TB3-04139

RAD File No. / N° de dossier de la SAR : TB3-04139 TB3-04675 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 XXXX (a.k.a. XXXX XXXX XXXX XXXX) (a.k.a.XXXX XXXX XXXX) XXXXXXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 27, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Sheard Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Pat Retsmas Hearings Officer Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) (the Appellants), citizens of India, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeal. The Appellants ask that the Refugee Appeal Division (RAD) set aside the RPD's decision and substitute it with a positive determination or, in the alternative, that the RAD refer the matter back to the RPD for redetermination. [2] The Minister of Public Safety (the Intervenor) intervenes and requests that the RAD dismiss these appeals and find the Appellants to be neither Convention refugees nor persons in need of protection. The Intervenor requests that the RAD issue its decision as promptly as possible, as the Appellants are in detention. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. Background [4] The Appellants alleged before the RPD that they fear for their lives in India. The male Appellant claims that he borrowed money from a gangster and will be harmed or killed because he has been unable to repay that money. The female Appellant alleges that an influential man in her village tried to rape her on a number of occasions, and she was also threatened by his associates. [5] The Minister intervened in the Appellants' refugee claims before the RPD on the basis of serious credibility concerns.1 The Minister alleged that the Appellants falsely presented themselves as husband and wife upon arrival to Canada, though the male Appellant wrote on his Generic Application Form for Canada that he is single, while the female Appellant wrote that she is widowed. The Minister also provided evidence that the male Appellant had previously applied for a U.S. visa, while the female Appellant also applied for a U.S. visa, using a false name. The Minister argued to the RPD that the Appellants are generally lacking in credibility, that there is no nexus between a fear of criminal activity and a Convention ground, that the Appellants can avail themselves of an internal flight alternative within India, and that there is a presumption of adequate state protection in India. [6] The Appellants' refugee claims were heard on June 3, 2013, and the RPD rendered an oral decision on that day, with written reasons following on June 25, 2013. The RPD rejected both claims on the basis of credibility. The RPD noted that the Appellants falsely presented themselves as husband and wife when arriving in Canada, and told an immigration official that they were not seeking refugee protection. They had in their possession a marriage certificate as well as a statutory declaration attesting to their marriage. The Appellants only sought refugee protection when they were told they were inadmissible to Canada. [7] The RPD found three significant problems with the male Appellant's evidence. His Basis of Claim (BoC) form alleges that he borrowed money and was unable to repay it, but he testified at his refugee hearing that his father borrowed the money. When asked to explain the apparent contradiction, he was evasive. The RPD also found that the male Appellant gave inconsistent evidence about when his fear in India first arose. Finally, the RPD noted that, while the male Appellant testified that he was beaten on many occasions, his BoC only refers to threats. [8] The RPD also had difficulty with the female Appellant's testimony. She gave inconsistent evidence about the year in which her fear arose, about who had threatened her and about when her husband passed away. The RPD noted that the Appellants were twice asked by immigration officials whether they have any fear in India, and, on each occasion, they replied that they did not. [9] In light of all these credibility concerns, the RPD made a finding that the Appellants were generally lacking in credibility and rejected their claims. [10] The Appellants raise three grounds of appeal. First, they argue that the translation of the BoC forms was inadequate. Second, they submit that the RPD used discrepancies between the BoC and oral testimony to make adverse credibility findings, without considering an incomplete Interpreter's Declaration on the BoC forms and thus the possibility of a translation problem. Third, they argue that the RPD erred in failing to consider their claims under Section 97 of IRPA. [11] The Intervenor disagrees. In the Intervenor's submission, the evidence shows that the Appellants had proper interpretation for their BoC form, and the numerous discrepancies within the Appellants' evidence support the RPD's general credibility finding. [12] The Appellants did not file a response to the Minister's intervention. ANALYSIS Prospective New Evidence [13] Section 110(3) of IRPA allows the RAD to accept documentary evidence and submissions from the Minister and the Appellants. [14] Section 110(4) provides that the Appellants may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] Rule 6(1) of the Refugee Appeal Division Rules allows the Appellants to make an application for an extension of time to file or perfect an appeal. According to Rule 29, the Appellants must make an application to use a document that was not provided with the appeal. Applications relating to either Rule 6(1) or Rule 29 must be made in accordance with Rule 37. [16] The Appellants submitted neither new evidence nor an application pursuant to Rules 6(1), 29, or 37. However, their Written Statement indicates that "the Claimants will be submitting Affidavit evidence with respect to the interpretation of their Basis of Claim Forms."2 It claims that the Appellants only became aware of discrepancies relating to their BoC forms at their refugee hearing, and that their counsel had some difficulty in securing a recording of the hearing, though he has it now and has ordered a transcript. According to the statement, "Counsel will make diligent efforts to pursue the transcript, draft the Affidavits, and file them with the Refugee Appeal Division for use in this appeal..... The Claimants shall file this material as soon as it is available." [17] The Appellants perfected their appeal and did not apply under Rule 6 for an extension of time to do so. The Appellants were nevertheless entitled to bring an application under Rule 29 to provide additional documents. Had they done so, they would have been required to explain how the additional documents meet the requirements of Section 110(4) of the Act and how the documents relate to them. In deciding the application, the RAD would have been required to consider various factors, including the relevance and probative value of the documents, any new evidence the documents bring to the appeal, and whether the Appellants could have, with reasonable effort, provided the document with their appeal record. Had the Appellants brought such an application, the Minister would have been entitled to file a response. [18] The Appellants made no application and, in any event, have not provided the additional documents to the RAD or to the Intervenor. As such, there are no documents for the RAD to consider. There is no explanation for why the Appellants could not have obtained a recording of the proceeding with reasonable effort prior to perfecting their appeal, other than the vague statement that counsel had difficulty in securing a recording of the hearing. There is no indication of when the Appellants expect the documents to be available. [19] Even if the Appellants had made an application under Rule 29, in accordance with Rule 37, the RAD would not admit the proposed documents. The discrepancies between the Appellants' testimony and their BoC forms were raised in their refugee hearing and therefore predate the rejection of their claims. The RAD notes that a recording of the hearing was in fact included with the RPD record, which was served on the Appellants and on their former counsel on June 27, 2013, well before the August 1, 2013 filing of their appeal record.3 As such, the RAD finds that the Appellants could have, with reasonable effort, provided their affidavits and a transcript along with their appeal record. [20] For these reasons, the RAD denies the Appellants' request to provide additional documents in the future. Standard of Review [21] The Appellants allege that their refugee claims were negatively affected by inadequate interpretation of their BoC forms, which is a matter of natural justice and procedural fairness. They also submit that the RPD failed to consider their claims under Section 97 of IRPA, which is a question of law. [22] What is the appropriate standard of review to be applied in this appeal, where the appellate tribunal is to consider questions of natural justice and alleged errors of law made by the tribunal of first instance? [23] Neither the Appellants nor the Intervenor make submissions on the appropriate standard of review to be applied here. [24] 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. [25] In Dunsmuir,4 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,5 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. [26] 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:6 (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. [27] 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.7 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. [28] 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. However, the hearing of evidence first-hand gives the RPD no advantage over the RAD on questions of law, which suggests that no deference is owed on such matters. [29] The nature of the question in issue. In this appeal, the questions in issue are ones of law and of natural justice. Questions of law have generally, in both appellate court and judicial review contexts, attracted a correctness standard of review, in part to ensure universality in the application of legal principles.8 On questions of natural justice, the courts have shown no deference to Tribunal decisions-either these are beyond the scope of a standard of review, or the appropriate standard is one of correctness.9 [30] 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. [31] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.10 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. [32] 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. [33] 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." [34] 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. [35] 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,11 and each can take notice of information and opinion within its specialized knowledge.12 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,13 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 proceeding.14 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,15 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand. The RPD does not have an advantage in expertise over the RAD, however, on questions of law, as both tribunals are specialized in refugee protection and share a home statute. [36] 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.16 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...." [37] 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. While the last factor considered above stands in favour of deference, it is outweighed by the other factors which clearly indicate that the RAD owes no deference to decisions of the RPD on questions of law and on issues of natural justice. [38] For these reasons, the RAD concludes that, in considering this appeal, it must apply a standard of correctness to questions of law and of natural justice. When applying such a standard, the RAD will not show deference to the reasoning of the RPD, but will rather undertake its own analysis of the question. That analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, it will substitute its own view and provide the correct answer.17 The Appellants' Issues [39] The Appellants raise three challenges to the RPD's decision. [40] First, the Appellants argue that the inadequate interpretation of the BoC form into the English language unfairly contributed to the RPD's adverse credibility findings. They submit that the declaration on the form does not state the language to which the form was interpreted. As the Appellants speak only Gujarati, and the representative who assisted them with the forms does not, there was miscommunication which led to material errors in the form, which later formed the basis for discrepancies identified by the RPD. The Appellants included with their appeal record a copy of the Basis of Claim form for the female Appellant. The last part of the form includes a section entitled "Interpreter's Declaration." The declaration is partially completed: it includes an interpreter's name, signature, and date, but the line on which the language of interpretation is to be written has been left blank.18 The Appellants did not include with their appeal record the BoC form of the male Appellant. [41] The RAD finds the Appellants' submissions on this matter to be very troubling. As the Intervenor points out, the RPD record shows that the Interpreter's Declaration was fully completed on the male Appellant's BoC form.19 It bears the same date as the female Appellant's BoC, and it clearly shows the interpreter's name and signature. The interpreter is the same one who translated the female Appellant's form. However, the declaration on the male Appellant's form also has the language field completed, which indicates that the entire content of the form was interpreted to the Appellant in the Gujarati language. To put it simply, the record shows that both Appellants had the assistance of the same Gujarati interpreter in completing their BoC forms. [42] The Appellants submitted with their appeals one BoC, where the language of interpretation was omitted and, on this basis, argue that they did not have a Gujarati interpreter for the completion of both of their forms. The evidence before the RPD and the RAD clearly shows otherwise. At best, the Appellants and their counsel made a careless mistake in basing their appeals upon partial evidence; at worst, the Appellants and their counsel have attempted to mislead the Refugee Appeal Division on this matter. In either case, it is hard to imagine that the Appellants themselves do not know that a Gujarati interpreter assisted them in the completion of their BoC forms. [43] The RAD does not accept the Appellants' argument that they suffered from inadequate interpretation of the BoC forms. [44] The second ground of appeal raised by the Appellants is that the RPD erred by failing to verify that the Appellants had understood the BoC form before making an adverse credibility finding. They submit that they were unaware of inaccuracies in their form, as it had not been translated accurately for them. The RAD has already found that the Appellants had the forms interpreted to them in their own language. Each Appellant signed a declaration that the BoC's contents are complete, true, and correct, and confirmed this in the hearing. They could have reasonably been expected to know the content of those forms and were given an opportunity to confirm or deny this in the hearing. The RAD finds no error on the part of the RPD in this matter. [45] Finally, the Appellants allege that the RPD erred in failing to consider their claims under Section 97 of IRPA. They submit that the RPD did not consider whether the information provided by the Appellants would have established a danger of torture, a risk to life or of cruel and unusual treatment or punishment. In the Appellants' view, their claims disclose sufficient credible evidence upon which to base a finding that they are eligible for refugee protection. [46] The RAD disagrees. At the beginning of its decision, the RPD panel found that the Appellants "have not established... that on a balance of probabilities you would personally be subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual punishment. My reasons follow."20 After a lengthy and detailed credibility analysis, the RPD member found that "there is no credible evidence upon which I could find you to be convention refugees or people in need of protection...."21 The Appellants' lack of credibility was equally fatal to their claims under Section 96 and Section 97 of IRPA. Once the RPD found that they had provided no credible evidence, there was simply no basis for a finding that the Appellants are persons in need of protection. [47] It is trite law that a negative credibility finding in relation to Section 96 will often obviate the need to consider Section 97. Although in this case the consideration of Section 97 was largely implicit in the reasons, there was nevertheless an analysis. Given the RPD's concerns about credibility, the relatively cursory nature of the Section 97 analysis was reasonable in fact and correct in law.22 [48] Finally, the RAD notes that while the Appellants cite three grounds of appeal, their memorandum appears to raise a fourth, also a question of procedural fairness. They allege that they "were not afforded an opportunity to explain the reason that they indicated they had no fear in India to immigration officers."23 The Federal Court has held that the RPD should afford a refugee claimant an opportunity to explain apparent contradictions or inconsistencies within that person's evidence,24 including inconsistencies relating to port of entry evidence.25 However, the Court has also found that a claimant need not be alerted to a potentially adverse credibility finding in every case,26 and has set out factors to be considered in deciding whether the RPD was required to confront the claimant with an inconsistency.27 These factors include a consideration of: (a) whether the contradiction was only found after a careful analysis of the transcript or recording of the proceeding, or whether it was obvious? (b) was it in answer to a direct question from the panel? (c) was it an actual contradiction or just a slip? (d) was the claimant represented by counsel, in which case counsel could have questioned him on the contradiction? (e) was the claimant communicating through an interpreter, which makes misunderstandings more likely? (f) is the panel's decision based on a single contradiction or a number of contradictions? [49] In this instance, the contradiction was obvious and required no careful parsing of the evidence. The Appellants twice told Canadian officials that they have no fear in India, and subsequently filed refugee claims alleging that they fear for their lives there. This was an actual contradiction, not a slip, and does not appear related to interpretation. As the Intervenor points out, the Appellants had the benefit of a Gujarati interpreter at the port of entry.28 The Appellants were represented by counsel, who could have questioned on the obvious contradiction. Finally, it is clear that the RPD's decision rests upon a multitude of credibility problems, not this single contradiction. The RAD finds that there was no unfairness to the Appellants in the RPD's failure to allow them to explain this inconsistency. [50] For these reasons, the RAD cannot accept the Appellants' arguments that the RPD erred in rejecting their claims for refugee protection. CONCLUSION [51] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. (signed) "Edward Bosveld" Edward Bosveld September 27, 2013 Date 1 RPD Record, p. 77, Notice of Intent to Intervene. 2 Appellants' Record, p. 28, para. 1. 3 RPD Record, p. 1, Statement that a document was provided. 4 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 5 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 6 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 7 IRPA, Sections 96 and 97. 8 Khosa, para. 90, and Dunsmuir, para. 60. 9 Sohal, Manwinder Singh v. Canada (Public Safety and Emergency Preparedness), (F.C., no. IMM-1078-11), Harrington, October 18, 2011; 2011 FC 1175, para. 12. 10 IRPA, Section 3(2)(a). 11 IRPA, Sections 170(g) and 171(a.2). 12 IRPA, Sections 170(i) and 171 (b). 13 IRPA, Section 170(b). 14 IRPA, Section 110(3). 15 Khosa, para. 89. 16 Newton, para. 80. 17 Dunsmuir, para. 50. 18 This is not new evidence, as it exists in the RPD record at p. 29. 19 RPD Record, p. 19, Basis of Claim form, Section 12. 20 RPD Record, p. 4, Decision and Reasons, para. 4. 21 RPD Record, p. 9, Decision and Reasons, para. 36, emphasis added. 22 Ache, Djidda Mahamat v. M.C.I., (F.C., No. IMM-5907-10), Simon Noël, June 9, 2011; 2011 FC 659, para. 15. 23 Appellants' Record, p. 15, para. 21. 24 Gracielome, Anesse v. M.E.I. (F.C.A., no. A-507-88), Hugessen, Desjardins, Marceau (dissenting) May 30, 1989; Reported: Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.). 25 Bayrami, Javad Jamali v. M.C.I. (F.C.T.D., no. IMM-3904-98), McKeown, July 22, 1999. 26 Tanase, Florenta v. M.C.I. (F.C.T.D., no. IMM-2756-99), Muldoon, January 11, 2000; Reported: Tanase v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 308 (F.C.T.D.). 27 Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999. 28 Intervenor's Record, p. 2, para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-04139 TB3-04675