MB3-03156

RAD File No. / N° de dossier de la SAR : MB3-03156 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision November 15, 2013 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Jamal A. Fraygui Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Jean-Denis Saint-Pierre Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX a citizen of Morocco, is appealing the Refugee Protection Division (RPD) decision rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD, 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. BACKGROUND [3] The appellant is a 24-year-old man. He was a student in the city of XXXX, in Morocco. Before the RPD, he alleged that he had been involved in an altercation with a religious man in the XXXX of 2009, when the latter saw him kissing his girlfriend on a public bench near a mosque. He stated that he learned the following day that this man, along with approximately 10 others, were looking for him because they wanted to kill him. The religious man allegedly assaulted him with a knife a week later, while the appellant was on his way home from school. [4] In his Basis of Claim (BOC) Form, the appellant further alleged that a radical religious organization had attempted to recruit him in 2009 and that he and his family had been threatened. [5] The appellant left his country on XXXX XXXX, 2010, for Canada, where he was admitted as a student. He claimed refugee protection in May 2013 after being arrested for shoplifting while he no longer had legal status in Canada. [6] The RPD found that the appellant's principal allegations were not credible and consequently determined that he was not a "Convention refugee" or a "person in need of protection". [7] Before the RAD, the appellant argues that the RPD erred in its assessment of his credibility, as follows: * by not taking into account his [translation] "level of education and social status" when analyzing his credibility; * by concluding that there were contradictions in his testimony concerning his membership in a group called the "Mouvement du 20 février" [XXXX XXXX movement]; * by being determined to find flaws in his testimony; and * by drawing negative inferences from his delay in claiming refugee protection. [8] For these reasons, the appellant is asking the RAD to set aside the RPD's determination. [9] The Minister of Public Safety and Emergency Preparedness (the Minister) intervened in this case and argues that the RPD did not err in its assessment of the appellant's credibility. [10] For these reasons, the Minister is asking the RAD to dismiss the appeal. DECISION ON THE NEED TO HOLD A HEARING [11] In the affidavit included in his memorandum, the appellant asks [translation] "that the panel allow me the right to a hearing before determining my appeal" (see page 13 of the memorandum). [12] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if it is of the opinion that the new evidence presented in the appeal is admissible and meets three criteria: 1) it raises a serious issue with respect to the person's credibility; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the claim for refugee protection. [13] Given that the preliminary requirement was not met, since no new evidence was presented in this appeal, I conclude that no hearing can be held in this case. STANDARD OF REVIEW [14] The IRPA does not expressly set out the standard of review that should be applied by the RAD when reviewing decisions rendered by the RPD, nor is that standard of review directly set out in the case law. In his memorandum, the appellant makes no precise submissions regarding what standard should be applied, whereas the Minister submits that the RPD's credibility assessment should be reviewed on a reasonableness standard. [15] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada revisited the foundations of judicial review and the standards of review applicable in various situations. In order to simplify the analysis, the Supreme Court determined that there should now be only two standards of review: correctness and reasonableness. [16] Although the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that, absent more direct guidance from the higher courts, the principles developed in Dunsmuir can be applied to the RAD. [17] In paragraph 51 of its decision in Dunsmuir, the Supreme Court states that "...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness". [18] In the present case, the issue of whether or not the RPD erred in its assessment of the appellant's credibility is a question of fact. Consequently, I will apply the standard of reasonableness. [19] In paragraph 47 of Dunsmuir, the Court states that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Judicial deference is therefore required and deference must be given to the RPD decision. ANALYSIS [20] The issue in this case is whether or not the RPD erred in its assessment of the appellant's credibility. [21] In finding that the appellant was not credible, the RPD noted a number of contradictions and implausibilities in the evidence before it, which I will summarize here: * The appellant testified that the religious man with whom he allegedly had the altercation had not threatened him verbally, whereas his BOC Form states that he did. In the RPD's opinion, the appellant changed his testimony when confronted with this contradiction, to state that he had been threatened. * The appellant testified that his family had not been threatened, whereas he wrote the opposite in his BOC Form. The RPD did not find the appellant's explanations reasonable-that he did not remember what he had written in his form. * Regarding the event allegedly at the root of the appellant's problems, there was a contradiction between the written version appearing in the BOC Form and the version given to the immigration officer in May 2013. The RPD did not find the appellant's explanations reasonable-that he [translation] "did not remember everything". * There was a contradiction between the appellant's testimony and his BOC Form regarding the fact that a religious organization allegedly tried to recruit him. The RPD was of the opinion that the appellant's explanations on this subject were muddled and that he was unable to explain why he had written this in his form. * The RPD did not believe that the appellant had belonged to a group called the "Mouvement XXXX XXXX XXXX" since 2008, as he told the immigration officer at the time of his claim for refugee protection, because the documentary evidence indicates that this movement was formed in 2011, and the appellant was unable to provide any details about the movement or his involvement in it. * Finally, the RPD was of the opinion that the appellant's behaviour was inconsistent with that of a person who fears persecution in his country, first because he kept going to school in Morocco even after receiving the first alleged threats, and also because of his delay in claiming refugee protection in Canada. [22] I am of the opinion that, contrary to the appellant's allegations, there is nothing to show that the RPD did not take into account his [translation] "social status" and his [translation] "level of education" in its assessment of his credibility. Moreover, the appellant does not specify what his social status is or how it would be relevant to the assessment of his credibility. Nor does the appellant specify how his level of education would be relevant to the assessment of his credibility or how it would explain the contradictions that were noted, in particular since I note that he has completed approximately 16 years of education (see page 50 of the RPD record). [23] I am also of the opinion that there is nothing to show that the RPD was determined to find flaws in the appellant's testimony or that it was overzealous in doing so. The RPD noted numerous contradictions concerning important elements of the claim. The RPD gave the appellant an opportunity to explain these contradictions and found that his explanations were not reasonable, which, in my opinion, it was open for it to do. [24] In his memorandum, the appellant argues that the RPD erred in its assessment of his credibility regarding his involvement in the "Mouvement XXXX XXXX XXXX", in finding that his explanation-that in 2008 he had joined a student movement that later officially became the "Mouvement XXXX XXXX XXXX"-was not reasonable. First, I am of the opinion that it was open to the RPD to conclude as it did, because it also found that the appellant's inability to give any details about the movement or his involvement in it undermined his credibility; and second, this element is, in my opinion, peripheral to the claim for refugee protection because there is nothing to indicate that the appellant's membership in this movement was the cause of his alleged problems. [25] Finally, I am of the opinion that it was open to the RPD to draw negative inferences from the appellant's behaviour, as it did, even though this is not in itself fatal to the claim for refugee protection, as the RPD also notes in its reasons, stating that the failure to make a claim at the first opportunity, [translation] "while not an essential element", is nevertheless relevant (see page 5 of the RPD's reasons). [26] For all these reasons, I am of the opinion that the RPD decision is transparent, intelligible, and falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. REMEDIES [27] For the foregoing reasons, I confirm the determination of the RPD, that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection". [28] The appeal is dismissed. Normand Leduc Normand Leduc November 15, 2013 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-03156 2