MB4-00342

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 : MB4-00342 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 February 2, 2016 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Côte d'Ivoire, is appealing against the decision of the Refugee Protection Division (RPD) to reject his refugee protection claim. [2] He is not presenting any new evidence on appeal and is not requesting a hearing 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 1. The appellant's allegations before the RPD [4] The appellant is a 34-year-old XXXX by profession, who alleges in the Basis of Claim Form (BOC Form) that he filed before the RPD that he was attacked on XXXX XXXX XXXX 2012, by people from the Dozo ethnic group and members of the Forces républicaines [republican forces] in the city of XXXX, where he had gone to work. He alleges that his attackers attacked him on the pretense that he had stolen a gold statuette, when the real reason was because he was a member of the political party called the Front populaire ivoirien (FPI) [Ivorian popular front]. [5] The appellant alleges that he arrived in Canada on XXXX XXXX, 2012, to attend a conference on XXXX in the XXXX XXXX XXXX. He alleges that he received a call from his brother and his wife on XXXX XXXX, 2012, informing him that his house in Abidjan had been looted, vandalized and burned by Dozo and members of the Forces républicaines, who claimed to be looking for the statuette, and that his housekeeper had been killed. [6] The appellant therefore claimed refugee protection in Canada on or around February 9, 2013 (date of the signature on the BOC Form). 2. The RPD decision [7] The RPD rejected the refugee protection claim on the ground that the appellant's essential allegations were not credible. The RPD found that the evidence presented was [translation] "rife with omissions, contradictions and inconsistencies" (paragraph 13 of the reasons), particularly with regard to his membership in the FPI political party, his activities within that party and the period when he was living in the city of Karakoro. 3. The RAD's first decision [8] The appellant appealed against the RPD decision before the RAD, and the RAD's decision dated March 24, 2014, dismissed the appeal and confirmed the determination of the RPD. 4. The Federal Court decision [9] The appellant applied to the Federal Court for judicial review of the RAD's decision, and the Court, in a decision dated February 6, 2015, allowed the application for judicial review, mainly because the RAD had erred in using reasonableness as the standard of review of the RPD decision and, consequently, the appellant did not have the appeal he was entitled to. [10] The Court set aside the determination of the RAD and referred the matter to the RAD for a re-determination, hence this decision. 5. The appellant's submissions before the RAD [11] Before the RAD, the appellant submits that the RPD erred in its assessment of his credibility because it failed to consider his [translation] "state of mind" at the hearing, which was one of extreme stress and which affected his ability to testify. It also erred in failing to consider some of the evidence submitted, such as the statement from his employer and the death certificate for his maid, Flore Marie. [12] For these reasons, the appellant is asking the RAD to allow the appeal. 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 and, in this case, the appellant has not proposed any in his memorandum. [14] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the RAD's standard of review or intervention, or its role when an RPD decision is appealed to it. [15] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada has ruled on this matter. [16] At paragraphs 28 and 29 of Alvarez, as well as 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 at 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 considers the RAD's role and functions 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.... [19] In considering 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)(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.... [20] Justice Phelan finally 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". [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 previous Huruglica, Eng and Alvarez decisions, the Court first finds in that case that the RAD 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 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 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 in terms of 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 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 by it (paragraphs 39, 40 and 46). [25] 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).... [26] 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, after analyzing the above cases, first concludes that they all reject the reasonableness standard of review, and then states that, in his opinion, 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). [27] In fact, Justice Martineau writes the following at paragraph 46 of Alyafi: [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. [28] Consequently, in my view, 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 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 is held before it, such as in this case. [29] In this case, I am of the opinion that the error the appellant alleged with regard to the RPD's assessment of his credibility is one of fact, and I will therefore apply the standard of palpable and overriding error. [30] I will proceed with a review and my own assessment of all the evidence presented before the RPD in order to determine whether it committed any palpable and overriding errors. I must also show a measure of deference to the RPD's findings regarding the credibility of the appellant, whom it had the opportunity to see and hear. [31] 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. ANALYSIS [32] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [33] Having analyzed the evidence presented before the RPD, including listening to the hearings before the RPD, and considered both the RPD's reasons and the appellant's record before the RAD, I am of the opinion that the answer to this question is no, for the following reasons. [34] Like the RPD, I am of the opinion that there are sufficient hesitations, contradictions and inconsistencies in the appellant's testimony on essential elements of the claim to undermine his credibility. [35] With regard to his membership in the FPI political party, which is at the root of the alleged attacks and threats, the evidence contains several contradictions. [36] The appellant testified that he became the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, 2010, but in his IMM5669 form he indicates that he was XXXX XXXX XXXX XXXX from XXXX 2010 to XXXX 2013 (see page 34 of the RPD record). [37] The appellant's testimony on the structure of the party was also vague and imprecise; the appellant was unable to name the different factions of the party or to explain whether there are [translation] "regular" members other than "youths" in his commune. It was only when confronted by the RPD that the appellant finally stated that the party has North, South, East and West Abidjan factions, and that his commune of XXXX is part of the XXXX faction. Moreover, the appellant did not give a reasonable explanation for why his membership card (Exhibit P-5, page 146 of the RPD record) indicates that he is a member of the [translation] "St-Jean federation" and is dated 2012, when the appellant wrote in his IMM5669 form (page 35 of the RPD record) that he lived in XXXX XXXX XXXX from 2004 to 2007. Furthermore, the appellant contradicted himself in his testimony as to whether the indication of "XXXX XXXX XXXX" on his membership card referred to his place of residence or not. [38] His testimony on the subject of his own activities within the party was vague. The appellant merely stated that he attended meetings. The appellant had to be questioned repeatedly in order to understand his political activities, and his answers were still vague-he was either an [translation] "activist" or he was distributing T-shirts with the President's picture. [39] Given this difficult testimony, I am of the opinion that no probative value should be given to the membership card, the enrolment form (Exhibit P-7, page 92 of the RPD record), or the statement (Exhibit P-17, page 74 of the RPD record) that, furthermore, bears a contradiction with regard to the signatory's first name (XXXX XXXX XXXX in the text and Louis on the stamp). [40] On another subject, but just important to the claim, there is a contradiction in the evidence with regard to the time when the appellant was working in XXXX, that is, from XXXX XXXX to XXXX XXXX, 2012, according to his testimony, and from XXXX 2012 to XXXX 2012, according to his IMM5669 form (page 34 of the RPD record). The appellant's explanation that the dates in the form represent the period that he was supposed to be working in that city is not reasonable and, consequently, his credibility is further undermined. [41] On the subject of the medical certificate submitted as evidence (Exhibit P-8, page 93 of the RPD record), I am of the opinion, like the RPD, that the appellant's testimony about how he obtained it was contradictory (by email or in person), and then, there is the contradiction with regard to the spelling of the doctor's name (XXXX or XXXX). Consequently, no probative value should be given to this document, and the appellant's credibility is undermined. [42] Lastly, as mentioned earlier, I am of the opinion that I must show a measure of deference to the RPD's findings regarding the credibility of the appellant because it had the opportunity to observe him during his testimony. [43] In his memorandum, the appellant submits that the RPD erred in its assessment of his credibility because it did not consider his state of mind during his testimony. I do not agree with that argument. [44] On the one hand, the RPD considered the appellant's nervousness in its analysis, as indicated in paragraph 13 of its reasons, and on the other hand, it is completely normal for a refugee protection claimant to feel some stress when testifying before a panel, but this does not explain all the contradictions and inconsistencies in the evidence presented. Furthermore, the appellant never mentioned at the hearing that he felt any stress that could affect his ability to testify, and no medial or psychological document was submitted to support this, before either the RPD or the RAD. The only mention the appellant made regarding his state of health before the RPD was that he had some back pain, but he confirmed when questioned by the RPD and by his counsel that he was able to continue with his testimony and the hearing. [45] It is true, as the appellant submits in his memorandum, that the RPD does not mention in its reasons documents P-9 and P-13, which were filed before it and seem to corroborate his allegations. [46] I am of the opinion that Exhibit P-9, which is a death certificate for the appellant's housekeeper, according to his statements (page 94 of the RPD record), does not, however, establish a connection between the deceased person and the appellant, nor does it explain the reasons or cause of death or how it relates to the appellant's problems. For these reasons and in light of the appellant's testimony that was found to be not credible, I am of the opinion that no probative value should be given to this document that aims to corroborate the appellant's allegations. [47] Exhibit P-13 (pages 79 and 80 of the RPD record) is supposedly a letter from the corporation for which the appellant was working at the time of his alleged problems. However, this is not testimony from someone who witnessed first-hand the events alleged by the appellant, but rather someone (apparently the mining director) who can only recount what the appellant himself had told him. This director was not present in XXXX when the appellant was allegedly attacked or when the appellant's house was reportedly attacked. For these reasons and because the appellant's testimony was found to be not credible, I am of the opinion that no probative value should be given to this document that aims to corroborate the appellant's allegations. [48] Consequently, I find that, together, all the preceding elements undermine the appellant's credibility and that he has not established that the RPD made an error in its decision that would warrant the RAD's intervention. REMEDY [49] For these 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 February 2, 2016 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB4-00342 12