TB3-08597

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 : TB3-08597 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 11, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal John O. Grant 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 Kosovo, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he was targeted in Kosovo by a criminal organization known as K-SHIK, which is comprised of former members of the Kosovo Liberation Army (KLA). These individuals consider him an enemy because he did not fight with the KLA against the Serbs, and they demanded money from him. He and his family suffered threats and physical violence, and the police did not help him, as there are strong ties between K-SHIK and the government. He fled to Canada, where he claimed refugee status in June of 2013. [4] The Appellant's application for refugee protection was heard on August 15, 2013. By a decision of November 8, 2013, the RPD rejected the claim, finding that the Appellant had not rebutted the presumption of state protection in Kosovo. [5] The Appellant submits that the RPD erred in its interpretation of state protection and further erred in ignoring evidence that was before the panel. ANALYSIS Standard of Review [6] The Appellant submits that the RPD erred in its assessment of evidence, and this raises questions of fact. The Appellant's argument that the RPD failed to apply the appropriate test for state protection raises a question of law. [7] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [8] The Appellant makes no submissions to the RAD on the appropriate standard of review. [9] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [10] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:3 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [11] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.4 An appeal to RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [12] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference is owed, as the RPD will not have considered this evidence. [13] The nature of the question in issue: In this appeal, some questions in issue are ones of fact, which have generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.5 Questions of law, one of which is also raised in this appeal, have in general been reviewed on a correctness standard in the appellate court context.6 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.7 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [14] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [15] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.8 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [16] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [17] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [18] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [19] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.12 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should show deference to the RPD on findings of fact and particularly in respect to credibility,13 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [20] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.14 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [21] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. Some questions in issue here are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.15 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [22] For these reasons, the RAD concludes that, in considering questions of fact in this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.16 [23] The appropriate standard of review for issues of fact raised in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.17 [24] The RAD owes no deference to the RPD's decision, however, on questions of law. 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.18 A correctness standard on questions of law ensures universality in the application of the law.19 [25] The appropriate standard of review for the question of law raised in this appeal is one of correctness. The RAD will not show deference to the RPD's reasoning process on this issue, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.20 The RPD's Findings [26] The Appellant argues that the RPD made various errors in concluding that state protection is available to him in Kosovo. [27] Burden of Proof: The Appellant submits to the RAD that his burden of proof in rebutting the presumption of state protection is proportional to the level of democracy in that state.21 He points to evidence that there is widespread corruption in Kosovo and that there have been electoral irregularities. As the level of democracy in Kosovo is, in his submission, dubious at best, the RPD erred by failing to discuss and apply a lower burden. [28] In fact, the RPD considered this very argument, made by counsel to the RPD. The panel then noted evidence of electoral problems in some areas, but also that elections met many international standards. When a coalition government elected a president, the courts found that this process violated the constitution and nullified the vote, demonstrating that Kosovo has mechanisms to address electoral irregularities. [29] The Appellant may disagree with the RPD's conclusion, but the reasons indicate that the panel considered the level of democracy. It clearly did not agree that Kosovo's democracy is "dubious at best," as the Appellant argued to the RPD and raises again before the RAD. The RPD considered and cited evidence that there is corruption and that there have been some electoral difficulties, but disagreed with the Appellant's characterization of the level of democracy in Kosovo. It observed that elections met many international standards and that the courts have intervened where there were irregularities. [30] The RAD notes that other evidence in the RPD's record supports such a conclusion on the level of democracy in Kosovo: the government took steps to prosecute and punish officials who committed abuses,22 citizens practiced their right to change government through free and fair elections,23 domestic and international human rights groups operate without government restrictions,24 EULEX (European Union) police monitor, mentor, and advise Kosovo police and even have operational responsibilities and conduct policing operations,25 and the performance of the Constitutional Court has been strong.26 While the same evidence sets out various concerns about the health of democracy in Kosovo, the RAD finds that the RPD's conclusion is supported by the evidence, and it was not unreasonable for the panel to reject the Appellant's assertion that democracy in his country is dubious. The RPD's conclusion on the level of democracy in Kosovo, and therefore the burden of proof on the Appellant, falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [31] Ignoring evidence: The Appellant argues that the RPD ignored the most relevant of the documents, which contains information given by a German police officer who helped train police in Kosovo. That officer claims that Kosovo's institutions are corrupt and that little progress has been made in transforming the police and other institutions that might provide protection. The Appellant submits to the RAD that the RPD erred in ignoring this evidence. [32] There was no requirement for the RPD to refer to each piece of evidence that was before it, and the failure to mention a specific document does not give rise to the conclusion that the panel has failed to take it into account.27 The RPD is presumed to have considered all of the evidence.28 However, as this document appears to contradict the conclusion reached by the RPD, the panel erred in failing to make specific reference to it. [33] While the RPD's reasons in respect to this document are inadequate, they can be supplemented, and the RAD has therefore reviewed the document. It is an article from Spiegel Online International, entitled "'We Have Achieved Almost Nothing': An Insider's View of EU Efforts in Kosovo." The article is attributed to an anonymous German police officer who served in Kosovo and who believes that "none of those responsible for the EULEX mission is telling Brussels the truth. They just send sugar-coated reports from Kosovo..... Perhaps they have to do so to keep their jobs, so that they can continue working in foreign missions."29 [34] The RAD finds that this article has little probative value and its reliability is marginal. Its author is not identified; the article lacks specificity in terms of what information in particular is being "sugar-coated," and it does not reveal an evidentiary reference or basis for its opinions on corruption. The document seems more based in opinion than fact, with comments such as, "It's my impression that corruption is quite high among Kosovar police officers," and, in respect to new shopping centres and gas stations, "It isn't too much of a leap of faith to conclude that their main purpose is to launder money." Given the choice between EULEX reports, cited in the objective evidence, and the contrary opinion of an anonymous author, the RAD prefers the EULEX reports and the evidence based upon them. [35] While the RPD erred in ignoring this document in its reasons, it was not unreasonable for the document to be given little or no weight. [36] State efforts at providing protection: The RPD's reasons make repeated reference to the "serious efforts" of the Kosovar authorities to provide protection.30 The RPD set out its application of the legal test for state protection as follows (emphasis added): While laws are not always implemented effectively, the evidence demonstrates the government of Kosovo is making efforts to address crime and corruption. I acknowledge that state protection may not be unfailingly successful. However, it is sufficient that the state makes serious efforts to protect its citizens. On the basis of the totality of the documentation, in view of the specific action taken by the government, I find that such a presumption is applicable to Kosovo. [37] In the RAD's view, it is not sufficient that the state makes serious efforts to protect its citizens. It is an error of law for the RPD to equate "serious efforts" with adequate state protection. It is not enough for a state to be willing to protect its citizens and to make efforts in this regard. In order for state protection to be present, the efforts made must adequately protect citizens in practice. The Federal Court has stated in various cases that it is an error for the RPD to find that state protection exists on the basis of government efforts to provide such protection, without assessing whether those efforts will result in adequate protection.31 [38] The RAD finds that the RPD erred in law by considering the serious efforts of the state as sufficient to establish the existence of adequate state protection. [39] As set out above in the discussion of the appropriate standard of review, the purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process by the RAD, one which leads to finality. The RAD has broad powers-such as to accept new evidence and to hold a hearing-and also a range of remedies at its disposal, including confirmation of the RPD's decision, confirmation on other grounds, substitution of its own determination, and referral of the matter back to the RPD. [40] Despite the RPD's error, the RAD is able to make a final determination of this appeal on the basis of the evidence in the record. While the RAD will defer to the RPD on questions of fact, including credibility, the RPD did not challenge the Appellant's credibility, and, as such, credibility is not at issue in this appeal. In the RAD's view, when the proper test for state protection is applied to the evidence in the record, it leads to a conclusion that adequate state protection exists in Kosovo for the Appellant. [41] An analysis of state protection must consider not only whether the state is willing to provide protection and has made serious efforts to do so, but also whether, in practice, those efforts result in adequate protection for the Appellant.32 [42] The RPD cited objective evidence of the efforts made by the Kosovo government to provide protection to its citizens. There was also evidence before the RPD that those efforts have had concrete results. The government punished officials who committed abuses;33 the independent Police Inspectorate referred hundreds of complaints against police as criminal cases;34 an effective mechanism is in place for disciplining judges and prosecutors;35 local and EULEX officials have conducted multiple successful prosecutions in cases of corruption and organized crime;36 the European Commission has noted that progress has been made in combating corruption;37 and between 1999 and 2008, almost 500 police officers were fired for abuses of professional standards.38 [43] While the Appellant claims that the authorities will not act against elements of the former KLA, objective evidence suggests otherwise: a former KLA commander, now a Member of the Kosovo Assembly, is being prosecuted for war crimes,39 and the government has cooperated with a special EULEX task force formed in 2011 to investigate alleged abuses committed by KLA members in 1999 and 2000.40 As noted by the RPD, objective evidence presented by the Appellant reports that prosecutors are preparing an indictment against a former SHIK assassin.41 [44] Having considered the objective evidence, the RAD finds that it does not rebut the presumption of adequate state protection in Kosovo. Does the Appellant's own evidence, its credibility unchallenged by the RPD, rebut that presumption? [45] After the Appellant was attacked in XXXX of 2013, he notified police, who sent a unit to XXXX XXXX to interview him. An officer told him the police would investigate and keep him informed of any new developments. He heard nothing, and he tried to follow up, with no success. He decided to pay the criminals the money they demanded, and they implied to him that they are affiliated with the police. When he refused to pay more money, his car was shot at, and the police were notified. An officer arrived an hour later and called in a forensic investigator, who arrived after another half hour. They took a report, but the Appellant heard nothing further from them. When the Appellant subsequently approached a police officer for help, the officer declined to assist, citing a fear for his own family's safety. The Appellant left the country less than a week after the shooting incident. [46] Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of state inability or refusal to provide protection.42 Although the Appellant was not satisfied with the assistance he received from local police, he did nothing to complain to a higher level of police or to another agency. He did not bring his concern to the Police Inspectorate, the Ombudsman, or the legal aid commission.43 Nor did he seek assistance from EULEX officials, even though they monitor and mentor the Kosovo police, have operational responsibilities, and conduct policing operations.44 [47] Neither the objective evidence nor the Appellant's own evidence is a clear and convincing rebuttal of the presumption of state protection. The RAD finds that adequate state protection is available to the Appellant in Kosovo, and, as such, he is not entitled to Canada's surrogate protection. CONCLUSION [48] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld February 11, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton, para. 43. 4 IRPA, Sections 96 and 97. 5 Khosa, para. 89. 6 Ibid., para. 90; also Koky v. M.C.I., 2011 FC 1407, paras. 18-22. 7 Dunsmuir, paras. 58-61. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Newton, para. 80. 15 Khosa, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 18 Dunsmuir, para. 50. 19 Khosa, para. 90. 20 Dunsmuir, para. 50. 21 Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005; 2005 FC 193. 22 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Kosovo, (May 2013), Item 2.1, p. 1. 23 Ibid., p. 19. 24 Ibid., p. 22. 25 Ibid., Item 2.1, p. 6. 26 Ibid., Item 2.5, p. 3. 27 Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73, para. 10. 28 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 29 Appellant's Record, pp. 27-28. 30 RPD's Reasons, paras. 6, 15, and 19. 31 Koky v. M.C.I., 2011 FC 1407, paras. 60-71. 32 Koky, para. 71. 33 RPD's Record, NDP, Item 2.1, p. 1; 34 Ibid., Item 2.1, p. 6. 35 Ibid., Item 2.1, p. 9. 36 Ibid., Item 2.3, pp. 15-17. 37 Ibid., Item 10.2, p. 4. 38 Ibid., p. 7. 39 Ibid., Item 2.3, p. 14. 40 Ibid., Item 2.1, p. 2. 41 RPD's Record, p. 135, Kosovo's Mafia: Assassinations and Intimidation. 42 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). 43 RPD's Record, NDP, Item 10.2, pp. 5-6. 44 Ibid., Item 2.1, p. 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08597