MB6-01009

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 : MB6-01009 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Québec Appel instruit à Date of decision December 13, 2016 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Mark J. Gruszczynski 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 I. INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX (the Appellant), a citizen of Haiti, appeals a decision of the Refugee Protection Division (RPD) rendered on January 21, 2016, denying her claim for refugee protection. [2] The Appellant does not request to submit new evidence in support of her appeal and does not request an oral hearing before the Refugee Appeal Division (RAD).1 [3] The Appellant requests that the RAD set aside the determination of the RPD and find the Appellant to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA). Alternatively, the Appellant requests that the RPD decision be set aside and that the matter be returned to the RPD for redetermination by a differently constituted Panel. II. DETERMINATION [4] Pursuant to s. 111(1)(c) of the IRPA, the RAD refers this matter to the RPD for redetermination by a differently constituted panel. III. BACKGROUND a. Basis of claim [5] According to her Basis of Claim (BOC) form, the Appellant is a 48-year-old Haitian woman who hails from the region of Les Cayes. [6] For the past 15 years, the Appellant's husband, XXXX XXXX, has been a pastor with the Baptist church XXXX XXXX XXXX located in XXXX XXXX. [7] The Appellant's husband is subject to ongoing threats by a group of people who wish to oust him from his position as pastor and replace him with their own pastor. [8] On XXXX XXXX, 2015, the Appellant was accosted by this group while walking on the street in XXXX XXXX. During the altercation, the Appellant was pushed roughly and her bag was stolen. The group threatened to take the Appellant's life if her husband does not resign from his position as pastor. [9] The Appellant's husband steadfastly refuses to resign from his position as pastor leading the Appellant to conclude that she will once again be targeted by her persecutors who want to replace her husband with their own pastor. [10] On XXXX XXXX, 2015, the Appellant left Haiti and arrived in Canada. [11] Following her arrival, the Appellant contacted her husband who states that he is still the subject of ongoing threats given his refusal to resign from his position as pastor. [12] The Appellant made a refugee claim on October 26, 2015.2 b. The decision of the RPD [13] The RPD rejected the Appellant's claim, concluding that she was neither a Convention refugee nor a person in need of protection. The RPD concluded that the Appellant's evidence lacked credibility based on findings that her testimony was vague and incoherent. Moreover, the RPD found that the Appellant's failure to produce an original marriage certificate and her delay in claiming refugee protection also undermined the credibility of the evidence. c. Grounds of appeal [14] The Appellant submits that the RPD erred in the assessment of the Appellant's refugee claim for the following reasons: 1) The RPD erred in its assessment of the Appellant's credibility; 2) The RPD breached rules of procedural fairness in finding that the Appellant's failure to produce an original marriage certificate undermined the credibility of the evidence; 3) The RPD erred in the assessment of the Appellant's delay in claiming refugee protection in Canada. IV. SCOPE OF THE RAD APPEAL [15] The IRPA sets out grounds for appeal and possible remedies. However, it does not specify the standard by which the RAD is to review the decision of the RPD. [16] In the present case, the Appellant submits that the RAD has authority to review decisions based on a standard of reasonableness.3 [17] In the recent case of Huruglica,4 the Federal Court of Appeal held that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in mixed fact and law, in cases which raise no issue with respect to the credibility of oral evidence. In such cases, the RAD is to apply the correctness standard of review.5 [18] Gauthier, J. states as follows: "[A]fter carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination."6 [19] In Huruglica, the Federal Court of Appeal also provided guidance in relation to the standard of review that must be exercised by the RAD with respect to findings based on the credibility of oral testimony by the RPD. The court concluded that the RAD must take a case-by-case approach to the level of deference it owes to the relative weight of oral evidence tendered at the RPD hearing.7 Gauthier, J. explains the principle as follows: "[70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case."8 [20] Following the principles outlined in Huruglica, my approach to the present appeal is to analyze the record and find any errors that may have been committed by the RPD based on the issues identified in the Memorandum of Appeal. Then, I will render a decision in light of the evidence which forms part of the record.9 When required, I will decide whether it is appropriate to show a measure of deference to the RPD concerning findings of credibility based on oral evidence. V. ANALYSIS [21] The Appellant alleges that she has a well-founded fear of persecution in Haiti where she is targeted as a result of her husband's refusal to resign from his position as pastor. The RPD concluded that the Appellant's testimony is not credible and dismissed the claim. [22] On Appeal, it is submitted that the RPD engaged in an erroneous assessment of the evidence which resulted in flawed credibility findings and a breach of procedural fairness. [23] After conducting my own analysis of the record, I am satisfied that one of the impugned findings by the RPD is supported by the evidence. However, I also find that the RPD erred in relation to several findings linked to the assessment of credibility and breached principles of procedural fairness which is determinative of the appeal. My reasons follow. Did the RPD err in finding aspects of the Appellant's testimony vague thus lacking credibility? [24] The RPD found that the Appellant's testimony is vague thus lacking credibility because she cannot name the pastors or indicate the precise number of people who have been involved in coercing her husband to resign from his position at the church. In reaching this conclusion, the RPD considered that the Appellant is a long standing member of the church where she also teaches Sunday school. She is an educated person who has been married to the church pastor for 15 years. As such, the RPD found that it is reasonable to expect that she would know the names of the people who are targeting her husband.10 [25] On Appeal, it is submitted that the RPD erred because the Appellant's evidence is not vague. To the contrary, her evidence is clear: her husband is being targeted and she is being persecuted by a nameless group of pastors from their church. Her uncontradicted evidence is presumed to be truthful. The RPD's emphasis on the Appellant's level of schooling and the length of her marriage to the pastor are irrelevant factors when assessing the vagueness of her evidence. [26] With respect, I consider that this submission has no merit. I base this statement on the following: - In every refugee case, it is incumbent on the RPD to evaluate the credibility of an applicant's evidence objectively, having regard to the totality of the circumstances. - This means that the RPD must approach every case by taking into account the applicant's background presentation. This may include such factors as the applicant's age, gender, educational background, cultural or ethnic presentation, medical status, and personal/social situation (including marital status). In fact, most of this information is found in the Basis of Claim. - Being mindful of such factors is especially pertinent when the RPD is called upon to assess evidence that appears vague because vagueness may reflect a lack of credibility or could be attributed to other factors. - In the present case, the Appellant's evidence is that she does not know the precise names of the pastors involved in the scheme to oust her husband from his longstanding position as pastor of the church but she recognizes their faces. - Noting that the Appellant is an educated person, has been married to her pastor-husband since 2002 and that she has taught Sunday school at the same church as the unnamed pastors for several years, the RPD concluded that it is reasonable to expect that the Appellant would know the names of the pastors targeting her husband. - When asked directly at the hearing to explain why she is unable to name the pastors involved in the scheme to oust her husband, the Appellant was unable to provide any explanation.11 - It is entirely appropriate to consider the Appellant's background situation when assessing the credibility of her statement that she cannot name the pastors. To be clear, the Appellant's marital status is relevant to the present case considering that she is married to the same pastor who is targeted by other pastors from the same church. The Appellant's work history is also worthy of consideration because she taught Sunday school for several years at the same church as her husband and the unnamed pastors who are targeting her husband. Finally, the Appellant's educational background is also a relevant consideration since it establishes that she had the intellectual capacity to successfully complete high school. [27] In short, I am satisfied that the RPD did not err by taking into consideration the Appellant's personal circumstances including her marital status, her work history and her educational background, when assessing the credibility of her statement that she does not know the names of the pastors who are involved in targeting her husband and persecuting her. Did the RPD err in finding that aspects of the Appellant's evidence is incoherent thus undermining her credibility? [28] The RPD also found aspects of the Appellant's testimony to be incoherent further undermining the credibility of her evidence. More specifically, the RPD concluded that it is nonsensical that the Appellant's husband is being targeted to resign from his position as pastor by a group of individuals who are already pastors at the same church.12 [29] On appeal, it is argued that this credibility finding is flawed because the RPD's concern was never put to the Appellant and she was not given the opportunity to explain the apparent incoherence. It is argued that the Appellant was wrongfully denied the opportunity to respond to the RPD's concerns which is a breach of procedural fairness. [30] After conducting my own analysis of the record, I find that the RPD erred by reaching the conclusion that core facts underpinning the claim are incoherent, without first giving the Appellant a chance to respond to this concern. [31] My review of the audio recording of the hearing reveals that the RPD commented that a group of pastors from the same church appear to want to replace the Appellant's husband even though they are already pastors.13 At the same time, the interpreter can also be heard providing interpretation concerning a different issue. The comment made by the RPD is lost in the confusion given that two people are speaking at the same time. The Appellant is noted to have responded to the confusion by saying "yes, yes."14 The RPD then moved on to the next question addressing a different issue. [32] In the final analysis, the Appellant was not questioned or given any opportunity to respond to concerns raised in the RPD decision that her account of a group of pastors wanting to oust her pastor-husband and target her personally is illogical and nonsensical thus undermining the believability of her evidence. In my assessment of the record, this finding is unsustainable because it is an error for the RPD to conclude that a central element of the Appellant's testimony is incoherent and nonsensical without giving her the chance to explain the perceived incoherence. Did the RPD err in assessing the Appellant's delay in making her refugee claim? [33] The Appellant arrived in Canada on XXXX XXXX, 2015, with a valid visa. She signed her refugee claim on October 26, 2015, and it was received by the Immigration and Refugee Board on November 3, 2015. [34] The RPD held that the Appellant's failure to claim refugee protection upon arrival at the airport is not compatible with the behaviour of an educated person who is well travelled, has visited Canada in the past, and speaks and understands French. Moreover, her delay in claiming protection cannot be reconciled with the fact that she stated that her sole purpose in leaving Haiti was to claim refugee protection after being attacked on XXXX XXXX, 2015.15 As such, the RPD concluded that the Appellant's delay in claiming refugee protection further undermined her credibility. [35] On appeal, it is submitted that the RPD's credibility assessment is flawed because waiting a few weeks to claim refugee protection is not unreasonable in a context where the Appellant already had legal status as a visitor in Canada. [36] According to case law, a delay in claiming refugee protection is not a determinative issue per se.16 As noted in Malaba:17 "[T]he long delay in making a claim must not be a pretext and is not in itself sufficient to reject a refugee claim without reviewing the other facts in the record." [Emphasis added] [37] In other words, a delay in making a refugee claim must necessarily be explored by the RPD and the Appellant must be given the opportunity to explain the delay. Failure to provide a reasonable explanation for the delay may be a factor considered in the assessment of the Appellant's credibility. [38] In the present case, the Appellant testified that she decided to leave Haiti definitively and claim protection in Canada after she was physically attacked on XXXX XXXX, 2015. Following the attack, she took time to organize her personal affairs and then departed from Haiti. She concedes that she did not immediately claim protection when her flight landed at the airport. On the other hand, she testified that she came to Canada with a valid tourist visa. Moreover, following her arrival, she wanted to take the time to speak with her husband in Haiti in order to establish whether he is still being subjected to ongoing threats before making her ultimate decision to claim protection in Canada. [39] My analysis of the record reveals that the Appellant's explanation for the delay in making her refugee claim is rational and persuasive. Moreover, it is abundantly clear that a delay of 13 days to sign her refugee claim is not, in itself, sufficient to reject her claim and is not determinative of her credibility. Did the RPD breach rules of procedural fairness when assessing the credibility of the Appellant's marriage certificate? [40] In support of her refugee claim, the Appellant produced a copy of her marriage certificate18 to prove her marriage to the pastor XXXX XXXX. At the hearing, the Appellant stated that the original document was in the possession of her husband in Haiti. She did not request the original document from her husband as she did not know that it was required for the hearing. [41] Noting that the Appellant's connection to the pastor is a central fact underpinning her claim, the RPD was not satisfied with the Appellant's explanation for not producing the original document. The RPD reiterated that the Appellant is an educated person who is represented by experienced counsel who should have known that the original document was required. Moreover, pursuant to Article 11 of the RPD rules, the Appellant is required to transmit all documents aimed at establishing her claim. As such, the RPD accorded "low probative value" to the copy of the marriage certificate and concluded that her failure to provide the original document shattered (effritée) her credibility.19 [42] On appeal, it is argued that the RPD implicitly accepted the copy of the marriage certificate at the hearing. It was a breach of procedural fairness to then fault the Appellant for not producing the original document. [43] I begin my analysis by noting that rules of procedural fairness and natural justice are the foundation of all refugee claims. At a minimum, procedural fairness means allowing affected persons the opportunity to present their case and providing them with the opportunity to be heard. [44] After a careful review of the record, I note the following: - At the outset of the hearing, the RPD asked the Appellant if she had her original marriage certificate. The Appellant explained that the original was back in Haiti with her husband and that she could obtain it, if required. - Later in the hearing, the Appellant was further questioned by the RPD about her marriage certificate.20 The Appellant reiterated that she travelled to Canada with a copy of the document and that the original remains with her husband in Haiti. - The RPD asked the Appellant if she could provide the original document after the hearing, if requested by the RPD. The Appellant clearly responded that she could do so, if required.21 - No further discussion took place with respect to this issue for the balance of the hearing. - At the conclusion of the hearing, the RPD did not give any indication that the original marriage certificate was required. The case was adjourned until the final decision was rendered 10 days later at which point the Appellant learned that the credibility of her evidence was undermined given her failure to produce the original marriage certificate. [45] It is plain to see that this manner of proceeding was unfair and lacked transparency. The marriage certificate was a central element in the Appellant's refugee claim. At the conclusion of the hearing, the Appellant was not asked to produce the original document and she left the hearing with the understanding that a copy of the document was acceptable to the RPD. [46] I also note that the RPD accorded "low" probative weight to the copy of the Appellant's marriage certificate. This suggests that "some" weight was given to the document albeit not much weight, since the fact that she only produced a copy of the marriage certificate was deemed to shatter her credibility. It remains entirely unclear how the RPD accorded "some weight" to the copy of the marriage certificate while at the same time concluding that the Appellant's failure to produce the original crushed her credibility. This finding is unsustainable. [47] In sum, my analysis of the record leads to the conclusion that the RPD erred by breaching basic rules of procedural fairness when assessing the credibility of the marriage certificate. The importance of this error is not trivial considering that the document itself was a central piece of evidence underpinning the Appellant's refugee claim. VI. REMEDY [48] I have independently analyzed the record, listened to the audio recording, considered the Appellant's arguments and carefully reviewed the RPD decision. The negative credibility finding by the RPD is the central issue in the present appeal. While it was open for the RPD to make credibility findings based on vague and incoherent testimony, a delay in making the refugee claim and problems with documentary evidence, my review of the record has led me to identify several errors in the RPD's findings which are unsustainable and determinative of the appeal. [49] This being said, I am unable to confirm or set aside the RPD decision without hearing and weighing evidence that was presented to the RPD with respect to the issue of the Appellant's credibility.22 [50] Therefore, in conformity with ss. 111(1)(c) of the IRPA, I refer the matter back to the RPD for redetermination by a differently constituted panel. [51] The appeal is allowed. Patricia O'Connor Me Patricia O'Connor December 13, 2016 Date /cos 1 Memorandum of Appeal, p. 11. 2 The claim was received at the Immigration and Refugee Board on November 3, 2015. 3 Memorandum of Appeal, p. 12. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII) [Huruglica]. 5 Ibid., para 78. 6 Ibid., para 103. 7 Ibid., paras 58-59. 8 Ibid., paras 70-74. 9 Ibid., paras 96-98. 10 RPD decision, para 16. 11 Audio recording of the RPD hearing, 51:29. 12 RPD decision, para 18. 13 Audio recording of RPD hearing, 53:26. 14 Ibid., 54:40. 15 RPD decision, para 29. 16 Ntatloulou v. Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2016 FC 173 at para 14; Hue v. Canada (Minister of Citizenship and Immigration), [1988] FCJ No 283. 17 Malaba v. Canada (Minister of Citizenship and Immigration) 213 FC 84, para 11. 18 Exhibit P-2. 19 RPD decision, paras 20-21. 20 Audio recording of the RPD hearing, 18:40-20:25. 21 Ibid., 20:10-20:25. 22 Huruglica, supra, note 4, para 73. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-01009 14