TB6-04327

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 : TB6-04327 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 28, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jack Davis (Davis & Grice) Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of the Republic of Hungary , appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted any new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find him to be a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is neither a Convention Refugee nor a person in need of protection. Background [3] The Appellant XXXX XXXX XXXX fears returning to Hungary because he alleges that, on account of his Roma ethnicity and his sexual orientation, he has been discriminated and persecuted. [4] The Appellant's refugee claim was heard on January 25, 2016. The RPD in written decision issued on March 14, 2016 rejected his claim, finding that the Appellant was not credible. [5] The Appellant submits that the RPD erred in its credibility findings, erred in the analysis of the issue of subjective fear and further erred by ignoring relevant evidence that directly contradicted the conclusion reached by the panel.1 ANALYSIS The Role of the RAD [6] While the IRPA sets out grounds for an appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The Appellant's counsel makes submissions on the appropriate standard of review which is to be used by the RAD.2 [8] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.3 [9] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal: "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD."5 [10] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.6 [11] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.7 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to choose whether it agrees with the determination of the RPD; if not, then RAD will substitute its own view and provide the correct answer.8 [12] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law, as such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.9 The Federal Court of Appeal, in deliberating the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: "The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case."10 [13] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: "[T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed."11 [14] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. Therefore, credibility findings which arise from that oral testimony are appropriate of deference, as are other findings of fact based on oral evidence, so are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [15] The RAD notes that not every finding relating to credibility however, warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.12 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.13 [16] The question becomes how much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD 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'."14 This passage has subsequently been endorsed by other decisions of the Federal Court. [17] It is unfortunate that the Federal Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.15 This leads the RAD to believe, this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [18] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.16 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [19] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [20] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [21] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [22] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [23] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Application for an Oral Hearing [24] The Appellant does not request an oral hearing pursuant to Section 110(6) of the IRPA. [25] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [26] According to Section 110(6), upon which the Appellants rely, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellants, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [27] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [28] The Appellant has not submitted new evidence in support of his appeal. As such, the RAD must proceed without a hearing in his appeal, and as such no hearing will take place. ANALYSIS OF THE MERITS OF THE APPEAL a) The Panel erred by ignoring relevant evidence that directly contradicted the conclusion reached by the panel. b) The Panel erred in the analysis of the issue of subjective fear. c) The Panel made credibility findings unsupported by the evidence. [29] The RPD found that the determinative issue in this claim is credibility. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [30] The Appellant argues that the RPD concluded that the Appellant lacked credibility in central aspects of his claim.17 [31] The Appellant submits that the RPD's negative inferences concerning the Appellant's credibility based on its assessment of his testimony and corroborative documents are not reasonable. The RAD notes that the RPD, in paragraphs 12-21 of its reasons, impugned the credibility of the Appellant because of his testimony, inconsistencies in his oral testimony and other documentary evidence presented. [32] The RAD notes that the record reflects that the RPD's adverse credibility findings were not based on a perceived embellishment, but rather based on the contradiction between his testimony and omissions documentary evidence he presented. For example, the RAD notes that the RPD drew a negative finding from the Appellant's allegation in his testimony;18 [33] The RAD notes in another credibility finding by the RPD, the Appellant provided a "letter" purported to written by the president of XXXX XXXX XXXX XXXX XXXX XXXX XXXX19. The RPD in its decision noted that there were some discrepancies in the letter, and commented regarding the word "XXXX" being used in the letter head. The Appellant states in his memorandum the following: The Appellant continues to argue that; "the Panel found a corroborative document submitted by the Appellant to be fraudulent?20 The Appellant further argues that the Panel disclosed no specialized knowledge regarding the establishing whether or not the kind of document which he was considering is fraudulent or genuine." The Appellant continues to argue that the;" he had available to him, however a process to determine the authenticity or otherwise of the document in question, through use of an Acquisition of Information Form (AIF)."21 [34] The RAD disagrees with the Appellant's argument here. The RAD notes from assessing the evidence in this area that the RPD did not need to disclose any specialized knowledge as none was used by the Panel. The reasoning as to why it found the document to be fraudulent is clear from its analysis. The finding by the RPD was based upon the viva voce evidence provided by the Appellant at the hearing. In listening the audio of the hearing, the Panel member clears asks the Appellant about the word "XXXX" and what the Hungarian word is for "XXXX," and based on his answers the RPD concluded that the document was fraudulent. Why would a bona-fide agency use a derogatory word in its letterhead? As for counsel's argument that the Panel should have availed himself to using the AIF to determine its authenticity, again the RAD disagrees with the Appellant's argument. The RAD finds upon assessing the evidence in this area that it concurs with the RPD finding as to why it found the document to be fraudulent and clearly stated it in its reasoning, and further the Appellant has not provided evidence to the contrary. [35] The RAD notes that the RPD found numerous credibility findings throughout the hearing and the RAD has carefully assessed all those findings. It is clear to the RAD from the record that the RPD considered the documentary evidence in its decision. The RAD reviewed the documentary evidence and all evidence including the documents which was provided by the Appellant at his RPD hearing. There is no persuasive evidence before the RAD to show if the evidence was not considered by the RPD in its decision, as argued by the Appellant. The RAD finds that there is sufficient evidence in the record which supports the RPD's adverse credibility findings in this regard. The RAD finds that the Appellant's testimony was inconsistent with his own documentary evidence which he presented and that these inconsistencies undermine the credibility of his allegations. Misconstruing and Ignoring Relevant Evidence [36] The Appellant submits that the RPD made unreasonable findings with respect to the evidence he provided that corroborated the central aspects of his claim. In particular, the Appellant submits that the RPD unreasonably rejected the letter from the President of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant seems to argue that the RPD rejected the letter only on the basis that the letter was not authenticated by an AIF. The RAD has provided its findings in regards to this argument above. As stated elsewhere in these reasons, the RAD has found that the RPD's treatment of these documents was reasonable in light of the totality of the evidence. [37] Subjective fear: The RPD considered the Appellant's travel to Germany and Italy, and his re-availment to Hungary. It concluded that his actions speak to a lack of subjective fear. [38] The Appellant argues on appeal that the RPD erred in law by considering subjective fear; however, the Appellant presents his argument via way of numerous cases from the Federal Court. However, the RAD notes that the case law presented deals with cases where the Appellant transited, abandoned or failed to make a claim in the United States of America (USA), essentially all the case law deals with the Third Safe Country Agreement, which is strictly between Canada and the USA. In this case, the Appellant travelled from Hungary to Canada and did not transit through the USA. [39] The RAD in assessing notes that the Appellant worked in Germany for a couple of years, and then travelled to Italy where he also gained employment. The Appellant's explanation as to why he did not file for Refugee Protection is unreasonable and weak at best. The RAD also notes his explanation for his re-availment to Hungary is weak and irrational. If the Appellant was having the issues he claimed, why he would return to Hungary knowing that he may face those situations. He was safe and away in Germany, gainfully employed and then in Italy as well. This just doesn't make sense, and to compound further was his delay in leaving Hungary. [40] As such the RAD finds that the Appellant has not provided an adequate argument to support his position in this area, and as such finds this argument to be without merit. [41] The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. SUMMARY AND DETERMINATION [42] A review of the RPD's reason and the entire evidence before the RAD reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [43] After conducting an independent assessment of the entirety of the evidence, the RAD reached the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. [44] Given the analysis above, the RAD therefore has deferred to the RPD findings on credibility in this claim and concurs with the findings of credibility and finds that the RPD findings were supportable. [45] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and as a result affords deference to the RPD's findings. The RAD also finds, on a balance of probabilities, that the evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. [46] The RAD further finds that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to him life or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Hungary. [47] The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD-that the Appellant is completely lacking in credibility and does not require Canada's protection. CONCLUSION [48] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [49] Accordingly, the Appellant's appeal fails. (signed) "Luis F. Agostinho" Luis F. Agostinho June 28, 2016 Date 1 Exhibit P-2, Appellant's Record, at p. 117, Appellant's Memorandum, Part Three Issues. 2 Exhibit P-2, Appellant's Record, pp. 21-23, paragraphs 8-12 3 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 4 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 5 Dhillon, paras. 14-18. 6 Huruglica, 2016 FCA 93, para. 103. 7 Ibid. 8 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 9 Huruglica, FCA, para. 70. 10 Huruglica, FCA, para. 74. 11 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 12 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 13 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, which decision contains a thorough discussion of the drawing of inferences.) 14 Huruglica, Federal Court, para. 55. 15 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 16 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 17 Exhibit P-2, Appellant's Record, p. 7-11, para. 12, 13, 19,21, Appellant's Memorandum. 18 Exhibit P-2, Appellant's Record, p. 7, 8,11 para. 12, 13, 19,21, Appellant's memorandum. 19 Exhibit RPD-1, RPD's Record, pp. 109-110, Letter dated XXX XX 2015 20 Exhibit P-2, Appellant's Record, at p. 122, para. 13, Appellant's Memorandum. 21Exhibit P-2, Appellant's Record, at p. 122, para. 14, Appellant's Memorandum. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-04327