MB5-00979

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 : MB5-00979 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 October 14, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Claudette Menghile 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 XXXX, a citizen of the Dominican Republic, is appealing against a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The appellant did not submit new evidence in support of her appeal, nor is she asking 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 refers the matter to the RPD for re-determination. [4] The appeal is allowed. FACTUAL BACKGROUND [5] The appellant fears that she will be killed by XXXX XXXX, a man whom she does not know personally but has seen in public a number of times. [6] Beginning in XXXX 2012, the appellant was harassed on three occasions (XXXX XXXX, XXXX days later, and then on XXXX XXXX, 2013) by XXXX XXXX (AH, agent of harm), whom she did not know. She saw him when she was on her way to the hair salon and he was in a park on the other side of the street. He was supposedly smitten with her and every time he saw her, he reportedly told her that she would be his and that he had found her. He allegedly threatened to kill her. [7] The appellant purportedly filed a complaint with the police on XXXX XXXX, 2013. [8] She saw him one last time near her home in XXXX 2013, and that is when she allegedly decided to leave the country. [9] The appellant allegedly obtained an American visa on XXXX XXXX, 2013, in order to take a course in Miami and supposedly left her country on XXXX XXXX, 2013. The appellant reportedly spent some time in Miami and then in New York, where she obtained a Canadian visa on XXXX XXXX, 2013. [10] She entered Canada on July 13, 2013, and claimed refugee protection in September 2013. [11] The AH has allegedly harassed and threatened the appellant's family since she left. RPD DECISION [12] The RPD rendered a negative decision that included the following elements: [13] The RPD found that the claimant was credible and that her testimony was direct and spontaneous except for at certain points when [translation] "it was sometimes vague and she was unable to provide details...about the identity and personal profile of her alleged agent of harm" and the RPD was of the opinion that, at times, the appellant's behaviour was inconsistent with that of an individual who fears for her safety. That undermined her credibility. (See RPD record, page 6.) [14] The RPD determined that the appellant did not establish that the profile of the agent of harm was such that he [translation] "would begin verbally harassing a woman he did not know and then move on to a more serious attack, either verbal or physical" (see RPD decision, appellant's record, page 9). Therefore, [translation] "[t]he claimant did not discharge her burden of demonstrating that there is a prospective risk of persecution if she were to return to her country of nationality, the Dominican Republic" (see RPD record, page 11). [15] The RPD based its decision on the fact that the appellant [translation] "did not provide details about the profile of her aggressor...was unable to describe her aggressor, which leads the panel to believe that he would be able to follow through on his threats, which are more than just cruel, unsettling remarks" (see RPD record, page 9). [16] Because the appellant's testimony was vague and lacked specifics about the aggressor's profile, the RPD concluded [translation] "that the claimant speculated about the possibility that Mr. XXXX would be interested in continuing to pursue her. The panel draws a negative inference regarding the credibility of the allegations that he would purportedly be interested in her now, which calls into question the prospective risk faced by this individual" (see RPD record, page 7). [17] In addition, the RPD concludes that the appellant is not credible because it took her nine days to file a complaint about the threats that she received from XXXX XXXX and because she did not leave until XXXX XXXX, 2013, even though she had been issued an American visa on XXXX XXXX, 2013. GROUNDS OF APPEAL [18] The appellant submits that the RPD's decision is an incorrect decision, that it is poorly reasoned and that it contains many errors in fact and in law. [19] They are summarized below. [20] The RPD's analysis of the evidence was erroneous. [21] The appellant apparently submitted that there were four incidents of harassment and threats by the AH, not three. According to the appellant, the fourth incident took place in XXXX 2013, when XXXX XXXX threatened her, but the RPD did not take that incident into consideration. (With respect, the RAD listened to the recording and the appellant did state that she saw the AH in XXXX 2013. She stated that she saw him but that he did not see her.) [22] The RPD erred in determining that the appellant's testimony was vague regarding the AH. According to the appellant, she provided a very good description of her aggressor given the context in which she knew him, and the RPD failed to take that into consideration. [23] In its determination of the prospective fear, the RPD made a significant error by failing to consider the evidence in its entirety: the appellant's testimony to the effect that since she left, members of her family have been threatened by the AH about her and the corroborating documents submitted as evidence (see RPD record, pages 123 to 135). [24] The appellant is of the opinion that the RPD's conclusion that she did not demonstrate that the AH's profile was that of an individual who would take action makes no sense, given that he threatened her more than once. [25] According to the appellant, even though it stated that it had, the RPD did not take into consideration Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. In fact, the RPD rejected the appellant's explanation about the fact that she waited nine days to file a complaint with the police because she was afraid. The RPD should have considered that explanation to be reasonable given the issue of women who fear gender-related violence. [26] The same can be said of her delay in leaving. The RPD should have taken into consideration all of the evidence and that, despite the fact that the appellant had been issued an American visa, she had to wait to buy an airline ticket, which she was able to do because she won the Dominican lottery. During that time, the appellant took various measures to stay in hiding. [27] The RPD erred in fact and in law. ROLE AND FUNCTIONS OF THE RAD [28] The RAD is an appellate tribunal for RPD decisions whose role has not yet been clarified. The IRPA does not expressly set out the standard of review and intervention to be applied to appeals against RPD decisions. [29] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal", see Alvarez,1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal". The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [30] In Alvarez,2 the Honourable Justice Shore finds that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner". These appeals are not de novo, and the RAD cannot hold a hearing unless new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA; this limits the scope of appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [31] In Eng,3 Justice Shore expresses the opinion that the RAD owes deference to the RPD, the tribunal of first instance, with regard to its findings of fact as the RPD is better situated, having seen and heard the claimant. However, the RAD must conduct its own assessment of all 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" (Eng).4 [32] In Huruglica,5 Justice Phelan states: "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". [33] Huruglica therefore advocates an approach where deference may be given to the RPD with respect to its credibility assessment, while conducting an independent analysis of credibility that is not limited to "palpable and overriding error." With regard to the assessment of the documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."6 [34] In Spasoja,7 rendered after Huruglica, the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the view that the standard of review applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings, and that questions of law are reviewable on the correctness standard. This conclusion is consistent with Alvarez and Eng. [35] In Alyafi,8 Justice Martineau is of the opinion that the two approaches, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as a "composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal") (Alyafi, para. 16), can both be applied as long as the Federal Court of Appeal or the Supreme Court of Canada has not ruled definitively on the scope of the appeal. [36] It seems to me that the RAD owes a measure of deference to the RPD's credibility findings, in accordance with Huruglica, given that the RPD has had the opportunity to see, hear and question the appellant. [37] In its analysis, the RAD will consider all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD with respect to credibility issues. [38] The RAD will intervene only if it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. With respect to errors of law, the standard of review that the RAD will apply is correctness (Spasoja).9 ANALYSIS [39] In its analysis, the RAD took into consideration the entire record, including the recording of the RPD hearing. In its opinion, the RPD did not render the correct decision because it erred in fact and in law. [40] The RPD erred in its credibility assessment. [41] The RPD's reasons are confusing on this point. It begins its credibility assessment by stating that testimony is presumed to be true unless there is valid reason to doubt its truthfulness. [42] The RPD continues, writing that the appellant's testimony was [translation] "generally, spontaneous and direct" but that it was vague at times and the appellant did not provide all the details about the AH. [43] On that same subject, the RPD later concludes that because the appellant was unable to provide sufficient details about the AH and establish a more complete profile, she is not credible because she was unable to demonstrate that he would still be interested in her [translation] "at present" (see RPD record, page 7) or in the future. [44] In other words, since the appellant was unable to provide sufficient details about the individual she fears, she cannot demonstrate that he would pursue her in the future. [45] That is akin to saying that victims of crime (the RPD did not question the facts on that point) cannot take advantage of police assistance and protection if they are unable to provide specific details [translation] "about the identity and personal profile" of the aggressor (see RPD record, page 6). [46] The RAD is of the opinion that the RPD's analysis on this point is erroneous. The RPD was misguided in stating that because the appellant was unable to provide significant details about the AH it would be speculative and unfounded to believe that he would be interested in pursuing her in the future. [47] The RPD should not have focused on the appellant's knowledge of the AH to determine the prospective fear. Instead, it should have analyzed the facts that were put forward in support of the fear in order to determine whether there is a serious possibility that the AH would pursue her if she were to return to her home country. [48] It would have been one thing if that conclusion regarding lack of detail about the AH had led the RPD to find that the appellant lacked credibility concerning the existence of the individual. However, that is not the case. At no point in its analysis did the RPD question the appellant's credibility with respect to the existence of the AH or the encounters that took place. It concludes that the contact was neither pleasant nor wanted. The RPD therefore believes that the AH exists and that these unwanted encounters with him took place. [49] Under the circumstances, the RAD is of the opinion that the reasoning behind the RPD's conclusion that the appellant did not demonstrate that she would face a prospective risk is erroneous and unfounded. To come to that conclusion, the RPD would have had to assess the alleged facts (the encounters) and use that as a basis, not just the lack of detail about the AH's profile, to determine whether there is a prospective risk. The cause and effect relationship established by the RPD between the difficulty in forming a profile and the prospective risk is erroneous, particularly given that the RPD believes that the AH exists and the encounters are credible. [50] The RPD did not render the correct decision, as it erred in fact and in law. CONCLUSION [51] For these reasons, which the RAD considers to be central to the analysis of the appellant's prospective fear, the RAD refers the matter to a differently constituted RPD panel for re-determination because the RAD is unable to confirm or set aside the RPD's determination without hearing evidence that was presented to the RPD. REMEDY [52] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter of XXXX XXXX XXXX XXXX XXXX to the RPD for re-determination. [53] The appeal is allowed. Roxane Cyr Roxane Cyr October 14, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 6 Idem, para 38. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913 8 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para 46. 9 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-00979 7 RAD.25.02 (2014.09.11) Disponible en français