MB4-04544

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 : MB4-04544 MB4-04545 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision June 9, 2015 Date de la décision Panel Roxanne Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Claude Whalen Conseil des personnes 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 and her husband, XXXX XXXX XXXX XXXX, both citizens of Haiti, are appealing against the Refugee Protection Division (RPD) decision rejecting their refugee protection claim. [2] The appellants have not presented any new evidence in support of their appeal. They are not requesting that a hearing be held before the Refugee Appeal Division (RAD); however, they are requesting that a hearing be held. DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that the appellants, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [4] The appeal is dismissed. FACTUAL BACKGROUND [5] The appellants owned several businesses in their country, many of which involved XXXX parts. Their last business shut down in 2013 because the female appellant was allegedly a victim of crime. [6] In December 2012, she was allegedly the victim of a break-and-enter at her home while she was there. Money was purportedly stolen, and the appellants' six-year-old daughter was apparently kidnapped and then released after a ransom was paid. Following that incident, the female appellant allegedly consulted a psychologist. [7] A complaint was allegedly filed with the police. [8] Until that time, the appellants were living in XXXX XXXX XXXX XXXX XXXX and their businesses were based there. They then allegedly moved an hour away to XXXX, in Port-au-Prince, and lived with the female appellant's brother, who is a XXXX XXXX. They apparently stayed there until they left. [9] In April 2013, the female appellant was allegedly working at her business when criminals came in and robbed her till. [10] In May 2013, the female appellant and other passengers on public transportation were allegedly robbed of their goods by criminals who boarded the vehicle. [11] In May 2014, the male appellant was allegedly told by the pastor of the church he attended that he should keep a close eye on his family. The pastor had supposedly heard a rumour that shady people wanted to do away with them because they were making people jealous with their enviable (financial) situation. RPD DECISION [12] The RPD rejected the refugee protection claim filed by the appellants. The RPD concluded that the incidents in December 2012, April 2013 and May 2013 were credible but not the rumour to the effect that someone wished to do away with the appellants out of jealousy. The RPD did not believe that rumour. [13] The RPD concluded that the appellants' fear, while personalized, was no different from the fear faced generally by other individuals in Haiti. According to the RPD, the robbery that took place on public transportation was a random incident and there was no link between their daughter's kidnapping and the till robbery. [14] The RPD concluded that the appellants were targeted by criminals because they were perceived to have financial means given that they were shopkeepers. It also concluded that the risk had not increased as the incidents evolved; it remained the same as that faced by the Haitian population in general. GROUNDS OF APPEAL [15] Before the RAD, the appellants submit that the RPD erroneously concluded that their fear was shared by the general population and that the risk to them was a generalized risk (despite the fact that it was considered to be personalized). [16] In the appellants' opinion, the risk to them increased so it was no longer a generalized risk. As well, the RPD erred in stating that part of the testimony was not credible and rejecting it, specifically the rumour to the effect that individuals wanted to do away with them. In the appellants' opinion, if the RPD had concluded that incident was credible, it would have also concluded that the risk to them had increased and that it was no longer the same as the risk facing the population in general, making them persons in need of protection within the meaning of paragraph 97(1)(a) of the IRPA. [17] In the appellants' opinion, the RPD committed an error. [18] The appellants also state that there is no internal flight alternative available because of the fact that the female appellant was traumatized by her child's kidnapping, and they state that the RPD did not consider that point. HEARING BEFORE THE RAD [19] In accordance with subsection 11(6) of the IRPA, the RAD cannot grant the appellants' request for a hearing because they did not present any new evidence. RAD'S ROLE [20] The RAD is a newly constituted appeal tribunal for RPD decisions. Its role remains to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied to appeals of RPD decisions. [21] To date, the decisions of the Federal Court have established that "Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, 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" (Alvarez).1 [22] In Alvarez,2 the Honourable Justice Shore expresses the opinion 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...." These appeals are not appeals de novo, and the RAD cannot hold a hearing unless new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA, which limits the scope of appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [23] In Eng,3 Justice Shore expresses the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact, because the RPD is better situated, having seen and heard the claimant. However, the RAD must conduct its own assessment of all 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" (Eng).4 [24] In Huruglica, Justice Phelan states the following: "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." [25] Thus, Huruglica recommends an approach where deference must be given to the RPD with regard to the assessment of credibility, while conducting an independent analysis of credibility that is not limited to "palpable and overriding error." With respect to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has equal or greater expertise to 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."5 [26] In Spasoja, rendered after Huruglica, the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the opinion that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's findings of credibility, and that, for questions of law, the standard of correctness applies. This conclusion is consistent with Alvarez and Eng. [27] In Alyafi,6 Justice Martineau is of the opinion that the two positions-the first explained 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'" (Alyafi, para. 16))-can both be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [28] It seems to me that the RAD must show deference to the RPD's credibility findings, as in Huruglica, given that the RPD has had the opportunity to see, hear and question the appellant. [29] In its analysis, the RAD will consider all of the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD's credibility findings. [30] The RAD will intervene only if it is of the opinion that the RPD's findings on questions of fact or 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. For errors of law, the RAD will apply the correctness standard of review (Spasoja).7 ANALYSIS [31] The RAD took into consideration the appellants' record and the RPD record, including all of the evidence, and the RPD hearing that took place on October 8, 2014. [32] Like the RPD, the RAD is of the opinion that the female appellant provided credible testimony about the events of December 2012, April 2013 and May 2013. [33] The RAD is of the opinion that the female appellant's testimony was credible, detailed and unexaggerated. The RAD noted that the female appellant's testimony-in particular about the incident on December 4, 2012, when her daughter was kidnapped-was serious but included details that were provided spontaneously and that rendered her story more genuine and realistic. [34] However, the RAD differs from the RPD with respect to the analysis of the final incident described by the appellants, namely the supposed rumours to the effect that people wanted to do away with them. They heard about those rumours from a pastor while they were gathered at church. [35] The RAD is of the opinion that the RPD's negative credibility finding is not sufficiently supported to result in a lack of credibility finding. [36] The RPD concluded that there was no credibility to this incident for the following two reasons. [37] The first reason is that the rumours were too vague. However, they are rumours, and no one knows their origin for certain-often it is hearsay-and rumours are, by their very nature, vague. In the circumstances, the RAD is of the opinion, as are the appellants, that it was difficult to state more than the female appellant had heard. The RAD notes as well that the appellants did not exaggerate this part of their testimony. [38] The RAD is of the opinion that the RPD erred in its assessment of the evidence on this first point. [39] The second reason is the fact that the appellants lived in XXXX for 16 months after their daughter was kidnapped and they did not have any specific problems. The RPD drew a negative inference with respect to the rumours that someone wanted to do away with the appellants. [40] The appellants are of the opinion that the RPD erred on this point because it did not take into consideration the fact that they were living in hiding in XXXX. [41] In light of the evidence, in the RAD's opinion, although it appears that the word [translation] "hiding" is not part of the appellants' testimony or the Basis of Claim Form (BOC Form), they had reduced their work activities considerably while living in XXXX, where they sought refuge. The female appellant also testified that after her daughter was kidnapped, she no longer felt safe in Haiti and had consulted a psychologist. [42] Given that these are rumours, the RAD is of the opinion that it is impossible to assume exactly how these rumours would affect the appellants. [43] Were the rumours unfounded? Who started them? When and where could someone have followed through on them? The appellants could not answer those questions. [44] The RAD is of the opinion that, in the circumstances, the RPD erred in drawing negative inferences about the existence of the rumours and in concluding that they never existed since nothing happened in XXXX and because the rumours were vague. [45] However, the RAD is of the opinion that the appellants did not demonstrate that, if they were to return to their country, they would be personally subjected to a risk under section 97 of the IRPA because of the problems that they have faced. The evidence does not demonstrate that there is a connection between the following three incidents: their daughter's kidnapping (December 4, 2012), the till robbery (April 1, 2013) and the robbery on public transportation (May 24, 2013). The appellants did not testify that they had recognized the criminals who committed these crimes, and they did not make any statements suggesting that the incidents were related. [46] In addition, the evidence does not demonstrate that the motivation behind each of the alleged incidents related to the refugee protection claim has any nexus to one of the five Convention grounds, as explained in section 96 of the IRPA. [47] In the RAD's opinion, the rumours were vague. They contained no specific information about who, where, when, why or how. [48] For these reasons, the RAD is of the opinion that the appellants did not demonstrate, on a balance of probabilities, that they would be at risk in accordance with section 97 of the IRPA if they were to return to their country of origin. REMEDY [49] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [50] The appeal is dismissed. Roxane Cyr Roxane Cyr June 9, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, paragraph 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, paragraph 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paragraph 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-04544 MB4-04545 2 RAD.25.02 (2014.09.11) Disponible en français