MB4-03509

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 : MB4-03509 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 May 11, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Claudette Menghile 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 a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not present any new evidence in support of her appeal but requests that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. BACKGROUND [4] The appellant is a 37-year-old woman, a storekeeper by trade, who alleged on the Basis of Claim Form (BOC Form) that she submitted before the RPD on June 6, 2014, that she had had a difficult childhood, and was mistreated by her polygamous father's second wife. [5] The appellant alleged that she discovered she was homosexual when she was about 15 years old, with school friends. [6] The appellant alleged that she was married against her will in 2001 to a storekeeper named XXXX XXXX, who was subsequently violent toward her. She alleged that her spouse caught her kissing her friend XXXX at their home in November 2005. Her spouse allegedly threw her out of the family home in December 2005. [7] The appellant alleged that she was remarried on XXXX XXXX, 2007, to XXXX XXXX, who accepted her sexual orientation. [8] The appellant alleged that she was constantly being pointed at, insulted and threatened wherever she went, particularly in the market. She alleged that she was assaulted and beaten in the Douala central market in February 2012. She alleged that she received death threats and was robbed by [translation] "hired men" in December 2013. [9] The appellant left Cameroon on XXXX XXXX, 2014, for Canada, where she made a claim for refugee protection in June 2014. [10] The RPD held a hearing in this case on July 24, 2014, and in a decision rendered on August 26, 2014, rejected the refugee protection claim on the ground that the appellant's key allegations were not credible. The RPD therefore determined that the appellant's credibility was undermined by reason of: - Contradictions in her testimony about the duration of the February 2012 incident in the market and the implausibility of certain facts related to the incident, including the fact that she only received bruises after allegedly being beaten for two hours and that no one intervened at any time; - Contradictions between her testimony about being beaten initially in February 2012 in the market and the complaint filed following that assault that indicates that she was attacked regularly; - Contradictions between the letter from the appellant's husband that indicates that she was assaulted daily and her testimony that she was assaulted twice; - Contradictions between her testimony that she did not have any problems until her daughter was born in 2011 and the complaints filed as evidence showing attacks in 2007 and 2008. In addition, these complaint documents present the appellant as [translation] "Miss," and indicate that she was living with her brother, while according to her allegations, she was married at the time; - The implausibility of the fact that her second husband accepted her sexual orientation, considering the prevailing machismo in Cameroon according to the documentary evidence presented; - Contradictions between her testimony that her first husband persecuted her and the complaints filed in evidence that indicate that they were not married; - Her failure to claim refugee protection during her many trips, including to Europe, between 2008 and 2012. [11] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility: - By failing to [translation] "read between the lines" with regard to her testimony on the duration of the February 2012 incident, and by finding it implausible that she only received bruises and that no one in the market intervened during the attack; - By finding that the phrase [translation] "assaulted regularly" in the complaint following the February 2012 incident means being beaten regularly; - By finding that the comment in the letter from her second husband that she was assaulted daily meant that she was beaten daily; - By finding that there are contradictions between her testimony to the effect that she did not have any problems before her daughter was born in 2011 and the complaints filed in 2007 and 2008, since her testimony referred to the [translation] "peaceful and happy" years mentioned in the letter from her second husband; - By finding that there is a contradiction regarding her personal status and her address in the complaints submitted in 2007 and 2009; - By finding that her second marriage was implausible and by not indicating the documentary evidence to which she referred regarding marital relations in Cameroon; - By determining that the failure to claim refugee protection during her trips outside Cameroon undermined her credibility, since she did not fear persecution by her first husband at the time. [12] For these reasons, the appellant requests that the RAD set aside the RPD's determination and order that a hearing be held before the RAD, or refer the matter to the RPD for re-determination. DECISION ON A WHETHER TO HOLD A HEARING BEFORE THE RAD [13] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence adduced in the 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; 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [14] Because the prerequisite of that provision was not satisfied in the case at hand, since no new evidence has been adduced in this appeal, I find that a hearing cannot be held in this case. RAD'S ROLE [15] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the appellant does not specify what the RAD's role should be or what standard of review should be applied when it reviews RPD decisions. [16] The Federal Court, which has the authority to review the RAD's decisions, has rendered several decisions to date about the standard of review or intervention before the RAD or its role when an RPD decision is appealed to it. [17] The Honourable Justice Shore of the Federal Court of Canada has ruled on this matter in Alvarez1 and Eng,2 both rendered on July 17, 2014. [18] At paragraphs 28 and 29 of Alvarez, as well as at paragraphs 29 and 30 of Eng, the Court writes as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [19] The Court adds the following at paragraph 33 of Alvarez, as well as at paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. The 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 and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [20] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes as follows: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [21] In considering the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [22] Justice Phelan concludes that: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. 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. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error." [23] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [24] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first finds that the RAD erred in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [25] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions concerning the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the House of Commons' parliamentary committee to determine that the appeal referred to in sections 110 and111 of the IRPA cannot be equated to a judicial review, but rather to an appeal in its own right ( paragraph 39). [26] Relying on the conclusions in Parizeau in terms of the standard of review that should be applied by an appeal tribunal, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review to be applied by the RAD are correctness for questions of law and palpable and overriding error for questions of fact and questions of mixed fact and law. In addition, the RAD must give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [27] The Honourable Justice Roy also indicates that he could not find any indicators that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42) and states in the following paragraph of his decision that: [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It 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).... [28] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having considered the above decisions, first concludes that they all reject the reasonableness standard of review and then expresses his opinion that the RAD must be allowed to choose between the two remaining approaches: the one set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the one set out in Huruglica, which he describes as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant" (paragraph 16). [29] Justice Martineau writes at paragraph 46 of Alyafi that: [46] ... I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [30] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described in that decision appears to me to be more easily applicable than the role described in Huruglica, specifically when, such as in this case, no new evidence has been submitted to the RAD and no hearing was held. [31] In this case, I am of the opinion that the error alleged by the appellant with respect to the assessment of her credibility is one of fact, and I will therefore apply the standard of palpable and overriding error and will show a measure of deference to the RPD's findings in this matter. [32] I will review and conduct my own assessment of all of the evidence presented before the RPD to determine whether it committed a palpable and overriding error. [33] At paragraph 91 of Parizeau, a palpable and overriding error is described as follows: [translation] [91] ... A palpable and overriding error is an error that, in its undeniability-and therefore not a difference of opinion on the assessment of the evidence-determines the outcome of the dispute in that the conclusion of the trier of fact, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making the decision unreasonable. ANALYSIS [34] Did the RPD err in its assessment of the appellant's credibility? [35] In my opinion, after analyzing all of the evidence presented and listening to the recording of the RPD hearing, the answer to this question is no, for the following reasons. [36] First, I find, after listening to the recording of the RPD hearing, that the appellant's testimony was difficult, in the sense that her answers were mostly very hesitant and vague. Noticing that the appellant did not answer the questions that were asked, the panel was required many times to repeat them to obtain an answer from the appellant. For example, the panel had to repeat several times its question about the appellant's relationship, with regard to her sexual orientation, with her second husband. Therefore, my opinion is that the appellant's hesitant testimony undermines her credibility in general. [37] I then find, as the RPD also found, that the evidence presented contains sufficiently major contradictions to undermine the appellant's credibility. [38] With respect to the alleged assault in February 2012, which is an important aspect of the claim, the appellant changes her answer several times about the duration of the incident, particularly when the RPD was surprised by her answer: The appellant indicates initially that the incident lasted all day, and then states that it lasted half a day and, lastly, two hours. I cannot accept the appellant's argument that the RPD must "read between the lines." The question about the length of the incident was clear and specific, and the appellant had the opportunity to respond clearly, without anyone having to "read between the lines." [39] I then find that the appellant's testimony about the statements in her complaint and in the letter from her husband that she was "assaulted regularly" is, if nothing else, vague, if not contradictory. When asked whether she had been assaulted regularly as these documents indicate, or only twice, as indicated on her BOC Form, the appellant responded that she was assaulted often, [translation] "but not like that time," referring to the February 2012 incident. The appellant does not explain why these other alleged assaults are not mentioned on her BOC Form. [40] I add that, in my opinion, the appellant's credibility is also undermined because the alleged assault in February 2012 is not mentioned in the complaint that she allegedly made following the incident (see Exhibit P-15, page 194 of the RPD record). When asked by the RPD about this, the appellant responded that she had not mentioned the assault because she was [translation] "in shock." In my opinion, this explanation is not reasonable because the appellant had just gone to the police station because of the assault. [41] Furthermore, the appellant was asked about what her second husband indicates in his letter as being [translation] "a few years of peaceful life" (see Exhibit P-13, page 192 of the RPD record). She indicates first, following the RPD's question, that she did not really have any problems between 2006 and the date she gave birth in 2011, which I find is contradicted by the complaints she allegedly made against her first husband in 2007 and 2008 (see exhibits P-9, P-10, P-11 and P-12, pages 188 to 191 of the RPD record), and then indicates following a question from her counsel about the [translation] "calm period," that the said period was [translation] "perhaps when I moved" and that "when I was there, I was threatened." In my opinion, the appellant's testimony is contradictory and is another example demonstrating the vagueness of the testimony. [42] Lastly, I also find that the appellant's failure to claim refugee protection during her many trips to Europe, particularly during her stay in England between XXXX and XXXX 2012, a trip that she states she took [translation] "because I never received protection from the Cameroon authorities" (see BOC Form, page 17 of the RPD record), undermines her credibility. The appellant testifies that she did not claim refugee protection in England because she did not know she could. In my opinion, this explanation is not reasonable because the appellant took no steps to find out how to do it, to avoid returning to Cameroon. The appellant also explained that she returned to Cameroon believing [translation] "that everything was going to be fine and that everything would calm down." This explanation does not see reasonable to me, either, given that the appellant was allegedly assaulted regularly in Cameroon, and that nothing would justify that [translation] "everything would calm down." [43] I find that it is unnecessary to further examine the RPD findings related to the incidents alleged by the appellant with her first husband that, in my opinion, are peripheral to the claim, since the appellant testified that she did not fear her first husband, but rather [translation] "the people in the neighbourhood who persecuted her." [44] As a result of the above, I find that the appellant did not demonstrate that the RPD erred in the assessment of her credibility warranting the RAD's intervention. REMEDY [45] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [46] The appeal is dismissed. Normand Leduc Normand Leduc May 11, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 FC 702. 2 Eng v. M.C.I., 2014 FC 711. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Spasoja v. M.C.I., 2014 FC 913. 5 Parizeau v. Barreau du Québec, 2011 RJQ 1506. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-03511 MB4-03512 MB4-03513 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-03509 11