MB5-01030

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 : MB5-01030 MB5-01031 MB5-01032 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision September 1, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Mike Hacikyaner Conseil des personnes en cause Designated representative XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, his spouse, XXXX XXXX, and their minor son, XXXX XXXX XXXX, all citizens of Turkey, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] They are presenting some documentary evidence in their memorandum and are requesting that a hearing be held before the Refugee Appeal Division (RAD). [3] The male appellant, XXXX XXXX, was appointed the designated representative of his minor son, XXXX XXXX XXXX, before the RAD, just as he had been before the RPD. DETERMINATION OF THE APPEAL [4] I conclude that the RPD's determination is erroneous in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that should have been made without holding a new hearing to review the evidence that was presented to the RPD. [5] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND 1- Appellants' allegations [6] The principal appellant, XXXX XXXX, alleges in his Basis of Claim Form (BOC Form), which was submitted before the RPD, that he is a Turkish citizen of Kurdish ethnicity and Alevi faith, as are his spouse and son, who are also appellants in this case. [7] The male appellant alleges that, when he was young, he and his family hid their ethnicity and religion while they were living in a town in the province of Silas, which was populated by people of Kurdish and Turkish ethnicity, to avoid being discriminated against. He alleges that he discovered his ethnicity in 1988, at the age of XXXX, when he and his parents moved to the city of Silas, and then to the Gazi Mahallesi district of the city of Istanbul. [8] The appellants allege that on the night of XXXX XXXX, 2013, while they were on their way to a place called the Gazi Cem House to celebrate Hizir, they were stopped by police officers who then took them to the police station, where they were questioned and abused. [9] The principal appellant alleges that the police beat him on XXXX XXXX, 2013, at a demonstration held at Gezi Park. [10] The appellants allege that the police detained them for three days, along with other Kurds, following a demonstration in their district on XXXX XXXX, 2014. They allege that the police insulted, beat and threatened them during this detention. They allege that they received threatening telephone calls following their release. [11] On XXXX XXXX, 2014, the appellants left Turkey for the United States, with travel documents supplied by a [translation] "smuggler." On October 22, 2014, they walked across the border into Canada, where they later claimed refugee protection on or around November 7, 2014. 2- Minister's allegations [12] The Minister of Public Safety and Emergency Preparedness of Canada (the Minister), through his representative, intervened before the RPD by filing a notice of intervention and some documentary evidence alleging that the appellants' credibility is undermined because they applied for a visa for the United States and not for Canada, their destination; because they arrived in the city of Minneapolis, in the United States, and travelled to the city of Seattle to cross the Canadian border into the province of British Columbia, and then travelled to the province of Quebec, where they claimed refugee protection; and because the principal appellant failed to declare his previous marriages, including one with a woman who tried, unsuccessfully, to sponsor him in Canada. [13] For these reasons, the Minister is requesting that the RPD reject the refugee protection claim. 3- RPD decision [14] The RPD rejected the refugee protection claim. First, it found that the appellants' allegations that they were detained for three days in XXXX 2014 and that they then received threatening telephone calls were not credible. It then found that the events that occurred in XXXX 2013 and in XXXX 2014, as well as the discrimination they might have faced, was not sufficient to amount to persecution for political or religious reasons, or for reasons of nationality. [15] Additionally, the RPD was of the opinion that the appellants could avail themselves of an internal flight alternative (IFA) in the city of Ankara, Turkey. 4- Appellants' allegations before the RAD [16] The appellants submit in their record a series of excerpts from the hearing before the RPD (see pages 13 to 22 of the appellants' record) and indicate in their memorandum that translation errors had occurred in relation to the event on XXXX XXXX, 2013, and that, as a result, [translation] "in the eyes of the panel, everything becomes unconvincing." [17] The appellants also submit that the RPD erred by criticizing them for not mentioning in the forms they provided to Canadian immigration authorities that they had been incarcerated (even though they allege that they were in XXXX 2014), by criticizing them for not knowing the source of the telephone threats and by considering that there was an inconsistency in their testimony regarding the date when they allegedly began receiving the threatening calls. [18] Finally, the appellants submit that the RPD erred by concluding that they could avail themselves of an IFA in the city of Ankara because the situation is the same everywhere for Kurds in Turkey, as established by the documentary evidence. [19] For these reasons, the appellants are requesting that the RAD set aside the RPD's determination and grant them refugee protection or refer the matter to the RPD for re-determination. ADMISSIBILITY OF NEW EVIDENCE [20] The appellants' record contains a number of documents, including: 1- Response to Information Request, TUR104096.E, dated June 14, 2012 (pages 24 to 29 of the record); 2- Newspaper articles in a bundle, dated June and July 2013, or undated (pages 30 to 35 of the record); 3- Photographs of the principal appellant (page 36 of the record). [21] I note, first, that documents 1 and 3 are not new documents because they were also submitted before the RPD and are therefore already part of the record before the RAD. [22] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [23] Subparagraph 3(g)(iii) of the Refugee Appeal Division Rules also requires that appellants include in their memorandum full and detailed submissions regarding how any new evidence presented meets the requirements of subsection 110(4) of the Act and how it relates to them. [24] I find that the appellants have not met the requirements of subparagraph 3(g)(iii) of the Rules in that they failed to provide full and detailed submissions regarding how the evidence in Exhibit 2 meets the requirements of subsection 110(4) of the Act. These documents predate the rejection of the claim and the appellants did not explain why they were not accessible or why they could not reasonably have been expected to present them at the hearing before the RPD. [25] For these reasons, I do not accept these documents as evidence before the RAD. HEARING BEFORE THE RAD [26] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence adduced in the appeal is admissible and meets the following three criteria: (1) it raises a serious issue with respect to the credibility of the person; (2) it is central to the decision with respect to the refugee protection claim; (3) if accepted, it would justify allowing or rejecting the refugee protection claim. [27] Given that the prerequisite of that provision was not satisfied in the case at hand because no new evidence has been accepted in this appeal, I conclude that a hearing cannot be held in this case. ROLE OF THE RAD [28] The IRPA does not specifically provide for the standard of review or intervention that the RAD should apply when it reviews the decisions rendered by the RPD. In this case, the appellants do not propose what the RAD's role should be or what standard of review it should apply when reviewing RPD decisions. [29] The Federal Court, which has the authority to review the RAD's decisions, has rendered several decisions to date about the RAD's standard of review or intervention or its role when a decision of the RPD is appealed to it. [30] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada rules on this matter. [31] In paragraphs 28 and 29 of Alvarez, as well as paragraphs 29 and 30 of Eng, the Court writes as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [32] The Court adds the following in paragraph 33 of Alvarez, as well as in 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. [33] In a decision rendered on August 22, 2014, in Huruglica,3 the Honourable Justice Phelan of the Federal Court considers the RAD's role and functions 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.... [34] 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)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [35] Justice Phelan finally 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". [36] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [37] 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 standard of reasonableness rather than conducting an independent assessment of the refugee protection claim (paragraph 12). [38] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions relating to the RAD under the IRPA, of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau,5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the parliamentary committee of the House of Commons to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review but, rather, to an appeal in its own right (paragraph 39). [39] Relying on the conclusions in Parizeau in terms of the standard of review that an appellate tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review applicable to the RAD are correctness for questions of law, and palpable and overriding error for questions of fact and questions of mixed fact and law. In addition, the RAD must give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [40] The Honourable Justice Roy also indicates that he cannot find any indicators providing for an appeal de novo before the RAD (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).... [41] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having reviewed the aforementioned decisions, concludes that they all reject the reasonableness standard of review and then states that, in his opinion, the RAD should be allowed to choose between the two remaining approaches: 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). [42] Justice Martineau writes in paragraph 46 of Alyafi that: [46] ... I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [43] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described therein appears to me to be more easily applicable than that described in Huruglica, in particular when no hearing is held before the RAD, such as in this case. [44] In this case, I am of the opinion that the error alleged by the appellants regarding the assessment of their credibility is one of fact, and I will therefore apply the standard of palpable and overriding error. [45] I am of the opinion that the error alleged regarding the RPD's IFA assessment is a question of mixed fact and law involving the application of a legal test to the facts of the matter, and, consequently, it is also subject to the standard of review of palpable and overriding error. [46] I will review and conduct my own assessment of all the evidence presented before the RPD to determine whether the RPD committed a palpable and overriding error. [47] 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 1- Did the RPD err in the assessment of the appellants' credibility? [48] In paragraph 39 of its reasons, the RPD writes: "Given the aforementioned discrepencies and incoherences regarding the alleged detention of XXXX 2014 and the alleged phone calls received by the claimants, the tribunal did not believe that the claimants were detained in XXXX 2014 because their participation at the Kobani demonstration". [49] However, there are no contradictions or inconsistencies mentioned in the reasons in relation to the appellants' alleged detention following the demonstration on XXXX XXXX, 2014. The female appellant was asked some questions at the hearing regarding the arrest on XXXX XXXX, 2014, and I did not note any apparent contradictions or inconsistencies in the account she gave of this event. [50] Consequently, I am of the opinion that the RPD's finding of non-credibility regarding this event is erroneous. [51] It is true that at the start of the hearing the female appellant initially stated that the threatening telephone calls began on XXXX XXXX or XXXX XXXX, 2014. However, when questioned again on this topic later at the hearing, the female appellant clearly indicated that the calls began [translation] "after the detention, which began on XXXX XXXX" and that what she had stated beforehand was that the calls started [translation] "after the event on XXXX XXXX," that is, following her release. [52] However, I am of the opinion that the contradiction is not clear or sufficient enough to reject the appellants' allegation that they received telephone threats. In my opinion, this RPD finding is erroneous. [53] As a consequence of the above, the RPD's finding that the discrimination experienced by these citizens because of the simple fact that they are Alevi Kurds in Turkey does not amount to persecution is necessarily also erroneous because this finding was made without consideration for all the facts of the present case. 2- Did the RPD err in its assessment of the IFA? [54] The test to be applied to assess the IFA is set out by the Federal Court of Appeal in Rasaratnam6 and Thirunavukkarasu.7 These decisions clearly show that the test to be applied to determine whether an IFA exists is two-pronged: 1- ...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. 2- Moreover, conditions in the part of the country considered to be an IFA must be such that it would be not unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [55] Both prongs must be satisfied for a finding that an IFA exists. [56] When listening to the recording of the hearing before the RPD, I note that the appellants were not asked any questions regarding the second prong of the IFA, namely, that pertaining to the reasonableness of the IFA. [57] I am of the opinion that, although the RPD deals with the reasonableness of the IFA in paragraphs 56 and 57, based on the evidence already submitted but unrelated to the issue of the IFA, it still committed an error by not specifically questioning the appellants on this topic. They could have, for example, presented additional evidence establishing the unreasonableness of the IFA in their case. [58] As a consequence of all the above, I am of the opinion that the RPD's decision is erroneous and that the RAD's intervention is warranted. REMEDY [59] I conclude that the RPD's determination is wrong in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that should have been made without holding a new hearing to review the evidence that was presented to the RPD. [60] Under subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [61] The appeal is allowed. Normand Leduc Normand Leduc September 1, 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. 6 Rasaratnam v. Canada (1992), 1 FC.706 (C.A.), p. 710. 7 Thirunavukkarasu v. Canada (1994), 1. FC 589 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-01030 MB5-01031 MB5-01032 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-01030 MB5-01031; MB5-01032 2