TB3-04508

RAD File No. / N° de dossier de la SAR : TB3-04508 TB3-04509 TB3-04510 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 21, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kumar S. Sriskanda Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX, XXXX XXXX, and XXXX XXXX (the Appellants) appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals, and do not request an oral hearing. The Appellants ask that the Refugee Appeal Division (RAD) allow their appeals and either substitute its own decision that they are Convention refugees or return the matter to be heard by a different member of the RPD. [2] XXXX XXXX (the principal Appellant) is the designated representative for both minor Appellants. DETERMINATION [3] The RAD confirms the decision of the RPD that Appellants are citizens of Greece. As such, the RAD has no jurisdiction to hear their appeals, which are dismissed. Background [4] The principal Appellant alleged before the RPD that her husband, XXXX XXXX, is in hiding in Albania because of a blood feud between his family and the XXXX family. In 1984 her husband's brother, XXXX, was killed by a police officer who is a member of the XXXX clan. The victim's father attempted to kill a XXXX family member as revenge, and he was sentenced to eighteen years in prison. In XXXX of 2012, her husband's cousin attempted to kill another member of the XXXX family, and that family declared a blood feud in XXXX of 2012. Upon return to Albania, the Appellants fear that they will be harmed or killed by the XXXX family. [5] The Appellants arrived in Canada in XXXX of 2013, having travelled on Greek passports. They made claims for refugee protection, and the Minister of Citizenship and Immigration Canada intervened in those claims.1 The Minister argued to the RPD that the Appellants' Greek passports are genuine and that they are therefore citizens of Greece. In support of this argument, the Minister provided correspondence from Canadian officials overseas, who confirmed the veracity of the passports with Greek officials. [6] The RPD heard the Appellants' claims on February 18, 2013. In a decision of June 3, 2013, the RPD found that the Appellants were lacking in credibility and that they are in fact citizens of Greece. [7] The Appellants submit that the RPD applied an incorrect test in determining their national identity and also erred in its consideration of the evidence before it. ANALYSIS Standard of Review [8] In alleging that the RPD applied the wrong legal test to the matter of identity, the Appellants raise an issue of law. In alleging that the RPD erred in its assessment of evidence, the Appellants raise issues of fact. [9] What is the appropriate standard of review to be applied in these appeals, where the appellate tribunal is to consider alleged factual and legal errors made by the tribunal of first instance? [10] The Appellants make no submissions on the appropriate standard of review. [11] 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. [12] 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. [13] 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. [14] 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 the 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. [15] 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. [16] The nature of the question in issue: In these appeals, some questions in issue are ones of fact, which have generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.6 Questions of law, also raised in these appeals, have in general been reviewed on a correctness standard in the appellate court context.7 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.8 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [17] 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. [18] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.9 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. [19] In the context of an appeal to 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. [20] 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." [21] 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. [22] 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,10 and each can take notice of information and opinion within its specialized knowledge.11 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,12 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's proceeding.13 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should show deference to the RPD on findings of fact and particularly in respect to credibility,14 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand. [23] 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.15 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...." [24] The Newton factors are a better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in these appeals, 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. Some questions in issue here are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.16 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's proceedings would be reduced to little more than preliminary inquiries. [25] For these reasons, the RAD concludes that, in considering questions of fact in these appeals, 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.17 [26] The appropriate standard of review for issues of fact raised in these appeals is one of reasonableness. 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.18 [27] The RAD owes no deference to the RPD's decision, however, on questions of law. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.19 A correctness standard on questions of law ensures universality in the application of the law.20 [28] The appropriate standard of review for questions of law raised in these appeals is one of correctness. The RAD will not show deference to the RPD's reasoning process on such issues but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.21 The Correct Test for a Finding of Identity [29] The RPD considered the Appellants' Greek passports, and information from Canadian officials overseas indicating that Greek authorities have confirmed the passports as true. Although the principal Appellant testified that the passports were improperly obtained and that none of the Appellants is a citizen of Greece, the RPD found the Appellants to be lacking in credibility. The RPD found that the Greek passports were properly obtained and are genuine and, having considered other documents as well, the panel concluded "on a balance of probabilities, that the claimants are citizens of Greece."22 [30] The Appellants argue that the RPD should not have presumed that they are Greek citizens on the basis of the passports. In the Appellants' view, the RPD used an incorrect test-balance of probabilities-in determining their nationality. It is unclear from the Appellants' Memorandum which test they would have preferred the RPD to apply, though they cite jurisprudence which establishes that the test for feared persecution is a "reasonable possibility" or a "serious possibility." [31] Whether the RPD used the correct legal test in determining the Appellants' identity is a question of law, to be reviewed on a standard of correctness. [32] The RPD must apply a different standard to measure the evidence in a refugee claim-factual matters are considered on the civil standard of a balance of probabilities-than it uses to assess the risk of persecution, which is gauged by proof there is a reasonable chance or more than a mere possibility of such persecution.23 [33] A refugee claimant's national identity is a matter of fact and, in the RAD's view, is properly determined on a balance of probabilities. The Appellants cite no case law in support of their contention that a different standard applies. In fact, the RAD notes that the Federal Court has held that identity is to be determined on a balance of probabilities.24 [34] The RAD finds that the RPD applied the correct test in determining, on a balance of probabilities, that the Appellants are citizens of Greece. [35] The Appellants also argue that the RPD erred in concluding that the Appellants are nationals of Greece on the basis of their Greek passports. In the Appellants' submission, "Every citizen may obtain a passport. But that does not mean that every person who holds a passport is a citizen of that country."25 [36] This argument must fail on two grounds. First, the Federal Court has held that the RPD "is entitled to assume that a refugee claimant is a citizen of a country whose passport he or she holds," though this is a rebuttable presumption.26 Secondly, the Greek passports themselves contain a field for nationality, which in the case of each Appellant is shown as "Hellenic."27 As such, the RPD made no error in finding that the Greek passports established the Appellants' Greek citizenship, as it did not believe the Appellants' testimony to the contrary. [37] Nationals of Greece, a designated country of origin, have no right of appeal to the RAD. The RAD must still, however, consider the RPD's credibility findings, as they also relate to the question of citizenship. The RPD's Credibility Findings [38] The Appellants raise a number of issues with the RPD's credibility findings. As these are questions of fact, they are to be reviewed on a standard of reasonableness. [39] The Appellants submit that the RPD erred in finding the principal Appellant was not credible in her claim to be a citizen of Albania, but in finding her credible that she is a citizen of Greece.28 The RPD further erred, they argue, by accepting that the principal Appellant's cousin helped her obtain the passports but in failing to believe that the cousin obtained the passports through corrupt police officers. In any event, the Appellants submit, the member failed to analyze why the Appellants would need someone to get Greek passports for them if they were already citizens of Greece. [40] In the RAD's view, these arguments are based on a distortion of the RPD's reasons. The RPD did not base its finding of Greek citizenship on the principal Appellant's credibility; to the contrary, it found that she is a Greek citizen despite her testimony that she is not. Nor did the RPD accept that the principal Appellant's cousin helped her get the passport; in fact, the RPD found that "the claimant is generally not credible."29 [41] The RPD did observe that "although the claimant stated that the process was all handled by her cousin, the panel notes her years of formal education and that the claimant was involved in the passport application process...." As the RAD understands it, the RPD was explaining why the principal Appellant should have some knowledge of how the passports were issued, as she would have been involved in the process and even attended the passport office to provide fingerprints and documents. This does not indicate that the RPD accepted the principal Appellant's allegation that her cousin obtained the passports, but rather that it found that, even had the cousin done so, the principal Appellant would have knowledge of how the passports were issued, and would know whether corrupt police were involved. [42] The Appellants argue that the RPD did not doubt the veracity of the principal Appellant's birth certificate, and therefore she is a citizen of Albania. This argument makes little sense to the RAD. The RPD noted that the principal Appellant's passport shows her place of birth as XXXX, Albania, which is consistent with the information in her identity card. In other words, the RPD accepted that the principal Appellant was born in Albania, and nevertheless reasonably concluded, on the basis of her passport, that she is now a citizen of Greece. [43] The Appellants also challenge the e-mail document provided to the RPD by the Minister: This e-mail speaks for itself. No one knows who is the real author of this e-mail or the person who received it. This unknown CBSA officer had forwarded this e-mail to another unknown CBSA officer and the intervening appeals officer had filed this after redacting it.... The Appellants submit that if [the RPD] can simply rubber stamp an alleged e-mail allegedly received from alleged Greek authorities, there is no need for a hearing at the RPD. Justice should not only be done but it seems to be done also! The Member simply disregarded the evidence that this is a country (Greece) where uniformed police officers sell valid Greek passports for money. If one arm of the government, the police, can do this the officials of Greek passport office can do more wonders to the foreigners.30 [44] In the RAD's view, this is an inappropriate argument. There is nothing in the record to indicate that the Appellants contested the admissibility of the CBSA information at their RPD hearing, or sought to question the author or recipients of the e-mail in question, and, as such, they are not entitled to make such a challenge now without new evidence. [45] Even if it was open to the Appellants to question the e-mail in their appeals, their argument would not stand. The e-mail thread originates with a message from a CIC Senior Immigration Officer (SIO) in Toronto, which was then forwarded by a CBSA official. The SIO's initial message is answered by a CBSA Liaison Officer at the Canadian Embassy, whose e-mail is addressed to the Minister's counsel who intervened at the RPD hearing. Although the names of the officials (other than Minister's counsel) are redacted, their titles are clear, and the RAD simply sees no reason to doubt the authenticity of the e-mail messages. Even in light of objective evidence that some Greek police are corrupt, the RAD also sees no reason why Greek passport officials would falsely claim to Canadian officials that the Appellants' passports are true. It would be pure speculation on the part of the RPD or the RAD to conclude that the passport officials quoted in the e-mail are corrupt only because objective evidence suggests that some Greek police officers sell passports. [46] The RPD considered the evidence before it, including the principal Appellant's testimony, the Greek passports and other identity evidence. It assessed the objective evidence, including documents about Greek police officers selling passports. After weighing the evidence, the RPD found that the Appellants are generally lacking in credibility, and that the documents establish their Greek nationality. [47] In the RAD's view, the RPD's findings on all of these matters are justifiable, transparent, and intelligible. The RPD's decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law, and is therefore reasonable. DISPOSITION [48] Section 109.1(1) of the Immigration and Refugee Protection Act (IRPA) provides that the Minister may, by order, designate a country for the purposes of Section 110(2) of IRPA. Section 110(2)(d.1) of IRPA provides that no appeal may be made of a decision of the RPD allowing or rejecting a claim for refugee protection made by a national of a country that was, on the day the decision was made, designated under Section 109.1(1). [49] The RPD determined that the Appellants are citizens of Greece, and the RAD confirms this finding. The Minister has, by order effective December 15, 2012, designated Greece under Section 109.1(1) of IRPA. According to the Appellants' Notice of Appeal filed to the RAD, their claims were rejected by the RPD by a Notice of Decision dated June 17, 2013. On the date of that decision, Greece was a country designated under Section 109.1(1), and under Section 110(2)(d.1), no appeal of that decision may be made to the RAD. [50] As the Appellants are nationals of a country designated under Section 109.1(1), they have no right of appeal to the RAD. CONCLUSION [51] The RPD found that the Appellants are citizens of Greece, and the RAD has found this determination to be reasonable. The Appellants therefore have no right of appeal to RAD, and these appeals are dismissed for lack of jurisdiction. (signed) "Edward Bosveld" Edward Bosveld October 21, 2013 Date 1 RPD Record, p. 162, Notice of Intent to Intervene. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 Ibid., para. 90. 8 Dunsmuir, paras. 58-61. 9 IRPA, Section 3(2)(a). 10 IRPA, Sections 170(g) and 171(a.2). 11 IRPA, Sections 170(i) and 171 (b). 12 IRPA, Section 170(b). 13 IRPA, Section 110(3). 14 Khosa, para. 89. 15 Newton, para. 80. 16 Khosa, para. 89. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 18 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 19 Dunsmuir, para. 50. 20 Khosa, para. 90. 21 Dunsmuir, para. 50. 22 RPD Record, p. 6, Decision and Reasons, para. 9. 23 Florea v. Canada (Minister of Citizenship and Immigration), 2005 FC 1472, para. 24. 24 Emal v. Canada (Minister of Citizenship and Immigration), 2012 FC 352, para. 3. 25 Appellants' Record, p. 37, Memorandum, p. 37. 26 Mijatovic v. Canada (Minister of Citizenship and Immigration), 2006 FC 685, para. 26. 27 RPD Record, pp. 105, 126, and 137. 28 Appellants' Record, p. 38, Memorandum, para. 16. 29 RPD Record, p. 9, Decision and Reasons, para. 17. 30 Appellants' Record, p. 40, Memorandum, para. 20. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04508 TB3-04509 TB3-04510