MB4-02939

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 Nos. / Nos de dossier de la SAR : MB4-02939 MB4-02940 MB4-02941 MB4-02942 789 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 4, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subject of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Haiti and Venezuela; his wife, XXXX XXXX XXXX XXXX, a citizen of Haiti and a resident of Venezuela; and their two children, XXXX XXXX XXXX and XXXX XXXX, both citizens of Venezuela and Haiti, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] XXXX XXXX XXXX was appointed by the RPD as the designated representative of the two minor children, XXXX XXXX and XXXX XXXX, and this designation is deemed to extend to the appeal proceedings. [3] The appellants have not presented any new evidence in support of their appeal and are not 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 confirms the RPD's determination, namely, that the appellants, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] In Venezuela, the appellants fear death at the hands of "Chupa Palo," a pro-government political group, because the principal appellant allegedly worked for and was a member of an opposition political party, the Alianza Bravo Pueblo. [7] The principal appellant left Haiti in 1984, fearing the insecurity and violence that prevailed there. His wife, XXXX XXXX XXXX XXXX, who left Haiti in 2006, fears being a victim of rape, as her sister allegedly was. The children are basing their fear on that of their parents. RPD DECISION [8] The RPD rejected the refugee protection claim filed by the appellants, XXXX XXXX XXXX, XXXX XXXX and XXXX XXXX, finding that they were not credible and that the principal appellant had failed to establish, on a balance of probabilities, the basis of his fear in Venezuela, namely his political involvement with the "Chupa Palo" group. XXXX XXXX XXXX XXXX was excluded from the United Nations Convention Relating to the Status of Refugees under Article 1E of the Convention by reason of her residency status in Venezuela, which she still has (see page 203). GROUNDS OF APPEAL [9] Before the RAD, the appellants submit that the RPD [translation] "attached disproportionate importance" to the facts that it found to be not credible and that this constitutes an error justifying the RAD's intervention. [10] Furthermore, the RPD committed an error of law by excluding XXXX XXXX XXXX XXXX on the grounds of her residency status in Venezuela, as she cannot be excluded because she is claiming protection against that country. [11] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and to substitute its own determination, or to refer the matter back to the RPD for re-determination. [12] The Minister did not intervene in this case. RAD'S ROLE [13] The RAD is a newly constituted body that reviews RPD decisions. Its role remains to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied in reviewing RPD decisions. [14] To date, the decisions of the Federal Court have established that "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."1 The RAD "also has the authority to investigate, an authority the Federal Court judge . . . does not have." [15] In Alvarez,2 the Honourable Justice Shore expresses 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 cannot hold a hearing unless new evidence is presented in accordance with subsections 110(4) and 110(6) of the IRPA, which limits the scope of review that the IRPA gives to the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [16] In Eng,3 Justice Shore expresses the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact, because the RPD is better situated, having seen and heard the claimant. However, the RAD must conduct its own assessment of all 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" (Eng).4 [17] In Huruglica,5 a decision rendered after Alvarez and Eng,6 the Honourable Justice Phelan expresses the opinion that the need for deference to the RPD "is less compelling between the RAD and the RPD than it is between the judiciary and the executive" and that the RAD is given much greater remedial powers than those of the appellate court. Moreover, the IRPA sets out, in subsection 111(1), that the RAD may substitute its own determination for that of the RPD. In doing so, the RAD must conduct its own independent analysis of the appeal record and is not restricted to intervening only in the event of a "palpable and overriding error." The standard of reasonableness, which was initially applied by the RAD, was unequivocally rejected by the Court (See Alvarez, Eng and Spasoja).7 [18] In Huruglica, Justice Phelan states the following: "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'" (Huruglica).8 [19] Thus, Huruglica recommends an approach where deference must be given to the RPD in the assessment of credibility, while conducting an independent analysis of credibility that is not limited to the "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has equal or greater expertise to 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" (Huruglica).9 [20] In Spasoja,10 rendered after Huruglica, the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica.11 He is of the opinion that the standard of review applied by the RAD must be that of the "palpable and overriding error" for questions of fact and questions of mixed fact and law, that the RAD must show deference to the RPD's findings of credibility, and that, for questions of law, the standard of correctness applies. This conclusion is consistent with Alvarez and Eng. [21] In Alyafi,12 Justice Martineau chooses "the middle path, that of wisdom" and is of the opinion that the two positions, the first explained in Alvarez, Eng and Spasoja13 (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)), can both be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [22] It seems to me that the RAD must show deference to the RPD's findings of fact and a measure of deference to its credibility findings, as in Huruglica, given that the RPD had the opportunity to see, hear and question the appellant. [23] In its analysis, the RAD will consider all of the evidence, namely the appellant's testimony and the documentary evidence, and will conduct its own analysis while showing deference to the RPD's credibility findings. [24] The RAD will intervene only if 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 supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. For errors of law, the RAD will apply the standard of review of correctness (Spasoja).14 ANALYSIS [25] The RPD's decision concerns the credibility of the allegations against Venezuela. [26] As part of its analysis, the RAD reviewed all the evidence in the record and, in particular, listened to the recordings of the hearings of April 17 and June 20, 2014. [27] The RPD found that the principal appellant was not credible regarding his political involvement in "Alianza Bravo," the opposition party. The RPD noted that the principal appellant's testimony was evasive and lacked spontaneity. As the RAD had the opportunity to listen to the recording, it notes that the principal appellant indeed rarely responded directly to the questions that were central to his political involvement. Furthermore, the RAD notes that the principal appellant provided different answers to the same questions. [28] For instance, the principal appellant's counsel asked him if he went to his political meetings by taxi XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. After answering "no," he later stated, "yes, XXXX XXXX XXXX XXXX XXXX XXXX." [29] Like the RPD, the RAD is of the opinion that the principal appellant's testimony was neither spontaneous nor fluid. [30] The appellant is of the opinion that the RPD attached disproportionate importance to the fact that he could not correctly state the name of the party of which he was supposedly a member. When the RPD asked him the name of his party, the appellant stated "Alianza Bravo," although the name of the party as it appears in his BOC Form is "Alianza Bravo Pueblo," just as the name is indicated in the response to information request on this party (page 294). [31] The appellant states that he had already given this name in his BOC Form and at question 9 of the IMM 5669 form (page 108). The appellant adds that listening carefully to the recordings will show that he knew the name of his party because [translation] "when the member gave him the complete name of it, he answered 'Pueblo' at the same time as the member. He was not taken by surprise." [32] The RAD listened closely to this part of the recording and disagrees with the appellant's account. Twice he repeated "Alianza Bravo." He then took out a card that he showed to the RPD, and the member read aloud the name that was on it, "Alianza Bravo Pueblo." It was only after this, that the appellant repeated "Alianza Bravo Pueblo." [33] In the RAD's opinion, nothing in this part of the testimony reflects the fact that the appellant spontaneously stated the name of his party; what is more, he repeated "Alianza Bravo" twice without mentioning "Pueblo." It was necessary for him to take a card from his belongings and for the RPD to examine it and read the full name of the party aloud for the appellant to then state "Alianza Bravo Pueblo." [34] In the RAD's opinion, this behaviour is inconsistent that of a person who claims to be a party member and to have been active in campaigning and doing propaganda for this party, specifically during elections. [35] For these reasons, the RAD agrees with the RPD's findings on this point and is of the opinion that the fact that he did not know the exact name of the party he claims to belong to undermines his credibility. [36] Furthermore, the "Alianza Bravo Pueblo" (pages 70 and 71) party card, as the RPD pointed out, contains a major error in the very name of the party. "Alianza Bravp Pueblo" is written on the card which the appellant states is his membership card: a p instead of an o. When asked about this, the appellant did not give any explanation. The appellant states in his memorandum that he could not explain the error because he did not make it. [37] The RAD is of the opinion that the error in the party's name undermines the probative value to be given to this card, which is supposed to be an official document, and also notes that this document makes no sense. The card contains no photograph, states that the holder has been a member of the Alianza Bravp Pueblo party for five years, but does not indicate the dates corresponding to these five years, and does not even indicate the date on which the card was issued. The RAD is of the opinion that the RPD did not err in its findings in relation to this card. [38] The appellant is of the opinion that the RPD erred in concluding that he had stated that he had attended party meetings since December 2000. The appellant adds the following in his memorandum: [translation] "He did not attend meetings regularly. He also testified that he did not go to meetings very often between 2000 and 2006." [39] Did he or did he not attend meetings before 2006? [40] The RPD is of the opinion in its decision that the appellant's testimony on this point was laboured and contradictory, particularly regarding his years of involvement with "Alianza Bravo Pueblo." [41] Having listened to the appellant's testimony, the RAD comes to the same conclusions as the RPD. The appellant's testimony was muddled and contradictory. At one point, the appellant stated that he had started working for the party in 2000; later he stated that it was only beginning in 2006 for the elections; at one point, he stated that he has attended party meetings since 2000, then in the same breath, he stated that he only went to meetings when there were elections and that these elections were only in 2006. At one point, the appellant stated that he never went to party meetings in XXXX taxi, then later stated that he did go in XXXX taxi. Regardless, the appellant stated that he had started attended meetings in December 2000, and later stated that it was 2006. [42] Therefore, the RAD is of the opinion that the RPD did not err in concluding that the appellant's testimony was contradictory and that this undermined his credibility. [43] The same is true of the IMM 5669 form (page 108, question 9). The RPD pointed out that the appellant indicates in this form that he has been a party member since January 2006, whereas he stated in his testimony that he had become a member in 2000, and that this was a major contradiction. The appellant explained that he had misunderstood the question on the form. The RPD rejected this explanation, being of the opinion that he was represented by counsel when he completed this form and that he had signed a declaration stating that the information it contained was truthful. The appellant is of the opinion that the RPD should have accepted his explanation. [44] The RAD shares the RPD's opinion and considers the appellant's explanation unsatisfactory. In fact, the RAD does not see how the appellant could not have understood question 9 on the IMM 5669 form, which concerns involvement in a political party, if the appellant himself wrote on it that he had been the member of "Alianza Bravo Pueblo" since January 2006. This completely contradicts his testimony that he became a member in 2000. [45] In the RAD's opinion, the RPD did not err in finding that the appellant's credibility was undermined by this. [46] In his memorandum, the appellant argues that the RPD attached disproportionate importance to the fact that he had indicated in his BOC Form that his brother was living in Caracas, while in his testimony he stated that his brother was living in Estado Chilla, where he had moved. [47] Taken out of context, this point of credibility may seem insignificant and inconsequential regarding his overall credibility. However, this point of credibility raises a much more central issue, which was noted by the RPD during the hearing: Why did the appellant have no evidence to corroborate the alleged murder attempt on his son XXXX? This attempt allegedly occurred just after he had dropped his father, the appellant, off at home and resulted in a hospital stay of eight days. When he was questioned about this, the appellant ultimately stated that he could not ask anyone in Venezuela to go and obtain that type of document for him, not even his son XXXX, the victim, because he was living in Estado Chilla. In the RPD's opinion, the appellant did not provide a satisfactory explanation for this contradiction. Moreover, he gave two different dates for when this move allegedly took place. Like the RPD, the RAD is of the opinion that the appellant's explanation is not satisfactory and in no way explains why, if his son XXXX was already living somewhere other than Caracas when the appellant arrived in Canada, he would not write the correct information in his BOC Form. [48] In the RAD's opinion, the RPD did not conduct a microscopic analysis of credibility in this case. [49] According to the appellant, the above-mentioned points are sufficient for the RAD to conclude that the RPD [translation] "attached disproportionate importance to the above-mentioned facts." [50] The RAD does not share this opinion. These points are central to the appellants' claim for refugee protection. Furthermore, other points were raised in the RPD's analysis of the appellants' credibility which, in the RAD's opinion, add to the lack of credibility. The appellant stated at the hearing that he had been a victim of extortion by the Chupa Palo, which he did not state in his BOC Form. The appellant was allegedly assaulted by the Chupa Palo on XXXX XXXX, 2013, and was then treated at a clinic, although he did not present any corroborative document or take any steps to obtain such a document. [51] In light of the foregoing, the RAD is of the opinion that the RPD rendered the correct decision and did not err regarding the facts. [52] In the RAD's opinion, the RPD did not err in concluding that XXXX XXXX was excluded from the Geneva Convention under Article 1E of Convention.15 [53] The female appellant is a resident of Venezuela, and the evidence did not demonstrate, as previously indicated, that she would have a fear of persecution there under section 96, or that she would be subjected to either a risk to her life or a risk of cruel and unusual treatment or punishment under paragraph 97(1)(b). [54] In light of the foregoing, the RAD is of the opinion that the RPD rendered the correct decision in fact and in law and that it did not err. Nor did it attach disproportionate importance to peripheral facts. REMEDY [55] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX are not Convention refugees under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [56] The appeal is dismissed. Roxane Cyr Roxane Cyr March 4, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I. 2014 F.C. 702, para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, para. 33. 5 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 6 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 7 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 8 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 55. 9 Idem, para. 38. 10 Supra, footnote 7, in Spasoja. 11 Supra, footnote 8. 12 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para 46. 13 Supra, footnote 8. 14 Supra, footnote 7. 15 http://www.unhcr.en.org --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File Nos. / Nos de dossier de la SAR : MB4-02939 MB4-02940 MB4-02941 MB4-02942 12 RAD.25.02 (2014.09.11) Disponible en français