MB3-03031

N° de dossier de la SAR/RAD File No.: MB3-03031 MB3-03032 Huis clos/Private Proceeding Motifs et décision - Reasons and Decision Appelant XXXX XXXX XX XXXXXX XXXX Appellant Appel instruit à Montréal, Québec Appeal considered / heard at Date de la décision November 28, 2013 Date of Decision Tribunal Stephen J. Gallagher Panel Conseil(s) de l'appelant Me Tony Manglaviti Counsel for the Appellant Représentant(e)(s) désigné(e)(s) S/O Designated Representative(s) Conseil du (de la) Ministre S/O Counsel for the Minister REASONS AND DECISION [1] Mr. XXXX XXXX, who is the Principal Appellant, along with his wife, Ms. XXXX XXXX XXXX are both citizens of Albania and are appealing a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellants have not presented new evidence and have not requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD, namely, that Mr. XXXX XXXX and Ms. XXXX XXXX are neither "Convention Refugees" pursuant to s. 96 of IRPA nor "people in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellants alleges that they are at risk of being attacked and killed because the Principal Appellant's family has been in a blood feud with another Albanian family, identified as the XXXX family, since 1949. [4] The Appellants allege that most of their extended family was forced to flee their ancestral home in XXXX, Albania, however, the Principal Appellant's immediate family settled in XXXX and did not believe that they were in danger until 1993 when they received word that they had been spotted by members of the XXXX family. At this point, the Principal Appellant's family fled this area and migrated to Greece. [5] In 2012 the Principal Appellant discovered that he and his family was again tracked down and after consultation and planning the Appellants were smuggled to Canada where they submitted a protection claim. Their protection claim was denied by the RPD in a decision dated July 15, 2013. SUBMISSIONS [6] The Appellants allege that the RPD has committed errors in its decision. The Appellants argue that the RPD's decision is "not based on relevant considerations" (Appellant's Record, Memorandum of Arguments, Paragraph 10, p. 13). By this, the Appellants mean that the RPD did not take the individual circumstance of the Appellants into consideration. As a result, the RPD focused too extensively on issues related to perceived credibility issues, including trips to Albania, and did not give sufficient weight to the Appellants' evidence with respect to the blood feud. Overall, the Appellant is arguing that the RPD's decision, which is based on a credibility assessment that is determinative, was unreasonable. [7] The Appellants argue that the RPD's decision should be "set aside" and that I should find that the Appellants are "Convention Refugees" and therefore grant them protection. STANDARD OF REVIEW [8] My understanding of my role in this appeal derives from a reading of a decision of the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers' Association (2010) ABCA 399. The Newton decision includes an analysis of the role of an Alberta-based appellate board vis-à-vis a first instance determination process to consider whether a de novo hearing on issues of fact is required in every case. This is one of the few cases where a court evaluates the role of an appellant-specialized administrative tribunal in a system that allows for an appeal from a first instance administrative tribunal with the same specialization. The Court in this case notes that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him" (Paragraph 82). The Court went on to conclude that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere" (Paragraph 95). [9] I conclude that an analysis of the RPD's credibility determination, which in this appeal constitutes the determinative issue, involves an analysis of issues of fact and, using Newton as a guide, I conclude that such issues attract a deferential standard of review which is "reasonableness". With respect to issues of mix fact and law, which in this case relates to connecting the Convention grounds with the Appellant's particular circumstances, I find based on Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 53 that the standard of review is also reasonableness. [10] I note that this appeal does not qualify for a hearing given that no new evidence has been deposed and the RPD held a hearing and directly listened and asked questions of the Appellants. The RPD was also directly reviewing the evidence in a hearing setting to reach its conclusion. My objective is therefore to review the RPD decision for the "existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". This understanding flows from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Issue 1: Did the RPD make an error with respect to the legal test in this claim? Specifically according to the Appellant, did the RPD "raise the bar" too high? [11] The Appellants submit that the RPD committed an "error in law" because it did not use the legal test identified as Adjei (1989), 7ImmLR (2d) 169 (FCTD). This test, according to the Appellants: "is there a reasonable chance or a serious possibility, or are there good grounds for believing that the claimant will be persecuted" if they returned to Albania (Appellants' Record, Memorandum of Arguments, Paragraph 8, p. 13). [12] As noted above the standard of review for an error of mixed fact and law is reasonableness. In this case, I conclude that the RPD is aware of the correct legal test. I conclude that the RPD is simply not applying the test in this case because it concludes that there is no nexus to the convention in this claim, for which it provides legal arguments (RPD, Paragraphs 12-15). The RPD goes on to consider the claim under Section 97 but ultimately the determinative issue is credibility. I find that an evaluation of the RPD's conclusion on whether Section 96 might be applied to this claim, is only required if the RPD's credibility assessment is found to be unreasonable. In this case, as noted below, I find the RPD's credibility assessment reasonable and determinative. Issue 2: Did the RPD err in making "unreasonable" Credibility Findings? [13] The conclusion of the RPD is that there are important credibility issues with respect to the Appellants' allegations such that the RPD does not find the allegations credible. These issues are primarily related to evidence that the Principal Appellant returned to Albania on numerous occasions during the period he alleges that he was at risk in Albania as a result of a blood feud. The RPD also concludes that the Principal Appellant provided the RPD with documentation which was incomplete in the sense that there were important omissions. Specifically, the Principal Appellant did not disclose the trips he made to Albania after 2010 which are part of the record based on the Principal Appellant's Albanian passport that was issued in 2010. In addition, the RPD finds credibility issues related to the fact that the Principal Appellant's father and mother returned to Albania to live in XXXX even though they were allegedly at risk because the XXXX family had found out that they lived in this town in 2003. [14] Given that there were these credibility issues, the RPD sought corroborative evidence. The RPD was especially interested in why the Appellants did not seek police protection in Greece given that they allege that members of the XXXX family were seeking them out there. [15] After reviewing the allegations and the evidence, the RPD concludes that the allegations of the Appellants are not credible on a balance of probability. According to the RPD, "the principal claimant and his wife did not discharge their burden of establishing, on a balance of probabilities, that they were personally targeted by this blood feud" (RPD, Paragraph 28). [16] In response to these individual credibility findings leading to an aggregate negative credibility assessment, the Appellants argue that the movements of the Appellants and their trips to Albania were reasonable and were consistent with people who fear for their lives. For example, the Appellants returned to Albania in order to marry which was necessary to prepare to flee Albania and Greece to seek protection in Canada. The Appellants note that they were deceived by a corrupt lawyer and, as a result, they took more risky trips to Albania than were necessary in an effort to facilitate their travel to Canada. However, they did not know at the time that this Albanian lawyer could not help them and these were wasted efforts so they returned to Greece. According to the Appellants, the RPD should recognize that "The behavior and actions of the Appellants are consistent with the behavior and actions of people who fear for their lives and seek the help of lawyers or agents" (Appellant's Record, Memorandum of Arguments, Paragraph 11, p. 16) [17] The Appellants also argue that the RPD did not recognize that by living in XXXX the parents of the Principal Appellant were hiding ("in seclusion"). In addition, the RPD did not recognize that the Appellants' marriage there (in XXXX) was not necessarily an open affair which would have drawn attention to their presence there. [18] Overall, the Appellants argue that the problem with the RPD's credibility assessment is that its various implausibility assessments were unreasonable. The Appellants argue that their actions and travels should be viewed as "rational and logical" (Appellant's Record, Memorandum of Arguments, Paragraph 19, p. 17). The RPD errs in not accepting the truth of the blood feud risk faced by the Appellants and they argue that this risk should have been evaluated based on the Section 96 test of a "serious possibility" of persecution. According to the Appellants, "Throughout the decision the Board Member seems to be preoccupied with the fact that the Appellants had returned to Albania on a number of occasions. There is no real evaluation of the testimony or the documents with respect to the core components of the claim and the blood feud. The Board Member was fixated on only one issue instead of looking at the totality of the claim. In doing so she committed an error in law and in fact" (Appellant's Record, Memorandum of Arguments, Paragraph 18, p. 17). [19] With respect to the credibility concern of the RPD with respect to the several trips the Principal Appellant took to Albania dating from 2010 while allegedly a target of a blood feud, I find it reasonable for the RPD to reach an adverse credibility conclusion. The RPD notes and agrees with the logic of a Minister's intervention (RPD Record, pp. 141-144) which questions the credibility of the claim and includes the dates and intervals when the Principal Appellant was in Albania. The RPD also identifies the fact that the Principal Appellant is alleging that he lived in fear in Greece yet he still returned to Albania repeatedly. In the Principal Appellant's narrative it is written that: "We lived in Greece for several years, but the blood feud had not left even for a moment from our mind and lives. Our past had taught us that however much time has passed, the day to face the blood feud may come again and that we should always be prepared for any kind of situation you can run into in order to avoid it's clutches who are immersed in the blood of innocent people" (RPD Record, p. 34). [20] Based on these facts I find it reasonable for the RPD to question the credibility of the fear of the Principal Appellant given these travels. The RPD also reaches a negative credibility assessment based on the fact that the travels of the Principal Appellant to Albania in 2010 and 2011 are not mentioned in his submitted documentation. Although not clearly stated I understand the Appellants to be arguing that there is no provision or need to reference prior travel in the BOC form especially given the short visits involved (Appellant's Record, Memorandum of Arguments, Paragraph 12, p. 16). I cannot accept this argument. The absence of a mention of the travels of the Principal Appellant to Albania in the BOC are manifestly a "significant omission" in the context of the claim (RPD, Paragraph 21). I would add that there is no mention of an Albanian residential address in question 12 of the IMM 5669 form, which requires all addresses in the past 10 years, when in fact the Principal Appellant lived in Albania for at least two intervals in the 2010-11 period that exceeded 4 weeks (RPD Record, pp. 142). [21] I also find reasonable the RPD's dismissal of the explanation for why the Principal Appellant's father and mother returned to and continued to live in XXXX, Albania (or in a "nearby village"), which is that they were in hiding. The RPD notes that even though this is where the XXXX family found he Principal Appellant's family in 2003, the Appellants visited the Principal Appellant's parent there, were married there and the Principal Appellant's father could go about his business there including mailing material to the Principal Appellant in Canada. There is also the fact that the Appellants did not approach police in Greece and that Ms. XXXX continued to work at a XXXX allegedly after members of the XXXX family had met the Principal Appellant in this restaurant and they were likely aware that the Principal Appellant's family lived in the area. Taken together I must agree with the RPD that there is a very significant "accumulation of implausibilities" which would allow the RPD to conclude that the Appellants' testimony and evidence was not credible. [22] After reviewing the evidence before me, I conclude that it is reasonable for the RPD to reach a conclusion that the Appellants have not met their burden of showing that their allegations are true, on a balance of probabilities. Overall, I conclude that this decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". REMEDIES [23] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX and Ms. XXXX XXXX are neither "Convention refugees" nor "persons in need of protection". Therefore, the appeal is rejected. Stephen J. Gallagher Stephen J. Gallagher November 28, 2013 Date /ag/kp/or 1 N° de dossier de la SAR/RAD File No.: MB3-03031 MB3-03032 2