MB4-04193

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 : MB4-04193; MB4-04194; MB4-04195; MB4-04196 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision April 22, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the principal appellant, XXXX XXXX, his wife, and their minor children, XXXX XXXX and XXXX XXXX XXXX, the appellants, citizens of Algeria, are appealing against the decision of the Refugee Protection Division (RPD). They submit that the RPD erred in its negative determination. [2] The principal appellant was previously designated to act as the representative of his minor children and, under the Refugee Appeal Division Rules (RAD Rules), the representative is deemed to have been designated by the Division.1 II. DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that the appellants are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [4] In the RPD decision and in the appellants' memorandum, the alleged facts are summarized as follows: [translation] - their problems stem from the principal appellant's decision to work on the election campaign of independent candidate Ali Benfils for the presidential election of April 2014; - as he was returning home on XXXX XXXX XXXX 2014, the principal appellant was threatened by armed individuals who wanted him to badmouth Mr. Benfils's candidacy on television, or they would go after him and his family; - the next day, the appellants left their home to live with a nephew in XXXX; - their son then became ill, and tests showed he had Type 1 diabetes whereas, before the assault, he was in perfect health; - the principal appellant did not file a complaint with the authorities, because he was too afraid and his family was too concerned about their son XXXX's health; - the appellants left their country on XXXX XXXX, 2014.2 [5] In addition to their Basis of Claim Forms (BOC Forms), the appellants submitted some documents as evidence to the RPD.3 B. RPD decision [6] The hearing before the RPD took place on September 19, 2014, and the decision to reject the refugee protection claims was rendered on October 3, 2014.4 [7] In the reasons for its decision, the RPD explained that the credibility of the principal claimant was the determinative issue and that, in its view, his testimony was not credible with respect to the principal aspects of the refugee protection claims.5 [8] First, the RPD identified omissions that were not explained in a satisfactory manner. For instance, the fact, which was not mentioned in the BOC Forms, that the two assailants called the principal claimant by his name, and the fact, which was also not mentioned in the BOC Forms, that they gave him the statement he had to make on television.6 [9] The RPD then identified a contradiction in the principal claimant's various statements about the address at which they lived from March 1961 until they left their country. Here is what it wrote in this regard: [translation] [22] The panel is of the opinion that there is a contradiction between the principal claimant's BOC Form, his statement at the hearing and his IMM 5669 immigration form. The latter form does not ask claimants to indicate their permanent addresses only, but their addresses for the past 10 years. If the claimants took refuge at their nephew's house as they claimed, it would be reasonable to expect that this information would be on form IMM 5669. The claimants are not disadvantaged; the principal claimant is a businessman and the female claimant went to university, and they are represented by a lawyer. The panel therefore finds that the answers explaining the contradiction raised are unsatisfactory.7 [10] The RPD then indicated that, if the appellants received death threats, it was reasonable to expect the principal claimant to inform the police, which he did not do.8 [11] The RPD then indicated that the principal claimant testified in a vague and confused manner when asked why the assailants would go after him and his family if they returned to live in Algeria, given that the candidate Benfils lost the election anyway by obtaining only 12.2 percent of the votes.9 [12] Finally, the RPD found that the appellants' delay in leaving their country and their failure to claim refugee protection as soon as they arrived in Canada on June 14, 2014, followed by their failure to seek asylum in the United States of America, where they went on June 27, 2014, is indicative of behaviour that is inconsistent with that of people who actually fear for their lives.10 [13] Accordingly, here is its final conclusion: [translation] [35] The panel does not believe that the incident of XXXX XXXX XXXX 2014, took place and does not believe that the claimants had to hide at a nephew's house in XXXX. The panel does not believe that the male claimant was threatened in any way because he worked in the city of XXXX to support the candidate Benfils. [36] The claimants were not able to demonstrate, on a balance of probabilities, the veracity of the facts they alleged in support of their refugee protection claim. The panel believes instead that the principal claimant made up the story of assault and threats to serve the purposes of their refugee protection claims. Therefore, the panel attaches no probative value to the evidence submitted by the claimants to establish the well-foundedness of the allegations at the heart of their refugee protection claims.11 C. Grounds of appeal and decision sought [14] In their memorandum, the appellants submit that the RPD erred in its negative determination.12 [15] First, they submit that the content of their story reasonably demonstrates that their assailants knew the principal appellant. Second, they submit that, during his testimony, the principal appellant submitted additional information regarding the statement he had to make on television. Finally, they submit that their explanations about their residential address were reasonable, since it is normal for refugee protection claimants not to consider their hiding place as an official address.13 [16] In terms of the delay in leaving their country, the appellants submit that their lack of money is a reasonable explanation. In terms of the failure to seek asylum in the United States, they submit that language was an obstacle for them, which is a reasonable explanation.14 [17] The appellants are asking the RAD to weigh the detailed testimony of the principal appellant regarding the events of XXXX XXXX, 2014, and to consider that he was threatened as a political opponent, regardless of the outcome of the election.15 [18] The appellants are asking the RAD to allow their appeal, to set aside the RPD's determination and to allow their claims for protection or to refer the matter to the RPD or to hold another hearing before the RAD.16 IV. HEARING BEFORE THE RAD [19] The RAD Rules state that the record of the person who is the subject of the appeal must include a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.17 In this case, there is neither a written statement from the appellants formally requesting that a hearing be held before the RAD, nor full and detailed submissions in their memorandum explaining why a hearing should be held. [20] In any event, when evidence presented on appeal is found admissible, pursuant to subsection 110(6) of the IRPA, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. [21] However, in their appeal, the appellants presented no new evidence within the meaning of subsection 110(4) of the IRPA. Therefore, there is no cause to hold a hearing. V. APPROACH TO BE TAKEN IN THIS APPEAL [22] In their memorandum, the appellants do not specify which standard of review or approach the RAD must use in their appeal.18 However, they ask the RAD to weigh the detailed testimony of the principal appellant.19 [23] In Djossou, Justice Martineau demonstrates that the approach then used by the RAD to determine its role with respect to that of the RPD was not an acceptable outcome in law.20 He could not have been more clear: an appeal before the RAD is not a judicial review, since it has much broader powers on appeal than those of a court of law sitting in judicial review,21 and he invites the RAD to consider the three options before it with an open mind: true appeal, appeal de novo, or a hybrid appeal.22 In the conclusion of that decision, Justice Martineau specifies that it did not appear appropriate to him to judicially impose any standard of deference on the RAD, until such time as the Federal Court of Appeal or even the Supreme Court of Canada decides the issue definitively. He states that, in the interim, the onus is on the RAD to review the IRPA and adopt a new test based on an analysis that will take all the relevant factors into account. He adds that, in his view, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and the composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact or law and fact being also a possible option.23 [24] In Aloulou, Justice LeBlanc states that respect for legislative intent weighs against treating appeals before the RAD as a form of judicial review and against developing a policy of deference, the effect of which would be to turn this appeal into a pseudo-judicial review. He then states that the RAD has a different purpose, that of rectifying any error in law in a decision of the RPD or any palpable or overriding error in the determination of the facts or in the application of the law to the facts, assuming that it was correctly identified.24 [25] In Akuffo, Justice Gagné states that, when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions within the Federal Court diverge on the level of deference that is owed.25 In Sajad and Bui, Justice Shore finds that the RAD owes a certain level of deference to the RPD's findings when they primarily relate to the credibility of the person claiming refugee protection.26 That said, the RAD must conduct an independent examination of the record on appeal, consider the parties' submissions and then confirm or dismiss the RPD's findings regarding the credibility of the claimant(s).27 [26] By drawing as much as possible on the Federal Court decisions to date, I find that, in this case, while conducting an independent assessment of the record on appeal, I owe a certain level of deference to the RPD's findings regarding the appellants' credibility. VI. ANALYSIS OF THE MERITS OF THE APPEAL [27] Having conducted an independent assessment of the file, I have come to the conclusion that the appeal must be dismissed, as the appellants did not establish that the RPD erred in its analysis of their credibility. Here is why. A. Contradictions and omissions identified by the RPD [28] In this case, it must be pointed out that the RPD's findings are mainly related to the credibility of the refugee protection claimants. Indeed, the member who heard the principal claimant's oral testimony came to the conclusion that his testimony was not credible for a number of reasons related to contradictions and omissions. Those findings are based on a detailed analysis of the BOC Form, the documents entered into evidence, and the testimony and the explanations provided by the principal claimant at his hearing before the member. I find that the RPD was entirely justified in drawing such conclusions and that I do not need to change its decision to reject these refugee protection claims. [29] I would like to point out that it is no small matter that, on the IMM 5669 form,28 the principal claimant or the principal appellant answered that the address at which he resided between March 1961 and June 2014 was the same, thereby failing to enter his nephew's address where, according to his BOC Form, he and his family sought refuge after the assault of XXXX XXXX, 2014. It should be noted that, by signing that form, he declared that the information he gave is truthful, complete and correct, and he made the declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath. [30] Now, in terms of the explanations that the appellants find reasonable, but that the RPD did not, I personally see no error on the part of the RPD. Not only did it take into account these explanations that it summarized in each case, but it also explained why it did not find them reasonable. According to the case law, the RPD has a duty to consider the explanations provided that are not obviously implausible and to set out, in clear and unmistakable terms, its reasons for rejecting those explanations, by considering all the evidence.29 That is exactly what the RPD did in this case. [31] Essentially, what the appellants are asking in their appeal is that the RAD substitute its own analysis of the assessment of their credibility, including the explanations that the principal appellant provided in response to contradictions and omissions identified by the RPD. In other words, they are asking that the appeal before the RAD proceed as if the initial decision were set aside. In my view, that is not the RAD's role. The appeal provided for in the IRPA has the specific purpose of correcting any error in the RPD's decision.30 Drawing on Justice Roy's decision in Spasoja, I find that, if the appeal before the RAD must be dealt with as an appeal, "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."31 In this case, since the appellants provided no new evidence within the meaning of subsection 110(4) of the IRPA, the appeal must be based solely on the record of the initial decision-maker, the RPD. Although the discussions in the courts on this subject are not yet closed, in light of the state of the Federal Court case law to date, I personally find that, in this appeal, the onus was on the appellants to establish the existence of an error, whether in law, in fact or of procedure. In my view, their arguments do not demonstrate the existence of such an error. [32] I also note that, in this case, since the principal appellant was a supporter of and organizer for a candidate for the presidential election in his country, it was reasonable to expect him to enter into evidence, or to at least make a real effort to obtain from that candidate, a document corroborating that he was in fact threatened by individuals who wanted to cast a negative light on the candidate in question. After careful consideration of the documents entered into evidence before the RPD, I found nothing in that sense. The failure to provide supporting documentation that is reasonably expected may have an impact on a refugee protection claimant's credibility.32 Upon reading rule 11 of the Refugee Protection Division Rules,33 it is clear that the person claiming refugee protection has a duty to provide the documents and other elements of the claim. The English version is more eloquent than the French version, stating, "The claimant must provide ...."34 However, it is important to remember that, in French, the use of the present indicative is sufficient to express the imperative nature of a rule. In any event, the bottom line is that a lack of diligence on someone's part to obtain an important document that could have corroborated his or her testimony can undermine his or her credibility.35 B. Delay in leaving Algeria and their failure to claim refugee protection at the first opportunity [33] In terms of the delay in leaving their country, I am of the opinion that the RPD decision must be understood in its entirety. In fact, the RPD did not believe that the appellants sought refuge at a nephew's house, and its finding in this regard relies on the evidence on record, in form IMM 5669. In this context, its conclusion that their delay in leaving their country is not consistent with that of someone fearing for their life is clearly justified. [34] Similarly, in terms of their failure to claim refugee protection at the earliest opportunity, in either Canada or the United States of America, I am of the opinion once again that the RPD committed no error. In fact, in their memorandum, the appellants do not question the RPD's finding in terms of their failure to seek asylum in the United States of America. They presented no argument to explain their failure to claim refugee protection as soon as they arrived in Canada on June 14, 2014. [35] According to the case law, it is clearly established that the failure to seek international protection at the earliest opportunity can undermine the credibility of a person claiming refugee protection in Canada.36 When no convincing or reasonable explanation is provided, the failure to claim refugee protection at the earliest opportunity may undermine the credibility of a refugee protection claimant.37 C. No credible basis [36] In light of the entire file, I see that the appellants were subjected to significant personal hardship because of the illness of one of their family members. [37] However, despite that particular situation, I find that the RPD's actions in this case were fully consistent with one of the objectives of the IRPA, namely, to establish fair and efficient procedures that will maintain the integrity of the refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.38 [38] I add that, under subsection 107(2) of the IRPA, the RPD would have certainly been able to state in its decision that there is no credible basis for the claim, as the claimants presented no credible or trustworthy evidence on which it could have made a favourable decision. VII. CONCLUSION [39] For those reasons, I confirm the determination of the RPD, namely, that the appellants are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. [40] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 22, 2015 Date IRB translation Original language: French 1 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subrule 23(1). 2 Refugee Protection Division (RPD) reasons and decision, paragraphs 5 to 9, pages 4 and 5 of the RPD record. Memorandum of the appellants, November 10, 2014, paragraphs 1 to 7, page 13 of the appeal record. See also their Basis of Claim Forms, which are reproduced on pages 20 to 62 of the RPD record. 3 The list of documents is found on page 314 of the RPD record. The documents themselves are reproduced on pages 315 to 349 of the RPD record. 4 RPD reasons and decision, pages 3 to 13 of the RPD record. 5 Idem, paragraph 13, page 6 of the RPD record. 6 Idem, paragraphs 14 to 19, pages 6, 7 and 8 of the RPD record. 7 Idem, paragraph 22, pages 8 and 9 of the RPD record. 8 Idem, paragraph 23, page 9 of the RPD record. 9 Idem, paragraphs 24 to 27, pages 9 and 10 of the RPD record. 10 Idem, paragraphs 28 to 34, pages 10, 11 and 12 of the RPD record. 11 Idem, paragraphs 35 and 36, page 12 of the RPD record. 12 Appellants' memorandum, paragraph 9, page 14 of the appeal record. 13 Idem, paragraphs 10 to 19, pages 14 and 15 of the appeal record. 14 Idem, paragraphs 20 to 26, pages 15 and 16 of the appeal record. 15 Idem, paragraphs 27 to 30, page 16 of the appeal record. 16 Idem, pages 16 and 17 of the appeal record. 17 RAD Rules, SOR/2012-257, subrule 3(3). 18 Appellants' memorandum, pages 13 to 17 of the appeal record. 19 Idem, paragraphs 27 to 30, page 16 of the appeal record. 20 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 21 Idem, at paragraph 41. 22 Idem, at paragraph 55. 23 Idem, at paragraph 91. 24 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraphs 54 and 57. 25 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 26 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 27 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, at paragraphs 22, 23 and 24. 28 IMM 5669, pages 211 to 214 of the RPD record. 29 Miranda Mejia v. Canada (Minister of Citizenship and Immigration), No. IMM-7164-14, Shore, April 9, 2015; 2015 FC 434, at paragraph 34. 30 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraph 57. 31 Spasoja v. Canada (Minister of Citizenship and Immigration), No. IMM-7630-13, Roy, September 23, 2014; 2014 FC 913, at paragraph 39. 32 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6. 33 Refugee Protection Division Rules, SOR/2012-256. 34 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 35 Idem, at paragraph 15. 36 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11, referring to Justice Teitelbaum's decision in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL). 37 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 at paragraph 28. Basaa v. Canada (Minister of Citizenship and Immigration), No. IMM-9938-03, Snider, February 8, 2005; 2005 FC 201, at paragraph 10: "...a short delay in making a claim, with a reasonable explanation for the delay, cannot be determinative of a negative decision in a refugee claim." 38 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB4-04193; MB4-04194; MB4-04195; MB4-04196 2