MB4-05014

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 : MB4-05014 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision May 20, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Claudia Aceituno Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX is a citizen of El Salvador. He is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appellant submitted no new evidence in support of his appeal and did not request a hearing before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the appellant, XXXX XXXX XXXX XXXX, is neither a "Convention refugee" under section 96 nor a "person in need of protection" within the meaning of section 97 of the IRPA. [4] The appeal is dismissed. FACTUAL BACKGROUND [5] The appellant was a XXXX in XXXX XXXX. As a member of the XXXX XXXX XXXX, he was responsible for XXXX XXXX XXXX XXXX XXXX. He fears a criminal gang, alleging that members of this gang who stole livestock were poisoned and that they blame the appellant for contaminating this livestock. [6] The appellant alleges that these criminals visited his mother on XXXX XXXX, 2014, and that they told her to give the appellant the message that they were holding him responsible and that he should leave the area. [7] The appellant left his country on XXXX XXXX, 2014, with no legitimate passport, entered Canada illegally on XXXX XXXX, 2014, and claimed refugee protection in Montréal. RPD DECISION [8] The RPD rejected the appellant's refugee protection claim on the grounds that it is not credible. [9] The RPD noted the following contradictions: - The appellant gave contradictory testimony by writing in his Basis of Claim Form (BOC Form) that he had never filed a complaint with police, while stating the opposite during his testimony. - The appellant contradicted himself during his testimony about the incident that occurred on XXXX XXXX, 2014. He initially stated that during the visit to his mother, the criminals had communicated only death threats and that it was the appellant's fault that they had been poisoned. The appellant stated that that was all and that he had nothing further to add in this regard. Later in the hearing, he reiterated the incidents of XXXX XXXX, 2014, stating that the criminals had also told his mother that they had been sent by XXXX XXXX and XXXX XXXX. [10] The RPD noted omissions regarding points that it considers key to the appellant's BOC Form: - The appellant did not specify in his BOC Form exactly whom he feared, though during his testimony, he stated that he feared a powerful, 25-member gang, and provided the names of the two gang leaders-XXXX XXXX and XXXX XXXX; - The appellant did not include in his BOC Form the one incident that allegedly led him to leave his country and claim refugee protection in Canada. The appellant did not specify that on XXXX XXXX, 2014, two criminals had gone to his mother's home (when the appellant was not there) and threatened him, ordering him to leave the area; - Despite the fact that at the beginning of the September 15, 2014, hearing, the appellant had indicated that his BOC Form, to his knowledge, was complete, his counsel indicated near the end of the hearing, when it was quite far along, that he wanted to introduce into evidence an amendment to his client's BOC Form, that this amendment had been prepared the day before, but had not been translated. This amendment was submitted at the second hearing on September 26, 2014. This amendment repeated all of the omissions raised during the hearing, the names of the leaders and the XXXX XXXX, 2014, incident. The RPD drew a negative inference in terms of credibility, given that he had not indicated in his BOC Form these incidents and information central to his refugee protection claim. [11] The RPD found the appellant's story implausible: - The RPD was of the opinion that it is inconsistent for the criminals to hold the appellant responsible for poisoning from stolen livestock, while the appellant was always known in his community as someone [translation] "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" (see page 8 of the appeal record). [12] The appellant's behaviour was not consistent with that of a person fearing for his life. [13] The appellant went through Guatemala, Mexico and the United States on his way to Canada without claiming asylum in any of those countries. The RPD drew a negative inference with regard to his fear. GROUNDS OF APPEAL [14] Before the RAD, the appellant maintains that the panel's credibility findings were unreasonable with regard to two points: [15] Concerning the failure to provide the names of the leaders and the number of members of the criminal organization in the BOC Form: In the appellant's opinion, the RPD was overzealous and overly vigilant and made erroneous credibility findings, without taking the appellant's explanations into account. [16] Concerning the contradiction between the BOC Form, in which the appellant indicates that he had not filed a complaint with police, and his testimony, in which he stated that he had in fact reported it to police: The appellant is of the opinion that the RPD made an unreasonable finding in assessing credibility, without taking the appellant's testimony into account. ROLE AND FUNCTIONS OF THE RAD [17] The RAD is a newly constituted appeal tribunal for RPD decisions, whose role has not yet been clarified. The IRPA does not expressly set out the standard of review and intervention to be applied to appeals from RPD decisions. [18] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal"1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [19] The Honourable Justice Shore in Alvarez2 is of the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner." Appeals are not de novo, and the RAD can hold a hearing only where new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA; this limits the scope of the appeal that the IRPA confers on the RAD. The appeal is also not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [20] In Eng,3 Justice Shore is of the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact because the RPD is better situated, having seen and heard the claimant. However, the RAD must perform its own assessment of all the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."4 [21] In Huruglica,5 a decision rendered after Alvarez and Eng, the Honourable Justice Phelan is of the view that the need for deference to the RPD "is less compelling between the RAD and the RPD than it is between the judiciary and the executive" and that the RAD is given much greater remedial powers. In addition, the IRPA provides in subsection 111(1) that the RAD may substitute its own determination for that of the RPD. In doing so, the RAD must conduct its own independent analysis of the appeal record and is not restricted to intervening only in the event of a "palpable and overriding error." The standard of reasonableness, which was initially applied by the RAD, was unequivocally rejected by the Court.6 [22] In Huruglica, Justice Phelan states, "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'."7 [23] Thus, Huruglica recommends an approach where deference must be given to the RPD with regard to the assessment of credibility, while conducting an independent analysis of credibility that is not limited to the "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has equal or greater expertise to the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."8 [24] In Spasoja, rendered after Huruglica, the Honourable Justice Roy gives a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the view that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings and that, for questions of law, the standard of correctness applies. This conclusion is consistent with Alvarez and Eng. [25] In Alyafi,9 Justice Martineau's view is that both positions, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal"10) can both be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [26] It seems to me that the RAD owes deference to the RPD's credibility findings, in accordance with Huruglica, because the RPD has had the opportunity to see, question and hear the appellant. [27] The RAD will consider all the evidence in its analysis, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD with respect to credibility issues. [28] The RAD will intervene only where it is of the opinion that the RPD's findings on questions of fact or mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the RAD will apply the correctness standard of review (Spasoja). ANALYSIS [29] The RAD considered all of the evidence on the record. The RPD's decision deals with credibility. [30] In the opinion of the RAD, the RPD rendered the correct decision. [31] The RPD did not believe the appellant's story or problems. Contradictions, omissions between the testimony and the BOC Form, and inconsistencies were noted, from which the RPD made negative inferences with regard to credibility. [32] The RAD is of the opinion that the points raised by the RPD concern elements central to the appellant's fear. [33] The BOC Form appendix (see page 77 of the appeal record) was introduced by counsel at the end of the first hearing, in Spanish only, even though the questions concerning the omissions and contradictions had already been raised. Counsel claimed that this amendment had been prepared the evening before, and that it had not been translated into either of Canada's official languages. In the RAD's opinion, this practice seems very unusual and inexplicable, since neither counsel nor the appellant made any reference to this document at the beginning of the hearing; moreover, the appellant confirmed at the outset that his BOC Form was complete. [34] Therefore, in this analysis, RAD references to the BOC Form do not include the amendment to the BOC Form, admitted into evidence after the first hearing of September 15, 2014. [35] The focal point of the appellant's fear resides in an incident alleged to have occurred on XXXX XXXX, 2014, when he claims that criminal gang members visited his mother. These criminals apparently told his mother that they blamed the appellant for their being poisoned by the beef and that they were after him. As the RPD noted in its decision, the appellant did not mention this incident in his BOC Form. However, the BOC Form instructions (see page 14, question 2(a) of the appeal record) state that it is important to explain the incidents on which the appellant is basing his claim for refugee protection in Canada. The RAD notes that the appellant's BOC Form contains only general statements. [36] The RPD was not satisfied with the appellant's explanations that he had never referred to this incident in his BOC Form out of fear, without specifying the fear. According to the RAD, the RPD did not err in rejecting this explanation, which is not an explanation at all, as it does not explain why, if this incident of XXXX XXXX, 2014, is the basis for his fear, he would not have included it in his BOC Form. [37] The same applies to the appellant's failure to indicate in his BOC Form that he had filed a complaint with police following the impromptu visit of XXXX XXXX, 2014. The appellant checked "No" to the question "Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you?" (see appeal record, page 15). In his testimony, the appellant stated exactly the opposite, that is, that he had reported the threats to police. The appellant could not explain this contradiction, and the RPD drew a negative inference with regard to credibility. In the RAD's opinion, the RPD did not err. [38] The appellant states that the RPD made incomplete and vague findings with regard to the fact that his BOC Form contained no details about the agents of harm. In his opinion, the RPD should have taken into account the appellant's explanations and the fact that he has little education. When questioned by the RPD about the vagueness of his BOC Form with respect to the agents of harm, the appellant offered no explanation. [39] In the RAD's opinion, although it is true that the appellant has little education, the fact remains that he was assisted by his counsel. Moreover, the RAD notes that the narrative in the BOC Form is vague, general and lacking in details. One would have expected, as in the case of the incidents of XXXX XXXX, 2014, that the appellant would have provided details about the individuals who were the reason he claimed refugee protection. [40] The RPD did not err and did not arrive at incomplete and vague conclusions. The appellant provided no concrete explanation about these omissions other than fear, and, in the circumstances, the RPD's finding of undermined credibility in this regard was correct. [41] Moreover, the RPD found that the appellant's testimony lacked credibility with regard to the names of XXXX XXXX and XXXX XXXX. He had apparently found out who they were when his mother was allegedly visited by two criminals on XXXX XXXX, 2014. However, as the RPD rightly points out, when recounting this incident during testimony, the appellant did not spontaneously say that the two criminals had given the name of the person who had sent them. The RPD asked whether the appellant had anything else to add, and he stated no. [42] It was not until later in the hearing that he added that, during that visit, the two criminals had said that they had been sent by Mr. XXXX and Mr. XXXX. [43] From this, the RPD drew a negative inference. The RAD would have arrived at the same conclusion. In its opinion, the appellant improvised to embellish his story. The RPD did not err. [44] The RAD is of the opinion that the RPD did not err in concluding that no probative value should be assigned to the documents submitted in connection with the appellant's fear, given that it did not believe the appellant's story.11 Though it would have been preferable for the RPD to state which documents were at issue, this does not constitute an error that would justify setting aside its determination. The RAD is therefore of the opinion that the documents from the XXXX XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX (see pages 73 and 75) should not be given probative value, given the finding of the appellant's lack of credibility and the fact that the RPD did not believe his story. [45] Considering that the negative inferences in terms of credibility drawn by the RPD are, in the RAD's opinion, key and determinative with regard to the appellant's story, the RAD is of the opinion that the RPD made the correct decision and did not err. Given that findings of credibility are key and determinative, the RAD will not address the last two points, that is, that the appellant's behaviour was inconsistent with that of a person who fears for his life, and that he went through Guatemala, Mexico and the United States on his way to Canada without claiming asylum in any of those countries. REMEDY [46] For these reasons, the RAD confirms the determination of the RPD 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. Roxane Cyr Roxane Cyr May 20, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, at paragraph 28. 2 Idem, at paragraph 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, at paragraph 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), MCI 2014 FC 799. 6 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Spasoja v. Canada (Minister of Citizenship Immigration), 2014 FC 913. 7 Supra, footnote 5, at paragraph 55. 8 Idem, at paragraph 38. 9 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, at paragraph 46. 10 Idem, at paragraph 16. 11 Francis Mbaioremem v. Canada (Minister of Citizenship and Immigration), FC IMM-7365-10, Shore. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-05014 11 RAD.25.02 (2014.09.11) Disponible en français