MB9-09089

RAD File No. / No de dossier de la SAR : MB9-09089 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision August 28, 2020 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Joseph-Alphonse Andre Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, a citizen of Haiti and a XXXX in her country, alleges that she fears for her life because she XXXX XXXX to representatives from opposing political parties. [2] The Refugee Protection Division (RPD) rejected the claim because the appellant's testimony was not credible on the main aspects of her refugee protection claim. [3] The appellant is appealing this decision and maintains that the panel acted in an arbitrary and biased manner by disclosing a medical certificate from another refugee protection claim without prior consent and contrary to the Refugee Protection Division Rules (RPD Rules). The appellant also argues that the findings regarding the lack of credibility are based on an implausibility and a microscopic examination of the evidence. [4] The appellant is requesting an oral hearing and has not filed new evidence in support of the appeal. She is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination, allow her refugee protection claim or refer the matter to the RPD for re-determination by a differently constituted panel. [5] The RAD cannot hold an oral hearing as the conditions of subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) have not been met; no new evidence has been presented in this case. [6] After independently reviewing the evidence and considering all of the arguments submitted and the further submissions sent on August 23, 2020,1 I conclude that the determination must be set aside. [7] The right to be heard by an impartial panel is fundamental. A reviewable error that constitutes a breach of natural justice will ordinarily void the hearing and the resulting decision. However, an exception to this strict rule has been recognized where the other elements of the claim support the initial finding or where re-determination would likely result in the same decision.2 [8] I find it problematic that the panel did not follow its own Rules with regard to the disclosure of personal information from another refugee protection claim (rule 21 of the RPD Rules). Specifically, it seems to me that the medical certificate from another case played an important role in this decision and it probably vitiated the analysis of the appellant's credibility. [9] As a result, the appeal is allowed. The matter is referred to the RPD with the following instructions: 1) the next panel must proceed de novo, without the transcript or recording of the hearing. In the event that information from another refugee protection claim is required to decide the matter, the new panel must respect the RPD Rules regarding the disclosure of personal information from another refugee protection claim. BACKGROUND [10] Before leaving Haiti in XXXX 2016, the appellant was a XXXX in Port-au-Prince. She alleges that in 2015, she XXXX XXXX XXXX to representatives from the Lavallas party. [11] She alleges that on XXXX XXXX XXXX 2016, she was approached by an influential member of the Parti Haïtien Tèt Kalé (PHTK) [Haitian Tèt Kale party] to XXXX them XXXX for Flag Day. He proposed that the appellant XXXX a XXXX XXXX for the PHTK, and she accepted. The appellant alleges that, that evening, she received a telephone call in which she was threatened with retaliation for having XXXX XXXX with the PHTK. [12] She alleges that on XXXX XXXX XXXX 2016, upon her return from the Dominican Republic, she was kidnapped, beaten and insulted by representatives of the Lavallas party. She states that she was hospitalized for two days because of the injuries sustained during that event. When she left the hospital, she slept at a friend's house and the next day she reported the incident to the authorities. Fearing for her safety, the appellant allegedly sought an American visa. She allegedly left Haiti on XXXX XXXX XXXX 2016, to go to the Dominican Republic before leaving for the United States on XXXX XXXX XXXX 2016. The appellant arrived in Canada on XXXX XXXX XXXX 2017. She filed a refugee protection claim on October 14, 2017. SCOPE OF THE APPEAL [13] The RAD must conduct an independent analysis of the evidence and determine if the RPD's decision is correct, unless there are issues concerning the credibility of the oral evidence and the RPD enjoys a meaningful advantage.3 If I have to show deference to the RPD because it enjoys a meaningful advantage, I will indicate it in my analysis. [14] The appellant argues that the RAD must determine the following two issues: 1. Did the RPD err in denying almost all of the claimants' written, documentary and testimonial allegations, particularly those of this claimant? 2. Is the RPD's analysis fair, considering this claimant's particular situation as a member of a particular social group? [15] After considering all of the evidence and arguments submitted, I will phrase the issues to be determined as follows: 1. Did the RPD breach natural justice in failing to respect its own Rules with regard to the disclosure of personal information from another refugee protection claim? 2. Did the RPD err in its credibility analysis? 3. Did the RPD err in its analysis of the prospective risk as a member of a particular social group? ANALYSIS Principles of natural justice [16] The appellant filed Exhibit C-2,4 a medical certificate dated XXXX XXXX XXXX 2016, to corroborate the alleged assault against her on XXXX XXXX XXXX 2016, and her hospitalization for the injuries she sustained. [17] The evidence on the record indicates that on March 15, 2019, two weeks after the hearing, the panel sent the appellant a medical certificate from another refugee protection claim, and asked for further submissions on the following issue: [Translation] Disclosure in this case related to the fact the medical certificates are nearly identical (the treatment and recommendation sections are) and that it is the same signature, even though the names of two different doctors appear on them.5 [emphasis added] [18] In the appeal, it is argued that the panel's use of a document from another case, without notifying the other claimant of its use in advance, reveals a casual and arbitrary attitude on the part of the panel. Before the RPD, counsel submitted that there was a breach of natural justice because the member was not impartial. [19] The RPD acted improperly in failing to respect its own Rules with regard to the disclosure of personal information from another refugee protection claim. Rule 21 of the RPD Rules provides that: 21(1) Subject to subrule (5), the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of their claim. (2) If the personal or other information of another claimant has not been made public, the Division must make reasonable efforts to notify the other claimant in writing that (a) it intends to disclose the information to a claimant; and (b) the other claimant may object to that disclosure. (3) In order to decide whether to object to the disclosure, the other claimant may make a written request to the Division for personal and other information relating to the claimant. Subject to subrule (5), the Division may disclose only information that is necessary to permit the other claimant to make an informed decision. (4) If the personal or other information of the claimant has not been made public, the Division must make reasonable efforts to notify the claimant in writing that (a) it intends to disclose the information to the other claimant; and (b) the claimant may object to that disclosure. (5) The Division must not disclose personal or other information unless it is satisfied that a) there is not a serious possibility that disclosing the information will endanger the life, liberty or security of any person; or b) disclosing the information is not likely to cause an injustice. (6) Personal or other information from a joined claim is not subject to this rule. If claims were once joined but were later separated, only personal or other information that was provided before the separation is not subject to this rule. [20] In this case, the evidence does not show that the panel made reasonable efforts to notify the other claimant that it intended to disclose their personal information to another person. On the contrary, the panel stated, in paragraph 8 of the decision, that it was unnecessary to invoke rule 17 (currently rule 21 of the RPD Rules) and that [translation] "[p]roceeding in this manner, with a redacted certificate, is no different than submitting a template from the documentation package or any other document filed for comparative purposes and obtaining the parties' submissions." [21] I find the panel's approach here to be, at best, cavalier. Furthermore, I consider it erroneous to draw a parallel between a medical certificate-even a redacted one-from another refugee protection claim and a template in a National Documentation Package, which is a public document. [22] The evidence also fails to establish that the RPD complied with the requirements of paragraphs 21(5)(a) and (b) of the Rules by evaluating whether there is not a serious possibility that disclosing the personal or other information would endanger the life, liberty or security of any person; or whether disclosing the information would not likely cause an injustice. [23] As noted by the Court, an allegation of bias is a serious matter that must be supported by credible evidence and sound reasoning.6 The threshold set out in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, on pages 394 and 395, is high: ... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... (T)hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [24] In this case, I consider that by stating in its letter seeking further submissions [translation] "that it is the same signature, even though the names of two different doctors appear on them," the panel gave the impression that it had reached a conclusion and it might have appeared that it was biased. An appearance of bias is fundamental to all refugee protection claims. [25] The error is fundamental. I therefore set aside this determination, even though paragraph 7 of the decision states that [translation] "[i]n no way will the panel base or 'hang' a negative decision on a single medical certificate. It is one of the elements the panel is considering, just as it is considering the claimant's testimony and the objective evidence." [26] In the event that I am mistaken and the error is not fatal, I have also reviewed the other conclusions in order to determine if they justify the decision. I have concluded that, in this case, the other factors are insufficient to let the decision stand. This is why. [27] The panel found that the appellant was not credible based on the following factors. Firstly, the RPD noted that the appellant described a limited political profile and found it implausible that the appellant had done business with two rival political parties. However, the Federal Court has often stated that implausibility findings should only be drawn in the clearest of cases. In this case, the RPD's failure to develop its reasoning prevents me from understanding why the RPD found it implausible that a XXXX did business with different clients. [28] Secondly, the RPD noted what it saw as a significant inconsistency, that is, that the appellant stated that she was assaulted when she returned from the Dominican Republic on XXXX XXXX XXXX 2016, when her passport has no record of her exiting the Dominican Republic or entering Haiti on that date. On the other hand, the RPD noted that the passport has [translation] "two entry stamps and two exit stamps for the date of XXXX XXXX XXXX 2016." The panel noted that this may be an error, but nevertheless drew a negative inference. Considering the panel's statement that it is possible that an error was made, I am surprised that a negative inference was drawn. In this context, this conclusion alone prevents me from upholding this decision. [29] Thirdly, the RPD compared the medical certificate submitted by the appellant and the one from another refugee protection case and it concluded that the document submitted by the appellant was false. The panel found that this undermined credibility. It seems that this factor significantly influenced the decision. As for me, I am not in a position to comment on whether the doctors' signatures are the same. Particular social group of "women" [30] Lastly, it seems to me that the RPD overlooked the analysis of the appellant's prospective risk as a member of the particular social group of "women" although submissions were made to this effect. This is, in my opinion, a reviewable error. CONCLUSION [31] For these reasons, I set aside the RPD's determination that the appellant, XXXX XXXX XXXX failed to establish a serious possibility of persecution on one of the five Convention grounds or that it is likely that she would be subjected to one of the risks under section 97 of the IRPA if she were to return to Haiti. [32] The matter is referred to the RPD for this refugee protection claim to be redetermined by a new panel with instructions. INSTRUCTIONS [33] The next panel must proceed de novo, without the hearing transcript or recording. In the event that information from another refugee protection claim is required to decide the matter, the new panel must respect the RPD Rules regarding the disclosure of personal information from another refugee protection claim. If the medical certificate submitted by the appellant has no probative value, the RPD must clearly indicate why. (signed) Maria de Andrade Me Maria De Andrade August 28, 2020 Date IRB translation Original language: French 1 In response to the Refugee Appeal Division's request for a copy of the appellant's passport and a copy of the correspondence the Refugee Protection Division (RPD) sent to the claimant on March 15, 2019. 2 Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R., 202. 3 Canada (Ministry of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 SPR-1, RPD Record, medical certificate, p. 109. 5 SPR-1, RPD Record, p. 85; and request made to the RPD on August 18, 2020, in order to obtain a copy of the letter that the RPD sent to the refugee protection claimant to obtain further submissions related to the medical certificate from another refugee protection case. 6 Bulut v. Canada (Ministry of Citizenship and Immigration) 2005 FC 1627, para 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-09089 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français