TB3-06189

RAD File No. / N° de dossier de la SAR : TB3-06189 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 8, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alain Sousa Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the Philippines, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) allow his appeal. 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 Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is afraid of his ex-wife's boyfriend, who wants to harm him. He is also afraid of the smuggler who assisted him in leaving the Philippines and entering Canada. [4] The Appellant's application for refugee protection was heard on June 10, 2013. In a decision of August 22, 2013, the RPD rejected the claim. The panel did not believe that the Appellant was ever threatened by his ex-wife's boyfriend, or is still threatened by him, as in the RPD's view, the Appellant came to Canada to find a job. After making this credibility finding, the panel wrote that "the determinative issue then becomes state protection" and found that the Appellant had not rebutted the presumption of state protection in the Philippines. [5] The Appellant submits that the RPD speculated in concluding that the Philippines can provide him with adequate state protection, and it based its findings on inconclusive objective evidence. The Appellant points out that, even though the RPD did not believe the threats to be real, they do exist in his mind. He notes that the RPD did not make negative remarks about his evidence and asks the RAD to find that he has a well-founded fear of persecution and that the Philippine state is unable to offer protection. ANALYSIS Standard of Review [6] The Appellant alleges that the RPD disregarded his own allegations and testimony in concluding that he does not face a risk of harm, and it also erred in assessing the evidence on the subject of state protection. The RPD's assessment of credibility involves questions of fact, while the matter of state protection raises questions of mixed fact and law.1 [7] The Appellant makes no submissions on the standard of review to be applied to this appeal. [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,2 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,3 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:4 (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.5 An appeal to 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: This appeal raises questions of fact and of mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 The Federal Court has found that, in the judicial review context, the issue of state protection is also subject to review on a standard of reasonableness.7 [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.8 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,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 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 proceeding.12 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,13 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.14 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 question in issue is one of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.15 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 proceedings would be reduced to little more than preliminary inquiries. [22] For these reasons, the RAD concludes that, in considering this appeal, 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.16 [23] The appropriate standard of review in this appeal is one of reasonableness, for questions of fact and credibility as well as for the issue of state protection. 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.17 The RPD's Findings [24] The Appellant challenges the RPD's treatment of his credibility, arguing that the panel made a finding that he does not face a risk to life or of cruel and unusual treatment or punishment, despite having "offered no negative remarks regarding the evidence presented by the claimant or testimony given at the RPD."18 The Appellant also submits that the RPD erred in its consideration of the evidence in respect to state protection. Credibility [25] Early in its decision, the RPD found that "there is insufficient credible and trustworthy evidence to establish that the claimant has a well-founded fear of persecution.... Or that, on a balance of probabilities, he would personally be subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment upon return to the Philippines."19 The RPD subsequently wrote, Regarding the claimant's fear of his ex-wife's partner, the panel does not believe that the claimant was ever threatened by his ex-wife's boy friend, or that he is still threatened by him. The panel believes that the reason the claimant came to Canada was purely for economic reasons in order to find a job.20 [26] The RPD's reasons then go on to summarize the Appellant's employment and travel history, as well as the alleged threats against him. [27] In Maldonado, the Federal Court of Appeal held that, where a refugee claimant swears to the truth of certain allegations, as the Appellant did before the RPD, there is a presumption that those allegations are true.21 While the RPD is entitled to base credibility concerns upon contradictions in the evidence,22 its decision-making process must be justifiable, transparent, and intelligible.23 [28] In this matter, the RPD appears to have had no regard for the presumption of the Appellant's truthfulness. It simply chose to disbelieve the Appellant's allegations without explaining how or why it reached this conclusion. The RPD did describe the Appellant's efforts to obtain employment, as well as his return to the Philippines for vacation. This may indeed have been the basis for the Board to make adverse credibility findings, but the panel was required to explain how it reached those conclusions and why it could not accept any explanations the Appellant had for his actions. [29] The RPD's unexplained credibility findings are unreasonable. However, as issue of state protection could also be determinative of the Appellant's refugee claim, the RAD will also consider the RPD's finding on that matter. State Protection [30] The RPD noted the Appellant's testimony that, while he did not seek police protection from his ex-wife's boyfriend, he did ask his family to approach the police. The RPD also found that the Appellant did not give the Philippine state an opportunity to protect him from the smuggler, as this fear arose while he was in Canada. The panel found that the Appellant's testimony did not rebut the presumption of state protection. It also considered the objective evidence about the efforts of the Philippine authorities to protect citizens and the fact that these efforts have had some success. Having also considered evidence about problems such as corruption, the RPD concluded that the presumption of state protection was not rebutted and that the Appellant can therefore expect such protection. [31] The Appellant argues that the RPD speculated when it found that he can expect adequate state protection. The RAD disagrees. As set out in Ward, the RPD must presume that a state is capable of protecting its citizens, and it was for the Appellant to rebut that presumption with clear and convincing evidence.24 As such, the RPD was not speculating, but rather presuming, as it was required to do. [32] The Appellant also submits that "the Panel's assumption of adequate protection offered by the State is inconclusive since it is based solely on general reports from Philippine government agencies and US Department of State Reports on Human Rights Practice for 2012."25 The RAD disagrees. First, the RPD is presumed to have considered all of the evidence before it.26 Second, the RPD's reasons show that the panel considered various objective documents relating to state protection in the Philippines, including from the Philippine government, the United States Department of State, the U.S. Overseas Security Advisory Council, and Amnesty International. The Appellant may disagree with the conclusion the RPD drew from those documents, but it is not for the RAD to re-weigh that evidence. [33] The RAD finds no error in the RPD's determination that the Appellant failed to rebut the presumption of state protection in the Philippines. DISPOSITION [34] The RAD has found that the RPD's credibility findings were unreasonable. However, the RPD reasonably concluded that state protection is available to the Appellant in the Philippines, and its decision is saved by this alternative finding. The RPD's finding that the Appellant can expect state protection in the Philippines falls within a range of possible, acceptable outcomes defensible in respect of the facts and law. CONCLUSION [35] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld November 8, 2013 Date 1 Ndoja, Paulin v. M.C.I. (F.C., no. IMM-3423-12), Roy, February 15, 2013; 2013 FC 163, para. 13. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 Andoni v. Canada (Minister of Citizenship and Immigration), 2012 FC 516, para. 35. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Newton, para. 80. 15 Khosa, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 18 Appellant's Memorandum, para. 4. 19 RPD's Reasons, para. 2. 20 RPD's Reasons, para. 14. 21 Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.). 22 Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 (F.C.A.). 23 Dunsmuir, para. 47. 24 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 25 Appellant's Memorandum, para. 2. 26 Hassan v. Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-06189