MB4-01685

RAD File No. / N° de dossier de la SAR : MB4-01685 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 16, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Raed Mahko 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 Tunisia, is appealing against the decision of the Refugee Protection Division (RPD) to reject her claim for refugee protection. [2] She did not present any new evidence and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, 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 28-year-old woman who alleged before the RPD, as indicated in the Basis of Claim Form (BOC Form) she submitted to it, that she met a man named XXXX XXXX in Tunisia on November 25, 2012, and that they became engaged on March 2, 2013. [5] The appellant alleged that she subsequently realized that her fiancé was an impulsive and aggressive man and that he used drugs. He allegedly insulted and attempted to assault a waiter when out at a restaurant in June 2013. [6] The appellant ended her relationship with XXXX, who continued to harass her until she agreed to meet with him at his home one last time. She alleged that she went to his home for a meal on October 2, 2013, at which time XXXX sexually assaulted her. She alleged that she went with her mother to file a complaint with the police that same evening. [7] The appellant alleged that XXXX continued to pursue, harass and threaten her afterwards and that the police did not want to hear her complaints on the matter, given the power that XXXX's father has. She also alleged that she was dismissed from her employment because of this harassment, which also occurred in her workplace. [8] The appellant left her country for Canada on XXXX XXXX, 2014, where she claimed refugee protection a few days after her arrival. [9] Having concluded that the claim had to be considered under section 96 of the IRPA, based on the appellant's membership in a particular social group, namely, that of women, the RPD rejected the refugee protection claim on the ground that the appellant's central allegations were not credible. [10] The RPD was of the opinion that the appellant's credibility had been undermined for the following reasons: - it is implausible that she would have agreed to meet with her ex-fiancé alone at his home after their engagement ended, considering her level of education and her awareness of his violent and unstable nature; - she omitted to mention in her BOC Form that XXXX threatened to make public a video that he allegedly filmed of the sexual assault; - there is a contradiction between her testimony to the effect that she did not go back to file a complaint with the police after making the complaint about the rape and her statement to the contrary in her BOC Form; and - the appellant already had valid European and US visas, but waited to obtain a Canadian visa before leaving her country. [11] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility, for reasons that will be reviewed later in the "Analysis" section. She also submits that the RPD breached procedural fairness by not conducting an independent assessment of the claim under section 97 of the IRPA. [12] For these reasons, the appellant is requesting that the RAD set aside the RPD's determination and refer the matter to it for re-determination. THE RAD'S ROLE [13] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the appellant does not specifically submit what this standard of review should be. [14] 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. [15] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada has ruled on this matter. [16] At paragraphs 28 and 29 of Alvarez and 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. [17] The Court adds the following in paragraph 33 of Alvarez and in 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. [18] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the RAD's role and functions 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 approach is not an appropriate analytical approach.... [19] 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.... [20] 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". [21] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [22] In that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first finds that the RAD erred in applying the standard of reasonableness rather than conducting an independent assessment of the refugee protection claim (paragraph 12). [23] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions relating to the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD 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). [24] Relying on the conclusions in Parizeau in terms of the standard of review that an appellate tribunal must apply, and distinguishing himself somewhat from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes 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 (paragraphs 39, 40 and 46). [25] The Honourable Justice Roy also states that he cannot find any evidence that could lead to the conclusion that the proceedings before the RAD are de novo proceedings (paragraph 42), and writes in the following paragraph of his decision that: [translation] [43] The system under review refers instead to appeals on determined questions, be they of law, of fact, 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).... [26] 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 finds that all of them reject the reasonableness standard of review, and then expresses 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 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). [27] Justice Martineau writes in paragraph 46 of Alyafi that: [28] ...I chose the middle path, that of wisdom: allow the RAD to apply the second or the third approach as long as the question of the scope of appellate review of 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. [29] 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 Huriglica. [30] Therefore, in this case, I am of the opinion that the error alleged by the appellant with respect to the assessment of her credibility is one of fact, and I will therefore apply the standard of palpable and overriding error and show deference to the RPD's findings on this matter. [31] At paragraph 91 of Parizeau, palpable and overriding error is described as follows: [translation] [32] ...A palpable and overriding error is an error that, in its undeniability-it is therefore not a question of 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, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making this decision unreasonable. [33] Also in this case, the error raised by the appellant to the effect that the RPD erred in failing to analyze the claim under section 97 of the IRPA is a question of law subject to the standard of correctness. In Lumaj,6 the Federal Court writes in paragraph 30 that: [34] [30] With respect to the fourth issue, then, the Court must determine if there was evidence before the RPD to support an analysis under section 97. If there was, the Court must then determine whether the RPD actually did conduct a section 97 analysis. The court must "undertake its own analysis of the question" (Dunsmuir, above, at paragraph 50). The standard of review on the fourth issue is therefore correctness. ANALYSIS [35] The first issue is whether the RPD erred in failing to analyze the claim under section 97 of the IRPA. [36] In my opinion, in this case, the answer to this question is no, for the following reasons. [37] First, I note that the RPD determines, both in paragraphs 4 and 34 of its reasons, that the appellant is not a refugee or a person in need of protection. Its determinations therefore relate to both section 96 and section 97. Furthermore, it is true that the RPD states in paragraphs 5 and 6 of its reasons that its analysis will be based on section 96 because, in its opinion, no evidence relating to section 97 was submitted. [38] Regardless, following the principle established in Lumaj, above, it appears to me that, because the RPD found that the central allegations on which the refugee protection claim was based were not credible, it had no other evidence that would justify an analysis under section 97 of the Act. Moreover, in her memorandum, the appellant does not indicate the evidence on which the RPD could have based its analysis of the claim under section 97. [39] Obviously, if the RPD erred in its analysis of the appellant's credibility, the RAD may intervene in the matter. [40] The second issue in this case is therefore whether the RPD erred in its analysis of the appellant's credibility. [41] One of the RPD's findings with respect to the appellant's credibility is that it did not find it plausible that the appellant returned to her ex-fiancé's home and that, as a result, she was raped. The RPD writes at paragraph 21 of its reasons that it is of the opinion that the appellant's allegation that she returned to have a meal with her ex-fiancé is irreconcilable with her allegations that she witnessed her ex-fiancé's violent behaviour, unpredictable mood and persistence and that she was very afraid on the day of the break-up. [42] To come to this conclusion, the RPD took into consideration the appellant's high level of education, the short-lived nature of her relationship with her ex-fiancé, her awareness of her ex-fiancé's violent behaviour and the fact that it was the appellant herself who ended the relationship. The RPD did not find reasonable the appellant's explanations that she followed her mother's advice to agree to a one-on-one meal with her ex-fiancé because he was never violent toward her, given that the appellant and her mother agreed that the appellant should end this relationship and that her mother had herself been harassed by the ex-fiancé. [43] In her memorandum, the appellant submits that, overall, the RPD erred in that [translation] "...the panel became lost in pure conjecture, especially when it concluded with no other supporting evidence that the claimant, in light of her profile and that of her family, could not have been raped" (paragraph 9 of the memorandum). [44] I am of the opinion, while showing the necessary deference to the RPD's findings on the credibility of a witness it heard, that it did not err in its finding. As seen above, I am of the opinion that the RPD explains why it considered the facts presented to be outside the scope of what could logically be expected and provides the reasons for its conclusion. Furthermore, the appellant does not demonstrate in her memorandum what evidence the RPD allegedly failed to consider in its analysis, such as certain cultural differences that could make plausible what the RPD found to be implausible. [45] I am also of the opinion that this conclusion of implausibility and, therefore, of non-credibility, is supported by other factors that the RPD found undermined the appellant's credibility. [46] Thus, the appellant's failure to mention in her BOC Form that her ex-fiancé threatened to make public a video that he filmed of the alleged rape is also, in my opinion, an important factor that undermines the appellant's credibility. This is a direct threat against the appellant, and I find its omission to be significant. I am of the opinion, as was the RPD, that the fact that the appellant did not really believe that this video existed is not a reasonable explanation for omitting to mention this threat, especially since the appellant allegedly mentioned it to the psychiatrist she reportedly went to see. [47] The same applies, in my opinion, to the contradiction regarding the complaints to the police, which are mentioned in her BOC Form and which the appellant testified at the hearing she did not make. Again, I am of the opinion that the RPD did not err in drawing negative inferences from this contradiction, which also supports the RPD's implausibility finding. [48] Lastly, the RPD's finding with respect to the appellant's delay in leaving her country, although not fatal to the claim, is another factor that the RPD may consider in its overall credibility assessment. [49] Consequently, having considered all the evidence submitted before the RPD, I am of the opinion that it did not commit a palpable and overriding error in its decision to reject the refugee protection claim. REMEDY [50] For these reasons, I confirm the determination of the RPD, 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. [51] The appeal is dismissed. Normand Leduc Normand Leduc October 16, 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. 6 Lumaj v. M.C.I., 2012 FC 763. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-01685 RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01685 2