MB4-00627

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB4-00627 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 / heard at Montréal, Quebec Appel instruit à Date of decision April 14, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Anthony Karkar Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, a citizen of Colombia, 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 (IRPA), 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 IRPA nor a "person in need of protection" pursuant to section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that she signed on November 18, 2013, the appellant states that she is a citizen of Colombia, that she was born on XXXX XXXX XXXX 1973, that she speaks Spanish and that her son was living in Colombia at that time.1 [4] In her BOC Form, the appellant states that, in the past, she always received threats every three days demanding that she give them money or she would be killed. She also states that the situation had become very critical in the last four months when she was receiving threats; however, she did not know the names of the groups who were killing and threatening many people.2 [5] In her BOC Form, the appellant states that if she had to return to Colombia, she does not know what might happen, whether they would do something to her or whether they would continue to threaten her.3 [6] In her BOC Form, the appellant states that she did not ask the authorities in her country to protect or help her because they do not care what happens to people and because the police could not do anything. She also states that police officers and members of the army are kidnapped.4 [7] In her BOC Form, the appellant states that she did not relocate to another part of the country to seek refuge because she was waiting to be able to come to Canada and ask for assistance.5 [8] In her BOC Form, the appellant states that she left her country no earlier or later than XXXX XXXX, 2013, because she had to find the money to be able to travel.6 B. RPD decision [9] The hearing before the RPD was held on January 9, 2014. The reasons for decision were communicated orally at the end of the hearing. The transcript of these reasons was provided to the appellant on January 22, 2014.7 [10] The RPD rejected the refugee protection claim because the appellant, then known as the claimant, lacked credibility.8 C. Grounds of appeal and remedy sought [11] In her memorandum, the appellant submits that the RPD was wrong to reject her refugee protection claim, and that it erred when it concluded that the appellant did not present any testimonial or documentary evidence indicating that it is persecution under the Refugee Convention and when it found that her credibility was undermined because she used a fake passport to enter Canada.9 [12] The appellant is requesting that the RAD allow the appeal, set aside the determination of the RPD and grant her the status of a person in need of protection or refer the matter to the RPD for re-determination.10 IV. HEARING BEFORE THE RAD A. No new evidence was submitted by the appellant on appeal [13] In her memorandum, the appellant did not indicate that she was presenting any new evidence as set out in subsection 110(4) of the IRPA. B. Tests under subsection 110(6) of the IRPA [14] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it justifies allowing or rejecting the claim. If the answer is yes, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No cause to hold a hearing before the RAD [15] In her memorandum, the appellant also does not request that the RAD hold a hearing. [16] Consequently, there is no cause to hold a hearing. V. WHAT DEFERENCE AND WHAT STANDARDS OF REVIEW SHOULD BE APPLIED IN THE APPEAL PROCEEDINGS BEFORE THE RAD? [17] In the following paragraphs, I will analyze the particular context of the RPD and the RAD, and what I think can be inferred from the few legal decisions that deal with these issues. A. The specific context of the RPD and the RAD [18] The RAD is not a court of law, and it does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. The RPD and the RAD are both part of the Immigration and Refugee Board (IRB), but they are two distinct divisions.11 Sections 162 to 169 of the IRPA identify 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.;12 that the members of both divisions have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing;13 and that hearings before both divisions are held in the absence of the public, although each division may conduct a proceeding in public or take any other measure that it considers necessary to ensure the appropriate access to the proceedings.14 Sections 169.1 to 170.2 of the IRPA are specific to the RPD, while sections 171 and 171.1 are specific to the RAD. [19] In their respective roles, the RPD and the RAD must deal with whether or not to grant refugee protection to persons who make a claim. They are therefore part of the Canadian refugee protection system under the IRPA, which governs them and whose objectives include establishing fair and efficient procedures that will maintain the integrity of the system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.15 [20] The primary role of the RPD is to hold hearings in order to determine whether refugee protection claimants are "Convention refugees" or "persons in need of protection." In disposing of a claim by holding a hearing, the RPD has the opportunity to see and to question refugee protection claimants, which gives it a significant advantage with respect to making findings of fact and assessing the credibility of claimants. [21] Pursuant to subsection 110(1) of the IRPA, a person or the Minister may appeal, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person's claim for refugee protection. However, pursuant to subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the RPD record of proceedings. In order for a hearing to be held before the RAD, new evidence must be deemed admissible. In addition, the RAD must be of the opinion that this evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and would justify allowing or rejecting the refugee protection claim.16 In other words, there are significant differences between the RPD and the RAD. B. Right of appeal and deference to RPD decisions [22] I would now like to refer to the concepts developed by the Alberta Court of Appeal in two decisions. These decisions do not relate directly to the IRPA, which governs the RPD and the RAD, and, consequently, do not serve as precedents to be followed as such in this context. However, I am of the opinion that they can provide some teachings, not only with respect to the issue of whether an appeal before the RAD is an appeal de novo, but also with respect to the standards of review to be applied in this appeal. [23] 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.17 [24] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge 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.18 [25] 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.19 [26] 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.20 [27] In a more recent decision, also rendered by the Alberta Court of Appeal, the Honourable Justice Slatter indicated that the standards of review identified in Newton could vary according to the issue at hand.21 [28] In decisions of interest rendered by the Quebec Court of Appeal, this very issue of the standards of review to be applied by an appellate jurisdiction that is itself part of an administrative tribunal was analyzed, but in a different legislative context from ours. I note from these two decisions that it is paramount to [translation] "carefully scrutinize the applicable legislation to determine the limits of the intervention framework that each decision-maker, at each decision-making level, was assigned by the legislator."22 I am also alert to the argument that an appeal before an appellate jurisdiction that is part of an administrative tribunal should not be equated to a kind of judicial review,23 but I also note that even that type of appeal has its intrinsic limitations and that it does not necessarily constitute a new proceeding.24 [29] Overall, I am of the opinion that, except for strict questions of law that may include questions of interpreting the IRPA, which governs the RPD and the RAD, and except for questions of natural justice, it is appropriate for RAD members to extend deference to RPD decisions. This deference is, in fact, comparable to, although distinct from, the deference to be given by courts of law to first-level decision-makers where the issue is a question of fact or a question of mixed law and fact. In my opinion, it follows that, except in exceptional circumstances, which are not present in this case, an appeal heard by the RAD does not constitute an appeal de novo. [30] That being said, the Federal Court should soon be able to enlighten us on the issue of what standards of review must be applied in appeals heard by the RAD against decisions rendered by the RPD. At that point, it will no longer be necessary to refer to the RAD context or to decisions rendered in cases involving legislation other than that which governs the relationship between the RPD and the RAD. However, for the moment, I am of the opinion that it is necessary to proceed as I have done in the paragraphs above, knowing that this situation is temporary and that the standard of review analysis does not need to be conducted in all cases.25 C. Standard of review to be applied in this case [31] In her memorandum, the appellant essentially provided only one ground of appeal, namely, that the RPD erred in its assessment of her credibility. However, she did not specify what standard of review should be applied in this appeal.26 [32] The assessment of the appellant's credibility is a question of fact and, consequently, the standard of review in this appeal is reasonableness.27 [33] When a decision is reviewed on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.28 VI. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD make one or more errors in assessing the appellant's credibility? [34] I conclude that the RPD did not err in its assessment of the appellant's credibility and that its decision to reject the appellant's refugee protection claim falls within a range of acceptable outcomes which are defensible in respect of the facts and law. I will explain why. [35] In her memorandum, the appellant argues that the RPD was wrong to reject her refugee protection claim, that it erred when it concluded that the appellant did not present any testimonial or documentary evidence that proved she was being persecuted under the Refugee Convention and when it found that her credibility was undermined because she used a fake passport to enter Canada.29 [36] The RPD rejected the refugee protection claim because the appellant lacked credibility. To begin, it noted that the appellant had not presented any testimonial or documentary evidence concerning a fear of being persecuted under section 96 of the IRPA or with respect to a danger of being tortured. It then continued analyzing the appellant's refugee protection claim under paragraph 97(1)(b) of the IRPA and it found that the appellant was not credible when she alleged that there was a risk of her being killed by individuals who had demanded money from her: [translation] The panel asked the claimant who was threatening her and she replied that it was various people. The panel continued, also asking her whether she could provide information about the people. She replied that she did not know them. The panel also asked the claimant whether there was anything else that she could say about who the agent of risk was, and she simply stated that it was various people. In addition, the panel asked the claimant whether the people came to her home. She responded a number of times. She also testified that she had seen them only on the road between her work and the bus stop. Therefore, if the claimant had seen them only on the road between her work and the bus stop, how would she know if they had come to her home?30 [37] The RPD also referred to the general nature of the information included in the appellant's BOC Form, the fact that she testified that her intention was to come work in Canada and that a fake passport was used to enter the country. It then found that the appellant was not credible.31 [38] In my opinion, my role in this appeal is not to reweigh the evidence 32 or to conduct a microscopic examination of the RPD decision. Rather, my role is to evaluate whether or not the RPD committed an error and to determine whether, when analyzed as a whole, the RPD's finding that the appellant's allegations are not credible falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law..33 I note that, according to the Federal Court case law, the RPD's findings affecting issues of credibility and the assessment of evidence are entitled to great deference in the context of a judicial review.34 I am of the opinion that the RAD must extend deference to the RPD's findings concerning issues of credibility and the assessment of evidence in the context of this administrative appeal process. [39] Individuals who make a claim for refugee protection have the burden of establishing before the RPD that they have a well-founded fear of persecution or further, that it is more likely than not that they will be personally subjected to a risk to their life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture, if they were to return to live in their country of citizenship. The RPD is entitled to make findings based on implausibility, common sense and rationality.35 [40] As part of its demanding work, the RPD must assess all of the evidence presented before it. That said, it is open to it to disbelieve the refugee protection claimant, but it must say so unequivocally.36 A lack of credibility on an important aspect of the claim can lead to a finding that there is no credible evidence on which the claim can be based.37 [41] It should be noted that all relevant and important facts must be included in the BOC Form and that oral evidence at the hearing should go on to explain the information contained in the BOC Form.38 I am of the opinion that the RPD did not err when it indicated in its reasons for decision that the information contained in the BOC Form was general in nature. [42] The RPD did not base its conclusion that the appellant was not credible solely on the fact that she used a fake passport to enter Canada. It clearly made reference to the contradiction in the appellant's testimony and the general or vague nature of the incidents of which she was apparently a victim while living in Colombia. [43] The arguments raised by the appellant in her memorandum are unfounded. [44] Having carefully reviewed all of the appellant's arguments, as well as the RPD's reasons for decision, I conclude that the RPD did not err in its assessment of the appellant's credibility. I further conclude that, taken as a whole, its decision to reject the appellant's refugee protection claim falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [45] Acting as the RPD did in this case is, in my opinion, consistent in every regard with one of the objectives of the IRPA, namely, to establish fair and efficient procedures that will maintain the integrity of this system, while upholding respect for the human rights and fundamental freedoms of all human beings.39 [46] I add that, pursuant to subsection 107(2) of the IRPA, the RPD could have stated in its decision that there was no credible basis for the claim in that the appellant did not present any credible or trustworthy evidence on which it could have made a favourable decision. VII. REMEDY [47] 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 IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [48] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 14, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 9, 14 and 17 of the RPD record. 2 Idem, page 9 of the RPD record. 3 Idem, page 10 of the RPD record. 4 Idem. 5 Idem, page 11 of the RPD record. 6 Idem. 7 RPD Notice of Decision, page 1 of the RPD record. 8 RPD decision, pages 3 to 5 of the RPD record. 9 Appellant's memorandum, pages 7 to 9 of the appeal record. 10 Idem, page 9 of the appeal record. 11 Section 151 of the IRPA: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 12 Section 162 of the IRPA. 13 Section 165 of the IRPA. 14 Section 166 of the IRPA. 15 Paragraph 3(2)(e) of the IRPA. 16 Subsection 110(6) of the IRPA. 17 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. 18 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, at paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 19 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at paragraph 81. 20 Idem, paragraphs 82 to 84. 21 Kikino Métis Settlement v. Métis Settlements Appeal Tribunal, 2013 ABCA 151, paragraph 12. 22 Laliberté v. Huneault, 2006 QCCA 929, paragraph 16. 23 Parizeau v. Barreau du Québec, 2011 QCCA 1498, paragraphs 75 to 78. 24 Idem, paragraph 79. 25 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (Canadian 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. 26 Appellant's memorandum, pages 7 to 9 of the appeal record. 27 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. 28 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 29 Appellant's memorandum, pages 7 to 9 of the appeal record. 30 RPD decision, page 4 of the RPD record. 31 Idem. 32 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, at 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." 33 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 34 Ahmadsai v. Canada (Minister of Citizenship and Immigration), No. IMM-893-13, Shore, October 10, 2013; 2013 FC 1025, at paragraph. 35 Laszlo v. Canada (Department of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 36 Maksud v. Canada (Department of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 37 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 38 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 39. 39 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-00627 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-00627 2