MB3-02905

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 : MB3-02905 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 April 13, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Eric Taillefer Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Federal Court ordered the Refugee Appeal Division (RAD) to reconsider the appeal filed by XXXX XXXX. [2] She had appealed against the decision of the Refugee Protection Division (RPD), rendered on July 31, 2013, to reject her refugee protection claim. On November 5, 2013, the RAD confirmed the determination of the RPD, since it was of the view that [translation] "overall, the RPD's decision on the appellant's credibility falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law."1 [3] Justice Roy ordered a reconsideration of the appeal since he was of the view that "the applicant did not have the appeal to which she is entitled under the Act since the RAD chose to apply a reasonableness standard of review corresponding to an application for judicial review."2 [4] In her memorandum, the appellant asks the Refugee Appeal Division (RAD) to allow the appeal, to set aside the RPD's determination, to grant her status as a "Convention refugee" and to make any order it considers necessary.3 [5] The appellant did not submit any new evidence in support of her appeal and she is not requesting that a hearing be held under subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). [6] On January 25, 2015, the appellant, through her counsel, submitted to the RAD an application for an extension of time in order to be authorized to provide additional submissions concerning the [translation] "standard of review" applicable to the RAD. Although she was authorized to file these additional submissions on or before February 13, 2015, the RAD did not receive any additional submissions. [7] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [8] Pursuant to subsection 111(1) of the 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" under section 97 of the IRPA. [9] The appeal is dismissed. BACKGROUND [10] The appellant is Kosovar and Serb. She alleges in the account attached to the Basis of Claim Form that she is a practising Catholic and a resident of XXXX, Kosovo, a region mainly composed of Muslims. She states that the women wear veils, either the niqab or the burqa. She alleges that she has a well-founded fear of persecution in Kosovo because she is suspected of being homosexual since she is [translation] "a single woman who is childless and my social circle consists of women."4 [11] As a result of rumours about her and of her religion, she was denied identity documents. She states that she was insulted, that rocks were thrown at her and that the windows of her residence had been shattered a few times. She also alleges that she was threatened, harassed and intimidated on a regular basis. [12] She had thought of leaving her country since 2005, but for financial reasons she was unable to do so before XXXX XXXX, 2013. [13] She passed through Italy, where her sister lives. She arrived in Canada on XXXX XXXX, 2013, and claimed refugee protection at a Citizenship and Immigration Canada inland office on February 27, 2013. Impugned decision [14] On July 31, 2013, the RPD rejected the refugee protection claim because it found that the appellant's behaviour was not consistent with the behaviour of a person who has reason to fear persecution. The RPD noted the following on the subject: - Her problems started in 2000, after the war. She made the decision to leave in 2005, but did not end up leaving until XXXX 2013. Although the RPD was sensitive to her arguments that she did not have enough money and that a family member was ill, it found that, in the refugee protection claimant's specific circumstances, her long delay in leaving undermined her credibility. - The RPD also took into account that, despite her alleged problems, the appellant did not try to relocate elsewhere in Kosovo or Serbia. - The RPD also noted that her sister lives in Italy and that she did not claim refugee protection in that country, even though Italy is a signatory to the Convention. All these factors taken cumulatively led the RPD to find that her behaviour was inconsistent with a well-founded fear of persecution. - In addition, taking into account paragraphs 51 to 55 of the UNHCR Handbook, the RPD found that the [translation] "incidents experienced are not serious human rights violations to the point of constituting persecution,"5 even if the alleged incidents are analyzed on a cumulative basis. The refugee protection claimant was able to find housing and to meet her needs since she worked until she left Kosovo. - The RPD took into account the refugee protection claimant's profile and personal characteristics to find that, in light of the documentary evidence, she failed to establish a serious possibility of persecution or that she would be personally subjected to one of the risks set out in section 97 of the IRPA. - Lastly, the RPD noted that she did not allege any risk with respect to Serbia. It therefore found that there is no risk in Serbia. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [15] The appellant's submissions can be summarized as follows: The RPD erred in finding that the problems that she would face if she were to return do not amount to persecution and that she did not display the behaviour of a person who fears persecution.6 THE RAD'S ROLE AND FUNCTIONS [16] In her memorandum, the appellant did not make any submission regarding the standard of review applicable when the RAD reviews an RPD decision, despite the fact that the counsel submitted an application for an extension of time to do so on January 25, 2015. [17] In 2014, the Federal Court ruled a number of times on the subject of the standard of intervention applicable to the RAD. It is faced with two significant lines of case law. [18] The first to rule on the matter was Justice Shore. Based on the reasoning of the Court of Appeal of Quebec in Parizeau v. Barreau du Québec,7 he states the following: [27] ... [T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] ... [As] a specialized (if not overspecialized) tribunal...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).8 [19] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. [20] Justice Roy, in examining Parliament's intention when the RAD was created, noted during the judicial review of the decision that my colleague rendered in the appellant's case, that appeals before the RAD are meant to be generous but that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."9 [21] He is of the view that "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)." He shares the view that the error must be "palpable and overriding" to "succeed on appeal." Justice Leblanc is of the same view.10 [22] The other line of case law, cited by Justice Phelan in Huruglica,11 proposes a different approach. Justice Phelan states that the "RAD is required to conduct a hybrid appeal." The RAD 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."12 [23] Concerning the deference that the RAD owes to findings of the RPD, Justice Phelan states that this may "justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [24] Despite these different approaches, the Federal Court recognizes the RAD's "expertise" on issues relating to refugees. According to the Federal Court, broad powers are conferred by the IRPA, "allowing the RAD to dispose of the merits of appeals."13 Decisions rendered to date indicate that "[t]he 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."14 [25] The statutory provisions establish precisely the allowable grounds for appeal15 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the determination, set it aside and substitute the determination that, in its opinion, should have been made, or refer the matter to the RPD, giving the directions that it considers appropriate.16 [26] An appeal before the RAD is not in the nature of a judicial review, 17 nor is it an opportunity for a [translation] "new proceeding." In order to conduct its own assessment of the evidence and form its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.18 [27] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of decisions before the RAD. In fact, it is stated that the RAD may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD.19 [28] In light of the Court's statements to date, I am of the opinion that the RAD, a specialized tribunal for refugee protection issues, must review all the evidence to determine whether the decision is well founded with respect to the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD has an advantage over the RAD. [29] Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, there are grounds for intervening by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [30] Regarding errors of law, Justice Shore states that "the RAD must be able to correct any error of law."20 MERITS OF THE APPEAL Did the RPD err in finding that the appellant's behaviour was inconsistent with a well-founded fear of persecution? [31] Assessing credibility is a complex process for which the RPD is better positioned because it has the advantage of seeing and hearing the refugee protection claimants or witnesses.21 In this case, the RAD will not have this opportunity because no new evidence was submitted to justify holding a hearing under subsection 110(6) of the IRPA. [32] The appellant argued that since the end of the war in Kosovo, the Muslims in XXXX have viewed her as a [translation] "homosexual" because she is single, childless and "her social circle consists of women." As a result of her religion and the rumours about her, she stated that she was harassed, threatened and insulted. These problems led her to decide to leave Kosovo in 2005. [33] In its decision, the RPD took into account that the claimant alleged that she had been persecuted on a number of Convention grounds since the year 2000. However, despite the alleged persecution, the refugee protection claimant made no attempt to relocate elsewhere, in particular to XXXX where her mother and other family members live. Taking into account her inaction with respect to trying to protect herself, the RPD found that the refugee protection claimant's behaviour was not the behaviour of a person who has a well-founded fear of persecution. [34] The Federal Court has acknowledged a number of times that the Immigration and Refugee Board of Canada can take into account the refugee protection claimant's behaviour in response to the alleged danger. On that subject, in Ramirez Perez v. M.C.I. 2011 FC 567, Justice Shore states that "it was open to the RPD to consider the applicant's conduct in response to the alleged dangerous events and to determine that, if he seriously feared persecution, he would have moved or changed jobs at the earliest opportunity." [35] On the basis of the Court case law, I find that the RPD was justified in taking into account this factor, which, it should be noted, was not considered in isolation. The RPD also took into account her failure to claim refugee protection in Italy, which is a signatory to the Convention and where her sister lives. The fact that the refugee protection claimant delayed leaving her country was also considered. [36] The Court considered these factors as likely to influence the credibility of a refugee protection claimant, when taken cumulatively and in context. [37] After taking into account the evidence on the record and on the basis of the case law, I am of the view that the appellant failed to establish that the RPD made a "palpable and overriding error" in assessing her credibility in light of her actions. Did the RPD err in finding that the alleged problems do not amount to persecution? [38] This question of determining whether the alleged facts and prospective risk amount to persecution is a question of mixed fact and law on which the RAD, a tribunal that specializes in refugee protection issues, is also entitled to rule. The courts have pointed to the difficulty of establishing the distinction between persecution and discrimination; however, it has been suggested that the potential harm must be serious or inflicted in a systematic way.22 [39] In Chan [1995] 3 S.C.R. 593, Justice La Forest states that "this Court endorsed an approach in which the concern of refugee law ought to be the denial of human dignity in any key way with the sustained or systemic denial of core human rights as the appropriate standard." The RPD did not take the cumulative factor into account [40] On the basis of the UNHCR Handbook23 and Mete v. Canada (Minister of Citizenship and Immigration), 2005 FC 840, the appellant argued that "it is an error of law for the RPD not to consider the cumulative nature of the conduct directed against a claimant...." [41] With respect, this argument is rejected. [42] The decision as a whole and more specifically paragraph 21 is unequivocal. The RPD took into account the cumulative nature of the discrimination. Nevertheless, it maintained that the appellant failed to establish that the discrimination to which she was allegedly subjected was serious and systematic to the point of constituting persecution. [43] The evidence on the record clearly shows that the RPD took into account the objective situation in Kosovo with regard to women24 and homosexuals.25 However, taking into account the appellant's profile and specific characteristics, the RPD found that the refugee protection claimant failed to establish a serious possibility of persecution on the alleged grounds. [44] I am of the view that the RPD's assessment of the appellant's situation took into account the documentary evidence on the situation of Catholics,26 homosexuals27 and women.28 [45] The RPD's findings took into account the criteria set out in the UNHCR Handbook, specifically paragraph 54, which states the following: Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. [46] Not all discriminatory acts amount to persecution. This could be so if the measures of discrimination lead to consequences of a substantially prejudicial nature or if there is a cumulative effect of discriminatory acts. [47] In this case, the RPD noted that the appellant went about her business. She was not prevented from earning her living or from having housing. Regarding her presumed sexual orientation, the RPD took into account the documentary evidence and the personal situation of the appellant, who is not a lesbian and who was not rejected by her family. [48] Taking into account the evidence on the record and the appellant's testimony, I find that it was not established that the RPD made "a palpable or overriding error" in finding that the refugee protection claimant failed to establish a serious possibility of persecution on one of the five Convention grounds. Failure to take into account the appellant's psychological condition [49] The appellant argued that the RPD failed to take into account her psychological condition. The panel's reasons do not refer to this subject.29 [50] The assessment of testimony and facts revealed by the evidence and the failure to take into account a piece of evidence constitute an assessment of the facts. The RPD is [translation] "presumed to have considered all of the evidence before it."30 It is not required to comment in its decision on each piece of evidence.31 [51] In this case, a review of the evidence shows that the RPD took into account, among other items, the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.32 The appellant failed to establish that the RPD made "a palpable or overriding error" by not commenting in the decision on her psychological condition. This omission in the decision is not an indication that the RPD failed to take this fact into consideration. Failure to ask the refugee protection claimant about the situation in Serbia [52] The appellant stated that [translation] "the panel did not ask questions about her fear with respect to the country. However, documentary evidence was submitted to that effect. The appellant and her counsel could not have predicted that this issue would concern the panel at the hearing." [53] The RAD notes that the evidence established that the appellant is Kosovar and Serb. She has the burden of establishing that she fears persecution in her countries of citizenship. In this case, the appellant does not allege any fear in Serbia. I am of the view that it was her responsibility to inform the RPD of her fear if she had one. In addition, on the basis of all the evidence, it appears that this factor is not determinative in the outcome of this appeal. The evidence shows that the appellant failed to establish a serious possibility of persecution on one of the five Convention grounds or that she is likely to be subjected to one of the risks set out in section 97 of the IRPA if she were to return to Kosovo. This finding alone is determinative. [54] After taking into account all the evidence, listening to the recording of the hearing and taking into consideration the appellant's arguments, I am of the view that the RPD rendered the correct decision. It is neither perverse nor capricious, and it is based on the evidence on the record. CONCLUSION [55] Therefore, the RAD confirms the determination of the RPD, namely, that XXXX XXXX is not a "Convention Refugee" or a "person in need of protection" under section 97 of the IRPA. [56] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 13, 2015 Date IRB translation Original language: French 1 Paragraph 44 of the Refugee Appeal Division decision. 2 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 3 Appellant's memorandum, page 98. 4 Account attached to the Basis of Claim Form, paragraph 24, Refugee Protection Division (RPD) record, page 136. 5 Paragraph 21 of the RPD decision, page 137 of the RPD record. 6 Appellant's memorandum, page 90. 7 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 8 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 9 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 10 Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 11 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 12 Idem. 13 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 14 Idem. 15 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 16 Subsection 111(1) of the IRPA. 17 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 18 RPD record, parties' memorandum or any [translation] "new admissible evidence". 19 Subsection 111(2) of the IRPA. 20 Eng and Alvarez. 21 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084, paragraph 17, Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, paragraph 20. 22 Ranjba v. Canada (Minister of Citizenship and Immigration) 2003 FC 637; Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (C.A.). 23 United Nations 1951 Convention Relating to the Status of Refugees, July 28, 1951, paras 51 to 55. 24 National Documentation Package on Kosovo, May 3, 2013, Tab 2.1; Kosovo. Country Reports on Human Rights Practices for 2012. United States. Department of State. April 19, 2013. 25 RPD record, pages 85 to 92, Exhibit D-7. 26 National Documentation Package (NDP) on Kosovo, May 3, 2013, Tab 2.7; Rapport de mission en République du Kosovo (31 octobre-9 novembre 2010) [report on the mission in the Republic of Kosovo (October 31-November 9, 2010)]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. Cour nationale du droit d'asile [National Court of Asylum]. March 2011 (pages 60 and 61). 27 NDP of October 31, 2013, Tab 2.6; Rapport de mission en République du Kosovo (31 octobre-9 novembre 2010) [report on the mission in the Republic of Kosovo (October 31-November 9, 2010)]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. Cour nationale du droit d'asile [National Court of Asylum]. March 2011 (pages 57 and 58). 28 NDP of October 31, 2013, Tab 5.3. Situation of single women in Pristina, including their ability to access employment, housing, and social services; whether Catholic Albanian women would face particular challenges accessing... Immigration and Refugee Board of Canada (IRB). April 8, 2013. 29 Appellant's memorandum, page 94. 30 K.L. v. Canada (Minister of Citizenship and Immigration), 2009 FC 95. 31 Singh v. Canada (Minister of Citizenship and Immigration), 2008 FC 408. 32 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, IRB, Ottawa, November 13, 1996. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB3-02905 14 RAD.25.02 (2014.09.11) Disponible en français