MB3-02132

RAD File No. / N° de dossier de la SAR : MB3-02132 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal Considered/Heard at Montréal, Quebec Appel instruit à Date of Decision September 25, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Claude Whalen Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, a citizen of Benin born on XXXX XXXX, 1968, is appealing against a decision of the Refugee Protection Division (RPD), alleging that it rendered a decision based on errors in its assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the Act), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the Act nor a "person in need of protection" within the meaning of section 97 of the Act. III. BACKGROUND A. Basis of the claim for refugee protection [3] In the Basis of Claim Form (BOC Form) she signed on March 5, 2013, the appellant declared before the RPD that she is a citizen of Benin and that she had two daughters and two brothers living in Canada and one son, two sisters and one half-brother living in Benin at that time.1 [4] In that same BOC Form, the appellant stated that if she were to return to her country, Benin, she would be arrested, beaten, tortured and a victim of all manner of inhumane treatment by her husband, by the family members, by the municipal authorities in Ouidah and Abomey and, above all, by the Beninese authorities because she broke with tradition. She also stated that her life is in danger because she refused to hand her daughters over to the old man to whom they had been betrothed when they were 10 years old.2 [5] In her BOC Form, the appellant stated that she asked the authorities in her country to help her when she filed a complaint at the police station after having been beaten and injured, on XXXX XXXX, 2010, but that her complaint was rejected because her husband has connections in the government. She also stated that she brought legal proceedings against him in the Cotonou courthouse on XXXX XXXX, 2010. However, the proceedings were dismissed, and she was told never to come back to the courthouse or she could end up in jail.3 [6] In her BOC Form, the appellant stated that, following these events, and because her life was in danger, on XXXX XXXX, 2011, she took refuge in northern Benin, where she stayed with a maternal aunt for two months. She also stated that the local police regularly came to search the house, so she had to leave that place; otherwise, she would have been taken and simply executed, since people in the north are more bloodthirsty, particularly if they are offered money.4 [7] In her BOC Form, the appellant stated that she left her country on XXXX XXXX, 2012, not a day earlier or later, because from 2001 onwards, her life was in serious danger, her assailants having heard that her two daughters were no longer in Benin. She also stated that she could no longer stay at her aunt's home, where she went to hide in XXXX 2011, because her husband suspected that she might be there and regularly sent police officers over. She therefore went to a friend's home in XXXX, in northern Benin, where she remained for three months, trying to live underground and frequently changing locations to throw law enforcement off her trail while actively seeking out a way to flee the country.5 B. The RPD's decision [8] The hearing before the RPD was held on May 10, 2013. In its decision dated May 24, 2013, the RPD rejected the appellant's refugee protection claim. In its reasons, the RPD noted that it took into account Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. That being said, it found that the appellant's testimony was often vague and confusing and contained several contradictions, which led the RPD to find that the appellant was not credible. It also found it to be implausible that the appellant, harassed for years by her husband to have their daughter marry a man she rejected, knew absolutely nothing about that man.6 C. Grounds of appeal [9] In her memorandum,7 the appellant raises just one ground of appeal, namely, that the RPD rendered a decision based on errors of law and of fact in its assessment of her credibility, particularly by not considering the evidence heard. D. Remedy sought [10] The appellant is requesting that the RAD allow the appeal, set aside the determination of the RPD, and allow the appellant's refugee protection claim or refer the matter to the RPD.8 IV. HEARING BEFORE THE RAD A. No new evidence was presented by the appellant on appeal [11] The appellant did not present any statement in her appeal. In her memorandum, she did not state that she intended to file evidence referred to in subsection 110(4) of the Act. B. The appellant did not request a hearing [12] The appellant did not present a statement in her appeal. In her memorandum, she did not request that a hearing be held in her appeal. [13] Consequently, there is no need to hold a hearing before the RAD. V. STANDARDS OF REVIEW [14] A standard of review analysis need not be conducted in every instance. Where the standard of review applicable to a particular question is well-settled by past jurisprudence, that standard of review may be adopted. Only where this search proves fruitless must a consideration of the four factors comprising this analysis be undertaken.9 [15] However, in this case, it must be noted that the RAD is not a court of law and does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. The RPD and RAD are both part of the Immigration and Refugee Board of Canada, but they are two distinct divisions.10 Sections 162 to 169 of the Act contain the provisions that apply to them both, particularly that each "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction";11 that the members of both divisions have the powers and authority of a commissioner and may do anything they consider necessary to provide a full and proper hearing;12 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, taking any other measure that it considers necessary to ensure the appropriate access to the proceedings.13 Sections 169.1 to 170.2 of the Act are specific to the RPD, while sections 171 to 171.1 are specific to the RAD. [16] Under subsection 110(1) of the Act, "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." [17] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by an officer tasked with hearing a complaint about a police officer's conduct, the Alberta Court of Appeal noted that the mere presence of a right of appeal-including within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.14 [18] In its decision, the Court of Appeal referred to the example of the relationship established between a trial and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.15 [19] In citing the Supreme Court of Canada, the Court of Appeal was emphasizing the importance of promoting the autonomy of the trial process and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.16 [20] I am of the opinion that the expertise and advantageous position of the first-level decision-maker should also be recognized, as did the Supreme Court regarding the trial judge: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.17 [21] Having considered the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to decisions rendered by first-level decision-makers: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.18 [22] Relying on the reasoning of the Alberta Court of Appeal and the factors identified in its analysis in Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to RPD decisions. In fact, this deference is the same as that which courts of law are required to extend to first-level decision-makers when the issue is a question of fact or a question of mixed law and fact. [23] In her memorandum,19 the appellant raises just one ground of appeal, namely, that the RPD made errors in its assessment of her credibility. However, she does not specify the standard of review that should be applied. Drawing on the case law of the Federal Court, I find that this is question of fact and that the standard of review is therefore that of reasonableness.20 [24] Reasonableness is based on the existence of justification, transparency and intelligibility within the decision-making process and on whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.21 VI. ANALYSIS OF THE MERITS OF THE APPEAL Grounds of appeal: Did the RPD err in its assessment of the appellant's credibility, particularly by failing to consider the evidence heard? [25] I find that the RPD did not err in its assessment of the appellant's credibility. Here is why. [26] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that it was not plausible that she knew absolutely nothing about the man to whom her eldest daughter was betrothed. She stated that she is not completely unaware of who this man is and that she did in fact identify him as an old man of royal lineage. She saw a photograph of him but refused to meet him.22 [27] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that her husband spoke at great length about this forced marriage and that, consequently, she should know a little more about her daughter's future husband. She stated that the evidence does not support this finding because the evidence shows that she did not want to know anything more about this man apart from what she already knew.23 [28] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that if the father had been determined to find his daughter, he would have had no trouble finding her. She stated that this finding ignores the evidence, which shows that she had negotiated an agreement with him and that he had agreed to put off the older daughter's wedding until she had completed her studies, in exchange for money and a tract of land. Consequently, he was not looking for his older daughter. Moreover, he did not know where she was attending school and was not particularly interested in his daughters, except when it came to marrying them off.24 [29] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that it is hard to believe that the older daughter was able to obtain a passport and a visa without her father knowing, especially since between XXXX XXXX, 2010, and XXXX 20111, her father was actively looking for her. She stated that this finding is not based on solid evidence and is incorrect; she indicated that it was indeed possible to obtain a passport and a visa without her father knowing it and that her father was not actively looking for his older daughter when she was finishing her studies.25 [30] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that she had changed her testimony regarding how she had been able to protect her older daughter from the forced marriage from the time she was 14 years old until she left the country at the age of 18. She stated that she did not change her testimony and that it is clearly stated in her account that she negotiated with her daughter's father so that he would wait until their daughter was 18 before acting, and that to placate him, she gave him a tract of land.26 [31] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that the appellant was not credible when she stated that she was not found while she was hiding in XXXX because she was working there and when it wrote that she had cohabited with the father of her children since 1998. She stated that they had not been living together and that it was logical in such a context that he did not know where the appellant's office was.27 [32] In her memorandum, the appellant criticizes the RPD for having made an erroneous finding when it wrote that, according to her form, she had not changed addresses since 1997. She explained that she had given her office address and that refugee protection claimants often leave out the addresses where they hid because they are not official addresses.28 [33] In its reasons, the RPD noted that, having considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, and although it was sensitive to allegations of violence against women, it found that the appellant's allegations were not credible, despite her testimony and all the evidence.29 It also stated that the appellant's testimony was often vague and confused and contained several contradictions, which led it to find that the appellant was not credible. It also found it to be implausible that the appellant, harassed for years by her husband to have their daughter marry a man she rejected, knew absolutely nothing about that man.30 After expressing its surprise to the appellant about this, and after listening to her explanations, it rejected this explanation and found that her ignorance regarding this man undermined her credibility: [translation] [12] When I told her I was surprised at such ignorance, the claimant replied that her husband was not living with her but came to visit the family one evening a week, when he spent the night. This dynamic went on for about 13 years. I reject this explanation. If this man came to visit his wife once a week for 13 years and spoke at length about this forced marriage, I find that the claimant would know a little more about the future husband of her daughter, particularly if the man was related to her husband. This ignorance undermines the claimant's credibility.31 [34] In its reasons, the RPD noted that contradictions and additions emerged from the appellant's evidence, such that it was of the opinion that the appellant was not a credible witness. For example, at paragraphs 13 to 15 of its decision, the RPD writes: [translation] [13] The claimant stated that plans for XXXX marriage were made when she was 10 years old. She originally testified that her husband had been actively looking for his daughter from the time she was 14. The claimant then allegedly hid her daughter for four years at friends' homes or at her aunt's home so that he could not kidnap her. However, although her daughter lived with acquaintances, she went to the same secondary school for three years and to a college for older children for a year. How is it that this man was unable to find her? She answered that her husband did not know where her daughter went to school and did not enquire into her schooling. This answer is unacceptable. If this man had been truly determined to find his daughter, it would have been rather easy to do so because she always went to the same school. This is not a sign that this young girl was threatened by her father or that she was being kept hidden. This, too, undermines the claimant's credibility. [14] Then, XXXX, who was being hunted by her father and was 17 years old and therefore still a minor (she was 18 when she left but 17 when she allegedly made her preparations to leave), allegedly succeeded in obtaining a passport and a Canadian visa without his knowledge. This is very difficult to believe, particularly since between XXXX XXXX, 2010, and XXXX 2011, XXXX's father was actively looking for her. None of this makes sense. [15] After the break, the claimant changed her testimony. When asked by her counsel how she was able to protect XXXX from the forced marriage for four years, the claimant instead stressed that she had given money to her husband and to the family to placate them. Why did she change her testimony? The claimant did not answer the question. This behaviour again raises the credibility of the allegations before me. 32 [35] The RPD also stated why, in its opinion, the appellant was not credible when she stated that she had changed addresses from 1997 to December 2012: [translation] [19] Furthermore, the claimant writes in her IMM-5669 refugee protection claim form, at question 12, that she never changed addresses from 1997 to XXXX 2012. If she had really left for northern Benin for five months (from XXXX to XXXX 2011) and had not been living at her apartment since XXXX XXXX, 2011, why did she not mention it in response to this question? She stated that the address indicated is that of her office. However, the wording of the question is clear: it asks for a home address, not a work address. I would have at least expected her to respond that she lived in the northern part of this country for four months. This omission once again leads me to doubt the credibility of the claimant's allegations.33 [36] Finally, while stating that this was not fatal to her claim, the RPD nonetheless stated that the appellant's daughters, who were studying in Quebec, never claimed refugee protection for themselves, despite all the alleged risks, and that when the appellant was asked to explain why, she answered that she did not know. For the RPD, this made the appellant's allegations even less credible.34 [37] My role in this appeal is not to reassess the evidence35 or to conduct a microscopic analysis of the RPD's decision, but to determine whether, when considered on the whole, this decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.36 [38] The case law clearly establishes that the RPD can reasonably base its negative credibility findings on omissions and contradictions between the oral testimony and the written statements made before the hearing. The case law also clearly establishes that the RPD may reject an explanation provided with respect to such contradictions and omissions when it finds that explanation to be unsatisfactory.37 [39] In her BOC Form, the appellant declared that the information provided in that form was complete, true and correct; that she was able to read French; that she had fully read and fully understood the entire content of that form; and that her declaration had the same force and effect as if made under oath.38 Similarly, in the Schedule A form or document IMM 5669 that she signed on March 5, 2013, the appellant stated that the information provided was truthful, complete and correct.39 [40] However, the appellant never mentioned in any of these documents who her husband or common-law partner was,40 while she alleges in her account that her husband is of royal lineage and that she had two children with him.41 In a document entitled Demande de renseignements [information request] concerning her, her marital status is listed as single.42 Moreover, as the RPD correctly noted, in my opinion, when asked in her IMM 5669 form to list all addresses where she had lived over the past 10 years, the appellant answered that from XXXX 1997 to XXXX 2012, she had resided in XXXX, XXXX XXXX XXXX.43 At the hearing, when asked to explain this last omission, the appellant gave an answer that the RPD found to be unsatisfactory, that is, that she had given her office address instead of listing where she lived. [41] The RPD can disbelieve a refugee protection claimant, but it has to say so unequivocally,44 after assessing the credibility of the refugee protection claimant while taking into account all the evidence and testimony, as well as the fact that the refugee protection claimant has made his or her various statements under oath.45 [42] In the present case, the RPD found that, in its opinion, the appellant was not credible. It considered not only the appellant's allegations, but also the answers she gave at the hearing, as well as the evidence in the record. In short, it correctly analyzed the essential components of the appellant's refugee protection claim but did not believe her story. [43] Having carefully read the reasons in the RPD decision, I find that the RPD considered the evidence, as well as the explanations provided by the appellant, and that it sufficiently justified its reasons for finding that the appellant's testimony was not credible. I am therefore of the opinion that the RPD, relying on the appellant's lack of credibility, falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and that the reasons for that decision are clear and sufficient. VIII. REMEDY [44] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the Act nor a "person in need of protection" within the meaning of section 97 of the Act. [45] The appeal is dismissed. Me Alain Bissonnette Date IRB translation Original language: French 1 Basis of Claim Form, pages 11 and 15 of the RPD record. 2 Idem, pages 12 and 19 to 23 of the RPD record. 3 Idem. 4 Idem, page 13 of the RPD record. 5 Idem. 6 RPD decision, paragraphs 8 to 11, page 5 of the RPD record. 7 Appellant's memorandum, pages 9 to 14 of the appeal record. 8 Idem, page 14 of the appeal record. 9 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53; [2011] 3 S.C.R. 471, paragraph 16. Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 16. 10 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 11 Section 162 of the Act. 12 Section 165 of the Act. 13 Section 166 of the Act. 14 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] . . .While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principled basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 15 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 16 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 17 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 18 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 19 Appellant's memorandum, pages 9 to 14 of the appeal record. 20 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. 21 Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 22 Appellant's memorandum, page 11 of the appeal record. 23 Idem. 24 Idem, pages 11 and 12 of the appeal record. 25 Idem, page 12 of the appeal record. 26 Idem, pages 12 and 13 of the appeal record. 27 Idem, page 13 of the appeal record. 28 Idem. 29 RPD decision, paragraph 8, page 5 of the RPD record. 30 Idem, paragraphs 8 to 11, page 5 of the RPD record. 31 Idem, page 6 of the RPD record. 32 Idem. 33 Idem, pages 7 and 8 of the RPD record. 34 Idem, page 8 of the RPD record. 35 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, paragraph 59: "Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome." 36 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 37 Vazquez Bizarro v. Canada (Minister of Citizenship and Immigration), No. IMM-5378-12, Noël, February 8, 2013; 2013 FC 140, at paragraph 18. 38 Appellant's Basis of Claim Form, page 18 of the RPD record. 39 Schedule A: Background / Declaration, pages 73 to 76 of the RPD record. 40 Appellant's Basis of Claim Form, answer to question 5, page 15 of the RPD record. 41 Idem, answer to question 2(a), page 11 of the RPD record. 42 GCMS information request: Request, page 88 of the RPD record. 43 Schedule A: Background / Declaration, answer to question 12, page 75 of the RPD record. 44 Maksud v. Canada (Department of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 45 Ballesteros v. Canada (Minister of Citizenship and Immigration), No. IMM-3979-08, Lagacé, April 7, 2009; 2009 FC 352, at paragraph 22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-02132 15