MC0-02298

RAD File No. / No de dossier de la SAR : MC0-02298 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 / entendu à Date of decision May 10, 2021 Date de la décision Panel Me Kristine Plouffe-Malette Tribunal Counsel for the person who is the subject of the appeal Jorge J. Colasurdo Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Guatemala, is appealing the Refugee Protection Division (RPD)'s decision dated December 27, 2019, rejecting his refugee protection claim on the grounds that his account is implausible and his testimony is not credible. [2] According to his Basis of Claim Form (BOC Form), the appellant fears members of the Maras group. On XXXX XXXX, 2017, the appellant's father, the owner of a truck parts business, received a call telling him he had to comply with their extortion demand or else they would kill his son. Fearing for his life, the appellant left Canada the first time on XXXX XXXX, 2017, but was immediately sent back. He left the country a second time for Canada on XXXX XXXX, 2017, to claim refugee protection here. The appellant alleges that his grandfather was killed in 2009 by the same individuals who want to harm him, the same way they allegedly went after his uncle. The latter has since obtained protection in Canada. [3] In his memorandum, the appellant submits that his testimony was credible and disputes all of the RPD's conclusions. [4] For the Refugee Appeal Division (RAD), the determinative issue is procedural fairness. With respect to the RPD, after reviewing the record in its entirety, the RAD concludes that there was a breach of procedural fairness because the appellant was not questioned about the facts that are the very basis of his refugee protection claim. The appeal is allowed, and the matter is referred to a differently constituted panel of the RPD. ANALYSIS [5] In Vavilov,1 the Supreme Court of Canada notes that the written reasons given by an administrative body must be read in their entirety. They may not include all the arguments raised by a party and can still be confirmed. A decision-maker is therefore not required to make an explicit finding on each element. Previously, in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador, the Supreme Court has stated as follows: Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.2 [6] Moreover, in accordance with the Federal Court of Appeal in Huruglica,3 the RAD must conduct an independent assessment of the evidence in support of the appeal and, unless the RPD had a meaningful advantage with respect to credibility, must apply the correctness standard. Ultimately, what the RAD takes from these decisions is that while the reasons need not be perfect, they must nonetheless be based on the evidence on the record. [7] In this case, the RAD carried out an independent assessment of all of the evidence, which included reading the transcript of the hearing before the RPD. It is of the opinion that the RPD did not have a particular advantage in assessing the appellant's credibility, and more importantly, it considers that the RPD's reasons, even when read in their entirety, do not reflect the evidence on the record. Therefore, there is a breach of procedural fairness. [8] The RPD found the appellant's testimony implausible essentially because he made two trips to Canada. The first time he appeared before the customs officials in XXXX 2017, the appellant stated that he was travelling to purchase auto parts. The customs officials did not believe him and he was denied entry right away. The second time the appellant appeared before the customs officials, he again stated that he was going to purchase auto parts, but this time the customs officials allowed him to enter the country pending a more in-depth review of his file. He subsequently filed a claim for refugee protection. He stated that he had not wanted to file a refugee protection claim at the time he was denied entry because he was afraid to lose his visitor's visa. Clearly, there is significant confusion on the appellant's part regarding migration procedures. [9] However, with respect to the RPD, the appellant was asked few questions at the hearing about the facts specific to the refugee protection claim. The events that led the appellant to leave his country were barely discussed and the identity of his alleged aggressors was not addressed. The hearing focused mainly on the two trips made by the appellant, his exchanges with the customs officials, and the RPD's assumptions about the intentions of the agents of risk, who have apparently not gone after other members of the appellant's family. From listening to and reading the transcript of the hearing, it is clear that the RPD considered the appellant's account implausible from the very first questions it asked, before even addressing the central facts of the refugee protection claim. No questions were asked about efforts made by the appellant to obtain protection from the authorities, nor was there any suggestion of the possibility of an internal flight alternative. [10] In light of the foregoing, the RPD breached procedural fairness in not allowing the appellant to present his refugee protection claim. However, the RAD is unable to make a finding as to the appellant's credibility concerning the principal allegations on which his refugee protection claim is based. Without a full assessment of these, the RAD cannot substitute its own determination for that of the RPD or confirm the RPD's determination. For these reasons, the matter is referred to the RPD for re-determination. CONCLUSION [11] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette May 10, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 91. 2 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 16. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-02298 RAD.25.02 (January 2020) Disponible en français 3 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.25.02 (January 2020) Disponible en français