TB4-00413

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 : TB4-00413 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 14, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel L. Winbaum Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause 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 [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Guatemala, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he was involved in a Committee for the Betterment of the Community in 1998. On behalf of the Committee, he complained to the local police that market prices for local crops were too low as a result of Honduran crops being sold at the market. He was threatened by the police chief, and he later fled the area when he heard that the police and the army were seeking him. In 1999 he attempted to illegally enter the United States, but he was detained and brought before an immigration judge, who issued a deportation order. The Appellant nevertheless remained in the U.S. without status for more than thirteen years. In XXXX of 2013, he entered Canada, and he made a refugee claim in May of 2013. [4] The Appellant's application for refugee protection was heard on July 8, 2013. By a decision of December 24, 2013, the RPD rejected the claim. It cited numerous credibility concerns with the Appellant's evidence: that he was unable to provide details of his alleged participation in the Committee, that others who played a larger role in the Committee were not threatened, that he failed to seek refugee protection during more than a decade in the United States, that he failed to reveal to the RPD that he departed the United States in 2001, and that he failed to provide a copy of the complaint letter he had allegedly presented to police. The RPD found that the Appellant did not provide sufficient credible and trustworthy evidence in support of his allegations. [5] The Appellant submits that the RPD failed to refer to all of the evidence and made erroneous findings of fact in rejecting his refugee claim. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The Appellant submits a letter, allegedly from a Captain of the National Civil Police and the President of the Community Committee,1 as new evidence in support of his appeal. [8] The Refugee Appeal Division Rules require that the Appellant's Memorandum include full and detailed submissions about how this document meets the requirements of Section 110(4) of IRPA and how the document relates to the Appellant.2 [9] The letter is dated January 23, 2014 and thus appears to have arisen after the rejection of the Appellant's claim. However, it is clear that the letter was written in response to a request: "[Committee President] Mr. XXXX has come to me for help with the goal of helping Mr. XXXX XXXX XXXX XXXX whom he knows well as they are from the same town." It is not clear to the RAD why this document could not have been requested in time for the Appellant's RPD hearing. The contents of the letter relate to an alleged problem in 1998. The Appellant made his refugee claim in May of 2013; it was heard in July, and it was rejected in December of 2013. The Appellant was questioned about corroborating documents during his refugee hearing. [10] Although the Appellant filed a lengthy affidavit in support of his appeal, it does not explain how he obtained the new evidence, or why it was not available earlier. Although his Memorandum makes a brief reference to the letter, it does not make full and detailed submissions-or any submissions at all-about how the evidence meets the requirements of Section 110(4), despite the requirements of the Rules. [11] The Appellant has not established that the proposed new evidence meets the requirements of Section 110(4), and the letter is therefore not admitted into evidence before the RAD. Standard of Review [12] The Appellant argues that the RPD erred in its consideration of the evidence and its assessment of his credibility, and this appeal therefore raises questions of fact. [13] The Appellant argues that the provisions of IRPA, which give broad powers to the RAD, are more consistent with a true appeal than with an application for judicial review. In his submission, the standard of review to be applied here is one of correctness. [14] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [15] In Dunsmuir,3 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,4 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [16] In Newton,5 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:6 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [17] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.7 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [18] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [19] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.8 [20] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [21] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.9 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [22] In the context of an appeal to the RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [23] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [24] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [25] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,10 and each can take notice of information and opinion within its specialized knowledge.11 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,12 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.13 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,14 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [26] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.15 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [27] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.16 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [28] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.17 [29] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.18 The RPD's Findings [30] The Appellant argues that the RPD made various errors in rejecting his claim for refugee protection. [31] Attendance and participation in Committee meetings: The RPD asked the Appellant about his role on the Committee. He testified that he did not hold any position, but he was a member at large. He could not remember how many meetings he attended. While the RPD did not make a clear credibility finding in respect to this evidence, it did state that it "added to the concerns the panel had regarding the credibility of the claimant's allegations."19 The panel also noted that, although XXXX signed the complaint letter, he has never been threatened, nor has the Appellant's father, who was also connected to the complaint. [32] The Appellant submits that the RPD did not refer to all of his evidence. He argues that he testified that he usually attended a meeting once a week and that he provided concrete details of his participation in the committee. [33] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.20 The RAD Rules require the Appellant to set out the "where the errors are located in the written reasons... or in the transcript or in any audio or other electronic recording" of the RPD hearing.21 Here the Appellant has not specified at which point in the audio recording he gave evidence that was allegedly misconstrued by the RPD. The RAD has, however, reviewed that recording to consider the Appellant's evidence. [34] The RAD's review of the Appellant's testimony shows that he told the RPD that he was a member at large of the committee. The panel asked him few questions about his participation in the organization. Counsel before the RPD asked him further questions; he testified that he did not remember how many meetings he attended. He explained that there were "several" and that the Committee met once or twice a week after he joined. He then testified that the complaint letter was discussed by the Committee, and he explained that there were two meetings held to discuss the document. [35] The recording of the Appellant's testimony does not support the RPD's conclusion that the Appellant could not provide concrete details about the Committee. While he could not remember the total number of meetings he attended, it is not clear why that precise figure is important, or why he can be expected to remember this more than fifteen years later. The Appellant was able to answer questions, both from the RPD member and from his own counsel, about the Committee. [36] The RPD's credibility "concerns" in respect to the Appellant's evidence of his Committee participation were unreasonable. [37] Wanted list and passport renewal in the U.S.: The Appellant argues that the RPD did not refer to all of his evidence about how he was placed on the wanted list, why he did not submit another police complaint, or about how his friend told him the army and police were looking for him and had placed him on a wanted list. He also submits that the RPD erred when it failed to set out all of his testimony about obtaining a passport in the U.S. He told the RPD that the Guatemalan consulate in the U.S. did not have information about lists maintained by the army or police; further, he argues, the RPD did not refer to any evidence about how the police, army, and consulates share information. [38] As set out above, the RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document. There was simply no requirement for the RPD to set out each detail of the Appellant's testimony in its reasons, whether in respect to his placement on the wanted list or his application for a passport. [39] In fact, the RPD's credibility finding here was not based on the Appellant's application for a passport and whether the consulate might have known that he was on the "wanted" list. Instead, the RPD found that the Appellant gave contradictory testimony: first he claimed that he knew in 1998 that he was on the list and would always be on the list. When testifying about obtaining the passport, he explained that he did not have any fear that he was on a wanted list; however, he then claimed that he is afraid at the present time because he is on such a list. It seems that the Appellant was afraid because of the list in 1998, and he is afraid because of the list today, but he did not have such a fear when he sought a passport from the Guatemalan authorities in 2008. The RPD made a negative credibility finding on the basis of this inconsistent evidence, and the RAD finds that this was reasonable. [40] Failure to claim in the U.S.: The Appellant disagrees with the RPD's conclusion that his failure to seek protection in the U.S. is indicative of a lack of subjective fear. He submits that the panel ignored his evidence that he was given a deportation order in 1999 and believed there was nothing to be done once such an order was made. [41] The Appellant allegedly lived in the U.S. for about thirteen years, without status and after being issued a deportation order. Despite allegedly fearing for his life in Guatemala, he made little or no effort to seek protection in the U.S. He did not seek asylum information from friends, community, or legal counsel. He claims that he simply concluded, "there was nothing to be done." [42] From 1999 onward, the Appellant was at risk of being deported to Guatemala, but he apparently took no steps to advise U.S. authorities of the danger he faced. In this context, it was reasonable of the RPD to find that the Appellant's lack of action is indicative of a lack of subjective fear. [43] Biometrics report: The RPD considered a biometrics report from U.S. authorities which matches the Appellant's fingerprints to someone named XXXX XXXX XXXX XXXX XXXX, who entered the United States in 1999, was issued a departure order later that year, and he left the country in 2001. The panel considered the Appellant's explanation that U.S. officials incorrectly recorded his name and failed to correct it; it noted that the Appellant did not provide an explanation for the information indicating that he departed the U.S. in 2001. The RPD drew a negative inference in respect to the Appellant's overall credibility. [44] The Appellant submits that this was a serious error. He argues that he provided additional documents that show that he was never known by other names, including a passport issued in his own name. He argues that the consulate would not issue such a document if concerned about his identity. [45] It was reasonable for the RPD to draw a negative inference from the Appellant's evidence in respect to the biometrics report. It seems unlikely that immigration officials would confuse the name "XXXX" with "XXXX" and equally improbable that they would have a record of the Appellant leaving the United States when he claims he never did. The Appellant did not provide a credible explanation for this information. The fact that he has other documents, including a passport, in his real name does little, if anything, to establish that he did not also use another identity. The RPD did not err in its treatment of the biometrics report. [46] Copy of complaint letter: The RPD asked the Appellant whether he could provide a copy of the complaint letter, a document which is central to his claim. He testified that he had not made any efforts to obtain this letter because it was not in his best interests to do so. The panel considered the Appellant's other credibility problems, the fact that he was represented by counsel, and that he had ample time to prepare his case, and it made a negative credibility finding on the basis of his failure to obtain and disclose this important corroborating document. [47] The Appellant submits to the RAD that the RPD failed to set out all of his evidence here, and did not consider his testimony that the former chair of the Committee, XXXX, kept the documents in his file, and that it is not in the Appellant's best interest to ask XXXX for anything since XXXX XXXX knows what happened. The Appellant points out to the RAD that he testified that XXXX did not support him after he was threatened by the police, and he did not want to proceed with a second complaint. [48] As the RAD has already noted, there is no requirement for the RPD to refer to each piece of evidence. Here the RPD considered the Appellant's evidence and rejected his explanation. In the RAD's view, that explanation makes little sense. It was indeed in the Appellant's best interest to obtain a key document in support of his refugee claim. He did not claim that XXXX refused to provide the document; in fact, he attempted to rely on another corroborating letter which quotes XXXX.22 Perhaps the Appellant would have been unsuccessful in obtaining the complaint document from XXXX; however, it was reasonable for the RPD to make a negative credibility finding as a result of his failure to make any effort to obtain the letter. [49] Other documents: The Appellant argues that the RPD did not challenge the authenticity of a letter from the current president of the Committee, and it also did not refer to country condition documents that corroborate the Appellant's allegations. [50] The RPD did consider the president's letter and gave it "very little weight in terms of establishing the claimant's allegations."23 The RPD noted that the letter was very general and that its author was relaying events which he had learned from others. In the RAD's view, it was reasonable for the RPD to give this document little weight. The writer appears to be repeating information from XXXX-from whom the Appellant failed to seek any first-hand corroboration-and from the Appellant, whom has reasonably been found to be lacking in credibility. Further, the RAD notes that the letter refers to the Appellant as a board member of the committee, which is inconsistent with his testimony to the RPD that he was a member at large. [51] There was no requirement for the RPD to make specific mention of country condition documents. The panel is presumed to have considered all of the evidence before it. The Appellant's claim failed because of his own lack of credibility. As such, his claim cannot be founded solely on objective evidence of corruption in his country or even on evidence of past persecution of Committee members. [52] The RAD has carefully considered the RPD's reasons. The RPD appeared to make an unreasonable credibility determination in respect of the Appellant's evidence of Committee participation. However, the remainder of the RPD's credibility findings are reasonable. Even when the unreasonable finding is removed from the assessment of the Appellant's credibility, there remain sufficient deficiencies to support the RPD's finding that the Appellant's evidence was generally lacking in credibility, and that he failed to establish his claim. [53] The RPD's decision to reject the Appellant's refugee claim falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. CONCLUSION [54] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld April 14, 2014 Date 1 Appellant's Record, p. 11. 2 Refugee Appeal Division Rules, Rule 3(3)(g)(iii). 3 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 6 Newton, para. 43. 7 IRPA, Sections 96 and 97. 8 Khosa, para. 89. 9 IRPA, Section 3(2)(a). 10 IRPA, Sections 170(g) and 171(a.2). 11 IRPA, Sections 170(i) and 171 (b). 12 IRPA, Section 170(b). 13 IRPA, Section 110(3). 14 Khosa, para. 89. 15 Newton, para. 80. 16 Khosa, para. 89. 17 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 18 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 19 RPD's Reasons, para. 8. 20 Hassan v. Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 21 RAD Rules, Rule 3(3)(g)(ii). 22 Appellant's Record, p. 22, Letter of XXXX XXXX XXXX XXXX. 23 RPD's Reasons, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-00413