TB3-09646

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 : TB3-09646 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 April 2, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX, [the Appellant], is a citizen of Pakistan. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant indicated in her Basis of Claim form (BOC) that she witnessed her son's problems with his employer in Grenada when she visited him 2011. After she returned to Pakistan, she learned her son's employer had threatened him. In addition, when her son was planning to return home, his employer had told contacts in Pakistan, including terrorist groups, that her son had left Islam to convert to Christianity and that he publically burned the Quran in Grenada. As a result, the Taliban began harassing the Appellant on the phone in XXXX 2012. She was questioned about when her son would return to Pakistan and she was told they would kill him. As a result she told her son not to return to Pakistan. When her son decided to move to Canada, she told the men that her son will not return to Pakistan and they threatened to kill her instead XXXX XXXX XXXX, 2013. On XXXX XXXX, she traveled to Canada and claimed refugee protection. STANDARD OF REVIEW [4] The Appellant submits that the RAD must consider whether the RPD's credibility findings on questions of fact in the Appellant's claim are reasonable. The Appellant argues in this regard that the RAD owes the RPD considerably less deference, as contrasted with a Federal Court review, because the RAD and the RPD are possessed of the same statutory powers and expertise. [5] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [6] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [7] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [8] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [9] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [10] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [11] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [12] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [13] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [14] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [15] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [16] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [17] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [18] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [19] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [20] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 ANALYSIS Omissions [21] The Appellant submits that the RPD's reliance on omissions in the Appellant's BOC in its assessment of her credibility was unreasonable. The Appellant further submits that these omissions did not create actual contradictions, but merely elaborated upon the BOC narrative. The Appellant cites the Federal Court decision in Schopova17 in which the Court indicated it was natural for a claimant to mention some facts at a hearing that were not included in written materials. The Appellant submits as well that the BOC narrative was merely a summary of the claim and not a detailed description of every incident. The RAD finds that this raises an issue of credibility assessment which is a finding of fact which is to be assessed on a reasonableness standard. Analysis follows. [22] The RAD disagrees with the appellant's argument. The instructions in regard to the BOC narrative direct the refugee claimant to "...explain everything in order, starting with the oldest information and ending with the newest. Include everything that is important for your claim, include dates, names and places wherever possible."18 In the RAD's view, the alleged appearance "many times" of Taliban members at the Appellant's home is a very significant element of her claim, as it suggests determined interest in the Appellant. This information is not a mere elaboration of information in the Appellant's BOC narrative. Rather this is new and substantively significant information as it goes to the heart of the Appellant's claim. The RAD finds it was reasonable for the RPD to reject the Appellant's explanation, and to expect information regarding multiple Taliban visits to have been disclosed in the Appellant's BOC narrative. The RAD further finds that the RPD's adverse credibility finding in respect to this omission was justifiable, transparent, and intelligible, and is therefore reasonable. Inconsistencies in the Appellant's memory of facts [23] The Appellant submits that the RPD's reliance on stated inconsistencies was unreasonable. The Appellant further submits there was no actual contradiction but rather, as explained by the Appellant, she had a lapse of memory and her son had written the narrative for her. The Appellant submits as well that the RPD's finding was based on an unduly onerous and microscopic examination of the evidence. The Appellant also submits her testimony and related evidence was essentially consistent with her BOC narrative. [24] The RAD notes that the Appellant indicated in her BOC narrative that the Taliban harassed her over the phone but did not indicate the number of calls she received. The RAD finds the Appellant's explanation regarding the two to three calls that this information just came to her, is clearly vague. The RAD notes, however, that the Appellant's testimony does not contradict her BOC narrative in this regard, but rather provides some specificity, however, vague. The RAD finds the RPD's negative inference in this regard is not reasonable as it is not supported by the evidence. Affidavits [25] The Appellant submits the RPD's refusal to assign any probative value or corroborative weight to the affidavits disclosed by the Appellant was capricious and unreasonable, and as well unduly onerous and microscopic. The Appellant further submits that the XXXX XXXX affidavit may not have specifically mentioned that the Appellant had been verbally threatened or targeted, but it did indicate she had become very nervous as a result of the call that was the subject of this affidavit. [26] The Appellant submits as well that the letter from XXXX XXXX indicates extremists are very angry with her because she is XXXX mother and she is not safe here at all. The Appellant submits in addition that the RPD's refusal to assign any probative value to the letter because it was not in the form of a sworn affidavit was capricious and unreasonable. The Appellant notes in this regard that the RPD did not question the authenticity of the letter. [27] The Appellant submits that, while the affidavit from XXXX XXXX does not provide evidence of a direct threat to the Appellant, it does state the agents of persecution threatened by phone and by visiting XXXX house. The Appellant argues the threats noted were not necessarily being directed exclusively at XXXX, the Appellant's son. [28] The RAD finds the lack of specific evidence in the XXXX XXXX affidavit that the Appellant herself was personally threatened is a sufficient basis for the RPD's decision to give this document little evidentiary weight. [29] The RAD finds that while the XXXX XXXX letter states that the Appellant "is not safe here at all", it largely concerns the Appellant's son, and it provides no substantive information regarding why and in what way the Appellant is personally unsafe. The RAD finds that the RPD's decision to give this document little weight because of its lack of detail concerning the Appellant's material allegations is reasonable. [30] The RAD notes that the affidavit from XXXX XXXX provides no evidence of a direct threat to the Appellant. The RAD finds that the Appellant's argument that the threats noted were not necessarily directed exclusively at the Appellant's son is speculative. The RAD further finds the RPD's decision not to grant probative weight to this document is reasonable. Membership in the Appellant's son's family [31] The Appellant submits that the RPD failed to consider whether the Appellant was a Convention refugee or a person in need of protection by mere virtue of her membership in her son's family. The Appellant noted in this regard that her son's claim has been returned to the RPD for rehearing. [32] The RAD notes that the RPD found the claimant's allegation that she was personally threatened by the Taliban in Pakistan not to be credible. The RPD further found the Taliban did not come to her home on many occasions as observed by neighbours, and that the Taliban did not threaten the Appellant's life on the phone. The RAD notes it is on the basis of adverse credibility findings that the RPD found the Appellant had not satisfied her onus of establishing a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a risk of cruel or unusual treatment or punishment or a risk to her life or a risk of torture in Pakistan. The RAD finds there is insufficient evidence to find that the Appellant faces a reasonable chance of persecution or that she is a person in need of protection merely on the basis that she is a member of her son's family. [33] In the context of the totality of evidence disclosed in the RPD hearing, the RAD finds the RPD's decision was reasonable, justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law. DISPOSITION [34] 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. [35] The appeal is dismissed. (signed) 'Milton Israel' Milton Israel April 2, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Schopova, Silvia Marinova v. M.C.I. (F.C., no. IMM-2753-02), O'Reilly, July 22, 2003, 2003 FC 904 18 RPD Record, p. 23, Basis of Claim, Question 2 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09646