MB4-02320

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 : MB4-02320 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 13, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Gisela G Barraza 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 Haiti, is appealing against a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not submit new evidence in support of her appeal and did not request that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), 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" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant is a 38-year-old married woman with four children. She alleges in her Basis of Claim Form (BOC Form) that she was the coordinator of an organization called the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX which met twice a month for the purposes of socio-political training for youth. [5] The appellant alleged that her bag was stolen on June 1, 2012, in a public market. She alleged that she subsequently received telephone calls threatening her with death because of her activities with XXXX, accusing her of training opponents of the government. [6] The appellant alleged that, after a call on April 22, 2013, during which the caller told her that they knew her address, she left her house to hide out at her brother's home. She alleged that she was attacked during the night of April XXXX to XXXX, 2013, by armed men, but was saved by people from the neighbourhood. She allegedly received a call the following day and was told [translation] "that this was not over." [7] The appellant alleged that she left her brother's home to hide out in a mountainous area of XXXX. She obtained a Canadian visa on XXXX XXXX, 2013, and left her country on XXXX XXXX, 2013, for Canada, where she filed a claim for refugee protection on or around November 5, 2013. [8] The RPD rejected the claim for refugee protection on the ground that the appellant's essential allegations were not credible. The RPD found that the appellant's credibility was undermined for the following reasons: - The appellant's delay in leaving her country, while continuing to work and continuing her activities with XXXX until she left, is inconsistent with the behaviour of a person who claims to fear for her safety. The appellant explained that she did not want to leave sooner because she did not want to traumatize her children and because she had to take care of their school lessons and homework; the RPD considered this explanation unreasonable. - She delayed more than four months after her arrival in Canada before filing a claim for refugee protection. - She did not provide the address where she allegedly began living in May 2013 in her visa application. - It is inconsistent that the appellant complained to the police after the attempted assault on April XXXX, 2013, when she testified that the police officers were corrupt and that a person is even more exposed when they make a complaint. Moreover, the complaint she filed did not give the reasons for the threats, which were allegedly her activities with XXXX. [9] Lastly, the RPD was of the opinion that the appellant did not demonstrate a fear of persecution merely by reason of her membership in the particular social group of "women." [10] Before the RAD, the appellant argues that the RPD's findings with regard to her credibility were incorrect, abusive, arbitrary and based on erroneous findings of fact, in particular because they failed to respect the principle according to which there is a presumption that sworn testimony is true; because they focused on elements peripheral to the claim; because they failed to take into account the cultural context and her personal situation; and because they failed to consider the evidence submitted in support of her allegations. [11] The appellant also argues that the RPD erred in excluding her from the particular social group of "women." [12] For these reasons, the appellant is asking the RAD to set aside the RPD's determination. THE RAD'S ROLE [13] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the appellant makes no submissions concerning the RAD's role, or what standard of review should be applied. [14] The Federal Court, which has the authority to review RAD decisions, has rendered some decisions to date pertaining to the standard of review or intervention that the RAD should apply and its role in hearing appeals against RPD decisions. [15] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada ruled on this matter. [16] At paragraphs 28 and 29 of Alvarez and 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. [17] The Court adds the following at paragraph 33 of Alvarez and 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. [18] 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 as follows: [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. ... [19] With regard to the RAD's authority under subsection 111(1) of the IRPA to substitute a determination that, "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1), 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 ... [20] Justice Phelan concludes as follows: [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". [21] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [22] In line with the earlier decisions in Huruglica, Eng and Alvarez, the Court first ruled that the RAD had erred in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [23] The Honourable Justice Roy proceeds with a detailed analysis of the IRPA's statutory provisions pertaining to the RAD; of the case law, specifically Parizeau,5 pertaining to the role of an appellate body within an administrative tribunal; and of Parliament's intent regarding the RAD as expressed by various stakeholders in debates before the parliamentary committee of the House of Commons, to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but to an appeal in its own right (paragraph 39). [24] Relying on the conclusions in Parizeau with respect to the standard of review that an appeal tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review applicable to the RAD are those of correctness for questions of law, and of the palpable and overriding error for questions of fact and questions of mixed fact and law. He goes on to state that the RAD must show deference to the RPD's findings on the credibility to be given to the witnesses appearing before it (paragraphs 39, 40 and 46). [25] The Honourable Justice Roy also states that he could find no 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). ... [26] Lastly, 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 cases, first concludes that all of them reject the reasonableness standard of review, and then expresses his opinion that the RAD must be allowed to choose between the remaining two approaches, either the one set out in Eng, Alvarez and Spasoja, that is, the standard of palpable and overriding error, or the one 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). [27] In Alyafi, Justice Martineau writes at paragraph 46 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 of the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [28] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described in that decision appears to me to be more easily applicable than the role described in Huruglica, particularly when new evidence is submitted to the RAD and no hearing is held, as in this case. [29] In this case, I am of the opinion that the error alleged by the appellant with respect to the assessment of her credibility is a question of fact, and I will therefore apply the standard of palpable and overriding error and will show a measure of deference to the RPD's findings in this respect. I will apply the same standard to the alleged error in the RPD's decision with respect to the appellant's fear of persecution by reason of her membership in the particular social group of women, which is a question of mixed fact and law. [30] I will review and make my own assessment of all the evidence submitted to the RPD in order to determine whether it committed a palpable and overriding error, while showing a measure of deference to the RPD's findings with respect to the appellant's credibility. [31] At paragraph 91 of Parizeau, 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. ANALYSIS [32] The first issue is whether or not the RPD erred in its assessment of the appellant's credibility. [33] In my opinion, the answer to this question is no, for the reasons that follow. [34] First, like the RPD, I am of the opinion that the appellant's delay in leaving her country following the threats that allegedly began in June 2012 undermines her credibility, in particular because she continued to go to work and continued her activities with XXXX until she left in XXXX 2013. The appellant's pursuit of these activities seems especially inconsistent with the behaviour of a person who fears for her life, given that the appellant testified that she fled and hid in a mountainous area starting in April 2013 because she was afraid for her life. In my opinion, the appellant did not give a reasonable explanation for this, stating only that [translation] "she had work to do, and she did it." [35] The appellant also explained that she did not leave her country after obtaining her Canadian visa in XXXX 2013 because she did not want to traumatize her children, and because they needed her help with their homework and school lessons. I also find these explanations unreasonable in the circumstances, because the appellant could not explain how the trauma experienced by her children would have been different had she left in XXXX 2013 rather than in XXXX 2013, or why her husband, the father of her children, or even another member of her family, could not have taken care of the children's schooling and taken care of them, as her husband has been doing since the appellant left. [36] Moreover, like the RPD, I am of the opinion that the appellant's delay of more than four months in claiming refugee protection in Canada also undermines the credibility of her fear. Her explanations, that she thought she needed other documents, such as documents pertaining to her children, in order to claim refugee protection do not seem reasonable to me in the circumstances. However, as the RPD writes in its reasons, this element is not in itself fatal to the refugee protection claim. [37] Furthermore, I am of the opinion that, although the issue of the appellant's failure to provide a residential address in the XXXX region, where she alleged in her visa application forms that she hid in April 2014, should be taken into consideration in the overall assessment of credibility, by itself, it cannot be fatal to the claim. The appellant explained that this area was not readily accessible, so she preferred to receive her correspondence at her permanent residential address. In addition, the XXXX address was provided in documents filled out for Immigration Canada at the time of the claim for refugee protection (see page 78 of the RPD record). [38] More important with regard to the appellant's credibility, in my opinion, is the issue of the inconsistency of the police complaint in April 2013, as raised by the RPD. [39] First, I am of the opinion that I cannot attach any probative value to the complaint of June 2012, following the alleged theft of her bag, in establishing the appellant's allegations: in effect, this [translation] "complaint" (see document D-5, page 126 of the RPD record), on its face, is a lost document declaration, not a theft complaint. The appellant explained that the police officers made a mistake and filled out this document instead of a theft complaint. In my opinion, this explanation is not reasonable: in my opinion, on a balance of probabilities, there is no reason why the police would fill out a [translation] "loss declaration" document rather than a theft complaint form, had this been the complaint made by the appellant. [40] In addition, in response to a question from the RPD as to why she had not filed a complaint after the alleged telephone threats following the loss of her documents, the appellant stated that the police in Haiti are corrupt and that complaining would have exposed her even further rather than protected her. Hence the issue of the inconsistency of having filed a complaint after the alleged events of April 2013: Why complain if it exposed her even further? The appellant explained that she wanted evidence of the threats and for [translation] "it to be legal." In my opinion, these explanations are not reasonable in this case, given her fear of being exposed by filing a complaint, and because the appellant could not explain how [translation] "evidence" of threats would be of use to her. In addition, the complaint of April XXXX, 2013, does not mention the reasons why the appellant was allegedly threatened, namely, her activities with XXXX. For these reasons, like the RPD, I attach no probative value to this document in establishing the appellant's allegations. [41] For the foregoing reasons, I am of the opinion that the appellant has not shown that the RPD failed to consider the presumption that a refugee protection claimant's sworn testimony is the truth; its reasons for not finding her credible are explained in its decision, and are sufficient in my opinion to overcome this presumption. Furthermore, these elements are not, in my opinion, peripheral to the claim, as they pertain to certain key elements of her claim, in particular, the existence of threats and the existence of an objective fear. [42] I am also of the opinion that the appellant's memorandum does not establish what cultural context the RPD allegedly failed to consider in its analysis. Furthermore, this different cultural context was not mentioned by the appellant before the RPD, for example to explain some of her behaviour. Moreover, in my opinion, the RPD took into account the appellant's personal situation in its analysis, in particular her high level of education. Lastly, in my opinion, the appellant does not demonstrate in her memorandum what evidence contradicting its conclusions the RPD allegedly failed to consider. [43] The second issue in this case is whether or not the RPD erred in excluding the appellant from the particular social group of "women." [44] The RPD's conclusion in this regard was not that the appellant is "excluded" from the particular social group of women. The RPD indeed acknowledged that the appellant is a member of this particular social group (see paragraph 61 of the RPD's reasons). [45] In fact, the RPD was of the opinion that the appellant had not established a subjective fear of persecution by reason of her membership in that particular social group, because she did not raise this fear at the hearing. When questioned at the hearing about her fear of returning to Haiti, the appellant replied that she feared the people who had allegedly threatened her, as she indicated in her BOC Form. She never stated explicitly that she feared returning to Haiti simply because she is a member of the particular social group of "women." The RPD noted and took into account the appellant's answer to question 2h) of her BOC Form, which asks for "any other details that you think are important for your refugee protection claim". She wrote: [translation] "my children's education, my family's well-being, insecurity in Haiti, violence against women." However, like the RPD, I am of the opinion that these allegations are general and do not demonstrate an objective fear of persecution on the part of the appellant owing to her membership in the particular social group of women. [46] Moreover, the RPD indicates in its reasons that the appellant is not a woman [translation] "at risk," because she is married and has a home in Haiti. The RPD was of the opinion that the appellant would not be subjected to more than a mere possibility of persecution simply because she is a woman. [47] Furthermore, like the RPD, I am of the opinion that the evidence presented does not show that the appellant has a subjective fear of persecution merely by reason of her membership in the particular social group of "women." [48] In light of the foregoing, and after analyzing all the evidence submitted, listening to the recording of the RPD hearing, and considering the RPD's decision and the errors raised in the appellant's memorandum, I conclude that she has not established that the RPD made a palpable and overriding error in its decision that warrants the RAD's intervention. REMEDY [49] For the foregoing reasons, I confirm 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" within the meaning of section 97 of the IRPA. [50] The appeal is dismissed. Normand Leduc Normand Leduc January 13, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I. 2014 F.C. 702. 2 Eng v. M.C.I. 2014 F.C. 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02320 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02320 13