Docket: IMM-1688-17
Citation:
2017 FC 926
Ottawa, Ontario, October 18, 2017
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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HUSSEIN MUHAMED
MAALIM
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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]
This is the judicial review of a decision by the
Refugee Appeal Division [RAD] rejecting the appeal of a Refugee Protection
Division [RPD] decision that the Applicant is not a refugee or a person in need
of protection.
II.
Background
[2]
The Applicant is a Somali who alleged that:
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as a member of a minority light-skinned ethnic
clan, the Begedi, he was discriminated against by the larger tribe, the Hawiye;
•
there was no state protection for him or his
family;
•
the Hawiye attacked him and his family, took
their farmland, beat him unconscious, threatened and extorted him and his
mother, and killed his mother;
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he is a member of the Sufi religion, a
denomination forbidden by Al Shabaab who controlled his home village;
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he fled to the United States in February 2015
where his refugee claim failed and he entered Canada illegally; and
•
he would be killed if he returned to Somalia,
either by Al Shabaab or the Hawiye.
[3]
The RPD had significant credibility concerns
because of inconsistencies between his testimony, his Basis of Claim [BOC], the
declaration and interview with CBSA, and the US asylum claim documents.
[4]
The RPD found the Applicant not to be credible
and that alternatively he had an internal flight alternative [IFA] in
Mogadishu.
[5]
The RAD confirmed the RPD’s conclusion but from
a slightly different perspective.
[6]
The RAD’s key findings relevant to this judicial
review are:
•
The failure to provide the Applicant with a
working recording of the RPD hearing was neither required by statute nor a
breach of natural justice. The RAD also concluded that natural justice would
only be infringed if the decision maker did not have a working copy. The Applicant
had also not requested a working copy once it was discovered that his was blank.
•
The requirements of s 110(4) of the Immigration
and Refugee Protection Act, SC 2001, c 27, had not been met and as a
consequence, there was no basis to admit fresh evidence or hold an oral
hearing.
•
The Applicant had adequate time to prepare, and
the new tighter timelines for filing refugee claims did not require a different
assessment of credibility.
•
The Applicant’s inconsistencies in respect of his
marital status, his relationship with a female observer, and the number of his siblings
were not irrelevant to a credibility assessment or identity determination.
•
The RPD erred in concluding that the Applicant’s
mother had not been murdered and in concluding that the Applicant’s failure to
claim in the United States undermined his subjective fear of persecution.
•
The RPD was correct in finding a viable IFA in
Mogadishu.
III.
Analysis
[7]
The key issues in this judicial review are:
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the breach of procedural fairness or statutory
requirements regarding the recording of the RPD hearing;
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the reasonableness of the RAD’s credibility
conclusions; and
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the reasonableness of the IFA conclusion.
[8]
The standard of review is well established and
not in issue. Procedural fairness is subject to a correctness standard while
the appeal to the RAD from findings of the RPD is subject to reasonableness (Canada
(Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, [2016]
4 FCR 157) with considerable deference owed on matters of credibility and
weight of evidence.
A.
Recording of RPD Hearing
[9]
The RAD erred, factually, in concluding that the
Applicant (through counsel) had not asked for a working copy of the recording
after realizing that the copy he had received was blank. Mr. Matas had requested
a proper copy, but was delayed by the RPD questioning whether Mr. Matas was
counsel, despite his name appearing on the Notice of Appeal.
[10]
Additionally, the RAD took too narrow a view of
the right to the recording when it focused on whether the decision maker had a
copy of the recording rather than focusing on whether an appellant should have a
copy. A recording is not solely for the benefit of the decision maker. As a
matter of fairness, absent good reason, an appellant is entitled to a recording
of the RPD proceedings.
[11]
The RAD also erred in concluding that there was
no statutory basis for providing a copy of the recording to an appellant. Rule
3(3)(g)(ii) of the Refugee Appeal Division Rules, SOR/2012-257,
specifically contemplates that an appellant would have access to any such RPD
recording:
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3 (3) The appellant’s record must
contain the following documents, on consecutively numbered pages, in the
following order:
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3 (3)
Le dossier de l’appelant comporte les documents ci-après, sur des pages
numérotées consécutivement, dans l’ordre qui suit :
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…
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[…]
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(g) a memorandum that includes full and detailed submissions
regarding
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g) un mémoire qui inclut des observations
complètes et détaillées concernant :
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(i) the errors that are the grounds of the appeal,
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(i) les erreurs commises qui constituent les
motifs d’appel,
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(ii) where the errors are located in the written reasons for the
Refugee Protection Division’s decision that the appellant is appealing or in
the transcript or in any audio or other electronic recording of the Refugee
Protection Division hearing,
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(ii) l’endroit où se trouvent ces erreurs dans
les motifs écrits de la décision de la Section de la protection des réfugiés
portée en appel ou dans la transcription ou dans tout enregistrement audio ou
électronique de l’audience tenue devant cette dernière,
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(iii) how any documentary evidence referred to in paragraph (e) meets
the requirements of subsection 110(4) of the Act and how that evidence
relates to the appellant,
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(iii) la façon dont les éléments de preuve
documentaire visés à l’alinéa e) sont conformes aux exigences du paragraphe
110(4) de la Loi et la façon dont ils sont liés à l’appelant,
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(iv) the decision the appellant wants the Division to make, and
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(iv) la décision recherchée,
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(v) why the Division should hold a hearing under subsection 110(6) of
the Act if the appellant is requesting that a hearing be held.
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(v) les motifs pour lesquels la Section
devrait tenir l’audience visée au paragraphe 110(6) de la Loi, si l’appelant
en fait la demande.
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[12]
Despite these errors, the Applicant has not
shown how access to the recording could possibly have made any difference
to this judicial review. Having now had access to the recording, the Applicant
cannot point to nor does he assert that anything in the recording could feasibly
have made his arguments more fulsome or raise new grounds or even improve on
the perspective of the facts.
[13]
I therefore must conclude that the legal issue
raised is entirely academic and cannot form the basis for quashing the RAD’s
decision.
B.
Credibility Conclusions
[14]
The Applicant’s position is that the credibility
conclusions were flawed because the RAD cannot accept some RPD findings, reject
others, and then uphold the RPD’s conclusions without making a conclusion as to
overall credibility, particularly where there was no oral hearing.
The
Respondent appeared to concede the point but relied on the IFA as definitive.
[15]
However, the assessment of credibility is a
complex process. Unless the RAD took into account irrelevant matters, it has
considerable leeway in concluding on this issue. The issue of identity was
still live at the RAD and therefore issues of the Applicant’s siblings, his
relationship with a female observer, and his marital status, while tangential
to the main issues, are still relevant for credibility considerations.
[16]
I find no basis for holding that the credibility
determination was unreasonable.
[17]
As to the Applicant’s argument that the RAD
erred in concluding that the new refugee process was irrelevant to credibility
issues, such a sweeping proposition would be incorrect. Factors such as short
timelines which may impact the work of obtaining corroborating evidence may
have an impact on particular cases.
[18]
The difficulty for the Applicant here is that
there is no convincing evidence that the new process had any impact on the RPD
or RAD decisions. The issue is an interesting one but in this instance it is
academic.
C.
IFA
[19]
The IFA conclusion in this case is determinative
of the refugee claim. The issue of the risk in being a member of the Begedi
clan was considered by the RAD, both in Somalia generally and in Mogadishu in
particular.
[20]
I am not persuaded that this conclusion is
unreasonable. The finding of a viable IFA is therefore supportable and the
Court will not intervene in this determination.
IV.
Conclusion
[21]
For all these reasons, this judicial review is
dismissed.
[22]
There are no questions for certification.
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