MB4-02619

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 : MB4-02619 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, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Carolina Roa Sanchez Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Colombia, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She has not presented any new evidence in support of her appeal and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is 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. BACKGROUND [4] The appellant is a twice-widowed 52-year-old woman, who states in her Basis of Claim Form (BOC Form) that she submitted to the RPD that she began dating one XXXX XXXX XXXX XXXX whom she apparently met at a parish function on XXXX XXXX, 2011. [5] The appellant alleges that she was threatened on XXXX1, 2012, at her work, by a woman accompanied by bodyguards, who claimed to be Mr. XXXX's wife. She allegedly stopped dating XXXX XXXX after speaking with him and after he explained that he had separated from that woman, with whom he had had children. [6] The appellant came to Canada on November 28, 2012, to help out her daughter, who lives here and who was pregnant. She alleges that XXXX XXXX telephoned her when she was in Canada, to profess his love for her and entreat her to come back to Colombia. The appellant returned to Colombia on XXXX XXXX, 2013, and resumed her relationship with XXXX XXXX. [7] The appellant alleges that XXXX XXXX's ex-wife showed up at her work again on XXXX 5, 2013, and forced her to get into a van. This woman, who was accompanied by her bodyguards, allegedly hit her. She alleges that the woman told her that XXXX XXXX was a paramilitary leader with the XXXX XXXX gang, and that she threatened to kill her by giving her 48 hours to [translation] "clear out." [8] The appellant left her country for Canada on XXXX XXXX, 2013. She alleges that her cousin, who worked with her, was murdered on XXXX23, 2013, and was found with a sign around his neck that stated [translation] "XXXX XXXX to XXXX from the XXXX XXXX." She claimed refugee protection in Canada on February 25, 2014. [9] The appellant alleges that her son had to move from the city of Bogota to La Guajira, in early April 2014, because he had received threats from people who were looking for her. [10] The RPD rejected the claim for refugee protection on the ground that the appellant's allegations were not credible. The RPD found that the appellant's credibility had been undermined for the following reasons: * There is a contradiction between her testimony alleging that she last spoke to XXXX XXXX in September 2012, before her trip to Canada, and next spoke to him only on XXXX XXXX, 2013, when she returned to Colombia, and her BOC Form, in which she wrote that she spoke to XXXX XXXX between those two dates, when she was in Canada. * There is a contradiction between her testimony that there was no witness to her initial meeting with XXXX XXXX's wife, on XXXX 1, 2012, and the letter from her friend and colleague, who wrote that she witnessed that meeting. * There is an omission in her BOC Form of the fact that her colleague apparently contacted the police when she was abducted on XXXX 5, 2013, which is in her testimony. * There is an omission in her form (BOC Form) of the fact that XXXX XXXX's wife supposedly threatened to go after her family members during the incident on XXXX 5, 2013, which is in her testimony. * There is an omission in her BOC Form of the fact that the family members of her cousin, who died in XXXX 2013, are now apparently in hiding in Colombia, which is in her testimony. * There is an inconsistency regarding the letter from the funeral home in connection with her cousin's death: it indicates the date of XXXX23, 2013, with a specific time, without indicating any date for the funeral, whereas her cousin's body was apparently found on XXXX 24, 2013. * The newspaper article about her cousin's death reports different circumstances from the ones she described. * The five-month delay in claiming refugee protection after arriving in Canada is behaviour that is inconsistent with that of someone who fears for her life. [11] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility, for reasons that will be set out in the "Analysis" section below. [12] For those reasons, the appellant is requesting that the RAD set aside the determination of the RPD and grant her refugee protection. THE RAD'S ROLE [13] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the appellant has not expressly indicated in her memorandum what standard of review should apply or what the role of the RAD should be, although she notes that the RPD's determination is unreasonable and arbitrary. [14] The Federal Court, which has the authority to review RAD decisions, has rendered a few decisions to date about the standard of review or intervention that the RAD should apply and its role when RPD decisions are 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 and paragraphs 29 and 30 of Eng, the Court writes as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [17] The Court adds the following at paragraph 33 of Alvarez and paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [18] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes as follows: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [19] With regard to the RAD's authority under subsection 111(1) of the IRPA to substitute the 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 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 that case, in line with the previous decisions in Huruglica, Eng and Alvarez, the Court first found 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 relating to 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 before it (paragraphs 39, 40 and 46). [25] The Honourable Justice Roy also indicates that he could not find any indication that could lead to the conclusion that proceedings before the RAD are de novo proceedings (paragraph 42), and states in the following paragraph of his decision that: [translation] [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4).... [26] Lastly, in a decision rendered on October 8, 2014 (Alyafi v. M.C.I., 2014 FC 952), the Honourable Justice Martineau of the Federal Court, having reviewed the aforementioned decisions, concludes that they all reject the reasonableness standard of review and then states that, in his opinion, the RAD should 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] Justice Martineau writes in paragraph 46 of Alyafi that: [46] ...I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [28] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role set out therein appears to me to be more easily applicable than the role set out in Huruglica, when no new evidence is submitted to the RAD and no hearing is held before it, as in this case. [29] In this case, I am of the opinion that the error alleged by the appellant with respect to the assessment of her credibility is a question of fact, and I will therefore apply the standard of palpable and overriding error and will defer to the RPD's findings on this matter. [30] I will review and conduct an independent assessment of all the evidence submitted to the RPD, to determine whether it committed a palpable and overriding error. [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] In her memorandum, the appellant first submits that the RPD's finding that there is a contradiction between her testimony and her BOC Form with respect to whether she spoke to XXXX XXXX during her first trip to Canada in 2012 is erroneous, because her explanation that she did not speak [translation] "in person," but rather on the telephone, to XXXX XXXX is reasonable. [33] I partially agree with the appellant's claims in that regard. It is true that at some point in the hearing, the appellant testified, in response to a question from the panel, that when she spoke to XXXX XXXX when she returned to Colombia on XXXX XXXX, 2013, that was the first time she had done so since September 2012, thus seeming to omit the telephone conversation they allegedly had in December 2012, when she was in Canada. Returning to the topic a little later in the hearing, the appellant explained that she had not spoken [translation] "in person" to XXXX XXXX between September 2012 and January 2013, and confirmed that they did in fact have a telephone conversation in December 2012, as indicated in her BOC Form. [34] In my opinion, that is not a substantial enough omission or contradiction to undermine the appellant's credibility. On the one hand, I am of the opinion that the explanations provided by the appellant are reasonable in the context of the hearing and the order in which the questions were asked. On the other hand, the appellant did not deny having a telephone conversation with XXXX XXXX when questioned directly on that point. She thus confirmed what was alleged in her BOC Form. The contrary would have constituted, in my opinion, a more substantial contradiction, which is not the case here. [35] The appellant then submits in her memorandum that the RPD's finding with respect to the contradiction between her testimony that there was no witness to the incident on XXXX 1, 2012, with XXXX XXXX's wife at her work, and the letter from her colleague submitted in evidence, in which she states that she witnessed the scene, is erroneous because she is not obliged to explain the actions or comments of others, in this case her colleague. [36] I do not agree with the appellant's claims in that regard. First, the appellant provided two explanations that, in my opinion, are inconsistent: she stated that her colleague merely repeated in her letter what she herself had recounted of the incident; then, when questioned by her counsel, she explained that her colleague may have seen the incident, because the room the colleague was in during the incident had windows. It appears inconsistent to me that the appellant does not know whether her colleague saw the incident, because they apparently talked about it afterwards. Next, in my view, it is not only appropriate to attach no probative value to the letter submitted in evidence, if the appellant testifies that her colleague merely repeated what she had told her and her colleague erroneously states that she was a witness thereto, but it is also appropriate to conclude that the submission of that letter, combined with the appellant's testimony about the letter, undermines her credibility. [37] The appellant then submits that the RPD erred in identifying three omissions in her BOC Form and that it misinterpreted her testimony. [38] In my opinion, that is not what emerges from listening to the recording of the RPD hearing, at least with respect to the first two omissions identified by the RPD. In the case of the first two omissions, i.e., the omission that her work colleague allegedly contacted the police following the incident on XXXX 5, 2013, and that the police came to her workplace, and the omission of the threats made to her family members, it seems clear to me that the appellant, when questioned about this, provided no explanation for those omissions in her BOC Form. Consequently, I find, as did the RPD, that the appellant's credibility is undermined by those omissions. [39] However, in my opinion, the explanations provided by the appellant with respect to the third omission, i.e., the disappearance of the immediate family of her cousin (who was allegedly killed in late XXXX 2013), are reasonable, in the circumstances. The appellant explained that she did not mention that fact in her BOC Form because that disappearance apparently did not occur until March 2014, when the form had already been submitted, even though corrections to the form were submitted in evidence to the RPD in April 2014. It is also noteworthy that the RPD, in paragraph 28 of its reasons, indicates that that omission is not [translation] "as considerable" as the two previous omissions, and thus, in my opinion, is not fatal to the claim in any case. [40] The appellant then submits that the RPD erred in finding that the document from the funeral home was inconsistent and that the newspaper article reporting on the death of her cousin in different circumstances from those she alleged undermined her credibility. [41] While it is true that those two documents did not come from the appellant and that she is not obliged to explain any inconsistencies or contradictions they may contain, I nevertheless find that the inconsistencies or contradictions identified undermine the appellant's credibility, as the RPD found. Especially in the case of the newspaper article, I find, as did the RPD, that it seems utterly implausible for the newspaper not to report the circumstances of the appellant's cousin's death as she alleged them to be, and for the newspaper to report different circumstances. [42] Finally, with respect to the delay in claiming refugee protection in Canada, while it may undermine the credibility of the appellant's fear, it is not determinative in the refugee protection claim, and it is thus not necessary to assess whether the RPD erred on that point. [43] In light of the foregoing and after analyzing all the evidence submitted, listening to the recording of the RPD hearing and considering the RPD's determination and the errors raised in the appellant's memorandum, I conclude that the appellant has not demonstrated that the RPD committed a palpable and overriding error in its decision that would justify intervention by the RAD. REMEDY [44] 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. [45] The appeal is dismissed. Normand Leduc Normand Leduc February 2, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 FC 702. 2 Eng v. M.C.I., 2014 FC 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-02619 2 RAD.25.02 (2014.09.11) Disponible en français