TB3-08689

RAD File No. / N° de dossier de la SAR : TB3-08689 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 26, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael Crane Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Georgia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the RPD decision and substitute its own determination that the Appellant is a Convention refugee or a person in need of protection. 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 Appellant is neither a Convention refugee nor a person in need of protection. ALLEGATIONS [3] The Appellant alleges that her husband was abusive. She indicates that she was beaten and there was an attempted rape in XXXX 2003, and that she was kicked in the stomach in XXXX 2004. She moved to her aunt's home but then returned to her own home. In 2005, her husband quarreled with her brother and as a result her brother was arrested on false charges. She believes this happened because her father-in-law had influence with the police. In XXXX 2005, her husband beat her and pushed her causing a cut to her hand. She moved to her aunt's house where she remained until XXXX 2006. She then moved to XXXX where she saw a psychologist. In XXXX 2010, her husband beat her again. She went to the police but they did not want to get involved. She indicates she went to Italy in XXXX 2010 and lived and worked there until XXXX 2013 when she returned to Georgia and subsequently traveled to Canada. Her husband continued to harass her family and threaten her while she was in Italy. THE RPD DECISION [4] The Appellant's refugee claim was heard on October 21, 2013. The RPD provided written reasons on November 7, 2013. The RPD found that the Appellant was not credible, and that her actions, during the period 2006 to 2013, were not consistent with a well-founded fear of persecution. The RPD rejected the Appellant's claim and found that the Appellant is neither a Convention refugee nor a person in need of protection. [5] The RPD noted that the Appellant's testimony and BOC concerning her residences are different from those in the Appellant's Port of Entry (POE) document. In the POE notes she states that she lived in her husband's home in XXXX from XXXX 2003 until XXXX 2006, that she lived with her parents in XXXX from XXXX 2006 to XXXX 2012, and that she lived in XXXX, Italy from XXXX 2012 to XXXX 2013. However, the Appellant indicated in her amended BOC that she lived with her aunt from 2005 to2006, she left her aunt's home in XXXX 2006 and moved to XXXX to a friend's home and subsequently moved to her parents' home, also in XXXX, and she then moved to Italy in August 2010. The RPD questioned the Appellant regarding this inconsistency, rejected her explanation, and drew a negative inference regarding the Appellant's credibility. [6] The RPD questioned the Appellant regarding why she could not return to Georgia. The Appellant responded that her husband had stopped doing drugs and as a result he was stronger and more aggressive. The RPD noted however that the Appellant did not provide any of this information in her BOC or her amended BOC. Neither could the Appellant provide any explanation for this inconsistency. The RPD drew a negative inference in this regard. [7] The RPD questioned the Appellant regarding why she lived with her parents for approximately four years, from 2006 to 2010, when she said her husband continuously assaulted and harassed her during this time. The Appellant responded she had nowhere else to go, but it was noted by the RPD that she had indicated she previously lived with friends and relatives to get away from her husband. The Appellant responded he could find her anywhere in Georgia because of the registration system. However, the RPD noted that the Appellant had indicated that she did not register her addresses in Georgia. The RPD found that the Appellant's actions in remaining at a residence where her husband could continue to abuse and threaten her is action not consistent with a well-founded fear. [8] The RPD noted the Appellant returned to Georgia from Italy in XXXX 2013 and remained there for two weeks. The Appellant explained that it was the only way she could obtain a new passport that did not show her time in Italy when she arrived in Canada and this was the advice she received from the smuggler. The RPD rejected this explanation as an insufficient reason to return to Georgia where allegedly her life was at risk. The RPD noted that the Appellant already had a valid Georgian passport and she traveled to Canada on a fraudulent Estonian passport. The RPD found that the Appellant's actions in returning to XXXX are not consistent with a well-founded fear. [9] The RPD questioned the Appellant regarding the reason she failed to seek refugee protection in Italy. In this regard, the RPD cited evidence provided by the Minister. The claimant responded she was psychologically destroyed when she arrived in Italy and she did not know the language. She further testified that when she eventually went to a lawyer she was advised not to make a claim but rather to apply for a work permit. The RPD rejected this explanation, noting the Appellant was an educated woman who was able to approach Italian authorities in regard to a work permit and who had lived in Italy for an extended period of time. The RPD found that the Appellant's failure to make a claim in Italy is an action not consistent with a well-founded fear of persecution. [10] The RPD accepted that the Appellant left an abusive relationship in XXXX 2005 However, in the context of the credibility concerns noted above, it found, on a balance of probabilities, that the Appellant was not suffering continued abuse after the relationship ended in 2006 or that her husband is still threatening her today. In this regard, the RPD noted a number of letters disclosed by the Appellant. It further noted that while two letters from friends indicated there was violence after 2006, letters from her mother and brother made no mention of violence. [11] The Appellant submits that the RPD accepted that she had left an abusive relationship in XXXX 2005. The Appellant further submits the RPD's finding that the Appellant presented inconsistent evidence at the POE regarding her addresses is of no significance because the Appellant's BOC and oral testimony were consistent. The Appellant submits as well there are other findings that are not directly related but it is submitted that, if the initial submission is persuasive, the RAD should order a redetermination. STANDARD OF REVIEW [12] The Appellant submits that that the RAD owes no deference to an RPD decision as the RAD is not a superior court and has the same level of expertise as the RPD. The Appellant further submits that the best analogy is to the Immigration Appeal Division (IAD), which conducts de novo hearings and gives no deference to visa officers or the Immigration Division. The Appellant argues that once any kind of error has been identified, the RAD has an independent and robust mandate, which is illustrated by the substitution power, to give the decision that the RAD considers appropriate. The RAD finds that, although it seeks to make the 'appropriate decision', it disagrees with the substance of the Appellant's submission concerning the Standard of Review. [13] 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. [14] In Dunsmuir,1 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,2 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. [15] In Newton,3 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:4 (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. [16] 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.5 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. [17] 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 may be owed, as the RPD will not have considered this evidence. [18] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [19] 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. [20] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 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. [21] 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. [22] 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." [23] 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. [24] 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,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 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.11 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,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [25] 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.13 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...." [26] 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 fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 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. [27] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to the factual and credibility 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.15 [28] 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's 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.16 ANALYSIS [29] The Appellant argues the RPD made contradictory credibility findings. She notes the RPD accepted that the Appellant left an abusive relationship in XXXX 2005. She further argues this finding "explodes the very first set of credibility findings because the RPD found that she had been contradictory at the POE regarding her addresses". The Appellant notes in this regard that her BoC and her oral evidence were consistent. The Appellant indicates that this is the most important finding and that the RPD failed to consider properly the accepted evidence. The Appellant argues that there was a lack of clarity regarding which evidence the RPD accepted. The Appellant notes the RPD rejected some pre-XXXX 2005 evidence, but accepts that the Appellant was abused before XXXX 2005. The Appellant further argues the RPD appears to say that because the Appellant was found not credible there was no abuse or threats after XXXX 2005. The Appellant argues as well the RPD finding ought to be based on the credible evidence and not on the fact there was rejected evidence. [30] In regard to the Appellant's challenge to the RPD drawing a negative inference from her inconsistent evidence in her POE interview, the RAD notes that the Appellant's testimony in this regard is in fact different from the evidence she gave at her POE interview. The RAD further finds that the Appellant's argument that the RPD's agreement that the Appellant left an abusive relationship in 2005 "explodes" the RPD's finding that she had been inconsistent at the POE interview in regard to her addresses in particular because her oral testimony and BoC were consistent, is difficult to understand. While the Appellant provided an explanation for her inconsistency, the RAD finds that the RPD's decision to reject this explanation and the reasons for this rejection are reasonable. [31] The RAD notes in this regard, that the RPD cited the Appellant's evidence disclosed in both her BOC and the Port of Entry (POE), and noted the specific differences in the residential dates. The RAD notes that the inconsistent POE evidence is not insignificant. In section 8 of Schedule A,17 the Appellant indicated she worked in the XXXX XXXX XXXX, inXXXX XXXX, from 2008 to 2010, a period in which she testified she was living in XXXX with her parents. In addition, the RAD notes that she had access to the Minister's evidence regarding her travel to Italy in 2010 before she submitted her amended BOC. [32] The Appellant argues that, because the Appellant was found not to be credible, the RPD further found there was no abuse or threats after XXXX 2005. The RAD notes that the RPD questioned the Appellant in regard to her experience after leaving her husband in 2005. The RAD further notes the RPD provided explanations for the negative credibility inferences it drew as well as for its findings that the Appellant's actions were not consistent with a subjective fear of persecution. In this regard, the RAD notes that the RPD found that the Appellant had not suffered continual abuse after her relationship with her husband ended in 2006, or that her husband was still threatening her today, as alleged by the Appellant. The Rad further notes that the RPD provided evidence in this regard in letters disclosed by the Appellant's mother and brother which make no mention of violence. In addition, the RPD noted the Appellant's failure to seek protection in Italy and her reavailment to Georgia when she was already in possession of a Georgia passport and found these actions did not reflect a subjective fear of persecution. [33] The RAD notes as well that the Appellant has not challenged or provided specific arguments as to why any of the RPD's other findings are unreasonable. These include the RPD's findings in regard to the Appellant's inconsistent evidence concerning residence; the issue of the Appellant's failure to seek protection in Italy; the Appellant's reavailment to Georgia; and why the Appellant remained in her parents' home for four years when she alleged she was in danger from her husband's actions. The RAD also notes that the RPD made its decision on the basis of its cumulative findings and negative inferences and that the RPD considered the totality of evidence available to it. The RAD finds that RPD decision was reasonable, justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law. DISPOSITION [34] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) 'Milton Israel' Milton Israel February 26, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Schedule A, section 8, p --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français TB3-08689