MB3-02300

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 : MB3-02300 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 March 17, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Jean Cantin Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, a citizen of Russia, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He presented new evidence and is requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I find that the RPD's decision is erroneous in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that should have been made without hearing the evidence that was presented to the RPD. [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND A. Appellant's allegations before the RPD [5] The appellant is a 42-year-old man who alleges in his Basis of Claim Form (BOC Form) submitted before the RPD that he witnessed, through his work in the field of XXXX XXXX that had him travel across his country, the difficult living conditions of the Russian people. He alleged that he took part in a housing protest for marines on May 21, 2011, in Murmansk. [6] The appellant then alleged that he subsequently participated in a demonstration organized by The Other Russia political party on December 10, 2011, in the city of Voronezh to protest the election results. [7] The appellant alleged that he became a member of The Other Russia party in XXXX 2011. He alleged that he took part in a demonstration on March 6, 2012, at the stadium in Pavlosvk to protest the presidential election results. On XXXX XXXX, 2012, he was threatened and struck by members of President Putin's party outside The Other Russia's office in Pavlosvk. [8] The appellant alleged that he was arrested and beaten by police officers at an opposition protest on XXXX XXXX, 2012, in Pavlosvk. The same thing happened to him at another demonstration on XXXX XXXX, 2012. [9] The appellant alleged that he was arrested and beaten again by police officers, this time in Moscow, where he was taking part in an opposition protest on XXXX XXXX, 2012. He alleged that he was subsequently dismissed from his job by reason of his political opinion. [10] The appellant obtained a visa for Canada on XXXX XXXX, 2013, and left his country on XXXX XXXX, 2013. He claimed refugee protection on or around February 28, 2013. B. RPD's decision [11] The RPD held a hearing on April 29, 2013, and rejected the claim for refugee protection because it was not credible that the appellant was targeted at the demonstrations he took part in because of his physical appearance, that is, because he is young and well built, and because he was unable to explain his role within The Other Russia political party (paragraph 28 of the RPD's reasons). The RPD also found that the termination of employment document submitted by the appellant did not indicate the reasons for the dismissal. [12] The RPD then found that the appellant did not demonstrate that he had a [translation] "subjective fear" of persecution, because the evidence he presented did not demonstrate that he had been dismissed for political reasons, or that he was allegedly wanted by the authorities in his country (paragraphs 33 to 35 of the RPD's reasons). [13] Finally, the RPD was of the opinion that the evidence presented did not demonstrate an objective fear of persecution for the appellant because he did not hold a high-ranking position within The Other Russia party. C. The first RAD decision [14] The appellant appealed to the RAD against the RPD decision, and in a decision dated August 26, 2013, the RAD dismissed the appeal on the ground that the RPD decision was reasonable; in other words, it fell within a range of acceptable outcomes which are defensible in respect of the facts and law. D. Federal Court decision [15] The appellant applied to the Federal Court for judicial review of the RAD decision, and in a decision rendered on XXXX XXXX, 2014, the Federal Court set aside the RAD's decision primarily on the ground that it had committed an error by showing deference to the RPD and by applying the standard of reasonableness, and referred the matter for re-determination, hence, this decision. E. The appellant's submissions before the RAD [16] Before the RAD, the appellant raises in his memorandum a certain number of [translation] "problems" in the RPD decision, which he numbered I to VI, as follows: I. The RPD erred by finding that his dismissal was not for political reasons because the notice of dismissal does not indicate the reasons for the dismissal, contrary to what is required in the notice. II. The exit and entry stamps in his passport were explained by the fact that he occasionally worked on XXXX XXXX XXXX. III. The RPD erred by indicating in its reasons that the last demonstration that he allegedly took part in was held on XXXX XXXX, 2012, instead of on XXXX XXXX, 2012. IV. The RPD erred by criticizing him for not having a document to corroborate his arrest on XXXX XXXX, 2012, while he had such documents for the two previous arrests, and erred by finding that these arrests were not for political reasons; V. The RPD erred by finding that the arrests were not by reason of his political opinion but instead by reason of his physical appearance. VI. The RPD erred by finding that the documentary evidence mentions that only individuals holding high-ranking positions in the opposition were harassed and persecuted by representatives of the Russian government. [17] For these reasons, the appellant is requesting that RAD set aside the RPD's determination and grant him refugee protection, or refer the matter to the RPD for re-determination. ADMISSIBILITY OF NEW EVIDENCE [18] The appellant submitted in his record the following new evidence: - Exhibit P-I: three emails received from Russia dated, respectively, July 15, 2013 (page 15 of the appellant's record); July 11, 2013 (page 16 of the appellant's record); and July 12, 2013 (page 17 of the appellant's record); - Exhibit P-XIV: a blank dismissal form, dated XXXX XXXX, 2004; and - Exhibit P-XV: email from XXXX XXXX XXXX XXXX, The Other Russia, dated July 10, 2013. [19] Since I have decided to refer this matter to the RPD for re-determination because of errors in the RPD decision, it does not appear necessary to me to admit this new evidence. [20] This new evidence can be submitted, if necessary, before the RPD, which will have to assess the probative value at the time of the re-determination of the matter. [21] I would, however, like to mention the following regarding this new evidence. [22] Subsection 110(4) of the IRPA sets out that the person who is the subject of the appeal may present to the RAD 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. [23] Subparagraph 3(g)(iii) of the Refugee Appeal Division Rules also requires an appellant to include in his memorandum full and detailed submissions regarding how any documentary evidence meets the requirements of subsection 110(4) of the Act and how it relates to him. [24] I initially note that the appellant did not meet the requirements of subparagraph 3(g)(iii) of the Rules in that he did not make full and detailed submissions regarding how this evidence meets the requirements of subsection 110(4) of the Act. The submissions with respect to the new evidence are on page 13 of the appellant's record, and are brief and not detailed, particularly regarding their source in the case of the emails, and regarding the reasons they were not submitted to the RPD in the case of document P-XIV, which predates the decision rejecting the claim for refugee protection. [25] Because of their non-compliance with subparagraph 3(g)(iii) of the Rules, I cannot, in any event, accept these documents into evidence before the RAD. DECISION ON WHETHER TO HOLD A HEARING BEFORE THE RAD [26] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence adduced in the appeal is admissible and meets the following three criteria: 1) it raises a serious issue with respect to the credibility of the person; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [27] Since the prerequisite of this provision was not met in this case, as no new evidence was accepted in the context of this appeal, I conclude that there is no cause to hold a hearing in this case. THE RAD'S ROLE [28] 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 does not specify in his memorandum what the standard of review or the role of the RAD should be, although he mentions that the RPD [translation] "committed a palpable error" in its decision. [29] The Federal Court, which has the authority to review RAD decisions, has rendered a few decisions to date about the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [30] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada ruled on this matter. [31] 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. [32] The Court adds the following at paragraph 33 of Alvarez and paragraph 34 of Eng: [33] 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. [33] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examined 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.... [34] 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.... [35] 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". [36] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [37] In line with the previous Huruglica, Eng and Alvarez decisions, the Court first finds in that case that the RAD erred in applying the reasonableness standard instead of conducting an independent assessment of the claim for refugee protection (paragraph 12). [38] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions concerning the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically 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). [39] Relying on the conclusions in Parizeau in terms of the standard of review that an appeal 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 by it (paragraphs 39, 40 and 46). [40] The Honourable Justice Roy also indicates that he could not find any indicators that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42) and writes 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).... [41] 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 analyzed the above-mentioned cases, 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). [42] Justice Martineau writes the following in paragraph 46 of Alyafi: [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. [43] Consequently, I am of the opinion that the RAD should 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, and particularly when no new evidence is presented before the RAD and no hearing is being held, as in this case. [44] In this case, I first find that [translation] "problems" II and III raised by the appellant are not relevant since the RPD did not take them into consideration in its assessment. [45] Then, [translation] "problems" I, IV, and V overlap as they raise the reason for the dismissal alleged by the appellant. I am of the opinion that the issue of whether or not there is a nexus between the persecution and the Convention grounds is a question of mixed fact and law. [Translation] "Problem" VI, regarding the interpretation of the objective documentary evidence on the situation of political opponents in Russia, is, in my opinion, a question of fact. Whatever the case, I will apply the standard of palpable and overriding error in these matters. [46] 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. [47] In paragraph 91 of Parizeau, 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 [48] The issue in this case is whether the RPD erred in its determination as to the reasons for the arrests and the mistreatment to which the appellant was allegedly subjected. [49] In my opinion, the answer to this question is yes, for the following reasons. [50] First, it appears that there is a contradiction in this respect in the RPD's reasons. The RPD writes, on the one hand, in paragraph 28 of its reasons, that [translation] "his explanation as to why he was vulnerable to police because of his physical appearance is not any more credible," and writes, on the other hand, below in paragraph 34, that [translation] "by his own admission, he states that he was targeted because of his build much more than for his political ideas." [51] The RPD seems to believe that the appellant was arrested at the time of the protests, but it is still unclear to me what it considered were the reasons for these arrests. [52] There also appears to be a contradiction in the RPD's reasons regarding its assessment of the appellant's credibility as to his participation in the protest in December 2012 in Moscow. On the one hand, the RPD writes in paragraph 26 of its reasons that, [translation] "From this documentary evidence, the panel accepts that the claimant took part in three protests between September and October 2012 and the last one in December 2012," while on the other hand, in paragraph 28, that [translation] "The claimant did not establish for the panel that he protested in Moscow on December XXXX [sic], 2012." [53] Whatever the case, I find that the RPD erred when it concluded that the evidence did not demonstrate that the appellant's arrests at the time of these demonstrations and the mistreatment that followed were not for political reasons, but instead were because of the appellant's physical appearance. It appears to me from the evidence presented that the primary reason for the appellant's protesting is clearly political, and that the police officers' intervention was above all for that same reason: to prevent the Russian government's opposition from protesting. The appellant explained that if he had been targeted by police at these demonstrations, it was probably because of his physical stature. But the primary reason for the arrests, in my view, is political. [54] I find that this error means that the operative part of the RPD's decision cannot hold water. In my opinion, this error also taints all the RPD's other findings, namely as to the reason for the appellant's dismissal, which happened immediately after his final arrest in Moscow, and which, according to his testimony, was because of the political position he had taken, as his employer had allegedly informed him. [55] On an unrelated note, I am also of the opinion that the RPD misinterpreted the documentary evidence regarding the treatment of political opponents by Russian authorities. The RPD concluded that only opponents with a high-ranking position in the opposition are targeted. For instance, on page 5 of the document cited by the RPD in its reasons, that is, Country Reports of the U.S. Department of State,6 it reads, "There continue to be attacks on political and human rights activists, critics of government policies, and person whom the government considered supportive of the opposition," without there being any mention that only the leaders of the opposition are targeted. In my opinion, this again is an error that vitiates the operative part of the RPD's decision. [56] Having assessed all the evidence presented and taken into account the RPD's reasons and the appellant's submissions, I find that the RPD decision is erroneous and that the RAD's intervention is warranted. REMEDY [57] I conclude that the RPD's decision is erroneous in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that should have been made without hearing the evidence that was presented to the RPD. [58] Under subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [59] The appeal is allowed. Normand Leduc Normand Leduc March 17, 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. 6 National Documentation Package on Russia, dated December 21, 2012, Tab 2.1, Country Reports on Human Rights Practices for 2011. United States Department of State. Bureau of Democracy, Human rights and Labor. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB3-02300 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB3-02300 12