TB3-08948

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 : TB3-08948 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 March 31, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael Brodzky 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 XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to allow his appeal pursuant to subsection 111 (1) (c) of the Act. 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 alleged before the RPD that he fears harm in Nigeria at the hands of his uncle (XXXX XXXX) and that the Nigerian Police is searching for him. The Appellant alleges he entered into a same-sex relationship with XXXX XXXX, a schoolmate back in XXXXe 1982. The Appellant alleges that both he and XXXX were caught in the school boarding house by the school master having sex. Both boys were suspended from school, but were eventually expelled. The boys continued their relationship up until 2013. [4] In 1997, due to pressures from his parents, the Appellant married but continued his relationship with XXXX XXXX (XXXX). Sometime in XXXX 2000, the Appellant and XXXX were caught having sexual relations at the Appellant's house by his father. The Appellant's father took no physical action against the men, but lectured them on the evils of homosexuality. Later in the month after the incident, the Appellant's father committed suicide. On XXXX XXXX, 2013 the Appellant and XXXX were caught again at the Appellant's house by the Appellant's uncle engaged in sexual relations. The Appellant escaped from his house, and fled to Lagos where he was able to flee Nigeria on XXXX XXXX, 2013. [5] The Appellant's application for refugee protection was heard on July 29 and August 26, 2013. By a decision of November 14, 2013, the RPD rejected the claim. Citing inconsistencies in the Appellant's evidence about key elements of his claim, the RPD found him to be generally lacking in credibility by failing to provide sufficient credible and trustworthy evidence in support of his claim. [6] The Appellant submits that the RPD was unreasonable in its examination of his credibility and, in doing so, ignored the spirit and intent of the UNHCR Guidelines on International Protection No. 9, relating to Claims to Refugee Status base on Sexual Orientation ("UNHCR Guidelines").1 [7] The Appellant further submits that, "the RPD err in the manner in which it made its determination that the Appellant failed to establish his claim with provide sufficient credible and trustworthy evidence, and in particular his identity as a bisexual."2 [8] The Appellant submits that the RPD erred in treatment of the personal documents sent by his wife, and erred by misconstruing and ignoring relevant evidence. [9] The Appellant submits that the RPD failed to consider his identity as bisexual. [10] The Appellant submits that the RPD failed to consider his counsel's submission. [11] The appellant submits that the RPD failed to conduct an analysis of the risk under section 97. ANALYSIS Standard of Review [12] The Appellant submits that the RPD erred in its consideration of his credibility, and this raises questions of fact. [13] The Appellant also submits that the RPD erred in law by failing to consider the totality of the evidence and in particular by ignoring the UNCHR Guidelines. Again, in the RAD's view, these are questions of law. The RPD's consideration of the evidence is a matter of law, and where the UNCHR Guidelines are used as part of an assessment of credibility, they become subsumed in the standard of review as applied to credibility findings. The RAD finds that allegations of ignoring the RPD decision and ignoring evidence are allegations of errors of law which must be assessed on a standard of correctness. As stated, when applying the correctness standard, the RAD will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. [14] While the Appellant makes no specific submissions on the standard of review to be applied in this appeal, he argues that the RPD's decision was unreasonable, and, in the RAD's view, this argument implies a deferential standard of review. [15] 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. [16] In Dunsmuir,3 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,4 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. [17] In Newton,5 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:6 (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. [18] 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.7 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. [19] In the RAD's view, these respective roles suggest deference is owed to findings of fact 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. [20] The nature of the question in issue: In this appeal, the questions in issue are one of law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.8 [21] 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. [22] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.9 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. [23] 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. [24] 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." [25] 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. [26] 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,10 and each can take notice of information and opinion within its specialized knowledge.11 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,12 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.13 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,14 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [27] 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.15 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...." [28] 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 here 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.16 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. [29] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the 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.17 [30] The appropriate standard of review in this appeal is one of correctness. 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.18 The RPD's Findings [31] The Appellant argues that the RPD made various errors in its decision, and the RAD has considered those arguments. [32] The Appellant argues that, "the RPD err in the manner in which it made its determination that the Appellant failed to establish his claim with provide sufficient credible and trustworthy evidence, and in particular his identity as a bisexual." Specifically: [33] Failed to establish identity as a bisexual: The RPD considered the Appellant's testimony about his relationship with his same-sex partner XXXX and the details about their meetings. The panel noted that the Appellant testified that they would meet at his family house in the village and specifically on two occasions; once in 2000 when they were caught by the Appellant's father and then in April 2013 when they were caught by the Appellant's uncle. The Appellant also testified that they were caught in 1982 in the school dorm by the school master. The panel asked the Appellant whether he met XXXX at any other time. The RPD questioned the Appellant further to clarify portions of his testimony. The RPD stated, in its Reasons for Decision, that "the claimant's hesitant and inconsistent evidence regarding his same-sex relationship with XXXX, simply did not lend a ring of truth to his allegations. The panel takes a negative inference, as the claimant's sexual orientation and his same sex-relationship with XXXX are central elements of his claim."19 [34] The panel asked the claimant to confirm his evidence that he had sexual relations with XXXX in 1982, 2000 and 2013 and only those three occasions.20 The Appellant confirmed before the RPD that he only had sexual relations with XXXX those three times. The RPD found it implausible that the claimant and XXXX were involved in a long-term sexual relationship lasting over thirty years and the only times they had sexual relations were also the exact times they were caught by the school master, the Appellant's father and his uncle. The Appellant was asked if he had any other same-sex relationships, to which the Appellant testified that he had not. The Appellant testified that he had not been nor was involved in any same-sex relationships in Canada, and that he remains married and committed to his wife.21 [35] The RAD agrees that the RPD's finding on this matter was indeed one of plausibility. Although the Appellant's evidence was not inconsistent or contradictory, the RPD simply did not believe him about his same-sex relationship with XXXX. [36] While the RPD is entitled to make findings on implausibility alone, such findings should only be made in the clearest of cases. It must be mindful of the fact that refugee claimants come from diverse cultures, and it must take care not to judge their actions by Canadian standards. In the RAD's view, this is one of the clearest of cases. The RPD did detail why it rejected the Appellant's explanation regarding the same-sex relationship which spanned over thirty years between the Appellant and XXXX. The RPD's implausibility finding here is justifiable, transparent, or intelligible, and is therefore reasonable. [37] Did the RPD ignore or misunderstand evidence presented: The Appellant argues that there are numerous aspects of the evidence presented in his claim which the RPD misunderstood or ignored, referring to the relevant portions of his examination as revealed by the audio recording of the hearing.22 The Appellant points to areas of the recording of the hearing to support his argument. The RAD has listened to these areas of the recording of the hearing which were pointed out by the Appellant.23 The RPD questioned the Appellant regarding his testimony involving his relationship with XXXX. The RAD in reviewing the evidence in this area, agrees with the RPD decision when it considered implausible that the Appellant and XXXX were involved in a long term relationship which lasted over thirty years and only had sex three times, and each time they were discovered. The RAD finds the negative finding by the RPD in this area of evidence to be reasonable. [38] The Appellant argues that the Board cannot find a claimant to be lacking in credibility without independently assessing the authenticity and weight of corroborating documents, and therefore the RPD erred in making findings of fact without having regard for the evidence before it. [39] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,24 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [40] The RAD has reviewed the evidence referred to by the Appellant. For example, documents relating to the Appellant's involvement with support groups, such as Among Friends, pictures which were taken at last year's Gay Pride parade. The RPD's reasons were silent on the photos; however, photos in and of themselves cannot attest to a person's sexual orientation and allegations, and therefore the RPD is not in err by not commenting on each piece of evidence. The RPD also commented on the letters,25 which were submitted and articulated on the weight it assigned these documents. [41] As outlined above, the RAD finds that the RPD reasonably placed no weight on the Appellant's evidence in support his claim of being gay in Toronto.26 The Appellant's materials emphasized that he claims to be bisexual, and he claims to have been bisexual in Nigeria. As outlined above, the claims in the documents concerning the Appellant's sexual orientation were based on the Appellant's own self-disclosed statements about his sexuality. The Appellant had also filed documents with the Board, testifying that they were sent by his wife from Nigeria. The RPD in its reasons,27 articulated its concerns about the documents in regards to some irregularities, and as a result, gave little weight to these documents. The Appellant was found not to be credible by the RPD; therefore, the RPD's finding not to place weight on the documents which supported his sexual orientation was reasonable. The RAD finds that the RPD's conclusion here falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [42] In the Appellants' submission, the Appellant refers to UNHCR Guidelines on International Protection No. 9 relating to Claims to Refugee Status base on Sexual Orientation, particularly to Part V of theGuidelines, and he alleges that the panel did not conduct his hearing with the appropriate sensitivity and knowledge. During the hearing most of the RPD's questions were focused on matters not directly related to his claim, such as his travel to Canada, or how and why he obtained his documentary evidence, and, when he was asked about his sexuality, the RPD focused mainly on his infrequent sexual encounters with his friend XXXX, but seemed uninterested in the non-physical aspects or their relationship. The Appellant further argues that the RPD failed to comprehend the cultural and family pressures within the confines that the Appellant conducted his romantic friendship with XXXX.28 [43] The RAD agrees that the UNHCR Guidelines require the RPD to consider the cultural context for a sexual orientation refugee claimant. However, there is nothing to suggest that the RPD did not observe the guidelines as suggested by the Appellant. The RPD did consider and apply the UNHCR Guidelines. It is clear from the RPD's reasons that the panel was cognizant of and directed by the Guidelines.29 [44] The UNHCR Guidelines as with the IRB's Gender Guidelines, in the case at bar are not intended to serve as a cure for all deficiencies in a refugee claimant's evidence.30 To have properly considered the UNHCR Guidelines, the Board must disclose a degree of knowledge, understanding, and sensitivity in judging a claimant's statements and conduct. The RAD finds that, in this case, the RPD's negative credibility finding did not contravene the letter or spirit of the UNHCR Guidelines. In this instance, the RPD showed such knowledge, understanding, and sensitivity but, nevertheless, concluded that the Appellant's evidence about certain aspects of his allegations regarding his sexual orientation and incidents were vague and contradictory. The RAD finds that the finding was justifiable, transparent, and intelligible, and is therefore reasonable. [45] Given the totality of the evidence, including the serious concerns with the credibility of the Appellant's allegations, the RAD finds that the RPD's finding that the Appellant was not a homosexual man was reasonable. DISPOSITION [46] The RPD found that the Appellant failed to credibly establish the material allegations upon which his refugee claim is based. The RAD finds that the RPD's decision to reject the Appellant's refugee claim falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. CONCLUSION [47] 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. This appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho March 31, 2014 Date 1 GUIDELINES ON INTERNATIONAL PROTECTION NO. 9:Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees 2 Appellant's Record, page 18, paragraph 7 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 6 Newton, para. 43. 7 IRPA, Sections 96 and 97. 8 Khosa, para. 89. 9 IRPA, Section 3(2)(a). 10 IRPA, Sections 170(g) and 171(a.2). 11 IRPA, Sections 170(i) and 171 (b). 12 IRPA, Section 170(b). 13 IRPA, Section 110(3). 14 Khosa, para. 89. 15 Newton, para. 80. 16 Khosa, para. 89. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 18 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 19 Reasons for Decision, paragraphs 10-12 20 Reasons for Decision, paragraph 11 21 Reasons for Decision, paragraphs 11-12 22 Appellant's Record, pages 11-14 23 Appellant's Record, page 12 (paragraph 7 of the appellant's affidavit) 24 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, para. 7 & 8 25 Reasons for Decision, paragraphs 17-18 26 Reasons for Decision, paragraph 17 27 Reasons for Decision, paragraph 18 28 Appellant's record, pages 11-14, paragraphs 6-17 29 Reasons for Decision, paragraph 19 30 Karanja, Anne Wanja v. M.C.I. (F.C., no. IMM-3296-05), Pinard, May 11, 2006, 2006, FC 574, para. 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08948