VB5-01624

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 : VB5-01624 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision December 9, 2015 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, also known as XXXX XXXX XXXX, (the "appellant"), a national of Djibouti, appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") orders that the determination of the RPD that the appellant is neither a Convention2 refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. BACKGROUND [3] In his claim for refugee protection, the appellant alleged that he was an active member of the Mouvement pour le renouveau démocratique et le développement (MRD) opposition party in Djibouti. He alleged that he was a student leader and would recruit and organize students to participate at opposition rallies. He alleged that, as a result, he was jailed a number of times and tortured and abused while in detention. The appellant alleges that, in XXXX 2010 and as a result of his arrest, he was expelled from the university where he was a student. [4] The appellant claimant left his country lawfully on his own passport issued in XXXX 2012. His passport bears an official exit stamp from XXXX 2012. He alleges that the US visa he obtained in XXXX 2012 was applied for by someone from his political group. He had requested assistance from his political group in order to leave the country. The appellant alleges that he did not see the content of the US visa until his refugee claim counsel in Canada showed it to him. The appellant testified that the visa was gained by lottery that would enable him to obtain permanent immigration status in the United States. The appellant did not make a refugee claim in the United States. He then entered Canada by avoiding presenting himself at a Canadian port of entry. It was some months after his entry into Canada that he made a refugee claim. He alleges that, if he returns to his country, he will be imprisoned and beaten and possibly killed by the authorities of his country because of his political activities. [5] The RPD heard the appellant's refugee protection claim in two sittings held on March 17, 2015 and April 23, 2015. [6] At the first sitting of the hearing, the Minister's representative from Canada Border Services Agency (CBSA) chose to withdraw his in-person participation in the hearing under subsection 170(e) of the Act. At the second sitting of the hearing, a different Minister's representative from CBSA did participate in person, under subsection 170(e) of the Act. At the end of the hearing, the Minister refrained from making submissions. [7] The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated June 2, 2015. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The RPD found that the determinative issue was credibility. [8] The appellant is represented for this appeal by the same legal counsel as at his RPD hearing. SUBMISSIONS [9] Counsel for the appellant has identified the following grounds for this appeal: * That the RPD member breached procedural fairness when she denied the appellant's application for an adjournment to provide additional testimony. * That the RPD member erred in her credibility findings. [10] Counsel for the appellant has not expressly stated what remedy is being sought at the RAD, However, counsel's submissions indicate that the appellant is requesting that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee or a person in need of protection or, in the alternative, order that the RPD refer the matter back to a different member of the RPD for redetermination with such directions that the RAD considers appropriate. [11] The Minister has not intervened in this appeal. Consideration of New Evidence [12] No new evidence has been presented for this appeal. Application for an Oral Hearing [13] The appellant has not requested an oral hearing at the RAD. [14] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the Refugee Protection Division Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [15] According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [16] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,3 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [17] As no new evidence has been accepted in support of this appeal, the RAD must proceed without a hearing. STANDARD OF REVIEW/ROLE OF THE RAD [18] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. I will now consider the broader issue of the role of the RAD when conducting an appeal of a determination by the RPD. [19] Initially, the RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick4 as the leading case on the standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: reasonableness and correctness. The standard of correctness applies to questions of law (including procedural fairness and natural justice), while the standard of reasonableness applies to questions of fact and mixed fact and law. [20] In recent months, the Federal Court (the "Court") has issued several somewhat differing decisions on the role of the RAD when conducting an appeal of the RPD determination. These decisions include the recent Court cases Iyamuremye,5 Eng,6 Alvarez,7 and Huruglica,8 among others. [21] In Iyamuremye, the Court found that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. [22] That said, the Court finds that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conducted an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.9 [23] In Alvarez, Justice Shore said that, the Court is of the view that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.10 Justice Shore also stated that, 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 mis-assessed the facts to the point of making a palpable and overriding error.11 Justice Shore also stated that, the RAD must perform its own assessment of all the evidence in order to determine whether the RPD relied on a wrong principle of law or mis-assessed the facts to the point of making a palpable and overriding error.12 [24] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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 appellant is a Convention refugee or a person in need of protection." Justice Phelan also states that, "that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable. [25] Justice Phelan found that the RAD "must review all aspects of the RPD's decision and come to an independent assessment . . . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Justice Phelan also found that 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.' [26] In this appeal, I have conducted a review covering all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference where the RPD enjoys a particular advantage. As well, it is clear from the many recent Court cases that have been previously mentioned, that the standard of correctness should be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [27] The first ground for this appeal identified by counsel is that the RPD member breached procedural fairness when she denied the appellant's written application for an adjournment to provide additional testimony and to allow for testimony by a witness submitted in writing by counsel on April 24, 2015. [28] I have reviewed the audio recordings of the RPD hearings to review the appellant's submission that he was not granted adequate time at the RPD hearing to present his case for refugee protection. The first sitting on March 17, 2015 took place over approximately 57 minutes and was confined to procedural issues and to address several occasions of late disclosure from both counsel and the Minister. [29] The second sitting on April 23, 2015 took place over approximately two hours and 36 minutes. The RPD member commenced her questioning of the appellant at about the 10 minute mark and her questions required about one hour of hearing time. Next, counsel for the Minister examined the appellant for approximately 20 minutes. Counsel for the appellant started with his questions at about the 01:30 timestamp of the recording of the RPD hearing. At about the 02:12 timestamp of the recording of the RPD hearing, the RPD member for the first time indicated a time limitation stating that "we need to make sure that we finish today". The interpreter offered to stay beyond the time allotted for the hearing but the RPD member said that she was not available. The interpreter then indicated she did not need a break but the RPD member indicated she needed to take a break in order to check something. After the break, at the 02:14 minute mark of the recording the RPD member said "I can give you another 30 minutes. Then we'll really have to wrap it up." [30] At the 02:31:30 mark the RPD member then interrupts counsel for the appellant stating "I'm going to have to cut you off in five minutes". Counsel for the appellant continued with questioning until about the 02:36 time mark when for the first time the appellant testified as to the possibility of a witness who could be available by telephone. However, counsel indicated he will stop at that point. The hearing continued only for a short time in which the RPD member indicated counsel for the appellant was to provide his written submissions by May 4, 2015. Counsel for the Minister indicated that he would not present any oral or written submissions. [31] On April 24, 2015, the day after the second sitting of the RPD hearing, counsel for appellant applied in writing for a continuation of the hearing to address matters that were not addressed because of shortness of time. In his application, counsel requested a continuation be granted to occur before May 4, 2015, the date set for written submissions, and proposed the dates of April 27 or April 28. Counsel also applied to call a witness by telephone as the RPD member has asked several questions about one of the documents submitted by the appellant which the witness would be able to answer. The RPD member denied counsel's application stating that counsel was provided an opportunity at the hearing to ask questions. The request for a continuance of the hearing to have a witness for the appellant was also denied. The RPD member stated that counsel had the opportunity at either of the two sittings of the hearing to put forward this request in accordance with RPD Rule 44 and had failed to do so. [32] The appellant submits that the duty of fairness requires that a person be given adequate time and opportunity to make his claim for refugee protection. The appellant submits that the hearing was time-limited because of the availability of the RPD member and the denial of the application for a continuation of the RPD hearing represents a breach of the duty of fairness owed to the appellant. [33] The RPD's discretion in considering an application for continuance of the hearing must generally take into account all relevant factors, including the number of previous adjournments granted, including any peremptory adjournments, the duration of the requested adjournment, the effect on the immigration system, whether needless delay would result, and whether the applicant is to blame (Siloch).13 [34] In the RPD member's denial of the application for a continuance of the RPD hearing, the RPD member stated only that counsel had provided an opportunity at the hearing to ask questions. The first sitting of the RPD hearing had been limited to procedural matters and to allow for substantial late disclosure from both the appellant and the Minister. In the second sitting of the RPD hearing, the RPD member questioned the appellant for approximately one hour while counsel for the Minister questioned the appellant for an additional 21 minutes. After counsel for the appellant had questioned the appellant for about 41 minutes, the RPD member interrupted the questioning, advising counsel he would have an additional 30 minutes. After the next 16 minutes of questioning by counsel, the RPD member again broke in and advised counsel that she would have to cut him off in five minutes. While counsel for the appellant did signify about five minutes later that he would stop at that point, it is apparent that the RPD member did not provide counsel the time for questioning she had previously indicated and also had perhaps upset the continuity of questioning and examination strategy that counsel had been attempting to achieve. [35] While the RPD member is responsible for expeditiously handling the hearing within the assigned time period, there is a duty of fairness to the refugee claimant in ensuring that sufficient time is allowed to adequately make his case for refugee protection. It does appear that the appellant was not allowed adequate time to present his case in view of the time that had been taken by the RPD member in her own questioning and in her subsequent undertaking at the 02:14 time of the second sitting to allow 30 minutes to finish his questions. [36] I also note that the RPD member did not take into account in her written denial of the application for continuance other relevant factors such as the number of previous adjournments granted, the duration of the requested adjournment, the effect on the immigration system, whether needless delay would result, and whether the applicant is to blame. The first sitting had been adjourned due to extensive administration matters, changes in Ministerial intervention and extensive late submissions of documents by both the Minister and the appellant. The duration of the requested adjournment was relatively short and was to occur within the time already allowed for written submissions. The applicant is not to blame as time pressures on the RPD member's time apparently limited the time normally available for the second sitting. Under all the circumstances outlined above, I therefore find that the RPD member unreasonably denied the adjournment application. This results in a breach of procedural fairness which is to be considered on the correctness standard. Based on all the above, the RPD decision is hereby set aside [37] The appellant also identified credibility issues as being the second ground of this appeal. As this appeal has been determined on the basis of the first issue identified by the appellant, there is no need to further analyze this other ground of appeal as identified by the appellant. DECISION [38] Pursuant to paragraph 111(1)(c) of the Act, the RAD orders that the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. (signed) "Douglas Fortney" Douglas Fortney December 9, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Subsection 110(4) of the Act: 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim 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. 4 Dunsmuir v. New Brunswick, 2008 SCC 9. 5 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 6 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 7 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 8 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 9 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494, para. 41. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 27. 11 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 33. 13Siloch v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 239 (C.A.F). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-01624 RAD File No. / N° de dossier de la SAR : VB5-01624