD err by misinterpreting its
jurisdiction to hold an oral hearing?
III.
The RAD’s Decision
[5]
In its decision, the RAD first considered what
the test for admitting new evidence should be under subsection 110(4) of the Act.
Although that provision is similar to paragraph 113(a) of the Act, the
RAD decided that, since the purpose of a RAD appeal was different from a
pre-removal risk assessment [PRRA], the test for admitting new evidence should
not be the same as that set out in Raza v Canada (Citizenship and
Immigration), 2007 FCA 385 at paragraph 13, 289 DLR (4th) 675 [Raza].
The RAD instead modified the Raza test and found that appellants only needed
to show that any proposed evidence was: (1) “evidence
that arose after the rejection of their claim [by the RPD] 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”;
(2) credible; (3) relevant; and (4) material, in the sense that the evidence might
affect the disposition of the appeal.
[6]
Applying this test to the case before it, the
RAD found that all of the Applicant’s new evidence was inadmissible. The
Applicant’s affidavit offered nothing new since everything it said was already
part of the RAD’s record. The affidavit from a new identity witness, Mr.
Mohamed, was new but he had been found by the Applicant. Since the Applicant
was the “source” of this new witness and the
Applicant was found by the RPD not to be credible, the RAD determined that Mr.
Mohamed’s testimony also must not be credible. As for a new letter from the
Somali Immigrant Aid Organization, the RAD could not see any reason why this
information had not been submitted to the RPD in the first place. Without any
admissible new evidence, the RAD therefore decided that the oral hearing
requested by the Applicant was not permitted by subsection 110(6) of the Act.
[7]
The RAD then noted that the Applicant was only
appealing the RPD’s findings of fact. Following Iyamuremye v Canada (Citizenship and Immigration), 2014 FC 494 at paragraph 40 [Iyamuremye],
the RAD decided to apply the reasonableness standard of review.
[8]
The RAD pointed out that refugee claimants must
supply acceptable documentation to establish their identities or else explain
why they did not (citing Act, s 106; Refugee Protection Division
Rules, SOR/2012-256, s 11). The Applicant did not supply any documentation
to prove his identity, and the RAD determined that the RPD reasonably rejected
the Applicant’s excuses for that omission. That determination did not depend on
the absence of government documentation, and the RAD found that it was
reasonable for the RPD to expect some evidence to corroborate the Applicant’s
phone calls to Somalia and the transactions the Applicant had allegedly made
there when he sold his house. The RAD further decided that it was reasonable
for the RPD to find the Applicant and his first identity witness not credible
due to the inconsistencies between their stories. The RAD therefore dismissed
the Applicant’s appeal, saying that the outcome reached by the RPD fell within
a range of possible, acceptable outcomes that are defensible with respect to the
facts and the law.
IV.
Analysis
A.
Did the RAD err in its assessment of new
evidence?
[9]
The parties dispute whether it was appropriate
for the RAD to adapt the Raza test for admitting new evidence under
subsection 110(4) of the Act. In Raza, the Federal Court of Appeal
interpreted paragraph 113(a) of the Act, which is a similarly-worded
provision that governs the introduction of new evidence in a PRRA. In that
context, the Federal Court of Appeal decided that a claimant not only needed to
satisfy the express statutory conditions for admitting new evidence, but the
proposed material must also be relevant, credible, new, and “material, in the sense that the refugee claim probably would
have succeeded if the evidence had been made available to the RPD.”
[10]
As mentioned above, the RAD in this case determined
that subsection 110(4) was different enough that the Raza criteria did
not strictly apply. It only directly incorporated the relevance and credibility
criteria into its own test for admitting new evidence. The RAD folded the
newness criterion into its evaluation of the express statutory conditions, and
adopted a significantly more lenient materiality condition that would admit
evidence so long as the following question can be answered affirmatively: “[i]s the new evidence capable of showing that the decision
or reasons of the RPD are in error, or might the evidence affect the
appropriate disposition of the appeal?”
[11]
Since the RAD was interpreting its home statute
when creating this test, this determination should be reviewed by this Court on
the reasonableness standard (Singh v Canada (Citizenship and Immigration),
2014 FC 1022 at paragraphs 39-42 [Singh]; Iyamuremye at paragraph
45; Denbel v Canada (Citizenship and Immigration), 2015 FC 629 at
paragraph 29 [Denbel]; Alberta (Information and Privacy Commissioner)
v Alberta Teachers' Association, 2011 SCC 61 at paragraph 39, [2011] 3 SCR
654). The same standard applies when reviewing how the RAD employs whichever
test it has selected, as that would be a question of mixed fact and law (Singh
at paragraph 42; Denbel at paragraphs 29 and 44; Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190; Canada
(Director of Investigation and Research) v Southam Inc, [1997] 1 S.C.R. 748 at
paragraph 35, 144 DLR (4th) 1).
[12]
Consequently, intervention on this ground is not
warranted unless I cannot understand why the RAD reached its conclusions or how
the facts and applicable law support its decision (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paragraphs 15-16, [2011] 3 S.C.R. 708). I can neither reweigh the
evidence nor substitute my own view of a preferable outcome (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59
and 61, [2009] 1 S.C.R. 339).
[13]
The jurisprudence of this Court is divided on
the test for new evidence under subsection 110(4) of the Act. Some
decisions have held that it is appropriate for the RAD to adopt the Raza
criteria because subsection 110(4) of the Act is very similar to
paragraph 113(a) (Denbel at paragraphs 40-43; Iyamuremye at
paragraphs 45-46; Ghannadi v Canada (Citizenship and Immigration), 2014
FC 879 at paragraph 17). Other decisions have held that it is unreasonable to
strictly apply Raza, and that the Raza criteria would at least
need to be modified to accommodate the different purposes of a PRRA and a RAD
appeal (see e.g. Singh at paragraphs 48-58; Ching v Canada
(Citizenship and Immigration), 2015 FC 725 at paragraphs 55-58; Ngandu v
Canada (Citizenship and Immigration), 2015 FC 423 at paragraphs 14-22).
[14]
There is no need, however, to choose between
these two lines of authority in the present case. Even if the RAD reasonably relied
upon Raza when creating its test, I am satisfied that it did not
reasonably apply the test which it created for several reasons.
[15]
First, the RAD was wrong when it said (at
paragraph 39) that the Applicant’s affidavit “offers
nothing new, as that evidence is already in the RPD record.” The
Applicant’s affidavit is almost exclusively about his friendship with Mr.
Mohamed, his new identity witness, and it describes how he ran into him at a
mosque on March 7, 2014. This event happened after the Applicant’s claim had
been rejected by the RPD, and nothing about his account or about Mr. Mohamed
was already in the RPD record.
[16]
Second, it was not reasonable for the RAD to
reject the affidavit of Mr. Mohamed in the way it did. The RAD reasoned (at
paragraph 39 of its decision) that because “the new
witness comes from the same source (the Appellant) who was found not [to be]
credible, the RAD assessed [Mr. Mohamed’s affidavit] not to be credible and
does not accept it.” That was unreasonable. Just because the Applicant had
encountered this new witness and had himself been considered not to be credible
by the RPD was no reason for the RAD to blindly find Mr. Mohamed’s affidavit
not to be credible as well. This is an illogical and unjustifiable
determination.
[17]
The RAD adopted the credibility criterion from Raza,
and implicitly asked itself the following question: “[i]s
the evidence credible, considering its source and the circumstances in which it
came into existence?” (Raza at paragraph 13). However, the RAD erred
by stating that the “source” of Mr. Mohamed’s
affidavit was the Applicant. That is not accurate. Mr. Mohamed’s personal
experiences were the source of his own testimony, and he gave that testimony
under oath. All the Applicant did was present that evidence, and a general
finding that a refugee claimant lacks credibility does not impugn all evidence
that might corroborate his story (Canada (Citizenship and Immigration) v
Sellan, 2008 FCA 381 at paragraph 4, 384 NR 163).
[18]
It was also an error for the RAD to rely so
heavily on the fact that the RPD had found the Applicant was not credible. The
admissibility of new evidence is a threshold determination which could
potentially trigger an oral hearing pursuant to paragraph 110(6) of the Act,
and the RPD’s finding that the Applicant was not credible was plainly being
challenged in the appeal. It was unreasonable for the RAD simply to presume
that the very findings that were under appeal were error-free when deciding
whether to admit new evidence that could contradict those findings.
[19]
Accordingly, the RAD’s decision is not
reasonable and cannot be justified as an acceptable outcome defensible in
respect of the facts and the law. The matter must be returned to the RAD for
re-determination by another panel member. The Applicant is entitled to an
appeal where the credibility of the Applicant’s new identity witness can be properly
assessed and examined.
[20]
In view of this conclusion there is no need to
address the other issues stated above.
V.
Certified Question
[21]
The Applicant proposed a question for
certification at the conclusion of the hearing of this matter. That question
pertains to whether a revised version of the test set out in Raza should
be utilized by the RAD for purposes of subsection 110(4) of the Act. The
Respondent opposes such certified question because this issue will soon be
addressed in the appeal from Singh, and certifying a further question
would be of little utility at this time.
[22]
The proposed question is not dispositive of this
matter, though, and I agree with the Respondent that no such question should be
certified (see e.g. Alyafi v Canada (Citizenship and Immigration), 2014
FC 952 at paragraph 57; Zhang v Canada (Citizenship and Immigration),
2013 FCA 168 at paragraph 9, [2014] 4 FCR 290; Act, s 74(d)).
VI.
Conclusion
[23]
In view of the foregoing reasons, the
Applicant’s application for judicial review is granted, the RAD's decision is
set aside and the matter is returned to the RAD for a new determination.
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