MB4-04068

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 the RAD : MB4-04068 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, QC Appel instruit à Date of decision May 21, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Cuba, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appellant did not present new evidence in support of his appeal and did not request a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely that the appellant, XXXX XXXX XXXX XXXX, is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [4] The appeal is dismissed. FACTUAL BACKGROUND [5] The appellant, who is asthmatic, fears being forced to join the Cuban army and dying because of his medical condition. [6] In 2002, he claims to have obtained indeterminate medical leave for his asthma problems and to have then joined the army reserve. Every year or every other year since 2003, the army has come looking for him at his home, with an order to report in hand, in an attempt to recruit him. Each time the appellant managed to avoid being recruited by the army. [7] In January 2014, he arrived in Canada with a Canadian visa. After learning that the army was now recruiting him every month by coming to his home with an order to report, he claimed refugee protection in Canada on April 1, 2014. THE RPD DECISION [8] The RPD did not believe the appellant's story. [9] The RPD did not believe that the army had ordered him to report since the end of his service in January 2003. [10] Nor did the RPD believe that his parents had lied to protect the appellant, who always managed to evade these orders to report, or that the appellant was a conscientious objector, having always shown his disagreement with the army, and that he was perceived by them as having counter-revolutionary opinions. GROUNDS OF APPEAL [11] Before the RAD, the appellant submits that the RPD erred by substituting its own judgment for the appellant's testimony in terms of the finding of implausibility regarding the parents lying to the army and regarding the unlikelihood that the appellant, through all the years when attempts were being made to recruit him, had never suffered consequences at the hands of the state for his non-compliance. [12] The appellant further submits that the RPD erred in finding that the appellant lacked credibility in light of his inability to submit the orders to report that the army left at his home each time they came to recruit him. [13] It is the appellant's opinion that the RPD failed to consider his sworn testimony, that the inferences of non-credibility it drew were not reasonable and that the RPD was trying to find a reason to undermine his credibility. [14] According to the appellant, he discharged his burden of establishing that he would be persecuted if he returned to Cuba. THE ROLE OF THE RAD [15] The RAD is a newly constituted tribunal that hears appeals against RPD decisions. Its role has not yet been clarified. The IRPA does not specify the standard of review and intervention applicable in appeals against RPD decisions. [16] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" 1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [17] The Honourable Justice Shore in Alvarez 2 states that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner." Appeals are not de novo, and the RAD can hold a hearing only if new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA; this limits the scope of the appeal that the IRPA confers on the RAD. Furthermore, it does not involve judicial review with the sole purpose being to determine whether the RPD's decision was reasonable. [18] In Eng,3 Justice Shore states that although the RAD owes deference to the RPD, the tribunal of first instance, with respect to findings of fact, as it is better situated, having seen and heard the claimant, the RAD must nonetheless perform is own assessment of the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."4 [19] In addition, the IRPA provides in subsection 111(1) that the RAD may substitute its own determination for that of the RPD. In doing so, the RAD must conduct its own analysis, independently of the appeal record and cannot simply intervene only when there is a "palpable and overriding error." The reasonableness standard of review that the RAD initially applied has been unequivocally rejected by the Court (see Alvarez, Eng and Spasoja).5 [20] In Huruglica, Justice Phelan states, "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion.6 [21] Huruglica herefore advocates an approach where deference must be given to the RPD with respect to the assessment of credibility, while performing an independent analysis of it, not limited to "palpable and overriding error." With respect to the analysis of documentary evidence, the Honourable Justice Phelan expresses that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment." 7 [22] In Spasoja,8 which came after Huruglica, the Honourable Justice Roy gives an opinion that differs from the one expressed by the Honourable Justice Phelan in Huruglica. According to him, the RAD's standard of review must be that of "palpable and overriding error" with respect to questions of fact, the RAD should defer to the RPD's credibility findings and, with respect to questions of law, the standard that should apply is that of correctness. This conclusion is in line with Alvarez and Eng. [23] At paragraph 46 of Alyaffi,9 Justice Martineau states that both positions, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal") (Alyaffi, paragraph 16), can be applied as long as the Federal Court of Appeal or the Supreme Court of Canada have not ruled definitively on the scope of the appeal. [24] It seems to me that the RAD must defer to the RPD's credibility findings in accordance with Huruglica, considering that the RPD had the advantage of seeing, questioning and hearing the appellant. [25] In its analysis, the RAD will consider all the evidence, in particular the appellant's testimony, and will perform its own analysis while deferring to the RPD on credibility findings. [26] The RAD will intervene only if it concludes that the RPD's findings on questions of fact or questions of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the standard of review that the RAD will apply is that of correctness (Spasoja). ANALYSIS [27] The RPD's decision focuses on the appellant's lack of credibility. The RAD considered all of the evidence, in particular the hearing before the RPD that was held on June 2, 2014. [28] The RAD is in agreement with the RPD's general argument that the appellant's account contains major inconsistencies with respect to elements that are at the heart of his fear. The RAD adds that these inconsistencies are difficult to reconcile with the country conditions found in Cuba (see the appellant's record, pages 126 to 129), given the context of dictatorship and repression that prevails there and the tight control that the Cuban authorities exercise over the population. [29] Essentially, the finding that the appellant is not credible is based on the fact that the RPD did not believe that he was ordered to report for duty in the Cuban army. [30] The appellant submits that after beginning his military service in August 2002, service that should normally take two years, he obtained leave for an indeterminate period in January 2003, in connection with severe health problems brought on by asthma. This would mean that he had not completed his service; as a result, the army has been trying to recruit him again since his leave and is requiring that he rejoin the army's ranks. [31] To that end, members of the army, with a written order to appear in hand, have allegedly come to his home looking for him every year or every other year since January 2003, and when they do not find him, they leave the order with either the appellant's parents or his aunt. The appellant's parents allegedly lied to the army, telling them that they did not know where their son was. He always managed to elude the army's grasp. We count a minimum of nine visits by the army and nine written orders to appear. During these years of dodging the army, the appellant was apparently able to travel abroad, including trips to Canada in 2010, 2011, 2013 and 2014, and to Mexico in 2013. [32] The RPD did not believe the appellant's story, in particular that he was ordered to appear and that he was sought by the army from 2003 to 2014 in an effort to get him to rejoin the army and continue his military service. The RAD finds that, in light of the evidence, the RPD rendered the correct decision. Taking all of this into account, it appears that the appellant's situation as described by him is totally incompatible and inconsistent with the country conditions as described in all of the documentary evidence. Cuba is a dictatorship where repression and control of citizens are ever-present (see appellant's record, pages 106 to 115). [33] The RPD determined that the appellant had not been ordered to resume his military service for the following reasons. [34] It is implausible that in all his years in Cuba, the appellant was never bothered in any way or had to suffer the consequences of this refusal to report to the army despite having been duly ordered to report. In support of this finding, the RPD cited a provision of the Cuban penal code concerning the penal consequences of non-compliance (see appellant's record pages 85 to 91). The provision states that refusing to meet one's military service requirements can leave one liable to a prison sentence of three months to one year. [35] The RAD concurs with this analysis and finds it completely implausible that in a country such as Cuba, a dictatorship with control over all spheres of society and citizens, the appellant has never had to suffer the consequences of his refusal, could travel as he wished without any restriction and could keep a good job as a XXXX (and the travel privileges that went with it), all the while the army was looking for him and ordering him to appear, an order that he disobeyed. The appellant was a professional XXXX-a XXXX-who travelled to Canada more than once to take part in XXXX events. He also travelled to Mexico. [36] This is simply not plausible, in light of the conditions in this country. [37] What is more, the appellant testified that throughout the time he performed his military service, he had always expressed his opinions against the army. So much so that, according to his testimony, he was perceived as a rebel. [38] The RPD asked him why he had not written this information in his BOC Form. The appellant replied [translation] "Oh, sorry." The RPD did not believe this new information, since the appellant had not written it in his BOC Form and since his military records indicate instead that [translation] "the comrade had a good attitude." [39] In the RAD's opinion, the RPD was correct in finding that this was not credible. The RAD adds the following with respect to the implausibility of the appellant's account: In the RAD's opinion, it is entirely inconsistent that the appellant was considered a rebel by the army in 2002 and 2003, but at the same time was able to travel with the approval of the state, which gave him a passport and exit visa over the years, and was never arrested or prosecuted by the army, which was looking for him. [40] The fact that the appellant's boss had connections with high-placed Cuban authorities, according to the appellant, is not, in the RAD's view, a plausible explanation as to why the appellant was never bothered. For one thing, had this information been true, the RAD is of the opinion that he would have written it in his BOC Form, which he did not (he replied to the RPD that this was a detail). Furthermore, had the appellant-living under a dictatorship-really been perceived as a rebel, he would have, according to the documentation, been seen as having antisocial behaviour and fallen prey to the repressive ways of the regime, which, by all logic, would have prevented him from working as a XXXX, a job that took him overseas, and he would not have had access to exit visas from the Cuban authorities10 (see appellant's record, page 107, Amnesty International, Routine Repression, and Freedom in the World 2014, page 108, Tab 2.6, Political Pluralism and Participation). [41] Thus, the appellant's arguments that the RPD [translation] "simply substituted its own personal opinion of what is and is not logical in Cuba for the sworn testimony of the claimant (see memorandum record, page 21)" cannot be accepted, since they are not based, in the RAD's opinion, on the RPD's personal opinion but rather on the documentary evidence on country conditions. And on a balance of probabilities, the appellant did not succeed in establishing the facts. The RPD did not err. [42] The RPD did not believe that the appellant was ordered to report by the Cuban army. In its opinion, had that been the case, the appellant would have been able to present these notices to report, which he did not despite an extension granted by the RPD after the hearing. The appellant never explained why, instead of sending the notices to appear as he had been required to by the RPD, he sent the RPD a document entitled [translation] "certificate of military registry" dated June 2014 (see appellant's record, page 154), which does not indicate that the appellant was being sought by the army. Rather, this document indicates, as pointed out by the RPD, that he [translation] "performed his active military service." [43] The appellant, through his lawyer, submits in his memorandum before the RAD that his parents did not keep these pieces of evidence: [translation] "There was no reason to keep these incriminating documents at his home" (see appellant's record page 22) and "The claimant was unable to find the documents because from Canada, he could only depend on his parents to send such documents. Why would his parents have even kept them? That could only cause them more problems" (see appellant's record, page 23). [44] The RAD cannot accept these explanations. Nothing in the evidence on the record, be it during the appellant's testimony, in his BOC Form or in any other document, all that emerges is that the appellant's parents allegedly disposed of or threw out these documents. This is speculative on the lawyer's part, and the RAD cannot accept these arguments, simply because the facts that they underlie are not in evidence. [45] What the RAD accepts is that the appellant did not see fit to ask his family for these documents. No other explanation was subsequently provided as to why he could not have some notices to appear, at the very least those produced since he claimed refugee protection in Canada on April 1, 2014, given that the army had visited his family since then, in April and May 2014, when the appellant was in contact with his parents. [46] The appellant stated that he had not thought that these documents could constitute good evidence in support of his refugee protection claim. The RPD rejected these explanations. [47] In the RAD's opinion, the RPD did not err by drawing a negative inference as to the absence of any documentary evidence presented by the appellant in connection with his notices from the army. [48] In his memorandum, the appellant maintains that the RPD substituted its own judgment for the appellant's testimony with respect to the fact that it found it implausible that his parents lied to protect the appellant from being recruited by the army, because Cuba is a dictatorship. [49] The RAD agrees with the appellant on this point. Who can judge and put themselves in the place of parents prepared to protect their children, even in the most totalitarian regimes. [50] But even if that is an error, it cannot undo the entire analysis concerning credibility, where the factors set out above are such that the appellant, on a balance of probabilities, is not credible. [51] Since the negative inferences on credibility drawn by the RPD are, in the RAD's opinion, fundamental to and determinative of the appellant's story, the RAD finds that the RPD rendered the right decision and did not err. REMEDY [52] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [53] The appeal is dismissed. Roxane Cyr Roxane Cyr May 21, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 2 Idem, paragraph 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, paragraph 33. 5 Supra, footnote 6, and; Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 6 Supra, footnote 5, paragraph 55. 7 Supra, footnote 5, paragraph 38. 8 Supra, footnote 7, Spasoja. 9 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 10 See appellant's record, page 107, Amnesty International, Routine Repression, and Freedom in the World 2014, page 108, Tab 2.6, Political Pluralism and Participation). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de the RAD : MB4-04068 11 RAD.25.02 (2014.09.11) Disponible en français