MB4-01498

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 : MB4-01498 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 November 6, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Styliani (Stacey) Markaki Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She presented no new evidence and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I find that the RPD erred in fact in its decision. I am unable to set aside the RPD's determination and to substitute the determination that should have been made without hearing evidence that was presented to the RPD. [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [5] The appellant is a 35-year-old woman who alleged, as indicated in the Basis of Claim Form (BOC Form) that she filed with the RPD, a fear of her husband, with whom she had three children, if she were to return to Cameroon. [6] The appellant alleged that she was married against her will on XXXX XXXX, 1998, to someone called XXXX XXXX, an XXXX by profession, at the demand of and under pressure from her guardian at the time. [7] The appellant alleged that she was a victim of both physical and psychological violence from her husband from the start of their marriage. She was allegedly forced to stop attending school following her marriage. [8] The appellant alleged that her husband married a second wife in 2006, and that her situation worsened. She alleged that she decided to leave her country after having been severely beaten by her husband in February 2013. [9] The appellant alleged that she left the marital home in July 2013 to hide at an aunt's home in the city of Douala. A friend allegedly provided her with a visa for Canada, and the appellant left her country on XXXX XXXX, 2013, for Canada, where she claimed refugee protection on or around December 11, 2013. [10] The appellant added at the start of the hearing that she had learned that her husband had called her uncles to threaten them in December 2013 and in January 2014. [11] The RPD rejected the claim for refugee protection on the ground that the appellant's key allegations were not credible. Thus, the RPD found that the appellant's credibility was undermined for the following reasons: - There are contradictions between the appellant's allegations before the RPD and the information with respect to her in the application for a Canadian visa that she made in Cameroon, particularly with regard to her studies and her profession; - There is a contradiction in the evidence presented regarding the birth year, either 2000 or 2001, of the appellant's second daughter; - There is a contradiction in the evidence presented with respect to the end date of the appellant's studies; - There is an omission in the BOC Form of the appellant's two attempts to flee the marital home, in 2000 and in 2001; - It is inconsistent that the appellant obtained her passport in November 2012, when she testified that she decided to leave her country in February 2013; - There are contradictions between the appellant's testimony and the information contained in the document entitled "report establishing findings of violence, with hearings" filed in evidence. [12] Before the RAD, the appellant submitted that the RPD erred in two ways: firstly, by failing to comply with the rules of natural justice and procedural fairness by instructing his counsel, during the hearing, that the panel did not require further details with respect to the domestic violence to which the appellant alleged she was a victim and, secondly, in the analysis of her credibility, for reasons that will be addressed further on in the "Analysis" section. [13] For these reasons, the appellant is requesting that the RAD set aside the RPD's determination and refer the matter to the RPD for re-determination. [14] I have decided to refer the matter to the RPD because of the second ground alleged by the appellant. ROLE OF THE RAD [15] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In the case at hand, the appellant submits that the RAD should apply the standard of correctness to decisions of the RPD. [16] The Federal Court, which has the authority to review RAD decisions, has rendered a few 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. [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 and paragraphs 29 and 30 of Eng, the Court wrote 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 added the following at paragraph 33 of Alvarez and 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 a decision rendered on August 22, 2014, in Huruglica,3 the Honourable Justice Phelan of the Federal Court examined the roles and functions of the RAD and wrote 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] By considering 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 wrote: [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 concluded 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 addresses the role of the RAD. [24] In this case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first considered that the RAD erred when it applied the reasonableness standard 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 relating to the RAD under the IRPA, the case law concerning the role of an appellate body within an administrative tribunal, particularly Parizeau,5 and Parliament's intent as stated by various stakeholders in debates before the parliamentary committee of the House of Commons regarding the RAD, to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but rather to an appeal in its own right (paragraph 39). [26] Relying on the findings in Parizeau regarding the standard of review to be applied by an appellate tribunal, and distinguishing himself somewhat from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concluded that the standards of review to be applied by 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 regarding the credibility to be given to the witnesses who were heard (paragraphs 39, 40 and 46). [27] The Honourable Justice Roy also stated that he could not find any indicators that lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42) and wrote, in the following paragraph of his decision, that: [translation] [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means 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).... [28] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having considered the above cases, first found that all of them reject the reasonableness standard of review, and then expressed his opinion that the RAD must be allowed to choose between the two remaining options: the one set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the one set out in Huruglica, which he described 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 wrote in paragraph 46 of Alyafi that: [30] ... I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as 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. [31] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described therein appears to me to be more easily applicable than as described in Huruglica. [32] In this case, I am of the opinion that the error alleged by the appellants regarding the assessment of their credibility is one of fact, and I will therefore apply the standard of palpable and overriding error and will defer to the RPD's findings on this issue. [33] At paragraph 91 of Parizeau, the 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 fact, i.e. the result of his or her decision, cannot hold, thus, ipso facto, making the decision unreasonable. [34] I also find that the error alleged by the appellant that the RPD failed to comply with the rules of natural justice and procedural fairness is a question of law, and that it is subject to the standard of correctness. However, since I have decided to set aside the RPD's determination and to refer the matter to the RPD for re-determination because of what I consider to be an error of fact, I will not need to further assess the error in law alleged by the appellant. ANALYSIS [35] The issue to be determined is whether the RPD committed a palpable and overriding error in its assessment of the appellant's credibility. [36] In my opinion, after analyzing all of the evidence presented and having heard the recording of the hearing held before the RPD, the answer to this question is yes, because I am of the opinion that the elements that the RPD considered in concluding that the appellant's essential allegations were not credible are secondary to the claim for refugee protection or not sufficiently important to rebut the presumption that a refugee protection claimant under oath is telling the truth. [37] Paradoxically, it appears to me that the most significant contradiction in the evidence presented is probably that between the appellant's allegations before the RPD and the information with respect to her contained in the visa application. There is a major contradiction there because the documents submitted with the visa application specifically indicate that the appellant holds a university degree and runs a business. Documents which at first glance appear authentic were also submitted with the visa application to corroborate the appellant's situation. However, the RPD wrote in its reasons (paragraph 21) that it could have given the appellant the benefit of the doubt on this point had it not been for the other elements which, in its opinion, undermined her credibility. For the RPD, the contradictions between the visa application and the appellant's allegations are therefore not fatal to the claim for refugee protection. [38] I also consider the contradiction raised by the RPD regarding the year of birth of the appellant's second daughter as secondary to the claim for refugee protection. Whether her daughter was born in 2000 or in 2001 does not change the essential allegations of the claim for refugee protection, and I do not see any interest on the part of the appellant in wanting to show the RPD that her daughter was born one year or the other, even though she alleged that she was raped by her husband after she gave birth. In this regard, the appellant alleged that she continuously faced violence by her husband from the start of her marriage. [39] The contradiction raised regarding the appellant's student status also does not appear to me sufficiently important to reject all of the allegations. The appellant explained why her identity card issued in 2004 indicates her occupation as [translation] "student," that is, because her husband mocked her when her previous card indicated [translation] "homemaker," and these explanations do not seem unreasonable to me. Further, it does not seem necessary to me for the appellant to want to hide that she was allegedly a student in 2004 because this status would still not prevent her from being a victim of domestic violence. Lastly, I would add that it seems, at the very least, curious that the appellant's occupation would have been "élève" [reserved for elementary or secondary school students] and not "étudiante" [reserved for university students] if she-as the RPD mentioned, based on the visa application-had been studying at the University of XXXX at the time the card was issued. [40] The omission in her BOC Form noted by the RPD regarding the fact that she left the marital home twice, in 2000 and in 2001, also does not seem sufficient to me to reject all of the appellant's allegations: this is not an omission or contradiction that significantly changes the appellant's story, but rather, in my opinion, secondary events that seem to me completely plausible given the history of mistreatment alleged by the appellant, which, in addition, occurred several years ago. [41] In my opinion, the same applies regarding the fact that the appellant testified that she had obtained her passport a few months before deciding to leave. I find this fact alone not sufficient to undermine all of the appellant's allegations. [42] Lastly, the RPD's decision to not attach any probative value to the document submitted by the appellant entitled "Report establishing findings of violence, with hearings" also cannot be upheld because it is largely based on the RPD's previous findings regarding the appellant's credibility. Furthermore, I find, as the appellant mentioned in her memorandum, that nothing in the evidence presented shows that the appellant was living with her husband's second wife, as was taken into account by the RPD in its analysis to determine whether there was a contradiction between this document and the appellant's testimony. [43] For all these reasons, I find the RAD's intervention to be justified in this case. REMEDY [44] I determine that the RPD's decision is wrong in fact. I am unable to set aside the RPD's determination and substitute the determination that should have been made without hearing evidence that was presented to the RPD. [45] Pursuant to subsection 111(1) of the IRPA, the RAD refers this matter to the RPD for re-determination by a differently constituted panel. [46] The appeal is allowed. Normand Leduc Normand Leduc November 6, 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.:MB4-01498 RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01498 2