MB5-04923

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 : MB5-04923 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 July 4, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Luciano Mascaro Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX, the appellant, a citizen of Cameroon, is appealing against the decision of the Refugee Protection Division (RPD). She submits that the RPD erred in fact and in law in the assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination and refers the matter to a differently constituted panel of the RPD for re-determination of the refugee protection claim. III. BACKGROUND A. Summary of alleged facts [3] In her memorandum, the appellant presents the facts as follows: - She has two children, she is separated from her spouse, and before leaving Cameroon, she was living with her parents in XXXX; - She is claiming protection in Canada because she was accused of homosexuality, and she was subjected to sexual touching and abuse by women, including XXXX XXXX, a friend of a friend who played XXXX with her; - On XXXX XXXX, 2013, after a XXXX tournament, while she was leaving a bar where they had been XXXX XXXX XXXX, a woman who was with another member of the team, XXXX XXXX, grabbed her by the arm and asked her to meet with her, which she agreed to do, and they met at a park the next day; - On XXXX XXXX, 2013, during this meeting, Ms. XXXX told her that she wanted her, the appellant, to become her homosexual partner, which shocked her, and she refused; - On XXXX XXXX, 2014, Ms. XXXX drugged her in a bar in XXXX and took her to a hotel room to abuse her; - The next day, she and her parents reported the assault to the police and told the police that Ms. XXXX is lesbian; - The police took the matter seriously and summoned her XXXXtimes as they pursued the investigation; - On XXXX XXXX, 2015, in a club where she was celebrating her upcoming trip to Canada, she once again ran into Ms. XXXX, who, that night, put something into the appellant's drink, drugging her. She then took her to a location where she woke up the next day with two girls next to her, and erotic objects were at the foot of the bed; - Ms. XXXX told her that it was her turn to accuse her of homosexuality and of practising this lifestyle XXXX XXXX; - On XXXX XXXX, 2015, she and her family went to file a complaint, but the police officer on duty asked her to return the next day and told her that Ms. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX; - On XXXX XXXX, 2015, she went to XXXX for her flight, which was departing for XXXX the next day, and she asked her parents to follow up on the complaint she had made to the police; - On XXXX XXXX, 2015, her parents called her and warned her not to return to Cameroon because a police commando unit had appeared at the family home; - Being unable to find her, and accusing her of homosexuality, the police searched and ransacked the home and promised to return; - On July 20, 2015, she claimed refugee protection in Canada.1 [4] In addition to her Basis of Claim Form2 (BOC Form), the appellant, then called the claimant, filed documents in evidence to the RPD.3 B. RPD decision [5] The hearing before the RPD took place on October 1, 2015, and the decision rejecting the refugee protection claim was rendered on October 19, 2015.4 [6] In its reasons for decision, the RPD indicated that it took into consideration Guideline 4. However, in light of the claimant's testimony and all of the evidence, it found that the allegations were not credible,5 and believed no part of the claimant's story.6 [7] After indicating that the claimant's answers were vague with respect to the deeds and actions of the police, who allegedly accused her of homosexuality, and with respect to Ms. XXXX, the RPD added that it was implausible that, in a country as homophobic as Cameroon, a lesbian woman could act with such impunity in order to persecute a woman who is not lesbian.7 [8] The RPD also identified contradictions between the claimant's testimony and the information about the police station where she allegedly filed her complaint and was questioned.8 It concluded as follows: [translation] [18] In short, considering the widespread trafficking of documents from Cameroon, and especially considering the contradictions and the claimant's ignorance and incomplete explanations, I conclude that Exhibit P-7 [showing that the certificate confirming the filing of the complaint was issued byXXXX XXXX XXXX XXXX XXXX XXXX XXXXin the city of XXXX] was probably fabricated for the purposes of her claim. All of this undermines the credibility of the allegations that she had such serious problems with this XXXX that she sought assistance from the authorities. This is an important allegation that she is unable to establish.9 [9] The RPD also analyzed a letter from a doctor and a medical report. It found that the first document did not establish that the claimant's depression was caused by what she was alleging. And it granted no probative value to the second.10 [10] Finally, after the hearing, the RPD received a photocopy of the alleged complaint, which was handwritten, from June 7, 2015, and XXXX summonses to appear on XXXX XXXX, 2015, which had been issued on XXXX XXXX and XXXX XXXX, 2015. Its analysis of these documents is as follows: [translation] Therefore, these three documents allegedly existed prior to the date of the hearing on October 1, 2015, but the claimant made no mention of their existence. In fact, she testified at the hearing that she had not been given a copy of the statement she had made to the police on XXXX XXXX, 2015. As for the summonses to appear, again it is surprising that her parents did not inform her of the existence of these XXXX court documents before October 1, 2015. The claimant maintained that a police "commando" unit had gone to her home on XXXX XXXX and that strange people had appeared at her home to ask if she was home, but she never mentioned that her family had received a summons to appear. She had no knowledge of any proceedings in her case. Her testimony therefore contradicted the existence of these documents, which suddenly turned up after the hearing and while the decision was under reserve. These photocopies could have been made by anyone. I conclude that they were probably fabricated, in light of my concerns at the hearing. I grant no probative value to these documents.11 C. Grounds of appeal and decision sought [11] In her memorandum, the appellant submits that the RPD erred in fact and in law in the assessment of her credibility.12 [12] With regard to the formal proceedings relating to the accusation of homosexuality made against her, the appellant submits that at the hearing before the RPD, she testified that the police went to her parents' home to arrest her, that she then explained what her family had told her, that she did not know if any charges had been laid against her, and that her parents did not tell her that legal proceedings had been initiated against her. [13] She adds that it is wrong to reject her testimony because she did not have a copy of a legal proceeding with her, when such a proceeding can be commenced in Cameroon and, moreover, there may be unofficial persecution.13 [14] Regarding the existence of Ms. XXXX, she submits that she made efforts to establish her existence, primarily by obtaining letters from a friend and relatives, and that, consequently, the RPD's finding that this woman does not exist is erroneous.14 [15] As for the fact that a lesbian can act with such impunity in Cameroon, the appellant indicates that she explained to the RPD that this woman is XXXX XXXX XXXX XXXX XXXX XXXX and that the police are also involved in corruption. She adds that just because XXXX has a compromising photograph of the appellant, that does not necessarily mean that she was on the premises, and as a result, in these circumstances, it is not implausible that this woman blackmailed her.15 [16] As for the police station she went to in XXXX 2015, the appellant states that at the hearing, the RPD wanted to know where she had filed the complaint and she answered that she had gone to the XXXX police station, in XXXX XXXXa neighbourhood of XXXX, but that she did not remember the name of the street this police station is on. She submits that there were no true contradictions in her testimony and that the RPD's finding is erroneous.16 [17] With respect to the medical report of XXXX 2015, the appellant submits that the RPD erred in not granting it any probative value, as they were handwritten notes were made by the doctor, as is the case in Canada.17 She submits that the same applies to Exhibit P-9, which was filed at the beginning of the hearing.18 [18] As for the XXXX summonses or notices to appear, the appellant submits that the RPD breached procedural fairness, given that she was not summoned to hear the concerns about these new documents.19 [19] Moreover, she explains that the first summons was received by a niece who was staying at the home, who put it on top of a filing cabinet and did not mention it to her parents. The niece mentioned it only after the second notice to appear was received.20 [20] In conclusion, the appellant is asking the RAD to allow the appeal, to grant her protected person status or to give any directions considered appropriate.21 IV. HEARING BEFORE THE RAD A. The appellant requested a hearing before the RAD [21] In a written statement, the appellant indicates that she is not submitting new evidence in her appeal. However, it is indicated in the statement that given its broad powers, a new hearing would be appropriate.22 B. Test in subsection 110(6) of the IRPA [22] The RAD Rules provide that the record of the person who is the subject of the appeal must include a written statement indicating whether the appellant is requesting a hearing under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the RAD should hold a hearing, if the appellant is requesting that a hearing be held.23 [23] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it must be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. C. RAD decision on holding a hearing [24] The RAD must determine whether or not the requirements set out in subsection 110(6) of the IRPA have been met.24 One of the determinative criteria in this regard is that the evidence presented on appeal is found to be admissible.25 However, in this case, the appellant did not submit any evidence in her appeal. Consequently, I find that there is no cause to hold a hearing before the RAD. V. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [25] In her memorandum, the appellant refers to the Federal Court decision in Huruglica and submits that the RAD must assess all aspects of the RPD decision and arrive at its own conclusion regarding the refugee protection claim.26 B. Brief summary of the Federal Court of Appeal decision in Huruglica [26] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal held that the role of the RAD is to intervene when the RPD has erred in law, in fact or in fact and law.27 It also states that an appeal before the RAD is not a true de novo proceeding.28 And it clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after 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. No other interpretation of the relevant statutory provisions is reasonable.29 [27] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [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.30 C. Independent assessment to correct the errors identified by the appellant [28] Relying on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD in correcting the errors that, in the appellant's opinion, may have been made by the RPD31 and rendering the determination that should have been made or that must be made in light of the most recent evidence on the record.32 That said, if required, I must justify whether the circumstances warrant a measure of restraint or deference to the RPD's findings as to the appellant's credibility based on her testimony. However, similar deference does not apply to issues of procedural fairness.33 VI. ANALYSIS OF THE MERITS OF THE APPEAL [29] Having conducted an independent assessment of the record, I find that the principles of natural justice and procedural fairness were breached by the RPD. Here is why. A. Principles of natural justice and procedural fairness [30] Where procedural fairness is at issue, the proper approach is to ask whether the requirements of natural justice have been met considering the particular circumstances of the case.34 [31] In the context of a claim for refugee protection before the RPD, procedural fairness means ensuring that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender evidence in support of their claim, and is given a chance to persuade the RPD that their claim is well-founded.35 [32] A breach of procedural fairness will not result in relief in every case. If it is apparent that the decision-maker would have reached the same decision notwithstanding the breach of procedural fairness and no purpose would be achieved by sending the matter back to the RPD for reconsideration, the decision should stand.36 [33] In her memorandum, the principal appellant submits that the RPD breached procedural fairness because it did not summon her so that she could respond to the concerns about the XXXX summonses or notices to appear that were entered into evidence after the hearing before the RPD.37 [34] In my opinion, that argument must be accepted. [35] In the letter accompanying the submission of these documents, the claimant's lawyer does not ask that the RPD resume the hearing in order to hear her client, requesting instead that the RPD read the documents and take them into account when assessing the matter.38 That is exactly what the RPD did. One might think that if the claimant's lawyer felt that it was necessary for the RPD to hear her client on the subject of these documents, then it was up to her to expressly make such a request, which she did not do. But it appears to me that, regardless of what the claimant's lawyer might or might not have requested, the onus is on the RPD to ensure that the principles of natural justice and procedural fairness are respected. [36] I am aware that the RPD clearly expressed in its reasons for decision the reasons why, in its opinion, this refugee protection claim was not credible. Moreover, it is true that, according to the case law, a claimant's lack of credibility may be extended to all documentary evidence submitted to corroborate the claimant's version of the facts.39 Nevertheless, I find that the XXXX summonses submitted after the hearing are very important in this matter. In fact, in my opinion, if they had been found to be genuine by the RPD, they could have confirmed or corroborated the fears alleged by the claimant. [37] Additionally, in its reasons for decision, the RPD took care to explain in detail why it granted no probative value to these XXXX documents. Its reasoning in that regard is clear. However, there is a problem-a determinative one, in my opinion-in that before making its decision, the RPD did not allow the claimant to provide an explanation with respect to its concerns-justified as they may be-about these XXXX documents. [38] A breach of procedural fairness may arise through no fault of the decision-maker.40 In this case, I am satisfied that the member acted in good faith. Nonetheless, I find that, with respect to the XXXX summonses that were entered into evidence after the hearing, the RPD did not orally express its concerns to the claimant and, consequently, did not give her an opportunity to provide an explanation for the concerns it had upon reading these documents. B. Remedy for the situation [39] As the panel is unable to hold a hearing, it is impossible for me to raise my concerns and hear the appellant's explanations as to whether these XXXX documents are authentic. Consequently, I find that in the particular circumstances of this case, the best way to remedy the situation is to set aside the determination of the RPD and to hold a new hearing before a differently constituted panel. [40] Notwithstanding this decision, I am aware that that the final outcome may remain the same. If so, it will be after the RPD has heard the claimant's explanations and found that they are not satisfactory. However, should the RPD find the explanations satisfactory, it is possible that the probative value granted to these XXXX documents could mitigate or completely offset the claimant's credibility problems. VII. CONCLUSION [41] For these reasons, I set aside the determination of the RPD and refer the matter to a differently constituted panel of the RPD for re-determination of the refugee protection claim. [42] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette July 4, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, November 24, 2015, paragraphs 2 to 8, pages 14, 15 and 16 of the appeal record. 2 The appellant's BOC Form is reproduced at pages 13 to 27 of the RPD record. 3 The list of these documents is reproduced at page 219 of the RPD record. The documents themselves are reproduced at pages 220 to 239 of the RPD record. Further in the record, there is also a letter from the claimant's lawyer and other documents submitted before the RPD, but these pages are not numbered. 4 RPD reasons and decision, pages 3 to 11 of the RPD record. 5 Idem, paragraph 9, pages 5 and 6 of the RPD record, referring to Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This guideline is available on the IRB website. 6 Idem, paragraph 15, page 9 of the RPD record. 7 Idem, paragraphs 11 to 14, pages 6 to 9 of the RPD record. 8 Idem, paragraphs 16 and 17, pages 9 and 10 of the RPD record. 9 Idem, paragraph 18, page 10 of the RPD record, citations omitted. 10 Idem, paragraphs 19 and 20, page 10 of the RPD record, citations omitted. 11 Idem, paragraph 21, pages 10 and 11 of the RPD record. 12 Appellant's memorandum, paragraph 10, page 16 of the appeal record. 13 Idem, paragraphs 15 and 16, pages 17 and 18 of the appeal record. 14 Idem, paragraph 19, page 18 of the appeal record. 15 Idem, paragraphs 20 and 21, pages 18 and 19 of the appeal record. 16 Idem, paragraphs 22 and 23, page 19 of the appeal record. 17 Idem, paragraph 24, page 19 of the appeal record. 18 Idem, paragraph 25, page 20 of the appeal record. 19 Idem, paragraph 28, page 20 of the appeal record. 20 Idem, paragraph 27, page 20 of the appeal record. 21 Idem, paragraph 29, pages 20 and 21 of the appeal record. 22 Written statement signed by the appellant's lawyer, undated, page 11 of the appeal record. In the conclusion of her memorandum, the appellant also applies to the RAD for a hearing, paragraph 29, pages 20 and 21 of the appeal record. 23 RAD Rules, SOR/2012-257, subrule 3(3). 24 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 25 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division...' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 26 Appellant's memorandum, paragraphs 11 to 14, pages 16 and 17 of the appeal record. 27 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 28 Idem, paragraph 79. 29 Idem, paragraph 103. 30 Idem, paragraphs 70 to 74. 31 Ghauri v. Canada (Minister of Citizenship and Immigration), No. IMM-3426-15, Gleeson, May 16, 2016; 2016 FC 548, paragraphs 30 to 34. 32 Huruglica, supra, footnote 28, paragraphs 96, 97 and 98. 33 Bouanga v. Canada (Minister of Citizenship and Immigration), No. IMM-1017-14, Martineau, October 30, 2014; 2014 FC 1029, paragraph 8. 34 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, paragraph 75, citing Baker, [1999] 2 SCR 817, paragraphs 23 to 28, she writes: "...the Supreme Court of Canada set out a list factors affecting the duty of procedural fairness and emphasized that the content of the duty must be determined in the specific context of each case. The Court noted that the factors were not exhaustive and reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process 'appropriate to the statutory, institutional, and social context of the decision.'" Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 35 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCT 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 36 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 8. Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, paragraph 34: "While there is no need to establish a prejudice in order prove a breach of procedural fairness based on inadequate interpretation ..., the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. 37 Appellant's memorandum, paragraph 28, page 20 of the appeal record. 38 Letter from XXXX XXXX, October 9, 2015, 1 page, reproduced in the RPD record, but the page is not numbered. 39 Moriom v. Canada (Minister of Citizenship and Immigration), No. IMM-3607-14, Brown, May 5, 2015; 2015 FC 588, paragraph 24. 40 Kerqeli v. Canada (Minister of Citizenship and Immigration), No. IMM-1002-14, Phelan, April 16, 2015; 2015 FC 475, paragraph 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-04756 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-04923 13