MB5-00215

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 : MB5-00215 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 July 10, 2015 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello 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 did not present any new evidence in support of his 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 a person referred to in Article 1F of the Convention and, consequently, is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant is a 55-year-old man who alleges in his Basis of Claim Form submitted before the RPD that he feared a certain number of individuals in the Dominican Republic whom he allegedly helped to have arrested and sentenced, notably for drug dealing, through his collaboration with American police forces. After completing their jail sentences, these individuals were allegedly deported to the Dominican Republic. [5] The appellant claims that he himself had been deported from the United States to the Dominican Republic in XXXX 2012 and that he had been threatened and attacked there by individuals whom he had allegedly helped to have sentenced. He left his country for Canada on XXXX XXXX, 2013. [6] The Minister of Public Safety and Emergency Preparedness (the Minister), through his representative, intervened before the RPD, arguing that Article 1F(b) of the Convention applied to the appellant because there were serious reasons for considering that he had committed serious non-political crimes during his stay in the United States, that is, the crimes of identity theft, robbery, possession of a controlled substance (heroin) and assault causing bodily harm. [7] The RPD rejected the claim for refugee protection on the basis that there were serious reasons for considering that the appellant had committed a serious non-political crime in the United States, that is, the crime of robbery, as set out in paragraph 343(b) of the Canadian Criminal Code. Pursuant to section 98 of the IRPA, the RPD concluded that the appellant was neither a Convention refugee nor a person in need of protection and therefore did not assess the appellant's alleged fear of returning to the Dominican Republic. [8] The appellant submits before the RAD that the RPD erred in finding that the crime for which it had excluded him, the crime of robbery, was a [translation] "serious crime" within the meaning of the case law. He submits that the RPD incorrectly assessed the facts surrounding the commission of the crime when it concluded that it was a serious crime. [9] For these reasons, the appellant requests that the RAD set aside the RPD's determination and that it refer the matter for re-determination. THE RAD'S ROLE [10] The IRPA does not specifically provide for the standard of review or intervention that the RAD should apply when reviewing decisions rendered by the RPD. [11] In this case, the appellant states in his memorandum that the standard of review applicable by the RAD is reasonableness, as the question of his exclusion is a question of mixed fact and law. [12] Based on the following, I find that the reasonableness standard cannot apply in this case. [13] 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 an RPD decision is appealed to it. [14] 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. [15] At paragraphs 28 and 29 of Alvarez, as well as paragraphs 29 and 30 of Eng, the Court states the following: [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. [16] The Court adds the following, at paragraph 33 of Alvarez, as well as 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. [17] In a decision rendered on August 22, 2014, in Huruglica,3 the Honourable Justice Phelan of the Federal Court considered the RAD's role and functions and writes: [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.... [18] When considering the RAD's authority under subsection 111(1) of the IRPA to substitute a 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.... [19] 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". [20] In Spasoja,4 rendered on September 23, 2014, the Honourable Justice Roy of the Federal Court also examined the RAD's role. [21] In line with the previous Huruglica, Eng and Alvarez decisions, the Court first found in that case that the RAD had erred in applying the reasonableness standard rather than conducting an independent assessment of the claim for refugee protection (paragraph 12). [22] The Honourable Justice Roy proceeded with a detailed analysis of the statutory provisions concerning 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 parliamentary committee of the House of Commons, 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). [23] Based on the conclusions in Parizeau with regard to the standard of review that an appeal tribunal should apply, and distinguishing himself from his colleague who rendered the Court's decision in Huruglica, the Honourable Justice Roy found that the standards of review applicable 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. Moreover, 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). [24] The Honourable Justice Roy also indicates that he could not find any indicators providing for an appeal de novo before the RAD (paragraph 42), and states 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).... [25] 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-cited decisions, first concludes that all reject the standard of reasonableness, and then concludes that, in his view, the RAD has to be allowed to choose between the two remaining approaches, either that stated in Eng, Alvarez and Spasoja, which is the standard of palpable and overriding error, or that stated 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). [26] In fact, Justice Martineau writes at paragraph 46 of Alyafi that: [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. [27] Consequently, I am of the opinion that it is preferable for the RAD to apply the principles established in Spasoja in this case because no new evidence was presented and no hearing was held before the RAD, although I am also of the opinion that in this case, I would come to the same conclusion by applying the principles in Huruglica. [28] I find that the error alleged by the appellant with regard to exclusion clause 1F(b) is a question of mixed fact and law, and, consequently, I will apply the standard of palpable and overriding error. [29] I will proceed with a review and my own assessment of all the evidence submitted before the RPD to determine whether it committed one or more errors. [30] At paragraph 91 of Parizeau, 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, i.e. the result of his or her decision, cannot hold, thus, ipso facto, making the decision unreasonable. ANALYSIS [31] The RPD determined that the crime the appellant had committed, under the alias XXXX XXXX XXXX XXXX XXXX, in XXXX County, Florida, in the United States, on XXXX XXXX, 1988-that is, the crime of armed robbery, of which he was convicted on XXXX XXXX XXXX 1990, and for which he was given a seven-year sentence-was a serious non-political crime committed outside Canada and justified the appellant's exclusion under Article 1F(b). [32] The RPD considered the crime for which the appellant was convicted to be the equivalent of the crime of robbery in Canada, as described in section 343 of the Canadian Criminal Code, which states the following: ROBBERY AND EXTORTION Robbery 343. Every one commits robbery who * (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; * (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; * (c) assaults any person with intent to steal from him; or * (d) steals from any person while armed with an offensive weapon or imitation thereof. [33] The punishment for this offence in Canada is imprisonment for life, as set out in subsection 344(1) of the Criminal Code: Robbery * 344. (1) Every person who commits robbery is guilty of an indictable offence and liable (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. [34] The facts surrounding the commission of the crime are essentially from two sources: from the affidavit of the police officer who arrested the appellant, which was submitted as evidence before the RPD by the Minister as Exhibit M-6 (see page 135 of the RPD record), and from the appellant's own testimony before the RPD. [35] It is written in the police officer's affidavit that, based on the testimony of the witnesses to the crime and the victim's testimony, the appellant and an accomplice held the victim down on his car, and ordered him to give the appellant everything he had, before hitting him several times in the face. The victim apparently tried to take out his revolver, for which he had a valid permit, in order to defend himself, but the appellant allegedly grabbed the revolver in question and used it to threaten the victim, while continuing to hit him. The appellant and his accomplice allegedly tried in vain to leave the scene with the victim's car before fleeing on foot, with the victim's jewellery and his revolver. The appellant and his accomplice were then arrested by one or more police officers. [36] The appellant's testimony before the RPD, however, was to the effect that he was eating in a restaurant when he saw his friend in the restaurant's parking lot, fighting with another man; when he saw the other man pull out a revolver, he intervened to protect his friend and grabbed the revolver, until the police arrived and intervened. [37] When asked to give certain details, the appellant added that before the police arrived, he pushed the man, who fell to the ground. The appellant added that he then hit the man on the forehead with the revolver before the police arrived. [38] When asked to explain why, in his opinion, the story in the police officer's affidavit was different from his own, the appellant stated that he did not know why. [39] Like the RPD before me, I find that there is reason to attach more probative value to the document submitted by the Minister, in this case, the police officer's statement, than to the appellant's testimony. [40] As the RPD took into account, the appellant omitted an important aspect in his [translation] "first" description of the facts, that is, that he had struck the victim on the forehead with the revolver, which undermines his credibility. Moreover, the appellant was unable to explain why the police officers would have invented this story in order to lay charges against him and his accomplice, rather than blame the victim, who the appellant stated was actually the perpetrator in this case. [41] Although the appellant is not obligated to explain someone else's behaviour, in this case, the police officers who arrested him, it seems unlikely to me, if not implausible, that the police officers would have had any interest in inventing a story like this against the appellant. [42] What is more, I note that the appellant had been convicted of this charge of armed robbery after a trial (see Exhibit M-6, page 139 of the RPD record), the details of which were not submitted in evidence before the RPD, but, in my opinion, this would suggest that evidence, such as testimony, had been submitted before the American court to establish the details of the charge. [43] In paragraphs 26 to 31 of his memorandum, the appellant argues that according to his version of the facts, he did not commit a serious crime justifying his exclusion. I find that it is not necessary to assess any further whether, according to his version of the facts, he committed a serious non-political crime that justifies his exclusion (it should be noted that he acknowledged that he hit the victim in the head with a firearm), given that the RPD did not find his version of the facts to be credible, a finding with which I agree, as explained above. [44] Finally, I fully agree with the RPD's determination that the crime of armed robbery that the appellant committed in the United States constitutes a serious non-political crime justifying his exclusion under Article 1F(b) of the Convention. [45] First, I am of the opinion that the equivalent of this crime in Canadian law is robbery, as described in section 342 of the Criminal Code, punishable by imprisonment for life. [46] In paragraphs 20 to 23 of its reasons, the RPD evaluated the criteria that the Federal Court of Appeal established in Jayasekara6 in order to determine the seriousness of the crime committed. This crime committed involved violence and physical assault, which is an indictable offence in Canada that is punishable by imprisonment for life, and for which the prison sentence given in the United States, seven years, is serious. I am also of the opinion that nothing in the evidence demonstrates that there were mitigating circumstances in the commission of the crime. On the contrary, the appellant tried to demonstrate in his testimony that he had not committed this crime, but this testimony was found not credible by the RPD and by the undersigned. [47] In addition, I would like to add that in paragraph 48 of Jayasekara, the Federal Court of Appeal writes that: [48] ... In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G. S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions "proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery" (emphasis added). [49] In this case, the crime called robbery in the Canadian Criminal Code or armed robbery in the United States is what the authors quoted by the Court of Appeal in the previous paragraph call armed robbery, a crime for which they propose there is a presumption of seriousness. That, in my opinion, is one more factor demonstrating that in this case, the crime that the appellant committed is a serious non-political crime. [50] The finding that there are serious reasons for considering that the appellant had committed a serious non-political crime before he arrived in Canada, that is, robbery, is sufficient to dispose of the matter. There is therefore no need to further assess the seriousness of the other crimes that the Minister alleges the appellant committed in the United States, and there is no need to further assess the appellant's fear of returning to the Dominican Republic. [51] In light of the preceding, I find that the appellant did not demonstrate that the RPD committed one or more errors justifying the intervention of the RAD. REMEDY [52] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" within the meaning of section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [53] The appeal is dismissed. Normand Leduc Normand Leduc July 10, 2015 Date IRB translation Original language: French 1 Alvarez v. M.C.I., 2014 FC 702. 2 Eng v. M.C.I., 2014 FC 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. 6 Jayasekara v. Canada, 2008 FCA 404, December 17, 2008, paragraphs 44 et seq. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-00215 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-00215 12