TB4-04518

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 : TB4-04518 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 August 22, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Bangladesh,1 appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and refer the matter to the RPD for redetermination by a differently-constituted panel. [3] The Appellant is not relying on any evidence as per Section 110(4) of the Immigration and Refugee Protection Act ("IRPA" or the "Act").2 The Appellant is not requesting a hearing pursuant to Section 110(6) of the IRPA. The Minister is not intervening in the appeal. DETERMINATION [4] Pursuant to Section 111(1)(a) of the 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. BACKGROUND [5] The Appellant alleged that he is at risk of harm upon returning to Bangladesh due to his political opinion. He is a member of the Bangladesh National Party (BNP). He first became involved with the BNP in XXXX 1995 when he joined the Jubo Dal, the youth wing of the BNP. As a result of his membership of the BNP, members of the Awami League (AL) threatened him and warned him that he would be killed if he continued his activities with the BNP. [6] The Appellant alleged that in 1997, he was beaten and left for dead at the side of the road. He was taken to hospital and stayed there for six days. Thereafter, the Appellant curtailed his activities with the BNP and left Bangladesh in 1998 to work in XXXX. He returned to Bangladesh periodically. He alleged that the AL goons would learn of his return and target him. [7] In 2001 the Appellant returned to Bangladesh and continued his work with the BNP. In XXXX2006, he was kidnapped by the AL goons, and was assaulted and threatened with death if he did not stop his activities with the BNP. As a result of these problems, the Appellant went back to XXXX; however, he returned to Bangladesh in early 2007 hoping that it would be safe to live in Bangladesh. The Appellant alleged that his problems continued; therefore, he left Bangladesh and went back to XXXXagain. [8] In-between 2007 and 2012, the Appellant went back and forth between XXXXand Bangladesh. The Appellant alleged that every time he returned to Bangladesh, he found the AL goons to be interested in him. [9] The last time the Appellant was in Bangladesh, the AL goons started to look for him. The Appellant went into hiding. While in hiding, the Appellant learned that his cousin, a local BNP activist, had been abducted by the AL goons, and beaten badly; the Appellant's cousin died from his injuries a few days later. Fearing the same fate, the Appellant decided to leave Bangladesh for his own safety. In or around the end of XXXX2012, the Appellant left Bangladesh and went to XXXX. The Appellant stayed in XXXXas long as he could; however, due to no one sponsoring him for work, this time the Appellant was unable to extend his stay in XXXX. Due to his fear of harm upon return to Bangladesh, the Appellant decided to come to Canada. [10] On XXXX XXXX, 2013, the Appellant left XXXXand made his way to Canada to make a refugee claim. He filed his claim for refugee protection at the airport. [11] The Appellant's application for refugee protection was heard on January 31, 2014. In the decision of April 15, 2014, the RPD rejected his refugee claim. [12] The RPD found the Appellant to be generally lacking in credibility and found this lack of credibility to extend to other parts of his evidence. The RPD found that the Appellant has not been a credible witness. The RPD found that the Appellant has not provided trustworthy or reliable evidence to establish, on a balance of probabilities, that he has been politically active or that he is of any interest to the AL as alleged. ANALYSIS Standard of Intervention [13] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of intervention be applied by the RAD. The RAD has considered the Appellant's submissions regarding Standard of Intervention.3 [14] Findings of fact and credibility made by the RPD warrant deference by the RAD. The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. The RAD must, conversely, proceed without a hearing except in certain circumstances.4 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.5 The RPD has an opportunity to see and question the refugee claimant, while the RAD is infrequently in a position to do so. An appeal body normally should not substitute its own reasoning for that of the first-level tribunal which had the benefit of hearing oral testimony.6 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [15] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."7 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.8 A failure to show deference to the RPD on questions of fact would have a similar effect on the first-level refugee hearing, and this is not consistent with the purpose of IRPA or its specific provisions in respect to appeals. 9 [16] An appeal to the RAD is not a de novo hearing of the refugee claim. IRPA restricts the RAD's ability to accept new evidence and to order an oral hearing. This is indicative of Parliament's desire that the RAD not conduct de novo proceedings; in fact, a de novo proceeding where the appellant is restricted in presenting new evidence and in obtaining an oral hearing would violate principles of procedural fairness and natural justice. [17] The RAD is not engaged in a judicial review process. It has a true appellate function, and is responsible for ensuring the integrity and consistency of RPD proceedings. It must perform its own assessment of all the evidence, including that which was before the RPD.10 However, when analyzing findings of fact, and of mixed fact and law, the RAD must show deference; it will not intervene unless the RPD mis-assessed the facts to the point of making a "palpable and overriding error."11 [18] What is a palpable and overriding error? Although this standard appears in a number of places in Canadian jurisprudence,12 it does not appear to be defined there. In fact, the courts have often used "palpable and overriding" interchangeably with the reasonableness standard of review.13 [19] The "palpable and overriding" standard clearly requires a high degree of deference.14 As the RAD understands it, a palpable error is one which is readily perceived or obvious;15 "palpable" stands opposite to "obscure." In order to be overriding, an error must be foremost and take precedence; it must prevail over and render ineffective that which it overrides.16 The term "overriding" has a relative aspect; if the error is to be overriding, something else must be overridden. In the RAD's view, this suggests that an overriding error by the RPD is one which has an adverse effect on other parts of the decision, or on its outcome; the error's harm extends beyond itself. 17 [20] For these reasons, the RAD will show a high level of deference to the RPD's findings of fact, including credibility, and of mixed fact and law. 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.18 [21] The RAD will not show deference to the RPD, however, on questions of law. 19 Here, the lower and appellate tribunals have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.20 A correctness standard on questions of law ensures universality in the application of the law.21 [22] For these reasons, the RAD will assess questions of law on a standard of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.22 Merits of the Appeal The Appellant's Pleadings23 [23] The Appellant submits that the issue arising from the refusal of the RPD is whether or not the RPD's credibility findings are sustainable in light of the evidence that was before the RPD.24 The RPD's Findings25 [24] The RPD found the Appellant to be generally lacking in credibility and found this lack of credibility to extend to other parts of his testimony. The RPD found that the Appellant has not been a credible witness. The RPD found that the Appellant has not provided trustworthy or reliable evidence to establish, on a balance of probabilities, that he has been politically active or that he is of any interest to the AL as alleged.26 [25] Filing the claim for refugee protection after arrival at the airport:27 The RPD noted that the Appellant attempted to gain entry to Canada as a visitor. The Appellant alleged that he came to Canada because he was afraid. At the Port of Entry, the Appellant was asked if he was going to make a refugee claim, the Appellant stated that he was not. At the hearing, the RPD asked the Appellant why he did not make the claim at that time; the Appellant replied that he did not understand the meaning of refugee. He testified that he did not know that refugee and asylum meant the same thing. The Appellant then added that he was not aware that he could claim at the airport. The RPD did not find the Appellant's explanation to be credible. [26] The RPD noted that refugee is a common word and principle that is known worldwide. The Appellant is a well-traveled man and had allegedly been politically active for many years in Bangladesh as well as abroad. The Appellant alleged that he came to Canada to save his life. Considering all this, the RPD found the Appellant's explanation not reasonable for not making his refugee claim at the earliest possible opportunity. The RPD found that this distracted from his credibility. The RAD finds the RPD did not err in making this finding. The RAD finds the RPD considered all of the evidence, and it found the Appellant's explanation not reasonable for not making his refugee claim at the earliest possible opportunity. The Appellant submits that the RPD misconstrued his evidence in regard to the Appellant's explanation that at first he did not understand what the officer was asking him at the Port of Entry.28 In this respect, given the RPD's reasons provided above, the RAD finds the RPD did not err in finding the Appellant's explanation not reasonable for not making his refugee claim at the earliest possible opportunity.. [27] The real test of the truth of a story of a witness is that it be in harmony with the preponderance of probabilities, which a practical and informed person would readily recognize as reasonable in that place and in those conditions.29 Although the delay in this case was minimal, considering the evidence, including the testimony of the Appellant, and the RPD's reasons, the RAD finds the RPD did not err in finding the Appellant's explanation not reasonable for not making the claim at the Port of entry upon arrival. [28] The Appellant's residency during 2001-2006:30 The Appellant alleged at the RPD hearing that he became involved with the BNP in 1995, a short time after he completed his education. He was first a member, and he then became the XXXX. Later, in 1997, as XXXX XXXX, he XXXX XXXX XXXX XXXX XXXX XXXX of the party. He would sometimes be a XXXX XXXX XXXX XXXX. He alleged that at one meeting, he spoke against the AL and criticized the government. As a result of this, the AL came to his home and threatened him. The Appellant continued to work for the BNP and became more involved; he went to the villages and generated support for the BNP. [29] The Appellant alleged that in 1997, he was attacked by the AL goons, beaten with bamboo sticks, and left for dead by the side of the road. Thereafter, the Appellant became reluctant to be politically involved and decided to move to the United Arab Emirates (UAE) where he remained working until 2001. The Appellant alleged at the RPD hearing that he returned to Bangladesh in 2001 and stayed in Bangladesh until 2006 and then went back to the UAE again. [30] The Appellant alleged that in 2006, he was abducted again by the AL goons who beat him again with bamboo sticks; they threatened him with death until he pay them 10 lacs taka within seven days. The Appellant alleged that it was pointless to go to the police, as the AL had influence with the police. The Appellant decided to obtain a work permit and went to XXXXagain. [31] Between 2007 and 2012, he returned to Bangladesh several times but realized that the AL continued to have interest in him. In 2012 he returned to Bangladesh; however, he realized that the AL had resumed their efforts to locate him. The Appellant went into hiding, and then went back to XXXXwithin weeks of arrival in Bangladesh in XXXX2012. [32] Through his testimony, the Appellant established that he resided in Bangladesh between 2001 and 2006. The RPD pointed out to him that his immigration documents show that he lived and worked in XXXXfrom XXXX2003 to XXXX2013. The Appellant arrived in Canada on XXXX XXXX, 2013. The Appellant was asked to explain the discrepancy between his testimony at the RPD hearing and information in his immigration documents. The Appellant testified that, at the time he made his claim, he did not recall the dates; he added that he was hospitalized for two days, and it was thereafter that he made his claim for refugee protection. [33] The RPD did not find the Appellant's explanation reasonable. The RPD stated that the Appellant had testified that he was beaten with bamboo sticks in XXXX2006 and threatened with bamboo sticks in Bangladesh. The RPD found this to be a significant event that is material to the claim. The RPD did not find it reasonable that he would not remember that he was in Bangladesh during this period. The RPD stated, moreover, that the Appellant alleged that he had been living in Bangladesh from 2001-2006, a period of five years, not an insignificant period of time. Based on these reasons, the RPD found that the Appellant's allegations that he lived in Bangladesh between 2001 and 2006 not credible. The RAD notes that the Appellant was hospitalized for two days prior to making his claim for refugee protection; however, based on the evidence in this case, including the Appellant's testimony and the RPD's reasons, the RAD finds the RPD did not err in finding the above-mentioned omission of residency for a period of five years to be significant, especially considering that during this period the Appellant was beaten and threatened with death which is a significant event that is material to the claim. [34] The Appellant's involvement with the BNP while residing in the UAE:31 The Appellant alleged that while in XXXXhe continued to work as a XXXXof the BNP. He alleged that he was in constant contact with the BNP and giving instructions to local members on the phone. The RPD pointed to the Appellant that his Basis of Claim (BoC) narrative stated that he was reluctant to be politically active because his life had been threatened so he decided to start a new life for himself. The Appellant testified that he did not think that he had to mention this in his narrative. The RPD did not find the Appellant's explanation for the discrepancy between his testimony and his written documentation (BoC narrative) reasonable. [35] The RPD states that, at the outset of the hearing, the Appellant affirmed that his BoC was complete, true and correct. The RPD states that, if the Appellant was so vital to the BNP that he provided advice and assistance while in another country, it would have been reasonable for him to mention this in his BoC narrative. The RPD does not find it reasonable for him to have instead mentioned that he was reluctant to continue politics and wanted to start a new life for himself. The RPD found it reasonable to expect him to have highlighted that he continued to be in politics from afar despite the threats he received from the AL. In his Memorandum, the Appellant submits that he never stated that he was reluctant to carry out his political activities in XXXX. The Appellant submit in his Appeal Memorandum that he "...in fact stated that he was reluctant to be involved in political activities in Bangladesh."32 [36] The RAD reviewed the entire RPD record, including the RPD proceedings; the RAD finds the Appellant did not at any time or at any place state that he was reluctant to be involved in political activities specifically or only (emphasis mine) while in Bangladesh. The Appellant has clearly stated in his BoC narrative that he was reluctant to be politically active as he had been.33 During his travels back and forth between Bangladesh and XXXX, his many mentions of the AL are in regard to the AL's continued interest in the Appellant.34 The RAD finds the Appellant's evidence does not establish that he was engaged in any political activities while residing in XXXX. [37] The RAD finds the RPD did not err in finding that the above omission from the BoC narrative is significant and material to the claim. Given the evidence adduced in this case and the RPD's reasons provided above, the RAD finds the RPD did not err in finding the Appellant to be not credible in his allegations that he was politically active while living abroad. [38] Documents submitted:35 The Appellant submitted several documents in support of his claim. The RPD gave those documents no weight because the RPD found the Appellant to be generally not a credible witness, and due to the discrepancy in the Appellant's evidence and also due the availability of fraudulent documents in Bangladesh. [39] The RPD makes a note of the letter from the BNP president, Md. XXXX XXXX XXXXthe letter locates the Appellant in Bangladesh while the Appellant was residing in XXXX. Due to the discrepancy, the RPD gave the letter no weight. Although the RPD noted the availability of fraudulent documents in Bangladesh,36 the RAD finds the RPD gave the letter no weight not solely on this basis. The RPD noted that, even without disbelieving every part of a claimant's testimony, the claimant may be found to be so lacking in credibility that the panel concludes there is no credible evidence relevant to his claim. The RPD found the Appellant's general lack of credibility extended to other relevant parts of the Appellant's evidence. In consideration of the totality of the evidence adduced in this case, the RAD finds the RPD did not err in giving the above letter no weight. [40] Summary: The RPD found the Appellant to be generally not a credible witness. The RPD found that the Appellant has not provided trustworthy or reliable evidence to establish, on a balance of probabilities, that he has been politically active or that he is of any interest to the AL as alleged. [41] Based on all of the foregoing, the RAD finds the RPD's determination that the Appellant has not established that there is a serious possibility of persecution on a Convention ground, nor, on a balance of probabilities, that he would be subjected to a danger of torture, or to a risk to life or to a risk of cruel and unusual treatment or punishment upon return to Bangladesh was a conclusion grounded in the facts in the case and the legislation. [42] The RAD finds the RPD did not err in rejecting the Appellant's claim. DISPOSITION [43] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [44] This appeal is dismissed. (signed) "S.S. Kular" S.S. Kular August 22, 2014 Date 1 Exhibit RPD-1, Exhibit 1. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 The "Appellant's Additional Submissions" received on August 18, 2014 in response to the letter by the Refugee Appeal Division, dated August 7, 2014. 4 IRPA, Sections 110(3) and 110(6). 5 M.C.I. v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 6 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 39. 7 IRPA, Section 3(2)(e). 8 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 9 Iyamuremye, para 1. 10 Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711, at para.34. 11 Eng, para. 29. 12 For example, Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at p. 808; Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12, at para. 42; and Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 57. 13 Eng, para. 30. 14 Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, para. 10. 15 The Canadian Oxford Dictionary, 2001, p. 1049 16 Ibid., p. 1037; Black's Law Dictionary, 7th edition, p. 1129. 17 In Parizeau, the Quebec Court of Appeal held that a tribunal can intervene where errors of fact "influence the outcome of the dispute" (Parizeau c. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506, para. 90.) 18 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 19 Iyamuremye, para. 2. 20 Dunsmuir, para. 50. 21 Khosa, para. 90. 22 Dunsmuir, para. 50. 23 Exhibit P-2, Appellant's Record, item 5, Memorandum of Argument, pp. 115-122. 24 Exhibit P-2, Appellant's Record, item 5, Memorandum of Argument, para. 2. 25 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, pp. 1-9. 26 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, para. 25. 27 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, paras. 13-14. 28 Exhibit P-2, Appellant's Record, item 5, Memorandum of Argument, para. 24. 29 Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 357, per O'Halloran, J.A. 30 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, paras. 15-20. 31 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, paras. 21-22. 32 Exhibit P-2, Appellant's Record, item 5, Memorandum of Argument, para. 24. 33 Exhibit RPD-1, Exhibit 2, the Appellant's BoC Narrative, para. 4. 34 Exhibit RPD-1, Exhibit 2, the Appellant's BoC Narrative, paras. 4-11. 35 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, paras. 23-24. 36 Exhibit P-2, Appellant's Record, item 1, Decision of the Refugee Protection Division, para. 24. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-04518