MB4-03126

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 : MB4-03126 MB4-03127 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 10, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX and XXXX XXXX, citizens of Haiti, are appealing against a decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] The appellants did not file new evidence in support of their appeal, but are requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(2), the RAD refers the matter to the RPD for re-determination. FACTUAL BACKGROUND [4] The principal appellant and his siblings were allegedly attacked at their home in November 2007 by three criminals who were looking for the principal claimant's father because of his involvement with an organization known as XXXX. The male appellant's father, now deceased, allegedly left Haiti in January 2008 and was granted refugee status in Canada. Subsequently, the principal appellant allegedly became the target of insults from his father's adversaries. [5] In December 2010, individuals supposedly made comments about the fact that he was his father's son while firing shots into the air and, in January 2011, the male appellant was allegedly assaulted in a public place by criminals who told him they were looking for his father. [6] The principal appellant allegedly left for Chile in XXXX 2011, and the female appellant allegedly joined him in XXXX 2012. They apparently lived there legally with temporary work visas that were renewable each year until XXXX 2014. When they learned of the male appellant's father's death, they allegedly obtained a Canadian visa so they could collect his remains. They arrived in Canada on April 15, 2014, and claimed refugee protection on April 16 of that same year. RPD DECISION [7] The RPD rejected the appellants' claim for refugee protection because it found that they lacked credibility, for the following reasons. [8] The RPD drew negative inferences from the fact that the principal appellant, on whom the entire story is based, knew very little and from the fact that his testimony was vague with respect to his knowledge of the organization that his father belonged to and the types of problems his father encountered with his adversaries. [9] As well, the RPD drew a negative inference from the fact that the principal appellant writes in his Basis of Claim Form (BOC Form)-see the response to question 2(a) on page 37-that he was the target of insults from his father's adversaries, yet during his testimony and the interview at the port of entry, he indicated that he was afraid of the people who belonged to the same group as his father. [10] The RPD drew a negative inference from the fact that the principal appellant did not state in his refugee protection claim documents that he was living in XXXX during his final month in Haiti, and he allegedly did not voluntarily share that information during his testimony either. [11] The RPD drew a negative inference from the fact that the principal appellant did not voluntarily declare that during the incident on December XXXX, 2010, when individuals recognized him as being his father's son, they took off while firing shots into the air. [12] The RPD drew a negative inference from the fact that the appellants did not seek asylum in Chile where they lived. The principal appellant lived there from XXXX 2011 to April 2014, and the female appellant lived there from XXXX 2012 to April 2014. The appellants were granted temporary resident status there because they were working, and that status was renewable each year. The RPD drew a negative inference from the fact that the appellants did not research the possibility of seeking asylum in Chile and concluded that their behaviour was inconsistent with that of individuals who fear for their lives. GROUNDS OF APPEAL [13] Before the RAD, the appellants submit that the RPD was harsh in its reproach of the principal appellant for knowing very little about the organization XXXX and the specific problems that his father encountered with his agents of persecution. The principal appellant has never been involved in politics, but his father was. [14] The appellants are of the opinion that the RPD's conclusion-that they did not demonstrate that the agents of persecution would have any reason to pursue them-is speculative and the RPD failed to consider other events that took place after the incident in November 2007. [15] In the appellants' opinion, the fact that they did not indicate in document IMM 5669 (page 141 of the male appellant's record) that the principal appellant lived in XXXX for a month before leaving is not sufficient to justify a negative credibility finding. In his mind, it was a temporary address, and that question is often answered improperly by refugee protection claimants because they include only their official address. [16] The appellants are of the opinion that not having sought asylum in Chile is not sufficient, in and of itself, to justify rejecting their refugee protection claim. As well, the RPD did not ask the principal appellant if he was aware of the procedures for seeking asylum. HOLDING OF A HEARING [17] Since no new evidence was submitted before the RAD, the RAD concludes that it cannot hold a hearing under subsection 110(6). RAD'S ROLE AND FUNCTION [18] The RAD is a newly constituted body that reviews RPD decisions. Its role remains to be clarified. The Immigration and Refugee Protection Act (IRPA) does not explicitly set out the standard of review and intervention to be applied when RPD decisions are reviewed. [19] To date, the decisions of the Federal Court have established that "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."1 The RAD "also has the authority to investigate, an authority the Federal Court judge . . . does not have." [20] In Alvarez,2 the Honourable Justice Shore is of the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner..." These appeals are not de novo appeals, and the RAD cannot hold a hearing unless new evidence is filed in accordance with subsections 110(4) and 110(6) of the IRPA, which limits the scope of review that the IRPA gives to the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [21] In Eng,3 Justice Shore is of the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact because the RPD is better situated, having seen and heard the claimant. However, 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 misassessed the facts to the point of making a palpable and overriding error" (Eng, para. 33). [22] In Huruglica,4 a decision rendered after Alvarez and Eng,5 the Honourable Justice Phelan is of the opinion that the need for deference to the RPD "is less compelling between the RAD and the RPD than it is between the judiciary and the executive" and that the RAD is given much greater remedial powers than those of an appellate court. Moreover, the IRPA sets out, in subsection 111(1), that the RAD may substitute its own determination for that of the RPD. In doing so, the RAD must conduct its own independent analysis of the appeal record and is not restricted to intervening only in the event of a "palpable and overriding error." The standard of reasonableness, which was initially applied by the RAD, was unequivocally rejected by the Court (see Alvarez, Eng and Spasoja).6 [23] In Huruglica,7 Justice Phelan states the following: "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'."8 [24] Thus, Huruglica recommends an approach where deference must be given to the RPD with regard to the assessment of credibility, while conducting an independent analysis of credibility that is not limited to the "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has equal or greater expertise to the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."9 [25] In Spasoja,10 rendered after Huruglica, the Honourable Justice Roy gives a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the view that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings and that, for questions of law, the standard of correctness applies. This conclusion is consistent with Alvarez and Eng. [26] In Alyaffi,11 Justice Martineau chooses "the middle path, that of wisdom" and is of the opinion that both positions, the first explained in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as a "composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a 'hybrid appeal'") (Alyaffi, para. 16), can be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [27] It seems to me that the RAD owes deference to findings of credibility and must show a measure of deference, as in Huruglica, because the RPD has had the opportunity to see, question and hear the appellant. [28] The RAD will consider in its analysis all the evidence, including the appellant's testimony and the documentary evidence, and will conduct its own analysis while giving deference to the RPD's credibility findings. [29] The RAD will only intervene if it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With regard to errors of law, the RAD will apply the correctness standard of review (Spasoja). ANALYSIS [30] In the course of its analysis, the RAD considered all of the evidence on file and listened to the recording of the hearing. [31] The RPD concluded that the appellants were not credible, based on an analysis of various aspects that arose during the hearing. In the memorandum in support of their appeal, the appellants presented their arguments as to why they are of the opinoin that the RPD had made errors. [32] The RPD found that the appellants were not credible, notably because the principal appellant knew very little about XXXX, the organization his father belonged to and where he had acted as secretary. He also knew very little about the type of conflicts his father had encountered before leaving Haiti in January 2008. In addition, the male appellant contradicted himself because in his BOC Form (see the response to question 2(a), paragraph 4), he describes his father's enemies and the people they fear today as [translation] "adversaries," when during his testimony and the interview at the port of entry (page 144), he spoke about individuals who were members of the same political party as his father, and he was questioned about that. When confronted, the male appellant responded that he did not really know what problems his father had encountered. [33] The RPD was of the opinion that there was a contradiction between "adversaries" and [translation] "people who belonged to the same political party as his father" because one suggests political disagreement while the other suggests partnership and colleagues. In the RPD's opinion, that undermined the principal appellant's credibility because he did not know the types of problems his father had encountered. The RPD rejected the appellant's explanations. [34] In their memorandum, the appellants state that the conclusion is harsh because the male appellant was never involved in XXXX; his father was. [35] The RAD is of the opinion that "adversaries" and "people who belonged to the same political party as his father" can potentially mean the same thing and that there can be adversaries within the same political party. [36] It would be one thing if the principal appellant had testified that he was afraid of his father's political adversaries. In fact, he stated many times that he was afraid of the criminals who belonged to the same political party as his father. He did not say that he was afraid of his father's political adversaries. It is true that in his BOC Form he indicates that he became the target of insults from his father's adversaries, but he did not indicate or state that they were his father's political adversaries. That said, the RAD is of the opinion that there can be adversaries within a political party; it is quite plausible. In the circumstances, the RAD does not agree with the negative inference drawn by the RPD and is of the opinion that it erred on this point. [37] The RPD was of the opinion that the principal appellant knew very little about XXXX, for which his father acted as secretary, and it drew a negative inference from that fact. The male appellant was unable to answer questions regarding how many members are in the organization, which party it is associated with, and whether it was still in operation. The appellants submit that the RPD's conclusion was harsh because the principal appellant was never involved with the party. [38] The RAD agrees with that argument. The principal appellant was not involved with the organization before or after the attack in November 2007. In the circumstances, the RAD is of the opinion that it is quite plausible that he has no knowledge about the organization. The RPD erred on this point. [39] The final aspect that the RPD noted about this lack of knowledge is the fact that the principal appellant did not know what types of problems compelled XXXX to pursue his father. [40] The male appellant stated numerous times that he did not know why they were going after his father. The RPD was of the opinion that this lack of knowledge about the types of problems his father had encountered rendered the claimant's testimony [translation] "highly speculative, vague and uncertain with respect to key elements of his claim and, above all, it does not demonstrate that the claimant's alleged aggressors would have reason to find him again today if he were to return." [41] The appellants argue that it does not matter whether the male appellant knew the reasoning; the crucial detail is that the principal appellant was targeted in November 2007, on December XXXX, 2010, and on January XXXX, 2011, because of his father. [42] The RAD is of the opinion that the RPD committed an error by questioning the male appellant's credibility because of his lack of knowledge about his father's alleged conflicts before he left in 2008. It would have been useful to understand the nature of the relationship between the appellant and his father; however, the evidence does not include any information on that topic, the RPD did not ask any questions about it and the appellant's father is now deceased. The RAD is also of the opinion that the RPD made an error when it reproached the appellant for his lack of knowledge about the organization that his father belonged to, given that the appellant was not a member or a supporter of the organization. In the RAD's opinion, the RPD committed an error by drawing a negative inference from that. [43] The RPD was of the opinion that the appellants did not demonstrate that they would be at risk if they were to return to Haiti because the alleged events took place in 2007, the appellant's father fled in 2008, he has passed away since then and it has been three years since the appellants left Haiti. [44] The appellants submit that the conclusion is speculative and that the RPD failed to consider that other events took place afterwards, in December 2010. The RAD agrees with the appellants' arguments. [45] The RAD adds that the RPD also failed to consider and assess the appellants' allegations concerning an incident that transpired on January XXXX, 2011, when the male appellant was again targeted. [46] That said, the RAD is unable to conclude that the appellants' story lacks complete credibility on the basis of the other points, namely that the principal appellant failed to mention that he had lived in XXXX during his final month in Haiti; that he failed to testify about the fact that on December XXXX, 2010, after he was asked if he was his father's son, shots were fired into the air; and that he did not seek asylum in Chile-where he lived for three years as a resident with status that was renewable annually-stating that it was because he did not have any information and should have done so. The appellant did not have status at the time he left Chile. The RPD considered that behaviour was inconsistent with that of an individual who fears for his life. [47] That could be, but, according to the evidence, after three consecutive years of visas, the appellants could have obtained permanent resident status. The principal appellant was almost at that point, but he lost his job, and it was because of his jobs that he was able to obtain a renewable one-year visa, so he lost his right to obtain a permanent visa. Therefore, for almost the entire time he was in Chile, the principal appellant had legal status that provided an assurance that he would not have to return to his country. CONCLUSION [48] For these reasons, I conclude that the RPD's decision is wrong in fact. I am unable to confirm or set aside the RPD's determination without holding a new hearing in order to assess credibility and the subjective fear. REMEDY [49] Pursuant to subsection 111(2) of the IRPA, the RAD refers the matter of XXXX XXXX and XXXX XXXX to the RPD for re-determination. [50] The appeal is allowed. Roxane Cyr Roxane Cyr April 10, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 5 Supra, footnotes 1 and 3. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 7 Supra, footnote 4, para. 55. 8 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 55. 9 Idem, para. 38. 10 Supra, footnote 6, Spasoja. 11 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-03126 MB4-03127 2 RAD.25.02 (2014.09.11) Disponible en français