MB5-01461

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 : MB5-01461 MB5-01462 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 30, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subjects of the appeal Raed Mahko Conseil des personnes en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX, a citizen of Syria and Armenia, and his wife, XXXX XXXX, a citizen of Armenia, are appealing against a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] They are not presenting any new evidence in support of their appeal, but they are 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 RPD's determination, namely that XXXX XXXX and XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA BACKGROUND [4] In the Basis of Claim Form (BOC Form) that he submitted to the RPD, the principal appellant, XXXX XXXX, alleges that he and his wife left Syria, where civil war had broken out, in the summer of 2012 and went to Armenia, where his wife has citizenship. The principal appellant alleges that they returned to Syria after a few weeks before leaving the country indefinitely in XXXX 2012 and going to Armenia, where he subsequently obtained citizenship because he is married to an Armenian citizen. [5] The principal appellant alleges that on XXXX XXXX, 2013, he lent $30,000 at an interest rate of 4% monthly to an individual named XXXX XXXX, to whom he had been introduced by a friend. He supposedly received interest payments until XXXX 2014. XXXX XXXX purportedly told him in XXXX 2014 that he should forget about getting repaid; otherwise, he would have problems because of XXXX XXXX's ties to the [translation] "Armenian mafia." [6] The principal appellant alleges that he went to the police station to file a complaint against XXXX XXXX, but the police officer he met with accused the appellant of loan-sharking and demanded a bribe of $200. He alleges that police officers then came to his home and threatened to charge him with loan-sharking. [7] The principal appellant alleges that XXXX XXXX's friends began threatening him when they learned that he had tried to file a complaint. [8] The appellants left Armenia on XXXX XXXX, 2014, and came to Canada, where their daughter is living, and they claimed refugee protection on or around XXXX XXXX, 2015. [9] The female appellant, XXXX XXXX, is basing her claim on that of her husband. [10] The RPD assessed the refugee protection claim in terms of Armenia and rejected it because the appellants' allegations were not credible. The RPD found that the principal appellant's credibility was undermined by the following: - His testimony about the loan was not spontaneous and direct; - His explanations as to why he went to the police were confusing and contradictory; - He was unable to provide details about why he believes his debtor purportedly has connections to the mafia; - It is unlikely that his friend, who introduced him to the debtor, would not have known that the individual had connections to the mafia, or that a mafia member would have to resort to such a loan; - According to his testimony, he moved between XXXX and XXXX 2014 in order to avoid his debtor and the police; however, he failed to indicate that in the form he filled out when he was claiming refugee protection and in his BOC Form; - His testimony with respect to when he decided to leave Armenia was confusing and contradictory; - The three-and-a-half-month delay between the time they obtained their Canadian visas and when they left Armenia is behaviour that is inconsistent with that of individuals who fear for their life or safety. [11] Alternatively, the RPD concluded that there was an internal flight alternative (IFA) available to the appellants in the city of Gyumri, Armenia. [12] Before the RAD, the appellants submit that the RPD erred in its assessment of their credibility by [translation] "taking an overly zealous approach to looking for contradictions." The appellants also submit that the contradictions and omissions noted were not determinative and that the explanations provided by the male appellant were reasonable. They also submit that the RPD should have granted greater probative value to the letter from the male appellant's friend that was submitted as evidence. [13] For these reasons, the appellants are asking the RAD to [translation] "review" the RPD's decision and to [translation] "order a new hearing pursuant to subsection 110(6) of the IRPA." DECISION ON HOLDING A HEARING BEFORE THE RAD [14] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new evidence presented on appeal is admissible and meets the following three criteria: (1) it raises a serious issue with respect to the person's credibility; (2) it is central to the decision with respect to the refugee protection claim; and (3) if accepted, it would justify allowing or rejecting the refugee protection claim. [15] Given that the preliminary requirement was not met, since no new evidence was submitted on appeal, I conclude that no hearing can be held in this case. THE RAD'S ROLE [16] The IRPA does not specifically set out the standard of review or intervention that the RAD should apply when it reviews decisions rendered by the RPD. [17] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the RAD's standard of review or intervention or its role when a decision of the RPD is appealed to it. [18] 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. [19] At paragraphs 28 and 29 in Alvarez, as well as 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. [20] The Court adds the following at paragraph 33 of Alvarez, as well as 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. [21] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines 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.... [22] In 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 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.... [23] 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". [24] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [25] In line with the previous Huruglica, Eng and Alvarez decisions, the Court first finds in that case that the RAD errs in applying the reasonableness standard of review rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [26] 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 House of Commons parliamentary committee 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). [27] 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 concludes 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 on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [28] The Honourable Justice Roy also states that he could not find any indicators providing for an appeal de novo before the RAD (paragraph 42), and writes in the following paragraph of his decision that: [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).... [29] 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 cases, first concludes that they all reject the reasonableness standard of review, and then states that, in his opinion, the RAD must be permitted to choose between the two remaining approaches, namely the approach set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the approach 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). [30] In fact, Justice Martineau writes the following at paragraph 46 of Alyafi: [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. [31] Consequently, in my view, it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described in that decision seems to me to be more practically applicable than that described in Huruglica, in particular when no new evidence was submitted to the RAD and no hearing is held before it, such as in this case. [32] In this case, I am of the opinion that the error alleged by the appellants with regard to the RPD's assessment of their credibility is one of fact, and I will therefore apply the standard of palpable and overriding error. [33] Given that I am confirming the RPD's determination with respect the issue of the appellants' credibility, it is not necessary for me to assess the issue of whether the RPD erred in its alternative conclusion regarding the IFA. [34] I will proceed with a review and my own assessment of all the evidence presented before the RPD in order to determine whether it committed an error in law or palpable and overriding errors. [35] At paragraph 91 of 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 fact, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making the decision unreasonable. ANALYSIS [36] The issue in this case is whether the RPD erred in its assessment of the appellants' credibility. [37] Having assessed all of the evidence presented, which included listening to the recording of the hearing before the RPD, and having considered the RPD's reasons and the appellants' submissions before the RAD, I am of the opinion that the answer to this question is no, for the reasons that follow. [38] In my opinion, the central element of the refugee protection claim-the loan that the principal appellant allegedly made-is simply not credible. [39] To begin, I am of the opinion, as was the RPD, that the male appellant's testimony about the loan was not spontaneous and direct in that he was unable to provide details about the alleged transaction, even after the RPD asked him to do so on at least three occasions. The male appellant felt it was enough to state that he had counted the money in the presence of his friend and the borrower; however, he was unable to explain how they came to agree upon the amount of the loan, the applicable interest rate and how the money would be repaid. [40] Then, when questioned as to why no documents had been signed regarding the loan, the male appellant responded tersely that he trusted his friend who had acted as an intermediary. In my opinion, it is implausible that someone such as the male appellant, who was a businessman in Syria, would have handed over all of his savings to an unknown individual in Armenia without having signed a document and therefore having some proof of the loan and recourse should the debtor default on repayment. In addition, the male appellant did not speak to his friend to obtain more information about the borrower, including information on his honesty and his ability to repay the loan. [41] On that same point, another aspect that also seems implausible is the male appellant's allegation to the effect that his friend supposedly [translation] "discovered" that the debtor was part of the Armenian mafia only after he failed to pay the money back. The male appellant even pointed out that the borrower was a [translation] "leader" of organized crime. The male appellant mentioned that his friend has known the borrower for a long time, but he was unable to explain why his friend would not have known that he was involved with organized crime. He even testified that he did not question his friend about that at all. [42] What is more, when questioned about why he went to file a complaint with the police on XXXX XXXX, 2014, the male appellant replied that it was because he had been threatened. When confronted with the fact that he supposedly received threats only after having gone to the police, the male appellant did not respond. When again questioned about why he went to the police-instead of a lawyer, for example, since it is a civil issue-the male appellant responded that he [translation] "would have to pay for a lawyer." Finally, when questioned about what he expected from the police when he went to see them, the male appellant responded that the police reprimanded him for loan-sharking and demanded a bribe. [43] It is my opinion that the male appellant's testimony was confusing and contradictory and he avoided the question of what he expected from the police. In my opinion, that undermines his credibility. [44] I am of the opinion that since the principal appellant lacks credibility, there is no cause to grant probative value to the letter written by the appellant's friend that was submitted as Exhibit C-21 on the day of the RPD hearing. It is not a document from an official source or one that is known to the panel and could therefore override the previously mentioned findings regarding the appellant's credibility. [45] I am of the opinion that these findings concerning the credibility of key elements of the refugee protection claim are sufficient to dispose of the file. Contrary to the appellants' submissions, I am of the opinion that the RPD was not overly zealous in its approach to looking for contradictions or implausibilities or in its conclusions. I also find that the conclusions were not based on peripheral aspects of the claim but rather on significant ones. [46] It appears to me that the appellants' behaviour-with respect to the delay in leaving Armenia after having obtained Canadian visas and with respect to the delay in claiming refugee protection once they arrived in Canada-is inconsistent with that of individuals who fear for their life or their safety. Although not fatal to the claim, those aspects undermine their credibility. [47] For the above reasons, I conclude that the appellants did not demonstrate that the RPD committed a palpable and overriding error in its decision warranting the RAD's intervention. REMEDY [48] For these reasons, I confirm the RPD's decision, namely, that XXXX XXXX and XXXX XXXX are not "Convention refugees" pursuant to section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [49] The appeal is dismissed. Normand Leduc Normand Leduc October 30, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (M.C.I.), 2014 FC 702. 2 Eng v. Canada (M.C.I.), 2014 FC 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.:MB5-01461 MB5-01462 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-01461 MB5-01462 12