MB5-00739

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 : MB5-00739 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 at Montréal, Quebec Appel instruit à Date of decision August 26, 2015 Date de la décision Panel Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a Haitian citizen, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim, determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and allow his claim for protection, or refer the matter to the RPD for a hearing before a new panel and give any other direction that it considers appropriate. [3] The appellant is not submitting new evidence within the meaning of subsection 110(4) of the IRPA. [4] The appellant is requesting a hearing under subsection 110(6) of the IRPA. [5] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [6] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [7] The appeal is allowed. FACTUAL BACKGROUND [8] The appellant arrived in Canada on XXXX XXXX, 2014, with a visitor's visa. His Basis of Claim Form (BOC Form) was received by the IRB on October 27, 2014. He is claiming refugee protection on the ground that he is at risk in Haiti by reason of his alleged political activities. In his BOC Form, he states that, beginning in XXXX 2010, he was subjected to intimidation, humiliation and physical assault because he was a member of the XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) and the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) [coalition of citizens of Gressier for a new perspective]. As a member of these organizations, he educated farmers about various problems and sometimes gave lectures. He was also a member of the XXXX XXXX XXXX XXXX XXXX (XXXX) [assembly of progressive national democrats] political party and attended meetings. [9] His problems culminated in XXXX 2014, when criminals went to his home and robbed it before setting it on fire. After this incident, he lived in various places until he left for Canada. Impugned decision [10] On January 20, 2015, the RPD rejected the refugee protection claim, finding that the claimant's credibility was the determinative issue. It relied on the following three factors: - The claimant delayed claiming refugee protection; - The explanations for why he has had a passport since 2010 were not credible; - The claimant's behaviour-his delay in leaving Haiti-is inconsistent with the alleged fear. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellants' allegations [11] In support of his appeal, the appellant submits that the RPD did not note any contradiction or inconsistency in the elements at the heart of his refugee protection claim. It erred in its analysis of his credibility by relying on secondary and peripheral aspects of his account. [12] Taking into account the principles established by the Federal Court in Bains v. Canada (Minister of Employment and Immigration), the appellant submits that the RPD erred in ignoring exhibits D-3, D-6 and D-7. This evidence is important because it supports his allegations about his involvement in the socio-political organizations. [13] Also, the RPD's findings regarding the delay in filing his refugee protection claim are unreasonable and do not take into consideration the fact that he did not know that he could claim refugee protection at the airport. If all of the circumstances are taken into account, including the date he arrived in Canada and the fact that, before he claimed refugee protection, he had to find out how to do so, the time taken to file his claim for refugee protection is not unreasonable. In addition, a delay in claiming refugee protection in itself is not determinative. [14] He also argues that the RPD erred in criticizing him for having stated [translation] "that it was mandatory in Haiti to have a passport, and then for having changed his answer," because this element is peripheral to his claim. [15] Finally, the RPD did not consider the reasons he gave to explain why he did not leave his country as soon as his problems began. RAD'S ROLE AND FUNCTIONS [16] In his memorandum, the appellant submits that the RPD performed an unreasonable analysis of the evidence on the record and that its decision [translation] "does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law."1 [17] Since an appeal to the RAD is a statutory remedy, its mandate and its powers are defined in its home statute, the IRPA. [18] The statutory provisions precisely indicate the allowable grounds for appeal,2 as well as the "remedial powers" available to it. Parliament allows the RAD to confirm the determination, to set it aside and substitute a determination that, in its opinion, should have been made, or to refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.3 [19] Called upon to decide the appropriate type of review by the RAD of decisions rendered by the RPD, the Federal Court recognizes its "expertise" in refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"4 and states that "[t]he 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."5 Despite these observations that a number of justices have shared, the Federal Court is faced with two important lines of case law. [20] According to the proponents of the first line of case law laid out by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts....6 [21] Justices Roy and Leblanc also share the idea that an error must be "palpable and overriding to succeed on appeal."7 Justice Roy notes that appeals to the RAD are meant to be generous but that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirely."8 Justice Roy is also of the opinion that "[i]t 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)." 9 [22] A different approach is proposed by Justice Phelan in Huruglica.10 According to Justice Phelan, the "RAD is required to conduct a hybrid appeal." [23] 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."11 [24] When writing about the deference that the RAD owes to findings of the RPD, Justice Phelan states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [25] After reviewing the Federal Court decisions rendered to date, it appears to me that the RAD, a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [26] In examining the evidence, the RAD may show a measure of deference when the credibility of a refugee protection claimant is at the heart of the decision or when the RPD is in a more advantageous position than the RAD. Nevertheless, if findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [27] As for errors of law, Justice Shore states that "the RAD must be able to correct any error of law."12 ANALYSIS [28] The RPD found that the appellant was not credible. [29] A credibility assessment is a complex process for which RPD members enjoy great latitude by reason of their advantageous position.13 In this appeal, I will not have that advantage because no new evidence was presented. However, the RPD's advantageous position does not offer carte blanche, and the findings made must be based on all of the relevant evidence and applicable jurisprudential principles. [30] Having examined all the evidence, I find that the RPD's determination must be set aside. [31] Although the RPD is "presumed to have considered all of the evidence before it,"14 in this case, I am of the opinion that the RPD's total silence on the appellant's political activities justifies the RAD's intervention, since these activities are central to the refugee protection claim. Because the RPD made no comments about the alleged political activities and the problems he allegedly had, the appellant was deprived of a response to his claim and does not know whether the RPD believed him or not. In this case, this omission can be likened to a failure to examine the issue. I also share the appellant's opinion that the RPD should have commented on exhibits D-3,15 D-616 and D-7,17 considering that they are important for corroborating some of the allegations at the heart of his claim for refugee protection. [32] Although this is not decisive, it also appears to me that the RPD erred in this case by drawing a negative inference from the appellant's delay in claiming refugee protection. The courts have indicated numerous times that this element in itself is not determinative in the assessment of credibility. It is important to consider a claimant's explanations and factors particular to him. In this case, the appellant arrived in Canada in early XXXX 2014, the various forms were signed on October 14, 2014, and the BOC Form was submitted to the IRB on October 27, 2014. The delay in claiming refugee protection is not excessive in the circumstances, and the explanations provided appear reasonable to me. [33] Finally, I share the appellant's opinion that the RPD's findings concerning the reasons why he has had a passport since 2010 are peripheral to his refugee protection claim. To make a finding of a lack of credibility, it is necessary that the inconsistencies identified be serious and reasonably related to the credibility of the claimant.18 The RAD is of the opinion that the RPD made a reviewable error by holding this element against the appellant. CONCLUSION [34] For these reasons, I conclude that the RPD's determination must be set aside. As the criteria in subsection 110(6) of the IRPA were not met, I cannot hold a hearing. I refer the matter to the RPD so that the refugee protection claim of XXXX XXXX XXXX can be re-determined by a differently constituted panel. [35] The appeal is allowed. Maria de Andrade Me Maria de Andrade August 26, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 17. 2 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 3 Subsection 111(1) of the IRPA. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 5 Idem. 6 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913. Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 8 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 9 Idem. 10 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 11 Idem. 12 Supra, footnote 6. 13 Allalou v. M.C.I. (Minister of Citizenship and Immigration), 2014 FC 1084, para. 17, Sajad v. M.C.I. (Minister of Citizenship and Immigration), 2014 FC 1107, para. 20. 14 K.L. v. Canada (Minister of Citizenship and Immigration), 2009 FC 95. 15 Exhibit D-3, medical certificate, RPD record, page 126. 16 Exhibit D-6, XXXX card, RPD record, page 133. 17 Exhibit D-7, XXXX card, RPD record, page 136. 18 Rajaratnam v. Canada (Minister of Employment and Immigration), 135 N.R. 300 (F.C.A.), Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB5-00739 7 RAD.25.02 (2014.09.11) Disponible en français