MB4-02164

RAD File No. / N° de dossier de la SAR : MB4-02164 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Appellant Minister of Citizenship and Immigration of Canada Appelant Respondent XXXX XXXX XXXX XXXX Intimée Date of hearing December 15, 2014 Date de l'audience Appeal considered at Montréal, Quebec Appel instruit à Date of decision January 5, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the appellant Véronique Aubry Conseil de l'appelant Designated representative N/A Représentant désigné Counsel for the respondent Me Anthony Karkar Conseil de l'intimée REASONS AND DECISION INTRODUCTION [1] Canada's Minister of Citizenship and Immigration (the Minister) is appealing against the decision of the Refugee Protection Division (RPD) allowing the refugee protection claim of XXXX XXXX XXXX XXXX, a citizen of Haiti. [2] The Minister submitted new evidence in support of his allegation that the RPD erred on a question of fact or on a question of mixed law and fact. [3] The Minister is not, however, requesting that a hearing be held to assess this evidence. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. BACKGROUND [5] The respondent is a 24-year-old woman, a native of the city of Port-au-Prince, Haiti, who applied for permanent residence in Canada, sponsored by her mother, who lives here, on December 31, 2012. [6] The respondent arrived in Canada at the Pierre Elliot Trudeau airport in Montréal on February 19, 2014, with a permanent resident visa issued on January XXXX, 2014, requesting admission to Canada as a permanent resident. [7] Upon her arrival, the respondent was the subject of an inadmissibility report issued under subsection 44(1) of the IRPA because she allegedly stated to the immigration officer that she got married in Haiti on February XXXX, 2014, and did not inform the Canadian embassy in Haiti of this change in her marital status. She was then allowed to withdraw her application to enter Canada and leave Canada as quickly as possible in order to regularize her status at the Canadian embassy. She also allegedly stated at her interview with the immigration officer that she was not afraid to return to Haiti. [8] The respondent remained in Canada until February 26, 2014, when she went to the airport and claimed refugee protection. [9] In the Basis of Claim Form (BOC Form) that she submitted to the RPD on March 3, 2014, the respondent alleges that she was staying with her aunt in Haiti after her mother and sister left for Canada in XXXX 2012. She alleged that she was subjected to continual threats from criminal gangs who wished to extort money from her by threatening her with rape and abduction. [10] The respondent alleged that her aunt had also later left Haiti and that she, herself, had been the victim of two attempted abductions, the second taking place in early 2014. [11] The respondent alleged that she was afraid to return to Haiti where, as a young woman on her own, she would be subjected to abduction and forced to prostitute herself for failing to pay money to criminal gangs. [12] The Minister, through his representative, intervened before the RPD by filing a notice of intention to intervene and documentary exhibits numbered M-1 to M-5. [13] The Minister alleged before the RPD that the respondent's credibility was undermined by the fact that she had failed to report her new marital status as a married woman and that she had stated upon her arrival that she was not afraid to return to Haiti. The Minister also alleged that the respondent had demonstrated her intention to settle in Canada since December 2012, when she submitted an application for permanent residence. [14] The RPD granted refugee protection to the respondent, finding that the allegations in her BOC Form were credible. The RPD granted the respondent the benefit of the doubt regarding her contradictory statements given upon her arrival at the airport, finding her explanations reasonable to the effect that she was upset and panicked at the time, and that there was no interpreter at the time of her interview with the immigration officer. The RPD found that the documentary evidence filed demonstrated that there was a serious possibility of persecution for the respondent by reason of her membership in the particular social group of women, given the fact that she no longer has any family or a home in Haiti. The RPD also found that the documentary evidence demonstrated that there was no adequate protection for the respondent or internal flight alternative for her in Haiti. [15] Before the RAD, the Minister submits that the RPD's determination is wrong in fact, as the RPD allegedly did not grant the appropriate weight to the evidence that he presented before it, namely with respect to the respondent's family situation and her fear of returning to Haiti. [16] The Minister submits that the RPD erred in granting the benefit of the doubt to the respondent regarding the fact that the interview that she had with the immigration officer when she arrived in Canada was allegedly held without an interpreter because, according to the Minister, the evidence filed demonstrates the contrary, that another officer acting as an interpreter was present. The Minister presents into evidence before the RAD an affidavit from the immigration officer to corroborate these allegations. [17] The Minister also submits that the respondent knowingly failed to inform the RPD of a brother who still allegedly lives in Haiti. The Minister submits into evidence in this matter the respondent's application for permanent residence, as well as the brother's personal profile on Facebook. [18] For these reasons, the Minister is asking the RAD to set aside the determination of the RPD and refer the matter to it for re-determination. [19] The respondent did not submit a written response to the appellant's memorandum. ADMISSIBILITY OF NEW EVIDENCE [20] The Minister presented the following evidence: - Exhibit M-6: the Canada Border Services officer's affidavit; - Exhibit M-7: the respondent's application forms for permanent residence; and - Exhibit M-8: a copy of XXXX XXXX's public profile on Facebook. [21] Under subsection 110(3), the Minister can present documentary evidence in the appeal and is not subject to the conditions set out in subsection 110(4). [22] I have therefore concluded that these documents are relevant and admissible. DECISION ON WHETHER TO HOLD A HEARING [23] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence presented on appeal is admissible and respects the following three criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [24] None of the parties explicitly requested that a hearing be held in this matter, but I nevertheless order that such a hearing be held because I find that the new evidence presented by the Minister satisfies the three requirements set out in subsection 110(6). [25] In fact, I find that this new evidence presented by the Minister raises a serious issue regarding the respondent's credibility because at first glance, it contradicts some of the appellant's central allegations before the RPD, namely her marital and family status, and consequently, her having possible accommodations if she were to return to Haiti. This new evidence is also, in my opinion, central to the decision with respect to the refugee protection claim, as it appears to directly contradict the respondent's testimony, and a decision will have to be made regarding the probative value that is to be granted to these respective pieces of contradictory evidence. Finally, I am of the opinion that if these pieces of evidence are admitted, they would justify rejecting the refugee protection claim, as elements central to the claim would then no longer be credible. [26] Under rule 57, the hearing is restricted to matters relating to the issue provided with the notice to appear: [translation] Does the new evidence submitted by the Minister undermine the respondent's credibility with respect to elements that are central to her claim for refugee protection? THE RAD'S ROLE [27] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the parties have not specifically proposed which standard of review should be applied or what the role of the RAD should be. [28] The Federal Court, which has the authority to review RAD decisions, has rendered a few decisions to date regarding the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [29] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada has ruled on this matter. [30] At paragraphs 28 and 29 of Alvarez, and paragraphs 29 and 30 of Eng, the Court wrote as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [31] The Court added the following at paragraph 33 of Alvarez and paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [32] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examined the role and functions of the RAD and wrote as follows: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [33] With regard to the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that, "in its opinion, should have been made," Justice Phelan wrote: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [34] Justice Phelan concluded that: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [35] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examined the RAD's role. [36] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first found that the RAD erred in applying the standard of reasonableness rather than conducting an independent assessment of the refugee protection claim (paragraph 12). [37] The Honourable Justice Roy proceeded with a detailed analysis of the statutory provisions relating to the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, particularly Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the parliamentary committee of the House of Commons, to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but to an appeal in its own right (paragraph 39) [38] Relying on the conclusions in Parizeau in terms of the standard of review that an appellate tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concluded that the standards of review applicable to the RAD are correctness for questions of law, and palpable and overriding error for questions of fact and questions of mixed fact and law. In addition, the RAD must give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [39] The Honourable Justice Roy also indicated that he could not find any indicators that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42) and stated in the following paragraph of his decision that: [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4).... [40] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having reviewed the aforementioned decisions, first found that all of them reject the reasonableness standard of review and then found that, in his opinion, the RAD should be allowed to choose between the two remaining approaches, that is, the one set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the one set out in Huruglica, which he describes as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant" (paragraph 16). [41] Justice Martineau wrote in paragraph 46 of Alyafi that: [42] ...I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [43] Consequently, I find that the RAD, in the case at hand, should apply the principles established in Huruglica, given that new evidence has been adduced and admitted, and that it is therefore not necessary to conclude that the RPD made an error, whether palpable and overriding or not, for it to be possible for the RAD to reach a different conclusion than that of the RPD, after analyzing all the evidence. [44] I will therefore proceed with an analysis and my own assessment of all the evidence presented to the RPD and of that presented to the RAD in order to determine whether the respondent is a refugee or a person in need of protection. ANALYSIS [45] The issue in the case at hand is whether the respondent is credible with respect to her central allegations, more specifically with respect to the fact that she allegedly no longer has family or a residence in Haiti, and with respect to her subjective fear of returning there. [46] As mentioned above, a hearing was held before the RAD on December 15, 2014, at which the respondent was questioned, specifically by the Minister's representative. [47] When asked about her brother with the first name XXXX, whose name appears in the application for permanent residence that was completed on her behalf in December 2012 (see page 26 of the appellant's record), and whose name is omitted from the BOC Form presented to the RPD, the respondent explained that XXXX is her half-brother and that he used to live with her in Haiti, but was often in the neighbouring Dominican Republic for personal reasons. His name does not appear in her BOC Form because he is a half-brother and the respondent did not believe that she had to include him, although question 5 on the form is clear in this regard (see page 50 of the RPD record). The respondent stated in the end that her brother XXXX now lives in the United States and that her sister XXXX now lives in Canada. [48] Although the existence of a brother living at the same address as she did in Haiti is a relevant element in the claim for refugee protection, I find that this failure to mention her brother (or half-brother) in the BOC Form is not enough to undermine the respondent's overall credibility anyway because the respondent testified that her brother now lives in the United States. This brother could not then, as of today, be for the respondent a member of her family who would be able to accommodate her, or perhaps offer her some protection and stability, if she were to return to Haiti. [49] The respondent was then questioned about the statements that she allegedly made when she arrived in Canada on February 19, 2014. It should be pointed out that the respondent arrived in Canada with an immigrant visa as a dependent child sponsored by her mother living in Canada. [50] The respondent confirmed before the RAD that at her interview with an immigration officer at what is called the primary inspection line (PIL), her uncle, who accompanied her and had a better command of French, stated that [translation] "she has had a husband since February XXXX, 2014." [51] When asked about the statements that she allegedly made later when she met with an immigration officer at what is called the secondary inspection, where the PIL officer had referred her as was appropriate, the respondent answered that she also stated there that she got married in Haiti on February XXXX XXXX 2014. [52] The respondent, however, stated before the RAD, as she had done before the RPD, that she did not get married on February XXXX, 2014, but that she simply got engaged to the man she had been dating since 2008. [53] When asked to explain why she made this statement to the immigration officer if it was inaccurate, the respondent first testified that she had not wanted to contradict her uncle's previous statement. Upon further questioning about her reasons for not wanting to rectify the facts, she answered that she [translation] "was afraid and upset." [54] When asked by the Minister's representative whether she had tried to obtain any type of document from the civil registry in Haiti that could demonstrate that she was not married, given the fact that she had stated that she was aware that a change in her marital status could cause her problems entering Canada as a child sponsored by her mother, the respondent answered no and added that if [translation] "she had known what her uncle had stated, she would have rectified the facts" at the secondary interview. [55] On the same subject, following a question from her counsel, who asked her if she had been threatened by the officer at the time of the secondary inspection, the respondent answered that [translation] "yes, she felt threatened by the officer," and this is why she did not rectify the facts regarding her marital status. [56] Finally, when asked whether she had stated that she was not afraid of returning to Haiti, to both the secondary inspection officer and the Minister's delegate, whom she allegedly met later, as is indicated in both the FOSS notes submitted into evidence before the RPD (see pages 152 to 160 of the RPD record) and the secondary inspection officer's affidavit submitted before the RAD (Exhibit M-6), the respondent first answered that she did not make this statement and that she instead answered [translation] "yes," that she was afraid to return, before stating that she did not know whether she had been asked the question because [translation] "the officer was talking to her uncle." The respondent added that she did not meet the Minister's delegate. [57] I find that the respondent's testimony before the RAD is contradictory regarding the statements that she claimed to have made to Government of Canada representatives, whom she met upon her arrival, regarding elements central to her claim for refugee protection, namely, with respect to her marital status and her fear of returning to Haiti, and that as a result, her credibility is undermined. [58] The respondent's answers regarding what she allegedly stated to the secondary inspection officer are contradictory: initially, she claimed that she stated that she was married so as to not contradict what her uncle had allegedly stated; only to claim that she did not know what her uncle had stated, and that if she had known, she would have rectified the facts; then to finally claim that she made that statement (that she was married) because she felt threatened by the immigration officer. When asked to further explain this contradictory testimony, the respondent did not answer. [59] The respondent's testimony regarding her statement in terms of whether or not she was afraid to return to Haiti is also contradictory. Initially, she claimed that she answered that she was afraid to return there in response to a question from the immigration officer and then claimed that she did not know whether she was asked the question. [60] Given this testimony from the respondent, I am of the opinion that I must grant greater probative value to the evidence submitted by the Minister, to both the RPD and the RAD, rather than to the respondent's testimony. The evidence filed by the Minister regarding the respondent's statements upon her arrival in Canada is made up of FOSS notes submitted to the RPD in which both the secondary line immigration officer and the Minister's delegate entered information obtained at the time of their respective interviews with the respondent (see document M-3, pages 153 to 161 of the RPD record): both of them wrote that the respondent stated that she was married and that she was not afraid to return to her country. Furthermore, Exhibit M-6 submitted to the RAD is an affidavit signed by the same secondary inspection officer who met with the respondent when she arrived in Canada, and he confirms her statements. In this affidavit, the officer also confirms that the interview at secondary inspection took place in the presence of one of his co-workers who speaks Haitian Creole and acted as an interpreter, and that the Minister's delegate also met with the respondent in the presence of the same co-worker acting as an interpreter. The officer claims that he did not threaten to detain the respondent or send her back on the next flight, and that she voluntarily signed a document attesting to the withdrawal of her application to enter Canada and to her agreement to return to Haiti. [61] In his arguments before the RAD, the respondent's counsel submits that this affidavit [translation] "is worthless" because he could not question the officer who signed it. I cannot accept this argument. First, it is a statutory declaration from a Government of Canada officer that is admissible as evidence before the RAD, which is not bound by the formal rules of evidence as is a higher court, and second, neither the respondent nor her counsel ever asked that the affiant be called as a witness before the RAD, even though this document was made known to them a long time before the hearing that was held. [62] The second argument of the respondent's counsel is to the effect that there was no interpreter at the time of the interview with the secondary inspection officer, and that therefore the respondent allegedly did not fully understand the questions that she was asked. Once again, I cannot accept this argument. Both the FOSS notes submitted (see page 159 of the RPD record) and the officer's affidavit indicate that, on the contrary, a co-worker was present and acted as an interpreter. [63] I therefore conclude that all the evidence presented demonstrates, on a balance of probabilities, that the respondent is not credible in at least two elements central to her claim for refugee protection, namely her marital status, as the evidence demonstrates that she is married to a man in Haiti, and her fear of returning to Haiti, as the evidence demonstrates that she stated when she arrived in Canada that she was not afraid to return there. [64] As a result of the preceding, I also conclude that the respondent did not demonstrate, on a balance of probabilities, the elements central to her claim for refugee protection as alleged in her BOC Form, namely the fact that she lived in Haiti under the continual threat of criminal gangs, given her statements that she was not afraid to return to her country, and that this danger would be far greater because she was allegedly [translation] "a girl on her own" in her country, given that I find that the evidence instead demonstrates that she was married in Haiti. REMEDY [65] Under subsection 111(1) of the IRPA, the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, that is, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [66] The appeal is allowed. Normand Leduc Normand Leduc January 5, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 F.C. 702. 2 Eng v. M.C.I., 2014 F.C. 711. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Spasoja v. M.C.I., 2014 FC 913. 5 Parizeau v. Barreau du Québec, 2011 RJQ 1506. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02164 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02164 2