VB4-02280

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 : VB4-02280 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision January 14, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Robin Bajer Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the "appellant"), a citizen of Russia, appeals the July 8, 2014 determination of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on June 25, 2014 and July 2, 2014 with a Notice of Decision being sent to the appellant on July 15, 2014. The RPD found that the appellant is neither a Convention1 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act").2 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Act, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] Counsel for the appellant before the RAD is the same counsel he had at the RPD. The Minister intervened before the RPD hearing but not before the RAD. [4] A transcript of the RPD proceedings has not been included in the Appellant's Record (AR).3 [5] On November 19, 2014 a letter was sent to the RAD from Counsel indicating that two of the appellants wish to withdraw their appeals. Counsel was informed that he must comply with rule 47 of the Refugee Appeal Division Rules4 by submitting an application for withdrawal in accordance with rule 37. On December 3, 2014, Counsel submitted an application to withdraw the appeals for the appellants, XXXX XXXX XXXXand XXXX XXXX XXXX. The reason given by the appellants was that they wish to return to Russia. This withdrawal was accepted by RAD. [6] The appellant does not seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the Act. Basis of Claim [7] According to the allegations set out in the appellant's Basis of Claim Form ("BOC"),5 the appellant worked as a sole proprietor running an auto repair shop in his hometown of XXXX, Russia. He also worked at the XXXX XXXX XXXX. [8] The appellant took out a loan from the Russian Standard Bank for 300,000 rubles. According to the loan terms, he was to pay 12,000 rubles per month with the bank interest rate at 27%. [9] In 2010, the appellant ran into some financial troubles and had difficulties paying back the loan. He was also fired from the XXXX XXXXdue to his wife's Jewish heritage. The appellant went to court to get his job back, which he did. However, the work environment was unbearable and the appellant quit his job at the XXXX XXXX. [10] In March 2010, the appellant borrowed money from his childhood friend, XXXX XXXX. He borrowed 1,000,000 rubles and was charged 1% interest. The appellant used this money to pay the bank and used the rest for his business. He continued to pay XXXX 10,000 rubles per month. [11] In December 2011 XXXX asked the appellant to pay back the full amount and gave him three days to pay. The appellant did not have the money to pay XXXX back. By January 20, 2012, XXXX and his friends confiscated all his business equipment and told the appellant he still owed money. The appellant was forced to shut down his business. [12] In 2012, XXXXbegan threatening the appellant and his family. In 2013, the appellant received many threats. Finally on January 9, 2013 the appellant went to the police. The police did not investigate his concern. XXXX called the appellant and threatened the appellant never to go to the police again. [13] On January 11, 2013 XXXX asked the appellant to transfer his apartment to him and also work for him. The appellant made plans to leave Russia. On XXXX XXXX, 2013, the appellant and his family flew to Cuba and travelled through Mexico. They arrived in the United States on XXXX XXXX XXXX2013. They made an asylum claim in the US but did not pursue it further. The appellant and his family decided to come to Canada after 6 months to join other family members. The appellant made a refugee claim at the border on XXXX XXXX, 2013. [14] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on credibility concerns and that he had an Internal Flight Alternative (IFA). Grounds of Appeal [15] The appellant's submissions as to the grounds of this appeal can be summarized as follows.6 * Did the RPD Member err in finding that there is an available safe internal flight alternative? REMEDY SOUGHT [16] The appellant has requested that the RAD, under paragraph 111(1)(c) of the Act, allow the appeal and refer the matter to the RPD for redetermination by a differently constituted panel with appropriate directions. Alternatively, the appellant requests that the RAD substitute a positive determination as per paragraph 111(1)(b). ROLE OF THE RAD [17] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of appellate review to be applied by the RAD. [18] The RAD, being a new division, has struggled with the standard of review to be used in assessing RAD appeals based on several Federal Court cases that have differed in their approach of what standard of review should be used. Initially, the RAD followed the Supreme Court of Canada (the "Supreme Court") case, Dunsmuir v. New Brunswick7 as the leading case on standard of review. In Dunsmuir, the Supreme Court has said that there should be only two standards when reviewing administrative tribunal decisions: unreasonableness and correctness. The standard of correctness applies to questions of law, while the standard of reasonableness applies to questions of fact, and mixed fact and law. [19] In recent months, the Federal Court has issued differing decisions on the role of RAD when conducting an appeal of the RPD determination. The majority of the Federal Court cases have highlighted that the reasonableness standard is not the appropriate standard to apply for RAD appeals. However, the Federal Court has come up with two differing standards which are an independent assessment of the evidence and palpable and overriding error. For both these standards, the Federal Court has said that deference should be given to the RPD on issues of credibility, although what level of deference is still debated. Some of the recent Federal Court cases dealing with RAD appeals include Iyamuremye,8 Eng,9 Alvarez,10 Huruglica,11 Njeukam,12 Yetna,13 Wahgmo,14 Alyafi,15 among others. [20] The Federal Court in Iyamuremye addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. [21] That said, the Court found that in assessing the reasonableness of the decision, the RAD should, at the very least, have reviewed the evidence that was presented before the RPD and conduct an independent assessment of all the evidence in order to determine whether the RPD, on the basis of the facts and the conditions of the country in question, had properly considered the evidence and reasonably justified its conclusion.16 [22] In Alvarez, Justice Shore said that, "the Court is of the view that the 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."17 Furthermore, Justice Shore stated that "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."18 Justice Shore also said in Alvarez that, "the RAD must nonetheless 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." 19 [23] In Huruglica, Justice Phelan found that the RAD erred in reviewing the RPD's decision on the standard of reasonableness and concluded that 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."20 Justice Phelan also states that that notion may well justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative. Where there is no adverse finding of credibility, the policy rationale for deference is not sustainable.21 [24] Justice Phelan also found that the RAD's role should be to determine whether the RPD decision is wrong rather than look at whether it was a reasonable decision. Justice Phelan emphasized that the RAD's mandate is to conduct a fact based review. The RAD, Justice Phelan said, "must review all aspects of the RPD's decision and come to an independent assessment. . . Where its assessment departs from that of the RPD, the RAD must substitute its own decision." Furthermore, "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'."22 [25] Counsel for the appellant submits,23 with respect to the Federal Court cases Alvarez and Eng,24 that the RAD must independently assess all of the evidence and arrive at its own conclusions, intervening in the decision where the RPD misassesed the facts to the point of making a palpable and overriding error. [26] The Huruglica decision is the most thorough of the decisions and the first where the Court certified a question for the Federal Court of Appeal. Again, I refer to paragraphs 54 and 55 of Huruglica which read as follows. 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.25 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".26 [27] Following the Huruglica decision, many other cases have followed the Huruglica approach in what the role of the RAD should be in assessing an appeal. Njeukam,27 Yetna,28 and Wahgmo29 all support the notion that the RAD must conduct an independent assessment of the evidence. However, there are others cases as Alyafi30 and Guardado31 that stress that the review or assessment of a RAD appeal has only two approaches that should be applied: independent assessment of the evidence, and palpable and overriding error. In Alyafi, the Federal Court noted that there are two competing approaches regarding the standard of review and has left it open to the RAD member to decide which approach to follow. [28] In Kanga,32 the Court held; Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law. [29] In this appeal, and taking into consideration the Federal Court decisions regarding the role of the RAD, I will be applying the points set out in Huruglica. In this appeal, I have reviewed all aspects of the RPD's decision and have conducted my own independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. ANALYSIS OF THE MERITS OF THE APPEAL [30] The RPD Member found a number of credibility issues through contradictions in evidence, and missing documents. The appellant has not contested the RPD Member's credibility findings and in my own assessment of the evidence, I have no reason to come to a different conclusion. The RPD Member found the appellant had an IFA in Saint Petersburg and the appellant has based his appeal on this finding only, so my analysis will deal with this issue. [31] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD in its IFA assessment. [32] Initially, the appellant's memorandum focused on the RPD Member's IFA analysis and how she erred in her analysis pertaining to the associate and minor appellant. However, the associate and minor appellants have chosen to withdraw their appeals from RAD. As a result, I will only be focusing on the appellant's situation. [33] The key concepts concerning IFA come from two cases: Rasaratnam33 and Thirunavukkarasu.34 The panel must be satisfied, on a balance of probabilities, that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA35 and, (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.36 [34] The Federal Court of Appeal (the "Court of Appeal") has stated that one must first determine whether an IFA exists and then determine whether the IFA is a realistic, achievable option, given the particular circumstances of the individual.37 In Rasaratnam,38 the Court of Appeal held that, with respect to the burden of proof, once the issue was raised, the onus is on the claimant to show that he or she does not have an IFA. Furthermore, both prongs must be satisfied for a finding that the appellant has an IFA. [35] I have reviewed the evidence in its entirety, including listening to the CD recordings of the hearing in its entirety. I find the main issue is whether XXXX has the motivation and connections to find the appellant in Saint Petersburg. [36] The RPD Member states in her decision "in coming to this conclusion, the panel has considered XXXX profile. According to the claimant he is also an XXXX native and continues to live in this same community of approximately 80,000 people when not in custody for criminal offences. The claimant does not know anything about XXXXs alleged criminal group; has never met or been contacted by anyone other than XXXX XXXXnd when pressured to sign over his garages, he signed them over to XXXX XXXXHe notes that XXXXuses the term 'we' in his dealings with him, and knew when the claimant went to the police and also when money from the sale of his apartment was deposited to the bank, implying strong connections."39 [37] Furthermore, the RPD Member finds that "the evidence before the panel supports a finding that XXXX is a local thug and no more. Notwithstanding documentary evidence cited by counsel that the registration process for Russian citizens is non-voluntary and open to abuse in view of high levels of corruption in Russia, there is little objective evidence or persuasive testimony that XXXXr is part of a large or well-connected gang, such that he could readily access the registration databases on an ongoing basis in hopes of finding the claimant is registered somewhere in Russia."40 [38] In reference to the first prong, the RPD Member found that XXXX did not have the motivation to find the appellant in "other areas of the country, including 2000 km away in Saint Petersburg. The RPD Member found that the appellant failed to establish that XXXX would look for him in the city of Saint Petersburg." [39] The appellant testified that he would not be able to live anywhere in Russia without registration. As noted above, the RPD Member acknowledged in her reasons that "notwithstanding documentary evidence cited by counsel that the registration process for Russian citizens is non-voluntary and open to abuse in view of high levels of corruption in Russia, there is little objective evidence or persuasive testimony that XXXX is part of a large or well-connected gang, such that he could readily access the registration databases on an ongoing basis in hope of finding the claimants registered somewhere in Russia".41 [40] In my review of the transcript, the appellant testified that he only had contact with XXXX in his hometown. The appellant believes that XXXX has connections because it became known to XXXX that the appellant had gone to the police to make a complaint against XXXX. However, other evidence before the RPD contradicts how strong XXXX's connections were with the police. At the RPD hearing, counsel for the appellant asked him the following questions. Counsel: At the beginning of your testimony, you stated that XXXX had been arrested and did time in jail. Other times XXXX disappeared for period of time and you believed he was in jail. Sounds to me the police are willing to arrest XXXX and have done it more than once. When you tell us that when XXXX threatens you and your family, that those same policemen that arrested him are not willing to help you?42 Appellant: Maybe he was given an assignment; he was covering for someone in jail. There are talks about this happening in Russia.43 Counsel: XXXX going to jail voluntarily?44 Appellant: Possible he took blame for someone else?45 [41] In reviewing the testimony, I find that the appellant is basing his responses on speculations. There is no persuasive evidence in the record that XXXX was part of an organized criminal gang. There is also no persuasive evidence before me that XXXX has connections to the police. Furthermore, there is no persuasive evidence that XXXX is still looking for the appellant today. The appellant has made a lot of speculations in his testimony during the RPD hearing that do not persuade me that the appellant would be found in Saint Petersburg by XXXX. Based on my review of the evidence, I find that I have no reason to disagree with the RPD Member's conclusion that the appellant would be able to live safely in Saint Petersburg taking into consideration all the facts surrounding the appellant's situation. [42] The appellant was interviewed by a Canadian Border Services Agency officer on November 22, 2013.46 I have taken into consideration the appellant's evidence regarding his son, who lived in XXXX until he was conscripted into the army in XXXX 2013. The appellant told the officer that his son is safe despite the appellant's problems with XXXX. However, I find that given XXXX still had an interest in locating the appellant, it would be reasonable to expect that he would continue efforts to locate the family if XXXX had the motivation to find the appellant outside of XXXX. [43] I find the RPD's assessment that the problems faced by the appellant were local in nature is substantiated by the facts in the case. I find the appellant did not present any persuasive evidence to the RPD or the RAD that suggests that XXXX was, and still is, motivated to search for the appellant outside of XXXX XXXX From my review of the evidence, I find no reasons to disagree with the RPD Member's conclusion given the facts surrounding this claim. Regardless if XXXX still had an interest, the main question when assessing a viable IFA is, would XXXX have the motivation to look for the appellant in another city? In this particular case, the suggested IFA is the city of Saint Petersburg. No persuasive evidence was presented to the RPD or the RAD that suggests that the XXXX has the willingness or interest to search for the appellant outside of his hometown of XXXX, Russia. It is clear from the evidence that the motivation to find the appellant is restricted to the appellant's hometown of XXXX as discussed earlier. I find the RPD Member has clearly examined the evidence surrounding the issue of IFA, and I have no reason to disagree with her assessment. [44] In reference to the second prong for IFA, the appellant has not brought forward any arguments that it would be unduly harsh for him to live in Saint Petersburg. When asked during the hearing whether there was any other reason he would not be able to relocate to Saint Petersburg, the appellant testified that there was no reason. I have also not found anything in my review of the evidence before the RAD that would indicate that it would be unreasonable for the appellant to live in Saint Petersburg. [45] In summary, having considered all the evidence, I find that I agree with the RPD that the appellant has an IFA in Saint Petersburg and is therefore not a Convention refugee or a person in need of protection. REMEDY [46] For all these reasons, I confirm the determination of the RPD in accordance with paragraph 111(1)(a) of the Act, namely, that XXXX XXXX XXXX, is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed. (signed) "Rena Dhir" January 14, 2015 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (the "Act"), S.C., 2001, c. 27. 3 Refugee Appeal Division (RAD), Exhibit 2, Appellant's Record (AR). 4 Refugee Appeal Division Rules, SOR/2012-257. 5 Exhibit 3, Refugee Protection Division Record (RPDR). 6 Exhibit 2, AR. 7 Dunsmuir v. New Brunswick, [2008] SCC 9. 8 Iyamuremye v. Canada (Minister of Citizenship and Immigration), [2014] FC 494. 9 Eng v. Canada (Citizenship and Immigration), [2014] FC 711. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), [2014] FC 702. 11 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799. 12 Njeukam v. Canada (Citizenship and Immigration), [2014] FC 859. 13 Yetna v. Canada (Citizenship and Immigration), [2014] CF 858. 14 Wahgmo v. Canada (Citizenship and Immigration), [2014] FC 923. 15 Alyafi v. Canada (Citizenship and Immigration), [2014] FC 952. 16 Iyamuremye v. Canada (Minister of Citizenship and Immigration), [2014] FC 494; para. 41. 17 Alvarez v. Canada (Minister of Citizenship and Immigration), [2014] FC 702; para. 27. 18 Alvarez v. Canada (Minister of Citizenship and Immigration), [2014] FC 702; para. 28. 19 Alvarez v. Canada (Minister of Citizenship and Immigration), [2014] FC 702; para. 33. 20 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799; para. 54. 21 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799. 22 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799; para. 55. 23 Exhibit 2, AR, Submissions. 24 Eng v. Canada (Citizenship and Immigration), [2014] FC 711. 25 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799; para. 54. 26 Huruglica v. Canada (Minister of Citizenship and Immigration), [2014] FC 799; para. 55. 27 Njeukam v. Canada (Citizenship and Immigration), [2014] FC 859. 28 Yetna v. Canada (Citizenship and Immigration), [2014] CF 858. 29 Wahgmo v. Canada (Citizenship and Immigration), [2014] FC 923. 30 Alyafi v. Canada (Citizenship and Immigration), [2014] FC 952. 31 Guardado v. M.C.I. (F.C., no. IMM-882-14), Martineau, October 8, 2014; 2014 FC 953. 32 Garcia Kanga v. Canada (Citizenship and Immigration), [2012] FC 482. 33 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 34 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 35 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 36 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 37 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 38 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 39 Exhibit 3, RPDR, Member's Decision. 40 Exhibit 3, RPDR, Member's Decision. 41 Exhibit 3, RPDR, Member's Decision. 42 Exhibit 3, RPDR, CD-Oral Hearing, (2:22:00). 43 Exhibit 3, RPDR, CD-Oral Hearing, (2:22:00). 44 Exhibit 3, RPDR, CD-Oral Hearing, (2:25:00). 45 Exhibit 3, RPDR, CD-Oral Hearing, (2:25:00). 46 Exhibit 3, RPDR, CBSA Interview Transcript, pg. 579. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-02280