TB4-05937

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 : TB4-05937 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 12, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ohene K Andoh Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), a citizen of the Republic of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has not submitted any new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find her to be a Convention refugee or a person in need of protection or refer her claim back to the RPD for redetermination by a differently-constituted panel. Application for Oral Hearing [2] The Appellant does not request an oral hearing pursuant to section 110 (6) of IRPA. DETERMINATION [3] 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 [4] The Appellant alleges before the RPD that she is the victim of an arranged marriage by her father to one, XXXX XXXX. The Appellant further alleges that she was married on XXXX XXXX, 2013 in a traditional service. The Appellant alleges that after moving into her husband's home, a cycle of abuse began almost immediately. The Appellant also alleges that she was physically assaulted by her husband if she refused to have sex with him. The Appellant claims she reported the assaults to the police, who advised her that it was a family matter and dismissed her. The Appellant alleges she was a university student when she got married and continued to attend school. It was while attending school that the Appellant, with the help of an uncle, planned to leave Nigeria for Canada through the guise of attending French language lessons in Canada. [5] The Appellant made an application for a VISA to come to Canada, which was granted. The Appellant left Nigeria on XXXX XXXX, 2013, arriving in Canada on XXXX XXXX, 2013 and made an inland claim on January 24, 2014. [6] The Appellant's application for refugee protection was heard on March 25, and May 21, 2014. In a written decision issued on May 30, 2014, the RPD rejected the claim, finding that the Appellant was not a credible witness and that the Appellant is neither a Convention refugee nor a person in need of protection. [7] The Appellant submits that the issue that arises from the RPD refusal is whether it erred in law and fact or mixed law and fact in reaching its conclusion that the claimant failed to provide sufficient credible evidence, and thus was found not to be credible. [8] The Appellant submits that she is relying upon the cases of Alvarez,1 and Eng2 in support of her arguments for her Refugee Appeal. ANALYSIS Role of the RAD [9] What is the role of the Refugee Appeal Division (RAD) in considering an appeal against a decision of the Refugee Protection Division (RPD)? [10] While the Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [11] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [12] In Iyamuremye, the court found itself "...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law...."3 The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".4 [13] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.5 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessment of the facts in order to determine whether the RPD made an error of law or misassessed the facts to the point of making a "palpable and overriding error".6 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness, but then required the use of a higher standard. [14] In Malhotra,7 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [15] Recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.8 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.9 [16] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. The RAD will be applying Huruglica in this appeal. The RPD's Credibility Findings [17] The RPD rejected the Appellant's claim on the basis of credibility. [18] XXXX XXXX, the uncle: The RPD looked at the participation of the Appellant's uncle, XXXX XXXX. The Appellant testified, when asked by the RPD how she was able to afford the trip to Canada, that she was assisted by her uncle who provided her with financial assistance, but also provided her with the information to contact the designated representative who represented her at her RPD hearings. The Appellant was seventeen years of age at her hearings, but is eighteen years of age at her refugee appeal. [19] The RAD, in assessing the evidence before it, notes that the Minister intervened at the hearings by way of documentary evidence only. The Minister submitted a parental consent letter which was dated October 07, 2013 on the letterhead of the organizing group. The letter was giving consent for the Appellant to travel to Montreal, PQ, Canada to attend language classes. The Appellant denied any knowledge of this letter or any other forms provided by XXXX XXXXs, the organizers of the trip. The Appellant testified that it was probably her uncle who prepared all of the documents necessary to facilitate the trip. [20] The RAD, in assessing the evidence in this area, noted the discrepancy in the Appellant's testimony and the omission of her uncle's involvement in her Basis of Claim form (BoC), as did the RPD in its reasons.10 In further assessing the evidence, the RAD finds it unrealistic that the Appellant would omit her uncle's assistance in her fleeing Nigeria. When the RAD looks further into this affidavit,11 his omission of any assistance he may have provided her to leave Nigeria only undermines her claim. After all, it would be very beneficial for his affidavit to give a clear and full account of the Appellant's relationship with her husband. The RAD, in looking at the overall assessment of the evidence in this area, finds it reached the same conclusion as the RPD did in its credibility finding to be supportable. [21] The Appellant's Mother: The RPD asked the Appellant to comment on the parental consent form which had been disclosed by the Minister which had her mother's signature affixed. The Appellant testified that it was her mother's signature. The Appellant testified that she was aware of her plan to flee Nigeria as they had spoken about it, and that her mother and uncle assisted in her leaving Nigeria. The RPD asked why she had omitted this from her BoC narrative. The Appellant testified that there was "no reason". The RAD finds this portion of the Appellant's testimony makes no sense. The Appellant was in an alleged abusive relationship, her mother and uncle assist her in flight from Nigeria, yet she fails to put these details in her BoC narrative. These details would certainly strengthen her claim in lending credibility towards the essence of her flight from Nigeria. [22] Counsel submits that the RPD failed to take into consideration that he was dealing with a minor, who was incapable of narrating her own story. In assessing the evidence in this area, the RAD could not disagree more with counsel's submission. The Appellant is well educated with at least one year of university. In assessing the evidence, the RAD notes she was able to plan and execute her flight from Nigeria, with only getting assistance in financial help from her uncle. From her testimony, the RAD agrees with the RPD finding that the Appellant gave her evidence without impairment.12 The Appellant's answers were clear and smooth and without hesitation. The answers clearly indicate that she understood them as they flowed without the use of an interpreter. The RPD also clearly cited the guidelines for Child Refugee Claimant: Procedural and Evidentiary Issues,13 and also the guidelines for Woman Refugee Claimants Fearing Gender-Related Persecution.14 The RAD came to the same conclusion as the RPD did, and the RAD determined that this portion of the evidence is supportable by the Appellant. [23] Appellant's trip to Canada: The RPD, in its decision, at paragraphs 31-33, expressed a credibility concern regarding the time spent in Toronto, Ontario and where she stayed and visited. The Appellant was asked where was her destination in Canada. The Appellant testified that she was going to Toronto. The RPD asked why her application indicated "Montreal, PQ)". The Appellant testified that she and the group were going to Montreal to study French but, due to inclement weather, they stayed in Toronto. The Appellant was not able to provide details in regards to the hotel she stayed, landmarks, and what attractions she visited while in Toronto. The Appellant testified that she didn't remember the name of the hotels, as they attended only shopping malls, was not able to produce any documentation, or itinerary. The evidence on the record clearly indicates what activities are planned for the group,15 and it all relates to Montreal; there is no mention of Toronto whatsoever. The RPD drew a negative inference from this portion of the testimony, regarding the Appellant's absence of documentation to corroborate her stay in Toronto, as does the RAD concludes for the same reason. [24] Counsel submits the RPD erred in taking issue with the Toronto destination. However, the RAD notes that Counsel does not specify where exactly the RPD erred, and further the RAD notes that counsel is not in compliance with RAD Rule 3. The RAD concludes that it is unrealistic to accept that a group of students would arrive in Toronto, instead of its destination of Montreal where accommodations would have been reserved, classes set up, etc. Instead, it would arrive in Toronto, find a hotel to accommodate a group at the last minute, and then spend twelve days or so just going to shopping malls. There has been no evidence tendered to corroborate the alleged inclement weather in Montreal which would force the group to stay in Toronto for the duration of the tour. The RAD, based on the evidence before it, concludes that it has arrived at the same finding that the RPD did in regards to its credibility finding. [25] In reviewing the evidence before it, the RAD noted that the Appellant had submitted an electronic application requesting an extension of her stay. The extension was filed by an Immigration Consultant, XXXX XXXX, on XXXX XXXX, 2013. The Minister has disclosed the application, along with a letter which was submitted by Mr. XXXX on December 23, 2013. The Appellant denies any knowledge of Mr. XXXX or the application to extend her stay. It further stated in the extension that the additional living expenses would be paid by the Appellant's parents, and there was $5,000 available for her living expenses. It further indicated that she would be staying with her uncle, XXXX XXXX. There is no evidence on the record to indicate that Mr. XXXX was contacted to clarify the application of extension and who retained him. Counsel provided a very speculative and incredulous explanation for the application to extend her stay, but realistically it would be a logistical nightmare for the group to complete the task of changing the itinerary in such a short period of time for a large group of people. The RAD notes the contents of the letter from the Organizers in regards to their responsibilities for the students, and this type of action would be totally contrary to their way of operations. It is the RAD's assessment, based on the totality of the evidence before it in this area that it arrived at the same conclusion as the RPD did in this area of its decision. [26] A re-examination of the RPD's reasons reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD notes that this finding was open to the RPD, given the number and nature of the concerns identified by the panel. As such, the RAD finds that the RPD did not err in its determination that the Appellant's allegations were not credible overall. The RAD has assessed the entirety of the evidence and I have determined that I arrived at the same conclusion as the RPD did in its decision regarding the credibility findings. SUMMARY AND DETERMINATION [27] In the RAD's view, the RPD's decision can rest solely on its credibility findings. CONCLUSION [28] 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. (signed) 'Luis F. Agostinho' Luis F. Agostinho November 12, 2014 Date 1 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 2 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 3 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 4 Iyamuremye, para. 3. 5 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 6 Alvarez, para. 33. 7 Malhotra, Sunil v. M.C.I. (F.C., no. IMM-6899-13), Bédard, August 1, 2014, 2014 FC 768 8 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 9 Huruglica, para. 45. 10 Appellant's record, page 8-9, Reasons for Decision, paragraphs 24-27 11 RPD record, page 109 12 Appellant's record, pages 4- 5, paragraphs 7-8 13 Appellant's record, page 4, paragraph 3-8 14 Appellant's record, pages 5-6, paragraph 9 15 RPD record, pages 129-130 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05937