MB4-01944

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 : MB4-01944 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 / heard at Montréal, Quebec Appel instruit à Date of decision October 27, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal François Jean Denis 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 Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not submit any new evidence and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant is a 34-year-old woman who alleged in her Basis of Claim Form (BOC Form), submitted before the RPD, that she worked as a XXXX director in a school, XXXX XXXX XXXX XXXX, in the city of Port-au-Prince. [5] The appellant alleged that on XXXX XXXX, 2013, armed individuals attempted to kidnap students at the school's gate. The appellant intervened with the school's security guard to prevent the abductions. [6] The appellant alleged that she was followed, a week later, by two individuals on a motorcycle, that a stranger had come to the school to speak with her, and that she had received a threatening call at her home on the evening of November XXXX XXXX 2014. She alleged that she lodged a complaint with police officers the next morning, on November XXXX XXXX and advised the school's principal thereof. [7] The appellant alleged that, two days later, she received three other threatening calls and that a stranger had asked to see her at her husband's business. She alleged that during the night of November XXXX to XXXX, 2013, strangers went to her home, attempted to break in and fired shots. [8] The appellant alleged that her family sought refuge at the home of friends but that the threatening calls continued. They then sought refuge at the home of other friends. She alleged that her husband's business was ransacked during the night of December XXXX, 2013. [9] The appellant alleged that she stopped going to work and that the threatening calls continued. [10] The appellant left Haiti on XXXX XXXX XXXX 2013, as she obtained a visa that she had applied for on XXXX XXXX, 2013, for Canada, where she claimed refugee protection. [11] The RPD rejected the claim for refugee protection on the ground that the appellant's main allegations were not credible. The RPD found that the appellant's credibility was undermined for the following reasons: - A few days before the hearing, the appellant submitted Exhibit C-2, a complaint that she had allegedly filed with the police in Haiti on November XXXX, 2013, in which she states that on that same day she and her husband were pursued by two strangers on a motorcycle and that her husband, who was driving their car, managed to lose them and go to the police station, even though this incident was not mentioned in the BOC Form and was verbally added by the appellant at the start of the hearing; - There was a contradiction in the appellant's testimony as to the number of complaints that she allegedly filed with the police in Haiti; - There were contradictions between the appellant's testimony regarding the reasons for the alleged complaint on November XXXX and the content of the complaint; - There were contradictions in the appellant's testimony as to the number of threatening calls she allegedly received and the dates on which she allegedly received them; - It was inconsistent that the appellant and her family would leave their home on November XXXX, 2013, to go into hiding, even though she continued to go to work at the school until December XXXX, 2013; - There was a contradiction in the testimony of the appellant, who stated that she had decided to leave her country after the alleged incident on November XXXX, 2013, to later claim that she only wanted to leave her job on that date; - There was confusion in the appellant's testimony as to the motorcycle that allegedly followed her at the time of the alleged incident that took place a week after November XXXX, 2013. [12] The RPD also determined that the appellant had not demonstrated that there was a serious possibility that she would be the victim of persecution by reason of her membership in the particular social group of women. [13] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility, for reasons that will be raised under the heading "Analysis," and erred in its analysis of her fear by reason of her mere membership in the particular social group of women. [14] For these reasons, the appellant is requesting that the RAD set aside the RPD's determination and grant her refugee protection. RAD'S ROLE [15] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing decisions rendered by the RPD. In this file, the appellant submits that the RAD should apply the standard of reasonableness to the RPD decision. [16] The Federal Court, which has the authority to review RAD decisions, has rendered a few decisions to date about the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [17] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada ruled on this matter. [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 and 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 examined 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] With regard to 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 examined the RAD's role. [24] In line with the previous Huruglica, Eng and Alvarez decisions, the Court first found in that case that the RAD erred in applying the standard of reasonableness rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [25] The Honourable Justice Roy proceeded 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 in Parizeau;5 and Parliament's intent regarding the RAD as stated by various stakeholders in debates before the parliamentary committee of the House of Commons, to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but to an appeal in its own right (paragraph 39). [26] Relying on the conclusions in Parizeau in terms of the standard of review that an appeal tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concluded that the standards of review applicable to 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 indicated that he could not find any evidence 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: [translation] [43] The system under review refers instead to appeals on determined questions, be they of fact, of law or of mixed law and fact (subs. 110(1)). In my view, this means that the appellant must identify the questions to be addressed in the appeal. The appeal will be heard based on the record before the RPD, on the basis of the questions identified and raised, subject to documentary evidence (subs. 110(3)) or evidence in keeping with subsection 110(4)..... [28] Finally, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I. 2014 FC 952), the Honourable Justice Martineau of the Federal Court, after analyzing the above-cited decisions, first concluded that all had rejected the standard of reasonableness, and then concluded that, in his view, the RAD had to be allowed to choose between the two remaining approaches, either that stated in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, or that stated 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 in fact 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, respectfully, the RAD's role described therein, in my view, is easier to apply than that described in Huruglica. [31] Accordingly, in this case, I am of the opinion that the error alleged by the appellant regarding the assessment of her credibility is one of fact, and so I will apply the standard of palpable and overriding error in this matter and defer to the RPD's conclusions in this respect. [32] At paragraph 91of 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 facts, that is, the result of his or her decision, cannot hold water, thus ipso facto making the decision unreasonable. ANALYSIS [33] The issue to decide in this case is whether the RPD committed a palpable and overriding error in its assessment of the credibility of the appellant's allegations. [34] In my opinion, the answer to this question is no, for the following reasons. [35] One of the most important determinations of the RPD affecting the appellant's credibility is that relating to the incidents alleged on November XXXX, 2013. In her memorandum, the appellant submits that the RPD should not have drawn negative inferences from the failure to include this incident in the BOC Form, as it was added verbally at the start of the hearing when the panel asked her if she had anything else to add to her account, and also because she explained why she had initially failed to mention it. [36] I find that the RPD did not err in its determination in this matter. Just as the RPD concluded, I am of the opinion that the evidence demonstrates that this incident is important in the appellant's account, as it was allegedly after this incident that she decided to leave her country, and that the appellant is also unable to explain why she waited until the very morning of the hearing to add it, even though she testified that she had noticed this omission a few weeks prior. [37] Furthermore, there is some confusion in the appellant's testimony as to the reasons for the complaint that was allegedly filed on November XXXX, 2013. She confuses the reasons for the complaint that she mentions in her BOC Form which was allegedly filed two days after the one on November XXXX, that is on November XXXX, 2013, following the threatening calls, with the complaint that was allegedly filed on November XXXX, 2013, because she and her spouse had allegedly been followed by strangers on a motorcycle. [38] Finally, to add to the confusion, the copy of the November XXXX complaint submitted into evidence does not mention the threatening telephone calls received, which was allegedly one of the reasons for the complaint according to the appellant. Although the appellant is not compelled to explain this omission, which she claims was allegedly made by the police officer who took the complaint, it nevertheless seems implausible to me that the threats would not be indicated, and I find that all this confusion surrounding the complaint, or complaints, can only undermine the appellant's credibility. [39] In her memorandum, the appellant submits that it was not inconsistent that she continued to go to work even though she feared the criminals to the point where she changed homes, twice, in order to escape them. She submits that her explanations that it was important for her to go to work and that she had taken certain measures to protect herself are reasonable. I agree with the RPD's conclusions in this matter, especially since according to the appellant's testimony, the safety measures taken were merely that she commuted with colleagues between school and home, even though she had indicated in her BOC Form that strangers on a motorcycle had followed her while she was in a car with her colleagues. I do not see how these measures could protect the appellant from individuals who were continually and seriously threatening her, and I find the fact that she continued to go to work to be a behaviour inconsistent with that of someone who fears for her safety. [40] Finally, the confusion raised by the RPD regarding the appellant's answers to the question to determine at what distance she was followed by a motorcycle, specifically whether it was [translation] "two to three minutes" or "two to three metres," is probably not sufficient on its own to reject all the appellant's allegations, but I find that there are nevertheless enough elements that do undermine her credibility. [41] Having considered all the evidence presented before the RPD and considering the deference it is due with respect to its assessment of the credibility of the witnesses it heard, I conclude that the appellant did not demonstrate that the RPD committed a palpable and overriding error in the assessment of her credibility. [42] Furthermore, regarding the RPD's conclusion that the appellant did not demonstrate a reasonable fear of persecution by reason of her membership in the particular social group of women, the appellant submits that the RPD erred because the documentary evidence demonstrates that the risk of rape is high in Haiti. [43] I wish to mention that there is first a problem of credibility regarding the appellant's fear. With respect to section 96 of the IRPA, the appellant must demonstrate, first and foremost, her subjective fear. However, this fear of rape or assault by reason of her mere membership in the particular social group of women was never raised in her BOC Form or in the answers the appellant gave to the question regarding what she feared in Haiti: she stated that she feared the individuals who had allegedly threatened her, which the RPD did not find credible. It was only at the very end of the hearing, when asked by her counsel, that the appellant stated this fear. I find that the credibility of the appellant's subjective fear in this matter is undermined as a result. [44] I also find that the RPD, in its analysis of this issue, did consider the documentary evidence submitted regarding the status of women in Haiti which indicates that Haitian woman are not all in the same situation and that, specifically, single women, homeless women or those living in the camps set up after the earthquake in January 2010 are the most vulnerable. The RPD also considered the personal situation of the appellant, who is neither single nor homeless, to conclude that she had not demonstrated a serious possibility of persecution by reason of her membership in the particular social group of women. I conclude that the RPD did not commit a palpable and overriding error in its assessment of the documentary evidence. REMEDY [45] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [46] The appeal is dismissed. Normand Leduc Normand Leduc October 27, 2014 Date IRB translation Original language: French 1 Alvarez v. M.C.I. 2014, F.C. 702. 2 Eng v. M.C.I., 2014, F.C. 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.:MB4-01944 RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01944 4