MB4-03633

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 : MB4-03633 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, Quebec Appel instruit à Date of decision April 16, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Sabine Venturelli 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 XXXX, a citizen of Côte d'Ivoire, is appealing against a decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim by determining that she is not a "Convention refugee" or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal, set aside the determination of the RPD and substitute its own determination, or refer the matter to the RPD for re-determination by a differently constituted panel.1 [3] The appellant is not submitting any additional evidence pursuant to subsection 110(4) of the IRPA. She is not requesting a hearing under subsection 110(6) of the IRPA. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] In the Basis of Claim Form, the appellant alleges that she is a member of the Bété ethnic group, as is ousted president Laurent Gbagbo. She is also a supporter of Laurent Gbagbo's party, the Front populaire ivoirien (FPI) [Ivorian popular front]. During the 2010 elections, the party placed several orders for promotional items with the XXXX XXXX that the appellant XXXX. She states that she received death threats because she supports the FPI. She also alleges that in 2011, her bank accounts and the bank accounts of the XXXX XXXX XXXX XXXX were closed for the same reason. [8] Fearing for her safety, the appellant arrived in Canada on February 5, 2012, with a visitor's visa. She claimed refugee protection in November 2013. Impugned decision [9] On August 18, 2014, the RPD rejected the appellant's refugee protection claim as it was of the opinion that she did not establish that she would face a serious possibility of persecution on a Convention ground in the event of a return or that she would likely be subjected to one of the risks set out in section 97 of the IRPA. [10] The RPD did not question the appellant's credibility. It states in paragraph 10 of the decision that [translation] "the only issue is the existence of a prospective risk should the claimant return to Côte d'Ivoire". [11] Relying on the documentary evidence in the national documentation package dated March 13, 2014, and on some responses to information requests,2 the RPD described the development of the political situation after the post-election crisis in 2010 and concluded that the situation has improved since Laurent Gbagbo's arrest in April 2011. [12] When assessing the prospective risk, the RPD considered the fact that the appellant did not encounter any problems between Laurent Gbagbo's arrest in April 2011 and her departure for Canada in February 2012. She carried out her professional activities, she continued to work at the XXXX XXXX for more than eight months, and she continued to live at the same address until she left for Canada. According to the RPD, those were obvious signs that [translation] "political supporters have no interest in continuing to cause her harm".3 [13] The RPD was [translation] "of the opinion that the lack of legal and/or criminal action against the claimant-three years after the application for 'attachment'-shows that the state has no interest in prosecuting her".4 [14] The appellant also failed to establish a serious possibility of persecution by reason of her Bété ethnicity. [15] Finally, given that the claimant's problems took place during the election period and that the situation in Côte d'Ivoire is not the same as when the refugee protection claimant was having problems, the RPD, taking counsel's submissions into account, examined the concept of [translation] "compelling reasons" and concluded that the appellant had not discharged her burden of establishing that her claim should be allowed on that ground. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [16] In short, the appellant submits that the RAD must answer the following questions: - Did the Immigration and Refugee Board of Canada (IRB) base its decision on an erroneous finding of fact and/or of law that it made in a perverse or capricious manner, without regard for the material before it? - Did the IRB err in law in making a decision, whether or not the error is palpable? - Did the Board make an error that is reviewable on appeal in its assessment of the relevant and critical facts, for instance, the prospective risk to the claimant's life? THE RAD'S ROLE AND FUNCTIONS [17] In her memorandum, citing Dunsmuir, the appellant submits that because the Board [translation] "failed to consider all the evidence, its decision lacks justification and intelligibility". Given that unreasonable errors were made, she is requesting the RAD's intervention [translation] "with respect to the lack of reasonableness, which requires consideration of the existence of justification and intelligibility in the decision-making process-aspects that require the decision to be acceptable and defensible in respect of the facts and the law."5 [18] The RAD notes that the Federal Court, in being called on to determine the role of the RAD when RPD decisions are appealed to it, has stated numerous times that an appeal before the RAD is not in the nature of a judicial review.6 Consequently, in this matter, I will not apply the criteria proposed by the appellant in considering the appeal. [19] Since an appeal before the RAD is a statutory remedy, its role and its powers are established in its home statute, the IRPA. [20] The statutory requirements precisely indicate the allowable grounds for appeal,7 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the determination, to set it aside and substitute the determination that, in its opinion, should have been made, or to refer the matter to the RPD, giving the directions that it considers appropriate.8 [21] The RAD generally proceeds without a hearing, on the basis of the appeal record.9 A hearing will be held only in the exceptional circumstances set out in subsection 110(6) of the IRPA. [22] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes the RAD's "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of the appeal,"10 and states, "The idea that the RAD may substitute an original decision by a determination that should have been made without first assessing the evidence is completely inconsistent with the purpose of the IRPA."11 Despite this view shared by the justices, the Federal Court is faced with two important lines of case law. [23] According to the first line, begun 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.... [28] ...[As] a specialized (if not overspecialized) tribunal...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).12 [24] Sharing a similar point of view, Justice Roy, in reviewing Parliament's intention when the RAD was established, notes in Spasoja13 that appeals before the RAD are intended to be generous. However, he adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety," stating that the error must be "palpable and overriding" to "succeed on appeal." Justice Roy states, "It will be on the basis of the record of proceedings before the RPD that the appeal will be 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] Justice Leblanc also shares the point of view that the error must be "palpable and overriding".14 [26] The other line, put forth by Justice Phelan in Huruglica,15 is that "the RAD is required to conduct a hybrid appeal." [27] 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."16 [28] Justice Phelan, when writing about the deference that the RAD owes to RPD findings, 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." [29] In light of the Court's statements to date, and having received no additional evidence within the meaning of subsection 110(4) of the IRPA, I will review all the evidence to determine whether the RPD decision is well founded in light of the evidence that was before it. If its findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, I will intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [30] As for errors of law, Justice Shore states that "the RAD must be able to correct any error of law".17 ANALYSIS [31] The RPD concluded that the refugee protection claimant did not establish a serious possibility of persecution or that she would likely be subjected to one of the risks set out in section 97 of the IRPA in the event of a return. Bété ethnicity [32] A reading of the decision that was rendered leads me to believe that the RPD was of the opinion that merely being a member of the Bété ethnic group is not sufficient, in light of the documentary evidence, to conclude that there is a serious possibility of persecution. [33] The appellant submits that the RPD erred in assessing this aspect of her claim and relies on tabs 2.118 and 13.119 of the national documentation package dated March 14, 2014, to support her arguments. [34] A review of all the evidence shows that the RPD's findings are based on the information in the responses to information requests in the National Documentation Package on Côte d'Ivoire dated March 14, 2014, and on other responses to information requests prepared by the IRB's Documentation Centre.20 Without repeating all or part of the documentary evidence cited by the RPD, I note that the information in the package also indicates the following: ... There does not seem to be any particular discrimination against the Bete group. However, since some members of this group engaged in acts of violence during the post-electoral crisis..., some uncertainty did emerge regarding being held to account before justice.21 ... In Côte d'Ivoire...no systematic violence is directed at any ethnicity. However, some members of the ethnicity (Bete) that is close to the Ivorian Popular Front (Front Populaire Ivoirien, FPI), the political party of [the] former [p]resident..., may at times have been concerned, either for political reasons or because of their known or alleged participation in the post-electoral violence of 2010 and 2011.... The Côte d'Ivoire security forces are a mosaic of ethnicities. They include all components of the different regions and political sensitivities in Côte d'Ivoire. The treatment of citizens of all persuasions is not based on their origin....22 [35] As for tabs 2.123 and 13.1,24 raised by the appellant, they need to be read in context. Tab 2.1 refers to attacks linked to land disputes. With respect to the mistreatment of ethnic groups in the west, who are presumed to be pro-Gbagbo, Tab 13.1 states that, of those who were arrested, detained or in supervised residence, "the persons concerned are not specifically Betes-many ethnicities are involved." [36] Consequently, based on all the evidence and the appellant's arguments, I am of the opinion that the RPD's findings concerning the prospective risk by reason of ethnicity were made in context and based on the evidence. Appellant's prospective risk [37] On this subject, the RPD concluded, after reviewing the recent documentary evidence and considering the refugee protection claimant's particular situation, that she did not discharge her burden of establishing a serious possibility of persecution on a Convention ground, or that she would likely be subjected to one of the risks set out in section 97 of the IRPA. [38] The appellant submits that the RPD erred in assessing the risk of return. [39] A review of all the evidence shows that the RPD considered the fact that the alleged problems took place in a particular context-the situation that prevailed during the post-election period from December 2010 to April 2011, when Laurent Gbagbo was arrested. [40] The RPD then considered that the appellant carried out her professional activities until she left her country in February 2012 and that she lived at the same address [translation] "without being the least bit bothered." It also considered the fact that as of July 2014, there had been no follow-up on the "attachment" made against the claimant in June 2011 and that the XXXX XXXX continued operating until 2013; the evidence does not establish that the discontinuation of operations was connected to the refugee protection claimant's problems. [41] A review of all the evidence shows that the RPD considered the political situation when the claimant was in her country, as well as the prevailing situation at the time of the hearing. [42] In my opinion, after considering the appellant's arguments and examining all the evidence, it was not established that the RPD's findings are perverse or capricious or that the RPD erred in law when it assessed the prospective risk. In light of the evidence, it appears to me that the findings are justified, especially since, I must add, the appellant had held a Canadian visa since June 2011 and did not leave her country until February 2012. Moreover, her husband, who worked as the XXXX of the XXXX, is still in Côte d'Ivoire, and the appellant did not mention that he has had any particular problems because of her. These factors, combined with the other factors mentioned by the RPD, lead me to conclude that the RPD rendered the correct decision in this case. CONCLUSION [43] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection." [44] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 16, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 28. 2 Refugee Protection Division (RPD) record, pages 3 to 10, CIV104688.FE, December 13, 2013; Treatment by members of Rally of the Republicans (Rassemblement des républicains, RDR) of members of the Ivorian Popular Front (Front populaire ivoirien, FPI), including family members (2008-December 2013). CIV104929.FE, July 31, 2014; Treatment of members of the Bété ethnicity by the authorities; treatment of members of the Ivorian Popular Front (Front populaire ivoirien, FPI), including their family (December 2013-July 2014). National Documentation Package on Côte d'Ivoire, March 14, 2014; Tab 2.1: United States, Department of State, February 27, 2014, Côte d'Ivoire. Country Reports on Human Rights Practices for 2013. Tab 13.1: CIV104515.FE, July 16, 2013; Côte d'Ivoire: Treatment of members of the Bete ethnicity by the authorities; whether there have been arbitrary arrests of members of the Bete (2010-July 2013), page 3. 3 RPD record, page 7, RPD decision, paragraph 17. 4 Idem, paragraph 21 of the decision. 5 Appellant's memorandum, page 27. 6 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799; Meilina v. Canada (Minister of Citizenship and Immigration), 2014 FC 1233. 7 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "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." 8 Subsection 111(1) of the IRPA. 9 RPD record, parties' memorandum or any [translation] "evidence admitted under 110(3) and 110(4) of the IRPA." 10 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 11 Idem. 12 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 13 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 14 Aloulou v. Canada (Citizenship and Immigration), 2014 FC 1236. 15 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 16 Idem. 17 Supra, footnote 12. 18 National documentation package, March 14, 2014, Tab 2.1, Cote d'Ivoire. Country Reports on Human Rights Practices for 2013. United States. Department of State. February 27, 2014. 19 Idem, Tab 13.1: Treatment of members of the Bete ethnicity by the authorities; whether there have been arbitrary arrests of members of the Bete (2010-July 2013). Immigration and Refugee Board of Canada. July 16, 2013. 20 Supra, footnote 2. 21 Supra, footnote 19, comments of a professor of political geography at the Université Michel de Montaigne Bordeaux 3 in France, author of several works and articles on the Ivorian crisis. 22 Idem, comments of the President of the Mouvement ivoirien des droits humains (MIDH) [Ivorian human rights movement], an apolitcal and non-confessionnal organizaton. 23 Supra, footnote 18. 24 Supra, footnote 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB4-03633 11 RAD.25.02 (2014.09.11) Disponible en français