MB4-03697

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 : MB4-03697 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 May 15, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Gisela G Barraza Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of the Dominican Republic, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] He presented no new evidence on appeal and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is 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 39-year-old man, from the city of XXXX, in the Dominican Republic, who alleged in his Basis of Claim Form (BOC Form), submitted to the RPD, that he was afraid of individuals in his country who apparently threatened him because of the money he owes them. [5] The appellant allegedly received death threats from XXXX XXXX, 2012, until he left the country, and his family members have supposedly since been threatened by those individuals who are looking for him. [6] The appellant allegedly sought refuge in the city of XXXX before he left his country for Colombia on XXXX XXXX, 2014; he arrived in Canada with a false passport on or around XXXX XXXX, 2014, and he claimed refugee protection here. [7] The RPD rejected his refugee protection claim, finding first that the appellant's fear had no nexus to any of the five grounds in the definition of "Convention refugee," and that, in any event, under section 97 of the IRPA, the appellant's key allegations were not credible. [8] The RPD was therefore of the opinion that, overall, the appellant's testimony at the hearing was laboured, and found that the claimant's credibility was undermined for the following specific reasons: * It is implausible that the appellant did not have problems with the persons to whom he owed money since 2008 and who were his former employees, before XXXX 2012. * The fact that the appellant made no arrangements, either with the bank or with his associate, to settle his debts to his former employees is behaviour inconsistent with that of a person who claims to be threatened with death. * Spending US$5,000 to leave his country for Colombia and Canada instead of using that amount to pay his creditors is behaviour inconsistent with that of a person who claims to be threatened with death because of an unpaid debt. * The appellant changed his answer as to why he did not use the $5,000 to pay his creditors, and the RPD found it implausible that his creditors did not want to accept a partial payment of the debt. * The fact that he did not file a complaint with the police after the alleged threats is behaviour inconsistent with that of a person who claims to be threatened with death. [9] Before the RAD, the appellant submits that the RPD erred in the assessment of his credibility, particularly by not applying the principle of the presumption of truthfulness with regard to his testimony, by relying on elements secondary to the claim and by not taking into account his personal profile and the cultural context of the Dominican Republic. [10] For those reasons, the appellant is asking the RAD to set aside the determination of the RPD. THE RAD'S ROLE [11] The IRPA does not specifically set out the standard of review or intervention that the RAD should apply when it reviews decisions rendered by the RPD. [12] The Federal Court, which has the authority to review the RAD's decisions, has rendered a few decisions to date about the RAD's standard of review or intervention or its role when a decision of the RPD is appealed to it. [13] In Alvarez1 and Eng,2 both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada ruled on this matter. [14] At paragraphs 28 and 29 in Alvarez, as well as paragraphs 29 and 30 of Eng, the Court writes as follows: [28] Parliament conferred a true appellate function on the RAD, a specialized (if not overspecialized) tribunal, which sits on appeal of the decisions of another administrative tribunal. Contrary to a court exercising a superintending and reforming power over public bodies, the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different. [15] The Court adds the following at paragraph 33 of Alvarez, as well as at 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. [16] In Huruglica,3 rendered on August 22, 2014, the Honourable Justice Phelan of the Federal Court examines the role and functions of the RAD and writes as follows: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach.... [17] In considering the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "in its opinion, should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal.... [18] Justice Phelan concludes that: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [19] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examines the RAD's role. [20] In line with the previous Huruglica, Eng and Alvarez decisions, the Court first finds in that case that the RAD erred in applying the reasonableness standard of review rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [21] The Honourable Justice Roy proceeds with a detailed analysis of the statutory provisions relating to the RAD under the IRPA; of the case law pertaining to the role of an appellate body within an administrative tribunal, specifically Parizeau;5 and of Parliament's intent as stated by various stakeholders in debates about the RAD before the House of Commons parliamentary committee to determine that the appeal referred to in sections 110 and 111 of the IRPA cannot be equated to a judicial review, but to an appeal in its own right (paragraph 39). [22] Relying on the conclusions in Parizeau in terms of the standard of review that an appeal tribunal must apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy concludes that the standards of review 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 give deference to the RPD's findings on the credibility given to the witnesses heard before it (paragraphs 39, 40 and 46). [23] The Honourable Justice Roy also states that he could not find any indicators providing for an appeal de novo before the RAD (paragraph 42), and writes 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).... [24] Finally, 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 above cases, first concludes that they all reject the reasonableness standard of review, and then states that, in his opinion, the RAD must be permitted to choose between the two remaining approaches, namely the approach set out in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, and the approach set out in Huruglica, which he describes as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant" (paragraph 16). [25] In fact, 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. [26] Consequently, in my view, it is preferable for the RAD to apply the principles established in Spasoja because, with respect, the RAD's role as described in that decision seems to me to be more easily applicable than that described in Huruglica, in particular when no new evidence was submitted to the RAD and no hearing is held before it, such as in this case. [27] In this case, I am of the opinion that the error alleged by the appellant with regard to the assessment of his credibility is one of fact, and I will therefore apply the standard of palpable and overriding error. [28] I will proceed with a review and my own assessment of all the evidence presented before the RPD in order to determine whether it committed a palpable and overriding error. [29] 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 [30] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [31] Having listened to the recording of the hearing before the RPD and having considered all the evidence presented, as well as the RPD's reasons and the appellant's memorandum, I am of the opinion that the answer to this question is no, for the reasons that follow. [32] First, having listened to the recording of the hearing, I find, as the RPD also found, that the appellant's testimony was laboured and hesitant overall. [33] Second, I find that the appellant's allegations contain inconsistencies and implausibilities that undermine his credibility. The RPD also identified those implausibilities and inconsistencies in its reasons, which I summarized above. [34] The appellant testified that the four individuals who threatened him are former employees whom he hired in 2007 and 2008 to XXXX XXXX XXXX and who were claiming their salaries, which the appellant apparently never paid them. The appellant testified that he was supposed to pay the salaries once XXXX XXXX XXXX XXXX XXXX; that, however, the bank that financed the project XXXX XXXX XXXX at the end of 2012; and that the four former employees found out and then threatened the appellant so that he would pay them. [35] The appellant did not in any way explain why his former employees would have agreed to be paid only once XXXX XXXX XXXX XXXX, especially since a bank was financing XXXX XXXX. Why were the salaries not paid during XXXX XXXX? Similarly, the appellant did not explain why XXXX XXXX XXXX were XXXX XXXX all those years or who was in charge of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [36] I therefore find it inconsistent that the former employees never claimed their salaries between 2007 and 2012. [37] It also seems implausible that the appellant, either before being threatened or afterwards, never tried to solve the alleged problem of the amounts of money that might be owed to his former employees, for instance with the bank that financed the project or the individual whom he calls his associate and who allegedly was in contact with the bank. [38] I find the appellant's actions inconsistent in terms of spending the US$5,000 to leave his country instead of using it to pay the alleged debt. Furthermore, I find the appellant's testimony implausible that his creditors did not want to accept a partial payment of the amounts owed, which is why he allegedly never used the $5,000 for that purpose. [39] I also find it implausible that the appellant never filed a complaint with Dominican authorities, such as the police, if he had constantly been receiving death threats since XXXX 2012. In his testimony, the appellant explained that his creditors threatened him with reprisals if he complained to the police and that some of them had family members in the police forces. In my view, that does not reasonably explain why the appellant did not file a complaint, if he and his family received death threats from XXXX 2012 until he left the country in 2014, especially since the creditors' statements show that they are afraid of the police, not that they would go unpunished. [40] Furthermore, I find that another element, which the RPD addressed at the hearing but not in its reasons, also undermines the appellant's credibility. That element is the total lack of documents to corroborate important aspects in the appellant's allegations. [41] When asked by the RPD whether he took steps to obtain documents, especially from the bank with which he was allegedly doing business, the appellant answered that he asked his wife in the Dominican Republic to send them to him, but that she [translation] "had surgery" and was not able to find the documents. [42] Although the appellant is not required to produce documents that might corroborate his allegations, in this case, in light of the inconsistencies and implausibilities set out above, I find that the lack of documents and of serious effort on the appellant's part to obtain them undermines his credibility. In my view, the appellant could have obtained official documents, especially from the bank or his associate, to demonstrate his XXXX XXXX, the loans he received, XXXX XXXX XXXX XXXX XXXX and other contracts. [43] In my view, nothing shows that, as the appellant alleges in his memorandum, the RPD ignored the case law principles on the assessment of his credibility, specifically in terms of the presumption of credibility. I find that, in its reasons, the RPD demonstrated why it rejected the appellant's credibility, and nothing shows that it ignored the principle of the presumption of the truthfulness of testimony given under oath. [44] I also find that the appellant did not demonstrate, as he alleges before the RAD, that the RPD focused on secondary elements in his refugee protection claim in order to reject his credibility. In my view, the implausibilities and inconsistencies mentioned above are not peripheral or secondary to the claim, but rather pertain to essential aspects of the claim. [45] Finally, at paragraph 40 of his memorandum, the appellant states the following: [translation] "He submitted to the Board several pieces of evidence demonstrating the truthfulness of the facts that he reported." I cannot accept that argument; on the contrary, I found in my conclusions above that the appellant actually submitted no documents to demonstrate the truthfulness of his allegations, which further undermines his credibility. [46] As a result of all the above, I conclude that the appellant did not establish that the RPD committed a palpable and overriding error in its decision that warrants the RAD's intervention. REMEDY [47] 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. [48] The appeal is dismissed. Normand Leduc Normand Leduc May 15, 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-03697 11 RAD.25.02 (2014.09.11) Disponible en français