MB4-01657

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 : MB4-01657 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 September 18, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Angelica Pantiru Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She did not present any new evidence and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] I determine that the RPD decision is wrong in fact and in law. I am not able to set aside the RPD determination and substitute the determination that should have been made without hearing evidence that was presented to the RPD. [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND A. Basis of the claim [5] The appellant is a 64-year-old woman who alleges in her Basis of Claim Form (BOC Form), filed before the RPD, that she is a resident of the city of XXXX XXXX, where she is afraid of a group of individuals involved in home robberies. [6] She alleges that these individuals broke into her home a few times to rob her, and in XXXX 2010 in particular, when her national identity card and her bank book were stolen. The appellant allegedly filed a complaint with the police following that robbery. Allegedly, her card and her bank book were left on the terrace of her home 15 days later, and she received a threatening telephone message, ordering her not to report the robbers. She alleges that she subsequently received other threatening messages, about 20, until her departure for Canada. [7] On XXXX XXXX XXXX 2011, the appellant left Haiti for the Dominican Republic before coming to Canada on XXXX XXXX, 2011, as a visitor invited by her son who lives in Canada. Her son allegedly initiated an immigration process for her, but it led nowhere. [8] The appellant filed a refugee protection claim in Canada in December 2012. [9] In a letter amending her BOC Form, the appellant also alleges certain incidents that occurred after she left Haiti, that is, the murder of her nephew, XXXX XXXX, on XXXX XXXX, 2011, by criminals because he was a police informer, and the murder of XXXXs brother, XXXX XXXX XXXX on XXXX XXXX, 2013. She also alleges that on XXXX XXXX, 2013, two of her daughters were raped in the family home in XXXX XXXX, and that the assailants told them that the fury unleashed against them was in retaliation for their mother's departure. [10] The appellant alleges that she fears reprisals from the criminals because of the complaint she filed against them and the fact that some of her family members were police informers. B. First RPD decision [11] A hearing before the RPD, consisting of a three-member panel, was held on February 19, 2013, and a decision was rendered on May 15, 2013, rejecting the refugee protection claim on the ground that the appellant's essential allegations were not credible. [12] The RPD also determined that the appellant had not demonstrated that she had a well-founded fear of persecution merely by reason of her membership in a particular social group, namely, "women," nor had she demonstrated that the risk to which she would be subjected, should she return to Haiti, would be different from the "generalized risk" to which the entire Haitian population is subjected. C. First RAD decision [13] The appellant appealed the RPD decision to the RAD, and the latter, in a decision rendered on September 19, 2013, set aside the RPD's determination that the appellant had failed to demonstrate that she had a well-founded fear of persecution by reason of her membership in a particular social group, namely "women" or [translation] "women returning to Haiti," because it was deemed unreasonable as a result of, according to the RAD, an incomplete analysis by the RPD of the documentary evidence regarding the situation of women in Haiti, in light of the criteria set out in the Guidelines. [14] The RAD did not rule on the other ground for the appeal, namely, the RPD's finding regarding the appellant's overall credibility. [15] The RAD referred the matter to the RPD for re-determination, with the instruction of specifically taking into consideration all of the documentary evidence regarding Haitian women who fear being sexually assaulted in their country, and applying the entire analytical framework proposed in Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. D. Second RPD decision [16] A new hearing before a differently constituted RPD panel was held on January 8, 2014, and the RPD once again rejected the refugee protection claim in a decision rendered on February 6, 2014, on the same grounds: that the appellant's essential allegations were not credible and that she had neither demonstrated a well-founded fear of persecution by reason of her membership in a particular social group, namely "women," should she return to Haiti, nor that she would be personally subjected, should she return to her country, to a risk that would be different from the "generalized risk" to which the entire Haitian population is subjected. [17] That is the decision that is the subject of this appeal. E. The appellant's arguments [18] In the memorandum that she submitted to the RAD, the appellant argues that the RPD was wrong in basing its decision on the RPD's first decision, instead of proceeding with a de novo hearing. In her opinion, this is a breach of the rules of natural justice and procedural fairness. [19] The appellant also argues that the RPD erred in its assessment of her risk of return by reason of her membership in a particular social group, namely "women," by failing to take into consideration, in its analysis of the documentary evidence, the most recent documentary evidence filed on the record and by not proceeding with a de novo analysis of her alleged fear. [20] For these reasons, the appellant is asking that the RAD set aside the determination of the RPD and [translation] "order a new hearing before other members." THE ROLE OF THE RAD [21] The IRPA does not expressly set out the standard of review or intervention that the RAD should apply when reviewing RPD decisions. In this case, the appellant does not specify what that standard of review and the RAD's role should be. [22] The Federal Court, which has the authority to review the RAD's decisions, has thus far rendered a few decisions regarding the RAD's standard of review or intervention or its role when it receives an appeal of an RPD decision. [23] In Alvarez (Alvarez v. M.C.I. 2014, F.C. 702) and Eng (Eng v. M.C.I., 2014 F.C. 711), both rendered on July 17, 2014, the Honourable Justice Shore of the Federal Court of Canada took a different view of this issue. [24] In paragraphs 28 and 29 of Alvarez, as in 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. [25] The Court adds the following, in paragraph 33 of Alvarez, as well as in paragraph 34 of Eng: [33] The Court agrees that the RPD, as the tribunal of first instance, is owed a measure of deference with regard to its findings of fact, and of fact and law. The RPD is better situated to draw such conclusions as it is the tribunal of first instance, the trier of facts, having the advantage of hearing testimony viva voce (Housen, above). However, the RAD must nonetheless perform its own assessment of all of the evidence in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error. The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA and the case law dealing with the virtually identical wording of subsection 67(2). The Court finds that the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes. [26] In a decision rendered on August 22, 2014, in Huruglica (Huruglica v. M.C.I. 2014 F.C.799), the Honourable Justice Phelan of the Federal Court addresses the RAD's role and responsibilities, and writes the following: [44] Subject to specific language, the need for deference, for example, is less compelling between the RAD and the RPD than it is between the judiciary and the executive. The relationship is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal. [45] Therefore, a standard of review analysis is not an appropriate analytical approach. .... [27] Giving particular consideration to the RAD's authority under subsection 111(1) of the IRPA to substitute the determination that "should have been made," Justice Phelan writes: [47] Unlike judicial review, the RAD, pursuant to subsection 111(1), may substitute the determination which "in its opinion should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. [48] The restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal. .... [28] Justice Phelan finally 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". [29] In light of these Federal Court decisions regarding the role of the RAD, I am of the opinion that it is appropriate, for the time being, to apply the conclusions reached in Huruglica. [30] Consequently, in this case I will conduct an independent assessment of the refugee protection claim and of all the evidence submitted in order to reach my own opinion as to whether or not the appellant is a "Convention refugee" or "person in need of protection," while giving a certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. [31] I would add, however, while keeping in mind that Justice Phelan does not refer to it in Huruglica, that if the evidence submitted is incomplete and prevents me from arriving at a decision as to whether or not the appellant is a refugee or a person in need of protection, and if I am of the opinion that the RPD's decision is erroneous, it is then possible for me to refer the matter to the RPD for a re-determination of the refugee protection claim, pursuant to subsections 111(1) and (2) of the IRPA. [32] In my opinion, this is the RAD's role as understood by Justice Phelan in Huruglica when he refers to a "hybrid appeal," given also that the RAD cannot hold a hearing to truly hear the case de novo. ANALYSIS [33] Having analyzed the RPD's decision and listened to the recording of the hearing held on January 8, 2014, I can only agree with the appellant's arguments in this case to the effect that the RPD was wrong in failing to hold a de novo hearing after the RPD's first determination was set aside and the case returned to the RPD by the RAD. [34] I am of the opinion that during the second hearing, the RPD was to proceed with a de novo hearing by reassessing the credibility of the appellant's allegations, as presented before it during that second hearing, and not by taking into consideration what was said at the first hearing and by taking into consideration the RPD's decision following that first hearing. [35] Several times during the second hearing, the RPD confronted the appellant with what she had said during the first hearing and found that it agreed with the findings of the first panel. In my opinion, this is a breach of the rules of natural justice and procedural fairness, as the appellant alleges. [36] For example, it appears in paragraph 9 of its reasons that the RPD questioned the appellant regarding the contradiction about the date of the last robbery of which she had allegedly been a victim in Haiti, which occurred in 2010 according to her testimony, and the complaint filed with the police, although it was written in the BOC Form that that robbery had occurred in 2011. This is a contradiction which, according to the first RPD panel, undermined the appellant's credibility. However, at the second hearing, the year had been amended on the form; there was therefore no longer any contraction regarding this matter at the second hearing. [37] In another example, the RPD [translation] "confirms," in paragraphs 13 and 14 of its reasons, the first panel's finding that the appellant's credibility was undermined by the testimony given by her daughter by telephone during the first hearing. I am of the opinion that the RPD could not have reached the conclusion it did without questioning the appellant's daughter once again about the events that she alleges having experienced in Haiti. Moreover, if there are obvious contradictions in anyone's testimony, the appellant's daughter in this case, only that person can explain the said contradictions, and not the appellant herself, as the RPD took into consideration. [38] In analyzing the evidence presented before the RPD at the second hearing, it is impossible for me to conclude whether or not the appellant is a "Convention refugee" or a "person in need of protection" since key issues regarding her fear of returning to Haiti, regarding state protection and regarding internal flight alternative were not discussed and assessed before the RPD. I think it essential that the appellant be questioned about these matters, which was not done before the RPD. Since I cannot hold a hearing before the RAD to question the appellant myself about these matters, I have no choice but to refer the case to the RPD, before a differently constituted panel, for re-determination of the refugee protection claim. REMEDY [39] I determine that the RPD decision is wrong in fact and in law. I am not able to set aside the RPD determination and substitute the determination that should have been made without hearing evidence that was presented to the RPD. [40] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [41] The appeal is allowed. Normand Leduc Normand Leduc September 18, 2014 Date IRB Translation Original Language: French RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01657 3