MB4-01553

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 : MB4-01553 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 / heard at Montréal, Quebec Appel instruit à Date of decision October 29, 2014 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Thierry Muhgoh 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 Gabon, is appealing against a decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim after determining that the appellant was not a "refugee" or 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) allow the appeal, set aside the RPD's determination and refer the matter to the RPD. [3] The appellant did not submit any new evidence in support of his appeal pursuant to subsection 110(4) of the IRPA. He is not requesting 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] 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" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] In his Basis of Claim Form (BOC Form), the appellant states that he is a citizen of Gabon. He left his country in XXXX 1989 to go live in France with his parents. He stated at the hearing that his father was XXXX XXXX at the XXXX XXXX in France. In his IMM-00081 form, the appellant states that he arrived in Canada on August 26, 2006, with a student visa valid until XXXX XXXX, 2009. [8] The appellant claimed refugee protection on July 31, 2013. In his BOC Form, he states that his older brother almost lost his life in Gabon due to [translation] "irrational things," referring to witchcraft. Although he was dependent on his older brother, he states that he has not heard from him in some time. Similarly, in the BOC Form signed in July 2013, he states that he has not heard from his father in two years. [9] The appellant states that he fears returning to Gabon due to [translation] "irrational" problems on his father's side. Further, having left his country in 1989, he is not very familiar with his country of origin and has no attachments or family. He states that he is attached to life in Quebec, where he [translation] "aspires" to work in the field of new technologies. He would appreciate having a chance. [10] The representative of the Minister of Citizenship and Immigration intervened before the RPD by filing documents and submissions regarding the appellant's credibility because he did not claim refugee protection upon his arrival in Canada. [11] The Minister's representative submits that the appellant's statements are inconsistent, especially with regard to his father's whereabouts, to past problems and to whether or not he has family in Gabon. In short, he submits that the appellant is not a bona fide refugee. Impugned decision [12] In its decision rendered on March 19, 2014, the RPD rejected the refugee protection claim on the ground that the appellant was not a credible witness because he failed to include in his BOC Form facts that are central to his claim for refugee protection and because of inconsistencies in his testimony at the hearing. In addition, the RPD added that the delay in claiming refugee protection undermined his credibility. [13] After stating that it was unsatisfied with the explanations provided by the appellant when confronted with the inconsistencies and the failure to include the facts from his testimony at the hearing in his BOC Form, the RPD found that the appellant did not discharge his burden of proof with regard to sections 96 and 97 of the IRPA. GROUNDS OF APPEAL Appellant's allegations [14] In his memorandum filed on appeal, the appellant alleges that the RPD erred in the assessment of his credibility. The appellant submits that the RPD's findings are unreasonable and that the member failed to consider the following reasons: the BOC Form was completed while he was in detention, he had very little time to complete his BOC Form, and he did not benefit from the services of counsel to do so. [15] According to the appellant, the RPD's finding that the delay in claiming refugee protection undermines his credibility is arbitrary and unreasonable, as the claim for refugee protection can be filed at any time and a claimant has the right to consider the other options before considering making a claim for refugee protection. RAD'S ROLE AND FUNCTIONS [16] The appellant did not make any submission in his memorandum on the standard of intervention to apply on appeal. [17] Since the RAD is a newly constituted appeal tribunal, an examination of its home statute and the criteria developed by the case law in the context of an appeal tribunal and administrative law is in order. [18] The statutory provisions precisely indicate the allowable grounds for appeal,2 as well as its "remedial powers." On that topic, 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 to refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate3 if it cannot substitute the determination with the one that, in its opinion, should have been made without holding a hearing. [19] The appeal before the RAD is not in the nature of a judicial review4 or a [translation] "new proceeding." In order to conduct its own assessment of the evidence and form its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.5 [20] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of RAD decisions. In fact, it is stated that the RAD may make the referral described in paragraph 1(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD.6 [21] To date, the Federal Court has ruled on a few occasions on the standard of intervention applicable to the RAD. There are two lines of jurisprudence at the Court. [22] In two decisions rendered on the same day,7 Justice Shore, who found the reasoning of the Court of Appeal in Parizeau v. Barreau du Québec8 persuasive and instructive with respect to the standard of intervention to be applied by an administrative appeal tribunal, states as follows: [27] ... The 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). [23] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. According to Justice Shore, "even though there are similarities, these standards are different." [24] Recently, in Spasoja,9 Justice Roy, in examining the indicia of Parliament's intent when the RAD was implemented, noted the RAD's generous appeal theme. He also adds that [translation] "that does not mean that it is an opportunity for a new trial or for redetermination of the matter as a whole," stating that an error of fact must be [translation] "palpable and overriding" for "a successful appeal." Justice Roy further states, [translation] "It 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)." [25] In Huruglica,10 the Federal Court had to determine "the appropriate type of review by the Refugee Appeal Division [RAD] of the decision of the Refugee Protection Division [RPD]." Justice Phelan, writing on behalf of the Court, states that the RAD 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."11 [26] 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." [27] The Federal Court recognized the RAD's "expertise" with respect to refugee issues. According to the Federal Court, broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals."12 Decisions rendered to date indicate 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."13 [28] In light of the foregoing and the Court's statements in Alyafi,14 it appears to me that the RAD, a tribunal specialized in refugee matters, must address the merits of the case to determine whether the decision is well founded in light of the evidence presented before the RPD. In reviewing the evidence, the RAD can give a certain measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position over the RAD. [29] However, when findings of fact or of mixed fact and law are erroneous in that a "palpable and overriding error" has been committed, or when the RPD's findings are not supported by the evidence or there is an error that vitiates the decision, the RAD must intervene using one of the means set out in subsections 111(1) and 111(2) of the IRPA. [30] It is generally accepted that no deference should be given to an error of law. In Alvarez and Eng, Justice Shore states that "the RAD must be able to correct any error of law." MERITS OF THE APPEAL [31] Issues of credibility constitute questions of fact. The expertise of the trier of fact has been recognized a number of times by appeal courts.15 The RPD has the advantage of seeing and hearing the refugee protection claimants and the witnesses. Accordingly, it is in a better position to make a finding regarding their credibility. The RAD, which generally proceeds on the basis of the record, has this advantage in very limited cases. It does not have this advantage in this case. [32] In this case, the RPD's findings regarding the credibility of the appellant arose as a result of his failing to include in his BOC Form facts that are central to his claim for refugee protection, the inconsistencies in the testimony provided at the hearing and the delay in claiming refugee protection. These factors led the RPD to conclude that he did not discharge his burden of establishing the central elements of his claim for refugee protection. [33] Having heard the recording of the hearing and examined all of the evidence, I share the RPD's opinion that the appellant is not a "Convention refugee" or a "person in need of protection" within the meaning of subsection 97(1) of the IRPA. [34] At the start of the hearing, the appellant confirmed that the BOC Form completed on July 31, 2013, was complete and exact. When specifically asked whether additions or amendments should be made to it, the appellant, through his counsel, answered no. [35] During the hearing, the appellant testified that his problems, if he were to return to Gabon, are related to an alleged loan that his father obtained from "investors" in 2003. This loan of approximately CAD$250,000 was to finance his studies in Canada and those of his sisters, and to invest in a business. The appellant testified that in 2004, when he was living in France with his parents, he received a threatening call in relation to this loan. In 2007, when he attended a soccer game at Kent Park in Montréal, he was stopped by a Gabonese man, who informed him that he was responsible for the loan obtained by his father. The appellant stated that he was scared. He also stated that, in 2008, he received an anonymous call that again had to do with this alleged loan. [36] However, the documents completed at the time of his claim for refugee protection in Canada neither refer to this loan nor to these alleged threats. When asked to explain the omission of such facts, the appellant answered that he was tired, that he had little time to complete the documents and that he did not benefit from the assistance of counsel. The RPD considered the explanations insufficient in light of the importance of the facts and drew a negative inference with respect to the appellant's credibility. [37] In my view, the RPD was justified in drawing this conclusion. The facts at issue are central to his claim for refugee protection. It is, at the very least, curious that the appellant, an educated young man, failed to make any reference to this alleged loan and to the problems he allegedly faced in the documents that he completed. This is all the more inexplicable considering that the appellant also stated that his father received many threats in relation to this alleged loan. [38] The Federal Court has recognized that: It is open to the Board to draw negative credibility inferences from an unsatisfactorily explained contradiction between the PIF16 and the applicant's oral testimony.17 [39] The appellant also submits that the RPD erred in finding that the delay in claiming refugee protection undermined his credibility. With respect, the RAD does not share the appellant's opinion on this matter. [40] It is well established that the failure to seek protection at the first opportunity may be an additional factor to consider in assessing the subjective fear of a refugee protection claimant, although it is not determinative in itself. This was the case here. [41] In light of the appellant's allegations, I am of the opinion that the RPD's findings in this regard are not arbitrary. In fact, the appellant submits that he has faced problems since 2004 because of this alleged loan and claims to fear returning to Gabon because of [translation] "irrational problems" that are present in society and the fact that he would be held responsible for the loan obtained by his father. The appellant has been without status in Canada since XXXX XXXX, 2009. I find it difficult to reconcile this four-year delay in claiming refugee protection with the alleged fear. [42] A review of the evidence on file also shows that the appellant made inconsistent statements. I note in this regard that he stated when he completed his BOC Form on July 31, 2013, that he had not heard from his father for two years, that is, since 2011. However, in his testimony he stated that he had not heard from his father since 2010, and in his memorandum of appeal, he stated that he had not heard from him since 2009. Even though the RPD did not mention it in its decision, I am of the opinion that these inconsistencies are also reasons to doubt his testimony. CONCLUSION [43] For these reasons, having heard the recording of the hearing and reviewed all of the evidence on file, I am of the opinion that the RPD's findings are not arbitrary and take into account the principles of case law that are applicable. [44] Consequently, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX, is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [45] The appeal is dismissed. Maria De Andrade Me Maria De Andrade October 29, 2014 Date IRB translation Original language: French 1 Form IMM-008, Generic Application Form for Canada, page 41 of the appeal record. 2 Subsection 110(1) of the 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. 3 Subsection 111(1) of the IRPA. 4 Eng v. Canada (Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; Bujar Huruglica v. (Citizenship and Immigration), 2014 FC 799. 5 RPD record, memorandum of parties or all [translation] "new admissible evidence." 6 Subsection 111(2) of the IRPA. 7 Supra, footnote 4. 8 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 9 Franciska Spasoja v. (Minister of Citizenship and Immigration), 2014 FC 913. 10 Bujar Huruglica v. (Citizenship and Immigration), 2014 FC 799. 11 Idem. 12 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 13 Idem. 14 Aghad Alyafi v. Minister of Citizenship and Immigration, 2014 FC 952. 15 Augebor v. Canada (M.E.I.), (1993) 160 N.R. 315 (F.C.A.), P.L. v. Benchetrit, 2010 QCCA 1505. 16 Former name of the current BOC Form. 17 Grinevich et al. v. M.C.I., No. IMM-1773-96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-01553 10 RAD.25.02 (February 7, 2014) Disponible en français