MB4-02159

RAD File No. / No de dossier de la SAR : MB4-02159 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 January 6, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Moriba Alain Kone Conseil de la personne en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Togo, is appealing against a decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim, having concluded that he is not a "Convention refugee" or a "person in need of protection" under 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 determination of the RPD. He is asking to be heard by the RAD so that he can provide oral testimony regarding his problems. He is asking the RAD to substitute its own determination, or to refer the matter to the RPD for re-determination of his refugee protection claim by a differently constituted panel. [3] As new evidence pursuant to subsection 110(4), the appellant submitted two documents that he added to his memorandum and states that he wants to submit other documents that he is waiting for. [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 neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. FACTUAL BACKGROUND [7] The appellant is originally from Togo. In his Basis of Claim Form (BOC Form), he states that his life is in danger in Togo because of his homosexuality. He states that his parents threatened him once and that he was savagely beaten when he was caught with his boyfriend on another occasion. He also states that, when people in his neighbourhood caught him kissing his boyfriend, they roughed him up until he bled. [8] He states that he left Togo in XXXX 2013 and sought refuge in Ghana with a childhood friend, whom he stayed with for approximately six months-until XXXX 2014, when he left for Canada. He passed through Benin and Belgium before arriving in Toronto. He claimed refugee protection on February 6, 2014. Impugned decision [9] On May 5, 2014, the RPD rejected the refugee protection claim, stating that the claimant was not a credible witness. According to the RPD, inconsistencies between the appellant's various statements and between his testimony and the documents submitted to support his allegations, as well as omissions in completed documents, led the RPD to conclude that he was not credible when he alleged that he is homosexual. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [10] The appellant maintains that the RPD erred in the assessment of his credibility. He argues that the RPD committed the following errors: - It erred in finding that he was not credible and [translation] "in using a higher standard of review." - It breached procedural fairness. His arguments will be dealt with in detail under "Merits of the appeal." ADMISSIBILITY OF NEW EVIDENCE [11] The appellant appended the following two documents to his memorandum: - sworn statement by XXXX XXXX, dated September 17, 2013, executed before a notary; and - article from the XXXX XXXX, 2013, issue of the newspaper Le Patriote, No XXXX. These documents will be filed as exhibits A-1 and A-2 respectively. [12] In his memorandum, the appellant maintains that the RPD refused to accept these documents as evidence. [13] Subsection 110(4) of the IRPA provides that 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. Regarding this provision, Justice Shore stated in Iyamuremye1 that it is evidence "that might have affected the outcome of the RPD hearing if that evidence had been presented to it." [14] This factor, which is not mentioned specifically in subsection 110(4) of the IRPA, has been recognized by the courts called upon to rule on the admissibility of fresh evidence submitted on appeal. In R. v. J.A.A. 2011 SCC 11, the Supreme Court, referring to the criteria established in Palmer v. The Queen [1980] 1 S.C.R. 759, states that: "...the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial and that the fresh evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result." [15] In Raza,2 the Federal Court of Appeal set out the factors to be considered when determining what constitutes "new evidence" within the meaning of paragraph 113(a) of the IRPA. Although that decision was rendered in the context of a PRRA, given the similarities in the statutory language, the same factors may be considered by the RAD.3 According to the Court, credibility, relevance, newness, materiality, and express statutory conditions are the factors to be considered. [16] The documents appended to the appellant's memorandum will not be admitted as new evidence for the following reasons. [17] Contrary to the allegation, it appears from the RPD record and from paragraph 12 of the decision that, despite the fact that they were submitted late, these documents were accepted as evidence on the day of the hearing [translation] "because of the nature of their content and its relevance to the issue of credibility." They were filed as exhibits P-5 and P-6. [18] The RAD notes that the admission of evidence by the RPD is not a guarantee that it will grant it probative value. Assessing the probative value of documents submitted generally involves taking into account all the evidence submitted, particularly the refugee protection claimant's testimony at the hearing, or reviewing its content against other statements or evidence. [19] In this case, paragraphs 17 to 22 of the decision indicate that the RPD considered the content of these documents in its assessment of the appellant's credibility. The RPD did not grant any probative value to these documents because of, among other things, the inconsistencies found between the information they contain and the appellant's statements regarding the events that compelled him to flee Togo. [20] Given that these documents were reviewed by the RPD, the RAD is of the opinion that they cannot be accepted as new evidence under subsection 110(4) of the IRPA. However, they are part of the RAD record, and the merits of the RPD's conclusions regarding these documents will be dealt with in the section on the merits of the appeal. Request that a hearing be held before the RAD [21] The appellant is requesting that the RAD hold a hearing so that he can provide oral testimony regarding his problems. [22] The spirit of the IRPA suggests that the appeal proceeding before the RAD is a paper-based process and that a hearing is held only if the criteria set out in subsection 110(6) of the IRPA are met. That is to say, a hearing may be held only if new evidence is submitted and, if that "new evidence" is accepted, it raises a serious issue with respect to the credibility of the person who is the subject of the appeal and would justify setting aside the determination of the refugee protection claim. [23] Given the legislative requirements and the reasons that the RAD is of the opinion that the documents submitted do not constitute new evidence pursuant to subsection 110(4), the RAD cannot hold a hearing. THE RAD'S ROLE AND FUNCTIONS [24] Since an appeal before the RAD is a statutory remedy, 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. [25] The statutory provisions precisely indicate the allowable grounds for appeal,4 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the determination, set aside the determination and substitute the determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions that it considers appropriate.5 [26] An appeal before the RAD is not in the nature of a judicial review,6 nor is it an opportunity for a new proceeding. 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.7 [27] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of decisions before the RAD. In fact, it is stated 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.8 [28] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, is faced with different lines of case law. [29] In two decisions rendered the same day,9 Justice Shore, finding the reasoning of the Court of Appeal in Parizeau v. Barreau du Québec10 persuasive and instructive with respect to the standard of intervention to be applied by an administrative appeal tribunal, states as follows: [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). [30] 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." [31] Later, in Spasoja,11 Justice Roy, in reviewing the indicators of Parliament's intention when the RAD was established, notes that appeals before the RAD are intended to be generous, but adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety," stating that the error must be "palpable and overriding" to "succeed on appeal." [32] Justice Roy states that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)." [33] A significantly different approach is proposed by Justice Phelan in Huruglica.12 Justice Phelan is of the opinion that "the RAD is required to conduct a hybrid appeal." According to him, 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 [34] Justice Phelan, in discussing the deference that the RAD owes to RPD findings, states that it may well be justified to show deference to the RPD's decision in a circumstance where a witness's credibility is critical or determinative. Nevertheless, 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." [35] The Federal Court recognizes the RAD's expertise on refugee-related matters. According to the Federal Court, broad powers are conferred by the IRPA, "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 [36] In the memorandum, counsel for the appellant notes that the standard of review for credibility is that of reasonableness and refers the RAD to Dunsmuir v. New Brunswick, 2008 SCC 9. Considering the Federal Court case law, which is unanimous on this issue, the RAD cannot agree with this argument. [37] In this case, in light of the above-mentioned decisions and the Court's subsequent statements,16 it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must reweigh all the evidence to determine whether the decision is well founded based on the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. 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. [38] Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, there is reason to intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [39] It is generally accepted that errors of 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." [40] The determinative issue before the RPD was the appellant's credibility. Credibility issues constitute questions of fact. The issue of whether the decision rendered is supported by the evidence is a question of mixed fact and law. [41] The courts have recognized on a number of occasions that the assessment of credibility is the province of the trier of facts because it has the advantage of seeing and hearing witnesses. The RAD has this advantage only in limited cases. For the reasons previously set out, it does not have this advantage in this case. MERITS OF THE APPEAL Error in the assessment of credibility [42] The appellant argues that the RPD made the following errors regarding his credibility. It relied on irrelevant factors in order to conclude that he was not credible and gave, as an example, his attendance at university. [43] He states that the RPD used [translation] "a higher standard of review" but does not provide any further details. He also maintains that it was not justified to take into account the fact that he did not know how many copies were printed of the newspaper that he submitted to corroborate his problems, or to insist on the fact that the information reported in the newspaper was presented differently than his. [44] According to the appellant, the RPD's conclusion that he omitted facts in his BOC Form demonstrates that the member is biased, and this justifies setting aside the determination. [45] Based on the statements of the Court in Maldonado and Guney, to the effect that sworn testimony is presumed to be credible and "[t]he fact that a witness has been caught in one lie, in itself, is insufficient to discredit all of his evidence, where, as here, the evidence is otherwise plausible and consistent," he maintains that the RPD's conclusions were premature and contravene the criteria set out by the case law. [46] The appellant also argues that, in excluding evidence without providing any explanation, the RPD contravened the directives set out in the document entitled Assessment of Credibility in Claims for Refugee Protection, which was prepared by Immigration and Refugee Board of Canada (IRB) Legal Services in January 2004. He refers the RAD to chapter 2.1.1, Considering the Evidence in its Entirety. [47] One of the tasks that the RPD was required to undertake was to assess the genuineness of the appellant's sexual orientation, even though the testimony was given under oath and was presumed to be credible. A document prepared by IRB Legal Services indicates that [translation] "the RPD's conclusions regarding membership in a particular social group are guided by the same principles and case law that apply to the assessment of credibility, particularly the need to make clear findings on credibility and provide adequate reasons."17 The RPD is therefore justified in considering contradictions, inconsistencies, omissions and implausibilities; however, these may be drawn from only the clearest of cases18 and should take into account the refugee protection claimant's cultural context19 when determining credibility. [48] Assessing credibility is a complex process and is not an exact science. The Federal Court has ruled on a number of occasions that, when assessing credibility, the RPD is justified in taking into account the inconsistencies between a refugee protection claimant's testimony and the information contained in the completed documents.20 [49] In this case, having reviewed the evidence in the appeal record, I conclude that the appellant has not established the alleged facts on a preponderance of evidence. As a result, he did not establish that he could be subjected to a serious possibility of persecution by reason of his homosexuality or that it is likely that his life would be at risk should he return. [50] In addition to the RPD's conclusions which the RAD agrees with, the RAD is also of the opinion that omitting to mention the incident that he alleged occurred at the XXXX hotel in the BOC Form or in the other completed documents is fatal. In fact, without minimizing the other alleged facts, it seems to me that this incident is central to his refugee protection claim since it apparently prompted him to leave Togo. The RAD also points out that the appellant maintained that he and XXXX were romantically involved for nearly five years and that they quite often met at the XXXX hotel. However, the appellant makes no mention of this in his BOC Form or in the other completed documents. These omissions, combined with the fact that he does not remember the exact date of the incident at the hotel, justify having serious doubts about the alleged facts. [51] Although the RPD did not mention it, the RAD noted that the appellant stated that he left Togo to find refuge in Ghana in XXXX 2013. According to the BOC Form, he stayed there until the time he left for Canada. However, on page 7 of his passport, it is indicated that he left Togo on XXXX XXXX, 2013, and entered Ghana on the same day. The visa file then reveals that he attended an educational establishment in Ghana from XXXX 2013 to XXXX 2013, and his passport shows back and forth travel between Togo and Ghana in XXXX 2013. [52] The RAD is very aware of the fact that the appellant was not confronted with the information contained in the visa file. However, in this case, his credibility is undermined by the information that it contains since the RPD asked the appellant for any comments or submissions regarding the information contained in the visa file, and he provided neither. The RAD also notes that the appeal memorandum does not address this issue. [53] There is more: an examination of the appellant's passport reveals that he left Togo on XXXX XXXX, 2014, and returned on XXXX XXXX, 2014. At the hearing, he stated that he had been living in Ghana since XXXX 2013, the date that he allegedly fled, and that his passage through Togo was brief and undertaken in order to discuss his situation with his friend XXXX. Therefore, what was he doing in Togo on XXXX XXXX, 2014? Was he not supposed to be in Ghana with his childhood friend? Furthermore, why did he not mention his passage through Togo in the completed documents? [54] Like the RPD, the RAD has serious doubts and agrees with the RPD's conclusions that it is likely that the appellant was compelled to come to Canada for reasons other than those given. [55] The RPD had the opportunity to see and hear the appellant. It noted that his testimony was vague when discussing his attendance at university after he completed his bachelor's degree in 2012. At the same time, the visa file indicates that the appellant was enrolled in XXXX XXXX courses in Ghana from January 2013 to May 2013. He was supposed to go to Toronto to take courses at a college. Serious doubts are justified in these circumstances. [56] Since the RPD had serious doubts about his credibility, in my opinion it was justified in not granting any probative value to the documents submitted by the appellant under exhibits P-5 and P-6, particularly since the incidents referred to in the newspaper Le Patriote and in his friend's statement do not corroborate his allegations. They refer, among other things, to membership in a [translation] "social club for young people who are homosexual" to which the appellant allegedly belongs. However, the appellant makes no reference to these facts in the documents that he completed. In the RAD's opinion, the RPD's conclusions are justified. They take into account the evidence and the applicable jurisprudential tests for credibility. In no way do they constitute a breach of procedural fairness, as the appellant maintains in his memorandum. Separate analysis under subsection 97(1) of the IRPA [57] The appellant also argues in his memorandum that the RPD breached procedural fairness by not conducting a separate analysis of his claim for refugee protection under subsection 97(1) of the IRPA. [58] The Federal Court ruled on a number of occasions that the question of whether a separate analysis of the refugee protection claim must be conducted under section 97 is a question of law.21 Although these issues were determined in a context of judicial review, it is necessary to determine whether the member erred by not conducting an analysis of the claim under section 97 of the IRPA. [59] The Federal Court ruled that separate analyses of the two sections are not always necessary.22 On that subject, in Emangongo,23 Justice Kelen refers to the following comments made by his colleague, Justice de Montigny, in Ayaichia v. Canada (MCI), 2007 FC 239: While it is always better to analyze both sections 96 and 97 where an applicant has invoked the two grounds in support of his or her claim, failing to do so will not always be fatal to an otherwise sound decision. If the evidentiary basis for both claims is the same and the applicant's story is not believed, there will be no need to proceed to a separate 97 analysis, as there will be no evidence to ground the applicant's claim that he or she is in need of protection.... Of course, if the underlying facts offer a separate basis for finding the applicant a person in need of protection, then concluding he is not credible for the purposes of section 96 or that there is no nexus to a Convention ground will not excuse the Board from going through a separate section 97 analysis. [60] There are numerous court decisions that indicate that omitting to conduct such an analysis is not fatal when the refugee protection claimant's credibility is in serious doubt and there is no objective evidence to justify a separate analysis under section 97 of the IRPA. [61] Therefore, in this case, the RPD had serious doubts about the incidents alleged by the appellant. It also concluded that it does not believe that the appellant is homosexual. In light of the RPD's findings regarding the appellant's credibility and sexual orientation, the RAD is of the opinion that, in this case, a separate analysis under section 97 was not necessary. In fact, since the RPD does not believe that he is homosexual or that there is a serious possibility of persecution, he cannot therefore establish that based on that fact, it is likely that he would be subjected to a risk to his life should he return. CONCLUSION [62] For these reasons, the RAD confirms the determination of the RPD, 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. [63] The appeal is dismissed. Maria De Andrade Me Maria De Andrade January 6, 2015 Date IRB translation Original language: French 1 Iyamuremye v. Canada (Citizenship and Immigration) 2014 FC 494. 2 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), 2007 FCA 385. 3 Vahid Ghannadi v Canada (Citizenship and Immigration), 2014 FC 879; Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 4 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. 5 Subsection 111(1) of the IRPA. 6 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. 7 RPD record, parties' memorandum or any [translation] "new admissible evidence." Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 8 Subsection 111(2) of the IRPA. 9 Supra, footnote 6, 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 (Minister of Citizenship and Immigration), 2014 FC 799. 13 Idem. 14 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 15 Idem. 16 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, Kurtzmalaj v. Canada (Citizenship and Immigration), 2014 FC 1072, Djossou v. Canada (Minsiter of Citizenship and Immigration), 2014 FC 1080. 17 Immigration and Refugee Board, Refugee Protection Division, Legal Services, Assessment of Credibility in Claims for Refugee Protection (June 28, 2002), page 34 and footnote 109. 18 Thanushan Subramaniyathas v. Minister of Citizenship and Immigration, 2014 FC 583. 19 Rousko Valtchev v. Minister of Citizenship and Immigration, 2001, FCTD 776. 20 Grinevich v. Canada (Minister of Citizenship and Immigration), [1997] F.C.A.444 (QL), Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.A. No. 1867. 21 Sutha Balakumar v. Minister of Citizenship and Immigration, Justice Phelan, 2008 FC 20; Emangongo v. Minister of Citizenship and Immigration, Justice Kelen, 2010 FC 208; Mejia v. Minister of Citizenship and Immigration, Justice Near, 2010 FC 410. 22 Ndegwa v. Canada (MCI), 2006 FC 847; Soleimanian v. Canada (MCI), 2004 FC 1660; Brovina v. Canada (MCI), 2004 FC. 23 Supra, footnote 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-02159 14 RAD.25.02 (2014.09.11) Disponible en français