MB4-05132

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 : MB4-05132 MB4-05133 MB4-05134 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision September 23, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Luciano Mascaro Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX and her children XXXX XXXX XXXX and XXXX XXXX XXXX, all citizens of Haiti, are appealing against a decision of the Refugee Protection Division (RPD) rejecting their refugee protection claims. [2] The appellants are filing new evidence on appeal. They are also requesting that a hearing be held before the Refugee Appeal Division (RAD). [3] XXXX XXXX XXXX XXXX was named the designated representative for her two minor children, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination. BACKGROUND [5] The female appellant alleges the following. The female appellant fears that she and her appellant children will be kidnapped and killed by criminals. According to her, these are the same criminals who attacked and robbed her husband while he was driving to Tabarre in XXXX 2013 (they made off with his computer and his children's passports, among other things) and who broke into her home on XXXX XXXX, 2014, while the appellants were in Canada (and had been since July 15, 2014). [6] At the scene of the crime they asked where the woman of the house and the two children were, identifying them by name. Those present were treated violently, and one of them died shortly thereafter from a heart attack. The criminals removed a number of electronic items from the house. [7] Previously, while the female appellant was at home, her home was invaded by criminals and burgled. [8] She was beaten up and then driven to the hospital to be treated for the injuries stemming from this assault. A complaint was lodged with the Police Nationale d'Haïti (PNH) [Haiti national police]. [9] The appellants claimed refugee protection on August 20, 2014. [10] The RPD rendered a negative decision in the appellants' case on November 26, 2014. [11] On XXXX XXXX, 2014, criminals again entered the appellants' home. The female appellant's husband was not there, since he lives in XXXX. A guard was in the yard. The criminals ordered him to reveal the husband's whereabouts and when the appellants would be returning to the country. RPD DECISION [12] The RPD found the appellants credible throughout their testimony and allegations. The principal appellant delivered all the testimony. [13] According to the RPD, the principal appellant failed to demonstrate a connection between the incidents in XXXX 2008, in XXXX 2013 (when her husband was assaulted and robbed while driving to Tabarre) and on July 28, 2014, when her house was allegedly burglarized and when the criminals reportedly asked about her and her children, who were in Canada at the time. [14] The RPD is of the opinion that these were random, unconnected acts and that the female appellant failed to establish that they were committed by the same people or that they were interconnected. At the same time, the RPD concludes from this that the appellants were targeted because they [translation] "are seen as having money," but that these were random acts and they failed to demonstrate that they had been personally subjected, or would be upon their return, pursuant to paragraph 97(1)(b). [15] The RPD adds that the principal appellant failed to show that she might fear persecution by reason of her membership in a particular social group, namely women (see section 96 of the IRPA), due to her specific conditions. The female appellant can go live with her husband, find housing and see to her needs. She is not, in the RPD's opinion, in the same precarious situation as women living alone in tents. GROUNDS OF APPEAL [16] The appellants maintain that the RPD erred in mixed fact and law. [17] The RPD erred in finding that by reason of her specific conditions, the principal appellant does not have a well-founded fear of persecution in connection with her particular social group (women) under section 96 of the IRPA. In her opinion, the RPD minimized her objective fear by misassessing the documentary evidence. [18] The RPD erred as well, in the appellants' opinion, when it wrote that the principal appellant was targeted for having money, only to then write that it did not believe that the female appellant was targeted by the same agents of persecution but that the acts in question were instead of a random nature. [19] The RPD erred by mistakenly concluding that the appellants had not been personally subjected because they were not targeted and because these were random acts, since, according to the facts presented, the principal appellant testified that during the incident on XXXX XXXX, 2014, the criminals specifically named the two child claimants and the woman of the house, and this had, on a balance of probabilities, a connection to the previous XXXX 2013 incident when the criminals made off with personal data on the appellants, such as cheques, hard drives, a laptop and passports. [20] In addition, it emerges from subsequent events (pages 12 and 13 of the appellants' memorandum) that they are being specifically sought. In fact, according to the new evidence filed as Exhibit A in the appellants' memorandum, criminals again appeared at the appellants' home on XXXX XXXX, 2014, and asked for them specifically. All of this indicates that the appellants' fear is personalized. ADMISSIBILITY OF NEW EVIDENCE [21] The appellants submitted the following new evidence in support of their appeal before the RAD: [22] Document A, which comes from the PNH, Direction Départementale de l'Ouest, Commissariat de Pétion Ville [western departmental office, Pétion Ville police station] and is dated XXXX XXXX, 2014. In light of subsection 110(4) of the IRPA, which states the following: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The RAD accepts document A as evidence because it was prepared after the RPD decision dated XXXX XXXX, 2014, concerning an incident in connection with the claimants' fear that occurred a few days after the RPD's final decision. [23] Also, this document is relevant because it has a direct nexus to one of the appellants' grounds for fear. [24] In light of subsection 110(4) of the IRPA, which states the following: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. The RAD accepts document A as evidence. The principal appellant provided explanations that she had taken steps in the country but had been unable to obtain a copy, something that she was able to do after the RPD's decision. Also, this document is relevant because it has a direct nexus to one of the appellants' grounds for fear. THE RAD'S ROLE [25] The RAD is an appeal tribunal that reviews RPD decisions. Its role remains to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied in reviewing RPD decisions. [26] To date, the decisions of the Federal Court have established that the RAD is a "specialized (if not overspecialized) tribunal," see Alvarez,1 and that Parliament conferred "a true appellate function" on the RAD, "which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [27] In Alvarez,2 the Honourable Justice Shore expresses the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner...". These appeals are not appeals de novo, and the RAD cannot hold a hearing unless new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA, which limits the scope of appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [28] In Eng,3 Justice Shore expresses the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact, because the RPD is better situated, having seen and heard the claimant. However, the RAD must perform its own assessment of all the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error."4 [29] In Huruglica,5 Justice Phelan states the following: "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion". [30] Thus, Huruglica recommends an approach where deference must be given to the RPD in the assessment of credibility, while conducting an independent assessment of credibility that is not limited to "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."6 [31] In Spasoja,7 rendered after Huruglica, the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the opinion that the standard of review to be applied by the RAD must be that of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's findings of credibility, and that the standard of correctness should be applied to questions of law. This conclusion is consistent with Alvarez and Eng. [32] In Alyafi,8 Justice Martineau is of the opinion that both approaches-the first explained in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as a "composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" (Alyafi, para. 16))-can be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [33] It seems to me that the RAD must show deference to the RPD's credibility findings, as in Huruglica, given that the RPD had the opportunity to see, question and hear the appellant. [34] In its analysis, the RAD will consider all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD's credibility findings. [35] The RAD will intervene only if it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. For errors of law, the RAD will apply the correctness standard of review (Spasoja).9 ANALYSIS [36] It is the RAD's opinion that the RPD erred in its analysis, thereby tainting its decision. [37] In paragraph 11 of its decision, the RPD indicates that the principal appellant's testimony was credible with respect to her allegations. She is therefore credible. [38] If that is the case, the RPD erred in finding that the appellants had failed to show that they had been personally subjected to a risk and would be upon their return, because it found that the appellants had failed to show a connection between the alleged events in support of their claim for refugee protection. At the same time, the RPD concluded from this that these were isolated, random and unconnected acts. [39] But according to the testimony of the principal appellant, found to be credible, during the incident on XXXX XXXX, 2014, the criminals, although not identified, asked specifically for the children-identifying them by name-and asked where the woman of the house was (they did not identify her by name). [40] In the circumstances, it appears, on a balance of probabilities, that this is the work of criminals who were or had links to the theft of personal data from the female appellant's husband in XXXX 2013, or that this involves other people, perhaps from the neighbourhood as the RPD asked the principal appellant in the hearing room. The fact remains, in the RAD's opinion, that this XXXX 2014 incident shows that there was personalization and that she could thus be personally subjected to a risk, should she return. [41] At the same time, the RAD is unable to comment on the authenticity or probative value of Exhibit A filed as evidence with the RAD, since it did not have the chance to question the appellants on this. [42] The RAD is also unable to substitute its own determination, no matter the outcome, since the issue of an internal flight alternative was addressed only in part during the questions asked in the hearing room. At the same time, the RAD cannot hold a hearing as requested by the appellants, because the evidence presented cannot justify allowing or rejecting the refugee protection claim, as required under subsection 110(6) of the IRPA. [43] As regards the analysis under section 96 of the IRPA in connection with the female appellant's fear as a member of the particular social group of women, the RAD carefully listened to the recording of the hearing and did not hear the principal appellant testify that, as a woman, she feared being raped. In the recording, she is heard testifying that she fears being killed and kidnapped, because she and her children would be used to pressure her husband into giving the criminals money. CONCLUSION [44] For these reasons, the RAD determines that the RPD's decision is erroneous. The RAD is unable to substitute its own determination. REMEDY [45] Pursuant to subsection 111(2) of the IRPA, the RAD refers the matter of XXXX XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX to the RPD for re-determination. [46] The appeal is allowed. Roxane Cyr Roxane Cyr September 23, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Idem, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Idem. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 8 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 9 Supra, footnote 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-05132 MB4-05133 MB4-05134 1 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB4-05132 MB4-05133, MB4-05134 3