MB5-01490

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 : MB5-01490 MB5-01491 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 4, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX and XXXX XXXX, citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] XXXX XXXX XXXX was appointed the designated representative of XXXX XXXX, her minor son. [3] The appellants are not filing any new evidence on appeal, nor are they requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination. BACKGROUND [5] The female appellant was a business owner in her country. She fears abuse by XXXX and his associate XXXX. [6] On July 23, 2014, the female appellant came to Canada as a tourist. The female appellant learned that she had allegedly been the victim of a theft at her business in XXXX 2014. She returned to the country on XXXX XXXX, 2014. On XXXX XXXX, 2014, she was again the victim of a break and enter at her business and a theft. Her business is adjacent to her home. [7] Reportedly, the following day, on XXXX XXXX, 2014, the female appellant noticed that the door of her business had been forced open and she stumbled upon XXXX, a notorious criminal, who threatened to kill her. Supposedly, the female appellant went to file a complaint with a justice of the peace in the XXXX XXXX. That same day, the appellants allegedly went to hide in XXXX at the home of a friend. [8] On XXXX XXXX, 2014, the female appellant returned home to pick up a few things and again reportedly stumbled upon XXXX and an accomplice, XXXX. Allegedly, the female appellant fled and the two associates ran after her with weapons. The female appellant apparently lost her pursuers and called friends who were police officers, who came to get her. The following day, the police arrested XXXX. [9] According to a neighbourhood crier, XXXX is searching for the female appellant because of XXXX's arrest. [10] On XXXX XXXX, 2014, the appellants left Haiti for Canada. The appellants claimed refugee protection in November 2014. MINISTER'S INTERVENTION BEFORE THE RPD [11] The Minister intervened before the RPD on the matter of credibility. The Minister is of the opinion that the appellants lack credibility because: - they waited one month before claiming refugee protection; and - the female appellant, through her spouse who lives in New Jersey, in the United States, filed an application for an American immigrant visa around July 2014 in which neither she nor he declares having children. THE RPD DECISION [12] The RPD found that the principal appellant, on whom all the testimony is based, was not credible with regard to her refugee protection claim for the following reasons: - The female appellant gave vague and hesitant testimony regarding the theft of items from her business in XXXX 2014. - The female appellant testified in a choppy and hesitant manner (as though testifying by heart) with regard to the theft at her business on XXXX XXXX, 2014, which she apparently noticed the following day. - The female appellant did not write in her BOC Form that XXXX had stolen from her boutique on two occasions. - The female appellant did not write in her initial BOC Form the specific threats XXXX allegedly made against her on XXXX XXXX, 2014. - The complaint to the justice of the peace that the female appellant reportedly filed on XXXX XXXX, 2014, does not indicate that she experienced thefts on XXXX XXXX, 2014, and in August of that same year. - The female appellant did not write in document IMM-5669, in response to the question regarding her addresses, that she lived in XXXX between XXXX XXXX, 2014, and XXXX XXXX XXXX 2014. - As a result, the RPD did not believe the incident on XXXX XXXX, 2014, when the female appellant reportedly returned from her hiding place in XXXX and stumbled upon XXXX and XXXX, who pursued her with weapons. This is the event that allegedly resulted in XXXX's arrest and, consequently, in XXXX's wanting to come after her since that time as he blamed her for XXXX's arrest. [13] For these reasons, the RPD did not believe the appellants' story and did not attribute any probative value to the documentary evidence relating to the refugee protection claim, evidence which, moreover, was obtained fraudulently according to the documentation. [14] The RPD also concluded that the female appellant did not have a fear of persecution in relation to her membership in the particular social group of women. GROUNDS OF APPEAL [15] According to the appellants, the RPD erred in its credibility assessment, which justifies RAD intervention by allowing this appeal, setting aside the RPD's determination and granting protection to the appellants; by referring the matter to the RPD; or by holding a new hearing before the RAD. [16] The appellants' grounds are as follows. [17] The RPD erred by concluding that the principal appellant's testimony was vague and hesitant with regard to the questions about the items that were stolen from her boutique in XXXX 2014. [18] According to the appellants, the RPD should have given the benefit of the doubt with regard to the fact that the female appellant did not write in her BOC Form or in the amendment to this BOC Form that she had been the victim of theft from her business on two occasions by XXXX. The female appellant writes that the lock on her business was broken during these events and she testified about these events in detail. [19] The RPD erred by concluding that the female appellant testified by heart with regard to the incidents on XXXX XXXX, 2014, which undermined her credibility. The female appellant testified in French for a very short time and also testified in detail in Creole about these incidents. The RPD cannot criticize her for lack of detail and there is nothing in the testimony regarding XXXX XXXX, 2014, that would call this testimony into question. [20] The RPD erred by drawing a negative inference from the fact that document D-11, the complaint to the justice of the peace dated XXXX XXXX, 2014 (see RPD record, page 333), does not mention that the female appellant had been the victim of two thefts at her business in XXXX and XXXX 2014. The RPD should have taken into account the female appellant's explanations. [21] The RPD was unreasonable by finding that the female appellant was not credible because she did not write in her BOC Form the exact words of the death threats she received from XXXX on XXXX XXXX, 2014. The female appellant writes that XXXX threatened her on this date and there is no omission, all the more so since the female appellant prepared this text without any representation at the time. [22] The RPD erred by finding that, because the female appellant did not write in the IMM 5669 form (see RPD record, page 109, question 12) that she lived in XXXX from XXXX XXXX to XXXX, 2014, she was not credible and that, consequently, the RPD did not believe the incident on XXXX XXXX when, returning home, she stumbled upon XXXX and XXXX. The female appellant is of the opinion that this reason is insufficient to undermine the credibility of the incident on XXXX XXXX, 2014. THE RAD'S ROLE [23] The RAD is an appeal tribunal for RPD decisions whose role has not yet been clarified. The IRPA does not expressly set out the standard of review and intervention to be applied to appeals of RPD decisions. [24] To date, Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez)1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [25] In Alvarez,2 the Honourable Justice Shore is of the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner". These appeals are not appeals de novo, and the RAD can hold a hearing only where new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA; this limits the scope of the appeal that the IRPA confers on the RAD. The appeal is also not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [26] In Eng,3 Justice Shore is of the view that although the RPD, as the tribunal of first instance, is owed deference by the RAD with regard to findings of fact, as it is better situated, having seen and heard the claimant, the RAD must nonetheless perform its own assessment of all the evidence. This is done "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." (Eng)4 [27] In Huruglica, Justice Phelan states, "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". [28] Thus, Huruglica advocates an approach where deference must be shown to the RPD with respect to the assessment of credibility while conducting an independent analysis of credibility without being restricted to "a palpable and overriding error." Regarding the analysis of the documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [29] In Spasoja, subsequent to Huruglica, the Honourable Justice Roy expresses a different opinion than the Honourable Justice Phelan in Huruglica. In his view, the standard of review before the RAD must be "palpable and overriding error" on questions of fact; the RAD must show deference to the RPD's credibility findings; and on questions of law, the appropriate standard is correctness. This conclusion is consistent with the decisions in Alvarez and Eng. [30] In Alyafi,6 Justice Martineau's view is that both approaches, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" [Alyafi, para. 16]), may be applied as long as the scope of the appeal has not been settled definitively by a ruling of the Federal Court of Appeal or the Supreme Court of Canada. [31] It seems to me that the RAD must show deference to the RPD's credibility findings in accordance with the Huruglica decision, considering that the RPD had the opportunity to see, question and hear the appellant. [32] The RAD will consider in its analysis all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD with respect to credibility issues. [33] The RAD will intervene only where it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not be supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the standard of review that the RAD will apply is correctness (Spasoja).7 ANALYSIS [34] The RAD reviewed all the evidence on the record, including the recording of the hearing before the RPD. [35] The RAD does not believe that a negative credibility inference can be drawn from the female appellant's testimony describing the items that were stolen from her boutique in XXXX 2014. Although the female appellant hesitated before responding-she might have been thinking of the details of the items that were stolen-the fact remains that she provided a detailed and overall satisfactory response in the RAD's opinion. [36] The RAD is also of the opinion that, although the female appellant was certainly reciting her BOC Form word for word when she began testifying in French about the moment when, on XXXX XXXX, she noticed that the lock on her business had been forced open, the fact remains that, when she switched to Creole, her testimony became more fluid and spontaneous, and departed from what is written in her BOC Form. [37] The RAD is of the opinion that negative inferences cannot be drawn given that her testimony in Creole did not appear to be recited or given by heart and that it included details. Theft at her boutiques [38] The RPD found that the female appellant was not credible regarding the thefts in XXXX and XXXX 2014 because she did not describe them in her BOC Form or amendment, and because she did not report them to the justice of the peace when she filed her complaint on XXXX XXXX, 2011. [39] The female appellant submits in her memorandum that she should be given the benefit of the doubt because she writes that the lock had been forced open during these two thefts. [40] The RAD notes that the female appellant did indeed write in response to question 2(f) of her BOC Form (see RPD record, page 41) that [translation] "we left after being threatened by XXXX, who was the thief stealing from my shop." This BOC Form includes information to the effect that XXXX broke the lock and that he was the thief stealing from her shop. The RAD cannot conclude that the female appellant omitted anything because she writes that XXXX stole from her shop. The RPD's credibility finding cannot stand in the face of the discrepency noted by the RAD with regard to the credibility findings. [41] The RPD pointed out that document D-11 does not mention the thefts from the boutique. [42] The female appellant explained that she went to file a complaint regarding XXXX's threats and that, if she reported the theft, she would not be given her money back. [43] The RAD notes, when reading Exhibit D-11, that this exhibit is not completely mum with regard to the fact that the female appellant experienced more than just death threats. It is written that the door to the business had been forcibly broken. [44] Indeed, the theft of the goods is not mentioned. The female appellant explained that she did not mention the theft of the goods because the police would not give her back her money and she did not have any evidence. [45] In itself, this omission regarding the theft of goods-even though she mentions the broken door-is insufficient to reduce the female appellant's credibility to zero with regard to the theft incident on XXXX XXXX, 2014. [46] The RPD was of the opinion that the female appellant was not credible because she did not mention in her BOC Form exactly what was said on XXXX XXXX, 2014, when she was allegedly threatened by XXXX, that is: [translation] "If no one else were there, he would have made it so that her body lay in a pool of its own fluids." The RAD is of the opinion that there is no omission there. The female appellant writes that she was threatened in her BOC Form. She also explained that she had not had any assistance in completing her BOC Form and that she filled it out on her own. For the RAD, this is not an omission. She specified the exact wording when she testified after writing that she had received a death threat. [47] Furthermore, and with regard to the critical point on which the female appellant's fear is based, the RPD criticized the female appellant for not writing in the IMM 5669 document that she lived in XXXX, at the home of her friend XXXX, between XXXX XXXX and XXXX, 2014, because she feared for her safety. The RPD drew a negative inference in terms of credibility. [48] The RAD cannot make the same finding. Besides the fact that the female appellant prepared this form without any assistance and that she [translation] "did not know that she had to write XXXX home address," the female appellant writes in her BOC Form a few days before completing the IMM 5569 that she went to live in XXXX at the home of a friend after XXXX XXXX, 2014. Therefore, she mentioned in her refugee protection claim that she had lived there. The RAD is of the opinion that it is unreasonable to find that the female appellant is not credible in this regard. [49] The RAD is therefore of the opinion that the RPD erred by concluding that because the female appellant did not write in her IMM 5569 that she lived in XXXX after XXXX XXXX, this rendered subsequent incidents not credible. [50] However, these incidents are at the heart of the female appellant's fear. She allegedly returned to pick up some items at her home on XXXX XXXX and stumbled upon XXXX and XXXX. Reportedly, they chased her and she was responsible for XXXX's arrest. Since then, XXXX has been looking for her because she had XXXX arrested. [51] Although the RAD cannot rule on the credibility of these incidents for lack of evidence, the RAD is of the opinion that the finding of non-credibility based on this omission is unfounded. [52] The RAD does not agree with the RPD's reasoning that, because the female appellant did not write the address of the place she went to on XXXX XXXX, the incidents on XXXX XXXX are not credible. The RPD erred in its credibility analysis. [53] For these reasons, the RAD is of the opinion that the RPD's decision regarding the credibility analysis is unfounded. [54] The RAD cannot substitute its own determination because it is of the opinion that it does not have sufficient evidence to do so. There is reason to further explore an internal flight alternative in Pétionville. [55] Moreover, the RAD is of the opinion that the issue of the identity of XXXX XXXX, the male appellant, must be looked at in more detail. It is rather surprising that the female appellant declared to the American authorities in XXXX 2014 that she did not have any children, and then declared to the Canadian authorities in XXXX 2014 that she had a son. Furthermore, the son's birth certificate has at least one significant anomaly. Even though he has a passport in his name, it could have been obtained illegally. The RAD also notes that he is not mentioned in any other document. CONCLUSION [56] For these reasons, which the RAD considers central, it refers the matter to a newly constituted panel of the RPD for re-determination, as it is unable to confirm or set aside the RPD's determination without holding a new hearing. DIRECTIONS TO THE RPD [57] The RAD is of the opinion that more in-depth questions should be asked with regard to the identity of XXXX XXXX. REMEDY [58] Under subsection 111(1) of the IRPA, the RAD refers the matter of XXXX XXXX XXXX and XXXX XXXX to the RPD for re-determination. [59] The appeal is allowed. Roxane Cyr Roxane Cyr December 4, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at paragraph 28. 2 Idem, at paragraph 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, at paragraph 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, at paragraph 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, at paragraph 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR :MB5-01490 MB5-01491 9 RAD.25.02 (2014.09.11) Disponible en français