MB5-00450

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. / No de dossier de la SAR : MB5-00450 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 November 25, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Mabel E. Fraser Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Colombia, is appealing against the decision of the Refugee Protection Division (RPD) to reject his refugee protection claim. [2] He is submitting no new evidence in support of his appeal and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I determine that the decision of the RPD is wrong in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that, in my opinion, should have been made, without hearing evidence that was presented to the RPD. [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [5] In the Basis of Claim Form (BOC Form) that he submitted before the RPD, the appellant, originally from the city of XXXX XXXX, alleges that he arrived in Canada as a worker on XXXX XXXX, 2012. [6] The appellant alleges that his wife, who remained in XXXX XXXX and continued to operate their business, was the victim of extortion by a gang called the Urabenos, who had noticed that the appellant was in Canada. At first, the gang demanded that the appellant's wife pay $200, but then they raised their demand to $5,000. [7] The appellant alleges that his wife left the city of XXXX XXXX and sought refuge with their child in the city of Cali. [8] The appellant claimed refugee protection in Canada on or about July 8, 2014, and alleges a fear of being killed by the Urabenos gang if he had to return to Colombia. [9] In an addendum to his BOC Form submitted on November 26, 2014, the appellant alleges that the Urabenos went looking for his wife and son at the home of his in-laws, where they were living, and that they saw his wife's diploma in XXXX that was hanging on the walls of the house, as well as photographs of himself from when he was a XXXX XXXX in Colombia. [10] The RPD rejected the refugee protection claim because it was of the opinion that the appellant had an internal flight alternative (IFA) in Colombia, in the city of Bogota. [11] Before the RAD, the appellant submits that the RPD erred in its analysis of the evidence presented with regard to the IFA on the following points: - The testimonial and documentary evidence shows that the Urabenos gang is present throughout Colombia and accuses him and his wife of being police informants. - The documentary evidence indicates that displaced persons in Colombia have limited access to basic necessities, such as housing and the opportunity to earn a living, making the IFA unreasonable. - The Urabenos gang has an interest in finding the appellant in Bogota since they believe that he and his wife are police informants and that they have reported the gang to the Colombian authorities. [12] For these reasons, the appellant is asking the RAD to set aside the determination of the RPD. THE RAD'S ROLE [13] The IRPA does not specifically provide for the standard of review or intervention that the RAD should apply when it reviews the decisions rendered by the RPD. [14] In this case, the appellant submits that the IFA is a question of mixed fact and law and that the RAD must conduct its own IFA analysis to determine whether he is a refugee or a person in need of protection without showing any deference to the RPD's findings. [15] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the standard of review or intervention before the RAD or its role when an RPD decision is appealed to it. [16] The Honourable Justice Shore of the Federal Court of Canada has ruled on this matter in Alvarez1 and Eng,2 both rendered on July 17, 2014. [17] In paragraphs 28 and 29 of Alvarez, as well as in paragraphs 29 and 30 of Eng, the Court writes as follows: [28] 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. Contrary to a court exercising a superintending and reforming power over public bodies, 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). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [18] The Court adds the following in paragraph 33 of Alvarez, as well as in paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of 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. The 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 and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [19] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes the following: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [20] In considering the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [21] Justice Phelan concludes that: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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. [55] 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [22] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [23] In that case, in line with the previous Huruglica, Eng and Alvarez decisions, the Court first finds that the RAD erred in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [24] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions concerning the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the House of Commons' parliamentary committee to determine that the appeal referred to in sections 110 and111 of the IRPA cannot be equated to a judicial review, but rather to an appeal in its own right (paragraph 39). [25] Relying on the conclusions in Parizeau in terms of the standard of review that should be applied by an appeal tribunal, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review to be applied by the RAD are correctness for questions of law, and palpable and overriding error for questions of fact and questions of mixed fact and law. In addition, the RAD must give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [26] The Honourable Justice Roy also indicates that he could not find any indicators providing for an appeal de novo before the RAD (paragraph 42) and states in the following paragraph of his decision that: [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It 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).... [27] Finally, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having considered the above decisions, first concludes that they all reject the reasonableness standard of review and then expresses his opinion that the RAD must be allowed to choose between the two remaining approaches, namely, the approach set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the approach set out in Huruglica, which he describes as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant" (paragraph 16). [28] Justice Martineau writes in paragraph 46 of Alyafi that: [46] ... I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [29] Having analyzed the evidence presented in this case, I am of the opinion that it is not sufficient for me to determine whether the appellant is a refugee or person in need of protection, namely because the appellant was not questioned about the protection available in Colombia. [30] Consequently, in my view, it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the role of the RAD described in that decision seems to me to be more easily applicable than that described in Huruglica, in particular when no new evidence is submitted to the RAD and no hearing can be held before it, such as in this case. [31] In this case, I am of the opinion that the error alleged by the appellant with respect to the RPD's assessment of the IFA is a question of mixed fact and law involving the application of a legal test to the facts of the case, and, consequently, it is subject to the standard of review of palpable and overriding error. [32] I will review and conduct my own assessment of all the evidence presented before the RPD in order to determine whether it committed any palpable and overriding errors. [33] At paragraph 91 of Parizeau, a palpable and overriding error is described as follows: [translation] [91] ... A palpable and overriding error is an error that, in its undeniability-and therefore not a difference of opinion on the assessment of the evidence-determines the outcome of the dispute in that the conclusion of the trier of fact, that is, the result of his or her decision, cannot hold water, thus, ipso facto, making the decision unreasonable. ANALYSE [34] The issue in this case is whether the RPD erred in its assessment of the IFA. [35] Having analyzed all the evidence presented, listened to the recording of the hearing before the RPD and considered both the RPD's reasons and the appellant's memorandum, I am of the opinion that the answer to this question is yes, for the following reasons. [36] The test to be applied to assess the IFA is set out by the Federal Court of Appeal in Rasaratnam6 and Thirunavukkarasu.7 These decisions clearly show that the test to be applied to determine whether an IFA exists is two-pronged: 1- ...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. 2- Moreover, conditions in the part of the country considered to be an IFA must be such that it would be not unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [37] Both prongs must be satisfied for a finding that an IFA exists. [38] The RPD's finding regarding the first prong of the IFA test rests not on the Urabenos gang's inability to track him down in the city proposed as an IFA-Bogota-but rather on the fact that, according to it, the Urabenos would not be interested enough to [translation] "invest the energy needed to search for them (the appellant and his family) throughout the whole country" (paragraph 14 of the RPD's reasons). The RPD based this finding on the fact that the appellant's wife had had problems with a local commander of the Urabenos who allegedly tried to extort money from her and that she now lives in Cali and has had no problems there, as well on the fact that the appellant's parents-in-law still live in XXXX XXXX and apparently have no problems (paragraphs 15 of the RPD's reasons). [39] With respect, I am of the opinion that the RPD erred in failing to consider in its analysis the appellant's allegation that the Urabenos had accused the appellant and his wife of being [translation] "rats," or informants, for the authorities, possibly because of his wife's diplomas and the appellant's XXXX XXXX XXXX XXXX XXXX XXXX. The appellant's wife allegedly also filed a complaint against them, as indicated in the documents filed in evidence. [40] This evidence, in my opinion, can directly contradict the RPD's finding that the Urabenos would have no interest in tracking down the appellant elsewhere in the country. [41] Furthermore, I would point out that the appellant testified that his wife is living in hiding in the city of Cali out of fear of being found, and that his son no longer goes to school for the same reason. [42] This error of the RPD is, in my opinion, sufficient to dispose of the matter before the RAD, and, therefore, it is not necessary for me to continue to examine whether the RPD erred in its conclusions regarding the second prong of the IFA analysis. [43] In light of the preceding, I find that the RPD's decision is erroneous and that the RAD's intervention is warranted. REMEDY [44] I find the decision of the RPD to be wrong in fact and in law. I am unable to set aside the RPD's determination and substitute the determination that, in my opinion, should have been made, without hearing evidence that was presented to the RPD. [45] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [46] The appeal is allowed. Normand Leduc Normand Leduc November 25, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 FC 702. 2 Eng v. M.C.I., 2014 FC 711. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Spasoja v. M.C.I., 2014 FC 913. 5 Parizeau v. Barreau du Québec, 2011 RJQ 1506. 6 Rasaratnam v. Canada (1992) 1 FC 706 (C.A.), p. 710. 7 Thirunavukkarasu v. Canada (1994) 1 FC 589 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-00450 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-00450 9