VB4-01910

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 : VB4-01910 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision January 6, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) N/A Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Garett Toporowski Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons and decision in the appeal of XXXX XXXX XXXX XXXX (the "appellant") from a decision of the Refugee Protection Division (the "RPD"). [2] The claim was heard by the RPD on May 20, 2014 and dismissed following the hearing. Written reasons were issued on June 10, 2014. The appellant was not represented by counsel at the RPD hearing or in this appeal. The Minister intervened in the RPD process and was represented at the hearing. The Minister filed a Notice of Intervention in this appeal on August 29, 2014 but did not provide further evidence or arguments for the appeal, which was perfected on August 21, 2014. ISSUE [3] The RPD member confirmed the appellant's identity, found a nexus between the allegations and the Convention1 ground of political opinion, and assessed the claim pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act ("IRPA").2 [4] The RPD concluded that the appellant was not a Convention refugee or a person in need of protection. The determinative issues for the RPD member were credibility and subjective fear. [5] The appellant appealed to the Refugee Appeal Division (the "RAD") pursuant to subsection 110(1) of IRPA. [6] The matter to be decided is whether the RPD determination should be confirmed or set aside. If set aside, the RAD may substitute its own determination on the merits, or refer the matter back to the RPD for re-determination. DECISION [7] For reasons set out below, the appeal is allowed. The decision of the RPD is set aside and the matter referred back to the RPD for re-determination. ANALYSIS Background [8] The appellant was born and lived in Venezuela until August 2006 when he was recruited by a university in the USA for XXXX XXXX scholarship XXXX XXXX XXXX. He married a US citizen and lived in the USA from 2006 until 2009 as a student. He and his wife both came to Canada, where the appellant had a study permit that was valid until December 2013. On March 15, 2014 immigration officials interviewed the appellant at his home in Canada. The appellant was arrested and detained on March 17, 2014 and completed an application for refugee protection the following day, March 18, 2014. A March 17, 2014 Declaration by an interviewing officer indicates that the following information was provided by the appellant at his interview:3 * he readily admitted that he had no legal status in Canada since December 2013, that he did not apply for an extension, and that he was working; * he had not been a student for two years and was concentrating on his training for XXXX XXXX XXXX XXXX XXXX XXXX activities; * he had a break-up with his wife, who was in Canada on a student visa and had reported him to immigration authorities; and * he feared being sent back to Venezuela but had not filed a refugee claim because he was afraid that as a citizen of Venezuela he might not qualify. [9] The appellant currently has a girlfriend in Canada and a cousin in Québec. The appellant's divorced parents and two sisters live in Venezuela. Discussion [10] The appellant's claim is for fear of harm from the general civil and political chaos and violence in Venezuela and specific harm and repercussions because his father is a XXXX XXXX XXXX and XXXX XXXX in Venezuela. [11] In order to be successful in the refugee claim, the appellant had to show that there was a serious possibility of persecution or that he would, on a balance of probabilities, personally be subjected to danger of torture or face a risk to his life or of cruel and unusual treatment or punishment if he returned to Venezuela. [12] The unrepresented appellant did not make submissions regarding the scope of the RAD's authority and jurisdiction or specifically request an oral hearing but that is an implied request that accompanies the new evidence and arguments submitted to the RAD. [13] In assessing the merits of this appeal I have taken into consideration the applicable law and jurisprudence, submissions to the RAD, and the documentary evidence including the RPD Record. The RAD has authority to accept new evidence and to conduct an oral hearing within limits imposed by the legislation, and also has authority to refer a matter back to the RPD for re-determination. [14] In accordance with the authority of the RAD outlined below and for reasons that follow, the RPD decision is set aside and the claim referred back to the RPD for re-determination. [15] The RAD became operational relatively recently; thus, jurisprudence on the role of the RAD and its processes, including acceptance of new evidence, is in an evolving state and now includes numerous Federal Court decisions that speak to those matters. I have taken these cases into consideration and arrive at the following analysis concerning processes and remedies available in this appeal. [16] I agree with the view expressed in the case of Huruglica,4 where Federal Court Justice Phelan confirmed the RAD's role as an appellate rather than review body and rejected the position that the RAD should only interfere if the RPD's determination is unreasonable. Justice Phelan described the RAD as a hybrid form of appeal on the merits, with allowance to recognize and respect the conclusion of the RPD if the RPD enjoys a particular advantage in reaching a conclusion. That may occur, for example, because in most cases the RAD does not conduct an in-person hearing.5 However, the legislation instructs the RAD to arrive at its own conclusions regarding the claim. Although somewhat clouded by details that limit and define access, presentation of evidence, and procedure, the essential functions of the RAD are discernible upon reviewing sections 110, 111 and other applicable portions of IRPA for ordinary meaning and in harmony with the scheme of the legislation. [17] The role of the RAD is similar in many ways to that of the Immigration Appeal Division (the "IAD"), the other and older appellate division of the Immigration and Refugee Board (the "IRB"). Both the RAD and the IAD may hear appeals from certain decisions specified by the legislation.6 The IAD is instructed to allow or dismiss an appeal7 and the RAD must confirm or set aside the determination of the RPD,8 tasks that are essentially similar. Appeals to both the RAD and the IAD are grounded on errors in law or fact or mixed law and fact, or if a principle of natural justice has not been observed.9 Both the IAD and the RPD may, upon allowing the appeal or setting aside the RPD determination, substitute a determination that, in its opinion, should have been made and each may refer the matter to the appropriate decision-maker for reconsideration.10 [18] Neither the RAD nor the IAD are bound by any legal or technical rules of evidence and each may accept evidence that is considered credible or trustworthy in the circumstances.11 Although the RAD is not vested with the powers of a superior court as ascribed to the IAD,12 it is authorized to take judicial notice of facts and general notice of facts and information or opinion within its specialized knowledge.13 Like all other divisions of the IRB including the IAD, the RAD has authority to hear and determine all questions of law and fact, including questions of jurisdiction, and is to deal with all proceedings as informally and quickly as circumstances and considerations of fairness and natural justice permit. 14 The RAD has the same power as the Immigration Division (the "ID") and the RPD to do all things necessary to provide a full and proper hearing, including summoning witnesses to testify or to produce documents.15 [19] The most significant differences between the IAD and the RAD are in process and admissibility of evidence. It is evident that the RAD is expected, for the most part, to make decisions without an in-person hearing and based on the evidence of the RPD record of proceedings.16 In contrast, the IAD routinely conducts adversarial in-person hearings, where the Minister is a party to the proceeding, evidence is adduced through documents and examination and cross-examination of witnesses.17 The de novo gathering of evidence by the IAD is distinguishable from the RAD approach of relying on the Record of the RPD proceedings with limited new evidence and oral hearings and selective intervention by the Minister during appeals. As indicated in Huruglica, these limitations may necessarily result in deference where the RPD member had an advantaged position to make certain findings. However, that limitation does not alter the appellate function of the RAD, which is affirmed by broad remedial powers to make its own determination on the merits, enhanced by authority to accept new evidence through documents and in-person hearings in prescribed circumstances,18 and further affirmed by the requirement to accept and consider the relatively unlimited evidence that may be presented by the Minister in any appeal19 and to issue binding decisions through multi-member panels.20 [20] In presenting evidence to administrative tribunals, there is always an implicit requirement of relevance but any further distinction between the test for receipt of evidence and the weight to be afforded during decision-making, i.e. its materiality, is relatively indistinct. That is consistent with the fact that legal and technical rules of evidence do not generally apply in quasi-judicial settings, a principle codified for RAD in section 171 of IRPA,21 which further blurs the distinction between admissibility of evidence and its weight by attaching the test for credibility and trustworthiness to both. Thus, the tests to determine whether to accept the new evidence presented by the appellant in this case are: basic relevance to the claim; that the evidence is credible and trustworthy; and that the evidence meets a test for newness set out in subsection 110(4). Evidence is new and admissible if it (a) arose after the rejection of the claim, or (b) existed before the rejection but was not reasonably available or could not reasonably have been presented at the time of the rejection.22 [21] Evidence in the Record that was before the RPD in this case included proof of the appellant's father's politically XXXX XXXX XXXX activities.23 There are untranslated newspaper articles relating to the general media and political repression and events about his father's involvement as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. There was a translated letter from the appellant's mother dated April 20, 2014 confirming the appellant's background and the family's current concerns about harassment, threats and violence while living in Venezuela before leaving in 2006, the ongoing political violence and problems in Venezuela, and difficulties faced by the family generally including poverty, crime, and danger in day-to-day life as well as lack protection from police or other authorities.24 A letter from a friend of the appellant indicates the appellant's good character and quality of friendship;25 and there are documents concerning country conditions in Venezuela.26 [22] According to the officer who received and helpfully copied and distributed the appellant's incorrectly submitted Disclosure for the RPD hearing, a flash drive and CD-ROM were not accepted by or included in the Record because they did not conform to the rules for Disclosure. There were concerns expressed during the RPD hearing because many documents were not translated as required and the interpreter provided some translation assistance during the hearing. The appellant has included the flash drive and CD-ROM in his disclosure for this appeal, along with further documentary evidence including some of the same documents as for the RPD hearing but with translations. [23] The documentary evidence and CD-ROM and flash drive resubmitted for this appeal are not relevant because, as indicated in the analysis below, the circumstances addressed in that material are not in dispute. The RPD member accepted, and I agree, that the appellant's evidence about past and current events in Venezuela including media and political repression and specific events related to his family was credible and corroborated by the available documentation. [24] The appellant's written submissions27 also include a mix of information and explanation that is new or supplementary to what was provided in his Basis of Claim (BOC) and at the RPD hearing, or that responds directly to findings in the RPD decision. Some of that information may be relevant because it provides further explanation related to the basis of claim and adds to the material areas of evidence canvassed by the member during the RPD hearing. It also includes un-sworn testimony that has not been examined. However, the evidence is not relevant to the determination of this appeal because it turns on finding that there was an error in the RPD decision that results in the matter being referred back to the RPD for re-determination. Further evidence may be presented or considered when the matter is re-heard. [25] The available evidence confirms that in Venezuela there is a risk of harm upon political activism or protest against the repressive government. That was described in the country conditions documents, which corroborated the examples provided by the appellant concerning his own and his family members' experiences over the years. Thus, there is a nexus to the Convention ground of political opinion. [26] In his BOC28 the appellant indicated that he left Venezuela at age 17 in 2006 on XXXX XXXX XXXX XXXX XXXX scholarship. He recounted how three XXXX XXXX XXXX XXXX XXXX XXXX were killed and refers to his personal fear and the general chaos in Venezuela as a motivation for leaving. He testified that his father was kidnapped in 2011 and again in 2012 and that he fears returning to Venezuela because of repercussions that may result from his father's political XXXX. The appellant explained that his father, a XXXX XXXX XXXX XXXX, has been involved in XXXX XXXX XXXX XXXX XXXX XXXX against the government, and submitted evidence of media coverage regarding his father as XXXX XXXX XXXX in association with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [27] The appellant testified that he was afraid for his life as a teenager in Venezuela and gave examples of being threatened and extorted for money at the age of 14 because of perceptions of wealth associated with being XXXX XXXX XXXX XXXX XXXX and witnessing 3 of his XXXX XXXX get killed. He testified that his fear continues because of examples of how his father and a sister are personally affected by that prevailing climate of political risk. [28] The appellant was a credible witness at the RPD hearing and the RPD member accepted that the events recounted by the appellant had happened or were occurring. The appellant's evidence was forthright and spontaneous, relatively consistent with his BOC, and has not changed throughout the process. The RPD member did not disbelieve the appellant's testimony about what happened before he left Venezuela in 2006 or his descriptions of general crime in Venezuela. The fact of repressed political expression in Venezuela is consistent with and reflected in the available country condition documents, which the RPD member canvassed and quoted from in his decision.29 The RPD member accepted as true that the appellant's father is a XXXX XXXX XXXX XXXX30 and that his sister was exposed to incidents of criminal elements at her father's XXXX when people with guns came to the XXXX to threaten the appellant's father and other XXXX XXXX.31 [29] What is confusing, inconsistent and an error in the RPD determination is that, notwithstanding that the appellant's evidence in all material areas was credible, the RPD member drew negative inferences about the appellant's credibility for these reasons: perceived delay in making a refugee claim; that the appellant did not take the refugee application seriously enough by, for example, seeking legal assistance; and because of failure to obtain and provide a letter from his father. [30] It is inherently contradictory to draw a negative inference about the appellant's credibility when his evidence was found to be credible. In some cases, evidence of a delay in seeking refugee protection, or a lack of serious effort or failure to obtain relevant documents to support the claim may relate to a claimant's credibility. However, in this case, it was an error to characterize these concerns as a basis to draw a negative credibility inference. The essential finding of the RPD member was, in effect, that there was a lack of subjective fear. However, even if the mischaracterization of that finding as negative credibility is overlooked, a finding that there is not subjective fear is also not established by or consistent with the available evidence. [31] The RPD member concluded that the appellant's failure to "regularize his status" in Canada or seek protection in Canada until March 2014 was purely reactive to the deportation process32 and by implication suggests that this indicates a lack of subjective fear. I disagree. This appellant reasonably explained why he did not pursue a refugee claim at an earlier time. The appellant's credible evidence was that he left Venezuela with the university XXXX scholarship at age 17 in 2006 and planned never to return33 because of fear based on his personal experiences as a youth. He was able to maintain student status for over 8 years in the USA and later in Canada. He testified that after marrying in the USA in 2008 he began but then discontinued the process for immigration because he and his wife moved to Canada. His more recent plans are to continue his life outside of Venezuela through a XXXX XXXX XXXX career in North America or he was considering Europe if he is not able to stay in Canada. The appellant left Venezuela at age 17 and has returned for only one visit in 2009. His actions through those years show that he intended to make a life for himself outside of Venezuela and his testimony reflected limited knowledge of the refugee process or his eligibility for refugee protection. It is not reasonable in the circumstances to attribute general knowledge of refugee protection processes to this appellant given his lack of exposure to any such process and his success in achieving his personal goal not to return to Venezuela through student status in Canada and the USA for 8 years. [32] The period between December 2013 when the student visa expired and March 2014 when he was detained by immigration authorities could be viewed as a period of delay but that was reasonably explained. Although he failed to address his immigration issues promptly after the student visa expired, that failure is more consistent with a lack of financial resources, general avoidance and hope that immigration options would arise as they had in the past. The appellant was completely forthcoming when approached by immigration authorities and his evidence has been consistent throughout this process, particularly in terms of his motivation and reasons for never planning to return to Venezuela. In the circumstances, the available evidence does not indicate that there was delay in making a claim for protection that would indicate the appellant lacked subjective fear of persecution or harm if he returned to Venezuela. [33] Upon setting aside the RPD determination, the RAD may substitute its own decision or refer the matter back for re-determination by the RPD in circumstances prescribed by IRPA as follows: 111(2) Referrals The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that * the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and * it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. [34] I have also included the French version of 111(2)(b) because, in my view, it provides clearer instruction for when the RAD may refer a matter back to the RPD: 111(2) Renvoi - Elle ne peut procéder au renvoi que si elle estime, à la fois : * que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; * qu'elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés. [35] I find that I cannot substitute my own decision without holding a hearing to re-examine evidence that was presented to the RPD. This claim was determined on the basis of incorrect credibility findings as outlined above. As a result, the RPD member curtailed appropriate inquiries and failed to appropriately examine evidence related to other essential aspects of a claim for refugee protection. The requirements of subsection 111(2) are met and the matter is referred back to the RPD for redetermination. CONCLUSION [36] The appeal is allowed. The RPD decision is set aside and the claim is referred back to the RPD for re-determination. (signed) "Maryanne Kingma" January 6, 2015 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (the "Act" or "IRPA"), S.C. 2001, c. 27. 3 Refugee Protection Division Record (RPDR), pp. 19-21. 4 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 5 Ibid, paragraphs [54] and [55]. 6 IAD sections 63 and 64 and RAD subsections 110(1) and (2) of IRPA. 7 66. Disposition - After considering the appeal of a decision, the Immigration Appeal Division shall (a) allow the appeal in accordance with section 67; (b) stay the removal order in accordance with section 68; or (c) dismiss the appeal in accordance with section 69. 8 111(1) Decision - After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 9 Ibid, and 110(1) - Appeal - Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. See subsection 67(1) for the IAD. 10 111(2) Referrals The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. For the IAD, subsection 67(2) provides as follows: - If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration. 11 Infra notes 20 and 21. 12 174 - (1) Court of record - The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed. (2) Powers - The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders. 13 171 - in the case of a proceeding of the Refugee Appeal Division, (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge .... 14 162 - (1) Sole and exclusive jurisdiction - Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. (2) Procedure - Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 15 165 Powers of a commissioner - The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 16 110(3) Procedure - Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110(6) Hearing - The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 17 175(1) Proceedings - The Immigration Appeal Division, in any proceeding before it, (a) must, in the case of an appeal under subsection 63(4), hold a hearing; (b) is not bound by any legal or technical rules of evidence; and (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. 18 Ibid. 19 Proceedings - 171. In the case of a proceeding of the Refugee Appeal Division, (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister's appeal or intervention in the appeal. 20 Proceedings - 171. In the case of a proceeding of the Refugee Appeal Division, (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court. 21 171 Proceedings - In the case of a proceeding of the Refugee Appeal Division, (a.2) the Division is not bound by any legal or technical rules of evidence; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. 22 110(4) Evidence that may be presented - On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have been presented, at the time of the rejection. 23 RPDR, pp. 95-98. 24 Ibid, p. 99. 25 Ibid, p. 130. 26 Ibid, pp. 131-148. 27 Appellants Record, pp. 10-17. 28 RPDR, pp. 36 - 48. 29 For example, RPD Decision p. 3, RPDR, p. 5, lines 31-35 and RPD Decision, p. 6, lines 6-8, RPDR, p. 8. 30 See the RPD Determination, p. 6, RPDR, p. 8, lines 6-7. 31 RPD recording at 1:12:25, 01:15:40. 32 RPD Determination, p. 3, lines 1-6 at RPDR p. 5. 33 RPD Recording at 00:59:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-01910