VB5-02074

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 : VB5-02074 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision February 2, 2016 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) Alain Joffe Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the "appellant"), a national of Bangladesh, appeals a decision of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act" or "IRPA"),1 the Refugee Appeal Division (the "RAD") orders that the determination of the RPD that the appellant is neither a Convention2 refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The RAD also finds that it is unable to make a decision under paragraphs 111(1)(a) or (b) of the Act inasmuch as it cannot do so without hearing evidence that was presented to the RPD. The appeal is allowed. BACKGROUND [3] In his claim for refugee protection, the appellant alleged a fear of persecution in Bangladesh from Islamic extremist groups such as Bangladesh Islamic Chhatra Shibir and Hebazal-e-Islam Bangladesh due to his spouse's religious conversion from the Muslim to the Hindu religious faith. The appellant also alleged these groups are also targeting the appellant due to his involvement in organizations that advance the rights of Hindus in Bangladesh. [4] The appellant is Hindu by birth. In 2007 and 2008, he joined two organizations that advocated for the rights of Hindus in Bangladesh, the XXXX XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, respectively. [5] On XXXX XXXX, 2011 the appellant and two friends were attacked by a group of approximately 45 people from the extremist groups while leaving a seminar that had been organized by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The appellant was beaten with hockey sticks and iron bars, and he filed a police report relating to this matter on XXXX XXXX, 2011. [6] In XXXX 2011, the appellant began assisting his spouse to convert her religion from Muslim to Hindu. On XXXX XXXX, 2011 the appellant's spouse's brothers filed criminal charges against the appellant with the police, alleging that he had engaged in forceful abduction and forceful religious conversion. Additional charges were filed against the appellant on XXXX XXXX and XXXX, 2012. [7] The appellant obtained a work permit from the Canadian Embassy in Dhaka, and travelled to Canada using the permit and his Bangladesh passport on XXXX XXXX, 2012. [8] On XXXX XXXX, 2012 the appellant's residence was attacked. The appellant's older brother and his mother were physically assaulted, and the house was vandalized and looted. The appellant has been convicted in absentia in the XXXX XXXX XXXX on XXXX XXXX, 2014, XXXX XXXX, 2014 and XXXX XXXX, 2014 for offences pertaining to the religious conversion of his wife. The appellant applied for refugee protection at the immigration office in Edmonton, Alberta on March 13, 2015. [9] The RPD heard the appellant's refugee protection claim on May 11, 2015. The Minister of Public Safety and Emergency Preparedness was a party to the RPD proceedings, attended the hearing, questioned the appellant, and made written submissions on the evidence. The Minister has not intervened in this appeal. [10] The RPD's reasons for the decision were rendered in writing with a Notice of Decision dated June 25, 2015. The RPD's reasons stated that the appellant's claim for refugee protection was rejected. The RPD found that the determinative issue was credibility. [11] The appellant was unrepresented at the RPD hearing but is now represented by legal counsel in this appeal. SUBMISSIONS [12] While the appellant choose English as the language of the appeal, counsel for the appellant submitted his submissions in French. Accordingly, these reasons will be issued in English but will be subsequently translated to French for publication on the Canlii website as per RAD standard practice. I also note that while counsel's submissions in the memorandum met the requirement of being limited to 30 pages as per the RAD rules, the memorandum presented practical difficulties in analyzing for this appeal as text was entered in a single spaced format employing several font sizes smaller than that would normally allow for effective reading. [13] Counsel for the appellant has identified the following grounds for this appeal: * That the RPD member breached procedural fairness when he failed to recognize the appellant's severely limited ability to communicate effectively in English and arrange for a Bengali interpreter even though the appellant professed he did not require an interpreter. * That the RPD member erred in his credibility findings. [14] Counsel's submissions indicate that the appellant is requesting that the RAD set aside the determination of the RPD and find that the appellant is a Convention refugee or a person in need of protection or, in the alternative, order that the RPD refer the matter back to a different member of the RPD for redetermination with such directions that the RAD considers appropriate. [15] The Minister has not intervened in this appeal. Consideration of New Evidence [16] No new evidence has been presented for this appeal. Application for an Oral Hearing [17] The appellant has not requested an oral hearing at the RAD. [18] Subsection 110(3) of the Act requires that the RAD proceed without a hearing, on the basis of the Refugee Protection Division Record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the appellant. [19] According to subsection 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [20] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence,3 in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] As no new evidence has been accepted in support of this appeal, the RAD must proceed without a hearing. STANDARD OF REVIEW/ROLE OF THE RAD [22] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. Initially, the RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick4 as the leading case on the standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative decisions: reasonableness and correctness. The standard of correctness applies to questions of law (including procedural fairness and natural justice), while the standard of reasonableness applies to questions of fact and mixed fact and law. [23] When conducting an appeal of a determination by the RPD, I will adopt the approach outlined in the Federal Court's decision in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799 (at paras 54-55), [2014] 4 FCR 811, and conduct my own, independent assessment of whether the appellant is a Convention refugee or person in need of protection under section 97 of the Act, while respecting the credibility or other findings of the RPD where the RPD had a particular advantage in reaching its conclusions. In addition, the standard of correctness should be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [24] The first ground for this appeal identified by counsel is that the RPD member breached procedural fairness when he failed to recognize the appellant's severely limited ability to communicate effectively in English and arrange for a Bengali interpreter even though the appellant professed he did not require an interpreter. [25] I have listened to the audio recording of the RPD hearing in assessing whether or not the RPD member breached procedural fairness by not recognizing the appellant's need for interpreter at the hearing. I note that at several points in the proceedings the RPD member clearly provided the appellant an opportunity to have an interpreter available at the hearing that the appellant each time confirmed that he did not require an interpreter. I have also reviewed the appellant's responses to questions asked by the RPD member or by Minister's counsel to determine whether or not the appellant was able to adequately understand and communicate in English at the RPD hearing. I find that, while the appellant manifested some problems in articulating his answers from time to time, his level of English in understanding the questions posed to him and how he framed his responses indicated that he did possess an adequate level of English language capability for the purposes of the RPD hearing. [26] However, in reviewing the audio recording of the RPD hearing, I noted that the RPD member erred when he refused to accept certain documentary evidence provided by the appellant at the outset of the RPD hearing when evidentiary matters are being discussed. The document in question is found on pages 317 - 319 of the RPD record and is a copy of a decision by the Cour Nationale de Droit d'Asile (CNDA), the French government institution charged with reviewing the first level refugee determinations reached by the L'office français de protection des refugiés et apatrides (OFPRA). This decision by the CNDA resulted in the granting of refugee status to Biju Kanta DEY, a Bangladeshi citizen who feared persecution at the hands of fundamental Muslims due to his religion as a Hindu and activities to protect the interests of the Hindi minority in Bangladesh. [27] At the outset of the RPD hearing, the RPD member refused to accept this CNDA document into evidence as it was in French and as neither he nor minister's counsel understood French. However, the RPD member clearly erred in not accepting this document into evidence and by doing so was in breach of section 32 (1) of the Refugee Protection Division Rules (the "RPD Rules"):5 All documents used by the claimant or protected person in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation in a declaration signed by the translator. [28] In this case where the RPD member could not understand a document provided in French, the correct procedure would have been to have accepted the document into evidence and if necessary obtain an English language translation. Alternatively, it could have been considered to have obtained the services of a French - English interpreter who could have assisted in understanding the contents of the document at the RPD hearing. [29] However, in this case the RPD member simply rejected the document. As questions of procedural fairness are to be considered on a standard of correctness, the RPD member clearly erred in rejecting this document from being considered as evidence. The RPD decision is hereby set aside. REMEDY [30] Section 111 of the Act states: 111(1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division 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 Refugee Protection Division. (RAD emphasis) [31] Having concluded that the RPD determination must be set aside; would it be appropriate for the RAD in this case to substitute the RPD determination with one that finds that the appellant is, in fact, a Convention refugee or a person in need of protection? I find that I am unable to do so for the following reasons. [32] I note that counsel's submissions appear to be silent on the rejection by the RPD member of the CNDA document. I am not in position to determine whether or not counsel was aware of this error in preparing his submissions. While the RPD member's rejection of this document constitutes a clear error and breach of procedural fairness, I also need to consider whether or not this error would have a determinative impact on this appeal. [33] As noted above, the RAD is charged with making an independent assessment of whether the appellant is a Convention refugee or person in need of protection under section 97 of the Act, while respecting the credibility or other findings of the RPD where the RPD had a particular advantage in reaching its conclusions. My review of the CDNA decision indicates that this document does discuss the position of what could be considered to be a similarly situated individual facing allegations of persecution similar at least in part to that alleged by the appellant. However, as this document was not accepted into evidence, the appellant was not provided the opportunity to explain why this document should be considered in his claim for refugee protection, nor did the RPD member consider this document in his reasons. Given these circumstances and as credibility was the determinative factor identified in the RPD reasons, I find that I am unable to come to an independent assessment of whether or not the appellant is a Convention refugee or person in need of protection. [34] I have already found that the RPD Member erred in rejecting the CNDA document and that this constituted a breach of procedural fairness. If I were to attempt to assess the credibility of the appellant's allegations and further test the documentary evidence as represented by the CNDA document, it would be necessary for me to hear his viva voce evidence. To do so would require the RAD to hear evidence that was presented to the RPD. I also find that it would not be appropriate for the RAD to attempt to assess the credibility of such evidence simply on the basis of the audio recording of the RPD hearing and without giving the appellant an opportunity to explain. [35] The appellant also identified credibility issues as being the second ground of this appeal. As this appeal has been determined on the basis of the procedural fairness issue addressed above, there is no need to further analyze this other ground of appeal as identified by the appellant. DECISION [36] Pursuant to paragraph 111(1)(c) of the Act, the RAD orders that the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection be set aside and that the matter be returned to the RPD for redetermination by a different RPD Member without further instruction. The appeal is allowed. (signed) "Douglas Fortney" Douglas Fortney February 2, 2016 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Subsection 110(4) of the Act: 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 4 Dunsmuir v. New Brunswick, 2008 SCC 9. 5 Refugee Protection Division Rules (SOR/2012-256). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-02074 RAD File No. / N° de dossier de la SAR : VB5-02074