MB4-01849

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 : MB4-01849 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 / heard at Montréal, Quebec Appel instruit à Date of decision November 25, 2014 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Alfredo Garcia Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Guatemala, is appealing against the decision of the Refugee Protection Division (RPD), which 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 is requesting that the Refugee Appeal Division (RAD) allow the appeal and set aside the RPD's determination. [3] The appellant did not file any new evidence in support of his appeal under subsection 110(4) of the IRPA and is not requesting that a hearing be held under subsection 110(6) of the IRPA. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD sets aside the RPD's determination, 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. [6] The appeal is allowed. FACTUAL BACKGROUND [7] A native of Guatemala, the appellant came to Canada a few times to work XXXX XXXX XXXX XXXX. The last time he came, in XXXX 2013, he had on his person a visa allowing him to again work XXXX XXXX. He claimed refugee protection on January 29, 2014. [8] In his Basis of Claim Form (BOC Form), the appellant alleges that in Guatemala he sat on a XXXX XXXX XXXX XXXX XXXX XXXX in the XXXX XXXX region. As a member of this council, he spoke out against soldiers and ex-PACS who had attacked the population in the past. [9] The appellant fears returning to Guatemala because soldiers are looking for him by reason of his participation in the XXXX. Decision under review [10] On March 31, 2014, the RPD rendered an oral decision rejecting the refugee protection claim on the ground that inconsistencies, contradictions and implausibilities had undermined the appellant's credibility. [11] At the outset, the RPD raises a contradiction that it considers important. It points out that the appellant stated at the hearing that he had not encountered problems before his XXXX 2013 arrival in Canada and that he did not know whether the other members of the council had. However, it is indicated in the BOC Form that all the council members had been threatened before he left Guatemala. [12] Next, the RPD drew a negative inference concerning the appellant's credibility because a Response to Information Request from the Documentation Centre does not indicate that the mandate of XXXX is to denounce acts of abuse by the army. In this regard, the Research Directorate states that [translation] "information on this type of activity by the XXXX or on the treatment of XXXX members by the military could not be found." According to the RPD, it was reasonable to expect that it would have found some. [13] Since it found that the appellant was not credible, the RPD drew another negative inference from the fact that he failed to make reasonable efforts to corroborate the threats he alleges having received, thus violating rule 11 of the RPD Rules.1 [14] The RPD drew another negative inference concerning his credibility from the fact that Exhibit D-6, a letter dated XXXX XXXX, 2014, signed by XXXX XXXX of XXXX XXXX,2 makes no mention of the threats against the appellant or the other members of the council. [15] The RPD also pointed out the appellant's delay in claiming refugee protection. He arrived in XXXX 2013 but did not submit his refugee protection claim until January 29, 2014. According to the RPD, this delay helps undermine his credibility, since his behaviour was inconsistent with allegations that his life was in danger. [16] In view of the documents presented as evidence at the hearing stating that he was a member of a XXXX, the RPD stated that it granted the appellant the benefit of the doubt regarding his membership in a XXXX, even though another document, namely the visa application form, does not mention that he was a member in a council. GROUNDS OF APPEAL Appellant's allegations [17] The appellant maintains that the RPD erred in finding that he is not credible. According to him, its findings are arbitrary, perverse and based on erroneous findings of fact. Citing a number of Federal Court decisions establishing the criteria to apply when it comes to assessing credibility,3 he submits that the RPD strayed from established principles by focusing on peripheral elements. [18] More specifically, the appellant refers to the RPD findings drawing a negative inference of his credibility by commenting on what it considered relevant for XXXX XXXX to have written in his letter of XXXX XXXX, 2014. [19] He adds that the RPD did not take into account his explanations to justify his delay in claiming refugee protection, nor did it take into account, in assessing his credibility, his socio-cultural profile. RAD'S ROLE AND FUNCTIONS [20] In his memorandum, the appellant suggests that the standard of review is correctness, because the RPD is not a specialized body in relation to the RAD. He argues that the RAD must not [translation] "extend deference to RPD decisions comparable to the deference to be given by courts of law to first-level decision-makers."4 [21] Since the RAD is a newly constituted appeal tribunal, an examination of its home statute and the criteria developed by the case law in the context of an appeal tribunal and administrative law is in order. [22] The statutory provisions establish precisely the allowable grounds for appeal5 as well as its RAD's "remedial powers". Parliament allows the RAD to confirm the determination under review, to set aside the determination and substitute the determination that, in its opinion, should have been made, or to refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.6 [23] An appeal before the RAD is not in the nature of a judicial review7 or an opportunity for a new proceeding. In order to conduct its own assessment of the evidence and form its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.8 [24] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of the decisions before the RAD. In fact, it states that the RAD may make the referral described in paragraph 1(c) only if it is of the opinion that (a) the decision of the RPD 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 RPD. [25] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present only new 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. In the event that the "new evidence" is admissible, the RAD will hold a hearing only in exceptional circumstances, as set out in subsection 110(6) of the IRPA. [26] Called on to determine "the appropriate type of review by the RAD of the decision of the RPD," the Federal Court is faced with different lines of case law. [27] In two decisions rendered on the same day,9 Justice Shore, who found the reasoning of the Court of Appeal in Parizeau v. Barreau du Québec10 persuasive and instructive regarding the standard of intervention to be applied by an administrative appellate tribunal, states that: [27] ...The RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] ...[As] a specialized (if not overspecialized) tribunal ... the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [28] Justice Shore adds that "palpable or overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, according to Justice Shore, "[e]ven though there are similarities, these standards are different." [29] Recently, in Spasoja,11 Justice Roy, in examining the indicators of Parliament's intention when the RAD was created, notes that appeals before the RAD are generous, but adds that "this does not mean that it will be an opportunity for a new trial or for a reconsideration of the matter as in its entirety," stating that the error would have to be "palpable and overriding" to "succeed on appeal." Justice Roy then states that "the appeal will be heard based on the questions identified and raised, subject to documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)." [30] In Huruglica,12 writing on behalf of the Court, Justice Phelan states that the RAD must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."13 [31] In discussing the deference that the RAD owes to RPD findings, Justice Phelan states that it may well "justify deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." However, when it comes to interpreting the documentary evidence regarding country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [32] The Federal Court acknowledges the RAD's "expertise" on refugee matters. According to the Federal Court, the IRPA confers broad powers, "allowing the RAD to dispose of the merits of appeals."14 Decisions rendered to date indicate that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."15 [33] In light of the foregoing and the Court's subsequent statements,16 it appears to me that the RAD, as a specialized tribunal in refugee protection matters, must look at the merits of the case to determine whether the decision is well founded based on the evidence before the RPD. In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD has an advantageous position over the RAD. [34] Nevertheless, when findings of fact or of mixed fact and law are erroneous or are not supported by the evidence, or when an error is committed that vitiates the decision, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [35] It is generally accepted that errors in law do not justify any deference. In Alvarez and Eng, Justice Shore states that "the RAD must be able to correct any error of law." MERITS OF THE APPEAL [36] Issues of credibility constitute questions of fact. The issue of whether the decision rendered is supported by the evidence is a question of mixed fact and law. [37] The assessment of credibility is a complex process. The RPD has the advantage of seeing and hearing refugee protection claimants or witnesses. Accordingly, it has an advantageous position compared to that of the RAD, which generally proceeds on the basis of the record and has this advantage only in a limited number of cases. It does not have this advantage in this case. This expertise of the trier of fact has been recognized a number of times by the appeal courts.17 [38] Despite this advantage enjoyed by the RPD, its findings must take all of the evidence into account and must never be based on extrapolations or hunches. They should deal with factors relevant to the refugee protection claim, and not minor or secondary factors. In the present case, the inconsistencies, contradictions or implausibilities on which the RPD based its finding that the appellant is not credible do not strike me as well-founded in every instance. [39] First, it is my opinion that the RPD erred regarding the appellant's credibility when it objected to his statements that as a XXXX member he spoke out against the soldiers who had attacked civilians, to the content of the Response to Information Request18 indicating that the IRB's Research Directorate claims that [translation] "information on this type of activity by the Cocode or on the treatment of XXXX members by the military could not be found." [40] It seems to me that just because a document does not explicitly report a fact does not mean that what a witness states under oath is false. Moreover, when the RPD adds [translation] "that it would have been reasonable to expect that it would have found some" information in this regard, it is suggesting that the appellant is trying to embellish his story. It is my opinion that the RPD is extrapolating by making such a comment, especially since the Response to Information Request states: Among the sources consulted by the Research Directorate within the time constraints, ... This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to merit of any particular claim for refugee protection. [41] The Response to Information Request indicates that there are five levels of councils extending from the community level to the national level. Exhibits D-3 through D-619 were filed with the RPD to attest to the appellant's membership in the XXXX XXXX XXXX, which is at the community level according to Exhibit D-6. The RPD did not comment on the probative value it attaches to exhibits D-3 through D-6. It simply stated that it was granting the appellant the benefit of the doubt as to his membership in the council. [42] Exhibit D-6,20 a letter dated XXXX XXXX, 2014, signed by XXXX XXXX of XXXX XXXX, attests to the fact that on two occasions the appellant was a member of the XXXX XXXX village XXXX in the city of XXXX XXXX, once in 2005 and the other in 2012. According to the information contained therein, the term length was two years each time. I would point out that the RPD drew no conclusion as to the probative value of this exhibit, which states that the appellant was a member of a XXXX. I am of the opinion that the RPD was again extrapolating as to the content of this letter containing no mention of the threats allegedly directed against the appellant. This error again impacts the appellant's credibility. [43] The RPD drew a negative inference from the appellant's delay in claiming refugee protection. The courts have indicated a number of times that this element is not determinative in and of itself in the assessment of credibility. It is important to consider the explanations of a refugee protection claimant and the factors peculiar to the latter. In the present case, the appellant stated at the hearing that he had been informed by his family in XXXX 2013 that soldiers were looking for him. At the hearing he maintained that prior to that date, he did not believe that his life was in danger and had not encountered any problems by reason of his membership in the XXXX. Next he provided detailed explanations on the steps taken to find out how to obtain Canada's protection. A person by the name of XXXX prepared the BOC Form, which was signed by the appellant but not translated for him. [44] I concur with counsel for the appellant that the credibility assessment must take into account the level of education of the appellant, who has only XXXX years of schooling. In my opinion, this low level of education might explain how the appellant could have signed the visa application form without the information contained therein being translated for him, as he stated at the hearing. As suggested by Federal Court case law, the context specific to each individual affects their credibility, and it is important to take it into account. [45] It seems to me that the RPD does not appear to have taken into account the appellant's personal factors or his explanations. In the present case, it should be pointed out that the appellant had valid status in Canada when he claimed refugee protection. His worker status was expiring in XXXX 2014. [46] The RPD drew a negative inference from the fact that the appellant did not present material evidence corroborating the threats he claimed to have received. To draw a negative inference because the appellant did not try to obtain documents in this regard, the RPD is guided by rule 11 of the Refugee Protection Division Rules, which states that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.21 The appellant stated that he was in Canada when the individuals began looking for him. Furthermore, no questions were asked at the hearing to ascertain why he did not attempt to obtain such documents. This manner of proceeding strikes me as unfair to the refugee protection claimant. In my opinion, when the panel drew a negative inference from his non-compliance with the provisions of rule 11 of the RPD Rules, it should have asked him more questions. [47] To be sure, the burden of proof lies with the refugee protection claimant, who must support the central elements of his claim. One must bear in mind, however, that refugee protection claimants are not always able to corroborate all the elements of their refugee protection claim. In the present case, the appellant filed a number of documents, including exhibits D-3 through D-6, to corroborate some of his allegations. It is wrong to conclude that he did not make the reasonable efforts required by rule 11. Requiring refugee protection claimants to corroborate all their allegations nullifies the principle that testimony under oath is presumed to be credible.22 Each person's context must be taken into account. [48] All the inconsistencies should not undermine credibility. The lone remaining contradiction is the one having to do with whether or not there were threats before the claimant left Guatemala, as indicated in the member's decision. Nevertheless, must this inconsistency alone undermine the claimant's credibility to the point where doubt must be cast on all of his testimony? Before finding that the appellant has no objective reasons to fear for his life should he return to Guatemala, it seems to me that his claim must be referred to a differently constituted panel for re-determination, because most of the points on which the decision is based are unfounded. CONCLUSION [49] For these reasons, I determine that the RPD's determination must be set aside. I am referring the matter to the RPD for re-determination so that this claim for refugee protection can be assessed by a differently constituted panel. The hearing before the RPD must be conducted in greater depth. [50] The appeal is allowed. Maria De Andrade Me Maria De Andrade November 25, 2014 Date IRB translation Original language: French 1 RPD Rules, SOR/2012-257. 2 RPD record, pages 158 and 159. 3 Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 2356 (F.C.A.), Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), Maldonado v. Canada (Minister of Employment and Immigration) (1980) 2 F.C. 302 (C.A.), Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.), Cooper v. Canada (Citizenship and Immigration) (2012 FC 118). 4 Appellant's memorandum, page 56. 5 Subsection 110(1) of the IRPA: 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. 6 Subsection 111(1) of the IRPA. 7 Eng v. Canada (Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 8 RPD record, parties' memorandum or any [translation] "new admissible evidence." 9 Supra, footnote 7, Eng and Alvarez. 10 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 11 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 12 Huruglica v.Canada (Citizenship and Immigration), 2014 FC 799. 13 Idem. 14 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 15 Idem. 16 Alyafi v. Minister of Citizenship and Immigration, 2014 FC 952, Kurtzmalaj v. Canada (Citizenship and Immigration), 2014 FC 1072, Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080. 17 Augebor v. Canada (M.E.I.), (1993) 160 N.R. 315 (F.C.A.), P.L. v. Benchetrit, 2010 QCCA 1505. 18 RPD record, pages 75 to 82: Response to Information Request XXXX, dated XXXX , 2014. 19 Idem, pages 144 to 159. 20 Supra, footnote 2. 21 Refugee Protection Division Rules (SOR/2012-228), S.C. (2001), chapter 27. 22 Supra, footnote 3, Maldonado. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-01849 9 RAD.25.02 (June 23, 2014) Disponible en français