MB3-04439

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. / No de dossier de la SAR : MB3-04439 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 at Montréal, Quebec Appel instruit à Date of decision March 19, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Federal Court instructed the Refugee Appeal Division (RAD) to re-review the appeal filed by XXXX XXXX XXXX, a citizen of India, who is originally from Punjab. [2] He appealed against a Refugee Protection Division (RPD) decision rejecting his claim for refugee protection. On January 23, 2014, the RAD confirmed the determination of the RPD, which it concluded was "reasonable because it is transparent and intelligible and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law." [3] The appellant is requesting that the RAD allow the appeal, set aside the RPD's determination rendered on October 25, 2013, refer the matter to the RPD for re-determination of his claim for refugee protection or make any other order that it considers appropriate.1 [4] The appellant did not submit new evidence in support of his appeal and is not requesting that a hearing be held under subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). [5] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [6] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" within the meaning of section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [7] The appeal is dismissed. BACKGROUND [8] The appellant is married and is the father of two children. In his Basis of Claim Form (BOC Form), he alleges that he had engaged in homosexual relations with someone named XXXX. [9] On February 17, 2013, he and XXXX were caught during one of those sexual encounters by members of XXXX's family. They were allegedly beaten and threatened. His own family and the people close to him then found out about his sexual orientation. [10] The appellant alleges that on March XXXX, 2013, he was arrested and detained by police, who allegedly tortured him and accused him of having ties with militants, in addition to questioning him about his relationship with XXXX. [11] He was released on March XXXX, 2013, after his family and influential people from the village intervened, a bribe had been paid, and he agreed to report to the police station every month starting on April 1. The police allegedly fingerprinted him and forced him to sign blank documents. [12] A few days later, when he was relaxing at home, XXXX allegedly visited him and stated that he would stay with him. Fearing the repercussions of that visit, he supposedly went to stay with an uncle-his mother's brother-in XXXX, in the district of Kurukshetra, in Haryana state. While he was there, his family told him that the police were asking about him and were looking for XXXX, who apparently disappeared from his home. He was also told that XXXX's family was trying to track him down so they could kill him. They were accusing him of corrupting and kidnapping XXXX. [13] Fearing for his safety, the appellant decided to leave India with the help of an [translation] "agent," who apparently provided him with false travel documents so that he could come to Canada and claim refugee protection. If he were to return, he fears the police and XXXX's family, who filed a complaint against him. He also fears those close to him because of his sexual activities. Impugned decision [14] On October 25, 2013, the RPD rejected the claim for refugee protection, concluding that the appellant did not establish that he was a credible witness. The RPD noted several inconsistencies and contradictions in the evidence, without being exhaustive. The following aspects were cited as examples: 1- His inconsistent statements as to why he left his village on XXXX XXXX, 2013. The RPD noted that the appellant testified that he went to XXXX to stay with his uncle, his mother's brother, because he did not want to report to the police station on April 1, 2013. He then added that he was afraid of XXXX's family and stated that XXXX and his family were looking for him. However, in the account included in his BOC Form, the appellant states that when XXXX visited in March 2013 and told him he would stay with him, he got scared and left for the village of XXXX (RPD decision, para. 14,15 and 16). 2- His contradictory statements about the name of the village where he allegedly took refuge after XXXX's visit in March 2013. In his BOC Form, he states that he went to XXXX, in the district of Kurukshetra, in Haryana state, but at the hearing he stated that he went to XXXX, in the state of Haryana (RPD decision, para. 17). 3- His contradictory statements about a point that the RPD concluded was important, namely whether or not he told the police, during his detention, that he engaged in sexual relations with XXXX. In his BOC Form, the appellant states that despite the torture he suffered while detained, he did not reveal his relationship with XXXX. However, according to his testimony at the hearing, he acknowledged that he had engaged in sexual relations with XXXX (RPD decision, para. 18 and 19). 4- His contradictory testimony about the number of people who were allegedly involved in securing his release. At the hearing, he first stated it was four or five people who secured his release, and then he modified his testimony and stated in was five or six people (RPD decision, para. 20). 5- His contradictory testimony about the first time he engaged in sexual relations with XXXX. The RPD noted that he first stated it was on February 17, 2013. According to the BOC Form, they had already apparently engaged in sexual relations before February 17, 2013, which is when XXXX's family caught them during a sexual encounter (RPD decision, para. 21). 6- His contradictory testimony about when his wife and parents learned about his homosexuality. The appellant testified that it was after he was detained in March 2013, but his BOC Form indicates that it was on February 17, 2013, when XXXX's family caught them (RPD decision, para. 27). 7- His inconsistent testimony about the name of the agent who facilitated his trip to Canada. At the hearing, he stated that the agent's name was "XXXX," while he told the immigration officer that his name was XXXX XXXX (RPD decision, para. 22). 8- His contradictory testimony as to how he obtained his birth certificate, issued in XXXX 2013, when he was being sought by the authorities. He first stated that it was his mother who sent the document to him in Canada. He then changed his testimony to say that it was his uncle who sent him the certificate by mail (RPD decision, para. 24 and 25). 9- His testimony contradicting the sarpanch's affidavit, Exhibit R-5, concerning the whereabouts of his parents, wife and children. According to testimony at the hearing, his parents, wife and children are still living where the appellant lived when he was in India. However, according to Exhibit R-5, the appellant's family members left the village and are living in different places because of the harassment they experienced (RPD decision, para. 26). 10- Taking into account the whole of the evidence and the numerous contradictions and inconsistencies, the RPD found that, in general, he was not credible and it did not believe his story. It also did not believe that he engaged in homosexual relations with XXXX, or that he is now [translation] "more attracted to men than women" (RPD decision, para. 32). 11- Considering that his credibility was significantly undermined, the panel attached no probative value to the personal evidence that he produced to corroborate his story, notably exhibits R-4 and R-5 (RPD decision, para. 32). GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [15] In the memorandum filed on appeal and his additional submissions filed following the decision rendered by the Federal Court on XXXX XXXX, 2014, the appellant is primarily arguing that the RPD erred in its assessment of his credibility. [16] According to his statements, the RPD did consider all the evidence when assessing his credibility. It overstated the significance of certain minor contradictions and was overly zealous in focusing on peripheral details of his claim for refugee protection. THE RAD'S ROLE AND FUNCTIONS [17] Justice XXXXordered a review of this matter because [translation] "the RAD's interpretation, namely, to apply the standard of reasonableness to the RPD's decision, is not an acceptable outcome in respect of the law and constitutes a reviewable error that is determinative in the matter."2 [18] In his additional submissions, the appellant notes that there is still some debate at the Federal Court concerning the standard of review that the RAD should apply when reviewing RPD decisions. Nonetheless, he argues that certain justices [translation] "will go so far as to say that no deference is owed to the RPD regarding its conclusions pertaining to credibility."3 He argues that the Federal Court states that [translation] "the RAD's jurisdiction is not analogous to that of a court of judicial review."4 [19] Since the RAD is a newly constituted appeal tribunal, an examination of its home statute and the requirements set out by the case law in the context of an appeal tribunal and administrative law is in order. [20] The statutory requirements precisely indicate the allowable grounds for appeal,5 as well as its "remedial powers." Parliament allows the RAD to confirm the determination, to set it aside and substitute the determination that should have been made, or to refer the matter to the RPD, giving the instructions that it considers appropriate.6 [21] As the appellant states in his memorandum, the Federal Court concluded that an appeal before the RAD is not in the nature of a judicial review,7 nor is it an opportunity for a [translation] "new proceeding."8 In order to conduct its own assessment of the evidence and arrive at its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.9 [22] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of decisions before the RAD. In fact, it is stated that the RAD may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD.10 [23] In being called on to determine [translation] "the appropriate type of review by the RAD of decisions rendered by the RPD," the Federal Court is faced with two lines of case law. [24] In Eng11 and Alvarez,12 Justice Shore, finding the reasoning of the Court of Appeal in Parizeau v. Barreau du Québec13 persuasive and instructive with regard to the standard of intervention to be applied by administrative appeal tribunals, states that: [27] ...[T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] ...[As] a specialized (if not overspecialized) tribunal...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). [25] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. According to Justice Shore, "even though there are similarities, these standards are different." [26] In Spasoja,14 Justice Roy, in reviewing the indicators of Parliament's intention when the RAD was established, notes that appeals before the RAD are intended to be generous, but he adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety," stating that the error must be "palpable and overriding" to "succeed on appeal." Justice Leblanc shares that opinion.15 [27] Justice Roy states that "[i]t 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] However, a significantly different approach is proposed by Justice Phelan in Huruglica.16 According to Justice Phelan, "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."17 [29] Justice Phelan, in discussing the deference that the RAD owes to RPD findings, states that it may well be "justified to show deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [30] The Federal Court recognizes the RAD's "expertise" on refugee-related matters. According to the Federal Court, broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals."18 Decisions rendered to date indicate that "[t]he 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."19 [31] In light of the above-mentioned decisions and the Court's subsequent statements,20 it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [32] In reviewing the evidence, the RAD may show a measure of deference when the credibility of a refugee protection claimant is at the heart of the decision, or when the RPD has an advantageous position over the RAD. However, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, there is cause to intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [33] As for errors of law, Justice Shore states that "the RAD must be able to correct any error of law."21 MERITS OF THE APPEAL [34] The determinative issue before the RPD was the claimant's credibility. Assessing credibility is a complex process, and the RPD is in a privileged position because it has the advantage of seeing and hearing the refugee protection claimants or witnesses.22 The RAD does not have that advantage, except in the circumstances set out in subsection 110(6) of the IRPA. [35] In this matter, the RPD noted numerous inconsistencies in support of its conclusion that the appellant was not a credible witness. The appellant argued that the RPD erred in its assessment of his credibility because it was overzealous, focused on minor aspects and did not consider all the evidence. [36] Having listened carefully to the recording of the hearing and assessed all the evidence, I am of the opinion that he did not establish that the RPD's decision is flawed, even though some of the factors noted by the RPD suggest it was overzealous. For example, I am of the opinion that the conclusion regarding the number of individuals who allegedly intervened to secure his release was unfounded. I am also of the opinion that the appellant did not discharge his burden of establishing many essential points of his claim for refugee protection. I will limit my analysis to that which I consider determinative and which leads me to believe that the RPD rendered the correct decision. Date of the first sexual encounter with his friend, XXXX [37] The RPD indicated that the appellant contradicted himself with respect to the date of his first sexual encounter or first sexual touching. The appellant argues that the RPD overstated the significance of minor contradictions. [38] Having listened to the recording of the hearing, it is clear that the appellant did not respond to the question at first.23 He stated that he often met his friend in the fields. When the member reminded him that the question was the date of their first sexual encounter, the appellant clearly responded that it was February 17, 2013. Then, when the member tried to confirm the date of February 17, 2013, which is also the date of the arrest, he stated that he did not remember the date or even the month. Finally, after his counsel persisted, he stated that he met XXXX in 2011, that they saw one another many times in 2012 and that they were caught in 2013. [39] The Federal Court states the following: "When the witness has difficulty giving adequate and direct answers, the panel may make a negative credibility finding."24 The changes in the appellant's statements sow serious doubt in the decision-maker's mind. Did he disclose his relationship with XXXX to the police? [40] With regard to this issue, the RPD noted that there was a contradiction between his testimony at the hearing and his statements in the account included with his BOC Form. In paragraph 23 of his additional memorandum, the appellant acknowledges that he stated that he had told police about the sexual relations. However, in his BOC Form, he states that he did not reveal the nature of his relationship with XXXX, even when tortured. The RPD did not accept the explanations that were provided when he was confronted with this contradiction concerning an important aspect of his claim for refugee protection. In his memorandum, he repeats the same explanations. I am of the opinion that the appellant is trying to minimize an obvious contradiction. It raises serious doubts as to whether or not he was arrested and detained by police. Location to which he fled [41] In his BOC Form, the appellant states that he took refuge at the home of his uncle, his mother's brother, in XXXX. At the hearing, he stated that he took refuge in XXXX. In his memorandum, the appellant argues that, phonetically, the two names are similar and that it is a peripheral detail. With respect, I do not share that opinion. It is an important aspect of his claim. The appellant stated more than once during the hearing that he took refuge in XXXX. When confronted with the inconsistency, he stated that he had made a mistake, that he was mixed up and that he has a bad memory. I am of the opinion that those explanations raise doubts as to whether he truly fled his village in XXXX 2013 for the reasons he alleges. His family's location [42] Another aspect that I consider to be essential to this claim for refugee protection is that the appellant testified that he is in contact with his family in India and that they are still living at the same address. However, he submitted as R-525 an affidavit from the village sarpanch that indicates that his family left their home and is living in different locations because of the discrimination they are facing from other villagers, among other things. When confronted with that contradiction, the appellant stated that when his family is facing a problem, they leave the village temporarily but come back to the house. The furniture is still there and they have not moved. I am of the opinion that the appellant is again trying to minimize the inconsistency. His credibility is again seriously undermined. Birth certificate [43] The RPD noted that his testimony with respect to how he obtained his birth certificate undermined his credibility. Having listened to the recording of the hearing, it appears that his testimony was completely inconsistent. In paragraph 29 of his memorandum, the appellant argues that it is an insignificant factor with little impact on his credibility. [44] While it is not the determinative issue, the fact that his testimony changed with every question asked is another example of how his manner of testifying undermined his credibility. [45] In this case, it is important to consider that a combination of factors led the RPD to seriously doubt the appellant's credibility. All the points that I noted lead me to the same conclusion as the RPD. I would add that in Sheikh,26 the Federal Court of Appeal states: ...the finding of a lack of credibility in the claimant's testimony may be extended to all relevant evidence emanating from that testimony.... Within the legislative framework of the current Act..."a tribunal's perception that a claimant is not credible on an important element of their claim can amount to a finding that there is no credible evidence to support the claim" (Chavez v. Canada (Minister of Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J No. 1213 (QL), at paragraph 10.) [46] Based on the decision rendered by the Court, I am of the opinion that the appellant did not discharge his burden of establishing, on a balance of probabilities, numerous aspects of his claim for refugee protection. Probative value of exhibits R-4 and R-5 [47] In light of the doubts raised about the appellant's credibility, it is not enough to submit affidavits from an affiant whom it is almost impossible to question to establish the veracity of the facts reported, especially since, in this case, the existence and ability of the public officer to take such statements has not been established in any way and the documentary evidence mentions the use of false documents in India.27 Consequently, no probative value is attached to exhibits R-4 and R-5. [48] Finally, it must be noted that when questioned about the possibility of seeking refuge in Mumbai or Delhi, the appellant did not use his [translation] "attraction to men" as a reason for not relocating. In a context where the documentary evidence indicates that life in India is difficult for homosexuals,28 I have trouble understanding why he did not make reference to [translation] "his new sexual orientation." CONCLUSION [49] For these reasons, having listened to the recording of the hearing and having reviewed all the evidence submitted, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [50] The appeal is dismissed. Maria De Andrade Me Maria De Andrade March 19, 2015 Date IRB translation Original language: French 1 Additional submissions filed with the Immigration and Refugee Board of Canada on January 13, 2015. 2 xxxx v. Canada (Minister of Citizenship and Immigration), 2014 FC xxxx. 3 Additional submissions, para 10. 4 Idem. 5 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 6 Subsection 111(1) of the IRPA. 7 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799; 8 Idem. 9 RPD record, parties' memorandum or any [translation] "new admissible evidence." 10 Subsection 111(2) of the IRPA. 11 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 13 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 14 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 15 Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 16 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 17 Idem. 18 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 19 Idem. 20 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952; Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072; Djossou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1080. 21 Eng and Alvarez. 22 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084, para 17; Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, para 20. 23 CD of hearing 59:50 to 1:03:09. 24 Gjergo v. Canada (Minister of Citizenship and Immigration) 2004 FC 303. 25 RPD record, page 31. 26 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 FC 238, [1990] F.C.J. no 604 (QL). 27 National documentation package (NDP) on India, dated May 31, 2013, Tab 3.5; India: Availability and prevalence of fraudulent identity documents (2004-2007). Immigration and Refugee Board of Canada. April 26, 2007. Code: IND102461.E. NDP on India, dated May 31, 2013, Tab 9.7; India: Independence of and corruption within the judicial system, including the scale of corruption at different levels (2009-April 2013). Immigration and Refugee Board of Canada. April 26, 2013. Code: IND104368.E. 28 Idem, Section 6 "Sexual Minorities." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB3-04439 6 RAD.25.02 (2014.09.11) Disponible en français