TB4-01232

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 : TB4-01232 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 (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 28, 2014 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye 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, a citizen of Nigeria, 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 appeal, and he has not requested an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and replace it with a determination that the Appellant is a Convention refugee or a person in need of protection.1 or, in the alternative, refer the matter back to a newly-constituted panel of the Refugee Protection Division for a re-determination. DETERMINATION [2] The RAD finds the analysis with respect to the Appellant's sexual orientation to be unreasonable. In the RAD's opinion, this finding was based on peripheral facts that were not material to the claim. I am unable to substitute my decision without eliciting further evidence from the Appellant and by conducting an entire hearing de novo. Furthermore, I do not have the legislative authority to hold an oral hearing given that no new evidence, pursuant to section 110(4) has been submitted. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act. (IRPA), I refer the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND [3] The Appellant fears returning to Nigeria because of his sexual orientation, namely, bi-sexual. He has engaged in same sex activities since the age of 16. [4] The Appellant travelled to Canada as a dancer on tour with a hip-hop group. After his arrival, his local community in Nigeria learned of his sexual orientation and, as a result, he believes that he would face a ritual cleansing, which involves imbibing a poisoned concoction, walking naked through the town, and being beaten by the townsfolk. He also fears being arrested, detained and tortured by police, as same-sex relations are a criminal offence in Nigeria. The Appellant submits the following: [5] Did the RPD err in impugning the credibility of the Appellant based on peripheral issues? [6] Did the RPD conduct a thorough s. 97 IRPA analysis? [7] Did the RPD err by ignoring material evidence? ISSUES TO BE DETERMINED [8] Was the RPD's analysis reasonable in reaching the determination that the Appellant was not bi-sexual? [9] Did the RPD rely on evidence that was not material to the claim, and ignore material corroborative evidence in coming to the foregoing conclusion? STANDARD OF REVIEW ANALYSIS [10] The Appellant argues that the RPD erred in its consideration of evidence, and this appeal therefore raises questions of fact. [11] 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. [12] In Dunsmuir,2 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,3 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. [13] In Newton, 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. [14] 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 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. [15] 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. [16] The nature of the question in issue: In this appeal, the question at issue is one of fact, which has generally, in both the appellate court and judicial review contexts, attracted a deferential standard of review.6 [17] 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. [18] 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. [19] 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. [20] 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. [21] 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 frequently not have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD should 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. [22] The appropriate standard of review for issues of fact raised 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.13 [23] In the particular circumstances of this decision at hand by the RPD, I have considered the Appellant's record, counsel's submissions, and a thorough review of the DVD of the RPD hearing. I have found that the RPD's findings of fact are unreasonable as per my analysis below. ANALYSIS [24] The RPD found the Appellant to be lacking in credibility, due to lack of corroborative evidence as well as contradictions with respect to issues surrounding his involvement with a musical group. Specifically, the RPD asked the Appellant to provide photographs depicting his dancing, however, the claimant indicated, post hearing, that his landlord had cleared the apartment and he was therefore unable to provide these documents. The RPD drew a negative inference from the fact that the Appellant's membership in a cultural group in his Nigerian school was not indicated on his secondary school certificate, when it was an extracurricular activity. Although a further corroborative document was provided post hearing, the RPD found that it had contradicted the oral testimony. [25] The RPD asked the claimant to provide an itinerary to confirm the presence of his musical group in Canada, however he did not. On the other hand, the Member acknowledges that the Port of Entry notes indicated that he had obtained a visa as a member of the XXXX musical group. In totality, the RPD, in its reasons, found the Appellant not to be credible, based on his dancing career, his school certificate and his participation in the musical group while in Canada. [26] In its credibility findings with respect to the Appellant's sexuality, the Member writes in only one paragraph of his decision (paragraph 11), that "that being bisexual is a choice he has made". After listening to the DVD, the RAD finds that this evidence was misconstrued by the Member. The Appellant went on to say that he felt uncomfortable with women, had never been intimate with females, and had only 10% feeling towards females as opposed to males. The Member goes on to use his "specialized knowledge" to comment on this "choice" in its Reasons, and although draws no inferences says the following: "the panel has heard a number of cases of gay and bisexual claimants from Nigeria"; "all other claimants had testified that being gay or bisexual is part of their make-up and something over which they had no control". While the Member's use of this "specialized knowledge" drew no inferences, at the very least, it must be noted that in the RPD's findings of lack of credibility of the Appellant, this is the only paragraph relating to the sexuality of the Appellant, before the Member made its negative finding that the Appellant was not bi-sexual. It then begs the question as to whether or not the Member used this knowledge in making a negative determination of the Appellant's identity as a bi-sexual. [27] I find the RPD's conclusion is unreasonable in light of the misconstrued evidence, which is an error in fact. Moreover, I find it unreasonable that the only paragraph in the RPD's Reasons dealing with this issue indicates it draws no negative inferences. Furthermore, I find it unreasonable that there is no further analysis contained in the RPD Reasons to support the finding that the Appellant is not a bi-sexual. [28] The RAD considered the submissions raised by the Appellant in this appeal, after thoroughly examining the RPD record and listening to the DVD of the RPD hearing. I find that the RPD came to its conclusion that the claimant was not bi-sexual based on peripheral credibility issues with respect to his participation in a dance group and his school certificate leading the RPD to find the Appellant lacking in credibility. [29] The RPD, in its decision, references only one paragraph with respect to the Appellant's sexuality, and the panel finds this paragraph to be an error in fact and the comments, although he says not determinative, to be unreasonable. I find that there is little in the decision that deals with the merits of the claim and adequately explains how the RPD arrived at a negative credibility finding with respect to the Appellant's sexual orientation. [30] Having made this finding, the RPD, although in the hearing, posed questions surrounding state protection, made no finding in this regard, hence no mention of any of the Board's documentation or counsel's submissions in this regard were taken into consideration. We do, however, note that the RPD made no mention of the psychological report14 or the Affidavits of the Appellant's sister15 or his mother16 when considering the Appellant's sexual orientation, as well as the Appellant's attendance at 51917 and the support letter from B.C.A.P.18 While it may be that the RPD would not necessarily have accorded weight to the aforementioned documentation, to completely disregard it in its reasons is a reviewable error. [31] Where the RAD normally shows deference to credibility findings by the RPD, in the particular circumstances of this claim, it cannot do so as it goes to the very thrust of the claim, namely, the sexuality of the Appellant, since the RAD finds that the analysis leading to the RPD's decision is unreasonable. Without hearing further evidence as to why the Appellant should not be believed to be bi-sexual, I cannot substitute a decision, without eliciting further evidence from the Appellant and by conducting an entire hearing de novo. . [32] For all of the above reasons, this appeal is allowed. Pursuant to Section 111(1(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) 'Roslyn Ahara' Roslyn Ahara April 28, 2014 Date 1 Exhibit P-1 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, 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 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 14 Exhibit C-13 15 Exhibit C-3 16 Exhibit C-4 17 Exhibit C-9 18 Exhibit C-15 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01232