TB3-07262

RAD File No. / N° de dossier de la SAR : TB3-07262 TB3-07263 TB3-07264 TB3-07265 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX) XXXX XXXX XXXXXXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX) XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 3, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jayson W. Thomas Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX, XXXX XXXX, XXXX XXXX, and XXXX XXXX (the Appellants), citizens of Bangladesh, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either make a positive determination in their claims or refer the matter to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. Background [3] The Appellants alleged before the RPD that they fear for their lives in Bangladesh because of the principal Appellant's work with the XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In XXXX of 2012, the principal Appellant was attacked by individuals from the Jamaat-e-Islami party, who beat him unconscious. He reported the assault to the police, but they did not act. The principal Appellant was attacked by members of the same group on two other occasions, and his wife was also threatened. The Appellants left Bangladesh on XXXX XXXX, 2013 and arrived in Canada the following day. They made refugee claims the next month. [4] The Appellants' applications for refugee protection were heard on September 5, 2013. By a decision of September 20, 2013, each claim was rejected. The RPD found that the principal Appellant, upon whose testimony all of the Appellants relied, was generally lacking in credibility. In the alternative, it found that the Appellants could avail themselves of a viable internal flight alternative (IFA) in Feni, Chittagong, or Khulna. [5] The Appellants submit that the RPD made unreasonable credibility determinations based on a misapprehension of the evidence, on non-existent inconsistencies, on improper speculation and on a microscopic treatment of the evidence. They also argue that the RPD unreasonably concluded that a viable IFA exists for them in Bangladesh. ANALYSIS Standard of Review [6] The Appellants submit that the RPD erred in its consideration of credibility and plausibility, and this raises questions of fact. Their argument that the RPD unreasonably found a viable IFA raises questions of mixed fact and law. [7] The Appellants make no submissions on the appropriate standard of review to be applied here; however, they do argue that the RPD made unreasonable credibility determinations and unreasonably found that an IFA exists, and their reference to reasonableness suggests a deferential standard of review. [8] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [9] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [10] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:3 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [11] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.4 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [12] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [13] The nature of the question in issue: These appeals raise questions of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.5 The Appellants also raise questions of mixed fact and law in respect to the RPD's IFA findings. In reviewing the issue of IFA, the Federal Court has applied a standard of correctness to the legal test for determining an IFA and a standard of reasonableness to the factual issues relating to IFA.6 [14] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [15] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [16] In the context of an appeal to the RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [17] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [18] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [19] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand. [20] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [21] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact and mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to the RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [22] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [23] The appropriate standard of review in these appeals is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 The RPD's Findings [24] The Appellants argue that the RPD's general credibility conclusion was based on a series of unreasonable findings which, independently or collectively, serve to undermine the entire decision. [25] Initial telephone threats: The RPD asked the principal Appellant when his problems with Jamat-e-Islami began, and he replied that they began on XXXX XXXX, 2012, when he was beaten by individuals who said they had already warned him by telephone. When questioned by the panel, the Appellant testified that he had received between thirty and forty threatening phone calls prior to the XXXX XXXX attack. The RPD asked the principal Appellant why this information is not in his Basis of Claim (BoC) form, and he explained that this was a mistake. The panel found that it was not reasonable that the Appellant did not detail in his BoC when the threats actually began. It also found it implausible that the Appellant would not have reported to the police that he was receiving so many threatening calls. [26] The Appellants argue to the RAD that the principal Appellant's BoC clearly states that he was given many threats over the phone and personally. As such, they submit that the RPD erred at the hearing when it suggested that the information was omitted, and made its negative credibility finding on a misapprehension of the evidence before it. [27] The RAD has carefully considered the Appellants' argument on this subject as well as the RPD's reasons. The RPD did ask the principal Appellant why the phone calls were omitted from his BoC when in fact there is some reference in the BoC to threatening calls. However, the RPD's credibility finding is not based on the omission of those calls from the BoC. The RPD found it unreasonable that "the claimant did not record when the threats actually began in his BOC, particularly due to the number of calls he alleges he received."17 [28] The instructions contained in the Basis of Claim form direct a refugee claimant to "...explain everything in order, starting with the oldest information and ending with the newest. INCLUDE EVERYTHING THAT IS IMPORTANT FOR YOUR CLAIM. INCLUDE DATES, NAMES AND PLACES WHEREVER POSSIBLE."18 In responding to this question, the principal Appellant made no mention of telephone threats, and described the XXXX XXXX attack as the first persecutory event. In responding to the next question-which asks about the harm feared upon return to the claimant's country-the Appellant included this statement: "I was given too many threats over phone and personally."19 [29] The principal Appellant signed a Declaration at the end of his BoC form, confirming that the information provided in the form is complete, true, and correct. He confirmed this at the RPD hearing. In this context, it is difficult for the RAD to understand why his BoC did not specifically refer to any problems before XXXX XXXX of 2012, or why it did not make specific mention of thirty to forty threatening phone calls received over a period of less than half a year-a rate of more than one call per week. He made no mention of the phone calls-which are certainly significant to his claim-in the question that invited such information, and instead made a vague reference to them in another answer. The RAD finds that it was reasonable for the RPD to make a negative credibility finding based on the principal Appellant's evidence about the phone calls. [30] The Appellants argue that the RPD erred in finding it implausible that the principal Appellant did not report the phone calls to the police. The Federal Court has cautioned that implausibility findings should be restricted to the clearest of cases: A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [see L. Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992) at 8.22] 20 [31] This is not the clearest of cases. The RPD noted elsewhere in its reasons that police corruption is rampant and systemic in Bangladesh.21 The Appellant explained that he reported the threats to his organization, and he was assured that he should not be afraid and could continue his work. In this context, the Appellant's actions were not outside of the realm of what could be reasonably expected, and it was therefore unreasonable for the RPD to make a finding of implausibility. [32] Threats to the principal appellant's wife: The principal Appellant testified to the RPD about an attack that he suffered on XXXX XXXX, 2013. He was asked twice whether there were any further incidents with the Jamaat-e-Islami before he left Bangladesh on XXXX XXXX, and he replied that he could see people loitering in front of his house, and that he and his wife continued to receive threatening phone calls. He was specifically asked if Jamaat members made any contact with him or his family, and he testified that his wife was threatened over the phone. The principal Appellant did not appear to remember, until prompted by the panel, that his wife's BoC describes an incident where she was personally stopped and threatened by individuals associated with Jamaat. The principal Appellant told the RPD that he forgot about this, but the panel did not accept his explanation and made a negative credibility finding. [33] The Appellants argue that this finding was unreasonable because it is based on a trivial and microscopic treatment of the evidence. They point out that, once the panel reminded him that there was another incident after XXXX XXXX, the principal Appellant gave evidence which was consistent with his wife's narrative. [34] In the RAD's view, there is nothing microscopic about the RPD's treatment of the evidence here. As the RPD reasonably pointed out, this was the final and most recent encounter with individuals from Jamaat. This incident was the first time that someone other than the principal Appellant was targeted by his opponents. In this context, it was reasonable to expect the principal Appellant to remember this incident unprompted, and the RPD did not err when it made a negative credibility finding based on his inability to do so. DISPOSITION [35] The Appellants allege that the RPD erred in finding that they were generally lacking in credibility and that the events they allege did not occur. They challenge three of the RPD's credibility findings. As set out above, the RAD agrees that the RPD erred in its implausibility finding, but finds the other contested findings to be reasonable. [36] Is the unreasonable implausibility finding fatal to the RPD's credibility determination? The RAD notes that the Appellants have not challenged other negative credibility findings made by the RPD. The RPD found the principal Appellant's testimony to be vague and lacking in detail. It concluded that his evidence was also inconsistent in respect to the number of men who attacked him. It found that the Appellants' credibility was also damaged by their delay in departing from Bangladesh, as they all had Canadian visas prior to the XXXX XXXX attack but did not leave until XXXX XXXX XXXX. It noted that the Appellants provided a letter from the XXXX XXXX XXXX XXXX, but that the letter made no mention of their difficulties, even though the principal Appellant testified to the RPD that he told the XXXX of his problems, and even though their claims rest on their alleged fear of harm because of his activities on behalf of the XXXX. It also considered a medical note from Bangladesh, and it found that the injuries reported-lack of consciousness and a bloody nose-were not consistent with those that could reasonably be expected where an individual has been beaten with sticks and iron rods. The RPD also drew a negative inference from the Appellants' lack of other documents, such as police reports and affidavits, and the Appellants' lack of effort to obtain these. [37] Having considered the RPD's credibility findings, both those challenged by the Appellants and those that stand uncontested, the RAD finds that the RPD's credibility determination was reasonable. The panel's conclusion that the Appellants were generally lacking in credibility falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. [38] The RPD rejected the Appellants' claims on the basis of credibility, and made an alternative finding on the issue of IFA. The RAD has upheld the RPD's credibility finding, and this is sufficient to dispose of these appeals. It is therefore unnecessary for the RAD to consider the Appellants' submissions on the issue of IFA. CONCLUSION [39] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. (signed) "Edward Bosveld" Edward Bosveld December 3, 2013 Date 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton, para. 43. 4 IRPA, Sections 96 and 97. 5 Khosa, para. 89. 6 Kamburona v. Canada (Citizenship and Immigration), 2013 FC 1052, para. 17-18. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 RPD's Reasons, para. 17, emphasis added. 18 RPD's Record, p. 17, Basis of Claim form, p. 2 of 12, emphasis in original. 19 RPD's Record, p. 18, Basis of Claim form, p. 3 of 12. 20 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, para. 7. 21 RPD's Reasons, para. 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07262 TB3-07263 TB3-07264 TB3-07265