MB4-03301

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. / No de dossier de la SAR : MB4-03301 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 April 16, 2015 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of India, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and allow the appeal. [2] The appellant presented no new evidence within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and is not requesting a hearing under subsection 110(6) of the IRPA. [3] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination and refers the matter to a differently constituted RPD panel. [5] The appeal is allowed. BACKGROUND [6] In his Basis of Claim Form, the appellant alleges that a cousin of his named XXXX XXXX was married in 2011. Afterwards, members of her in-laws' family (subsequently referred to as the in-laws) allegedly demanded a dowry. The appellant's cousin was purportedly killed on XXXX XXXX XXXX 2012, because the dowry was not paid. Her remains were allegedly burned. With the help of the village council, a First Information Report1 (FIR) was obtained from the police. The accused supposedly fled. Later, some of the in-laws purportedly turned themselves in to the police to be arrested. The court allegedly ruled that some of them were guilty, but the police apparently did not arrest certain family members, including XXXX XXXX, whose father is a well-known gangster and who allegedly threatened the appellant over the telephone. [7] In August 2013, the matter had not yet been heard by the court. However, the accused were released on weekends. The appellant and others purportedly accused the police of wrongdoing and were then allegedly threatened by prison staff and XXXX XXXX's family. On September 1, 2013, the appellant was allegedly attacked by gangsters and fled. The appellant then allegedly went to the police station, where he was supposedly detained and tortured on the allegation that he was associated with anti-national elements and Sikh militants. He was released once a sum was paid and with the help of the village council. On September 22, 2013, when the appellant was on his way to file a complaint against the police, he was allegedly attacked by police officers and gangsters, but he was able to flee and went to New Delhi. [8] During his time in New Delhi, the appellant was allegedly informed that his uncle and father were purportedly being detained and that the police were supposedly looking for him. The police allegedly threatened to kill his uncle and father if he did not report to the police station. With the help of an agent, the appellant obtained a visa to come to Canada, where he arrived on October 27, 2013, and claimed refugee protection. The appellant also alleges that he is still being sought by police, that gangsters are demanding that his family withdraw the complaint, and that his uncle is living in hiding. IMPUGNED DECISION [9] On July 30, 2014, the RPD rejected the refugee protection claim, finding that it was not credible. The RPD's decision can be summarized as follows: - To begin, the RPD member mentioned that he took into account the following points: a) the Immigration and Refugee Board of Canada Chairperson's Guideline 8;2 b) the appellant's testimony to the effect that he was taking medication for stress and the fact that, at times, the appellant became emotional and there were pauses during the hearing; c) the appellant's allegations that he was tortured at the police station on allegations that he had ties to Sikh militants; and d) the appellant had eight years of education and was a farmer. - The RPD member did not find the appellant's testimony credible with respect to his allegations that he was detained by the police, abused and sought by police and that he was threatened by his cousin's in-laws, and for the following reasons: a) The RPD found it implausible that he did not know he was going to Canada given that he decided to leave India on September XXXX, 2013, he obtained a Canadian visa on XXXX XXXX, and he left on October 27, 2013. b) The appellant had a valid passport and visa, and there was no warrant for his arrest in India. In addition, if the appellant had been detained and tortured by the police because of accusations that he had ties to terrorists, the police would not have released him. The RPD concluded that the appellant's explanation that it was illegal for him to leave India was not plausible, which undermined his credibility with respect to his allegations that the authorities were looking for him so they could arrest and detain him. c) Schedule A of immigration form IMM-5669 does not include the address in New Delhi where the appellant allegedly stayed for one month before he left India. d) His testimony regarding whether or not he was detained by police in September 2013 contradicted Schedule A of immigration form IMM-5669 and Schedule 12 of immigration form 008. e) With respect to the alleged death threats from gangsters after refusing to withdraw the charges against some of the in-laws, these allegations were not credible given that his cousin's father-the primary complainant-was not targeted and neither were the other witnesses listed on the complaint filed with police. f) There are inconsistencies between various parts of his testimony and the other evidence; however, the appellant's explanations-including his limited education, job and mental state-were not enough to explain the lack of credibility. - The RPD member assessed the documentary evidence submitted by the appellant; however, he did not attach any probative value to it as such, he did not attach any probative value to it in terms of corroborating the appellant's allegations, or he concluded that the appellant had not established its relevance in light of his particular circumstances. GROUNDS FOR APPEAL [10] In his memorandum, the appellant argues that the RPD erred in its conclusion that the appellant lacks credibility. In support of his arguments, the appellant states that, according to Maldonado,3 when an appellant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. In addition, in its analysis, the RPD did not take into consideration the following points: the fact that the appellant was taking medication, the fact that his testimony at the hearing was emotional, his allegations that he was tortured, his limited education and the fact that he is a farmer. In addition, there was a spelling error in the document4 submitted by the appellant, and the original document should take precedence. SCOPE OF THE APPEAL [11] It is my opinion that the scope of the appeal before the RAD must be examined in light of the IRPA and the case law on this subject. [12] First, the IRPA does not expressly set out the standard of intervention that the RAD should apply when reviewing RPD decisions. The introductory wording of the IRPA in section 110(1) is as follows: Subject to subsection (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. [13] Furthermore, with regard to RAD decisions, subsection 111(1) of the IRPA provides that the RAD may confirm the determination, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. [14] In addition, subsection 111(2) of the IRPA suggests that Parliament favours the finality of these decisions. In fact, it is stated that the RAD may refer the matter to the RPD only if its decision is wrong in law, in fact or in mixed law and fact and it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [15] The Federal Court has rendered several decisions to date regarding the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [16] Thus, the appeal before the RAD is not in the nature of a judicial review. The RAD errs in applying the reasonableness standard of review, and the RAD must perform its own assessment of all the evidence.5 [17] Two lines of case law have emerged from the decisions rendered to date by the Federal Court regarding the standard of review or intervention applicable to the RAD. [18] First, in Alvarez and Eng,6 rendered on July 17, 2014, the Honourable Justice Shore, guided by the Quebec Court of Appeal decision in Parizeau v. Barreau du Québec,7 states the following: [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.... [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). [19] In Spasoja,8 the Honourable Justice Roy states that "the creation of an appellate level between an administrative jurisdiction and judicial review would suggest that Parliament wanted to create something different between those two levels.... [T]he RAD does not rehear the evidence that was before the RPD...and, without clear indication, it also cannot duplicate the judicial review function."9 He adds, "...this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety.... An error of fact must be palpable and overriding to succeed on appeal. The standard of correctness prevails for questions of law...."10 [20] In the same decision, the Honourable Justice Roy goes on to state, "...It seems to be preferable to focus on the standard of palpable and overriding error in appeals on questions of fact. There is nothing new in proposing that an appeal tribunal show deference when a body whose decision is being appealed flows from considerable discretion such as assessing credibility. The law is clear: the RAD does not hear witnesses except in very exceptional and specific cases. The credibility to be given to the witnesses heard by the RPD is its responsibility and the RAD, on appeal, must show deference (Lensen v. Lensen, [1987] 2 SCR 672; R v. Burke, [1996] 1 SCR 474)."11 [21] In addition, the Honourable Justice Roy states 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)."12 [22] In Huruglica,13 the Honourable Justice Phelan states the following: "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."14 [23] The Honourable Justice Phelan adds that "...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."15 [24] As for the deference that the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may well be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative".16 Nevertheless, when it comes to interpreting the documentary evidence on country conditions, the Honourable Justice Phelan states, "there is no reason for the RAD to defer to the RPD on this type of assessment."17 [25] In my analysis, as to my role and functions as a member of the RAD, I have considered the provisions of the IRPA and all the Federal Court decisions on the RAD. Thus, it is my opinion that the RAD is a specialized tribunal and that I must review all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA, and therefore, whether the RPD's decision is well founded in light of the evidence presented to the RPD as well as any new evidence within the meaning of subsection 110(4) of the IRPA, if applicable. In the case at hand, it should be noted that the appellant did not present any new evidence. [26] In examining this case, I will show deference to the RPD's findings in circumstances where the appellant's credibility as a witness is critical or determinative. Also, if there are errors on questions of law, or if there are erroneous conclusions or conclusions not supported by the evidence on questions of fact or of mixed law and fact that are central to essential elements of the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [27] There are two issues to be examined. First, it must be determined whether the RPD erred in conducting the hearing in accordance with Guideline 8 cited by the member and given the appellant's state. In my opinion, that is a question of procedural fairness, a question of law. Second, it must be determined whether the RPD erred in its assessment of the appellant's credibility, which is a question of fact. In order to proceed, I reviewed the RPD's reasons for decision, and I listened to the recordings of the hearing sessions before the RPD. I also read and assessed all the evidence in the record. [28] In my analysis, I will first address the errors alleged by the appellant with respect to the RPD's failure to consider the appellant's state. I will then address the RPD's conclusions concerning the appellant's departure and time in New Delhi as well as its conclusions regarding threats from the in-laws within the greater context of the credibility of the appellant's testimony and the documentary evidence. Alleged errors related to the appellant's state [29] I am of the opinion that the RPD did not err on this point, and for the following reasons. [30] To begin, it is worth noting that at the end of the second session on May 23, 2014, the RPD member, on his own initiative, stated that he would take into consideration Guideline 8-but would not necessarily declare the appellant to be a vulnerable person-given that he sometimes became emotional while testifying. At the hearing, the appellant's counsel did not comment on that point and did not mention in advance that Guideline 8 should apply. [31] As well, when the appellant became emotional during his testimony, the RPD paused to help the appellant. I noted that on a number of occasions, the member interrupted the appellant's testimony, and I am of the opinion that these interruptions-while numerous-were required for interpretation or comprehension. In any event, I am of the opinion that the appellant was not at a disadvantage because the member asked the questions again so that the appellant could speak about the issue raised. It should also be noted that, during the hearing, the member stated that he would take into consideration the appellant's state and, in particular, the fact that he was taking medication, his emotional testimony, his allegations of torture, his limited education and his profession. In addition, at the hearing, although the appellant's lawyer noted in his observations that the RPD member should take into account the points about the appellant's state, he did not mention any specific failures in this area on the part of the RPD. CREDIBILITY Conclusions concerning the appellant's departure and time in New Delhi [32] I do not agree with the RPD's conclusions regarding the appellant's lack of credibility, and for the following reasons. [33] The RPD concluded that the fact that the appellant did not know in advance that he was going to Canada undermined his credibility given his alleged reasons for leaving India. Based on what I heard in the recording of the hearing, I conclude that the appellant's testimony was spontaneous and provided numerous details about the fact that the agent made the arrangements and informed him at the airport, on the day of his departure, of his destination. In addition, even if the appellant was not credible about his destination, he repeatedly stated that he wanted to leave because of the alleged difficulties. [34] The RPD concluded that the appellant's credibility was undermined because he did not include, in immigration form IMM 5669, the fact that he lived in New Delhi before his departure from India.18 On that point, the appellant testified that he fled his home on September XXXX, 2013, and arrived in New Delhi on September XXXX XXXX 2013, and that he stayed there until his departure. I am of the opinion that his time in New Delhi is not central to the refugee protection claim in light of the appellant's explanation as to why he left India. [35] For these reasons, I conclude that the RPD erred in these conclusions. Conclusions concerning the alleged threats from the appellant's cousin's in-laws [36] The RPD concluded that it was not credible that the appellant received threats from the in-laws given that the father of that cousin (uncle) and the other witnesses mentioned in the police complaint did not receive threats. I am of the opinion that the RPD based its conclusions on speculation, and for the following reasons. [37] To begin, the appellant testified that he had received threats over the telephone twice, in January 2013 and August 2013, and that he spoke with his uncle about the offer received for withdrawing the complaint and that he refused it. He also explained his reasons for helping his uncle in the complaint filed with police, in particular, his uncle's health and lack of education. And while the appellant testified that he was the only person to have received threats, the appellant does not know why that is and he did not approach his cousin's in-laws to find out. It should be noted that when the appellant was questioned about this, the member asked him to speculate. [38] In addition, the complaint19 filed with the police by the appellant's uncle was assessed by the RPD and, according to the interpreter's translation at the hearing, it seems that the appellant's name appears on the original document. I am of the opinion that even though the appellant's name was not on the English version provided, the excerpt translated by the interpreter at the hearing, which confirms the appellant's name, has full probative value, despite the conclusions of the RPD, which attached no probative value to it. [39] As well, the RPD noted that the word "buried" was used in the English version of the same document and that the interpreter had confirmed that translation after reviewing the original document. When confronted with that translation, the appellant reiterated that the remains had been burned. The RPD attached no probative value to that document or the FIR20-in which the word "buried" appears-because of the issues with translation. Based on the recording of the hearing, the RPD's conclusion is inconsistent with the evidence. The interpreter at the hearing testified that the correct translation was "burned." Consequently, I am of the opinion that the RPD erred in its conclusion not to attach any probative value to these documents for the reasons it provided. [40] The RPD attached no probative value to a lawyer's letter21 that was submitted by the appellant because, in its opinion, the appellant's testimony was not credible. In light of my analysis of the appellant's testimony and the fact that I concluded that the RPD had erred on this point, I am of the opinion that the RPD's conclusions regarding this letter are also erroneous. [41] With respect to the newspaper article22 that was submitted during the session on May 23, 2014, the RPD member accepted the document as evidence after the appellant testified that he could not remember when he obtained it but that it was important to him. It should be noted that the RPD did not confront the appellant about the points mentioned in its conclusion not to attach any probative value to the article in terms of corroborating the appellant's allegations. In light of the appellant's allegations to the effect that this document was critical in establishing his refugee protection claim, and taking into account the fact that the RPD did not give the appellant an opportunity to explain himself, I am of the opinion that the RPD's conclusions regarding this article are erroneous. The matter must be referred to the RPD [42] For the aforementioned reasons, I conclude that the RPD committed a certain number of errors in its assessment of the appellant's credibility. I also conclude that additional questioning is needed with respect to the key elements of the refugee protection claim, particularly on issues related to the alleged difficulties with the cousin's in-laws. While I listened to the recording of the hearing and took into consideration all the evidence, pursuant to subsection 111(2) of the IRPA, I am unable to substitute my determination for that of the RPD without hearing evidence that was presented to the RPD. [43] As well, I would add that I am of the opinion that some of the RPD's conclusions23 regarding credibility were very general. The RPD noted that there were inconsistencies between various parts of his testimony and the evidence; however, it did not mention what those inconsistencies were. I am of the opinion that simply referring to those points was not enough to substantiate or identify them. [44] Given the determinative errors regarding the RPD's conclusions about the appellant's credibility and the fact that I am referring the matter to a differently constituted RPD panel, I conclude that it is not necessary for me to assess the evidence related to the alleged difficulties with the Indian authorities or the appellant's situation as a Sikh. CONCLUSION [45] Having assessed all the oral and documentary evidence, and in light of the above reasons, pursuant to subsection 111(1) of the IRPA, I am setting aside the RPD's determination and referring the matter to a differently constituted RPD panel for re-determination of this refugee protection claim. [46] Consequently, the appeal of XXXX XXXX XXXX is allowed. Louis Cousineau Me Louis Cousineau April 16, 2015 Date IRB translation Original language: French 1 The French translation of "First Information Report" comes from the French version of the National Documentation Package on India dated March 14, 2014, entered as evidence: RPD record (pages 51 to 71), specifically Tab 9.3: Response to Information Request IND103687.E dated March 22, 2011. 2 Guideline on Procedures With Respect to Vulnerable Persons Appearing Before the IRB, December 15, 2006. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 4 Refugee Protection Division (RPD) record (pages 175 to 177), Exhibit R-10 (pages 37 and 38). 5 Notably, Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Huruglica v. M.C.I., 2014 FC 799; Spasoja v. M.C.I., 2014 FC 913. 6 Ibidem. 7 Parizeau v. Barreau du Québec, 2011 QCCA 1498 [2011] RJQ 1506. 8 Supra, footnote 5. 9 Ibidem, paragraph 25. 10 Ibidem, paragraph 39. 11 Ibidem, paragraph 40. 12 Ibidem, paragraph 43. 13 Supra, footnote 5. 14 Ibidem, paragraph 47. 15 Ibidem, paragraph 54. 16 Ibidem, paragraph 37. 17 Ibidem, paragraph 38. 18 RPD record (pages 106 to 109): Schedule A Background/Declaration, immigration form IMM5669. 19 RPD record (pages 175 to 177), Exhibit R-10: complaint and translation. 20 RPD record (pages 169 and 170), Exhibit R-9: FIR. 21 RPD record (page 168), Exhibit R-8: letter from xxx. 22 RPD record (pages 184 and 185), Exhibit R-11: article dated September 20, 2012. 23 RPD record (page 9): RPD decision (paragraph 28). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-03301 15 RAD.25.02 (2014.09.11) Disponible en français