TB3-08136

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB3-08136 TB3-08137 TB3-08138 TB3-08139 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXX XXXX XXX (a.k.a. XXXXX XXXX XXXX) XXXX XXXXX XXX (a.k.a. XXXXX XXXX XXXX) XXXXXX XXX XXXXX (a.k.a.XXXXX XXXXX XXX) XXXXXX XXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 11, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX, his wife, XXXX XXXX XXXX, and their children, XXXX XXXX XXXX and XXXX XXXX XXXX (the Appellants), citizens of Nigeria, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants ask the Refugee Appeal Division (RAD) to set aside the RPD's decision and either substitute it with a positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. Background [3] The adult Appellants were born in Nigeria, but they were living in Italy when they decided to marry each other. Although the male Appellant's family strongly objected to the marriage, they nevertheless proceeded. Both minor Appellants were born in Italy, and the male Appellant's family demanded that they be subjected to female circumcision, but the Appellants refused. [4] During a visit to Nigeria, the Appellants overhead family members discussing the forcible circumcision of the minor Appellants, and they also received death threats for refusing to allow the procedure. The Appellants returned to Italy, but they were faced there with threats from family members living in that country. The Appellants then went to the United States of America, but they claim that there too they were threatened by relatives. They met a smuggler who took them to Canada, where they claimed refugee protection in July of 2013. [5] The Minister of Citizenship and Immigration Canada intervened before the RPD in the Appellants' refugee claims. The Minister argued that the Appellants are excluded from refugee protection in Canada by virtue of Article 1E of the refugee Convention, as they are permanent residents of Italy and have not rebutted the presumption of state protection in that country. The Minister also pointed out that the Appellants sought and were denied Canadian immigrant visas before the alleged persecution occurred, and that they failed to seek protection in the U.S. In the Minister's submission, the Appellants' story about how they came to Canada is implausible. The Minister asked the RPD to reject the Appellants' refugee claims. [6] Those claims were heard on October 15, 2013. In a relatively brief oral decision, the RPD rejected the claims. It found that the Appellants are permanent residents of Italy, and if that status has expired, that they bear the onus to renew it. It also found that permanent residents of Italy are entitled to government social, health care, and employment benefits, and it noted that the male Appellant obtained employment while a minor Appellant was enrolled in school. The RPD considered objective evidence about protection available to the Appellants in Italy, and it concluded that they had failed to rebut the presumption of adequate state protection. [7] The Appellants submit that the RPD perversely erred when it failed to properly consider the evidence relating to exclusion, to consider their reasons for not renewing their Italian status and in failing to consider the risk they face in Nigeria. The Appellants argue further that the RPD erred in considering their evidence in respect to state protection. ANALYSIS Standard of Review [8] In the RAD's view, the test for exclusion under Article 1E is a question of law. Here, however, the Appellants argue that the RPD improperly applied the test to the evidence, and these appeals therefore raise questions of mixed fact and law.1 [9] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [10] While the Appellants make no specific submissions on the standard of review to be applied here, they argue that the RPD's decision was unreasonable, which suggests a deferential standard of review. [11] In Dunsmuir,2 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,3 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [12] In Newton,4 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:5 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [13] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.6 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [14] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference is be owed, as the RPD will not have considered this evidence. [15] The nature of the question in issue: In these appeals, the questions in issue are ones of mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.7 [16] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [17] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.8 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [18] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [19] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [20] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [21] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.12 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,13 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [22] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.14 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [23] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.15 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [24] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to the factual findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.16 [25] The appropriate standard of review in these appeals is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.17 The RPD's Findings [26] The Appellants argue that the RPD erred in applying the Article 1E test set out by the Federal Court of Appeal in Zeng18 to their evidence, and in determining that they could expect adequate state protection in Italy. [27] The application of Zeng: The RPD relied upon Article 1E of the refugee Convention, which provides that "this Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country." This article is reflected in Section 98 of IRPA, which states that a person referred to in Article 1E is not a Convention refugee or a person in need of protection. [28] In Zeng, the Federal Court of Appeal set out a test to be applied to Article 1E determinations, using the following factors: (a) Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If so, the claimant is excluded. (b) If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. (c) If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts.19 [29] The RPD found that the Appellants were permanent residents of Italy when they arrived in Canada and that permanent residents "are entitled to government social welfare, health care and employment benefits" in Italy. It also noted that the male Appellant was employed, and that a minor Appellant attended school.20 The panel acknowledged that the Appellants' Italian status expired before their RPD hearing, as they made no effort to renew it. It rejected their explanation-that they required employment to renew their status-and noted objective evidence that status is lost when a permanent resident is absent from Italy for twelve months. [30] The Appellants submit to the RAD that the RPD erred in applying the second Zeng factor to their evidence, as they did not have the right to free education, free medical coverage, or access to subsidized housing in Italy. [31] In Shamlou,21 the Federal Court considered the rights and obligations set out in Article 1E, and held that these include the right of return, the right to work freely without restrictions, the right to study, and full access to social services. In the case of the Appellants, the RPD considered recent objective evidence which states clearly that even holders of temporary resident permits "are entitled to the same benefits as nationals, including 'access to schooling, medical and social assistance,' for as long as the permit is valid."22 That same evidence explains that such permit holders may also travel outside of and return to Italy. Holders of permanent resident permits are also entitled to government social welfare, health care, and employment benefits. [32] While the Appellants challenge the RPD's finding here, they fail to provide evidence in support of their argument. The objective evidence cited above indicates that holders of residence permits are entitled to the same benefits as nationals. The Appellants did not provide, either to the RPD or the RAD, objective evidence to support their contention that permanent residents enjoy lesser rights than do Italian nationals, and it was reasonable for the RPD to accept the objective evidence over the Appellants' uncorroborated allegations. The RAD notes that there is no requirement that such benefits be identical in order to engage Article 1E: as the Court held in Zeng, the status must be "substantially similar" to that of nationals.23 Based on the objective evidence, it was reasonable for the RPD to conclude that the rights and obligations of permanent residents are substantially similar to those of Italian nationals, and the RPD did not err in the application of the second Zeng factor to the facts of the Appellants' claims. [33] The Appellants also argue to the RAD that the RPD also failed to consider the circumstances that led them not to renew their status in Italy, an analysis required by the third factor in Zeng. The RAD disagrees. The RPD considered the female Appellant's explanation-that one must be employed in order to renew permanent residency-and rejected this, as no objective evidence was presented to corroborate this claim, and as objective evidence before the RPD states that the residence permit is permanent unless the holder is absent from Italy for twelve months or more. The RPD noted that, at the time of the hearing, the Appellants had not been absent from Italy for twelve months or more; the RAD notes that, as of the date of this decision, the Appellants have still not been absent from Italy for twelve months.24 [34] The Minister bore the onus before the RPD to prove that the Appellants had status in Italy, and the Appellants conceded that they did. The onus then shifted to the Appellants to show why they let that status lapse.25 The RPD concluded that the Appellants did not provide a reasonable explanation for this lapse, and the RAD finds no error with this conclusion. [35] The first Zeng factor was answered by the RPD in the negative: the Appellants did not have status in Italy at the time of their RPD hearing. After considering the evidence relating to the second factor, the RPD found that the Appellants did have status similar to nationals of Italy, but lost it. These conclusions required the RPD to then "consider and balance various factors," as set out in the third part of the Zeng test, which mentions the reasons for the loss of status, the ability to return to the third country, the risk faced in the country of origin, Canada's international obligations, and any other relevant facts. [36] The Appellants argue to the RAD that the RPD did not consider the risk they face in Nigeria, and that the third Zeng factor requires such an analysis. The RAD agrees that the RPD did not consider this risk; however, in the RAD's view, it was not necessary for the RPD to do so. The RPD apparently concluded that the Appellants can return to Italy: "Sources indicated to the Board that a permanent resident can lose their status if absent for more than 12 months or more (sic) from Italy. By your own testimony, you have not been out of Italy for more than that period." The RPD also rejected the Appellants' claim that employment is required for the renewal of the permit. While it would have been better if the RPD had stated it explicitly, it is clear from the reasons that the panel believed the Appellants can still return to Italy and renew or resume their permanent residency there. [37] As the RAD understands the third factor in Zeng, it requires that the RPD consider and balance any relevant elements, and it provides a non-exhaustive list of such factors. The Court did not direct the RPD to consider only those elements; in the RAD's view, it is not necessary for the RPD to consider every element listed when one is determinative. In this case, the RPD determined that the Appellants can return to Italy, where they can expect protection. In such a context, it would make no sense for the RPD to proceed to consider the risk to the Appellants in Nigeria, even though this is one element set out in the third part of the Zeng test. If the Appellants can return to Italy, the risk they face in Nigeria is simply not relevant, and the RPD did not err by failing to consider or discuss that risk. [38] Having carefully considered the evidence, the RPD's reasons and the Appellants' submissions, the RAD finds that the RPD did not err in the application of the factors in Zeng to the facts of the Appellants' refugee claims. [39] The RPD concluded that the Appellants had or have status in Italy. As they also claimed a fear of persecution there,26 it proceeded to undertake an analysis of the state protection available to them in Italy and, as such, also considered the Appellants' refugee claim against that country. [40] State protection in Italy: The RPD noted the Appellants' alleged fear in Italy-that they would become homeless and that they would be harmed by family members. It considered objective evidence that female genital mutilation is a serious crime in Italy, and it noted that the Appellants did not seek help from the police. States are presumed to be capable of protecting their nationals, and the RPD found that the Appellants had not rebutted the presumption of adequate state protection. [41] The Appellants argue that the RPD misapprehended their evidence here by suggesting that they sought state protection in Italy, when they never did. The RAD's review of the RPD's reasons does not support the Appellants' contention; in fact, the RPD found that the Appellants had not approached the state for protection. [42] The Appellants argue further to the RAD that the reason they did not seek protection from the Italian police was that they feared reprisals from their family members if they did so. It is well-established in Canadian refugee law that a claimant's failure to approach the state for protection will defeat his refugee claim where such protection might reasonably have been forthcoming.27 The Appellants had status in a democratic country where the rule of law prevails and where female genital mutilation is considered a serious crime. In such a context, they could reasonably be expected to approach the authorities for protection, including protection against reprisals from family members, as such protection might reasonably have been forthcoming. They failed to do so, and it was reasonable for the RPD to conclude that they have not rebutted the presumption of state protection. DISPOSITION [43] The RAD has found that the RPD did not err when it found that the Appellants are excluded from refugee protection by virtue of Article 1E of the refugee Convention, and it reasonably found that they have not rebutted the presumption of state protection in Italy. These appeals must therefore fail. CONCLUSION [44] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. (signed) "Edward Bosveld" Edward Bosveld February 11, 2014 Date 1 Zeng v. Canada (Minister of Citizenship and Immigration) 2010 FCA 118, para. 11. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 5 Newton, para. 43. 6 IRPA, Sections 96 and 97. 7 Khosa, para. 89; Zeng, at para. 11, where the test for exclusion was held to be a question of law, while the question of whether the facts give rise to exclusion is one of mixed fact and law. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Newton, para. 80. 15 Khosa, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 18 Zeng v. Canada (Minister of Citizenship and Immigration) 2010 FCA 118. 19 Zeng, para. 28. 20 RPD's Reasons, p. 2. 21 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.) 22 RPD's Reasons, p. 1; RPD's Record, National Documentation Package for Italy (June of 2013), Item 3.3. 23 Zeng, para. 28. 24 RPD's Record, p. 69, IMM-5669, Question 8, which indicates that the Appellants left Italy in XXXXX, 2013. 25 Mai v. Canada (Citizenship and Immigration), 2010 FC 192, para. 35. 26 RPD's Record, p. 21, Basis of Claim, Question 3. 27 Canada (Attorney General) v Ward, [1993] 2 SCR 689. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08136 TB3-08137 TB3-08138 TB3-08139