MB5-01845

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 : MB5-01845 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 November 16, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Chad, is appealing against the decision of the Refugee Protection Division (RPD) that rejected his refugee protection claim. [2] The appellant is submitting no new evidence on appeal and is not requesting a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination. BACKGROUND [4] The appellant is from XXXX, Chad. He fears his father, who is a person attached to Islam and its precepts. His parents are divorced. [5] At the age of 20, because he was considered to not be sufficiently practising the principles of Islam, the appellant was allegedly kidnapped by his father and two uncles and taken by force to a Koranic learning centre called Mabourouka, a sort of rehabilitation centre for recalcitrant children in the village of Mabrouka, south of XXXX. [6] He apparently remained there from XXXX 2013 to XXXX 2014. During his stay, the appellant was supposedly physically abused, chained to the floor, and psychologically abused. [7] The appellant managed to escape with the help of his mother and his older brother. [8] The appellant obtained an American visa on XXXX XXXX, 2014. He left Chad on XXXX XXXX, 2014, and arrived in the United States that same day. On XXXX XXXX, he arrived in Canada and claimed refugee protection. THE RPD DECISION [9] The RPD rendered a negative decision on two points. [10] The RPD found that the disparity between the documentary evidence (see RPD record, pages 86 to 92) on the Mabrouka centre where the appellant was allegedly taken by force in XXXX 2013 and his testimony on that centre are such that it concluded that his testimony and the letters of support from his mother and brother were not trustworthy and that there was [translation] "insufficient credible and trustworthy evidence to establish that the claimant was likely taken by force to the Mabrouka Islamic centre and that he was subjected to the abuse he alleged" (see RPD record, page 14, RPD decision, para. 32). The appellant testified that he was severely physically and psychologically abused, but the RPD was of the opinion that the documentary evidence was silent on the subject. [11] Moreover, in light of the documentary evidence in the package, the RPD was of the opinion that the appellant had not rebutted the presumption that the state could have protected him, because he had never filed a complaint with the police. GROUNDS OF APPEAL [12] The appellant's grounds of appeal can be summarized as follows. [13] The RPD erred in finding that the appellant was not credible because it preferred the documentary evidence-namely, two research findings on the subject of Mabroukas in XXXX (RPD record, pages 86 to 92) from the Research Directorate of the Immigration and Refugee Board (IRB)-over the appellant's testimony. [14] The appellant is of the opinion that the RPD erred in rejecting testimony without explaining why, and that it only stated that it preferred the documentary evidence without really having analyzed said testimony. [15] Furthermore, the appellant is of the opinion that the RPD erred in interpreting the documentary evidence. The RPD decision states that, according to the evidence, the appellant stated he had been taken by force to the Mabrouha centre in XXXX and that the documentary evidence states that the centre receives US subsidies, has an overall progressive curriculum and accepts Christians, and that one can graduate from the institution. In the RPD's opinion, that evidence is inconsistent with the description given by the appellant. [16] The appellant submits that the RPD made a mistake and that the [translation] "Mabrouka centre" is not necessarily the name of this particular establishment, but rather a generic name, according to the documentary evidence, that can be used for various institutions teaching Koranic studies. The appellant submits that it is highly likely that there is more than one Mabrouka in XXXX, and that the one the appellant was at was not the same one described in the document. [17] The appellant also submits that the Mabrouka centre is divided into two camps. It is possible that the part of the centre he was in was not accessible to the public or visitors and that therefore, the documentation is silent on the abuse that the residents might have been subjected to. [18] The RPD erred in concluding that the appellant had not rebutted the presumption of state protection. In the appellant's opinion, the RPD made a partial and erroneous analysis of the documentation because it failed to consider that the evidence also shows that there are serious problems in the Mabrouka institutions, that they are often run by extremists, and that the state knows about this but does not intervene to protect the residents of these establishments. [19] Moreover, the appellant notes that the state is seldom effective, particularly in matters of child protection, and that it is involved in the extortion of funds, according to the documentation. THE RAD'S ROLE [20] The RAD is an appeal tribunal for RPD decisions whose role has yet to be clarified The IRPA does not expressly set out the standard of review and intervention to be applied in appeals against RPD decisions. [21] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" (see Alvarez),1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [22] In Alvarez,2 the Honourable Justice Shore is of the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner". These appeals are not appeals de novo, and the RAD can hold a hearing only where new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA; this limits the scope of the appeal that the IRPA confers on the RAD. The appeal is also not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [23] In Eng,3 Justice Shore is of the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact because the RPD is better situated, having seen and heard the claimant. However, the RAD must perform its own assessment of all 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." (Eng)4 [24] In Huruglica, Justice Phelan states, "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. [25] Thus, Huruglica recommends an approach where deference must be given to the RPD with regard to the assessment of credibility, while conducting an independent analysis of credibility that is not limited to "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [26] In Spasoja, rendered after Huruglica, the Honourable Justice Roy gives a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the view that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings and that, for questions of law, the standard of correctness applies. This conclusion is consistent with Alvarez and Eng. [27] In Alyafi,6 Justice Martineau's view is that both approaches, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" [Alyafi, para. 16]), can be applied as long as the question of the scope of the appellate review has not been settled by a final judgment of the Federal Court of Appeal or the Supreme Court of Canada. [28] It seems to me that the RAD owes deference to the RPD's credibility findings, in accordance with Huruglica, because the RPD has had the opportunity to see, question and hear the appellant. [29] The RAD will consider in its analysis all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD with respect to credibility issues. [30] The RAD will intervene only where it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the RAD will apply the correctness standard of review (Spasoja).7 ANALYSIS [31] The RAD reviewed the entire record. [32] The RAD is of the opinion that the RPD erred in failing to analyze the appellant's credibility and in circumventing this issue in order to arrive at the conclusion that his testimony should be rejected: the RPD decided to prefer the documentary evidence (which consisted of two [translation] "memoranda" from the IRB Research Directorate on the Mabouraka or Mabrouka learning centre in XXXX, see RPD record, pages 86 to 92), presuming that it originated from objective sources and, since the appellant had no reasonable explanation for the inconsistencies between his description of the place and what the evidence stated about it, the RPD could not find it trustworthy. [33] In the RAD's opinion, this constitutes an error in assessing the evidence and therefore an error in its conclusion. [34] The RPD had little to say about the appellant's testimony other than he did not provide any transcripts from the establishments where he studied. The RPD did not analyze the documents he presented in support of his allegations and directly concluded that they are too different from the documentary evidence and, consequently, not trustworthy. [35] But what of the documentary evidence that the RPD relied on in drawing its conclusions? [36] The two memoranda from the IRB Research Directorate (RPD record, pages 86 to 92) provide information on the Mabrouka Islamic centre located near XXXX, in the area surrounding the city of XXXX XXXX [37] This response offers general information on the centre. It is funded by USAID and the American embassy supported the construction of a building for young girls (sewing classes). There are non-Muslim students. One can obtain a legitimate diploma and the courses offered are related to a secular curriculum. The centre also reportedly adheres to a very strict form of Islam and its activities are monitored to ensure that it respects the curriculum. [38] Other documents submitted by the appellant (see RPD record, pages 93 to 106) indicate that there are many Mabroukas in Chad, that the word Mabrouka is a generic term that includes shelters for Islamic extremists, that they are isolated and hermetic centres dedicated to religion, and that they condemn the modern world. These centres are numerous and scattered throughout Chad (see RPD record, p. 100). Youths who are placed there (between the ages of 10 and 30) can be subjected to all sorts of physical abuse in order to [translation] "straighten them out" (see RPD record, p. 98). [39] It would be one thing if the documentation was silent on the abuse that residents of these centres could be subjected to, but it is clear that these abuses exist and that they are documented. [40] The documentation from the IRB Research Directorate on the Mabrouka learning centre in XXXX, which outlines the objectives and content of the programs and the funding in these schools, does not mention that the residents may be or are subjected to abuse there. It is silent on the subject. [41] Although there seems to be some openness, this is countered by the fact that they adhere to a very strict form of Islam. In the RAD's opinion, in light of these documents, one cannot conclude that recalcitrant residents are not subjected to any abuse. Moreover, abuses are committed in other Malbroukas. [42] The RAD is of the opinion that, in the circumstances, rejecting the appellant's claim for protection based on documentation that is unclear on this subject without ruling on the appellant's credibility is unfounded. The RPD made an error. [43] As for the issue of protection, the RPD's analysis appears superficial and is set out in only one paragraph. According to the RPD, the appellant did not rebut the issue of protection or the fact that, based on the documentation, he would not have been taken seriously if he had filed a complaint. [44] In the RAD's opinion, the RPD's assessment of the documentation on protection is too partial and incomplete, and did not consider the individual profile of the appellant in order to legitimately conclude that in Chad, the appellant, with issues like his, would have received adequate protection, considering the documentary evidence that contradicts what the RPD stated in its decision and the appellant's explanation on this subject. CONCLUSION [45] For these reasons, which the RAD considers central to this case, it refers the matter to a differently constituted panel of the RPD because it is unable to confirm or set aside the RPD's determination without hearing evidence that was presented to the RPD. REMEDY [46] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter of XXXX XXXX XXXX to the RPD for re-determination. [47] The appeal is allowed. Roxane Cyr Roxane Cyr November 16, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01845 2 RAD.25.02 (2014.09.11) Disponible en français