TB4-02009

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 : TB4-02009 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 14, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Erin M Bobkin Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), a citizen of Afghanistan, 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 and is asking that the Appellant be found to be a Convention refugee or a person in need of protection. In the alternative, the Appellant is requesting an oral hearing. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this claim to the Refugee Protection Division for re-determination by a differently-constituted panel. New Evidence [3] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his or her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible. * Letter from XXXX XXXX(the Appellant's wife) dated XXXX XXXX XXXX 2014. This letter speaks to the fears of the Taliban and specifically XXXX, the perpetrator. She also indicates in her letter the pressures exerted by XXXX to marry him and not the Appellant. This letter post-dates the rejection made on XXXX XXXX, 2014. * Letter from XXXX XXXX(the Appellant's father) dated XXXX XXXX XXXX2014 describes the demands of XXXX and the alleged attempts by two individuals to attack his son. This letter post-dates the rejection made on Jasnuary 29, 2014. [5] The Appellant's affidavit1 provides reasons for the Appellant's failure to file the above documents for his RPD hearing and explains why he is filing new documents to RAD. He submits that it is difficult to have access to the individuals who wrote the foregoing letters and the mail system is lengthy and unreliable. The Appellant further submits that the foregoing letters have probative value with respect to the perpetrator's connections to the Taliban. 1) The RAD accepts that the foregoing documents postdate the Appellant's rejection of January 29, 2014. 2) However, the contents of the documents refer to incidents previously identified . 3) The Appellant submits that the unreliability of mail service is the reason for the lateness of these documents. The RAD rejects this argument when we examine the chronology of this claim: The refugee process commenced on April 13, 2013, the BOC was filed in August 2013, the hearing held on September 29, 2014 and the decision rendered on January 29, 2014. [6] I note Rule 43 of the RPD rules actually provides for the possibility of providing a document as evidence after a hearing but before a decision takes effect. [7] Further, Rule 3(3)(c) of the RAD rules also comtemplates this. That rule states that the RPD record should contain any documents that the RPD refused to accept as evidence, during or after the hearing, if the appellant wants to rely on the documents in the appeal. [8] The RAD concludes that given the timelines from April 13, 2013 and January 29, 2014, the statutory requirements have not been met, as these documents could reasonable have been expected in the circumstance prior to the rejection. Application for an Oral hearing [9] The Appellant argues that, if the RAD is unable to substitute a decision without an oral hearing, the RAD should hold an oral hearing pursuant to Section 110(6) of the IRPA. [10] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "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." [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence Section 110(4), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The Appellant's "new evidence" is not admitted. Therefore, the RAD must proceed without a hearing in his appeal, and the Appellant's application for an oral hearing is denied. Background [14] The Appellant is a citizen of Afghanistan and is Shia-Hazara. In 1994, he and his family moved to XXXX, Iran as the Mujahidin were in power and they did not treat the Hazaras fairly. [15] In 2010, the Appellant and his father returned to the XXXX XXXX XXXXin Afghanistan for an arranged marriage with XXXX XXXX XXXX XXXX XXXXHe was married on XXXX XXXX XXXX 2010[15] [16] During the wedding ceremony, a man named XXXX tried to stop the ceremony as he had wanted to marry XXXX and had already proposed to her family. However, her father had refused the proposal because XXXX was a fanatic Muslim, and people were saying that he XXXX XXXX XXXX might be affiliated with the Taliban. As well, XXXX was a Sunni Muslim. [17] After the wedding, Musa was angry and told the Appellant that he should divorce Zeynab to enable him to marry her. The Appellant decided that it was not safe to remain in the village and, upon the advice of his father, he and his wife left Afghanistan and returned to Iran. [18] After living in Iran for XXXX years, the Appellant and his wife decided to return to Afghanistan to live permanently, as he had a disagreement over a parcel of land that he had purchased with a XXXX XXXXin Iran. He returned to Afghanistan in XXXXr 2012 to the XXXX XXXX XXXX. In XXXX 2012XXXX XXXXappeared when XXXX was alone and again told her he wanted to marry her, failing which she would have regrets. [19] The following day, the Appellant was followed by two males on a motorcycle when he was returning home from work. He went to the police station until the two men left, but did not file a complaint. Instead he went to the home of his brother-in-law to hide. The Appellant believed that the two males were associated with XXXX XXXX Upon the advice of his father, the Appellant again returned to Iran. With the help of his father, the Appellant retained smugglers to provide him with false documents to facilitate his journey to Canada via Turkey on XXXX XXXX, 2013. He filed a refugee claim on April 8, 2013. Submissions by the Appellant [20] The Appellant submits that the RPD found a lack of nexus to a Convention ground, and therefore, considered the claim under section 97 of IRPA and the RPD did not properly assess section 97 risk. [21] The Appellant submits that the RPD erred in concluding that there was a viable Internal Flight Alternative (IFA) in Kabul. [22] The Appellant submits that the RPD made adverse credibility findings concerning minute details of the Appellant's story, in taking a microscopic approach to the evidence and unreasonably requiring corroborative evidence and erring in its plausibility findings. The Appellant further submits that the RPD made credibility findings on peripheral issues. ISSUES TO BE DETERMINED: * Did the RPD err in law in its finding that there was no nexus? * Did the RPD err in its findings of fact?. * Did the RPD err in law in its Internal Flight Alternative (IFA) findings? STANDARD OF REVIEW: [23] I have considered the Appellant's submissions with respect to "Standard of Review", however my interpretation is as follows: [24] Although the 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. [25] In Dunsmuir,2 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,3 which take into account the list of factors in Dunsmuir. The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [26] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [27] These factors are: 1. The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; 2. The nature of the question in issue; 3. The interpretation of the statute as a whole: 4. The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; 5. The need to limit the number, length and cost of appeals' 6. Preserving the economy and integrity of the proceedings in the tribunal of first instance; and, 7. Other factors that are relevant in the particular context. [28] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.4 RPD members have expertise in interpreting and applying IRPA and as well they are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing5 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [29] An appeal to 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 decision, set aside that determination and substitute another, or refer the matter back to the RPD for re-determination. [30] The nature of the question in issue is one of mixed fact and law. [31] 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. [32] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.6 [33] In the context of an appeal to 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. [34] 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. [35] 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 evidence7 and each can take notice of information and opinion within its specialized knowledge.8 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,9 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 proceeding.10 The effect of these provisions is that the RPD has the opportunity to observe 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,11 other than in situations where the RAD holds an oral hearing and has had an opportunity to consider that evidence first-hand. [36] 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." [37] I have applied the standard of "reasonableness" where applicable, because of the RPD's findings of mixed fact and law that are under review. I have also applied the standard of "correctness with respect to the issue of Nexus". [38] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [39] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of the IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearings in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [40] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [41] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.12 [42] Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD 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 law. [43] Correctness is concerned with errors in law, specifically, in this particular case, the issue of "nexus". Analysis Lack of Nexus [44] The Appellant argues that, in the Afghan context, membership in a particular social group of either men married to women subject to forced marriage or men subject to honour killings should constitute a Convention refugee ground. [45] The Federal Court has found that "women forced into marriage without their consent" is a particular social group.13 Moreover, Macias, Mhkabari and Tomov14 have also held that someone can belong to a particular social group by virtue of being a family member of someone who has a nexus. Given the two propositions, I find that the Appellant has a nexus by virtue of being the family member (husband) of a woman facing forced marriage without her consent. I accept the Appellant's submissions (paras.51-52), particularly the submission that "Contrary to the RPD's finding, forced marriage need not be a situation where a parent is forcing the marriage on their child." [46] Accordingly, I find the lack of nexus to be an error in law, Did the RPD err in its findings with respect to Internal Flight Alternative (IFA)? [47] Based on the transcript of the hearing, the RAD finds that the first prong of the IFA test has not been fully canvassed, given the fact that the Appellant was located in XXXX XXXX There were no questions put to the Appellant as to how he was found, how far away XXXXwas from where he had been living, etc. This is significant as counsel submits that the fact that the Appellant was located, demonstrates the lack of viability of an Internal Flight Alternative (IFA). The RPD relies on its finding that the Appellant would not be located, yet he was, in fact, located in XXXX after being absent for a period of XXXXyears. The circumstances surrounding his being re-located were not canvassed in the hearing. Moreover, the RPD did not make a clear finding that the incident did not take place, thereby not clearly indicating any credibility findings in this regard.15 [48] This is particularly noteworthy, given the fact that the transcript of the hearing indicates that the Member finds that there is no State Protection in Afghanistan as a whole and indicates so on the record. [49] I, therefore, conclude that the IFA in its Reasons is an error in mixed fact and law. Did the RPD in its credibility findings consider peripheral issues: Shooting incident [50] The RPD finds that there was insufficient credible or trustworthy evidence to establish that XXXX was involved in the shooting incident a few days after the Appellant's wedding. He bases this on the Appellant's testimony that "no one saw who shot the gun or why it was fired". This is not a peripheral issue, as it addresses the first actions of the perpetrator. The Appellant is candid that no one saw the shots, therefore he is speculating, given XXXXs behaviour during the wedding ceremony, that he was the perpetrator. While the RPD indicates that there was insufficient credible or trustworthy evidence in this regard, the RAD concurs that this, in and of itself, would not be a basis for the Appellant's fears. Perhaps it would be more properly articulated as speculative rather than lacking in credibility or uncorroborated, but nonetheless the RAD finds that it is a reasonable conclusion. Medical Report [51] The Appellant argues that the RPD discarded this report, finding that the doctor was not a trier of fact, when this document, according to the Appellant, was submitted, not as a stand-in for the Board's determination, but merely as one factor to be used in assessing the testimony. [52] The RAD concludes that the RPD did a thorough analysis of this report and while it did not discard it as alleged by the Appellant, the RPD made findings that it did not enhance the credibility of the Appellant's testimony. The RPD also found that the probative value, in terms of linking the diagnosis to the Appellant's fears, was not determinative. This, in the RAD's opinion, is not an unreasonable conclusion. Did the RPD make adverse credibility findings on the lack of corroborative evidence? [53] Specifically, the three areas of concern by the Appellant are as follows: * The perpetrator was not affiliated with the Taliban. * The perpetrator's influence and power was not heightened due to his brother's position in the community. * There was no corroborative evidence that the men who chased the Appellant on motorcycle were affiliated with XXXX XXXXand that this finding is an unreasonable implausibility finding. [54] The RAD, having reviewed the record, concurs with the RPD that the Appellant's perpetrator's association or connection with the Taliban has not been satisfactorily established. The RAD finds that this is not a peripheral issue; in fact, the profile of the perpetrator is a central issue in this claim. [55] Moreover, the perpetrator's brother's influence is even less definitive, as it appears that he may not have been on the side of the perpetrator. The RPD found, on a balance of probabilities, that there was insufficient credible or trustworthy evidence to establish that the perpetrator is further influenced by his brother's allegedly being a tribal chief in the Ashkarabad region. The RPD based its finding on the fact that XXXXs older brother was not critical of XXXX when they met to attempt to resolve the situation. In fact, the Appellant, by his own testimony, indicated that XXXXs older brother was willing to help him and his wife. [56] The RAD finds that the RPD did not rely on lack of corroborative evidence in coming to its conclusions. The RAD concludes that these findings fall within the range of possible, acceptable outcomes defensible in regard to the facts. We will, however, deal with the motorcycle incident in more detail below. Error in Plausibility Findings [57] The Appellant submits that just because the Appellant's wife was only verbally threatened and not physically injured, nor was the Appellant confronted directly, that the incident the day before the motorcycle incident, not being plausible is unreasonable. Secondly, because the Appellant did not report being chased by two men on motorcycle to the police, the RPD's finding of implausibility is unreasonable. The Appellant submits that plausibility findings should only be made in the clearest of cases.16 He further submits that the fact that the Appellant did not go to the police is in line with the Board's own National Documentation Package (NDP), wherein it indicates that official impunity and lack of accountability is pervasive in Afghanistan. The Appellant further submits that the fact that he did not believe the police could protect him, should not then be construed as a negative credibility finding. [58] The RAD concludes that the foregoing findings by the RPD are unreasonable. In fact, the RAD finds that the RPD erred in first stating on the record on the one hand, that there is no state protection in Afghanistan (emphasis added), and then, on the other hand, to expect the Appellant to go to the police on two occasions - when his wife was threatened and during the motorcycle incident. Incident involving the Appellant being followed by a Motorcycle [59] Firstly, with respect to the omission of a knife being involved, the RAD is in agreement with the RPD that, given the potential of harm, this omission in the Appellant's narrative is a material fact. The Appellant submits that the RPD should not make adverse credibility findings on details that were not contained in the BOC, as he has that opportunity to expand on his evidence at the hearing. With due respect, we do not concur. He cites Basseghi17 in support of his argument and submits that having a knife is a peripheral issue. However, the RAD does not find the RPD's conclusion unreasonable. Since this is the only incident which has been cited as using an item in which to harm the Appellant, this aspect of the incident, namely, the carrying of a knife, presumably with the intent to harm, should not have been omitted and, therefore, the findings of the RPD are reasonable. CONCLUSION [60] The RPD erred when it incorrectly said there was no nexus on the facts as alleged. [61] The RPD erred by not making a clear credibility finding with respect to the incident in XXXX XXXX XXXX[62] Given the RPD's treatment of the incident in XXXX XXXX the RPD's treatment of the first prong of the IFA test was unreasonable. [63] While the Appellant raises the issue of section 97 of the IRPA, and argues that the RPD did not consider this section correctly, in light of the foregoing findings, there is no need to address this submission. [64] Despite the errors of the RPD, I am unable to substitute a finding that the Appellant is a Convention refugee or a person in need of protection. [65] The RPD made reasonable credibility findings with respect to the shooting incident which occurred a few days after the Appellant's wedding. The RPD's findings with respect to the Appellant's medical report were reasonable. The RPD's findings that there was insufficient evidence to link the perpetrator to the Taliban, as well as his brother's influence are reasonable. Finally, the omission in the BOC of the perpetrator having a knife, was properly considered as not being a peripheral issue, but rather a significant factor given the intent to harm the Appellant. [66] Therefore, in light of all the reasonable conclusions the RPD reached, the RAD cannot conclude that a positive determination should be substituted. As the RAD cannot hold a hearing, it must send the matter back for re-determination. [67] For the foregoing reasons, this appeal is allowed pursuant to Section 111(1)(c) of IRPA. The RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara May 14, 2014 Date 1 Exhibit 2 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399 4 IRPA, s. 107 5 IRPA, s. 170 6 IRPA, Section 3(2)(a) 7 IRPA Sections 170(g) and 171(a.2) 8 IRPA, Sections 170(i) and 171(b) 9 IRPA, Section 170(b) 10 IRPA, Section 110(3) 11 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 13 Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (T.D.) 14 Macias, Laura Mena v. M.C.I. (F.C., no. IMM-1040-04), Martineau, December 16, 2004, 2004 FC 1749; Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005, 2005 FC 1527 15 Moreno v. Canada, 1993 CanLII 2993 (FCA) [1994] 1 F.C. 298, 315 (F.C.A.) 16 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001; Roozbahani, Alireza v. M.C.I. (F.C., no. IMM-9483-04), Blanchard, November 9, 2005,2 005 FC 1524; Santos vs. Canada Minister of Citizenship and Immigration 2004 F.C. 937 at para. 14 17 Basseghi, Kourosh v. M.C.I. (F.C.T.D., no. IMM-2227-94), Teitelbaum, December 6, 1994, F.C.J. No. 1867 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02009