TB4-00374

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 : TB4-00374 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 16, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel L Winbaum Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the appellant), a citizen of Honduras, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim, and he has not requested an oral hearing. The appellant asks the Refugee Appeal Board (RAD) to allow the appeal, set aside the decision of the RPD, and find the appellant is a Convention refugee or a person in need of protection. Alternatively, the appellant asks that the RAD remit the claim to a differently-constituted RPD panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BASIS OF THE CLAIM [3] The appellant alleged that members of the XXXX family involved in criminal activities killed his brother-in-law in 2011 and his brother in 2012 because they were investigating the family criminal activity, and they would not participate in any of the corruption activities. Both the appellant's brother and brother-in-law were XXXX XXXX. [4] The appellant further alleges his parents and family members fled their home in La Concepcion because the XXXX family threatened to kill them. [5] The appellant went into hiding with his wife and children and subsequently he obtained a work permit from Canadian authorities. [6] The appellant's brother was killed by the XXXX XXXX family on XXXX XXXX, 2012, and in XXXX 2012 the appellant's wife called and told him that a member of the XXXX family threatened to kill him and his whole family. [7] On XXXX XXXX, 2012, the appellant's brother-in-law reported to the appellant that an armed group on motorcycles circled the vacant family home in La Concepcion asking for the appellant's whereabouts. [8] The appellant came to Canada on XXXX XXXX, 2011 and made a claim for refugee protection on September 6, 2013. THE RPD DECISION [9] The RPD indicated the determinative issue in regard to this claim was credibility, and found it was not credible that the appellant had been threatened in Honduras, or that he is being sought by anyone in Honduras in order to harm him. Discrepancies Concerning Dates and Incidents [10] The RPD noted a number of serious discrepancies in the appellant's evidence when the oral evidence was compared to the Basis of Claim Form (BOC) and the other available documents. In addition, the RPD found the appellant's testimony to be vague and incoherent at times. [11] The RPD noted the appellant submitted amendments to his BOC on the day of the hearing. One of the amendments related to the death of his brother-in-law, which he had originally indicated was XXXX XXXX, 2011. The amendment changed the date to XXXX XXXX, 2011 which corresponded to a death certificate also disclosed on the day of the hearing. The RPD indicated the amendment was significant because the appellant had issues during his testimony relating to the date of his brother-in-law's death which was the pivotal event in regard to the appellant's fear for his life in Honduras. [12] The RPD found the appellant's testimony regarding dates of alleged events was extremely vague and confusing and noted the appellant changed his testimony numerous times. The RPD asked questions concerning the date he was threatened and how he was threatened. The appellant continued to refer to XXXX XXXX, 2011 rather than XXXX XXXX, as the date his brother-in law was killed, even though the RPD pointed out three times the amendment and death certificate disclosed by the appellant indicated the date was XXXX XXXX, 2011. [13] The RPD asked the appellant what happened that resulted in his decision to move the family, and noted that the appellant responded with evolving and conflicting testimony. The RPD further noted that the appellant gave the RPD three different dates when he received a telephone threat to his life: XXXX 2011, XXXX 2012, and XXXX 2012. [14] In an effort to clarify the matter, the RPD reviewed the appellant's testimony in this regard and asked again when he received the telephone threat. The appellant responded he had forgotten. In response to a subsequent question regarding when he received the threat, the appellant testified a call was made to his wife on XXXX XXXX, 2011, and that a member of the XXXX family indicated they were looking for the appellant in order to kill him. The RPD noted in the hearing that the call was not mentioned in his BOC and asked the appellant if there was a reason he did not mention it. The appellant responded no. [15] The RPD asked the appellant if anything had happened to his family and the appellant responded that they had moved to his in-laws' home because the XXXX family had threatened to kill all of them. The RPD asked when this threat had been made as the threat he described earlier referred only to him. The appellant responded they were always saying they would kill every member of his family they caught. The appellant further responded that neighbours were told this by the XXXX family. In response to a further question regarding when the threat to the family was made, the appellant said he had forgotten and then asked for a break. [16] The question was repeated after the break and the appellant responded XXXX XXXX, 2012. The RPD noted the family allegedly moved after the death of his brother-in law in XXXX XXXX 2011. The appellant responded that his wife received a call on XXXX XXXX, 2012 that the XXXX family was looking for the appellant in order to kill him. The RPD cited the appellant's earlier testimony indicating the call had come on XXXX XXXX, 2011. The appellant responded he made a mistake. [17] The RPD noted the appellant indicated his wife received a threatening call in XXXX 2012 and the appellant's BOC was amended to include this allegation. The RPD reminded the appellant that he had indicated in earlier testimony that the date was XXXX 2012. The RPD asked the appellant if his wife received a call in XXXX 2012 and he said no and indicated there was confusion. [18] The RPD noted that although it was reasonable that the appellant could have confused some dates, it further noted the date the appellant uprooted his whole family and fled would be a significant life event and not easily forgotten. The RPD rejected the appellant's explanation that he was confused and found the alleged events never occurred. The RPD drew a significant negative credibility inference as it found the contradictions, inconsistencies and omissions went to the heart of the claim. [19] The RPD asked the appellant whether the death of his brother-in-law resulted in a police investigation and an arrest. The appellant responded the police do not investigate and nobody was arrested. However an article disclosed by the appellant indicated a member of the XXXX XXXX family was arrested and charged in XXXX 2011 for the appellant's brother-in-law's murder. The appellant indicated he only found out about the arrest recently. The RPD found it to be unreasonable that the appellant would not have known about this arrest since it was his brother-in-law who had been killed and the appellant was still residing in Honduras at the time. The RPD drew a negative credibility inference in this regard. [20] The RPD noted the appellant amended his BOC in regard to the address where his family was living. However, the appellant's testimony in regard to where his family was living was inconsistent with the amended BOC information. The RPD found the appellant's confusion regarding the location of his family to be unreasonable. The RPD further found the appellant's testimony in this regard continually evolved, and it was not credible. The RPD drew a negative credibility inference. Delay in Claiming [21] The RPD recognized that delay in making a claim was normally not a determinative issue. It found, however, that a delay of more than two years demonstrated that the appellant did not possess a subjective fear of persecution in Honduras. The RPD further found the appellant did not possess a well-founded fear of persecution in Honduras from the XXXX family. The RPD drew a negative inference in regard to the significant delay in making a claim for protection. [22] The appellant was asked if he sought any assistance from anyone in regard to seeking permanent status and he said he did not. He was further asked if he sought any assistance in filing a claim for protection. The RPD noted the appellant's answer was confusing and he stated there were threats in Honduras and his wife told him to try and find refugee status. [23] The RPD finds the appellant's explanation unreasonable as to why he did not make a claim on or around XXXX 2011 as the appellant testified he feared for his life beginning in XXXX 2011, and he was in hiding until he came to Canada on a work permit in XXXX 2011. The RPD granted no weight to the claimant's explanation. [24] The RPD noted the appellant was in status at the time he made his claim for protection. It further noted, however, that his work permit was set to expire in XXXX 2013. The RPD noted, as well, the appellant provided no explanation why he waited two years before seeking legal advice regarding his options, or what had changed between 2011 and 2013 that would cause him to seek assistance at that time but not sooner. The RPD found that the reason the appellant made his claim in XXXX XXXX 2013 was because his work permit was set to expire. The RPD noted that, according to the appellant's evidence, he allegedly had been living in fear for his life since XXXX 2011. [25] The RPD noted the appellant had submitted statements from his wife and brother-in-law. The RPD found, however, that they did not offset the credibility concerns noted above and therefore assigned little weight to them. [26] The RPD determined that the appellant had not established his claim and that his testimony was completely without credibility with regard to the material aspects of his claim. The RPD noted in this regard the major discrepancies regarding dates of events, unexplained omissions and the serious issue of delay were cumulatively fatal to this claim. [27] The RPD accepts that both the appellant's brother and brother-in-law were deceased and may have been murdered but finds the appellant has failed to establish that these deaths were linked or that the circumstances of these deaths create a personal risk for the appellant. THE APPELLANT'S ARGUMENTS [28] The appellant submits that the documentary evidence confirms he was not trying to mislead the RPD in regard to his testimony concerning the date his brother-in-law was killed and that the appellant's error could well be explained by the fact the appellant has had minimal formal education. [29] The appellant further submits the oral evidence that his brother-in-law was investigating the XXXX family explains the motivation for his murder. [30] The appellant submits that the murder of his brother while at home indicates it was a targeted killing. The appellant further submits that plausible evidence was offered indicating that the XXXX family was responsible for both murders since both the appellant's brother and brother-in-law were police officers investigating the XXXX family. The appellant inferred the RPD did not refer to documentary evidence which contradicted its conclusions. [31] The appellant submits that he made an honest mistake regarding the date his brother-in-law was killed. The appellant further submits he did write in his BOC that the first threat to his family was issued in XXXX 2012. The appellant submits as well that the XXXX 2012 date was the date his brother-in-law witnessed a group of men on motorcycles circling the appellant's home and shouting for him to come out of his house. [32] The appellant notes in this regard that the appellant's brother-in-law had attempted to testify and be examined by the RPD before he submitted an affidavit after leaving Canada. [33] The appellant submits the RPD made a reviewable error in concluding the appellant was unaware where his family was living on the date of the hearing. The appellant further submits in this regard that a notarized certificate from the principal of the appellant's children's school stating that they left in 2011 because their parents were being persecuted and that at the date of the hearing they were back in the El Jicaro area. The certificate is dated near the XXXX XXXX XXXX 2013. [34] The appellant submits that he referred the RPD to country document evidence that indicates a "nearly complete failure of the criminal investigation system" in Honduras. On this basis the appellant submits that the appellant's belief that he could not be protected from the XXXX family is well founded. [35] In regard to the appellant's delay in making a claim, the appellant submits that he had explained why a claim was not made earlier. The appellant further submits the RPD should have taken into account all the appellant's circumstances in that he has had only four years of formal education and he has done farm work his whole life, including in Ontario. The appellant submits the RPD's expectation that he should have been aware of the refugee process was unreasonable. [36] The appellant submits the RPD was unreasonable in its examination of credibility and that the RPD ignored documentary evidence in reaching a conclusion. STANDARD OF REVIEW [37] The appellant submits that the provisions in IRPA regarding the RAD are consistent with a "true appeal" rather than an application for Judicial Review, in which findings of fact, or mixed fact and law attract a standard of reasonableness, not correctness. As a result the appellant submits that the standard of review in this case should be correctness. [38] The RAD disagrees. The appellant submits the RPD made erroneous findings in respect to his credibility, which are questions of fact. Therefore, the standard of appeal in this case is reasonableness. [39] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [40] In Dunsmuir,1 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [41] In Newton,3 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:4 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, (g) other factors that are relevant in the particular context. [42] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [43] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [44] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [45] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [46] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.7 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [47] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [48] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [49] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [50] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [51] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [52] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [53] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.15 [54] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.16 THE RAD'S ANALYSIS [55] In regard to the date of the death of the appellant's brother-in-law, the appellant did not dispute his testimony was confusing. In this regard the appellant cited case law indicating that, although a claimant's testimony may not be believed, if there is credible documentary evidence confirming the material facts, the RPD must consider such evidence in its assessment of the facts. The appellant further submits his confusing testimony is not a reason to discredit the documentary evidence. The RAD finds the RPD did consider this evidence and did not dispute that the appellant's brother-in-law died on XXXX XXXX, 2011. The RAD further finds the RPD did not discredit the documentary evidence in this regard. The RAD notes the RPD made its finding on the basis of the lack of credible evidence that the circumstances of the death of the appellant's brother-in-law and the subsequent death of his brother create a personal risk for the appellant. The RAD notes in this regard that, according to the appellant's testimony, his brother and brother-in-law confronted the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and the appellant had no such connection with them. The RAD finds the RPD's finding in this regard was justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law, and is therefore reasonable. [56] The RAD further notes that the RPD indicated the appellant's vague and inconsistent testimony regarding the timing of the family's decision to flee their home and go into hiding reflected a general inability to present straightforward and credible testimony concerning alleged incidents. [57] The appellant submits that he offered credible and plausible evidence that both his brother-in-law and his brother were killed by the XXXX family because they were both police officers who were investigating criminal acts by the XXXX family. The appellant further submits the RPD made a reviewable error when it did not refer to the documentary evidence which contradicted its conclusions. [58] The RAD finds that the RPD did refer to the documentary evidence confirming the death of the appellant's brother-in-law and the arrest of a member of the XXXX family. While the RPD found there was insufficient evidence that linked this murder with the death of the appellant's brother, the RAD finds it does appear to be reasonable that they were linked because the two men were police officers who were investigating the XXXX XXXX family. The RAD finds the RPD's finding in this regard not to be reasonable. [59] In regard to the date of the first threat to the appellant's family, the appellant submits his minimal formal education led to his confusion. The appellant noted he did indicate XXXX 2012 as the date in his BOC. He further submits that the XXXX XXXX 2012 date was the date his brother-in-law saw armed men circling the appellant's home and shouting for the appellant to come out of the house. [60] The RAD notes the RPD based its negative credibility finding in this regard on the multiple dates to which the appellant testified, and, in regard to the XXXX XXXX XXXX 2012 dates, the RPD noted this was more than a year after the death of the appellant's brother-in-law, more than a year after the appellant allegedly took his family into hiding, and six months or more after the appellant left Honduras allegedly in fear for his life. The RPD also noted the appellant testified that his wife received a threatening call on XXXX XXXX XXXX 2011, the date his brother-in-law died. The RAD finds the RPD's finding that the multiple discrepancies and unexplained omissions, together with the long delay in making a claim were fatal to the appellant's claim is justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law, and is therefore reasonable. [61] In regard to the delay in making a claim, the RAD finds that given the appellant's alleged fear for his life since XXXX 2011, and also the appellant's failure to seek advice regarding his alleged concerns over a two-year period, and given the appellant's decision to seek advice and make a claim just before his work permit was set to expire, and also in the context of the RPD's cumulative credibility findings, the RPD's finding that the appellant's actions do not reflect someone with a subjective fear of persecution is justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law, and therefore reasonable. [62] The RAD notes the RPD indicated it had taken into consideration the many difficulties faced by a claimant, including cultural factors, the hearing room milieu, and the stress in responding to questions through an interpreter. The RAD further notes, however, that the RPD failed to note in its reasons that it had taken into consideration the appellant's minimal formal education when it made its credibility findings. While it is not the best practice for the RPD not to mention the appellant's minimal education, the RAD finds this has not resulted in unfair findings. The RAD notes in this regard the appellant has failed to provide any evidence that his minimal education resulted in unfairness in the hearing. DISPOSITION [63] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. (signed) 'Milton Israel' Milton Israel April 16, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-00374