TB4-01848

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 : TB4-01848 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 12, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister & 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 FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Yemen, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal, nor is he requesting an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) refer the matter back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [3] The RPD heard the Appellant's claim jointly with that of his brother. He alleged that he was born in Kenya, but that he was a citizen of Somalia and an illegal alien in Kenya. He further alleged he is a member of a minority tribe and he feared larger tribes in Somalia and also religious extremists. [4] The Minister intervened on July 22, 2013, with evidence that the Appellant's brother and co-claimant had entered the United States using a Saudi Arabia nationality. The Minister further submitted that the Appellant relied on the same narrative and that both the Appellant and his brother have not been credible with respect to their nationality, work, and travel history. [5] As a result of the Minster's intervention, on August 9, 2013, the Appellant submitted a new Basis of Claim form (BOC) which alleged the following. [6] He made a false claim that he was a citizen of Somalia and a member of the Bajuni tribe. He is not Somali and he is a citizen of Yemen who was born in Saudi Arabia. He fears returning to Yemen because his family will be in danger because his father lost his property in Yemen to a powerful family, and as a result of an incident in which his father accidentally killed a member of this powerful family in an automobile accident. [7] His family is under threat of revenge as the sheikh of the tribe to which this powerful family belongs has demanded the death of the Appellant's father or of the Appellant or his brother. [8] He further indicated that his situation in Saudi Arabia was uncertain since Saudis are beginning to deport many foreign workers and, as he grew older, he would no longer be allowed to remain as a dependent of a foreign worker. He feared revealing his true identity in Canada. He came to Canada on a student visa. THE ISSUES [9] The issues identified by the Appellant are the following: * Whether the RPD erred in finding that the Appellant had failed to establish that he had a well-founded fear in Yemen; * Whether the RPD failed to consider the Appellant's claim for protection independent from his brother's claim; * Whether the RPD ignored or disregarded evidence that substantiated the feud in Yemen. [10] The RPD found the Appellant was not credible, particularly in relation to his initial allegations concerning his identity as a Somali and his attempt to evade Canadian authorities. The RAD notes that the RPD's credibility finding concerned both the Appellant and his brother. In this regard, the RPD noted the failure of the Appellant's brother to claim in the United States and also his brother's return to Saudi Arabia. ANALYSIS Standard of Review [11] The Appellant makes no submission in regard to the standard of review. The Appellant raises issues of fact in regard to the substance of the claim, and of law in regard to a consideration of the Appellant's claim separate from that of his brother. The RAD finds in regard to issues of fact that the standard of review is reasonableness, and in regard to issues of law the standard of review is correctness. [12] 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. [13] 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. [14] 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. [15] 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. [16] 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. [17] The nature of the question in issue: This appeal raises a question of law, in addition to questions of fact and mixed fact and law, and questions of law have in general been reviewed on a correctness standard in the appellate court context.6 In the judicial review context, following Dunsmuir, most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals.7 The RAD is unaware of any case law that has considered whether this approach is applicable to administrative appellate tribunals. Unlike in the judicial review context, however, the RAD and the RPD appear to have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is owed to the RPD by the RAD on questions of law. [18] This appeal raises questions of fact, and such questions, in both appellate court and judicial review contexts, have attracted a deferential standard of review.8 [19] 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. [20] 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. [21] 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. [22] 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." [23] 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. [24] 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. In the RAD's view, the RPD does not have the same advantage on questions of law. [25] 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...." [26] 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. Among 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.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. [27] For these reasons, the RAD concludes that, in considering this appeal in regard to questions of fact, 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.17 The appropriate standard of review in this appeal in regard to findings of fact and mixed law and fact is reasonableness. [28] The appeal also raises a question of law. It is an appropriate function for the RAD to ensure that the RPD is applying the law correctly. This approach promotes just decisions and avoids inconsistent application of the law.18 A correctness standard on questions of law ensures universality in the application of the law.19 The initial claim on the basis of a false national identity and a false basis for the claim [29] The Appellant was asked why he hid his nationality given he alleged he feared returning to Yemen in his new narrative. He responded he hid his identity "because it caused so many problems". He further testified he was scared and he feared he would be tracked down by tribal members if he revealed his true identity. [30] The RPD found the Appellant's behaviour was not consistent with his stated fears since he took the risk of posing as a citizen of another country and being found out by Canadian authorities. In regard to the Appellant's explanation, the RPD found it to be illogical as no evidence was submitted to support his alleged fear that tribal members were in Canada and would seek them out. The RPD found the Appellant's explanation for hiding his identity was unreasonable. [31] The Appellant submits that, in spite of his initial claim for protection as a Somali, the RPD must make an independent assessment of his evidence as pertained to the claim in Yemen. The Appellant further submits it was not enough to say he lied about a claim against Somalia and therefore he must be lying with respect to the claim against Yemen. The Appellant makes no further submission in regard to the RPD's finding concerning his initial fraudulent claim. [32] The RAD finds that it was open to the RPD to make a negative credibility finding concerning the Appellant's false claim against Somalia. The RAD further finds the RPD made an independent assessment of the Appellant's credibility in this regard and, as is considered below, in regard to the Appellant's evidence concerning the alleged threat in Yemen. The RAD finds the RPD's finding concerning the Appellant's false claim is reasonable. Whether the RPD erred in finding the Appellant failed to establish he had a well-founded fear in Yemen [33] The Appellant submits that the RPD made no specific credibility determinations with respect to his evidence concerning his fear to return to Yemen other than "casting negative aspersions" on corroborating documents disclosed by the Appellant. [34] The Appellant further submits that the RPD's sole basis for finding the Appellant's evidence not to be credible was his initial claim as a Somali. [35] In this regard the Appellant cites the following documents: (a) A document indicating the land had been given to the Appellant's uncle for his use (b) A sworn statement from the Appellant's uncle indicating that he had provided the Appellant's father with the control and management of this land; and further indicating that the land had been seized by the Bekeel tribe in an incident where the Appellant's father had an accident resulting in the death of a Bakeel tribe member and the subsequent request for retaliation against the Appellant's family (c) A letter from the XXXX XXXX XXXX indicating that the Appellant's father was under threat regarding a dispute over land in Yemen. [36] The RPD noted in regard to the uncle's letter that the uncle was the owner of the land. The RPD further noted that the letter from the XXXX XXXX XXXX refers to the Appellant's father as the owner of the land. The RPD found there were inconsistencies in the letters regarding the ownership of the land. The RPD further noted the letter from the XXXX XXXX XXXX made no mention of the type of confrontation that took place between the Appellant's father and the person who was allegedly killed; and that the letter merely refers to a "quarrel" that took place and the confiscation of the land by the sheikh. [37] The RPD placed little evidentiary weight on these documents as evidence that the Appellant faced a threat in Yemen. The RPD found the information in the documents did not wholly explain the risks the Appellant faces; and do not outweigh the credibility concerns noted earlier. [38] In regard to the Appellant's submission that the RPD made no specific credibility determination in respect to the Appellant's evidence as it pertained to his fear in Yemen, the RAD disagrees. The only corroboration in support of the Appellant's allegations is the two letters on which the Appellant submitted that the RPD cast "negative aspersions". [39] The RAD notes the RPD noted an inconsistency in the letters in that the uncle's letter indicated that he owned the land and the XXXX XXXX XXXX letter indicated that the land belonged to the Appellant's father. The RAD further notes that the Appellant indicated in his second narrative that his father lost "his" land in Yemen. [40] The RAD further notes, as indicated above, the RPD noted that there was no mention in the XXXX XXXX XXXX document of the nature of the confrontation experienced by the Appellant's father and merely referred to a "quarrel". [41] The Appellant submits that the RPD indicated that the documentary evidence merely referred to a quarrel that took place is a clear indication that it ignored or disregarded the sworn statement of the uncle. [42] The RAD notes, however, that the RPD clearly stated that it was the letter from the XXXX XXXX XXXX that "merely referred to a quarrel" and that this statement in addition to the question of the ownership of the land was the basis for the RPD's inconsistency finding. [43] The RAD notes as well that the XXXX XXXX XXXX letter indicated the information in its letter was based on the Appellant's father's statements and therefore not based on any independent knowledge. [44] The RAD further notes the XXXX XXXX XXXX letter indicates that the quarrel took place between the Appellant's father and a sheikh, and after the piece of land belonging to him was confiscated by the sheikh, he was threatened with physical extermination if he were to return to the province of Hadra Mout. The RAD notes as well that this letter does not mention a confrontation after the seizure of the land, and in addition it indicates that the Appellant's father was not to return to the province in which his land was located and makes no mention of a return to Yemen. [45] The RAD finds the RPD did make a credibility finding with respect to the Appellant's evidence supporting his allegation of fear to return to Yemen. The Appellant's specific evidence was the two letters, which were given little weight, and found to be insufficient to outweigh the RPD's earlier credibility findings. [46] In regard to the Appellant's submission that the RPD's only basis for finding the Appellant's evidence not to be credible was the Appellant's initial claim to be a Somali, the RAD disagrees. The RAD finds the RPD did consider the two letters and the inconsistency it noted in regard to the ownership of the land was material to the claim. [47] The RAD further finds the Appellant's initial claim based on fraudulent information regarding his national identity and the basis for the claim is significant and it was open to the RPD to find that the evidence in the letters was outweighed by the RPD's negative credibility finding concerning the initial fraudulent claim. [48] The RAD notes in this regard that the RPD found the Appellant's explanation concerning the initial fraudulent claim was not reasonable, and the RAD finds that the RPD's finding in this regard is reasonable as no evidence was disclosed regarding the presence of tribal members who would pursue the Appellant in Canada. [49] The RAD further finds, in the context of the RPD's analysis above and as well the RAD's further analysis of the XXXX XXXX XXXX letter above, that the RPD's inconsistency finding regarding the two letters and its further finding that the letters did not outweigh earlier credibility findings is reasonable. The Appellant's brother's failure to claim in the United States and his return to Saudi Arabia [50] The RPD found the failure of the Appellant's brother to make a claim in the United States where he was in residence for six months was a further indication of his lack of subjective fear. [51] The Appellant submits that the he never traveled to the United States and that the RPD's reasoning in this regard did not apply to his particular facts. The Appellant further submits that by importing his brother's failure to claim in the United States into his claim, the RPD failed to independently assess his claim. [52] The Appellant submits as well that the RPD's findings concerned both brothers and it was erroneous for the RPD to use failure to claim elsewhere to also cast doubt on the Appellant's fear. [53] The RAD finds that the RPD clearly stated that it was the Appellant's brother who was a resident in the United States for six months and it was only in regard to the Appellant's brother's actions that the RPD made a negative credibility finding. [54] The RAD notes, however, that the RPD did refer to the actions in Canada of both brothers and also "their failure to claim in the United States" when it made its concluding negative credibility finding concerning both brothers. [55] The RAD finds that the RPD should have dealt with the two claims separately in its concluding findings. The RAD further finds, however, as noted above, that the RPD clearly stated in its reasons that it was the Appellant's brother who resided in the United States and it was only in regard to the Appellant's brother that it made a negative credibility finding in this regard. [56] The Appellant cited the Federal Court's decision in Csonka,20 in which the Court stated that a decision to reject the claims of the joined claimants in this case for the same reasons was an error because there were distinctive elements in the claim of one of the joined claimants that were not noted and considered by the RPD. [57] The RAD notes that in the case at bar the RPD clearly noted the distinctive actions of the Appellant's brother in failing to make a claim in the United States. The RAD further notes the RPD included in its reasons a separate analysis and finding concerning only the Appellant's brother. The RAD finds there was sufficient evidence, in particular the fraudulent claim initially made by the Appellant and his brother, as well as findings regarding the two letters disclosed by the Appellant, on which the RPD based its determination in regard to the Appellant's claim. [58] The RAD finds that the RPD's determination that for reasons of credibility the Appellant's failed claim falls within a range of possible, acceptable outcomes which are defensible in respect to the facts and the law, and therefore is reasonable. DISPOSITION [59] 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. The appeal is dismissed. (signed) "Milton Israel" Milton Israel June 12, 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 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, Sections 96 and 97. 6 Khosa, para 90 7 Dunsmuir, paras 58-61 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 Khosa, para 90 19 Dunsmuir, para 50 20 Csonka v. MCI, 2001 FCT 915 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01848