MB5-02241

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 : MB5-02241 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 December 14, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Benin, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She is presenting what she states is new evidence on appeal but is not asking 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 not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant is a XXXX-year-old woman who alleges in the Basis of Claim Form (BOC Form), which she filed before the RPD, that she fears returning to her country because of the threat that she and her family face from a person whom her father reportedly had arrested for fraud and corruption in the past. [5] The appellant alleges that her father, then XXXX XXXX of public XXXX for the country, had one XXXX XXXX (in fact XXXX XXXX) removed for corruption. This same XXXX XXXX, following the election of the XXXX XXXX government, was apparently appointed to replace the appellant's father as XXXX XXXX of XXXX XXXX. [6] The appellant alleges that her father learned in XXXX 2014 that he was under investigation for fraud and corruption. Reportedly, he also received death threats by telephone, the front of his home was vandalized, and shots were heard nearby. She states that her father died in XXXX 2014 of heart complications. [7] The appellant arrived in Canada in July 2013 as a student. After her father died, she could no longer pay her tuition fees and claimed refugee protection in January 2015. [8] The RPD rejected the claim for refugee protection on the ground that the appellant's allegations were not credible. The RPD also found that the appellant's credibility was undermined in that: - It is implausible that her father received such a large number of telephone threats, more than 50, beginning in December 2013. - It is implausible that XXXX XXXX waited more than seven years before taking revenge on her father, especially since he held important positions in the Beninese government, namely XXXX of XXXX and XXXX from 2006 to 2011 and the position of XXXX XXXX from 2011 to 2013. - The appellant did not file any documents and did not do any research to obtain any documents regarding the arrest and alleged conviction of XXXX between 2004 and 2006, a conviction for which her father was reportedly responsible. [9] Before the RAD, the appellant submits that the RPD erred in the analysis of her credibility insofar as it considered that the threatening calls her father received began in XXXX 2013 instead of XXXX 2014; it considered that her father learned that he was under investigation in XXXX 2014 instead of XXXX 2013; the appellant did not testify that her father had received about 50 threatening telephone calls. [10] For these reasons, the appellant is requesting that the RAD set aside the determination of the RPD. ADMISSIBILITY OF NEW EVIDENCE [11] The appellant filed 27 new pieces of documentation in her record without providing a list of them and without pagination. [12] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [13] Subparagraph 3(g)(iii) of the Refugee Appeal Division Rules requires an appellant to include in their memorandum full and detailed submissions regarding how any new evidence being presented meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [14] First, I note that the appellant did not include in her memorandum full and detailed submissions regarding how the new evidence being presented meets the requirements of subsection 110(4) of the Act and how that evidence relates to her. [15] Second, I note that, among these 27 documents, the appellant filed the same ones that had already been filed before the RPD, numbered C-1 to C-9, and that others are either not dated or, for the most part, are prior to the date the claim was rejected, namely April 28, 2015. The appellant does not explain why these documents were not available as of the date of the rejection or, if they were, why she did not file them in evidence; she also does not explain how these documents relate to her. [16] Document 24, entitled Le Blog de Benoit Illassa [Benoit Illassa's blog], is dated May 4, 2015, thus subsequent to the date the claim was rejected, and refers to the arrest of an opposition politician in Benin. As stated above, the appellant does not, however, explain how this document relates to her. [17] As well, I reviewed the 27 documents, and I also fail to see how they relate to the appellant or how they are relevant to her refugee protection claim. [18] For all these reasons, I do not accept the documents the appellant presented as evidence before the RAD. DECISION ON HOLDING A HEARING BEFORE THE RAD [19] Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, there is new evidence on appeal that is admissible and that meets the following three criteria: (1) it raises a serious issue with respect to the credibility of the person; (2) it is central to the decision with respect to the refugee protection claim; and (3) if accepted, it would justify allowing or rejecting the refugee protection claim. [20] Since the prerequisite of this provision was not satisfied in this case because no new evidence was accepted on appeal, I conclude that a hearing cannot be held in this case. THE RAD'S ROLE [21] The IRPA does not specifically provide for the standard of review or intervention that the RAD should apply when it reviews decisions rendered by the RPD. [22] The Federal Court, which has the authority to review RAD decisions, has rendered a few decisions to date regarding the RAD's standard of review or intervention or its role when a decision of the RPD is appealed to it. [23] 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 point. [24] At paragraphs 28 and 29 of Alvarez, as well as paragraphs 29 and 30 of Eng, the Court writes the following: [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. [25] 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. [26] In a decision rendered on August 22, 2014, in Huruglica,3 the Honourable Justice Phelan of the Federal Court addresses the role and functions of the RAD and writes the following: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach. . . . [27] In considering, among other things, the RAD's authority under subsection 111(1) of the IRPA to substitute a determination that, "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal. . . . [28] Justice Phelan concludes as follows: [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". [29] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also addresses the RAD's role. [30] In that case, the Court finds first, concurring with the previous decisions in Huruglica, Eng and Alvarez, that the RAD erred when it applied the reasonableness standard of review rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [31] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions concerning the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau,5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the parliamentary committee of the House of Commons to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but rather to an appeal in its own right (paragraph 39). [32] Relying on the conclusions in Parizeau in terms of the standard of review that an appellate tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy finds that the standards of review to be applied by 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 show deference to the RPD's findings regarding the credibility to be given to witnesses heard before it (paragraphs 39, 40 and 46). [33] The Honourable Justice Roy also states that he could not find any indicators providing for an appeal de novo (paragraph 42) and states in the following paragraph of his decision that: [43] Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4). . . . [34] 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, after analyzing the decisions cited above, first concludes that they all reject the reasonableness standard and then finds that, in his view, the RPD must be allowed to choose between the two remaining paths, that is, the one articulated in Eng, Alvarez and Spasoja, which is the palpable and overriding error standard, and the one 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). [35] Indeed, Justice Martineau writes the following at paragraph 46 of Alyafi: [46] . . . I chose the middle path, that of wisdom: allow the RAD to apply the second or third approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. Quite simply. [36] Accordingly, I find that it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role described therein seems to me to apply more practically than the one described in Huruglica, and in particular where, as in this case, no new evidence was presented before the RAD and no hearing was held before it. [37] In this case, I find that the error the appellant alleged regarding the RPD's assessment of her credibility is an error of fact and, therefore, I will apply the palpable and overriding error standard to this question. [38] I will review and carry out my own assessment of all the evidence presented before the RPD to determine whether it committed one or more palpable and overriding errors. I also will have to show some deference to the RPD's findings on the credibility of the appellant, whom it had the opportunity to see and hear. [39] 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 [40] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [41] After analyzing the evidence before the RPD, listening to the recording of the hearing that was held, and considering the RPD's reasons and the appellant's record before the RAD, I find that the answer to this question is no, for the following reasons. [42] As the RPD found, I am of the opinion that the appellant's evidence was vague and imprecise and contained implausibilities and inconsistencies sufficiently serious to undermine her credibility irreparably. [43] First, the appellant's refugee protection claim is based on the fact that her father, as Benin's XXXX of XXXX XXXX, reportedly had XXXX XXXX charged and convicted in 2005. Already, the appellant's testimony on this subject was vague: sometimes she spoke about the [translation] "removal" of XXXX, sometimes about [translation] "charges" against him and finally about his [translation] "imprisonment." Second-and in my opinion, this is important regarding the appellant's credibility problems-she was unable to present any documentary evidence whatsoever to corroborate XXXX imprisonment in Benin. I find it implausible that there was no reference in the media in Benin or elsewhere regarding the imprisonment of this important man in Benin, who was a XXXX from 2006 to 2011, then XXXX XXXX of the country and a probable candidate in the next XXXX elections. [44] Second, the appellant's testimony regarding the problems and threats that her father apparently was a victim of, another important element of the refugee protection claim, was vague and inconsistent: the appellant confirmed at the hearing that her father received between two and four threatening telephone calls per week beginning in XXXX 2013, that is, a total of about 50, then changed her version of the facts in her memorandum, where she states that her father began receiving threats in XXXX 2014 (see paragraph 7 of the memorandum), and that therefore he did not receive 50 of them in total. I cannot accept this second version of the facts put forward by the appellant before the RAD given that her first was unequivocal before the RPD. [45] Moreover, the appellant alleges that her father was investigated for fraud in XXXX 2013 (or in XXXX 2014 according to her BOC Form), appeared before a commission and was subsequently cleared of all charges. However, again, the appellant was unable to provide any details with respect to the charges against her father or provide any documents whatsoever about this commission before which he reportedly appeared. In my opinion, such documents must exist, and the appellant, who is still in contact with her mother, did not obtain them or ask for clarification in this regard. [46] Last, while taking into consideration that the appellant is not required to explain the actions of others, in this case those of XXXX XXXX, it nonetheless appears implausible to me, given all the evidence presented, that he allegedly waited more than seven or eight years to go after the appellant's father even though he held the important positions of XXXX and XXXX XXXX and had the opportunity and the ability to harm the appellant's father. [47] The RPD found that the number of threats reportedly received by the appellant's father, namely around 50, was implausible. I mentioned earlier that the appellant's credibility regarding the threats was undermined because she changed her version of the facts in her memorandum before the RAD, and I also find the number of threats alleged at the hearing to be implausible; it appears implausible to me that so many threats were made over numerous months without any concrete action being taken to carry out these threats. [48] The appellant claims that her mother and her two sisters have had to live in hiding since her father died and that her mother regularly receives threats on the telephone. Again, it seems implausible to me that the appellant's mother and sisters, and she herself if returned to Benin, are being threatened like this given that it is her father whom XXXX allegedly wanted to harm. [49] On this point, the appellant testified at the end of the hearing that XXXX may wish to harm her if she returns to her country because she studied law and might want to defend her father, who was slandered. I cannot accept this statement because there is no evidence showing that the appellant's father was slandered; on the contrary, the appellant alleged that her father appeared before a commission and was completely exonerated. [50] Given the appellant's lack of credibility, I find that it is not appropriate to assign any probative value to the document filed as Exhibit C-3 (page 94 of the RPD record), which is a complaint reportedly filed by the appellant's father, to corroborate her allegations. Furthermore, it is a short letter addressed to the [translation] "Central Commissioner of Cotonou," with no destination address, with no details about the source of the threats even though the appellant stated that they came from XXXX, and which indicates that [translation] "unknown people are threatening to harm him and his family if I do not comply." The appellant never mentioned in her testimony or her BOC Form that the individuals who purportedly threatened her father asked him [translation] "to comply" with anything. [51] I therefore find that all the preceding elements undermine the appellant's credibility and that she has not demonstrated that the RPD made an error in its decision justifying the RAD's intervention. REMEDY [52] 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. [53] The appeal is dismissed. Normand Leduc Normand Leduc December 14, 2015 Date IRB translation Original language French 1 Alvarez v. M.C.I., 2014 F.C. 702. 2 Eng v. M.C.I., 2014 F.C. 711. 3 Huruglica v. M.C.I., 2014 FC 799. 4 Spasoja v. M.C.I., 2014 FC 913. 5 Parizeau v. Barreau du Québec, 2011 RJQ 1506. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-02241 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-02241 2