TB4-06327

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 : TB4-06327 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 3, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister & Solicitor 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 ministre Reasons and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Bangladesh, 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 the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and refer the matter back to the RPD for redetermination. 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 was active in the Bangladesh Nationalist Party (BNP), and he fears harm at the hands of the governing Awami League because he witnessed the murder of two of his friends at the hands of government forces. [4] The Appellant's application for refugee protection was heard on April 8, 2014. By a decision of June 27, 2014, the RPD rejected the claim. The panel noted various inconsistencies in the Appellant's evidence, and also that he was neither clear nor forthcoming in his testimony. The RPD concluded that the Appellant was not a BNP activist and was not targeted as a witness to the murders. [5] The Appellant submits that the RPD made two errors in assessing his credibility: it was wrong to give no weight to a corroborating letter from the BNP, and it disregarded portions of his evidence with respect to the reason he was being targeted. ANALYSIS Role of the RAD What is the role of the RAD in considering an appeal against a decision of the RPD? [6] While IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [8] In Iyamuremye, the Court found itself: ...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 by applying a reasonableness standard to those involving questions of mixed fact and law....1 [9] The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".2 [10] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.3 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error".4 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [11] In Malhotra,5 issued after Alvarez, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [12] More recently the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.6 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.7 [13] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. [14] The Appellant submits that the RAD should conduct an independent assessment of the evidence in order to make its own determination of whether he is a Convention refugee or person in need of protection. [15] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RPD's Findings [16] The Appellant argues that the RPD made two significant errors in finding him to be lacking in credibility. [17] Corroborating letter: The Appellant could not provide a BNP membership card, but he did present the RPD with a letter from a BNP official, which stated that the Appellant was a sincere activist with the party and that he became a target of the Awami League while he was helping a local BNP candidate prepare for the national election. The RPD, having considered the Appellant's credibility issues, the absence of a membership card, his weak testimony about his BNP activities, and the fact that the letter is not an affidavit or statutory declaration, gave the document no weight. [18] The Appellant argues on appeal that the RPD did not doubt the authenticity of the letter but speculated that the author had written it only to advance the Appellant's refugee claim. In his submission, it was an error for the RPD to speculate on the motive of the writer of the letter. [19] Having reviewed both the letter8 and the Appellant's testimony to the RPD, the RAD reaches the same conclusion as did the RPD with respect to the letter. The letter is undated, with the only date shown appearing to be placed there by the interpreter. The document does not provide an address, telephone number, or e-mail address of the author. While the letter claims that the Appellant "formally joined to Bangladesh Nationalist Party (B.N.P) at our XXXX Branch of Sub District: XXXX XXXX XXXX, 2003" and though objective evidence indicates that the BNP does issue official membership cards,9 the Appellant could produce no such document. The letter is not an affidavit or statutory declaration, and it does not contain any visible security features, not even a stamp. Given these difficulties with the document, as well as the problems with the Appellant's inconsistent, vague, and hesitant testimony, the RAD finds that this letter has no probative value. [20] Targeting of the Appellant: The RPD asked the Appellant why he was personally targeted, and he explained this was the case because he was a witness to shootings at the rally in Chandpur. When asked if he was the only witness, he claimed that there were many, but that he had helped the wounded individuals and taken them to the hospital. When questioned further, he added that, after the wounded were taken to hospital, he looked after them from time to time and learned from hospital staff that the police were seeking him. The RPD observed that this important information was not included in his Basis of Claim (BoC) form, and it ultimately concluded that he was not targeted as he claimed. [21] The Appellant argues on appeal that his BoC indicates that the men who were killed were his friends, and therefore it was reasonable that he would have taken them to the hospital. In his view, the RPD ignored his evidence that the victims were his friends. [22] This argument cannot succeed. The Appellant's BoC narrative states that his friends "were killed receiving injuries from bullets shot by the police. Police started to look for me aiming to kill me as I was a witness to the killings. I managed to flee Dhaka and discussed the matter with senior leaders of my party. They suggested that I leave the country."10 There is simply no indication that the Appellant took wounded individuals to the hospital, looked after them, or learned there that he was sought by police. Instead, the narrative suggests that he fled the area. This is an inconsistency that goes to the heart of the claim, as the Appellant alleges that he is sought by the authorities because he witnessed the shootings. [23] The RPD had an advantage over the RAD in assessing the Appellant's credibility here; however, even if the RAD would not defer to this finding, it would reach the same conclusion based on its own review of the evidence. [24] The Appellant gave vague and contradictory evidence to the RPD, and the RPD did not err in finding that the Appellant had not established the key elements of his claim with credible evidence. Having reviewed the RPD's record, the RAD reaches the same conclusion. CONCLUSION [25] 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 3, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 2 Iyamuremye, para. 3. 3 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 4 Alvarez, para. 33. 5 Malhotra, Sunil et al. v. M.C.I. (F.C., No. IMM-6899-13) Bédard, August 1, 2014; 2014 FC 768. 6 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 7 Huruglica, para. 45. 8 RPD's Record, p. 139, Letter from Mohd. XXXX. 9 RPD's Record, National Documentation Package (NDP) for Bangladesh (14 March 2014), Item 4.5, Response to Information Request (RIR) BGD103519.E, Bangladesh: Membership documents issued by the Bangladesh Nationalist Party (BNP) to its members, 26 August 2010. 10 RPD's Record, p. 22, Basis of Claim Narrative. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-06327