MB4-03788

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 : MB4-03788 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX a.k.a. XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision May 26, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, a.k.a. XXXX XXXX, is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She is not filing any new evidence in her appeal and is not requesting a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] 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, a.k.a. XXXX XXXX, is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. BACKGROUND [4] At the RPD hearing, the appellant testified that her name is XXXX XXXX and that she is a citizen of Guinea. [5] The appellant testified that she is afraid of her family and members of society in general because of her homosexuality. She testified that she was in a homosexual relationship with a woman named XXXX XXXX in Guinea and that the woman fled to Senegal in 2010 for fear of experiencing problems because of her sexual orientation. [6] The appellant testified that she married a man named XXXX XXXX in February 2011 at her family's request and in order to conceal her sexual orientation. She testified that her husband and his family discovered her sexual orientation in June 2013. She testified that she fled that same month to Senegal, where she was reunited with her friend XXXX. [7] The appellant left Senegal for Canada on XXXX XXXX, 2014, where she claimed refugee protection when she arrived at the airport under the name XXXX XXXX. She had a Guinean passport and identity card in that name. [8] The appellant filed her Basis of Claim Form (BOC Form) with the RPD on February 6, 2014, in which she states that her name is XXXX XXXX. [9] The Minister of Citizenship and Immigration of Canada (the Minister), through his representative, intervened before the RPD on March 17, 2014, by filing a notice of intervention and documentary evidence. The Minister stated that the appellant was not credible, particularly given the stamps in her passport (in the name of XXXX XXXX) which show that she was not in Guinea at the time of the events that she alleges took place in that country. [10] On March 28, 2014, the appellant filed an amended BOC Form before the RPD in which she states that her name is XXXX XXXX. On April 2, 2014, the appellant filed a copy of a passport and a national identity card issued in the name of XXXX XXXX before the RPD. She stated that she received those documents from her sister in Guinea. [11] The RPD rejected the claim on the basis that the appellant did not discharge her burden of establishing her identity. [12] The RPD reached this conclusion specifically based on the following: the appellant stated that she had a different name when she arrived in Canada and on her original BOC Form, and it wasn't until the Minister intervened that she amended her identity; the identity documents filed under both names all proved to be genuine and unaltered; there are inconsistencies in the names of her family members, those recorded on the identity documents, those recorded by the appellant on various forms, and those provided during her testimony before the RPD; the passport and identity card in the name of XXXX XXXX were issued in February 2013, that is, before the appellant allegedly left for Senegal; there are inconsistencies between the information contained in the marriage certificate filed as evidence and the appellant's testimony, as well as the statements she made when she arrived in Canada. [13] Additionally, the RPD found that the appellant's allegations regarding her fear of persecution based on her sexual orientation were also not credible considering the inconsistencies between the statement she made when she arrived in Canada and her statements on her BOC Form, as well as the inconsistencies already mentioned regarding the information contained in the marriage certificate filed as evidence. [14] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility by failing to make a determination as to the veracity of her claim that she is lesbian. According to the appellant, the RPD [translation] "simply rejected the claim on general grounds of credibility". [15] The appellant also submits that the RPD erred in its assessment of her identity by failing to make a determination based on the credibility of the witness who testified about this at the hearing. [16] For these reasons, the appellant requests that the RAD set aside the determination of the RPD and grant her refugee protection. [17] The Minister did not intervene before the RAD in this case. RAD'S ROLE [18] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. [19] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the standard of review or intervention before the RAD or its role when an RPD decision is appealed to it. [20] The Honourable Justice Shore of the Federal Court of Canada has ruled on this matter in Alvarez1 and Eng,2 both rendered on July 17, 2014. [21] At paragraphs 28 and 29 of Alvarez, as well as at 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. [22] 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. [23] 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.... [24] In considering the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1), 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.... [25] 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". [26] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [27] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first finds that the RAD errs in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [28] 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 regarding the RAD, as stated by various stakeholders in debates 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, rather, to an appeal in its own right (paragraph 39). [29] Relying on the conclusions in Parizeau in terms of the standard of review that an appeal tribunal must apply, and distinguishing himself somewhat 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). [30] 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).... [31] 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 considered the above decisions, first concludes that they all reject the reasonableness standard of review and then expresses his opinion that the RAD must be allowed to choose between the two remaining approaches: 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). [32] At paragraph 46 of Alyafi, Justice Martineau states: [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. [33] Therefore, in my view, it is preferable for the RAD to apply the principles set out in Spasoja because, with all due respect, the role of the RAD as described therein appears to me to be more easily applicable in practice than that described in Huruglica, in particular when no new evidence is filed before the RAD and no hearing is held, such as in this case. [34] In the present matter, I find that the error alleged by the appellant regarding the assessment of her identity and her credibility is an error of fact, and I will therefore apply the standard of palpable and overriding error. [35] I will review and conduct my own assessment of all the evidence presented before the RPD to determine whether it made a palpable and overriding error. [36] 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 [37] The issue in this case is whether the RPD erred in its assessment of the appellant's identity and credibility. [38] Having considered the totality of the evidence presented, the RPD's reasons and the appellant's submissions, I find that the answer to this question is no, for the following reasons. [39] An analysis of the evidence presented regarding the appellant's identity leads me to conclude, as the RPD did, that the appellant did not establish her identity. [40] I reached the same conclusions as the RPD in that regard, which the appellant did not really challenge in her memorandum, except to say that the RPD should have considered the probative value to be granted to the witness who appeared to confirm her identity, an issue that I will address later. [41] First of all, the identity documents filed as evidence do not establish the appellant's true identity. [42] Specifically, I find that the two passports under different names filed as evidence make it impossible to establish the appellant's identity. On the contrary, the two passports, which were shown to be genuine and unaltered, according to experts, make the appellant's identity even more confusing, given that genuine and unaltered passports are normally presumed to establish the identity of the person to whom they were issued. Furthermore, the passport in the name of XXXX XXXX was issued on XXXX XXXX, 2013 (see page 149 of the RPD record), that is, before the appellant even went to Senegal where she stated that she obtained this passport, which, to reiterate, is genuine and unaltered. [43] The same reasoning also applies to the identity cards filed as evidence, which also bear the same names as the passports and were also found by experts to be genuine and unaltered. Furthermore, the names of the appellant's mother and father as recorded on the identity card in the name of XXXX XXXX, which the appellant alleges is her true identity, are different than the names the appellant herself gave on her BOC Form, even on the corrected form after the Minister intervened. [44] The marriage certificate filed in the name of XXXX XXXX is not an identity document per se, and it does not contain a photograph that would really link it to the appellant. Moreover, that document contains some inconsistencies regarding the husband's profession and the names of the bride's parents. Lastly, it should be noted that the appellant is also in possession of a marriage certificate in the name of XXXX XXXX, which she alleges is a forgery that she obtained in order to facilitate her obtaining her Canadian visa, although it contains information that contradicts the information on her visa application, specifically regarding her wedding date and even the name of the husband, which, in my view, further undermines the appellant's credibility regarding her identity. [45] Furthermore, it seems evident to me that the appellant's statements and testimony also fail to establish her true identity, thereby further undermining her overall credibility. [46] The appellant first entered Canada using the identity ofXXXX XXXX XXXX, and it was not until the Minister intervened that she set the record straight. In my view, the appellant's explanations on the matter, that she [translation] "had panicked" when she arrived at the airport, are not reasonable in the circumstances, because on the one hand, according to the appellant, she came to Canada specifically to claim refugee protection, knowing that this country respects human rights, and on the other hand, because the appellant would have had ample time to declare her true (according to her) identity after that, including when she filed her BOC Form, but she did not do so. [47] In her memorandum, the appellant submits that the RPD [translation] "did not rule on the credibility" of the witness who appeared and that that testimony was important because her identity was at issue. [48] At paragraph 69 of its reasons, the RPD considers the testimony of that witness, XXXX XXXX XXXX, and assigns no probative value to it in terms of proving the appellant's identity or her sexual orientation. [49] In my view, it is not appropriate to attach probative value to that testimony regarding the appellant's identity or her sexual orientation. In fact, the witness stated that he only met the appellant for the very first time after she arrived in Canada. The witness stated that he is an acquaintance of the appellant's sister's husband but that he did not know the appellant before she came to Canada. The witness therefore has no personal, direct knowledge regarding the appellant's identity or her sexual orientation. [50] In her memorandum, the appellant also submits that the RPD erred by failing to [translation] "independently" consider her credibility regarding her sexual orientation, which is the basis of her refugee claim. [51] I cannot agree with the appellant's argument. [52] I am of the view that case law from higher courts shows that when the identity of a refugee protection claimant cannot be established, the RPD is not required to analyze the basis of the claim any further. In Yang (Mei Yang v. M.C.I 2009 FC 681), the Honourable Justice Snider writes at paragraph 6: [6] Pointing to Lin v. Canada (Minister of Citizenship and Immigration), 2006 FC 84, [2006] F.C.J. No. 104 (QL) at paras. 10-11, Jiang v. Canada (Minister of Citizenship and Immigration), 2007 FC 1292, 68 Imm. L.R. (3d) 127 at para.7, and Zheng v. Canada (Minister of Citizenship and Immigration), 2008 FC 877, 74 Imm. L.R. (3d) 28 at para. 15, the Applicant submits that the Board must consider the entirety of her testimony, including that of her alleged persecution as a Christian. I do not agree with this broad interpretation of the cases cited. As I read the jurisprudence, the law is clear that, where identity is not established it is unnecessary to further analyze the evidence and the claims (Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 296, [2006] F.C.J. No. 368 (QL) at para. 8; Husein v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 726 (QL)).... [53] As a result, the RAD is also not required to assess the issue of the appellant's sexual orientation any further, given that she was unable to establish her identity. Furthermore, I would add that, even though it was not obligated to do so, the RPD did nevertheless consider the issue of credibility as it pertains to the appellant's sexual orientation at paragraphs 64 to 69 of its reasons and found that the appellant was also not credible on that point. [54] In light of the preceding, I find that the appellant has not shown that the RPD erred in its assessment of her credibility so as to justify the RAD's intervention. REMEDY [55] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX, a.k.a. XXXX XXXX, is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [56] The appeal is dismissed. Normand Leduc Normand Leduc May 26, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-03788 3