TB3-08535

RAD File No. / N° de dossier de la SAR : TB3-08535 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 22, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel L. Winbaum Barrister and Solicitor 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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Honduras, 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 set aside the decision of the RPD and to either find him to be a Convention refugee or person in need of protection or to refer the matter back to the RPD for redetermination. 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 was in Canada on a work permit when he returned to Honduras for a visit between XXXX and XXXX of 2012. He alleged before the RPD that he and a friend were accosted by a group of men while walking home from a church service on XXXX XXXX XXXX 2012. He believed that the men sought to harm him because he is an evangelical Christian. He is afraid to return to Honduras because he believes that evangelical Christians there are at risk of harm. [4] The Appellant's work permit in Canada was to expire in XXXX of 2013, and in XXXX of 2013, he made an application for refugee protection. His claim was heard October 11, 2013. By a decision of November 6, 2013, the RPD found the Appellant to be neither a Convention refugee nor a person in need of protection. The RPD did not believe that the Appellant experienced a problem after the church service in XXXX of 2012, and it found that, even if the incident did occur, there is not a reasonable chance that the Appellant would be persecuted for his religion upon return to Honduras. The RPD also noted the pending expiry of his work permit and his testimony that he came to Canada to work because he did not have enough money in Honduras, and it concluded that he was seeking status here for economic reasons. [5] The Appellant submits that the RPD erred when it rejected internet articles supporting his claim, when it gave no weight to a letter from his pastor in Honduras and an unsigned declaration from his friend, and when it misapprehended his knowledge with respect to similar incidents affecting other evangelical Christians. ANALYSIS Standard of Review [6] The Appellant argues that the RPD erred in assessing evidence and credibility, and this appeal therefore raises questions of fact. [7] 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. [8] The Appellant points to Section 111(1) of IRPA, which allows the RAD to confirm the RPD's determination to set it aside and substitute its own determination, or to refer the matter back to the RPD for redetermination. In the Appellant's submission, the provisions of IRPA are more consistent with a true appeal than with an application for judicial review, where findings of fact attract a standard of reasonableness. As such, the Appellant argues that the standard of review in this appeal is one of correctness. [9] 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. [10] 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. [11] 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. [12] 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. [13] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [14] 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. [15] 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. [16] 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. [17] 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." [18] 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. [19] 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 opportunity to consider evidence first-hand. [20] 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...." [21] 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. [22] 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 [23] 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 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 The RPD's Findings [24] The Appellant argues that the RPD made a number of errors in rejecting his claim. [25] Internet articles: The Appellant submitted two articles to the RPD with respect to the situation of evangelical pastors in Honduras. The RPD gave the documents no weight. It found one article, entitled "Criminal Violence Unleashed in Honduras Now Where Evangelical Pastors Killed," to be unreliable, as the Appellant could not provide information about the source of the article, and since it was translated from Spanish to English via an internet translation application. The panel gave no weight to a second article, "Murder of pastors leaves evangelicals in Honduras feeling vulnerable" because only two of its nine pages were submitted to the RPD, because it reports that police are treating a pastor's murder as theft-related, and because it gives no source for its claim that six other pastors had been killed in Honduras in the months preceding the article. [26] The Appellant argues that, even though the first article was translated via the internet, it is intelligible, and there is no reason to believe such an article would include fabricated information about the murder of pastors. He also submits that the article appears to cite a local human rights group as the source of the claim that eight pastors have been killed in 2013. The Appellant also argues that the RPD erred by giving no weight to the second article, which came from ChristianityToday.com, as there is no reason to disbelieve the truth of the information reported in the article. [27] The RAD has reviewed both articles. The first article has been translated by an internet translation application, as is evidenced both in information at the top of the article and by the poor quality of the English text. It does not appear that the Spanish-language original was provided to the RPD. The Refugee Protection Division Rules require that a document used by a claimant before the RPD must be translated into English or French if it is not written in one of those languages, and a translator's declaration must be provided which includes the translator's name, the language translated, and a statement of accuracy.17 [28] The first article clearly does not comply with the Rules, and the RAD also notes that the translation is not of adequate quality. An important issue in the Appellant's refugee claim is whether the reported killings of pastors were religiously motivated; the article is rather unclear on this subject, stating that "there have been at least eight killings to religious leaders whose motives crimes have not always been clarified."18 In the RAD's view, this sentence illustrates the importance of proper translation as required by the RPD Rules. The RAD finds that it was reasonable for the RPD to give this article no weight. [29] The second article was published on-line by the Canadian religious magazine Christianity Today. Although the bottom of the document suggests that there are nine pages, only two were presented to the RPD. The RAD has reviewed the document, and it is clear that the entire article is contained in the first page and a half, and followed by advertising. While it would have been better for the Appellant to present the entire document to the RPD, even if the remaining pages contained only advertisements or reader comments, it was not reasonable for the RPD to cite this as a reason for assigning the document no probative value. The RPD did note, quite reasonably, that the article does not provide a source for its claim that six pastors had died in recent months. [30] The RPD reasonably rejected the first article. While the RAD has some concern with the RPD's rejection of the Christianity Today article, this document would have done little to assist the Appellant, even if given weight by the RPD. In fact, neither of the two articles does much to corroborate the Appellant's allegation that he is at risk of religious persecution. [31] The first article, despite its poor translation, makes clear enough that there is a very serious crime problem in Honduras, and pastors have been among those affected. It reports that one was caught in the crossfire between rival gangs; another was killed in an extortion attempt, and the motives behind the murder of another are unknown. The article concludes by reporting that Honduras is the most violent nation in the world and that the crime rate continues to rise. Even if the RPD had given this document full weight, it simply would not have corroborated the Appellant's claim that evangelical Christians are targeted in Honduras because of their religion. [32] Similarly, the Christianity Today article reports that one pastor was killed during an apparent robbery, though his fellow believers do not agree that theft was the motive. It does report that evangelical pastors have been threatened, and it mentions other murders without giving sources for the information. [33] Even if the two articles were given weight by the RPD, they could not have affected the outcome of the Appellant's claim. Taken at their very strongest, they suggest that some evangelical pastors in Honduras are at risk. The Appellant is not an evangelical pastor, but an agricultural worker. A more reasonable reading of the articles establishes that, while pastors have reported threats, the murder of pastors reflects a very serious general crime problem, not religious persecution. [34] Even though the RPD rejected the articles, it proceeded to compare their content to objective evidence contained in the National Documentation Package (NDP). It noted that evangelical Protestants form one of the principal religious groups in the country, that the Constitution provides and the government respects religious freedom, and that there were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.19 As the Christianity Today article referred to murders in 2011, the RPD reviewed objective evidence reporting on events in 2011, which stated that "there were no reports of abuses of religious freedom." The RPD apparently weighed this evidence against the Christianity Today article, which did not provide a source for its claim that pastors had been murdered, and preferred the objective evidence contained in the National Documentation Package. While the RPD's approach here might have been somewhat redundant-first giving the articles no weight, then comparing them to other evidence, and preferring that evidence-it was not unreasonable. [35] Pastor's letter: The Appellant provided the RPD with a letter from his pastor in Honduras, who wrote that the Appellant was "subject to religious persecution by a group of men."20 The RPD considered the Appellant's testimony that he did not tell the pastor about the incident when it happened, but advised him via telephone after his return to Canada. The panel also noted that the letter does not reveal how the pastor came to know of the incident, and it does not make mention of any other incidents of religious persecution in the Appellant's town or elsewhere in Honduras. [36] The Appellant argues to the RAD that, as the pastor had arrived at the church after the incident of XXXX XXXX, he could not be expected to have first-hand information about the problem. In the Appellant's submission, there would be no reason for the pastor to fabricate this information, and the pastor was able to corroborate that the Appellant did not attend church after the incident. Further, the RPD erred by impugning the letter for what it did not contain instead of considering what it did say. [37] The Federal Court has consistently warned that a negative inference should not be drawn based upon what a document does not say, even though what the document does say is consistent with the Appellant's evidence.21 As such, it was unreasonable for the RPD to impugn the letter for its omission of information about matters not directly related to the Appellant. However, there were nevertheless good reasons for the RPD to give the letter no weight. The author of the letter obtained the information from the Appellant, and only after the Appellant returned to Canada. The RPD considered and rejected the Appellant's allegation that he was targeted because of his religious beliefs. The pastor's letter is simply a recounting of what he heard from the Appellant or the Appellant's family. While the pastor may have personally observed that the Appellant did not attend church after the incident, this does not in itself establish that the Appellant had been subjected to religious persecution. As the RPD rejected the Appellant's first-hand account of the alleged religious persecution, it could reasonably reject the pastor's second-hand account of that same incident. [38] Friend's letter: The Appellant presented the RPD with a declaration from the friend who was with him at the time of the alleged incident.22 The declaration was in Spanish and had not been translated. Although the document was in the form of an affidavit, and was signed by a notary, it was not signed by the affiant, and the RPD therefore assigned it no probative value. [39] The Appellant submits to the RAD that the RPD was incorrect in giving no weight to this document, as it was intended to be only a draft, and a signed copy was to be forwarded to him. Perhaps, he argues, the lawyer who signed the document in Honduras only did so to indicate that the affiant had appeared before him and provided him with the information in the declaration. [40] It was reasonable for the RPD to give this document no weight. It appears in the form of a declaration to be notarized or witnessed, and yet the affiant's signature is absent. It would be sheer speculation on the part of the RPD to attempt to determine why the lawyer signed the document without the affiant having done so. The RAD notes that Section 110(4) of IRPA allows for the presentation of new evidence on appeal, including evidence not reasonably available to the Appellant at the time of the rejection of his claim. Despite this, the Appellant has not provided the RAD with a signed copy of this document. [41] Knowledge of similar incidents: The RPD considered the Appellant's Basis of Claim (BoC) narrative, which claimed that he and his friend fled from the group of men "because we were aware that there had been recent attacks on Christians in the town where we lived as they were leaving their respective churches. We also knew a number of pastors had been killed because of their religious beliefs."23 The Appellant argues that the RPD misapprehended his evidence with respect to the situation of similarly-situated individuals. After some questioning by the RPD, the Appellant had clarified that he did not know of such problems before his own incident; it was his friend who was aware of the situation of evangelical Christians in Honduras, and he explained this to the Appellant when they fled during the incident. [42] Even if the RPD erred here in finding a contradiction where there was none, this error was not determinative of the claim. The Appellant alleges that he and his friend had left an evening church service and walked for ten or fifteen minutes when they saw a group of men. The Appellant and his friend fled and were not harmed by the men.24 However, the Appellant concluded that this was an incident of religious persecution. He states in his affidavit to the RAD, "The [RPD] asked me about my knowledge of the details that the XXXX XXXX, 2012 incident occurred because Romulo and I are Christians. I responded that I knew of no other reasons except for religious reasons. I was also just leaving the church when the incident occurred."25 [43] In essence, the Appellant asked the RPD to find that an encounter with some men constituted religious persecution only because he knew of no other reasons. Although he claims to the RAD that he was "just leaving the church," his BoC states that he and his friend had walked for ten or fifteen minutes toward their homes, which certainly casts doubt on his assumption that the men identified him as coming from church. Although he apparently could think of no other motive than religious persecution, the RAD notes from the objective evidence that homicide is "epidemic" in Honduras,26 that gang activity is rampant and gang members engage in theft, extortion, and murder,27 and that organized criminal elements are significant perpetrators of violent crimes.28 In a country where, according to objective evidence, crime is rampant but religious persecution uncommon, the Appellant saw a menacing group of men one evening and somehow concluded that they intended to harm him because of his religion. [44] The RPD considered the Appellant's evidence as well as the objective evidence, and it rejected the Appellant's speculation that the incident was religiously motivated. Having considered the objective evidence about religious persecution in Honduras, the RPD concluded that there is not a reasonable chance that the Appellant would be persecuted for his religion, or prevented from practicing his religion, upon return to his country. The RAD agrees. [45] The RPD's determination of the Appellant's refugee claim falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. CONCLUSION [46] 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) "Edward Bosveld" Edward Bosveld January 22, 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 Refugee Protection Division Rules, Rule 32. 18 RPD's Record, p. 103, United Against Apostasy. 19 RPD's Reasons, para. 15. 20 RPD's Record, p. 101. 21 Arslan v. M.C.I., 2013 FC 252, at para. 88. 22 RPD's Record, p. 107, untranslated declaration of XXXX XXXX XXXX. 23 RPD's Reasons, para. 5. 24 RPD's Record, p. 18, Basis of Claim, p, 2. 25 Appellant's Record, p. 15, Affidavit, para. 12. 26 RPD's Record, National Documentation Package for Honduras, May 2013, Item 7.9. 27 Ibid., Item 7.8. 28 Ibid., Item 2.1, p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08535