MB3-03627

RAD File No. / N° de dossier de la SAR : MB3-03627 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision December 17, 2013 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Michel Lebrun Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of India, is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He did not submit any new evidence and is not requesting a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I find the decision of the RPD to be wrong in fact. I cannot set aside the RPD decision and substitute the determination that should have been made without holding a new hearing to examine the evidence that was presented to the RPD with respect to the issue of the appellant's credibility, and, if required, the issues of the ability of the appellant to have access to an internal flight alternative and whether the appellant would be able to obtain adequate state protection in India. [4] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [5] The appellant is a 26-year old Sikh man from the State of Punjab in India. [6] He alleged before the RPD that he worked as a XXXX with his father XXXX XXXX XXXX XXXX and that he was stopped by police officers on XXXX XXXX XXXX 2013, while transporting XXXX employees XXXX XXXX XXXX. He alleged that the police officers identified one of these employees as someone who was wanted by them and that this employee then fled. [7] The appellant alleged that the police detained him that night and questioned him about the wanted employee. The police officers allegedly accused him of having connections with militants, just like his employee. He alleged that he was tortured by the police officers and then released three days later, after the municipal council from his village intervened and a bribe was paid. [8] The appellant alleged that he was again arrested by the police on XXXX XXXX, 2013, and was again tortured and questioned about the wanted employee. He was allegedly released a week later, again after the municipal council intervened and a bribe was paid. [9] The appellant alleged that he then went into hiding until he left his country on XXXX XXXX, 2013, for Canada, where he claimed refugee protection. [10] The RPD noted a number of contradictions in the evidence submitted before it that led it to find that the appellant's story was not credible. Consequently, the RPD determined that the appellant was not a "Convention refugee" or a "person in need of protection." [11] The appellant argued before the RAD that the RPD made an error with regard to procedural fairness by not providing sufficient reasons supporting its decision to reject his testimony, particularly because the RPD did not make any reference to the affidavits that were submitted as evidence to corroborate his allegations. [12] The appellant also maintained that the RPD erred in concluding that, in its opinion, it is unusual in India for educated individuals to work as XXXX, and in not granting any probative value to the medical documents submitted, as well as in drawing negative inferences regarding the fact that the appellant lied about his itinerary when he arrived in Canada. [13] For these reasons, the appellant is asking that the RAD set aside the decision of the RPD and order a new hearing. STANDARD OF REVIEW [14] The IRPA does not expressly set out the standard of review that should be applied by the RAD when reviewing decisions rendered by the RPD, nor is that standard of review directly set out in the case law. [15] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada reviewed the foundations of judicial review and the standards of review that apply in various situations. In order to simplify the analysis, the Supreme Court determined that there should now only be two standards of review: correctness and reasonableness. [16] Although the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that, absent more direct guidance from the higher courts, the principles developed in Dunsmuir can be applied to the RAD. [17] In paragraph 51 of its decision in Dunsmuir, the Supreme Court writes, "...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness." [18] In this case, the appellant is arguing that, because it did not give sufficient reasons supporting its decision, the RPD made an error with regard to procedural fairness, which constitutes an error in law and, therefore, the standard of correctness applies. I do not agree with the appellant on this point. To demonstrate the inadequacy of the reasons, the appellant cited the fact that, in its decision, the RPD did not mention the affidavits submitted as evidence. In my opinion, this oversight in itself does not make it impossible to understand the basis of the RPD's decision or to follow the reasoning leading to its conclusions, which could have constituted a breach of procedural fairness, as mentioned in Contreras (Canada v. Contreras, No. IMM-1497-08), cited by the appellant, but it is actually an allegation of an error regarding the RPD's assessment of the appellant's credibility, which constitutes an error of fact that is subject to the standard of reasonableness. [19] The other errors alleged by the appellant, namely, that the RPD erred in concluding that, in its opinion, it is unusual in India for educated individuals to work as XXXX, in not granting any probative value to the medical documents submitted, and in drawing negative inferences from the fact that the appellant lied about his itinerary when he arrived in Canada are also errors regarding the assessment of the appellant's credibility, and, as such, are also subject to the standard of reasonableness. [20] In paragraph 47 of Dunsmuir, the Court states that "reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Judicial deference is therefore required, and deference must be given to the RPD decision. ANALYSIS [21] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [22] In order to conclude that the appellant's story is not credible, the RPD relied on the following analysis, which I have summarized as follows: * The RPD drew negative inferences from the fact that, when he arrived in Canada-by his account, on the advice of his "smuggler"-the appellant stated that he had travelled via Cuba; however, he then stated that he had travelled through Qatar, which he claims is the truth. * The RPD drew negative inferences from the fact that, in a Canadian visa application in 2008, the appellant stated that he had worked as a XXXX since 2005; he wrote in his "Schedule A" form (see page 123 of the RPD record) that he had worked as a XXXX from 2005 to 2013; and he stated at the hearing that he worked as a XXXX from 2009 to 2013. The RPD was of the opinion that it is unusual for an educated individual like the appellant to work as a XXXX in India. * The RPD drew negative inferences from the fact that the appellant did not state in his "Schedule A" form that he had been in hiding in the city of XXXX since XXXX XXXX XXXX 2013, as he claimed at the hearing. * The RPD drew negative inferences from the fact that, in its opinion, it is [translation] "hard to see" how an individual like the appellant's employee, who is allegedly a major arms dealer, would accept to work XXXX XXXX XXXX. * The RPD also did not grant any corroborative probative value to the two medical documents submitted as evidence that allegedly discuss the treatment received by the appellant after his two alleged detentions (see paragraph 27 of the RPD reasons). [23] As mentioned by the appellant in his memorandum, I am of the opinion that the RPD committed a reviewable error by neglecting to comment in its reasons on the three affidavits submitted as evidence under R-2, R-3 and R-4 (see pages 137 to 142 of the RPD record). [24] I am of the opinion that this documentary evidence is important since it confirms the appellant's principal allegations that he was arrested, accused of having ties to terrorists, and tortured in India-which is at the very heart of the claim for refugee protection. These affidavits were allegedly signed by the appellant's father and two members of the municipal council from the appellant's village. In my opinion, the RPD was consequently required to take these documents into account in its reasons when assessing the credibility of the appellant's allegations and, in particular, to assess their probative value, since the content of this documentary evidence directly counters the RPD's findings that the appellant's story is not credible. [25] In my opinion, failing to comment on the documentary evidence is fatal to the reasonableness of the RPD decision. Consequently, it will not be necessary to further examine the appellant's other arguments before the RAD. REMEDIES [26] I determine that the decision of the RPD is wrong in fact. I cannot set aside the decision of the RPD and substitute the determination that should have been made without holding a new hearing to examine the evidence that was presented to the RPD with respect to the issue of the appellant's credibility, and, if required, the issues of the ability of the appellant to have access to an internal flight alternative and whether the appellant would be able to obtain adequate state protection in India. [27] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. [28] The appeal is allowed. Normand Leduc Normand Leduc December 17, 2013 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR: MB3-03627 7