MB4-04939

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 : MB4-04939 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 May 19, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Carlos Hoyos-Tello Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of El Salvador, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. [2] The appellant did not present any new evidence in support of her appeal, and she is not requesting that a hearing be held before the Refugee Appeal Division (RAD). 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 appellant, XXXX XXXX XXXX XXXX, is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [4] The appeal is dismissed. FACTUAL BACKGROUND [5] The appellant fears the Mara Salvatrucha because she was a victim of extortion by its members. She left her country for Canada on XXXX XXXX, 2012, on a visitor visa. She claimed refugee protection on August 8, 2014. RPD DECISION [6] The RPD did not believe the appellant's account. The RPD determined that not only was the appellant's testimony vague and confusing, but there were a number of contradictions, omissions and implausibilities. [7] The appellant's account may be summarized in seven points from which the RPD drew negative credibility inferences. - The appellant was extorted by the Mara, but the RPD did not believe this because the appellant contradicted herself on a fundamental point regarding when the threats began. - The appellant allegedly found her dog dead, hung at her door, with a note stapled to its body. The RPD found that this element was not credible in relation to contradictions and omissions. - The RPD did not believe that the appellant received extortion notes along with threats, in relation to contradictions and omissions. - The RPD did not believe that the appellant paid the Mara four times because she did not mention it in her Basis of Claim Form (BOC Form). - The RPD did not believe that the appellant filed a complaint with the police about this because many contradictions arose in the appellant's testimony about this. - The RPD found that the appellant's delay of nearly XXXX XXXX XXXX XXXX XXXX in claiming refugee protection once in Canada was inconsistent with the fear that she alleged. - The RPD found that it was implausible that the appellant would keep her job, only changing her schedule, when she received death threats. According to the RPD, if she were really at risk, she would have left her job instead. - The RPD did not believe that the appellant's son was threatened on account of the problems because a number of omissions were made apparent during her testimony. GROUNDS OF APPEAL [8] Before the RAD, the appellant submits that the RPD did not understand the cultural and sociological differences between Canada and El Salvador with respect to filing complaints with the police. She is a vulnerable woman, she has no experience in filing complaints with the police and her lack of education may explain this lack of experience. [9] In addition, the appellant is of the opinion that the RPD did not understand that simply changing work shifts could make the appellant feel safe. [10] The RPD's findings were unreasonable. RAD'S ROLE [11] 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. [12] 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" (Alvarez).1 The RAD "also has the authority to investigate, an authority the Federal Court judge ... does not have." [13] 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 de novo appeals, 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. [14] 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 [15] 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". [16] 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 [17] 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. [18] In Alyafi,6 Justice Martineau is of the opinion that both 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 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. [19] It seems to me that the RAD must show deference to the RPD's credibility findings, as in Huruglica, given that the RPD had the opportunity to see, question and hear the appellant. [20] 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. [21] 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 [22] The RPD's decision focuses on the appellant's lack of credibility. The RAD reviewed all the evidence, in particular, the hearing of October 7, 2014. [23] The RAD agrees with the RPD's overall observation that the appellant's testimony was confusing and contradictory, so much so that the timeline and consistency of the narration was continually undermined by her contradictions. [24] The RAD does not agree with the appellant's main argument that the RPD was not sensitive to her cultural context. The appellant argues in this respect that the RPD should have understood that a vulnerable woman (the appellant does not explain why she is a vulnerable woman) would not know how to go and complain to the police, since she had no experience in this matter in a corrupt country like El Salvador. [25] The hearing reveals that the appellant contradicted herself on more than one point regarding the allegation that she had filed a complaint with the police. [26] On the one hand, she testified more than once that she went there in XXXX 2010 (the appellant went to the police only once). She stated that she complained about two things: that she was receiving calls and that they were asking her for money. The panel asked, [translation] "Anything else?" She responded, "No." [27] Later in the hearing, the appellant stated that she filed a complaint after she had found her dog dead, hung at her door. However, according to the appellant's testimony, this dog was found dead in XXXX 2011 (the appellant repeated this more than once); this is therefore inconsistent with the statement that she went once to see the police after discovering her dog dead, because she went to the police in XXXX 2010 and her dog died in XXXX 2011. The appellant was asked about this contradiction and her responses did not really make sense-she stated that she had said it to the interpreter at the hearing. This explanation was not accepted by the RPD, and the RAD agrees with this. [28] Furthermore, the RPD pointed out in its decision that it seemed implausible that the appellant never told the police when she went to complain that she had given four sums of money to the Mara in XXXX 2010. According to the RPD, this information was important, and the appellant should have mentioned it to the authorities. [29] In the RAD's opinion, according to the responses provided by the appellant for this omission to the police, the RPD did not err in concluding that this was implausible. It would have been one thing if the appellant had explained that she was reluctant for her own reasons. However, her response that she had not mentioned it makes no sense. It is important information, and it is not up to the police to guess what the appellant has experienced in her country. [30] Therefore, the appellant gave contradictory and confusing testimony regarding what she allegedly experienced when she went to the police and regarding her complaint. The RAD does not agree with the appellant that the RPD's findings about the lack of credibility on this point suggest a lack of cultural sensitivity with respect to El Salvador. The appellant contradicted herself regarding facts that the RPD determined to be either contradictory or implausible. The RPD did not err, and the RAD is of the opinion that it made the correct finding of a lack of credibility regarding the police complaint, or that there was no complaint to the police. [31] The same goes for the dog that was found hung at her front door on XXXX XXXX, 2010. [32] The RPD did not believe it given the omissions and contradictions. First, there is the contradiction raised above: the appellant states in her BOC Form that she found her dog dead at her front door after she went to the police to complain; however, in her testimony she stated that she went to complain about finding her dog dead at her front door. In addition, the RPD pointed out that, according to a friend's affidavit (Appeal Book, page 181), she reported her dog dead to the National Civil Police (PNC). The appellant had no logical explanation for this. [33] In addition, in response to the RPD's question regarding how many threatening notes she had received from the Mara, the appellant failed to spontaneously mention that aside from two notes on her door, she had also received a third note that had been pinned to her dead dog's chest. [34] The RPD did not believe this part of the account (concerning the dog's death) and the RAD is of the opinion that the RPD did not err given the contradictions and omissions in the testimony. [35] The RPD found the appellant lacked credibility regarding the threats and extortion demands that she allegedly received. [36] The RPD pointed out a contradiction that the RAD considers central to the appellant's refugee protection claim-the threats that she allegedly received in relation to the extortion demands. Her BOC Form indicates that it was in 2010 when the appellant started receiving calls and threats related to the extortion. Yet, in her testimony, the appellant stated instead that it was in 2007, when she returned to El Salvador from a trip to Canada to see her children. The appellant stated that she received extortion demands over the telephone, along with death threats. Understandably, the RPD asked her why she had not written this in her BOC Form. The appellant contradicted herself and stated that during the calls they had threatened to kill her and then that they had not. In addition, she stated that she did not take the calls seriously. [37] The RPD rejected these explanations. In the RAD's opinion, the RPD did not err. The appellant gave explanations that were not credible. [38] The RPD found that there had been no threats by the Mara Salvatrucha. The RAD agrees with that finding. [39] The RPD drew a negative inference from the fact that the appellant stated that her son had been threatened while she was still living in El Salvador (which motivated him to move in XXXX 2011), while her BOC Form states that it was after her arrival in Canada, more specifically in 2012, that her son had been forced to move following threats. The RPD was not satisfied with the appellant's explanations and rejected them (the appellant stated that the dates were mixed up). The RAD agrees with that analysis. Although dates can be mixed up, that is not what is at issue. The contradiction is much more fundamental because in her testimony the appellant stated that he had moved at the same time as she did, in XXXX 2011, while the BOC Form states that it was only once she had come to Canada. [40] The RPD found that there had been no threats against the son, and the RAD agrees with that finding. [41] Therefore, the RPD rendered the correct decision and did not err, considering its findings, with which the RAD agrees. [42] In addition, the RPD drew a negative inference from the fact that it took the appellant from XXXX 2012 (when she arrived in Canada) to May 2014 to claim refugee protection in Canada. She arrived in Canada on a visa that she renewed, but she was without status from XXXX 2013 to May 2014. In the RPD's opinion, this is not the behaviour of someone who fears for her life. The RAD agrees with this finding. According to the RAD, this is the last key point regarding the appellant's credibility. If she had come to Canada to save herself, she would not have waited nearly XXXX XXXX XXXX XXXX XXXX before claiming refugee protection. [43] Finally, the appellant mentioned that it was incorrect for the RPD to find that she lacked credibility because she had not left her job but merely changed her schedule. According to the appellant, this showed a lack of cultural sensitivity because the RPD did not understand how changing work shifts could protect her. [44] The RPD's finding was maybe somewhat hasty, since in listening to the hearing, little is learned about the reasons why the appellant would feel safer working another shift; nevertheless, the credibility findings on fundamental points are well documented, and the RAD is of the opinion that this last finding does not in any way modify the overall finding of non-credibility. [45] Considering that the RAD is of the opinion that the negative credibility inferences drawn by the RPD are fundamental and determinative to the appellant's story, the RAD finds that the RPD rendered the correct decision and did not err. REMEDY [46] For these reasons, the RAD confirms 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" within the meaning of section 97 of the IRPA. Roxane Cyr Roxane Cyr May 19, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-04939 10 RAD.25.02 (2014.09.11) Disponible en français