MB4-04463

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 : MB4-04463 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 May 22, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Venezuela, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim and determined that she is neither a "refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) set aside the determination and refer the matter to the RPD for re-determination of her refugee protection claim by a differently constituted panel. [3] The appellant did not submit any new evidence in support of her appeal under subsection 110(4) of the IRPA. She did not request that a hearing be held under subsection 110(6) of the IRPA. [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, namely, 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. [6] The appeal is dismissed. FACTUAL BACKGROUND [7] In her Basis of Claim Form (BOC Form), the appellant alleges that her parents were persecuted by reason of their opposition to the Bolivarian dictatorship in Venezuela. She states that at university, she participated in various political activities as a sympathizer and collaborator of the student movement. At the same time, she was a member of the Democratic Unity Table (MUD), also known as "Mesa," a coalition of various government opposition parties. [8] In March 2013, she became more actively involved in politics because XXXX XXXX decided to run as a candidate in the municipal election, to be held in December 2013. She therefore became a member of MUD's investigation committee. [9] Her problems began on April 15, 2013. She alleges that upon leaving an MUD meeting, she was the victim of an attack by a member of the Venezuelan National Guard. She states that she suffered injuries to her knees and elbows and was stripped of her camera, cellular telephone and information obtained in her investigation. She also alleges that the guard pointed a firearm at her while threatening her if she did not stop her political activities. She was hospitalized for three days because of the injuries. [10] She alleges that as of April 18, 2013, she began receiving anonymous telephone calls. Fearing for her safety, she sought refuge at a friend's home in Caracas. However, on June 18, 2013, that friend asked her to leave because the day before he had received a call from someone looking for her. In the meantime, her parents continued to receive calls. [11] Since she feared for her safety, her parents suggested that she leave the country until the situation settled down. As a result, the appellant left Venezuela on XXXX XXXX, 2013. She was admitted to Canada as a student. [12] She alleges that the situation in Venezuela began to deteriorate on February 12, 2014. The political repression was aimed at many students who were arrested, detained and killed. [13] She was informed that on May 5, 2014, some paramilitaries posted signs on the walls of the family home. Her mother tried in vain to file a complaint. [14] On June XXXX XXXX 2014, her mother sought refuge in Panama because of the harassment that she suffered. Her father joined her mother in July 2014. Decision under review [15] On October 16, 2014, the RPD rejected the refugee protection claim on the grounds that the appellant had not established a serious possibility of persecution on one of the five Convention grounds or that it was likely that her life would be subjected to one of the risks set out in section 97 of the IRPA should she return. The factors retained by the RPD are summarized as follows: ? By reason [translation] "of the contradictions, inconsistencies and implausibilities in the claimant's evidence, which were not explained in a credible and satisfactory manner, the panel's finding of non-credibility extends to all of the claimant's allegations. Essentially, the panel does not believe the claimant's story as a whole"; ? Consequently, the RPD [translation] "grants no probative value to the documents produced by the claimant in support of her allegations"; ? In this case, the RPD was of the opinion that the claimant's delay in claiming refugee protection contradicts the credibility of her allegations that her life is in danger in Venezuela. GROUNDS OF APPEAL Appellant's allegations [16] The appellant's arguments can be grouped as follows. [17] First, the RPD did not take into account the test set out in the Handbook on Procedures and Criteria for Determining Refugee Status1 (UNHCR Handbook), namely, with respect to the subjective element of her fear. According to her, the RPD ignored her statements in this respect.2 [18] Second, based on The Right Honourable Jean Chrétien v. The Honourable John H. Comery, (2009) 2 F.C.R., which reproduces the factors identified in Baker v. Canada (Minister of Citizenship and Immigration), she alleges that the member was not impartial and that she had prejudged her claim, thus breaching the duty of procedural fairness. In that respect, she points out the member's comments concerning her lawyer's assistant, the translator of the BOC Form.3 [19] Third, based on Cepeda-Gutierrez v. Canada (M.C.I.) (1998) F.C.J. 1425 (QL), she alleges that the RPD erred by ignoring the numerous documents submitted in support of her allegations and by failing to comment on them. She notes the statements of Justice Demontigny in Kok Chung HNG & al v. M.C.I., No. IMM-4834-04: Is is well settled that the Board cannot question the validity of an apparently official document unless it is able to rely on other evidence tending to detract from the authenticity of the document.4 [20] The appellant also notes the statements of Justice Shore in Froment v. M.C.I., No. IMM-475-06, who states that: ... the real test of the truth of the story a witness in such a cause must be it's harmony with the preponderance of the probabilities which a practical an informed person would readily recognize as reasonable in that place and in those conditions.5 RAD'S ROLE AND FUNCTIONS [21] The appellant does not provide any argument regarding the RAD's role when it reviews an RPD decision. [22] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in the IRPA, its home statute. [23] The statutory provisions precisely indicate the allowable grounds for appeal,6 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the impugned determination, to set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions that it considers appropriate.7 [24] Called upon to determine the appropriate type of review by the RAD of decisions rendered by the RPD, the Federal Court recognized its "expertise" on refugee matters. The Federal Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeal"8 and states that "[t]he 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."9 Despite these observations, which have been shared by different justices, the Federal Court is faced with two key lines of jurisprudence. [25] According to the proponents of the first line of jurisprudence put forward by Justice Shore: [27] ... [T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts....10 [26] Justices Roy and Leblanc agree that the "error must be palpable and overriding to succeed on appeal."11 Justice Roy points out that appeals before the RAD are intended to be generous, but he adds "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."12 Justice Roy is also of the opinion that "[i]t 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)." [27] A different approach is proposed by Justice Phelan in Huruglica.13 According to Justice Phelan, "the RAD is required to conduct a hybrid appeal." [28] 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."14 [29] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may well be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [30] For my part, having reviewed the decisions rendered by the Court so far, it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must examine all of the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under 110(4) of the IRPA. [31] In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is central to the decision, or when the RPD is in an advantageous position compared to the RAD. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [32] Regarding errors of law, Justice Shore states that "the RAD must be able to correct any error of law."15 MERITS OF THE APPEAL [33] By reason of inconsistencies, contradictions in the evidence and the delay in claiming refugee protection, the RPD simply did not believe the facts alleged by the claimant. [34] Issues of credibility are questions of fact. Since the RPD has the advantage of seeing and hearing refugee protection claimants and witnesses, it is better positioned than the RAD to make a finding regarding their credibility. As the RAD generally proceeds on the basis of the record of proceedings, it will have this advantage only in a limited number of cases. It does not have this advantage in this case. Breach of procedural fairness [35] I will first analyze the second issue raised by the appellant, that is, that the member was biased and prejudged her claim by describing an interpreter working in her lawyer's office as [translation] "famous." In that respect, she refers to paragraph 19 of the decision, particularly the passage where the member states that she [translation] "does not believe that the claimant merely made a mistake in good faith, but instead believes that she has difficulty telling a story that is not hers" (emphasis by appellant's counsel). [36] A member's lack of impartiality constitutes a failure to observe a principle of natural justice and requires the decision under appeal to be reviewed on the correctness standard. [37] As the Federal Court states, "An allegation of bias is a serious matter" that must be "properly supported by credible evidence and sound reasoning."16 The threshold established in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pages 394 and 395, is high: ...[T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [38] Since the member saw the interpreter working at the lawyer's office on television, she described her as "famous."17 After reviewing all the evidence, I cannot find that a reasonable and right-minded person would not think that it is more likely than not that the RPD member would not decide fairly. [39] With respect to the passage underlined by counsel in the appellant's memorandum, it is important to place it in the context of the refugee protection claim.18 The RPD found that the claimant was not credible and that, because of inconsistencies in the evidence, it was of the opinion that the story in the account was prepared for the purpose of her refugee protection claim. [40] Paragraph 19 refers to the fact that the appellant states that she was investigating members of the opposition. However, since the member found her response strange, she asked her the question more than once and obtained the same response, that is, that she was investigating members of the opposition. When confronted with the fact that MUD is the opposition, the appellant stated that it was an error on her part and that she was investigating the government candidates. In isolation, the RPD's finding is not determinative with respect to the appellant's credibility. [41] It is important to note that, in this case, the cumulative effect of the inconsistencies and contradictions in the evidence led the RPD to seriously doubt the appellant's credibility. [42] For these reasons, after reviewing the hearing transcript and all the evidence, I am of the opinion that it was not established that the member failed to observe a principle of natural justice or that she prejudged the refugee protection claim. Subjective fear [43] The first issue raised by the appellant is that the member failed to follow the teachings in the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook). More specifically, she failed to take into account her statements in the evaluation of the subjective element of her fear of persecution. [44] After reviewing paragraphs 37 to 47 of the UNHCR Handbook and taking into account the appellant's statements, as well as the arguments that she made, I do not find that the RPD erred or that it failed to take her statements into account. [45] In this case, the appellant alleges that she comes from a family of political opponents. She states that she was the victim of ill treatment by a member of the Bolivarian Guard in April 2013. The injuries suffered were such that she had to be hospitalized for three days. She considered her safety threatened to the point that she left her country to seek refuge in Canada. However, she stated that she intended to return to Venezuela, and the evidence indicates that she delayed in claiming refugee protection. [46] As indicated at paragraphs 37 and 41 of the UNHCR Handbook: [37] ... Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin.... [41] Due to the importance that the definition attaches to the subjective element, an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record.... It is the role of the RPD member, who assesses the facts, to establish the credibility or authenticity of the allegations. Delay in claiming refugee protection [47] The delay in claiming refugee protection led the RPD to have serious doubts about the authenticity of her claims that her life is in danger in Venezuela. [48] As the Federal Court points out in Huerta: The delay is making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. [49] The delay in claiming refugee protection was one of the factors retained by the RPD when it found that the appellant lacked credibility. An assessment of the evidence establishes that it was not in itself determinative. [50] In Cruz v. Canada (Minister of Citizenship and Immigration), the Court states, "Delay is an important factor in the assessment of a refugee claim because it addresses the existence of a subjective fear of persecution [which] is an essential element of a convention refugee claim." [51] Thus, while the delay in claiming refugee protection is not in itself determinative, it is, as the Court points out, an important factor in the assessment of subjective fear (emphasis by the RAD). Inconsistencies in the evidence [52] The RPD's reasons for doubting the appellant's credibility are clear and are supported by the evidence on record. [53] The RPD criticizes the appellant for failing to spontaneously state, when questioned about the April 15, 2013, incident, that she was injured and stripped of her belongings by the guard and that he pointed a firearm at her. [54] In Pineda v. Canada (Minister of Citizenship and Immigration), 2007 FC 889, paragraphs 14 and 15, and in Shatirishwili v. Canada (Citizenship and Immigration), 2014 FC 407, paragraph 29, the Federal Court states, "The RPD is entitled to compare her PIF to her testimony and to make credibility findings based on inconsistencies and omissions." [55] After considering all of the evidence, I find that the RPD was justified in drawing a negative credibility inference, taking into account the inconsistencies in the evidence. Failure to take all the evidence into account [56] Based on the decisions rendered in Cepeda-Gutierrez and Kok Chung HNG, the appellant raises as a final ground of appeal that the RPD erred by ignoring the extensive evidence that she submitted in support of her allegations. According to her, "[i]t is well settled that the Board cannot question the validity of an apparently official document unless it is able to rely on other evidence tending to detract from the authenticity of the document."19 [57] The RPD found exhibits P-1 to P-10 to be admissible. There is a presumption that the Board is presumed to have taken all the evidence before it into account.20 It has no obligation to mention every document submitted into evidence, and the Board's failure to mention a specific document does not mean that it did not take the document into account.21 [58] In this case, the RPD found that the appellant was not credible by reason of inconsistencies in the evidence, more specifically because she failed to mention facts indicated in the BOC Form, which led the RPD to find that it was more likely than not that it was a story invented for the purpose of a refugee protection claim. Because of her lack of credibility, the RPD did not grant any probative value to the exhibits submitted, including exhibits P-3, P-5 and P-6, which concern facts about the appellant. It appears that this RPD finding must be assessed taking into account the other findings regarding the appellant's credibility. [59] A review of the evidence leads me to conclude that the RPD made the right decision about these exhibits. [60] With respect to Exhibit P-3, the appellant's medical certificate, the evidence shows that the appellant was questioned about it and that she was confronted about the inconsistencies between her testimony and the information indicated on it. However, the RPD stated that it was not satisfied with the explanations provided by the appellant. I am of the opinion that this finding is well founded, all the more so since Exhibit P-3 is undated. [61] With respect to her father's medical certificate, it is of no use because it is impossible to determine the type of diagnosis made by the doctor and the reasons for his hospitalization. [62] The Federal Court of Appeal states in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL), that: [A] finding that the claimant's testimony is not credible may extend to all evidence emanating from his testimony.... In fact, under the current Act, "A tribunal's perception that a claimant is not credible on an important element of their claim can amount to a finding that there is no credible evidence to support the claim" (Chavez v. Canada (Minister of Citizenship and Immigration), 2005 FC 962, [2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J. No. 1213 (QL), at paragraph 10.) [63] Based on the decision rendered by the Court of Appeal, I am of the opinion that the RPD was justified in finding that the appellant was not credible in this case. CONCLUSION [64] For these reasons, after reviewing all the evidence submitted and the appellant's arguments, I am of the opinion that the RPD made the correct decision in this case. Its findings are not arbitrary or capricious and they take into account the applicable jurisprudential tests. [65] Consequently, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" under section 97 of the IRPA. [66] The appeal is dismissed. Maria De Andrade Me Maria De Andrade May 22, 2015 date IRB translation Original language: French 1 United Nations 1951 Convention Relating to the Status of Refugees, July 28, 1951, Geneva, September 1979. 2 Appellant's memorandum, page 186. 3 Idem, pages 186 and 187. 4 Idem, page 188. 5 Idem, page 189. 6 Subsection 110(1) of the IRPA: (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 7 Subsection 111(1) of the IRPA. 8 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 9 Idem. 10 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 CF 702. 11 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 13 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 14 Idem. 15 Supra, footnote 9. 16 Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627. 17 Hearing transcript, pages 29 to 31. 18 Idem, page 24. 19 Ramalingam v. Canada (Minister of Citizenship and Immigration), 1998 F.C.J. No. 10; Osipenkov v. Canada (Minister of Citizenship and Immigration), 2003 F.C.J. No. 59; Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 F.C.J. No. 715. 20 Woolaston v. Canada (Minister of Manpower and Immigration), [1973] SCR 102. 21 Hassan v. Canada (Minister of Employment and Immigration), (1992) 147 N.R. 317. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-04463 2 RAD.25.02 (February 7, 2014) Disponible en français