VB4-01532

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 : VB4-01532 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is (are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision March 19, 2015 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is (are) N/A Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, also known as XXXX XXXX XXXX XXXX (the "appellant"), a national of Ecuador, appeals the negative determination of the Refugee Protection Division (the "RPD") regarding his claim for refugee protection. As is set out in the RPD Notice of Decision dated May 15, 2014, the appellant's claim was heard by the RPD on May 5, 2014 with an oral decision being rendered on that date.1 The RPD determined that the appellant was neither a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")2 nor a person in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of IRPA, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] The appellant was self-represented before the RPD as he is once again before the RAD. The Minister did not intervene at either Division. [4] No transcript of the RPD proceedings was included in the Appellant's Record (AR).3 However, a compact disc (CD) of those proceedings forms part of the RPD Record (RPDR) and is found at the back of that Exhibit.4 The appellant has made some references to the CD by way of time-codes in his AR. I have listened to the CD and conducted a review of the entire RPDR. [5] The appellant seeks to present five new documents to the RAD pursuant to subsection 110(4) of IRPA. He does not seek a hearing before the RAD pursuant to subsection 110(6) of the Act. Basis of Claim [6] As is set out in the appellant's Basis of Claim (BOC) Form,5 he is a 30-year-old single man from Quito, Ecuador. His parents and three younger sisters still live there. [7] He alleges that he has a well-founded fear of persecution everywhere in his home country by reason of his political opinion, as well as a probability of facing subsection 97(1) of IRPA risks or danger throughout Ecuador if he is returned there. He alleges that adequate state protection would not be available to him anywhere in the country. [8] On the afternoon of XXXX XXXX, 2014, the appellant took up a position by himself at an intersection in Quito. He held a poster in favour of free speech denouncing government legislation inhibiting that right. He was approached by four men who he has identified as members of the Neighborhood Brigades (NB), a group allegedly affiliated with the Alianza Pais party (AP), the governing party of the country. They shouted abuse at him, pushed him down and kicked him in the stomach. One of the men took his wallet, looked at his identification documents and wrote down his name. They stole his wallet and backpack before they left. [9] The appellant immediately ran to a local police station to complain about what had happened. He accompanied the police in their vehicle and went looking for the four men. When they came across the men walking in the street, the policeman recognized them as being NB, or members of the AP. As a result of this political affiliation, the appellant alleges that the police became antagonistic towards him and took no steps to arrest the appellant's assailants. In fact, the appellant alleges that the police told him that he had been the problem by creating civil disorder and that he would be arrested for that if he did so again. They did retrieve the appellant's wallet and backpack, returning them to him. The police refused to take a denunciation from the appellant regarding the theft, telling him that the value of the backpack was too little, the theft was only a small infraction and that he should forget about the incident. [10] Four days after the attack the appellant received a telephone call at home wherein an unknown man told him that the appellant would be watched and, if he continued with his political activism, he would end up "under the bridge", which the appellant took to be a threat on his life. [11] The appellant alleges that these events created such fear in him for his safety that he stayed at home until he could leave the country, which he did on XXXX XXXX, 2014, entering Canada on that date and making a claim for refugee protection shortly thereafter. [12] The appellant alleges that the government in power in Ecuador has turned the country into a tyrannical, totalitarian and repressive state. He states that the government and its political party, the AP, are well organized throughout the country and are able to keep track of dissidents such as him for the purposes of targeting them. One of the primary methods of doing this is through what are known as the NB which are found in communities throughout the country. He also alleges that the police operate in concert with the AP-led government. RPD Decision [13] The RPD found that the appellant had successfully established his status as a national of Ecuador. [14] The determinative issues for the RPD were credibility, the objective basis for the appellant's alleged fear and internal flight alternative (IFA).6 Credibility and the Objective Basis for Fear [15] The RPD stated that it did not find the appellant's allegations plausible. The Member noted that the alleged basis for the appellant's fear is largely tied into a single event i.e. standing on the corner with a protest sign against the government. He was assaulted and robbed by persons affiliated with the government's political party. The police provided only marginal assistance in recovering the appellant's property, but otherwise made it clear that the assailants would not be charged and, in fact, it would be the appellant that would face charges for social disruption should he replicate his protest activities. The event was followed up a few days later with a threatening phone call. [16] The Member found that, "There is absolutely no evidence before me to establish that this has ever happened to anyone else with a profile such as yours in Ecuador."7 [17] The RPD also noted that the appellant's effort to obtain state protection was limited to the sole contact he had with them immediately after the assault. This was so even though the appellant came from a wealthy family and did not speak with a lawyer or try to pursue any other revenue to resolve the situation rather than leave the country. [18] Compounding the RPD's concerns about the appellant's credibility was the evidence that he had been willing to unlawfully live in other countries in the past. As is indicated in the record,8 the appellant went to study in the United States (US) on a four-month student visa in 2008 but overstayed the visa's expiry, not leaving the US until April 2010. [19] Notwithstanding the above findings, the Member stated:9 However, I am not prepared to find on this basis alone that the event you describe did not happen. However, despite finding that these events may have happened, I find that there is no evidence to support that what happened to you in the past will happen again if you returned to Ecuador now. [20] Based on the appellant's evidence, the RPD found that he did not have a high political profile in Ecuador. The Member reviewed in detail three of the disclosed country condition documents from the March 14, 2014 Ecuador National Document Package (NDP) and concluded that, while there is some repression of freedom of speech in Ecuador, gangs of political thugs associated with the ruling government party "do not walk the streets robbing and assaulting people who were involved in small scale individual acts of political dissent."10 These documents include those from the US Department of State, Amnesty International and Insight Crime. [21] Based on the review of the documents, the RPD found that, if the events the appellant related had happened to him in Ecuador were likely to reoccur upon his return, there would have been some mention of that likelihood in the country documents, which there was not. Internal Flight Alternative [22] The overriding determinative issue for the RPD was its finding that there was an IFA for the appellant in Guayaquil, Ecuador:11 Ultimately, the determinative factor in your claim is internal flight alternative. I found that even if you were to face a risk of persecution or harm in Quito, Ecuado[r] if you return there, this risk would not exist in Guayaquil. Based on the implausibility of your allegations and the lack of objective evidence supporting the theories you've expressed, I find that at most you're being harassed by one small group of government supporters and the police that you contacted [who] were unwilling to get involved in this dispute. There is no credible evidence beyond your speculation that the government has your name in a database and that the government of Ecuador would pursue you and threaten you or your family in every part of Ecuador. Your political profile is limited to one solitary individual act of political protest. If Ecuador was an oppressive police state then perhaps you would have problems in other parts of the country. However, the country condition documents do not support this. I do not find that the government of Ecuador in its entirety has labelled you as a political dissenter or that they would be motivated to cause you harm in general. You provided no evidence as to why it would be unreasonable for you to relocate in Ecuador as you testified that the only thing preventing you from doing this is your fear that you be tracked down and persecuted further by your agents of persecution in Guayaquil. [23] The RPD therefore rejected the claim with respect to both sections 96 and 97 of IRPA. GROUNDS OF APPEAL [24] The appellant alleges that the RPD made a number of mistakes in coming to its negative determination. In his Memorandum he takes issue with the RPD's findings on the following matters:12 * The RPD erred when it found that the persecution alleged by the appellant related to a solitary event and that there was no evidence to establish that what he alleged had happened to him had happened to anyone else. * The RPD erred when it criticized the appellant for taking no further steps to seek state protection beyond his one attempt immediately following the attack on him. Despite being from a wealthy family he did not speak with a lawyer or pursue any alternative course other than leaving the country. * The RPD erred when it linked the fact that the appellant had lived illegally in the United States for a period of time in the past to its assessment of the credibility of the appellant's narrative of what subsequently led to his leaving Ecuador. * The RPD erred when it concluded that what had happened to the appellant in Ecuador the past would not happen if he were to return to Ecuador now. * The RPD erred in finding that there was no evidence in the country condition documents that would support the appellant's allegation that the events that had happened to him previously would happen to him upon his return. * The RPD erred in concluding that the appellant had an IFA elsewhere in Ecuador and in finding that the government does not have his name on a database of dissenters. * The RPD erred in finding that, at most, the appellant had been harassed by one small group of government supporters and that the police the appellant had contacted were unwilling to get involved in the dispute [sic]. It was also an error to conclude that, because the appellant's political profile is limited to one solitary act of protest, nothing bad will happen to him upon a return to his country. [25] These issues will be discussed more fully in the Analysis portion of this decision. REMEDY SOUGHT [26] The appellant seeks an order that the RAD set aside the determination of the RPD and substitute it with a determination that the appellant is a Convention refugee or a person in need of protection.13 THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [27] In his AR the appellant made no submissions with respect to the proper standard of review or intervention the RAD should apply to the determinations of the RPD. [28] Subsequent to the July 2014 Federal Court decisions in Alvarez14 and Eng15 mentioned in the following, on August 7, 2014 the RAD Registry invited any submissions the appellant might wish to make on the standard of review in light of those cases. The appellant did not do so. [29] The RAD commenced its operations in December 2012, following amendments being made to IRPA. The RAD's initial decisions found that reasonableness was the appropriate standard of review for matters concerning fact and mixed fact and law with correctness being the standard for issues of law alone. The correctness standard with respect to alleged errors of law continues to be acknowledged by the Federal Court. [30] The first Federal Court judicial review of a RAD decision was not until May 2014. This initial review by Justice Shore in Iyamuremye16 supported the RAD's then interpretation that "reasonableness" should be the standard of review with respect to RPD findings of fact and mixed fact and law. Nonetheless, the Federal Court found that the RAD's failure to assess all of the evidence when determining whether the RPD findings were reasonable required that the matter be returned to the RAD for reconsideration. [31] However, commencing in late July 2014, the Federal Court began to provide numerous other decisions which rejected the standard of "reasonableness" with respect to the RAD's assessment of RPD findings of fact or mixed fact and law. The subsequent problem created for the RAD with respect to the matter of the appropriate standard of review arose from the fact that, aside from virtually unanimously rejecting the "reasonableness" standard, there developed a lack of comity among the Justices of the Federal Court as to what standard, if any, should replace it, as well as to what type of RPD findings any such standard should apply. [32] In the first two of these decisions decided in July 2014, Alvarez and Eng, Justice Shore, who initially adopted the reasonableness standard in May 2014, altered his position and found that because the RPD process is an appeal and not in the nature of judicial review, the RPD should conduct its own assessment of the facts in order to determine whether the RPD made an error regarding findings of fact to the point of making "a palpable and overriding error."17 The Federal Court found that the RPD's ability to hear viva voce evidence required the RAD to show deference to the RPD's findings of fact and mixed fact and law. This standard of palpable and overriding error was subsequently adopted by Justice Roy in Spasoja18 in September 2014. [33] In August 2014, subsequent to Alvarez and Eng but prior to Spasoja, Justice Phelan in Huruglica19 also rejected the reasonableness standard. However, he found that the RAD should not become involved in applying a standard of review but, rather, when coming to its determination, should consider its purpose as an appellate body, the provisions of the legislation, and its expertise compared to that of the RPD. The RAD is to conduct a "hybrid appeal" whereby it is not restricted to intervening only in the event of a palpable and overriding error. Rather, the RAD is to "recognize and respect" the findings of the RPD, but only where the RPD had an advantage in making findings such as when it hears direct evidence from a appellant or witness. Otherwise, the RAD is to make its own independent assessment as to whether or not an appellant is a refugee or a person in need of protection. Importantly, having rejected the standards of reasonableness and palpable and overriding error regarding the deference to be shown by the RAD to the RPD, Justice Phelan did not further define what the phrase "recognize and respect" might mean in the context of its actual application to specific cases. Subsequent cases which adopted the general thrust of Huruglica have also not provided a specific definition of that type of deference.20 [34] Many other subsequent Federal Court decisions discuss various nuances as to whether or not the type of deference subsumed in the phrase "recognize and respect" only applied with respect to credibility issues, extended to general findings of fact or, perhaps in some situations, matters of mixed fact and law. [35] Yet other Federal Court decisions which found that the RAD was in error in applying the standard of reasonableness to findings of fact by the RPD nonetheless confirmed the ultimate determination of the RAD on the basis that the RAD had, in any event, reviewed all of the evidence and what the RAD had confirmed in these cases were essentially credibility findings of the RPD. I will comment further on these cases later in these reasons. [36] The history and development of the above varying points of view were discussed in detail by Justice Martineau in his October 8, 2014 decision in Alyafi.21 Justice Martineau concluded that as a result of the case law which had developed at the Federal Court and, due to a lack of comity among the various Justices on certain fundamental principles, a conundrum has been created whereby inconsistent and irreconcilable authorities had developed which were, nonetheless, equally binding on the RAD as a result of the application of the principles of stare decisis. [37] Justice Martineau noted that certain certified questions yet to be determined by the Federal Court of Appeal could ultimately resolve the conundrum. However, as stated by the Justice, the matter could well not end at the Federal Court of Appeal level and could require an ultimate determination by the Supreme Court of Canada. In Justice Martineau's estimation the clarity which might be expected to emerge from this process could take considerable time to emerge. In the interim, in the Justice's view the RAD faces the unresolvable dilemma of being legally bound by decisions which are contradictory and mutually exclusive in important respects. [38] Justice Martineau found that as an interim solution until the questions are resolved by authorities superior to the Federal Court, Members of the RAD should be free to select either of the two basic streams of analysis developed to that point, without facing the prospect of having their RAD determinations set aside solely for the reason of having selected one of the two analysis to the exclusion of the other. One of the lines regarding deference and alleged RPD errors relating to findings of fact is represented by Justice Roy in Spasoja who would apply the standard of palpable and overriding error while the other is led by Justice Phelan in Huruglica using the phrase "recognize and respect" in connection with RPD credibility findings where the RPD is in a better position than the RAD to make those findings. [39] It is important to recall that, up to and including the point in time that Justice Martineau decided Alyafi, all of the Federal Court judges had taken the approach that the Federal Court's review of the RAD's interpretation of IRPA should be based on the standard of correctness. That being so, in my assessment a junior decision-maker such as a Member of the RAD, being equally bound by both lines of reasoning, but invited by Justice Martineau to select one or the other until the matter was resolved at a higher level, left the RAD to select all of the reasoning of one or the other of the lines but did not allow the RAD to provide an interpretation of its home statute that was different from either or, even, a blend of the two. As I understand it, that is also the nature of the principle of stare decisis. [40] In what I consider to be a further important development in the case law, in November 2014 Madam Justice Gagné in Akuffo22 broke with her colleagues and specifically found that the Federal Court's review of the RAD's interpretation of its home statute should not apply the standard of correctness but, rather, reasonableness. She did so having regard to four recent Supreme Court of Canada decisions which she determined were binding. She came to a similar general conclusion in Kurtzmalaj23 and, specifically when dealing with the introduction of new evidence before the RPD pursuant to subsection 110(4) of the Act, in Singh.24 This was the conclusion as well Justice Martineau adopted later in November in Djossou.25 Justice Martineau also stated the following with regard to a "pragmatic approach" to the issues he suggests is appropriate in light of the law surrounding the function of the RAD: [37] Hence, this is why it seemed to me to be more prudent, in this case, as long as the issue has not been finally resolved on appeal, to adopt a pragmatic approach. Also, for the very reasons that were put forth in Alyafi, above, I do not think there is any need, at this particular moment, for me to make any sort of final ruling on the interpretation of sections 110 and 111 of the IRPA to determine this application for judicial review. For the time being, there appear to be a number of possible approaches, but what is clear, however, is that the option chosen by the RAD (a judicial review-based approach) is not an acceptable outcome in law. Even applying the lesser standard of reasonableness, I still arrive at the same end result as my colleagues who applied the more stringent correctness standard. Intervention is warranted in his case. In this way, the choice of appropriate standard of review will not be determinative of the matter (which might not have been the case had I adopted a correctness standard or had I dismissed the applicant's application by applying a standard of reasonableness). [RAD emphasis] [41] Very recently, Justice Boswell in Siliya,26 after concluding that the question of the standard of review as between the RAD and the RPD was not dispositive in the case before him, provided the most definitive view to date that the Federal Court is to apply the standard of reasonableness to RAD factual findings when stating: [20] Otherwise, the reasonableness standard applies to the RAD's factual findings, and its assessment of the evidence before it is entitled to deference (see: Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190 [Dunsmuir]; Yin at para 34; Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at para 27; Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13-14). Moreover, the RAD's decision should not be disturbed so long as it is justifiable, intelligible, transparent and defensible in respect of the facts and the law (Dunsmuirat para 47). Those criteria are met if "the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR 708). [42] Using the same criteria applied by Justice Martineau in Alyafi27 when he determined that, while inconsistent with each other, the Federal Court decisions in Huruglica and Spasoja were both binding on the RAD, I find so too would be Justice Gagné's decision in Akuffo, Justice Martineau's in Djossou and Justice Boswell's in Siliya. [43] I appreciate that Justices Gagné, Martineau and Boswell were dealing with the Federal Court's standard of review regarding the RAD's determinations and not the RAD's analysis of the decisions of the RPD. However, having concluded that when the Federal Court utilizes the correctness standard when reviewing RAD decisions, there is strictness to that analysis that requires the RAD to apply the Federal Court's direction in a very specific way. Compliance with that level of "correctness" is exceedingly difficult, if not impossible, when there are multiple views of what is correct emanating from the same level of judicial authority, all of which technically bind the RAD. As Justice Martineau has noted, a significant time will likely pass before further direction will be available from the Federal Court of Appeal, if not higher authority. However, where the Federal Court adopts a standard of review of reasonableness in reviewing the RAD's interpretation of how it is to perform its legislatively mandated jurisdiction, particularly in light of the divergent views of the Federal Court, additional flexibility may be allowed the RAD in dealing with its ongoing caseload in the interim on a case-by-case basis. However, this flexibility will still be constrained to the extent that some common principles have emerged from the body of jurisprudence provided so far by the Federal Court. I will discuss those later in these reasons. [44] One of the more significant conundrums noted by Justice Martineau and other Justices arising from the current case law concerning the RAD is what is meant by "deference". "Palpable and overriding error" is, like "reasonableness", a legal concept for which much legal guidance has been provided from the courts at all levels for many years. However, the notion of the RAD "recognizing and respecting" the conclusions of the RPD in particular circumstances (such as findings based on credibility or where the RPD otherwise enjoys a particular advantage over the RAD in coming to its conclusions) has not been given any further definitional substance. [45] Broadly stated, "deference" involves the concept by which one sublimate's one's own view to that of another. That is to say, even though one's conclusion differs from that of another, there is good reason to defer to the other's conclusion. [46] When assessing the "good reason" to defer, one measure is the existence of "palpable and overriding error". In the Alvarez case noted earlier, Justice Shore stated: [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.28 [RAD emphasis] [47] In 2012 Justice Stratas of the Federal Court of Appeal in South Yukon Forest Corporation commented: [46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Pearl v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.29 [RAD emphasis] [48] When reviewing a decision on the basis of "reasonableness" the analysis will be concerned with 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.30 [49] I acknowledge both Justice Shore's observation that, while "reasonability" and "palpable and overriding error" have some similarities, the standards are different and Justice Stratas' statement that the latter is a "highly deferential standard of review." It may well be that, under the definitions provided; an error that is palpable and overriding will always also reveal an unreasonable conclusion. However, the reverse may not always be the case. There may well be a steeper hill for an appellant to demonstrate a palpable and overriding error than it is to show a lack of reasonableness. [50] Given the general thrust of virtually all of the Federal Court decisions to date that a RAD appeal is to be comprehensive in its nature, I conclude that the palpable and overriding test may be too stringent for the task at hand. I elect not to use it in the circumstances where the Federal Court is not of one mind on the issue. [51] As noted by Justice Barnes in the Federal Court decision in Kanga, in such situations it is not necessary for me to explain further why I have selected one of the two competing lines of authority as opposed to the other: [11] Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.31 [52] In the Akuffo decision discussed earlier, Madame Justice Gagné found that in the particular case before her she was, "far from being convinced that there is a real and pragmatic difference between an 'unreasonable' error and an 'overriding and palpable' one, I am of the view that said distinction would have no impact in the case at bar."32 She determined that the RAD had reviewed and reassessed the evidence and "gave proper deference to the RPD's credibility findings which were sufficient for the RAD to reasonably confirm the RPD's overall conclusion that the [appellant] was neither a Convention refugee nor a person in need of protection."33 She also concluded: [47] The RAD did consider the applicant's explanations for his behaviour during his birthday party and later on the same night. The RAD concluded that even if these explanations seemed reasonable, it was nevertheless of the view that the RPD's analysis was reasonable when looking at the claim as a whole. This is a strong indication that the RAD had reviewed the evidence given by the applicant and reassessed the claim in light of its own finding that some explanations given by the applicant were reasonable.34 And, [50] I find it reasonable that the RAD deferred to the RPD's credibility findings. I also find that its overall reassessment of the evidence is reasonable. Therefore, the application for judicial review will be dismissed.35 [53] In Akuffo, the RAD had clearly applied the traditional definition of "reasonableness" in assessing the RPD's determination but, because the RAD had restricted itself to the analysis of the credibility of the appellant and it was evident that the RAD had conducted its own analysis of the evidence, the RAD decision was confirmed. This was so even though the RAD believed, contrary to the RPD, that some of the appellant's explanations given by the appellant were reasonable. [54] There are a number of similar examples to be found in the case law where the RAD's confirmation of the RPD's negative credibility findings have been upheld by the Federal Court, even though the RAD had utilized the reasonableness standard in assessing those findings. However, in so doing the Federal Court has certainly not endorsed the nomenclature of "reasonableness" but has accepted the result in any event, at least where the RAD's analysis is restricted to the credibility findings of the RPD. A common thread appears to be the fact that the Federal Court was satisfied with the process the RAD had followed in comprehensively reviewing the available relevant evidence in assessing the RPD findings rather than the RAD's decision to use the word "reasonable" in its conclusions. [55] Examples would include the decisions of Justice Shore in Sajad and Allalou.36 In Sajad, Justice Shore found that the RAD had "validly shown deference" to the RPD's credibility findings and that the result would have been the same "regardless of the standard of review it applied." In Allalou, he found that "considering that the RPD's decision is solely founded on findings of credibility, the RAD applied the appropriate level of deference towards the RPD's determinations of the applicant's credibility." The RAD had used the reasonability standard. Likewise, this was also the case for Justice Locke in Njeukam37 where, although the reasonability standard was utilized to assess the RPD's credibility findings, the issue of standard of review was not determinative because the RAD had conducted a thorough review of the evidence and, having done so, ". . . the RAD was right to defer to the RPD's finding." [56] Thus it is then that a standard of review generally applied by the RAD to all findings of fact and mixed fact and law based on reasonableness, per se, will not be acceptable to the Federal Court. However, a comprehensive analysis of the RPD credibility and other factual findings (where the RPD is in a better position than the RAD to make such conclusions) based on criteria similar to that of the traditional definition of "reasonableness" may find approval on judicial review. Based upon the culmination of the case law to date, I cannot craft a more precise conclusion than that. [57] Some support regarding the above conclusion about the standard of review as between the Federal Court and the RAD can be drawn from the recent December 2014 decision of Justice Noël in Yin.38 The Justice notes in detail the mixed state of the law regarding the standard of review the Federal Court should use in assessing RAD determinations (at paragraph 32) and states further: [33] As such, the standard of review this Court should apply when reviewing the standard of intervention chosen by the RAD in its review of a RPD decision is undecided. As noted, this question is not determinative with regards to the case at bar. I therefore adhere to Justice Martineau's approach in Djossou, supra at para 37, that until this question is resolved by the Federal Court of Appeal, a pragmatic approach should be used for the determination of the present judicial review. [34] In the present appeal, the RAD is being asked to deal only with the credibility findings made by the RPD, as the appeal shows. As it is well recognized, in such cases, the standard of review applicable is that of reasonableness.39 [58] Justice Noël provides examples of four of the cases I have noted above where the Federal Court dismissed an application for judicial review in instances where the RAD used a reasonableness standard regarding RPD credibility findings and then stated: . . .however in Djossou, supra, Justice Martineau states that he will not judicially impose on the RAD any degree of deference whatsoever to be applied to RPD decisions (at para 91). Being prudent, Justice Martineau also does not speculate nor gives a definitive opinion as to the scope of the examination of a RPD decision on appeal to the RAD (Alyafi v Canada (Minister of Citizenship and Immigration), 2014 FC 952 at paras 51-52).40 [59] Regarding the case before him Justice Noël found: [37] In the case at bar, in its decision, the RAD reiterates the RPD credibility conclusions and concludes that the RPD findings were reasonable. A reading of the RAD decision shows that it read the transcript of the RPD hearing, the documentation filed and that it reassessed the credibility findings of the RPD. It even went further than the RPD in its analysis of the political context in Cambodia by comparing the Applicant's allegations to the US Country Reports on Human Rights Practices for Cambodia for 2012. The RAD notes that the Applicant's allegations contradict this documentary evidence. It is also based on this last evaluation that the RAD confirmed the RPD conclusions. The RAD assessment therefore goes further than simply confirming the RPD decision. The RAD conducted its own examination of the record before the RPD in making its decision. This situation is therefore very similar to the four cases identified above, where this Court confirmed the RAD decision and rejected the application for judicial review. Whatever the deference to be given by the RAD to RPD credibility findings, the RAD in this case looked at the evidence, dealt with the credibility issues raised by the appeal and concluded that the RPD credibility findings were sound, as its own assessment reveals. I, therefore, conclude that the RAD, by doing its review and own assessment of the evidence, did assume fully its role as an appellate tribunal and did show the required deference to the credibility findings made by the RPD.41 [RAD emphasis] [60] Given its recent publication date and the fact that the decision is rendered in the context of not only the Federal Court internal debate regarding standards of review (both as between the Federal Court and the RAD and the RAD vis-à-vis the RPD, but also with respect to the meaning of "deference" regarding the latter) I take Justice Noël's synopsis as a general overall guide to the appropriate practical or pragmatic approach I should take in conducting a RAD appeal until the various issues in play are resolved by the Federal Court of Appeal. [61] Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal. As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under section 110(6) of IRPA. I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [62] Having conducted my own analysis of the RPDR, as well as the appellant's submissions, I find that the determinative issue on this appeal is IFA. This is the same determination made by the RPD. The RPD concluded that a viable IFA exists for the appellant in Guayaquil, Ecuador. I concur. [63] A proper IFA analysis includes two primary components or prongs. I must be satisfied on a balance of probabilities that (1) there is no serious possibility of the appellant being persecuted or, on a balance of probabilities, in danger of torture or being subjected to a risk to his life or of cruel and unusual treatment or punishment in the IFA42 and, (2) that conditions in that part of the country are such that it would not be reasonable, in all the circumstances, including those particular to the appellant, for him to seek refuge there.43 [64] I find that at the outset of the hearing, the RPD appropriately placed the appellant on notice that IFA would be an issue in the claim.44 With respect to the burden of proof, once the issue is raised as it was in this case, the onus is on the appellant to show that he does not have an IFA. I find that in this case, the appellant has failed to demonstrate that a viable IFA does not exist for him in Guayaquil. [65] For the purposes of considering this issue, I will, similar to the RPD, assume that the following allegations have been established by the appellant: * He was standing alone on a street corner one afternoon in Quito on XXXX XXXX, 2014 holding a sign protesting recent government legislation restricting freedom of speech and the press. The words on the sign were to the effect "Communication and Penalty Bills are Threats to Freedom". * Four men approached him shouting abuse. They pushed him to the ground and kicked him in the stomach. One man took his wallet, looked at his identification papers and wrote down his name. The men then left, taking the appellant's backpack and wallet. * The appellant then ran to a nearby police station to report the event. Some policeman drove with him through the neighborhood until they located the four men. The men identified themselves to the police as being members of the Neighborhood Brigade (NB). * Once the police knew of the group's NB affiliation, their attitude toward the appellant changed significantly. The police told the appellant that the theft of his things was only a small infraction and too minor for them to take a denunciation from the appellant. Thereafter, the four men were released after returning the appellant's wallet and backpack. The police told the appellant that he had been the problem and that if he protested again as he had before he would be arrested for causing civil disorder. * Four days after the initial event, the appellant received a telephone call at his home. A man told the appellant that he was being watched and that if he continued with his political activism he would end up "under the bridge" which the appellant took to be a threat on his life. * Being frightened, the appellant then remained in his home for the next approximately 2 months until he was able to leave Ecuador for Canada, arriving here on XXXX XXXX, 2014. He made a claim for refugee protection shortly thereafter. [66] In addressing the first prong of the IFA test (i.e. is it likely that the appellant would be safe from a serious possibility of persecution or a probability of section 97 risks or danger in the IFA), one must not only assess the characteristics or circumstances of the appellant but, so too, the alleged potential agents of persecution or harm. [67] In this case, it is the NB which the appellant alleges is a nationwide organization which is, effectively, an arm of the ruling party, the AP. The appellant alleges that the NB was created by the AP and that they are organized spies for the government who keep track of political dissenters. They exist in every neighborhood, but all local brigades belong to one nationwide organization. He alleges that they maintain records of dissenters and that his name and identity is contained in their or the government's database. He alleges that, with this personal information, the NB could find him anywhere he went in the country. He fears that he could even be killed by members of this group. [68] At the RPD and in support of his claim, the appellant disclosed approximately 60 pages of country condition documents. I have read these documents. They make numerous references to the current government's efforts to stifle critical media through use of legislation and defamation suits against those, particularly journalists, who denounce its activities. As well, the President of the country regularly takes over live media to specifically denounce individuals and groups he feels are spreading dissent in the country. There are some reports of leading activists, including organizers of indigenous groups and journalists, being harassed and, sometimes, assaulted. [69] However, as was also noted by the RPD, with the exception of one particular document discussed below, these documents do not speak about the NB or its activities. Nothing in these documents supports the appellant's allegations that the group has been organized by the government to keep track of, harass or assault persons such as the appellant involved in the sort of protest he alleged he had been in doing in XXXX 2014. There is simply nothing along those lines in this material with regard to the NB. [70] The RPD Member made specific reference to three reports from the Ecuador NDP of March 14, 2014.45 These include Item 2.1, the US Department of State report of 2013; Item 2.2, the Amnesty International report of 2013 as well as Item 7.4, being an article from the Insight Crime organization titled "Ecuador Expands Community Police Force". I too have read and considered the entirety of these documents. [71] As was noted by the Member and as I have also concluded, these reports do confirm, in particular, the government's attempts to control and intimidate the media and specific social leaders but, once again, there is nothing dealing with the NB, either generally or confirmatory of the basics of the appellant's allegations against it. [72] The US State Department report46 refers to certain human rights abuses by the security forces, including even isolated unlawful killings, particularly by police units. The independent media is regularly threatened with verbal and legal attacks. On the other hand, the report also states that there were no reports that the government or its agents committed politically motivated killings. As referenced by the RPD, other such comments include:47 Generally, individuals could criticize the government publicly or privately without reprisal, although a new communications law passed in June restricted the open space for criticism. And, The law provides for freedom of peaceful assembly. The government respected this right with some exceptions. Public rallies required prior government permits that were usually granted. [73] The Amnesty International report48 specifically notes that indigenous and campesino (rural peasants) were subjected to unfounded criminal charges and prosecutions, coupled with arbitrary arrests. Bail conditions were harsh so as to discourage them from voicing their opposition to the government. Laws dealing with the "crime of insult" are used against journalists to criticize the government to deter people from speaking out. [74] The only document in evidence that considered the NB is the Insight Crime article (Item 7.4 from the Ecuador NDP49) which is specifically referred to by the RPD.50 [75] The group is described as being made up of approximately 18,000 citizens, legally organized in about 2,200 community units throughout the country. They are registered with the Interior Ministry of Ecuador. They have been in existence since 1995 but were institutionalized and regulated since 2011. They are said to "reflect a trend indicative of state failure to provide security citizens". [76] The article states: . . .brigade members are provided training, are required to work only as support to the police, and may not carry weapons. According to El Comercio, many members do carry sticks or whips when they go out at night, but when they find someone committing a crime, they simply hand them over to police, said one brigadier. And, Members of these groups cited high levels of insecurity as their reason for taking part in these patrols, and the country's Security Ministry reported that the work of these brigades has contributed to a reduction in crime. [77] The article goes on to note that somewhat similar groups in Guatemala, Mexico, Colombia and Peru have become involved in violent vigilante justice and paramilitary self-defense groups but, with respect to Ecuador, states: The institutionalization of Ecuador's community brigades and legal restrictions placed on their work-particularly the prohibition against carrying weapons-lowers the possibility that these groups will take justice into their own hands or become involved in criminal activities themselves. However, ultimately they remain a symbol of institutional failure in security. [78] Nowhere in this article or elsewhere in the evidence is there any objective indication that the NB of Ecuador are involved in organized spying on dissenters in the country on behalf of the government, whether those with a profile like the appellant or otherwise. There is no evidence that they have a practice of attacking dissenters of any sort. No mention whatever is made of a national database whereby the NB directly (or the government through NB) maintains lists information on people such as the appellant. There is no indication that the NB in one area has direct communications with the NB in any other community whereby they do, or would be able to, maintain surveillance on anyone. In my assessment, the appellant has provided no objective evidence in support of the factual basis upon which he alleges he would face persecution, risks or danger should he return to Ecuador as he has alleged. [79] Therefore, in the context of my IFA assessment, I find that the appellant has failed to credibly establish that the NB has the practice, motive or means to look for and contact him in the proposed IFA of Guayaquil to do him harm. Accordingly, based on my own review of the evidence, I concur with the ultimate finding of the RPD that it is not likely that the appellant would face a serious possibility of persecution or a probability of section 97 risks or danger from those members of NB who assaulted him in Quito (or any members of NB in Guayaquil at the request of Quito NB members) should he move to Guayaquil. [80] I mentioned at the outset that the appellant seeks to present five articles to the RAD for its consideration pursuant to section 110(4) of the Act.51 They are: 1) "Litigate against the State is losing" Fundamedios, December 12, 2012; 2) "Presence of hired assassins by Alianza Pais in the town of Santa Isabel" from the website of an Ecuadorian political party, MPD, March 28, 2012;52 3) "Journalist asyled [sic] in the U.D. denounces aggression from Ecuadorian counsel" Fundamedios, July 12, 2013; 4) "Hidden operations in Colombia to bring back to Balda" Fundamedios, January 29, 2013; 5) "Ecuadorian government supporters protested journalist award ceremony in US" IFEX, December 2, 2013. [81] Subsection 110(4) of IRPA provides that an appellant may only present evidence to the RAD that, (1) arose after the rejection of their claim or that, (2) was not reasonably available or that (3) the person could not reasonably have been expected in the circumstances to have presented at the time of the RPD hearing. Rule 3(3)(g)(iii) of the RAD Rules53 provides that an appellant is to provide full and detailed submissions regarding how any such documents meet the requirements of subsection 110(4) and how that evidence relates to the appellant. [82] As can be seen from the above, all five articles bare publication dates prior to the RPD hearing date of May 5, 2014 with the negative oral decision rejecting the claim being rendered on the same date. Clearly, they existed prior to the RPD hearing. In his written statement set out in his AR the only comment the appellant provides with respect to why these documents were not presented to the RPD was that: "I did not have these documents when the RPD rejected my claim, because they were not available to me."54 [83] The appellant has provided no explanation as to why the documents were not available. He describes no particularly onerous process he needed to follow in order to ultimately provide copies to the RAD. He provides no explanation why he could not have reasonably been expected to provide these documents to the RPD. The basis of his claim clearly relates to his fear of persecution for political reasons and he would have reasonably been expected to provide such country documents in support of his allegations at the RPD. [84] On this basis, I find that the appellant has not met the criteria set out in subsection 110(4) and the documents will not be accepted at the RAD. [85] I note in passing that, even if the documents had been accepted, virtually no or very little weight could be given to them inasmuch as they do not assist the appellant in providing an objective basis for his allegations regarding the activities of the NB or the threat it allegedly presents to him. In this regard, these additional documents have the same failings as did the original country condition documents the appellant provided the RPD which I discussed earlier. They simply do not speak to the NB generally nor do they confirm what the appellant accuses that group of doing in Ecuador or what it might do to him in the future should he return and live in Guayaquil. Moreover, consistent with the earlier group of documents, these additional articles primarily deal with steps taken against activist leaders, opposition politicians and journalists and not anyone having the appellant's type of profile. [86] In that regard, the appellant testified55 that he was not a member of a political party and that his interests lie mainly with the Catholic religion. In the past he considered becoming a priest. He was not a journalist of any sort nor was he a leader of any community or activist groups. He testified that he publicly displayed signs/posters only on four occasions, one being the protest against government legislation repressing freedom of speech which underlies the basis for this claim. The other three occasions were when his message was of a religious bent, not directed at the government. For that reason he testified no one attacked or bothered him on those occasions. He did testify that he would occasionally denounce the government to taxi drivers while they gave him a ride but there was no evidence whatever provided by the appellant that anything negative grew out of that or any objective evidence that taxi drivers served as agents or spies for the government in any way. [87] With regard to the second prong of the IFA analysis, the appellant testified that, were it not for any potential problems with NB, there was no reason why he could not live in Guayaquil,56 one of the, if not the most populous cities in the country. As well, he testified that he was from a wealthy family who, for example, had sufficient means to financially support him the whole time he was in the US.57 [88] Having considered both prongs of the IFA, I find, on a balance of probabilities, that there is no serious possibility that the appellant would be persecuted as he has alleged or that it would be probable that he would face a danger of torture or a risk to his life or a risk of cruel and unusual treatment or punishment should he return to Ecuador and live in Guayaquil. Moreover, I also find, on a balance of probabilities, that given the conditions in that part of the country as well as the appellant's particular circumstances, it would not be harsh or unreasonable for him to live there. I conclude that the appellant has a viable IFA in his own country and therefore does not require the surrogate protection of Canada. [89] This finding is dispositive of the appellant's claims to be both a Convention refugee under section 96 of the Act or a person in need of protection under section 97 of the Act. CONCLUSION [90] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX, also known as XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection is confirmed. His appeal is denied. (signed) "Philip MacAulay" Philip MacAulay March 19, 2015 Date 1 Refugee Appeal Division (RAD) Exhibit 4, Refugee Protection Division Record (RPDR), pp. 3-8. 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 RAD Exhibit 3, Appellant's Record (AR). 4 RAD Exhibit 4, RPDR, p. 218. 5 RAD Exhibit 4, RPDR, pp. 9-24. 6 RAD Exhibit 4, RPDR, p. 3, lines 24-29. 7 RAD Exhibit 4, RPDR, p. 3, lines 36-37. 8 RAD Exhibit 4, RPDR, p. 27. 9 RAD Exhibit 4, RPDR, p. 4, lines14-17. 10 RAD Exhibit 4, RPDR, p. 4, lines 19-23. 11 RAD Exhibit 4, RPDR, p. 7, lines 4-22. 12 RPD Exhibit 3, AR, pp. 87-100. 13 RAD Exhibit 3, AR, p. 98. 14 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 15 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 16 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 17 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; and Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 18 Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913. 19 Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799. 20 For example see Njeukam v Canada (Minister of Citizenship and Immigration), 2014 FC 859; Yetna v Canada (Minister of Citizenship and Immigration), 2014 FC 858; and Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063. 21 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 22 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, paras. 15-27. 23 Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072. 24 Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022. 25 Djossou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1080. 26 Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120. 27 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paras. 42-52. 28 Alvarez v. Canada (Minister of Minister of Citizenship and Immigration), 2014 FC 702, para. 29. 29 Canada v. South Yukon Forest Corporation, 2012 FCA 165, para. 46. 30 Dunsmuir v. New Brunswick, 2008 SCC 9. 31 Kanga v. Canada (Minister of Citizenship and Immigration), 2012 FC 482, para. 11. 32 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, para. 38. 33 Akuffo, ibid., para. 46. 34 Akuffo, ibid., para. 47. 35 Akuffo, ibid., para. 50. 36 Sajad v. Canada (Minister of Citizenship and Immigration), 2014 FC 1107, at para. 26; and Allalou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1084, at para. 20. 37 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859, at para. 18. 38 Yin v. Canada (Minister of Citizenship and Immigration), 2014 FC 1209. 39 Yin, ibid., paras. 33 and 34. 40 Yin, ibid., para. 36. 41 Yin, ibid., para. 37. 42 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) 43 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 44 RAD Exhibit 4, RPDR, p. 218, CD, 00:04:00- 00:05:40. 45 RAD Exhibit 4, RPDR, p. 4, line 25 - p. 7 line 2. 46 RAD Exhibit 4, RPDR, pp. 167-208. 47 RAD Exhibit 4, RPDR, pp. 4-6. 48 RAD Exhibit 4, RPDR, pp. 208-209. 49 RAD Exhibit 4, RPDR, pp. 210-211. 50 RAD Exhibit 4, RPDR, p. 6, lines 17-32. 51 RAD Exhibit 3, AR, pp. 15-85. 52 The appellant provided no publication date for this article but did provide its web address. That site identifies the article as having been published March 28, 2012. 53 Refugee Appeal Division Rules, SOR/2012-257. 54 RAD Exhibit 3, AR, p. 15. 55 RAD Exhibit 4, RPDR, p. 218, CD, 00:26:20-00:30:00 and 00:49:00-00:51:00. 56 RAD Exhibit 4, RPDR, p. 218, CD, 00:56:00-00:56:30. 57 RAD Exhibit 4, RPDR, p. 218, CD, 00:41:00-00:48:40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01532