MB5-05022

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. / No de dossier de la SAR : MB5-05022 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, Quebec Appel instruit à Date of decision April 21, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Sabine Venturelli 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 [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of XXXX XXXX XXXX XXXX XXXX XXXX, is appealing against the decision of the Refugee Protection Division (RPD) that rejected his refugee protection claim, determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant has submitted no new evidence on appeal under subsection 110(4) of the IRPA. He is not requesting a hearing before the Refugee Appeal Division (RAD).1 [3] The appellant is asking the RAD to set aside the determination of the RPD and substitute its own determination, or refer the matter to the RPD for re-determination by a differently constituted panel. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] In the Basis of Claim Form (BOC Form), the appellant alleges that in XXXX 2010, he repaired the XXXX of a person named XXXX XXXX, who did not pay for the work. [8] In XXXX 2010, the claimant ran into XXXX XXXX and asked him for the money owed. XXXX threatened to kill the claimant if he asked him for it again. An altercation resulted in which the claimant was injured with a knife and a machete. The claimant defended himself with tools found in his car, but XXXX XXXX XXXX XXXX XXXX. The claimant was treated at the XXXX clinic. He later filed a complaint against his attacker, but the case was closed because his attacker was killed by another individual to whom he owed money. [9] The claimant alleges that in XXXX 2011, XXXX's brothers went to his home. They threatened to kill him. They even went so far as to strike his older brother. The claimant tried to file a complaint, but the police stated they could do nothing for them. [10] The claimant alleges he was threatened many times by XXXX's brothers. Fearing for his life, he came to Canada on XXXX XXXX, 2010. He was admitted as a visitor until December 2011. He claimed refugee protection in December 2012. Impugned decision [11] On April 1, 2015, the RPD rejected the appellant's refugee protection claim in an oral decision, finding that the facts alleged had no nexus with any of the grounds under section 96 of the IRPA and that the state was not the agent of persecution within the meaning of paragraph 97(1)(b) of the IRPA. [12] The RPD stated that, based on the evidence submitted and the clear and detailed testimony about the incident in XXXX 2010, it did not doubt that the claimant was attacked on that date. However, it was of the opinion that the appellant's credibility was undermined with regard to the threats that he alleges he later received. According to the RPD, [translation] "several omissions, inconsistencies and contradictions" between the claimant's verbal and written statements undermined his credibility regarding the sequence of events. [13] First, the RPD noted that his attacker, XXXX XXXX, died before XXXX 2010. [14] With regard to the problems encountered because of the threats made by XXXX's brothers, the RPD states that, in the Personal Information Form (PIF), the claimant's statements about those men are very vague. Moreover, it notes that the claimant did not mention their names in the PIF, but at the hearing, he stated that he knew their nicknames. [15] According to the RPD, there is a significant discrepancy between the documents completed when he claimed refugee protection and his PIF with regard to when and how many times XXXX's brothers allegedly threatened to kill him. Furthermore, in the documents completed at the port of entry, the claimant writes that he fears XXXX's brothers "because they threatened to kill me and my family and they tried to kill me." Yet in the PIF, there is no mention of any attempt to kill him; only death threats are mentioned. [16] The RPD states that [translation] "to some extent," the statements made at the hearing are not very clear and are inconsistent with the testimony. More specifically, the RPD refers to the fact that the claimant mentioned that he filed a report with the police after the attack of XXXX 2010, but, concerning the other reports, it notes as follows: [translation] "You simply stated that you went to the police and that they could do nothing." The RPD notes that the claimant submitted no police report and that he stated that it was impossible to obtain copies. According to the RPD, the claimant mentioned only one police report and not the others. [17] The RPD is of the opinion that the delay in leaving his country (approximately six months after the first threats alleged) and the late refugee protection claim undermine his credibility. [18] The RPD finds the claimant's statement that he decided to leave his country in XXXX 2011 to be inconsistent, as his passport was issued in XXXX 2011. [19] Lastly, with regard to the prospective risk, the RPD considers that the claimant had no personal contact with XXXX's brothers. He never moved, he did not change jobs, and he waited some time before leaving his country. Also, XXXX's brothers did not contact his family members, which according to the RPD shows that the claimant is speculating with regard to their intentions and their ability to track him down today, four-and-a-half years after the attack.2 GROUNDS FOR APPEAL AND REMEDY SOUGHT The appellant's allegations [20] The appellant submits that the RAD must answer the following questions:3 [translation] ? Did the IRB base its decision on erroneous findings of fact and/or of law that it made in a perverse or capricious manner, without regard to the material before it, or in a manner inconsistent with the purpose, objectives and scheme of the IRPA? ? Did the IRB err in law in making a decision, whether or not the error appears on the face of the record? ? Did the IRB make an error that is reviewable on appeal in its assessment of the relevant and critical facts, such as the claimant's credibility and the risk to his life? [21] According to the appellant, the Immigration and Refugee Board of Canada (IRB) erred in mixed fact and law, given that the reasons for rejecting the refugee protection claim are unreasonable and not supported by the evidence, making them errors in law.4 More specifically, he submits that the factors considered by the RPD in finding a lack of credibility are not relevant. Furthermore, the decision rendered lacks consistency and intelligibility. According to him, [translation] "the RPD was expeditious in its analysis of the evidence and thus in finding that there is no risk of persecution if he returns to Lebanon"5 (emphasis added by the RAD, as it appears in the appellant's memorandum). [22] The appellant submits that the RPD erred in finding that his testimony was implausible.6 According to him, the RPD was overzealous in its analysis of the details. There are no contradictions between his testimony and his written statements. The RPD erred in drawing a negative inference from the fact that he indicated that it was impossible to obtain a copy of the complaint filed, when Tab 10.2 of the package indicates that "it is not standard procedure for victims to be given a copy of the police report."7 According to him, the RPD erred in insisting on evidence to corroborate the complaints filed. [23] The appellant argues that the RPD erred in criticizing his behaviour before he left the country. The RPD did not consider the short lapse of time between the threats from XXXX's brothers and his departure from the country, or the fact that he changed his comings and goings during that period. He argues that his delay in leaving his country was not excessive, given the circumstances. With regard to the delay in claiming refugee protection, the RPD did not take into account his explanation that he did not know what to do to claim protection in Canada. [24] The appellant submits that the RPD erred and failed to consider that his attackers attempted to locate him in XXXX 2014. The RPD also failed to consider the documentary evidence regarding state protection in XXXX XXXX XXXX XXXX XXXX XXXX. The appellant argues that the RPD did not analyze the objective risk he would face if he were to return. Lastly, he submits that the RPD erred in failing to correctly apply the internal flight alternative test8 (emphasis added by the RAD, as it appears in the appellant's memorandum). THE RAD'S ROLE AND FUNCTIONS [25] Citing Dunsmuir, the appellant submits that the IRB failed to consider all the evidence and that its decision lacks justification and intelligibility.9 [26] The question of the role of the RAD when reviewing RPD decisions has resulted in differing opinions at the Federal Court, hence Justice Phelan's certified question in Huruglica,10 which states the following: What is the scope of the Refugee Appeal Division's review when considering an appeal of a decision of the Refugee Protection Division? [27] On March 9, 2016, the Federal Court of Appeal issued a ruling in Huruglica11 regarding the applicable standard of review when the RAD reviews RPD decisions. With respect to the certified question, Justice Gauthier states: [24] With respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative to this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA. [28] On behalf of the Court of Appeal, Justice Gauthier reformulated the question as follows: [106] Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? [29] The Court of Appeal, interpreting the statutory provisions and pointing out in passing the reasons for the RAD's implementation, states: [44] I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers. [...] In fact, as will be explained, it is my view that the legislative intent is not ambiguous. [98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPE, be it on the law or the facts ". This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness. [30] Justice Gauthier describes in passing the similarities and the differences between the powers of the RPD and the RAD. She notes, among other things, that the RAD rarely holds hearings. Addressing the provisions set out in subsection 111(2) of the IRPA, the Court of Appeal points out that the RAD may refer a decision that is erroneous in fact, in law, or in mixed fact and in law. According to the Court: [61] The applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal .... [31] Moreover, the Court acknowledges the following: [70] That there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of credibility or weight to be given to the oral evidence it here. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [32] Having pointed out various scenarios, the Court declares the following: [74] The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case. [33] In response to the certified question reformulated by the Court of Appeal, the Honourable Justice Gauthier holds as follows: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility or oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [34] In Singh,12 a decision of the Court of Appeal rendered shortly thereafter, Justice De Montigny, on behalf of the Court, states that the RAD's mandate is broad. The RAD "may intervene to correct any error of fact, of law, or of mixed fact and law." Justice De Montigny also states the following: "The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected." ANALYSIS Merits of the appeal [35] The RPD does not question that the claimant was attacked on XXXX XXXX, 2010. However, it is of the opinion that he did not establish, on a balance of probabilities, the other alleged facts, or that he would be subjected to one of the risks set out in section 97 of the IRPA. In short, it does not believe what the appellant alleges happened to him afterward. [36] The RPD had the opportunity to see and hear the refugee protection claimant. The RAD will not hold a hearing and will not have that opportunity because no new evidence has been submitted. However, as Justice De Montigny indicates in Singh,13 the RAD has the mandate to correct any error of fact, of law, or of mixed fact and law. [37] Before starting my analysis of the merits of this appeal, I cannot ignore the arguments presented in the memorandum with regard to state protection in Lebanon and the alleged errors made by the RPD in relation to an internal flight alternative; the impugned decision makes no reference to these factors (emphasis added by the RAD). Omission of the names of XXXX's brothers in the BOC Form [38] The RPD drew a negative inference from the fact that the claimant did not write the names of XXXX's brothers in the BOC Form. Although the RPD can draw a negative inference from the omission in the BOC Form, it is worth considering the importance of the fact omitted. I am of the opinion that, in this case, the finding was made in a perverse manner. The information in the PIF and the IMM-5611 form completed when he claimed refugee protection makes it possible to clearly identify his attackers. At the hearing, the claimant indicated that he knew only their nicknames. I find that their names are not a determinative factor in the claim. Moreover, I would like to point out that question 43 of the IMM-5611 form states as follows: "Please keep you answer short. You will have the opportunity to explain all the facts related to your claim to the Immigration and Refugee Board."14 Inconsistency regarding when and how many times XXXX's brothers threatened to kill the claimant [39] The RPD considered the claimant's statements to be inconsistent with regard to when and how many times XXXX's brothers threatened to kill him. [40] In my view, considering all the evidence on record, his statements are indeed inconsistent. At the hearing, the claimant situated the first threats at the beginning of 2011. He added that he was threatened constantly and went so far as to specify that XXXX's brothers were threatening him every two weeks. In his BOC Form, after mentioning the attack in XXXX 2010 and indicating that XXXX had been killed, the claimant writes: "Meanwhile his brothers came to our home in XXXX 2011 and were threatening me saying they are going to kill me." [41] In my opinion his statements are inconsistent, even ambiguous, with regard to when the threats started and how many threats were made. This undermines his credibility. [42] The RPD also noted that in the documents completed when he claimed refugee protection, the claimant writes that he feared XXXX's brothers "because they threatened to kill me and my family and they tried to kill me." Yet in the PIF, there is no mention that they tried to kill him; he merely indicated that his life had been threatened. Confronted with this discrepancy, he stated that death threats are tantamount to attempted murder. With respect for the explanations offered, I agree with the RPD's point of view. An attempt to kill and a threat to kill are two completely different things. [43] The omission in the PIF of an attempt to kill him, combined with other inconsistencies in the evidence, leads me to conclude that the RPD was justified in thinking that what happened afterward probably never happened as alleged. Complaints to police [44] With regard to the number of complaints filed with the police, the RPD noted the following: [translation] At the hearing, you stated that you went to the police a number of times and filed reports each time. I also note that the statements you made in your PIF are not very clear and, to some extent, are inconsistent with your testimony at the hearing. You mentioned the report you filed after the incident in XXXX 2010, but with regard to the other reports that you allegedly made, you simply stated that you went to the police and they told you there was nothing they could do. At the hearing, you were very clear about the fact that they accepted reports. I note that you have submitted no police reports. You stated that it was impossible to obtain any copies. [45] The appellant argues that the RPD made an error. With respect, I am of the opinion that the RPD was justified in considering the discrepancies between his oral testimony and his written statements. At the hearing, the claimant stated that he went to police station five (5) times, adding that each time, the police officers took down a complaint. Yet, his PIF indicates only two visits to the police station-one in XXXX 2011 and the other when his brother was injured. Moreover, with regard to the circumstances of his brother's injury, I note that at the hearing he stated that the incident occurred in XXXX 2011 during a soccer game, while his PIF is rather ambiguous on the subject but implies that it occurred in XXXX 2011, when his alleged attackers paid him a visit at his home. [46] Again, I am of the opinion that the inconsistencies regarding the number of complaints cast serious doubt on the allegations. Delay in leaving the country and in claiming refugee protection [47] The appellant testified that he decided to leave his country in XXXX 2011 when his brother was injured. Yet, the RPD confronted him with the fact that his passport was issued in XXXX 2011. Faced with this discrepancy, he stated that after he had received a number of threats, his parents suggested that he leave the country, and he started making arrangements for his departure. The claimant alleges he had received death threats since the beginning of 2011, yet he did not leave his country until XXXX 2011. Also, he arrived in Canada in XXXX 2011, but he did not claim refugee protection until December 2012. [48] In Huerta, the Federal Court states as follows: The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant elements which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. [49] In Cruz, the Court states the following: "Delay is an important factor in the assessment of a refugee claim because it addresses the existence of a subjective fear of persecution [which] is an essential element of a convention refugee claim. A refugee claim should not be looked at simply as one of many choices as to how best to seek status in Canada." [50] Thus, while the delay in claiming refugee protection is not in itself a determinative factor of the validity of a claim for refugee protection, it does affect the credibility of his allegations that his life is at risk (emphasis by the RAD). [51] While one contradiction on its own has minimal significance, the accumulation of a number of inconsistencies can render the testimony not credible, as in this case. I am of the opinion that the RPD did not err in considering those factors. Prospective risk [52] When assessing the prospective risk, the RPD considered that the claimant continued to work and reside at the same place until he left the country. [53] The appellant submits that the RPD did not take into account that his attackers were looking for him in XXXX 2014. With respect, I do not agree with this point of view. In its decision, the RPD refers specifically to that date. As for me, I noted that the claimant stated, without specifying when exactly he was last sought, that they were looking for him before his mother died in XXXX 2014. In my opinion, this is not an indication that the last time they were looking for him was in XXXX 2014. [54] Lastly, I note that in Ramirez Perez,15 the Federal Court acknowledges that the IRB can take into account the claimant's behaviour in response to the alleged risk. If he seriously feared he would be persecuted or killed, he would have moved or changed jobs at the earliest opportunity. The RPD was therefore justified in considering this evidence. [55] For these reasons, having reviewed all the evidence and having listened to the recording of the hearing, I am of the opinion that the RPD's decision is justified by the evidence on record and that it takes into account the applicable jurisprudential tests. CONCLUSION [56] Consequently, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX has failed to establish that he is a "Convention refugee" or that it is likely that his life would be personally subjected to one of the risks set out in section 97 of the IRPA if he were to return to his country. [57] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 21, 2016 Date IRB translation Original language: French 1 The appellant's memorandum, page 10. 2 Refugee Protection Division (RPD) record, page 8. 3 The appellant's memorandum, page 14. 4 The appellant's memorandum, page 15. 5 The appellant's memorandum, page 17. 6 The appellant's memorandum, page 17. 7 The appellant's memorandum, page 20. 8 The appellant's memorandum, page 33. 9 The appellant's memorandum, page 32. 10 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 11 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 12 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 13 Idem. 14 RPD record, page 50. 15 Ramirez Perez v. (Minister of Citizenship and Immigration), 2011 FC 567. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03511 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-05022 12 RAD.25.02 (7 février 2014) Available in English