MB3-04435

RAD File No. / N° de dossier de la SAR : MB3-04435 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision June 25, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He has not submitted any new evidence on appeal but is requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I determine that the RPD's decision is wrong in mixed law and fact. I am unable to set aside the RPD's determination and substitute the determination that should have been made without hearing evidence that was presented to the RPD. [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [5] The appellant is a 25-year-old man who alleged before the RPD that he is homosexual and fears returning to his country for that reason. [6] The appellant alleges that he was caught kissing another man in the bathroom of a bar in XXXX on XXXX XXXX, 2012. He alleges that this shocked the bar's clientele and the people in the neighbourhood, who severely assaulted him and the other man. He alleges that he managed to escape with the help of some youths who disagreed with the mistreatment. [7] The appellant alleges that his father, who found out about the situation, threw him out of the family home. He alleges that he went to live with a friend, who informed him on XXXX XXXX, 2012, that he was wanted by the police because of his homosexuality. The appellant then allegedly went to stay with a cousin on his mother's side. [8] The appellant obtained a student visa for China on XXXX XXXX, 2012, which he had applied for before the incident on XXXX XXXX, 2012. He left his country for China on JXXXX 5, 2012, where he stayed until XXXX XXXX XXXX 2013, when he came to Canada and made a claim for refugee protection. [9] The appellant states that, if he were to return to Cameroon, he is afraid of being arrested by the authorities in his country because of his sexual practices. [10] The RPD rejected the refugee protection claim on the ground that the appellant's key allegations were not credible for reasons that will be set out in the "Analysis" section of this decision. [11] The appellant states before the RAD that the RPD erred in its assessment of his credibility because it was [translation] "overzealous" in considering the evidence; did not explain why it did not give any probative value to the wanted notice submitted into evidence; based part of its assessment on factors peripheral to the claim, such as his father's payment of his tuition in China; rejected his explanations regarding his Internet searches to find a wife; and did not provide clear reasons for rejecting his allegation that he is homosexual. [12] For those reasons, the appellant is requesting that the RAD set aside the RPD determination and substitute a [translation] "positive decision." STANDARD OF REVIEW [13] The IRPA does not expressly set out the standard of review that the RAD must apply when reviewing decisions rendered by the RPD. In this case, the appellant does not specifically propose what this standard of review should be, although he does state that the RPD's determination is unreasonable. [14] At paragraph 40 of his reasons in the recent decision Iyamuremye (Iyamuremye v. M.C.I., 2014 FC 494, May 26, 2014), the Honourable Justice Shore of the Federal Court of Canada writes: [40] In this case, the Court is entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law, and applying a reasonableness standard to those involving questions of mixed fact and law (White, above; also, Budhai, above; and Furlong, above). [15] I find that in this matter, the issue of whether the RPD erred in its assessment of the appellant's credibility is a question of fact. [16] I will therefore apply the reasonableness standard of review in this matter. [17] At paragraph 47 of the decision in Dunsmuir,1 the Supreme Court of Canada states that "reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Judicial deference is therefore required, and deference must be given to the RPD decision. DECISION ON WHETHER TO HOLD A HEARING BEFORE THE RAD [18] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence presented on 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; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [19] Since the preliminary requirement to this provision has not been met in this matter, because no new evidence has been allowed in the context of this appeal, I find that a hearing cannot be held in this case. ANALYSIS [20] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [21] In my opinion, the answer to this question is yes, for the following reasons. [22] To conclude that the appellant's key allegations are not credible, the RPD found that the evidence presented contains some implausibilities, namely: - It is implausible that the appellant was able to escape his attackers, who numbered about 30, when he was allegedly seriously injured, as he describes it, at the time of the alleged incident on XXXX XXXX, 2012. The RPD compared the appellant's testimony about this as an [translation] "outlandish scenario out of Hollywood." - It is implausible that the police officer brother of the friend with whom the appellant allegedly stayed after the assault could have known about the wanted notice concerning the appellant the very morning it was issued, namely, on XXXX XXXX, 2012, and immediately informed his brother, thereby enabling the appellant to flee. The RPD therefore gave no probative value to the wanted notice submitted into evidence, which it found was completely fabricated by the appellant. - It is implausible that the appellant's father, who apparently disowned him following the incident on XXXX XXXX, 2012, would pay in advance for the appellant's tuition for his studies in China, before the visa for China was even issued on XXXX XXXX, 2012, and that the appellant could have met his needs in China by working and could have obtained a visa for Canada without the financial support of his father or his family. - When the appellant was in China, he registered on a dating website centred on sex, indicating that he was looking for a woman. [23] The appellant mentioned the following in his memorandum by citing paragraph 15 of the Federal Court of Canada decision in Rico Quevedo (Rico Quevedo v. M.C.I., 2006 FC 1264, October 25, 2006): [15] When assessing an applicant's credibility, it must be presumed that allegations made under oath are true, unless there are serious reasons which lead the decision-maker to doubt their truthfulness: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (F.C.A.), [1979] F.C.J. No. 248 (QL); Miral v. Canada (Minister of Citizenship and Immigration) (1999), 86 A.C.W.S. (3d) 1117, [1999] F.C.J. No. 254 (QL). It is therefore only with great caution that an administrative tribunal may find a narrative to be implausible. It is only in the clearest of cases-for example, when there are internal contradictions in the testimony of a claimant-that such a finding may be made. This caution is particularly important where a claimant comes from a country where the culture and customs are different than ours, as several judges of this Court have taken pains to underline. Mr. Justice Muldoon reiterated this case law when he wrote the following at paragraph 7 of Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, [2001] F.C.J. No. 1131 (QL): A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu.... See also to the same effect: Bains v. Canada (Minister of Employment and Immigration), (1993), 63 F.T.R. 312 (F.C.), [1993] F.C.J. No. 497 (QL); Miral v. Canada (Minister of Citizenship and Immigration), supra; Bastos v. Canada (Minister of Citizenship and Immigration), 2001 FCT 662, [2001] F.C.J. No. 992 (QL); Sun v. Canada (Minister of Employment and Immigration) (1993), 24 Imm. L.R. (2d) 226 (F.C.), [1993] F.C.J. No. 812 (QL). [24] Given these principles, I find that there is nothing in the evidence the appellant presented that is implausible and could undermine his credibility to a sufficient degree to reject the refugee protection claim, at least for the reasons the RPD provided in its reasons. [25] Therefore, with respect to the appellant's escape at the time of the assault on XXXX XXXX XXXX 2012, I find that it was unreasonable for the RPD to find that it could be only an "outlandish scenario out of Hollywood." In my opinion, the facts the appellant reported are not outside the realm of what might logically be expected. The appellant explains that he escaped in large part because a group of youths who apparently disagreed with the assault intervened and because of luck. Given the entire situation the appellant described, I do not find that there is anything that would make it inherently implausible. [26] It also seems to me that there is nothing implausible in the fact that the police officer brother of the appellant's friend learned about the wanted notice the very morning it was issued and that he informed his brother about it, knowing that the appellant was staying with him. Instead, it seems plausible to me that police officers would know about wanted notices as soon as they are issued or when police officers start their shifts. [27] Therefore, I also find that the RPD erred by not giving any probative value to the wanted notice submitted into evidence for that sole reason, and by finding that that document, which on its face seems authentic because it bears an official stamp and a signature, was completely fabricated by the appellant. [28] In addition, I find that there is nothing inherently implausible in the fact that the appellant's father paid for his son's tuition in China before the visa was issued. The RPD did not cite documentary evidence that would indicate when the tuition had to be paid, and it seems possible to me that the Chinese authorities would require tuition to be paid before they issue the visa. In my opinion, there is also nothing implausible regarding the allegation that the appellant could meet his needs from a scholarship and part-time work, given the economic and social situation of a country like China, which has socialist politics. [29] Lastly, I find that the RPD is not sufficiently explicit in its reasons for rejecting the appellant's explanation for why he indicated on the dating website that he was seeking a woman. The appellant stated that he wanted to hide his homosexuality and find a woman who would help him leave for Europe. I find that the RPD's rejection of these explanations is tainted by its previous conclusions about the appellant's credibility, conclusions that I do not find reasonable. REMEDY [30] I find that the decision of the RPD is wrong in mixed fact and law. I am unable to set aside the determination of the RPD and substitute the determination that should have been made without hearing evidence that was presented to the RPD. [31] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [32] The appeal is allowed. Normand Leduc Normand Leduc June 25, 2014 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB3-04435 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-04435 2