MB4-03277

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 : MB4-03277 MB4-03278 MB4-03279 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXX XXXXX XXXX XX XXXXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 19, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subjects of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX; his wife, XXXX XXXX; and their minor daughter, XXXX XXXX XXXX all citizens of India, are appealing against a Refugee Protection Division (RPD) decision rejecting their claim for refugee protection. [2] They have not submitted new documentary evidence in their appeal, and they are not asking for a hearing before the Refugee Appeal Division (RAD). [3] Pursuant to rule 23 of the Refugee Appeal Division Rules, the RPD appointed the male appellant, XXXX XXXX, as the designated representative for his minor daughter, XXXX XXXX, for the proceedings before the RAD. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX, XXXX XXXX, and XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [5] In the Basis of Claim Form (BOC Form) that he submitted before the RPD, the principal claimant, XXXX XXXX, alleges that he left India in 2001 to go to Italy, where one of his uncles was living, and became a permanent resident there in 2003. [6] The male appellant alleges that he met the female appellant, XXXX XXXX, when he was in India in December 2007 to attend a friend's wedding. He allegedly proposed to XXXX XXXX, but his parents refused to allow the marriage because the two appellants are from different castes. XXXX XXXX's father allegedly threatened him and purportedly told him that he would not allow the marriage or allow him to live peacefully in India. The male appellant allegedly returned to Italy on XXXX XXXX, 2008, and allegedly cut all ties with his parents. [7] The male appellant alleges that he returned to India on XXXX XXXX, 2008, and married XXXX XXXX on XXXX XXXX, 2008. He returned to Italy on XXXX XXXX, 2009, and the female appellant joined him there in XXXX 2009. She obtained permanent residence there in XXXX 2010, and their daughter was born in XXXX 2011. [8] The male appellant alleges that on XXXX XXXX, 2013, his uncle arrived at their home in Italy, accompanied by two [translation] "goons," and in his absence, allegedly threatened the female appellant, XXXX XXXX, saying that they would harm him as soon as they found him. [9] The appellants left Italy on XXXX XXXX, 2013, for the United States, where they were admitted as visitors. They settled in Seattle. [10] The male appellant alleges that an individual from his village in India recognized him in Seattle and, after a trip to India in XXXX 2013, told him that his father was still looking for him, with the intention of killing him, his wife and their daughter. [11] The appellants allege that they illegally crossed the Canadian border on February 19, 2014, and joined XXXX XXXX's sister in Edmonton. They claimed refugee protection in Canada on March 28, 2014, in Montréal. [12] The Minister of Citizenship and Immigration Canada (the Minister), through his representative, intervened before the RPD, submitting a notice of intervention and documentary evidence and arguing that the RPD should reject the claim for refugee protection on the grounds that the claimants are permanent residents in Italy and, consequently, are persons described in exclusion clause 1E, and on the grounds that their credibility regarding their allegations was undermined because they did not ask for protection from the authorities in Italy, because they did not seek asylum in the United States, and because of the delay in claiming refugee protection in Canada once they arrived. [13] In a decision rendered August 5, 2014, the RPD concluded that the appellants were not persons described in exclusion clause 1E and also concluded that the evidence that was presented demonstrated, on a balance of probabilities, that they had lost their permanent residence in Italy because they had spent more than 12 months outside of the country. [14] However, the RPD rejected the claim for refugee protection on the grounds that the appellants' allegations were not credible, for the following reasons. - They did not seek asylum in the United States even though they claimed that they feared returning to Italy and India. - They did not claim refugee protection in Canada when they arrived in British Columbia or during their time in Edmonton. Instead, they went to Montréal to make the claim. - It is implausible that the principal claimant's uncle was able to find them in Italy in 2013 given that the appellants were not tracked down during the principal claimant's trip to India at the end of 2008 or during their trip to India together in 2012. - They did not ask for help from police in Italy following the alleged threats from the male appellant's uncle. - It is implausible that the female appellant, XXXX XXXX, was able to stay in India for seven months after the wedding without having any issues with the father of the male appellant, XXXX XXXX, if he wanted to cause them harm. [15] The appellants submitted to the RAD that the RPD erred in assessing their credibility, as follows: - The RPD did not consider their explanations as to why they did not seek asylum in the United States. - Their explanations for the delay in claiming refugee protection in Canada are reasonable. - They were justified in not asking for protection or help in Italy because they had no proof of the threats. - The RPD did not attach any probative value to the affidavits submitted as evidence because they were from individuals who did not directly witness the appellants' problems. - The RPD concluded that the female appellant lived at her family home (with her mother) for more than seven months after the wedding before leaving for Italy. [16] For these reasons, the appellants are requesting that the RAD set aside the RPD's determination and grant them refugee protection or refer the matter to the RPD for re-determination. THE RAD'S ROLE [17] The IRPA does not specifically provide for the standard of review or intervention that the RAD should apply when it reviews the decisions rendered by the RPD. In the present matter, the appellants do not state in their memorandum what the RAD's role should be or what standard of review it should apply when reviewing RPD decisions. [18] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the RAD's standard of review or intervention or its role when an RPD decision is appealed to it. [19] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada rules on this matter. [20] At paragraphs 28 and 29 of Alvarez, as well as paragraphs 29 and 30 of Eng, the Court writes as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [21] The Court adds the following, at paragraph 33 of Alvarez, as well as at paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [22] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes as follows: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [23] With regard to the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [24] Justice Phelan concludes that: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [25] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [26] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first finds that the RAD erred in applying the standard of reasonableness instead of conducting an independent assessment of the refugee protection claim (paragraph 12). [27] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions concerning the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the parliamentary committee of the House of Commons to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but to an appeal in its own right (paragraph 39). [28] Relying on the conclusions in Parizeau in terms of the standard of review that an appellate tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review applicable to the RAD are correctness for questions of law and palpable and overriding error for questions of fact and questions of mixed fact and law. In addition, the RAD must give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [29] The Honourable Justice Roy also indicates that he could not find any indicators that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42) and states in the following paragraph of his decision that: [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4).... [30] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having reviewed the aforementioned decisions, first concludes that they all reject the reasonableness standard of review and then states that, in his opinion, the RAD should be allowed to choose between the two remaining approaches, namely, the one set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the one set out in Huruglica, which he describes as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant" (paragraph 16). [31] Justice Martineau writes in paragraph 46 of Alyafi that: [46] ...I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [32] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described therein appears to me to be more easily applicable than as described in Huruglica, especially when no new evidence has been presented to the RAD and no hearing is held, as in the case at hand. [33] In the present matter, I am of the opinion that the error alleged by the appellants regarding the assessment of their credibility is one of fact, and I will therefore apply the standard of palpable and overriding error and will show a measure of deference to the RPD's findings in this matter. [34] I will review and conduct my own assessment of all the evidence presented before the RPD to determine whether the latter committed a palpable and overriding error. [35] At paragraph 91 of Parizeau, a palpable and overriding error is described as follows: [translation] [91] ...A palpable and overriding error is an error that, in its undeniability-and therefore not a difference of opinion on the assessment of the evidence-determines the outcome of the dispute in that the conclusion of the trier of fact, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making the decision unreasonable. ANALYSIS [36] The issue at hand is whether the RPD erred in its assessment of the appellants' credibility. [37] In my opinion, the answer is no, for the following reasons. [38] The first factor that the RPD considered in its assessment of the appellants' credibility is the fact that they lived in the United States for a year and did not seek asylum. [39] To begin, the RPD concluded that there were omissions about that fact in the BOC Form submitted. The male appellant testified that he went to the United States for his safety, but he responded "no" to question 2(g) on the form, which asks: "Did you move to another country (other than Canada) to seek safety?" The RPD also noted that the male appellant failed to mention in the BOC Form that his intention was to return to Italy if his uncle was no longer looking for him, which is what he testified during the hearing. [40] Second, the RPD concluded that the behaviour was inconsistent with that of individuals who fear returning to both Italy and India. [41] I too am of the opinion that, in the present matter, the fact that they did not seek asylum in the United States constitutes behaviour that is inconsistent with that of individuals who fear returning to their country. [42] I am also of the opinion that the explanations provided by the principal appellant to justify this fact are unreasonable. First, the male appellant testified that he had intended to return to Italy if his uncle had not been looking for him. Not only was that explanation not mentioned in the BOC Form, but I also consider that it is unreasonable for a number of reasons. To begin, seeking asylum in the United States does not prevent individuals from returning to their country if they so desire-whether asylum is granted or not-and, secondly, the male appellant did not explain how he could confirm or be assured that his uncle was no longer looking for him in Italy. I would also add that it seems implausible that the male appellant's uncle, or other members of his family, would suddenly stop looking for him if they had allegedly been trying to track him down and kill him for many years. In fact, the male appellant actually heard from someone who lived in the village that his father was still looking for him in order to kill him. [43] The male appellant's second explanation was that he and the other appellants had legal status as visitors in the United States for six months, and they were waiting for a [translation] "general amnesty" so they could obtain permanent status. The male appellant added that he feared being removed to Italy if his claim for asylum was rejected. Again, I consider those explanations to be unreasonable. First of all, nothing prevents a visitor from seeking asylum, and the appellants stayed in the United States for six months without visitor status. In the circumstances, the fear of being deported to Italy if their claim for asylum was rejected is not reasonable because the appellants spent six months in the United States without legal status and, consequently, risked being deported to Italy. Finally, the male appellant did not indicate why he hoped there would be a [translation] "general amnesty" for those who entered the United States illegally. [44] While failure to seek asylum in the United States is not, in and of itself, fatal to the claim, I am of the opinion that in this case, the fact that the appellants stayed in the United States, where they claim they fled to escape persecution both in Italy and India, and the explanations they provided concerning the failure to seek asylum, which I consider unreasonable, undermine the appellants' credibility. [45] The delay in claiming refugee protection in Canada-a little more than a month-cannot, on its own, be fatal to the claim, but I am of the opinion that it is a factor that undermines the appellants' overall credibility. [46] In my opinion, a more important factor in assessing the appellants' credibility is the fact that they did not file a complaint with the Italian authorities when the principal claimant's uncle allegedly threatened to kill them. I conclude that the male appellant's explanation in this regard, that they had no proof of the threats, is unreasonable, as is his explanation to the effect that the Italian police are not [translation] "nice" to foreigners and would simply give his uncle a warning. First of all, I am of the opinion that it is not necessary to have proof of the threats in order to file a complaint because it is the job of the police to investigate and find proof. As well, there is nothing in the documentary evidence that was submitted that demonstrates that the Italian police would not be [translation] "nice" to foreigners, which also contradicts the assertion that the police would simply give his uncle a warning, even though he is also a [translation] "foreigner" in Italy. In addition, I am of the opinion that giving his uncle a warning is a first step toward obtaining protection from the Italian authorities. Consequently, I am of the opinion that their failure to file a complaint with the Italian authorities undermines the appellants' credibility. [47] Another important factor in assessing the appellants' credibility is the fact that, according to the RPD, the female appellant allegedly lived at her home for nearly eight months after marrying the male appellant and before leaving for Italy, yet she had no issues with the male appellant's father. The RPD came to that conclusion because of the address that the female appellant wrote on her IMM-5669 form that was submitted to Canadian immigration authorities (see RPD record, page 209). [48] Again, I feel that the appellants' credibility is undermined because of that. In my opinion, the preponderance of evidence establishes that the female appellant lived at that address for nearly eight months and had no issues with her husband's family, who were allegedly trying to track him down. In their memorandum, the appellants submit that the RPD failed to question the female appellant as to why she wrote the wrong address on form IMM-5669, and they submit, at paragraph 54 of their memorandum, that [translation] "It is not uncommon for claimants not to indicate on this form the location where they were hiding. They include their official address." I, for one, do not accept that explanation. First, the female appellant allegedly lived elsewhere than at her home for a long period, nearly eight months. So, according to the appellants' reasoning, the female appellant allegedly should not have included in that same form the addresses that were not her places of official residence, such as Seattle and Edmonton, as she did. [49] To conclude, in light of the credibility issues outlined above, I am of the opinion that the RPD did not err by not attaching probative value to the three affidavits submitted as evidence to corroborate the appellants' allegations. [50] More broadly, it should be noted that those statements did not come from sources that are widely recognized to be neutral and credible. [51] Next, Exhibit P-3, which is purported to be a statement from the male appellant's friend, does not establish that the friend directly witnessed the threats made against the appellants. The same can be said of Exhibit P-4, which is allegedly a statement from another of the appellants' friends, in Italy, who did not directly witness the alleged threats either. In addition, that friend contradicts the appellants' testimony because in the fourth paragraph on page two of the declaration, he states that the appellants allegedly informed him two months after they left for the United States that they intended to live there permanently, contrary to what the male appellant stated during the hearing about their intention to return to Italy, which is why they did not seek asylum in the United States. Finally, Exhibit P-6, which is allegedly a statement from the female appellant's mother, indicates that her daughter lived with a friend after she married the male appellant, contrary to what the female appellant declared in form IMM-5669, as mentioned earlier. [52] In light of the preceding, and after analyzing all the evidence filed, considering the RPD's decision and the errors raised in the appellants' memorandum, I find that they failed to demonstrate that the RPD committed a palpable and overriding error in its decision justifying the RAD's intervention. REMEDY [53] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX, XXXX XXXX, and XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [54] The appeal is dismissed. Normand Leduc Normand Leduc March 19, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 FC 702. 2 Eng v. M.C.I., 2014 FC 711. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Spasoja v. M.C.I., 2014 FC 913. 5 Parizeau v. Barreau du Québec, 2011 RJQ 1506. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-03277 MB4-03278 MB4-03279 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB4-03277 MB4-03278 MB4-03279 13