MB4-02458

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. / No de dossier de la SAR : MB4-02458 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision January 29, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX, a citizen of Algeria, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not present any new evidence on appeal and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely that XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant is a 35-year-old woman who alleges in the Basis of Claim Form that she submitted to the RPD on November 28, 2013, that she married a man in May 2004 who later made her life [translation] "a living hell" by controlling her every move. [5] The appellant alleges that she was subjected to her husband's violence and that she had to stay with her in-laws, who spied on her and reported to her husband [translation] "all kinds of stories about her." She alleges that she wanted a divorce, which her husband would never allow, according to her. She further alleges that her situation as a divorced woman would make her life insufferable in Algeria. [6] The appellant came to Canada on two occasions in 2010 and 2012 to visit her sister who lives here. She returned a third time on July 2, 2013, and claimed refugee protection here on or around November 25, 2013. [7] The RPD rejected the claim for refugee protection on the ground that the appellant's central allegations were not credible. The RPD thus found that the appellant's credibility was undermined for the following reasons: - There was a contradiction between her testimony to the effect that, prior to 2013, her marriage had [translation] "ups and downs" but she did not feel that her life or physical integrity was in danger (this is why she returned twice to Algeria after her trips to Canada in 2010 and 2012) and her subsequent testimony to the effect that since her marriage in 2004, her husband has beaten and mistreated her. - It states on the appellant's Canadian visa application that she is divorced and has worked as a XXXX officer since 2005, which contradicts the appellant's allegations to the effect that she is married and that her husband kept her isolated. - The appellant's visa file also includes a bachelor's diploma in XXXX XXXX that she obtained in 2009. - The appellant's passport demonstrates that she has obtained a number of visas and has made many trips outside Algeria since 2004. [8] The RPD did not grant any probative value to the documentary evidence submitted on the matter of whether the mention of [translation] "divorce" must be indicated on the marriage certificate and birth certificate, since this documentary evidence is contradictory. [9] Before the RAD, the appellant submits that the RPD erred in the assessment of her credibility by not granting her the benefit of the doubt regarding her marital status, as her explanations regarding the information on her Canadian visa application were entered by the travel agency she did business with and not by her personally. [10] For these reasons, the appellant is asking the RAD to set aside the RPD's determination and grant her refugee protection or to refer the matter to the RPD for re-determination. THE RAD'S ROLE [11] 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 appellant has not specifically proposed which standard of review should be applied or what the role of the RAD should be. [12] 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. [13] 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. [14] At paragraphs 28 and 29 of Alvarez and paragraphs 29 and 30 of Eng, the Court writes 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. [15] The Court adds 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. [16] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes 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.... [17] 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 writes: [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.... [18] Justice Phelan concludes 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". [19] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [20] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first finds that the RAD erred in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [21] The Honourable Justice Roy proceeds 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). [22] 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 concludes 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). [23] The Honourable Justice Roy also indicates that he cannot find any indication that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42), and states 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).... [24] 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 above-mentioned decisions, first finds that they all reject the reasonableness standard of review and then finds that, in his opinion, the RAD must 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). [25] Justice Martineau writes in paragraph 46 of Alyafi that: 46 ...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. [26] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described therein appears to me to be more easily applicable than as described in Huruglica, especially when no new evidence has been presented to the RAD and no hearing is held, as in the case at hand. [27] In this case, I find that the error alleged by the appellant regarding the assessment of her credibility is one of fact, and I will therefore apply the standard of palpable and overriding error and will defer to the RPD's findings in this matter. [28] I will proceed with an analysis and my own assessment of all the evidence presented to the RPD to determine whether it committed a palpable and overriding error. [29] At paragraph 91 of Parizeau, a palpable and overriding error is described as follows: [translation] [91] ...A palpable and overriding error is an error that, in its undeniability-and therefore not a difference of opinion on the assessment of the evidence-determines the outcome of the dispute in that the conclusion of the trier of fact, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making the decision unreasonable. ANALYSIS [30] The issue to decide in this case is whether the RPD erred in its assessment of the appellant's credibility. [31] I am of the opinion that the answer to this question is no, for the following reasons. [32] The appellant's main argument before the RAD is that since she testified that she was not divorced and that there is no mention of divorce on the document entitled Extrait des registres des actes de marriage [excerpt from marriage certificate registries] (Exhibit P-2, page 205 of the RPD record) or on the document entitled Acte de Naissance [birth certificate] (Exhibit P-3, page 206 of the RPD record) that she submitted into evidence, the RPD should have granted her the benefit of the doubt in this matter. [33] As mentioned above, the documentary evidence submitted in the RPD record regarding the mention of divorce on the marriage certificate is contradictory: one source consulted states that this is not indicated on the marriage certificate, while another states the contrary (see document DZA104843.E, dated April 11, 2014, pages 49 to 53 of the RPD record). [34] I find, however, in this matter that Exhibit P-2 submitted by the appellant is not a marriage certificate as such but is instead called an excerpt from marriage certificate registries, which could explain, in my opinion, why no mention of divorce is on it, if such a mention has to be indicated on a document called a marriage certificate, as one of the documentary evidence sources mentioned in the previous paragraph indicates. [35] Whatever the case, I find that the RPD did not commit any error by not granting any probative value to the above-cited documentary evidence, since it is contradictory with respect to the mention of divorce on the marriage certificate, given all the evidence in the record. [36] The two sources consulted in the document DZA104843.E nevertheless concur that the mention of divorce should be indicated on the birth certificate, which is not the case in Exhibit P-3 filed by the appellant. [37] I am, however, of the opinion that considering all the evidence presented before the RPD, there is no reason to grant the appellant the benefit of the doubt with respect to her credibility regarding her marital status, nor with respect to her personal situation in Algeria. Just as the RPD found, I find that the appellant's central allegations are not credible. [38] First, there is what I consider to be a major contradiction in the appellant's own testimony as to her relationship with the person who has allegedly been her spouse in Algeria since 2004, as the RPD revealed, regarding whether or not she was subjected to mistreatment. Furthermore, and whatever the case, the fact that she did not claim refugee protection at the time of her trips to Canada in 2010 and 2012 and returned each time to Algeria, if her life or physical integrity was at risk there, undermines the credibility of the appellant's fear. [39] Other information in the documentary evidence submitted also contradicts the appellant's allegations to the effect that she was under the complete control of her spouse, who allegedly kept her in isolation with his family, as noted once again by the RPD: - The Canadian visa application form signed by the appellant on XXXX XXXX, 2012, indicates that her occupation is that of XXXX officer (see page 60 of the RPD record); it is also indicated in her passport (see page 66 of the RPD record) and noted by the visa officer (see page 200 of the RPD record). The visa file also includes an email from the appellant addressed to the Canadian embassy in Paris in which she indicates that she has worked as a [translation] "XXXX officer at the XXXX XXXX XXXX" since 2005 (page 145 of the RPD record). - The same visa application form indicates that the appellant's marital status is [translation] "divorced" (see page 57 of the RPD record), information noted by the visa officer (see page 200 of the RPD record). - The appellant's passport shows that she has obtained a number of visas for foreign countries since 2004, namely for Turkey (page 71 of the RPD record) and the Schengen Area (pages 75 and 77 of the RPD record), and that she allegedly made trips abroad. - I add that in 2012, the appellant obtained a student visa for Canada, which implies previous steps in order to register at a Canadian school (see specifically the letter confirming the school registration, page 99 of the RPD record). [40] I am also of the opinion that the explanations given by the appellant to justify the contradictory information in her visa application-that the application was completed by a travel agency-is unreasonable. I see no reason, and none was put forth by the appellant, why the travel agency would give this false information. The appellant signed the visa application, and she herself sent the email to the embassy indicating that she worked as a XXXX officer. [41] Finally, the evidence presented demonstrates that the appellant has made numerous trips abroad since her passport was issued, including two to Canada, and, as the RPD points out in paragraph 8 of its reasons, it is surprising that her spouse allowed her to travel abroad when she describes him as possessive and controlling. In my opinion, this situation is a further factor in the evidence that undermines the credibility of the appellant's central allegations. [42] In light of the preceding, and after analyzing all the evidence filed, considering the RPD's decision and the errors raised in the appellant's memorandum, I find that she failed to demonstrate that the RPD committed a palpable and overriding error in its decision justifying the RAD's intervention. REMEDY [43] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [44] The appeal is dismissed. Normand Leduc Normand Leduc January 29, 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.:MB4-02458 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB4-02458 11