MB3-04764

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 : MB3-04764 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Appellant XXXX XXXX XXXX Appelant Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision March 3, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant Me Reynaldo Marquez Conseil de la personne en cause Designated Representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a Cuban citizen, is appealing against a determination of the Refugee Protection Division (RPD), alleging that the RPD based its decision on errors when it failed to take adequately consider the evidence, thereby breaching a principle of natural justice, and when it imposed a heavier burden of proof than that of a balance of probabilities. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In his Basis of Claim Form (BOC Form), which he signed on September 9, 2013, the appellant stated that he is a Cuban citizen, born on XXXX XXXX XXXX 19XXXX, and that his wife, both daughters, mother, both brothers and a half-sister were living in Cuba, a half-sister was living in the United States and a son was living in Canada at that time.1 [4] In his BOC Form, the appellant stated that, were he to return to his country, he could be imprisoned by the government. He went on to state that he is an XXXX XXXX and that five years ago, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, of which he is an employee, adding that the XXXX began to look for inefficiencies in the socialist system and that they are currently cleaning house in his sector.2 [5] In his BOC Form, the appellant stated that he XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He added that they are looking for the guilty parties responsible for production problems at the XXXX XXXX XXXX in the XXXX part of the country, and that his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX-itself the subject of a government tax audit.3 [6] In his BOC Form, the appellant stated that they are using his emails as evidence, that the XXXX is always blamed (with or without justification) and that supervisors are always looking to shift the blame onto their employees. He also stated the following: since the government is a totalitarian regime, the justice system always defends those in power; in light of this, it is impossible for him to defend himself; and, currently, the ministry employing him is engaged in a military-style operation, becoming much more strict and controlling, and each day tightening the noose in management's pursuit of the guilty.4 [7] In his BOC Form, the appellant stated that he and the company's (XXXX XXXX XXXX XXXX) other XXXX went to the offices of the ministry of XXXX XXXX XXXX XXXX XXXX (XXXX) after being summoned twice, in XXXX 2012 and XXXX 2013. He also stated that Officer XXXX in the ministry of government XXXX XXXX XXXX XXXX XXXX, who is the XXXX section chief, and XXXX XXXX, deputy minister in the ministry XXXX XXXX, were present, and that they were informed at that time of the type of surveillance they were subject to at work and at home on the part of the XXXX, since they are XXXX. They were also warned that doing a poor job could earn them up to ten years in prison.5 [8] In his BOC Form, the appellant stated that he did not request protection or assistance from his country's authorities, since he does not have access to any form of defence (the system being totalitarian, seeking help is a sure ticket to prison). He went on to state that in Cuba, there is just one party, the Communist Party, and that without exception, all institutions, businesses, organizations and unions, as well as the legal system, are controlled by this party, adding that there is no independent system to protect the public from abuse.6 [9] In his BOC Form, the appellant stated that many Cubans belong to and are active in the Communist Party, and that for his part he neither belongs to the party nor participates in its activities, which makes his situation riskier. He also stated that he and his family are excluded from accessing a number of services, such as a land telephone, and that in general, they are viewed negatively by the regime because they do not belong to the party, making him an ideal suspect.7 [10] In his BOC Form, the appellant stated that he did not seek refuge in another part of the country, because in his country there is absolutely nowhere to hide, since everything is controlled at the national level and everyone is registered in their district by the Committee for the Defence of the Revolution (CDR), a very effective form of surveillance on the population whereby everyone informs on their neighbour. He also stated that in Cuba, food is rationed and everyone has their personal booklet entitling them to food, adding that the rations are insufficient, which means that he would not be able to eat if he went into hiding.8 [11] In his BOC Form, the appellant stated that he left his country on XXXX XXXX, 2013, not a day sooner or a day later, because it is very difficult to leave Cuba. He also stated that government investigations began at his workplace in XXXX 2013, that he was unable to leave at that point and that he did not obtain a visa or permission to leave until XXXX 2013, to attend the XXXX of his son, who lives in Canada.9 [12] In his BOC Form, the appellant stated that since arriving in Canada, he has received two emails from different individuals, establishing that he is in danger, and that this is why he has decided to remain in Canada. In one of these emails, XXXX XXXX XXXX tells him that the XXXX XXXX director, Mr. XXXX XXXX and the XXXX XXXX bosses do not want to take responsibility for the problems at the company and say that the delays and financial problems are his fault. In the other email, XXXX XXXX warns him that there are moves afoot against him, that the XXXX XXXX is [translation] "out for blood" (and that means him), and that the Commission wants to blame him for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and take him to court.10 B. RPD decision [13] The hearing before the RPD took place on November 12, 2013. In its decision dated November 21, 2013,11 the RPD rejected the claim for refugee protection filed by the appellant (then referred to as the claimant). Its conclusion reads as follows: [translation] [27] All in all, the claimant failed to offer persuasive evidence, either by his testimony or by the documents placed on file, that would indicate that the investigations launched with regard to the XXXX under the claimant's responsibility amount to persecution. The claimant has not demonstrated by a preponderance of evidence that he was formally accused of XXXX XXXX XXXX XXXX XXXX XXXX. Thus, the panel finds that the claimant's fear is based on speculation as to what could happen to him if he returned to Cuba to face an investigation, but there is no persuasive evidence before me to indicate that this speculation and this fear are well-founded, and that it is more likely than not that he would be falsely accused and sentenced to ten years in prison.12 C. Grounds of appeal and remedy sought [14] In his memorandum, the appellant raises two grounds of appeal. First, he submits that the RPD erred in failing to adequately consider the evidence, thus breaching a principle of natural justice and the duty of procedural fairness. Second, he submits that the RPD erred again in imposing a heavier burden of proof than that of a balance of probabilities.13 [15] The appellant requests that the RAD allow the appeal, set aside the determination of the RPD and grant him the status of "person in need of protection."14 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Evidence presented by the appellant on appeal [16] In his memorandum, the appellant presents an email heading,15 as it would have appeared during the hearing before the RPD, referring to the possibility of presenting new evidence that could not have been presented at the time of the proceeding before the RPD.16 B. Test for admissibility [17] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim for refugee protection 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. It should be noted that the time limit referred to in subsection 110(4) is the rejection of the appellant's refugee protection claim rather than the hearing before the RPD. A party who wants to provide a document as evidence after a hearing but before a decision takes effect may make an application to that effect.17 110. (4) On appeal, the person who is the subject of the appeal may 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. 110. (4) Dans le cadre de l'appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'elle n'aurait pas normalement présentés, dans les circonstances, au moment du rejet. [18] The RAD Rules require that the record of the person who is the subject of the appeal must contain a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding how that evidence meets the requirements of that subsection and how it relates to the appellant.18 [19] Given the wording of subsection 110(4) of the IRPA, which is very similar to the wording concerning new evidence admissible during a pre-removal risk assessment (PRRA), I am of the opinion that it is therefore necessary to use, mutatis mutandis, the factors established by the case law concerning PRRAs; to address the questions raised in Raza, in particular, with regard to the credibility, relevance, newness and materiality of the evidence presented; and to determine whether the evidence presented on appeal is admissible or whether, on the contrary, it must be excluded from the appeal.19 [20] The fact that evidence corroborates facts, contradicts RPD findings or clarifies the evidence before the RPD does not make it "new evidence" within the meaning of subsection 110(4) of the IRPA. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD.20 In my opinion, this is exactly what subsection 110(4) of the IRPA seeks to prevent. C. RAD's decision on the admissibility of this evidence [21] The email heading contains a date: XXXX XXXX, 2013. The hearing before the RPD was held on November 12, 2013, and its decision is dated November 21, 2013. During the hearing, the RPD made it clear that the heading on this email was nowhere to be found in the document presented at that time as evidence before it. Counsel for the appellant argued at the time that this was a translation problem.21 [22] I have difficulty understanding why the appellant and his counsel did not propose to provide the RPD with the email heading in question. A few days separated the hearing and the RPD's decision, during which time the heading on this email could have been provided to the RPD. Consequently, it is my opinion that the appellant failed to establish that this evidence was not reasonably available to him during the proceeding before the RPD or that he could not reasonably have been expected in the circumstances to have presented it before the RPD during this period. [23] For these reasons, I find that this evidence is not new within the meaning of subsection 110(4) of the IRPA, and I therefore find it to be inadmissible on appeal. V. No RAD hearing should be held [24] Neither in his written statement nor in his memorandum did the appellant request a hearing before the RAD. [25] Furthermore, I previously found that the evidence presented by the appellant on appeal is not admissible. Consequently, no hearing should be held before the RAD. V. WHAT DEFERENCE IS DUE AND WHAT STANDARDS OF REVIEW SHOULD BE APPLIED IN AN APPEAL PROCEEDINGS BEFORE THE RAD? [26] In the following paragraphs, I will analyze the particular context of the RPD and the RAD, and what I believe can be inferred from the few legal decisions that address these issues. A. The particular context of the RPD and the RAD [27] The RAD is not a court of law and does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. The RPD and the RAD are both part of the Immigration and Refugee Board (IRB), but are two distinct divisions.22 Sections 162 to 169 of the IRPA contain the provisions that apply to them both, particularly that each "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction";23 that the members of both divisions have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing;24 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, taking any other measure that it considers necessary to ensure confidentiality.25 Sections 169.1 to 170.2 of the IRPA are specific to the RPD, while sections 171 to 171.1 are specific to the RAD. [28] In their respective roles, the RPD and the RAD must deal with whether or not to grant refugee protection to persons who make a claim. They are therefore part of the Canadian refugee protection system under the IRPA, which governs them and whose objectives include establishing fair and efficient procedures that will maintain the integrity of the system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.26 [29] The main role of the RPD is to hold hearings in order to determine whether refugee protection claimants are "Convention refugees" or "persons in need of protection." In disposing of a claim by holding a hearing, the RPD has the opportunity to see and to question refugee protection claimants, which gives it a significant advantage with respect to making findings of fact and assessing the credibility of claimants. [30] Pursuant to subsection 110(1) of the IRPA, a person or the Minister may appeal, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person's claim for refugee protection. However, pursuant to subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the RPD record of proceedings. In order for a hearing to be held before the RAD, new evidence must be deemed admissible. In addition, the RAD must be of the opinion that this evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and would justify allowing or rejecting the refugee protection claim.27 In other words, there are significant differences between the RPD and the RAD. B. Right of appeal and deference to RPD decisions [31] I would now like to refer to the concepts developed by the Alberta Court of Appeal in two decisions. These decisions do not relate directly to the IRPA, which governs the RPD and the RAD, and, consequently, do not serve as precedents that must be followed as such in this context. However, I am of the opinion that they can provide some teachings, not only with respect to the issue of whether an appeal before the RAD is an appeal de novo, but also with respect to the standards of review to be applied in this appeal. [32] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by an officer tasked with hearing a complaint about a police officer's conduct, the Alberta Court of Appeal noted that the mere presence of a right of appeal-including within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.28 [33] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.29 [34] Citing the Supreme Court of Canada, the Court of Appeal emphasized the importance of promoting the autonomy of the trial process and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the IRPA. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.30 [35] Having considered the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to decisions rendered by first-level decision-makers: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.31 [36] In a more recent decision, also rendered by the Alberta Court of Appeal, the Honourable Justice Slatter stated that the standards of review identified in Newton could vary according to the issue at hand.32 [37] In decisions of interest rendered by the Quebec Court of Appeal, this very issue of the standards of review to be applied by an appellate jurisdiction that is itself part of an administrative tribunal was analyzed, but in a different legislative context from ours. I note from these two decisions that it is paramount to [translation] "carefully scrutinize the applicable legislation to determine the limits of the intervention framework that each decision-maker, at each decision-making level, was assigned by Parliament."33I am also alert to the argument that an appeal before an appellate jurisdiction that is part of an administrative tribunal should not be equated to a kind of judicial review,34 but I also note that even that type of appeal has its intrinsic limitations and that it does not necessarily constitute a new proceeding.35 [38] Overall, I am of the opinion that, except for strict questions of law that may include questions of interpreting the IRPA, which governs both the RPD and the RAD, and except for questions of natural justice, it is appropriate for RAD members to extend deference to RPD decisions. This deference is, in fact, comparable to, although distinct from, the deference to be given by courts of law to first-level decision-makers where the issue is a question of fact or a question of mixed law and fact. In my opinion, it follows that, except in exceptional circumstances, an appeal heard by the RAD does not constitute an appeal de novo. [39] That being said, the Federal Court should soon be able to enlighten us on the issue of what standards of review must be applied in appeals heard by the RAD against decisions rendered by the RPD. At that point, it will no longer be necessary to refer to the RAD context or to decisions rendered in cases involving legislation other than that which governs the relationship between the RPD and the RAD. For now, however, I am of the opinion that it is necessary to proceed as I have done in the above paragraphs, knowing that this situation is temporary and that the standard of review analysis does not need to be conducted in all cases.36 C. Standards of review to be applied in this case [40] In his memorandum, the appellant raises two grounds of appeal. First, he submits that the RPD erred in failing to adequately consider the evidence, thus breaching a principle of natural justice and the duty of procedural fairness. Second, he submits that the RPD erred again in imposing a heavier burden of proof than that of a balance of probabilities.37 In a paragraph dealing with the standards of appeal, the appellant indicates that the RAD allows appellants to show that the decision was wrong in law, in fact or in mixed law and fact,38 but does not specify more clearly which standards of review are to be applied in his appeal. [41] As for whether or not the RPD respected the principles of natural justice, a review of the case law leads me to conclude that this must be treated as a question of law.39 In questions of law, the standard of correctness applies. [42] As for whether or not the RPD imposed a heavier burden of proof than that of a balance of probabilities, it seems to me that this is a question of the interpretation of section 97 of the IRPA. [43] According to Federal Court jurisprudence, there would seem to be two possible ways of looking at this: this is either a question of interpretation of the IRB's home statute and the related jurisprudence, and it does not involve issues of central importance to the legal system that are outside of the RPD's expertise, issues of true jurisdiction or vires, constitutional issues or the jurisdictional lines between two tribunals and, accordingly, the applicable standard of review is reasonableness;40 or the interpretation by the RPD of section 97 of the IRPA concerns basic rights and freedoms growing out of an international convention, making this a question of general law that is of central importance to our legal system and thus subject to the correctness standard of review.41 [44] The Federal Court of Appeal recently decided that in matters of judicial review, reasonableness is the applicable standard of review when it comes to interpreting paragraph 37(1)(b) of the IRPA.42 In reaching this conclusion, the judge who wrote the decision indicated that, on the one hand, deference should be afforded to the Immigration Division's interpretation of the IRB's home statute.43 And she indicated, on the other hand, that she was mindful that the Court had previously applied the correctness standard of review to the interpretation by the RPD, another division of the IRB, of international conventions, making specific reference to Febles:44 There, the presumption of reasonableness review was rebutted by the majority of the Court in view of the need to interpret international conventions uniformly. In my view, cases such as Febles are distinguishable on the basis that here, the Board was interpreting sections 37 and 117 of the Act. Further, unlike the Refugee Convention, the Protocol anticipates individual states will enact different measures to fulfil the Protocol's objectives (see: article 6, section 4). The uniformity concerns in Febles do not apply to the Protocol.45 [45] For my part, faced with the two possibilities set out above, and with all due respect for the opposing view, it is my opinion that correctness is the best option. Here is why. [46] It is acknowledged that both the RAD and the RPD are specialized tribunals dealing with the same questions. Thus, the RPD's expertise is not necessarily superior to the RAD's for questions involving refugee protection and determination of refugee status. Moreover, the RPD and the RAD are called on to interpret the same home statute of the IRB, it being understood, however, that acting on appeal of the RPD's decisions, the RAD has an implicit mandate to ensure institutional consistency in the interpretation of this statute. In short, what must be distinguished here is the standard of review applicable in a judicial review from the standard of review applicable in an administrative appeal within the IRB. Consequently, I am of the opinion that the RAD need not afford deference to the RPD when it comes to the interpretation of the IRB's home statute and the related jurisprudence, meaning that in questions involving the interpretation of section 97 of the IRPA, it is the correctness standard of review that must be used for a contested RPD decision. [47] Here is what should be done when it is the correctness standard of review that applies: When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.46 This procedural fairness element is reviewed as a question of law. No deference is due. The decision maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.47 VI. ANALYSIS OF THE MERITS OF THE APPEAL A. Did the RPD breach its duty to respect the principles of natural justice and procedural fairness? [48] I conclude that the RPD respected the principles of natural justice and procedural fairness, for the reasons that follow. [49] In his memorandum, the appellant criticizes the RPD for having erred in failing to consider two emails presented in support of his refugee protection claim, thus breaching a principle of natural justice and its duty of procedural fairness.48 [50] As regards the first email, the appellant admits that the name of its sender, the subject of the email and the date of the email do not appear on the document, but indicates that this situation is the result of an oversight during the translation. He maintains that this error could be likened to a major interpretation error in the context of his refugee protection claim. He added that by drawing a negative inference as to this email's absence of form, the RPD incorrectly analyzed the evidence presented and thus breached a principle of natural justice in his regard: that of being heard.49 [51] He further criticizes the RPD for not having asked him for detailed explanations concerning the content of this email, explanations that could have helped it understand its content. In attaching no evidentiary weight to this email by virtue of a simple comprehension difficulty, the appellant argues that the RPD breached its duty of procedural fairness by preventing him from fully and fairly presenting his position regarding the significance of this email's content. He added that the RPD also erred in failing to take account of the human rights situation in Cuba, where the general population, and state employees, are unable to express themselves freely.50 [52] As regards the second email, the appellant criticizes the RPD for having failed to afford it any probative value despite its straightforwardness. He indicates that this document comes from a female colleague who informed him of her fears if he were to return to Cuba and warned him of the risk that the XXXX XXXX put in place to investigate the investments-that last word referring here to the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX-would be [translation] "out for his blood."51 [53] The appellant also criticizes the RPD for failing to attach probative value to the media articles that he presented as evidence, showing that XXXX XXXX such as the claimant are increasingly the targets of persecution at the hands of the Cuban state. He adds that by failing to afford the probative value that these documents deserved, the RPD erred in disregarding the documentary evidence corroborating his refugee protection claim.52 [54] In its reasons for decision, the RPD indicated that counsel for the appellant, referred to at the time as the claimant, argued that the claim should be examined through the lens of paragraph 97(1)(b) of the Act.53 [55] After identifying the appellant's allegations, the RPD indicated that at the hearing, the latter stated that he never had to assume blame in the past for XXXX XXXXat work and that he had never received any sanctions. He also stated that he had never been criticized for his XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and that, during the meetings that took place in XXXX 2012 and XXXX 2013, he had been praised. The RPD carried on, indicating that during the hearing, the appellant did not mention that colleagues of his had been punished.54 [56] Here is how the RPD interpreted the appellant's testimony: [translation] [17] Based on the claimant's testimony, despite the close surveillance to which he is subject as part of his work, the claimant had no trouble obtaining a passport, which the authorities issued him in XXXX 2013, at a time when the claimant alleges that the authorities in both the XXXX and XXXX were watching him both at work and at home, according to his oral testimony, since at least XXXX 2012. The claimant's testimony at the hearing also shows that he obtained permission from his employer to be absent from work for two months in order to travel to Canada, without any stated problems. The visa file also shows that the claimant submitted an employment confirmation letter from XXXX XXXX XXXX XXXX, dated XXXX XXXX XXXX 2013, in support of his application for a Canadian visitor visa, filed on XXXX XXXX XXXX 2013. Despite this, the authorities did not prevent him from leaving the country. [18] Furthermore, according to the claimant's testimony, he was in the employ of XXXX XXXX XXXX XXXX (the state) until his departure from Canada. He alleges that he is no longer employed by them today, since he overstayed the two months' absence that he had been authorized by his employer. However, at the hearing, the claimant stated that he had not been officially dismissed by his employer, and that the latter had not attempted to contact him in this regard. He further stated that his wife, who had accompanied him to Canada in XXXX 2013 but who returned to Cuba on or about XXXX XXXX XXXX 2013, has not been visited by the authorities, or anyone else, and has not been bothered by them, nor by the claimant's employer. [19] The claimant went on to state that he had not received a summons, nor had he been accused of any offence to date, even though-according to his testimony-a commission had been set up to investigate XXXX XXXX. 55 [57] In its reasons for decision, the RPD then analyzed two emails sent to the appellant in XXXX 2013 by persons connected to his occupational activities and seeking to corroborate his fears of being imprisoned upon returning to Cuba: [translation] [21] As regards the first email,56 the sender's name did not appear anywhere. The heading normally found on an email, including the sender's and recipient's addresses, the date and time of mailing, and space for the email subject were nowhere in sight. Quite simply, this document does not have the form of an email, and it is not dated. The claimant had no explanations to offer concerning the anomalies of the document that was supposed to be an email. Counsel for the claimant argued that this was a translation problem, that a cut-and-paste had been done. These explanations do not justify the deficiencies in a document identified as an email. Neither does a reading of the content allow one to understand what exactly is involved, the author remaining vague, far less to conclude that the authorities are preparing or intending to blame the claimant or that charges are imminent, or that a proceeding is underway or about to be. The panel affords it no probative value. [22] The second email presented as evidence57 states that a female colleague of the claimant is [translation] "concerned for XXXX XXXX," that audits are being carried out and that she fears that there is a desire to implicate the claimant, but she does not make it clear why. Mention is made of a commission the next day that is "out for blood," but there is no probative link with the claimant. The claimant alleges that this document shows that a commission has been set up to investigate XXXX XXXX XXXXbut this document is not persuasive in this regard.58 [58] The RPD then analyzed the media articles presented as evidence and found that they show that the government does not hesitate to fire ministers and deputy ministers as well as other senior government officials and to launch corruption proceedings. It indicates that the appellant certainly has a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, but that there is no evidence that he was a senior official or a high-ranking employee in the bureaucratic hierarchy.59 [59] Lastly, the RPD analyzed the delay of five months before the appellant filed his refugee protection claim, found his explanations to be unsatisfactory and concluded that this delay denotes an absence of subjective fear on his part, as well as behaviour inconsistent with someone who has a true fear of being imprisoned for ten years.60 [60] Where procedural fairness is at issue, it must be asked whether the principles of natural justice in the particular circumstances of the case have been met.61 In a refugee protection claim before the RPD, procedural fairness is aimed at ensuring that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supported their claim and are given a chance to persuade the RPD that their claims were well-founded.62 A breach of procedural fairness will not result in relief in each case. Federal Court jurisprudence has held that if it is apparent that the decision-maker would have reached the same conclusion notwithstanding the breach, and no purpose would be achieved by remitting it for reconsideration before the RPD, the decision should stand.63 [61] In the past, it has emerged from Canadian case law that administrative tribunals have the obligation to ensure that the proper balance is struck between ensuring a full and fair hearing and that of ensuring that access to justice is effective and efficient. How that balance is set is discretionary, but the fundamentals of natural justice must not be compromised: A right to a fair and full hearing does not require tribunals ... to abdicate their control over dockets to the parties. What constitutes a fair hearing is largely a contextual analysis, informed by the nature of the rights in issue, the provisions of the legislative or regulatory scheme which underlies the decision making process. A fair hearing is not necessarily the "fullest" of hearings. In the end, the controlling determination of fairness will be whether the applicant or party had an opportunity to respond to the case against them.64 [62] Having read the entire file, I conclude that with the help of his counsel, the appellant understood the nature of the proceedings before the RPD, that he had the opportunity to tender evidence and that he was given a chance to persuade the RPD that his claim was well-founded. [63] Having carefully analyzed the RPD's reasons for decision, I conclude that it respected the principles of natural justice and procedural fairness when it considered both emails presented as evidence by the appellant and when it ultimately concluded that it should not afford them any probative value. [64] As for the first email, the appellant presented no explanation when confronted with the fact that it did not have the characteristics of an email. As for counsel, he then argued that it was a question of a translation error, and yet the translator certified that this document was a faithful translation of the original document written in Spanish.65 [65] As for the content of this document, the RPD had all necessary latitude to understand its content, and I see no error on its part when it opined that this document does not suggest that the authorities are preparing or intending to blame the appellant or that charges are imminent, or that a proceeding is underway or about to be. [66] As for the second email, the RPD had all necessary latitude to understand its content, and I see no error on its part when it opined that it did not establish a probative link with the appellant's allegations. The same reasoning applies to the RPD's analysis of the media articles. [67] It should be added that the analysis of the two emails and of the media articles form only part of the RPD's complete analysis. The appellant presented no argument aimed at showing that the RPD's analysis relating to what he experienced in the past and that the analysis relating to the delay in filing his refugee protection claim in Canada could contain some type of error. B. Did the RPD impose a heavier burden than that of a balance of probabilities in its analysis of the risk incurred by the appellant? [68] I conclude that the RPD applied the balance of probabilities standard of proof when analyzing the risk incurred by the appellant if he had to return to live in Cuba, for the following reasons. [69] In his memorandum, the appellant criticizes the RPD for having imposed a heavier burden than that of a balance of probabilities, for one thing because it seemed to recognize that he had indeed been the victim of personalized threats at the hands of the Cuban authorities, and for another because it stated that it was not satisfied with the testimony and the evidence and required from the appellant clear, definite evidence. According to the appellant, rather than require the balance of probabilities standard of proof, the RPD required him to present evidence beyond a reasonable doubt.66 [70] In its reasons for decision, the RPD set out its final findings as follows: [translation] [27] All in all, the claimant failed to offer persuasive evidence, either by his testimony or by the documents placed on file, that would indicate that the investigations launched with regard to the XXXX XXXX XXXX XXXX XXXX amount to persecution. The claimant has not demonstrated by a preponderance of evidence that he was formally accused of XXXX XXXX XXXX XXXX XXXX XXXX. Thus, the panel finds that the claimant's fear is based on speculation as to what could happen to him if he returned to Cuba to face an investigation, but there is no persuasive evidence before me to indicate that this speculation and this fear are well-founded, and that it is more likely than not that he would be falsely accused and sentenced to ten years in prison. CONCLUSION [28] Having analyzed all of the evidence, the panel finds that the claimant did not discharge his burden of establishing that there is a "serious possibility" that he would be persecuted on a Convention ground, or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he had to return to Cuba.67 [71] The standard of proof for purposes of section 97 of the IRPA is proof on a balance of probabilities. This is the standard of proof that a tribunal will apply in assessing the evidence adduced before it for purposes of making its factual findings.68 [72] However, the test for the degree of danger of torture in subsection 97(1)(a) and for the degree of risk under subsection 97(1)(b) is whether, based on its factual findings, the RPD is satisfied that it is more likely than not that the individual faces one of these risks.69 [73] It is true that the wording used by the RPD in its reasons for decision can lead to confusion. The balance of probabilities standard of proof should have applied only to the assessment of the evidence submitted by the appellant, for the purpose of making its factual findings. Regarding the test for determining risk under section 97 of the IRPA, it consists in determining whether it is more likely than not that the appellant will suffer the risks set out (danger of torture, risk to life or risk of cruel and unusual treatment or punishment).70 In the present case, in light of its factual findings, it is my opinion that the RPD could correctly conclude that the appellant did not establish that it is more likely than not that he would be subjected to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment, if he had to return to live in Cuba. [74] In any event, the criticism made by the appellant concerns the standard of proof, when he alleges that the RPD, rather than require the balance of probabilities standard of proof, required him to present evidence beyond a reasonable doubt. [75] In its reasons for decision, when the RPD deals with the standard of proof applying to the assessment of the evidence submitted by the appellant in order to reach its factual findings, it uses the words "persuasive evidence" and "balance of evidence." The phrase "persuasive evidence" refers to evidence that provides serious proof, that is conclusive and convincing. As for the phrase "balance of evidence," this refers to evidence that carries more weight. In both cases, the logic of what prevails in civil law, and not the logic of the concepts used in criminal law, is what holds. In light of all of its reasons for decision, it is my opinion that by using these phrases, the RPD has in fact applied the proper standard of proof, namely, a balance of probabilities, and not that which is applicable in criminal law, namely, evidence beyond a reasonable doubt. Consequently, I concur with its decision which, in my opinion, is the correct decision which should have been made in the present case. VII. REMEDIES [76] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [77] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette March 3, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 12, 17 and 20 of the RPD record. 2 Idem, page 13 of the RPD record. 3 Idem. 4 Idem. 5 Idem, page 12 of the RPD record. 6 Idem, page 13 of the RPD record. 7 Idem. 8 Idem, page 14 of the RPD record. 9 Idem. 10 Idem, pages 14 and 15 of the RPD record. 11 RPD decision, pages 3 to 10 of the RPD record. 12 Idem, page 10 of the RPD record. 13 Appellant's memorandum, pages 88 to 89 of the appeal record. 14 Idem, page 96 of the appeal record. 15 Reproduced on page 77 of the appeal record. 16 Idem, page 90 of the appeal record. 17 RPD Rules, SOR/2012-256, rule 43. 18 RAD Rules, SOR/2012-257, subrule 3(3). 19 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, paragraph 13. 20 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, paragraph 27. 21 RPD decision, paragraph 21, page 8 of the RPD record. 22 Section 151 of the IRPA: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 23 Section 162 of the IRPA. 24 Section 165 of the IRPA. 25 Section 166 of the IRPA. 26 Paragraph 3(2)(e) of the IRPA. 27 Subsection 110(6) of the IRPA. 28 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] ... While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principle basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 29 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17, as cited by the Alberta Court of Appeal in Newton, paragraph 81. 30 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 31 Idem, paragraphs 82 to 84. 32 Kikino Métis Settlement v. Métis Settlements Appeal Tribunal, 2013 ABCA 151, paragraph 12. 33 Laliberté v. Huneault, 2006 QCCA 929, paragraph 16. 34 Parizeau v. Barreau du Québec, 2011 QCCA 1498, paragraphs 75 to 78. 35 Idem, paragraph 79. 36 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53; [2011] 3 S.C.R. 471, paragraph 16. Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 16. 37 Appellant's memorandum, pages 88 to 89 of the appeal record. 38 Idem, page 88 of the appeal record. 39 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraphs 55, 79 and 87. Canada (Minister of Citizenship and Immigration) v. Khosai, 2009 SCC 12; [2009] 1 S.C.R. 339, paragraph 43. Sketchley v. Canada (Attorney General), 2005 FCA 404, paragraph 53. 40 Canada (Minister of Citizenship and Immigration) v. B380, No. IMM-913-12, Crampton, November 19, 2012; 2012 FC 1334, paragraph 13. 41 Canada (Minister of Citizenship and Immigration) v. B472, No. IMM-7816-12, Harrington, February 25, 2013; 2013 FC 151, paragraphs 11 to 17; Portillo v. Canada (Minister of Citizenship and Immigration), No. IMM-5429-11, Gleason, June 4, 2012; 2012 FC 678, paragraph 26. Dufour v. Canada (Minister of Citizenship and Immigration), No. IMM-949-11, Shore, May 17, 2012; 2012 FC 580, paragraph 27. 42 B010 v. Canada (Minister of Citizenship and Immigration), No. A-195-12, No. A-194-12, Evans, Dawson and Stratas, March 22, 2013; 2013 FCA 87, paragraphs 60 to 70. 43 B010 v. Canada (Minister of Citizenship and Immigration), No. A-195-12, No. A-194-12, Evans, Dawson and Stratas, March 22, 2013; 2013 FCA 87, paragraph 70. 44 Febles v. Canada (Minister of Citizenship and Immigration), 2012 FCA 324, [2012] F.C.J. No. 1609, paragraphs 22 to 25. 45 B010 v. Canada (Minister of Citizenship and Immigration), No. A-195-12, No. A-194-12, Evans, Dawson and Stratas, March 22, 2013; 2013 FCA 87, paragraph 71. 46 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 50, as cited by the Honourable Justice Russell in Ahanin v. Canada (Minister of Citizenship and Immigration), No. IMM-2554-11, Russell, February 8, 2012; 2012 FC 180, paragraph 37. 47 Sketchley v. Canada (Attorney General), 2005 FCA 404, paragraph 53. 48 Appellant's memorandum, pages 88 and 89 of the appeal record. 49 Idem, pages 89 and 90 of the appeal record. 50 Idem, pages 91 and 92 of the appeal record. 51 Idem, pages 92 and 93 of the appeal record. 52 Idem, pages 93 and 94 of the appeal record. 53 RPD decision, paragraph 10, page 5 of the RPD record. 54 Idem, paragraphs 15 and 16, pages 6 and 7 of the RPD record. 55 Idem, page 7 of the RPD record. 56 Document 6 - page 7. 57 Document 6 - page 9. 58 RPD decision, page 8 of the RPD record. 59 Idem, paragraphs 23 to 25, pages 8 and 9 of the RPD record. 60 Idem, paragraph 26, pages 9 and 10 of the RPD record. 61 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. Also read Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 62 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 63 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 8. Also read Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, paragraph 34: "While there is no need to establish a prejudice in order [to] prove a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). 64 Yan Chen v. Canada (Minister of Citizenship and Immigration), No. IMM-1106-11, Rennie, November 7, 2011; 2011 FC 1268, paragraph 19. Also read the Supreme Court of Canada decision in Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at pages 568 and 569: "In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion." 65 The translation of the first email is reproduced on page 104 of the RPD record. 66 Appellant's memorandum, pages 94 and 95 of the appeal record. 67 RPD decision, page 10 of the RPD record. 68 Rajadurai v. Canada (Minister of Citizenship and Immigration), No. IMM-5030-12, Strickland, May 22, 2013; 2013 FC 532, paragraph 34, citing the decision by the Federal Court of Appeal in Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1. 69 Idem. 70 Idem, paragraph 40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-04764 2