TB4-03181

RAD File No. / N° de dossier de la SAR : TB4-03181 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 XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 16, 2014 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Roy Amadi 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 XXXX, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD, and determine the Appellant to be a Convention refugee. In the alternative, the Appellant asks that the RAD set aside the decision of the RPD and refer the matter back to the RPD for re-determination. DETERMINATION [3] This appeal is allowed. Pursuant to Section 111(c) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. BACKGROUND [4] The Appellant alleged before the RPD that he fears persecution by the authorities and the police in Nigeria. On XXXX XXXX, 2013, the Appellant was arrested and put in a jail because he refused to pay bribe to the police officers; in the jail, the officials ordered the inmates to beat the Appellant. The security officials also extorted him of N250,000.00. After his family posted bail, the Appellant was released on XXXX XXXX, 2013. Thereafter, he was hospitalized as he fell ill the night after his release. On XXXX XXXX, 2013, the Appellant's lawyer officially filed a formal complaint against the police to the XXXX State Commissioner of Police, with a copy to the Inspector General of Police to investigate the Appellant's ordeal with the police. On XXXX XXXX, 2013, four officers from the office of the XXXX State Commissioner of Police visited the Appellant's store and demanded that he withdraw his complaint; he was also beaten on that day. The officers were giving him instructions, saying that he had three days to write back to the commissioner's office, and recant what he had stated in his petition. The Appellant was threatened that if he were not to comply with their instructions, they would arrest him for lying against the police. On XXXX XXXX, 2013, the officers returned to the Appellant's store and assaulted his brother XXXX after he refused to disclose the Appellant's whereabouts. Thereafter, the Appellant went into hiding at his cousin's house, and later went to a friend's house; they helped the Appellant to flee Nigeria. [5] The Appellant's application for refugee protection was heard on December 4, 2013. By a decision of March 5, 2014, the RPD rejected his claim. [6] Citing vagueness and inconsistencies in the Appellant's evidence as reasons, the RPD found that the Appellant did not, on a balance of probabilities, provide sufficient credible and trustworthy evidence to establish his allegations. In the alternative, the RPD found that the Appellant was a victim of criminality, and that the risk faced by the Appellant is one of a generalized risk of corruption in Nigeria. In this respect, the RPD found the claim does not establish nexus to the Convention. The RPD found that the Appellant failed to establish a specific, individualized risk of harm in Nigeria and thus failed to demonstrate any risk that was personal or particular to him in Nigeria. ANALYSIS The Issues in the Appeal [7] The Appellant raises the following three issues:2 i) Was the Panel's overall assessment of credibility unreasonable? ii) Did the Panel commit a reviewable error in concluding that the claim lacked nexus to Section 96 of the Act? iii) Did the panel commit a reviewable error in concluding that the Appellant does not qualify for protection because he will face a generalized risk of corruption in Nigeria? [8] The Appellant has submitted no new evidence pursuant to Section 110(4) of the IRPA. The Appellant is not requesting a hearing pursuant to Section 110(6) of the IRPA; however, he would be open to one if the Board deems it necessary. The Minister is not intervening. Standard of Review [9] Although the 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. [10] The Appellant makes no submissions regarding the standard of review. [11] The Appellant submits that the RPD's credibility findings are not reasonable; this raises questions of fact. The issue of whether the RPD made incorrect nexus findings is one of mixed fact and law. The issue of whether the RPD made erroneous findings that the risk to life or risk of cruel and unusual treatment or punishment is a generalized risk is also one of mixed fact and law. In considering these issues, it is necessary to determine the standard of review that will be used. [12] The Refugee Protection Division's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. The RAD must, conversely, proceed without a hearing except in certain circumstances.3 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.4 The RPD has an opportunity to see and question the refugee claimant, while the RAD is infrequently in a position to do so. An appeal body cannot substitute its own reasoning for that of the first-level tribunal which had the benefit of hearing oral testimony.5 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [13] One of the purposes of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."6 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.7 A failure to show deference to the RPD on questions of fact would have a similar effect on the first-level refugee hearing, and this is not consistent with the purpose of the IRPA or its specific provisions in respect to appeals. 8 In the RAD's view, the IRPA clearly signals that an appeal is not to be a de novo hearing of the refugee claim, as the RAD is restricted in accepting new evidence and holding an oral hearing; this too suggests that deference be shown to the findings of fact made at the first level. [14] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility, and on findings of mixed fact and law.9 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.10 [15] The appropriate standard of review for questions of fact and of mixed fact and law is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD 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.11 In considering the reasonableness of the decision, the RAD must be cognizant of the evidence that was before the RPD, and determine whether the RPD properly considered that evidence and reasonably justified the conclusions drawn from it.12 [16] The RAD and the RPD have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.13 A correctness standard on questions of law ensures universality in the application of the law.14 For these reasons, the RAD will review questions of law on a standard of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.15 [17] In this appeal, the questions in issues relate to those of fact and of mixed law and fact, which favour a deferential standard of review.16 The appropriate standard of review in this appeal thus is one of reasonableness. Merits of the Appeal [18] The Appellant argues that the RPD's credibility findings are not reasonable. The Appellant argues that the RPD demonstrated clear misapprehension of his testimony. The Appellant submits that the RPD's credibility findings are not supported by the evidence. The Appellant argues that the RPD's reasons lack justification, transparency and intelligibility. Credibility [19] Reference to the Appellant's BOC: In Reasons for decision ("Reasons"), the RPD writes: [10] "While answers given in a BOC may be brief, they should be complete with all of the relevant facts. It is not enough for a claimant to say that his or her testimony is an elaboration; all relevant and important facts should be contained in the BOC, and the oral evidence should go on to explain that information. In this case, the principal claimant's overall testimony was evasive, vague, and inconsistent. This added to the concerns the panel had with the credibility of the claimant's allegations."17 [20] The Appellant argues that the RPD, at paragraph 10 (provided above), set out to articulate the reasons why the RPD had concerns with the Appellant's credibility. The Appellant submits that his BOC narrative provided, in a detailed and extensive manner, all of the important facts surrounding the persecution that he experienced in Nigeria. [21] The RAD reviewed the Appellant's BOC and finds that the Appellant's BOC included sufficient details on the allegations that are central to the claim. Therefore, the RAD finds the RPD's statement in paragraph 10 provided above, alluding to the brevity of information in the Appellant's BOC, somewhat perplexing. The RAD finds the RPD's statement provided above in this case takes away from the transparency in the RPD's Reasons. [22] The Appellant submits that the RPD found the Appellant's testimony to be "vague" and "general" in nature. The Appellant, however, argues that the RPD failed to point to instances where the Appellant failed to answer properly or was vague or avoided answering questions. Relying on the case law, the Appellant argues that the RPD's one-sentence finding on credibility leaves him "with difficulty in understanding whether there was any existence of justification, transparency and intelligibility within the decision-making process and also whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.....".18 [23] The RAD finds the recording of the RPD proceedings shows that the Appellant answered all of the questions asked, and it did not "sound" as if the Appellant were to have been at loss of an explanation when required to provide one. In the absence of explanation(s), as to where, when and why the RPD found the Appellant's testimony "vague" and "general" in nature, the RAD finds the RPD findings in this respect not reasonable. [24] The Appellant refers to several of the RPD's findings, which led the RPD to make the following finding regarding the credibility of the Appellant's allegations. "Having considered the totality of the evidence and the cumulative credibility concerns, the panel did not find, on a balance of probabilities, that the claimant provided sufficient credible and trustworthy evidence to establish his allegations."19 [25] The agents of persecution and why the Appellant fears them today: The Appellant testified that he faces a risk to his life from the authorities and the Nigerian police because he refused to offer the police officers a bribe and also because he had filed a formal complaint to the higher authorities against those officers. The Appellant testified that the police would kill him to cover up their own tracks. Relating to this aspect of the Appellant's evidence, the RPD found the Appellant's evidence to be of a vague and general nature. The RAD reviewed the recording of the RPD proceedings, and finds that the Appellant answered all of the questions that he was asked by the RPD. In the absence of any explanation as to why the RPD found the Appellant's testimony to be vague and general in nature, the RAD finds the RPD's adverse credibility finding in this respect not reasonable. [26] The Appellant testified that he fears the authorities and the police in Nigeria, including the police officers who had pursued him, upon return, because they continue to look for him. The Appellant testified that the police officers, on XXXX XXXX, 2013, had said to him that if he were not to write to their headquarters and recant his complaint in three days they would pick him up for lying against the police. The Appellant added that those officers had gone to his store and beat up his brother because his brother did not provide them the Appellant's whereabouts. The Appellant testified that he believed that they would have an arrest warrant for him. [27] In this regard, the Appellant argues that the RPD demonstrated a clear misapprehension of his testimony by concluding in paragraph 13 of its Reasons as follows: "... The Panel did not find the claimant established, on a balance of probabilities, his allegations that an arrest and/or search warrant has been issued against him and that the police seek to kill him."20 [28] The Appellant submits that he did not testify that he was certain that a search and/or arrest warrant had been issued by the police against him. In reviewing the recording of the RPD proceedings, the RAD finds the Appellant testified that he believed that there was an arrest warrant issued for him. The RAD finds the RPD's above-mentioned finding does not accurately represent the Appellant's evidence. In this respect, the RAD finds the RPD erred in that the RPD misapprehended the Appellant's evidence. [29] The Appellant's relationship to XXXX XXXX XXXX XXXX XXXX: The RPD takes up issue with the Appellant's testimony relating to how XXXX is related to the Appellant, i.e., whether XXXX is the Appellant's cousin or uncle. In reviewing the recording of the RPD proceedings, the RAD finds that there was certainly confusion regarding the relationship between the Appellant and XXXX. The RAD reviewed the RPD Record, and finds documents entered as exhibits at the RPD hearing,21 wherein XXXX is mentioned; based on those documents, the RAD finds, on a balance of probabilities, they are cousins. Nonetheless, the RAD finds the Appellant in his testimony at the RPD did refer to XXXX as his uncle. The Appellant, however, testified that, in their culture, older cousin is commonly referred to as uncle. [30] In reviewing the RPD's Reasons, the RAD finds the RPD did not refer to the Appellant's explanation as to why he had referred to XXXX as his uncle in his testimony. Relating to this issue, the RPD, however, drew a negative inference from the inconsistency in the Appellant's evidence. In the absence of why the RPD did not find the Appellant's explanation satisfactory, the RAD finds the RPD's adverse credibility inference in this regard unreasonable. Furthermore, the RPD gave XXXX's affidavit little weight arising out of the above adverse credibility finding; the RAD finds the RPD's this derivative finding unreasonable because it is based on an unreasonable adverse credibility finding to start with. [31] The spellings of the Appellant's name: The RPD raised issues with how the Appellant's name appeared in the documents submitted. The Appellant testified that it is common to find someone's name to be written in ways such as how his name appeared in the documents submitted. The RPD drew a negative inference from this as well. In the absence of any reason(s) given to disbelieve the Appellant's explanation, the RAD finds the RPD's finding unreasonable that the Appellant's explanation was not persuasive. [32] Date on the medical note: The RPD asked the Appellant why the date on the hospital report was incorrect. The Appellant testified that the doctor was away when his sister obtained the note. The RPD drew a negative inference because the date on the hospital report was incorrect. Based on the RPD Record, including the recording of the RPD proceedings, the RAD is unable to determine which date the RPD was referring to in the Reasons and at the RPD hearing. The RAD reviewed the hospital report; the report appears to include two dates, i.e., XXXX XXXX, 2013 (perhaps the date when the report was written) and XXXX of month (unclear), 2013 (perhaps the date of the Appellant's visit to the hospital). Due to the uncertainty as to which date the RPD was referring to in the Reasons and at the RPD hearing, the RAD offers no opinion on this. [33] The documents submitted to the RPD: The RPD provides the following reasons for giving very little weight to the Appellant's personal documents submitted in support of his claim. "...The panel also gives very little probative value to these documents given the credibility concerns, as set out earlier; and also the fact that the documentary evidence in the NDP (National Documentation Package) describes the availability of fraudulent documents from the claimant's country."22 [34] Since the RPD has relied on unreasonable adverse credibility findings, at least, in part, to give very little probative value to the Appellant's personal documents, the RAD finds the RPD's conclusion in this regard to be unreasonable. [35] For the foregoing reasons, the RAD finds the RPD's adverse credibility findings unreasonable. In this regard, the RAD finds the RPD's Reasons for decision lack transparency, justification, and intelligibility. Nexus [36] The RPD found that the claim does not establish nexus to the Convention. The Appellant submits that the claim establishes nexus to the Convention, i.e., political opinion. [37] The evidence in this case shows that the Appellant had taken significant steps to file his complaint against the corrupt police officers, to the authorities. He had engaged a lawyer; through his lawyer, on XXXX XXXX, 2013, he submitted a formal complaint against the police to the XXXX State Commissioner of Police, with a copy to the Inspector General of Police to investigate the Appellant's ordeal with the police. In his petition, the Appellant had challenged the integrity of the entire police hierarchy in Nigeria. Moreover, in his formal complaint, he has included names of persons, involved and/or complicit in the ordeal perpetrated, including the name of the leader of team of officers who arrested him on XXXX XXXX, 2013. In his petition to the authorities, the Appellant states that "...it is reprehensibly against our constitutional provision that constituted authorities, entrusted with the lives and security of the citizen should debase the very same laws and values they sworn to protect."23 [38] Considering the totality of the evidence adduced at the RPD, the RAD finds the RPD did not adequately deal with the issue of nexus. The RPD states in its Reasons for decision: "Even if the panel had found the claimant's allegations to be credible, the panel determines the claimant is a victim of corruption and therefore the claim pursuant to section 96 of the Act is rejected. In other words, the panel did not find that the claimant's fear of persecution is by reason of any of the five Convention grounds, specifically related to his race, religion, nationality, political opinion, or membership in a particular social group."24 [39] The above shows that the RPD's reasons are not transparent, and are not justifiable in view of the evidence adduced in this case. In this respect, the RAD finds the RPD erred in mixed fact and law. Generalized Risk [40] The RPD found that the risk faced by the Appellant is one of a generalized risk of corruption in Nigeria. [41] The Appellant was initially targeted for extortion by the police officers. Since the Appellant refused to comply, he was arrested and put in jail where the officers ordered the inmates to beat him. He was extorted of N250,000.00. His family paid N50,000.00 in bail for his release. The Appellant engaged a lawyer; through his lawyer, on XXXX XXXX, 2013, he submitted a formal complaint against the police to the XXXX State Commissioner of Police, with a copy to the Inspector General of Police to investigate the Appellant's ordeal with the police. [42] On XXXX XXXX, 2013, four officers from the office of the XXXX State Commissioner of Police visited the Appellant's store and demanded that he withdraw his complaint; he was also beaten on that day. The officers were giving him instructions saying that he had three days to write back to the commissioner's office, and recant what he had stated in his petition. The Appellant was threatened that if he were not to comply with their instructions, they would arrest him for lying against the police. [43] On XXXX XXXX, 2013, the officers returned to the Appellant's store and assaulted his brother XXXX after he refused to disclose the Appellant's whereabouts. Thereafter, the Appellant went into hiding at his cousin's house, and later went to a friend's house; they helped the Appellant to flee Nigeria. The Appellant testified that his life would be at risk at the hands of the authorities and the police in Nigeria upon return because they would want to silence him forever. [44] The evidence shows that the officers were specifically targeting the Appellant. They continued to pursue the Appellant, above and beyond as in situations involving general extortion demands and assaults by corrupt police officers experienced by the population in Nigeria at large. The RAD finds the RPD erred by failing to consider within the framework of generalized risk analysis that the alleged perpetrators were pursuing to harm this Appellant and would upon return today because they would want to silence him in order to protect themselves. In the circumstances of this case, the risk to the Appellant has gone beyond general extortion demands and assaults by corrupt police officers. The RPD did not consider the facts in the case showing that the Appellant has a heightened risk of harm as an opponent of the Police compared to general extortion demands and assaults by corrupt police officers experienced by the population in Nigeria at large. [45] For these reasons, the RAD finds the RPD erred in mixed fact and law in finding that the risk faced by the Appellant is one of a generalized risk of corruption in Nigeria. [46] Based on all of the foregoing reasons, the RAD finds the RPD's decision to reject the Appellant's refugee claim does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [47] As outlined in the foregoing, the RAD finds the RPD erred in fact and mixed fact and law. Therefore, the RAD cannot confirm the RPD decision, and must either substitute its own determination or refer the matter back to the RPD for re-determination. [48] The RAD finds the RPD's credibility findings unreasonable. The RPD erred and misapprehended the Appellant's evidence. The RPD also erred in fact and law in its findings relating to nexus and generalized risk. The RAD finds there is insufficient evidence in the RPD record upon which the RAD could base its own determination. [49] In order to make its own determination, it would be necessary for the RAD to convene an oral hearing in this case. It is clear from Section 110(3) of the IRPA that the oral RAD hearings are to be the exception, as the RAD "must proceed on the basis of the record of the proceeding of the Refugee Protection Division...."25 Section 110(6) of the IRPA gives the RAD discretion to hold a hearing if there is new documentary evidence which meets certain requirements, including that it is central to the decision with respect to the refugee claim.26 The Appellant has submitted no new evidence. Therefore, the RAD cannot hold an oral hearing in order to make its own determination. [50] If the RAD were to provide its own determination in this case, it would be necessary for the RAD to rehear the entire refugee claim. The IRPA prohibits RAD from rehearing evidence that was presented to the RPD.27 [51] For these reasons, the RAD cannot confirm the RPD decision, cannot substitute its own determination, and cannot hold an oral hearing in this case; therefore, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. DETERMINATION [52] The Appeal is allowed. The RAD refers the matter back to the RPD for re-determination by a differently constituted panel, as per Section 111(c) of the IRPA. (signed) "S.S. Kular" S.S. Kular July 16, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant's Record, Memorandum of Argument, paras. 3-5. 3 IRPA, Sections 110(3) and 110(6). 4 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 5 Iyamuremye c. Canada (Citoyenneté et Immigration) 2014 CF 494, para. 39. 6 IRPA, Section 3(2)(e). 7 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 8 Iyamuremye, para 1. 9 Iyamuremye, paras. 39-40. 10 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 11 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 12 Dunsmuir, para. 47; Iyamuremye, para 3. 13 Dunsmuir, para. 50. 14 Khosa, para. 90. 15 Dunsmuir, para. 50. 16 Khosa, para. 89. 17 Exhibit P-2, Appellant's Record, Reasons (RPD's Reasons and decision), para. 10. 18 Exhibit P-2, Appellant's Record, Memorandum of Argument, para. 10. 19 Exhibit P-2, Appellant's Record, Reasons (RPD's Reasons and decision), para. 16. 20 Exhibit P-2, Appellant's Record, Reasons (RPD's Reasons and decision), para. 13. 21 RPD-1, The RPD Record - Exhibits entered at the RPD hearing; Exhibit C-1-the BOC narrative, paras. 12-13; and C-10 the sworn affidavit of XXXX XXXX, paras. 3 and 10. 22 Exhibit P-2, Appellant's Record, Reasons (RPD's Reasons and decision), para. 15. 23 Exhibit RPD-1, Exhibits entered at the RPD hearing; Exhibit C-12 Copy of Petition to Commissioner of Police - XXXX Chambers. 24 Exhibit P-2, Appellant's Record, Reasons (RPD's Reasons and decision), para. 17. 25 IRPA, Section 110(3). 26 IRPA, Section 110(6). 27 IRPA Section 112(2)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français