MB4-02345

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 : MB4-02345 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 25, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Guinea-Bissau, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection by determining that she is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's determination and allow her claim for refugee protection. [3] The appellant did not submit any documents into evidence in support of her appeal pursuant to subsection 110(4) of the IRPA. She is not requesting that a hearing be held before the RAD as set out in subsection 110(6) of the IRPA. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the 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" under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] The appellant is a citizen of Guinea-Bissau. In her Basis of Claim Form (BOC Form), she states that she is an XXXX student. As such, on XXXX XXXX, 2012, three brothers retained her services after being illegally driven off their land by the bodyguards of General Antonio Ndjai (the General). [8] That same day, she filed a complaint on behalf of her clients with the public prosecutor's office. [9] On XXXX XXXX, 2012, she was forcibly confined and taken to the forest by soldiers sent by the General, who demanded that she withdraw the complaint that had been filed or she would pay with her life. [10] The following day, she filed a complaint with the public prosecutor's office for the threats received the previous day. The authorities told her that they did not have the means to ensure her protection. [11] On January XXXX XXXX XXXX, toward 11:00 p.m., soldiers showed up at her mother's home looking for her. [12] Fearing for her safety, she arrived in Canada on January 19, 2014. She claimed refugee protection on February 18, 2014. Impugned decision [13] On June 10, 2014, the RPD rejected the claim for refugee protection, concluding that the appellant did not discharge her burden of establishing the well-foundedness of her fear in relation to her professional involvement in the expropriation case pitting a soldier against her clients. [14] On this topic, the RPD did not doubt the fact that the appellant was part of a case in which her clients were pitted against a general following the expropriation of their land. The RPD found as fact that, because of the complaint she filed on behalf of her clients, she might have been forcibly confined. The RPD also acknowledged that the appellant filed a complaint following this incident and accepted that she received four or five telephone threats. This is where the RPD drew the line in terms of the facts that it found credible. [15] However, the RPD was of the opinion that the appellant did not establish, on a balance of probabilities, that she encountered problems in 2014. [16] She also did not establish that, as a member of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, there was a serious possibility of persecution if she were to return to Guinea-Bissau. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [17] Relying on Eng1 and Alvarez,2 the appellant invites the RAD to proceed with its own assessment of the evidence and draw its own conclusions. She argues that the RAD owes no deference to the RPD. The appellant argues the following: - The RPD erred in law; its conclusions were insufficient to rebut the presumption of the truthfulness of her testimony. - The RPD erred in criticizing the appellant for failing to mention in her BOC Form that her participation in a conference in November 2013 was the reason for the soldiers' alleged renewed interest in her. - The RPD erred in the assessment of the evidence. - Having acknowledged her involvement in human rights organizations, and taking into account the objective documentary evidence, the RPD should have granted her refugee status. THE RAD'S ROLE AND FUNCTIONS [18] Since the appeal before the RAD is a statutory remedy, an examination of its home statute and the criteria developed by the case law in the context of an appeal tribunal and administrative law is in order. [19] The statutory provisions establish precisely the allowable grounds for appeal,3 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the determination, set it aside and substitute the determination that, in its opinion, should have been made, or refer the matter to the RPD, giving the directions that it considers appropriate.4 [20] An appeal before the RAD is not in the nature of a judicial review,5 nor is it an opportunity for a [translation] "new proceeding." In order to conduct its own assessment of the evidence and form its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.6 [21] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of RAD decisions. In fact, it states that the RAD may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD.7 The RAD will hold a hearing only in exceptional circumstances, as set out in subsection 110(6) of the IRPA. [22] Called upon to determine the role of the RAD in decisions rendered by the RPD, the Federal Court is faced with conflicting lines of case law. [23] In Eng and Alvarez,8 Justice Shore, finding the reasoning of the Court of Appeal in Parizeau v. Barreau du Québec9 persuasive and instructive with respect to the standard of intervention to be applied by an administrative appeal tribunal, states that: [27] ...[T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] ...[As] a specialized (if not overspecialized) tribunal...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). [24] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. According to Justice Shore, "[e]ven though there are similarities, these standards are different." [25] In Spasoja,10 Justice Roy, in examining the indicators of Parliament's intention when the RAD was created, notes that appeals before the RAD are meant to be generous but adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety," stating that an error must be "palpable and overriding" to "succeed on appeal." Justice Leblanc shares the same point of view in this regard.11 [26] Justice Roy states, "[i]t 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)." [27] A significantly different approach is proposed by Justice Phelan in Huruglica.12 According to Justice Phelan, the RAD must conduct its own analysis of the evidence and, where its assessment departs from that of the RPD, the RAD must substitute its own decision. [28] Justice Phelan, writing about the deference that the RAD owes to findings of the RPD, states that it may well "[be justified to show] deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states, "there is no reason for the RAD to defer to the RPD on this type of assessment." [29] The Federal Court recognizes the RAD's "expertise" on issues relating to refugees. According to the Federal Court, broad powers are conferred by the IRPA, "allowing the RAD to dispose of the merits of appeals".13 [30] Decisions rendered to date indicate that "[t]he 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".14 [31] In light of the above decisions and the Court's reasons in subsequent decisions,15 I am of the opinion that the RAD must review all the evidence to determine whether the decision is well founded with regard to the evidence before the RPD and any additional evidence accepted as new evidence that it deems admissible within the meaning of subsection 110(4) of the IRPA. [32] In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position over the RAD. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [33] With regard to errors of law, Justice Shore states that "the RAD must be able to correct any error of law."16 MERITS OF THE APPEAL [34] The RPD stated that the appellant did not discharge her burden of establishing a serious possibility of persecution by reason of her professional activities or her membership in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. It also did not believe that the appellant left her country for the reasons alleged. [35] After having listened to the recording of the hearing and re-assessed all the evidence, I am of the opinion that the RPD rendered the correct decision. The appellant's failure to mention, in her BOC Form, her participation in the conference in November 2013, where the subject of human rights was allegedly discussed, as well as her failure to mention that soldiers looked for her at her mother's home in January 2014, are important parts of her claim for refugee protection because they are catalysts for the soldiers' renewed interest in her, which hastened her departure from the country. I am of the opinion that the RPD had reason to conclude that the explanations provided were insufficient to justify their omission from the BOC Form. These omissions seriously undermine her credibility. [36] I share the RPD's opinion that the appellant's behaviour is not consistent with her claims suggesting that her life is in danger. Despite the fact that she claims to be sought by soldiers, she continued to go about her professional business until she left the country. Her explanations that she was going to work with a chador and that the soldiers did not know her spouse's address seem implausible, even not credible. The opposite is more likely-that if the soldiers were interested in her, they would have looked for her at her office and at her husband's home. Furthermore, I am of the opinion that the RPD was correct in pointing out that it was odd for the clients not to be pressured into dropping their legal action or complaint against the General. Member of the XXXX XXXX XXXX XXXX XXXX XXXX [37] The evidence shows that the appellant has been a member of the XXXX XXXX XXXX XXXX XXXX XXXX since January 2012.17 [38] For the following reasons, I am of the opinion that the RPD rendered the correct decision by concluding that [translation] "the claimant failed to show that the mere fact of being a member of a human rights organization entails a serious possibility of becoming a victim of persecution." [39] The documentary evidence indeed suggests that the human rights situation in Guinea-Bissau is problematic. However, I am of the opinion that this fact, in itself, is insufficient to conclude that there is a serious possibility of persecution. [40] In Dezameau,18 Justice Pinard states: This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is "more than a mere possibility". [41] In this case, the appellant stated that she received a few anonymous threatening telephone calls. Regardless, she continued to conduct her professional business and her activities without encountering any problems as a result of her membership in the XXXX XXXX XXXX XXXX XXXX XXXX. Furthermore, as previously mentioned, her credibility has been undermined by the fact, among other things, that she failed to mention her participation in the conference in November 2013. [42] The appellant states in her BOC Form that she worked with XXXX XXXX XXXX, who encountered problems with those in power. She did not provide any information as to the circumstances in which she allegedly worked with him. [43] Furthermore, it is important to point out that, this man, as a member of an opposition party, was a high-profile individual, a declared opponent to the ruling government.19 The appellant did not establish that she had the same profile or a profile similar to that of XXXX XXXX XXXX. [44] For these reasons, the RAD is of the opinion that the RPD rendered the correct decision. This decision is based on the evidence in the record, and its findings are not arbitrary or capricious, and take into account the principles set out in the case law. CONCLUSION [45] The RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [46] The appeal is dismissed. Maria De Andrade Me Maria De Andrade February 25, 2015 Date IRB translation Original language: French 1 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 2 Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702. 3 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 4 Subsection 111(1) of the IRPA. 5 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 6 RPD record, parties' memorandum or any [translation] "new admissible evidence." 7 Subsection 111(2) of the IRPA. 8 Supra, footnotes 1 and 2. 9 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 10 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 11 Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 12 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 13 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 14 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 15 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952; Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072; Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063. 16 Supra, footnote 8. 17 RPD record, pages 103 to 105. 18 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559. 19 Amnesty International, news release dated October 25, 2012, RPD record, page 130. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-02345 9 RAD.25.02 (2014.09.11) Disponible en français