Abdi v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Boswell, J.
• Citation: [2015] F.T.R. TBEd. JL.061,2015 FC 906
• Date: 18 June 2015
• Subject Matter: IMMIGRATION AND REFUGEE

Abdi v. Can. (M.C.I.), [2015] F.T.R. TBEd. JL.061

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. JL.061

Liban Mahad Abdi (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5580-14; 2015 FC 906)

Indexed As: Abdi v. Canada (Minister of Citizenship and Immigration)

Federal Court

Boswell, J.

July 24, 2015.

Summary:

Abdi claimed that he was a Sufi Muslim from a minority clan in Somalia and that he would be murdered by a terrorist organization if he stayed in Somalia. The Refugee Protection Division rejected his claim for refugee protection because he had not supplied enough evidence to prove he was from Somalia. Abdi appealed to the Refugee Appeal Division (RAD) and presented additional evidence. The RAD, applying a modified "Raza test", found that Abdi's new evidence was inadmissible (Immigration and Refugee Protection Act, s. 110(4)), and dismissed the appeal. Abdi applied for judicial review.

The Federal Court allowed the application. Even if the RAD reasonably relied upon Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007) (Fed. C.A.) when creating its test, it did not reasonably apply the test which it created.

Aliens - Topic 1326.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Determination by - [See Aliens - Topic 1331 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - The applicant claimed that he was a Sufi Muslim from a minority clan in Somalia and that he would be murdered by a terrorist organization if he stayed in Somalia - The Refugee Protection Division (RPD) rejected the applicant's claim for refugee protection because he had not supplied enough evidence to prove he was from Somalia -He appealed to the Refugee Appeal Division (RAD) and presented additional evidence - The RAD, applying a modified "Raza test", found that the applicant's new evidence was inadmissible, and dismissed the appeal - The Federal Court allowed the applicant's judicial review application - The jurisprudence was divided on the test for new evidence - However, there was no need in this case to choose between the two lines of authority - Even if the RAD reasonably relied upon Raza when creating its test, it did not reasonably apply the test which it created - First, the RAD erred in finding that the applicant's affidavit about his friendship with his new identity witness "offers nothing new, as that evidence is already in the RPD record" - Second, it was not reasonable for the RAD to reject the affidavit of the new identity witness just because the applicant himself had been considered not to be credible by the RPD - Third, the RPD's finding that the applicant was not credible was being challenged in the appeal - It was unreasonable for the RAD 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.

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - [See Aliens - Topic 1331 ].

Cases Noticed:

Raza v. Canada (Minister of Citizenship and Immigration) et al. (2007), 370 N.R. 344; 2007 FCA 385, refd to. [para. 5].

Iyamuremye et al. v. Canada (Minister of Citizenship and Immigration) (2014), 455 F.T.R. 201; 2014 FC 494, refd to. [para. 7].

Singh v. Canada (Minister of Citizenship and Immigration) (2014), 466 F.T.R. 187; 2014 FC 1022, refd to. [para. 11].

Denbel v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.061; 2015 FC 629, refd to. [para. 11].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 11].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 11].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 12].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 12].

Ghannadi v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 376; 2014 FC 879, refd to. [para. 13].

Ching v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. JN.037; 2015 FC 725, refd to. [para. 13].

Ngandu v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 158; 2015 FC 423, refd to. [para. 13].

Sellan v. Canada (Minister of Citizenship and Immigration) (2008), 384 N.R. 163; 2008 FCA 381, refd to. [para. 17].

Alyafi v. Canada (Minister of Citizenship and Immigration) (2014), 465 F.T.R. 114; 2014 FC 952, refd to. [para. 22].

Zhang v. Canada (Minister of Citizenship and Immigration), [2014] 4 F.C.R. 290; 446 N.R. 382; 2013 FCA 168, refd to. [para. 22].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 110(4) [para. 5].

Counsel:

Eve Sehatzadeh, for the applicant;

Ada Mok, for the respondent.

Solicitors of Record:

Eve Sehatzadeh, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on June 18, 2015, before Boswell, J., of the Federal Court, who delivered the following judgment and reasons, dated July 24, 2015, at Ottawa, Ontario.