TB3-09195

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 : TB3-09195 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 25, 2014 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Guoba 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 (the Appellant), a citizen of the Republic of India (India), 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 but he has requested an oral hearing for the purpose of assessing his credibility. The Appellant asks the Refugee Appeal Division (RAD) to consider whether the decision of the RPD, that the Appellant was neither a Convention refugee nor a person in need of protection, was 'the right one or not'. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BASIS OF THE CLAIM [3] The Appellant alleged before the RPD that he and his father experienced threats and abuse from competitors. The police refused to take action when one of their trucks was stopped and the goods stolen. The Appellant further alleged that members of a political party attacked him and his father because they refused to contribute to a Sri Lankan rehabilitation fund, and the police made no attempt to help. The Appellant alleged as well they experienced extortion by the police; and he was made to report to the police when requested where he was subject to abuse. He also alleged he was forced by the police to confess to being a Naxalite (a Maoist militant group) and he was told to provide information about Naxalites in Tamil Nadu within two months or he would be arrested and tortured. He fears these false allegations would cause him problems anywhere in India. THE MINISTER OF CITIZENSHIP AND IMMIGRATION INTERVENTION AT THE RPD [4] The Minister intervened in the Appellant's refugee claim hearing on May 24, 2013. The Minister submitted that there existed material credibility concerns regarding the Appellant's account concerning his fear of persecution. In particular, the Minister noted the lack of specific information concerning his alleged fear of the local police. The Minister further submitted that there were material inconsistencies in regard to the Appellant's work experience. The Minister submitted as well that there was no documentation that would corroborate the existence of the Appellant's trucking business, and the loss and looting of trucks at the hands of competitors and the police. The Minister provided documentary evidence of the Appellant's interview at the Minister's Delegate Review. The Minister believed the Appellant revealed his true intentions in answer to questions to which the Appellant responded he intended to stay in Canada to work for three to four years. On the basis of these submissions the Minister further submitted that the claim be dismissed for lack of credibility. In the alternative, the Minister further submitted there is not a reasonable chance that the Appellant would experience persecution if he returned to India, and in the further alternative that the Appellant has resort to an Internal Flight Alternative. THE RPD DECISION [5] The Appellant's refugee claim was heard on September 18, 2013. The RPD rejected the Appellant's claim in written reasons provided on November 22, 2013, in which the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD indicated the determinative issues in this claim were the credibility of the Appellant's allegations and whether there is an Internal flight Alternative available to the Appellant elsewhere in India. [6] The RPD noted that the issue of proper interpretation was raised by counsel at the outset of the hearing, as the Appellant was an Indian Tamil-speaker and the interpreter was a Sri Lankan Tamil-speaker. The RPD ascertained that the interpreter had previously interpreted in many Indian Tamil-language refugee hearings without difficulty. The RPD further noted that the Appellant did not mention any difficulties in this regard during the RPD's questioning. During counsel's examination, the Appellant stated he was experiencing difficulty with interpretation. The RPD indicated, however, that when the RPD intervened and queried the Appellant regarding counsel's questions, it was apparent there was no misunderstanding on his part. The RPD noted that no other difficulties or objections were raised regarding the quality of interpretation by the Appellant or counsel during the balance of the hearing. [7] The RPD found there was insufficient credible and trustworthy evidence to support the Appellant's allegations that he would face a serious possibility of persecution at the hands of the police anywhere in India. In particular, the RPD drew a negative inference from the Appellant's failure to mention in his Basis of Claim form (BOC) the name of the individual who threatened him or this individual's alleged contacts with the police. The Appellant's explanation that he was nervous at the time was rejected as this individual's actions and police contacts were in the words of the Appellant, "the root of his problems in India", and as well that the Appellant had the assistance of counsel. [8] The RPD cited documentary evidence that indicated Naxalite activity occurred in 20 of India's 28 states, not including Tamil Nadu. In this regard, the RPD found that the Appellant did not corroborate his allegations with credible evidence or testimony that he has been, and would continue to be, sought by police if he were to return to India for purported Naxalite connections. The RPD noted that, in spite of his testimony that he was forced to report to the police on a weekly basis because of these false accusations, the Appellant stated he was never charged or given anything in writing about his reporting requirements. The RPD further noted that the Appellant had embellished his testimony in this regard, as in his BOC form he wrote that he reported when required by the police 'a few times'. The RPD drew a negative inference in regard to the Appellant's failure to provide consistent and corroborative testimony with respect to his allegations of his contacts with police. In the context of the RPD's cumulative credibility findings and negative inferences, the RPD further found, on a balance of probabilities, that the Appellant had not been accused of Naxalite sympathies, and that he would not be sought by police in India for any reason. [9] The RPD considered the evidence and jurisprudence pertaining to any Internal Flight Alternative (IFA) available to the Appellant in a large Indian city such as Mumbai or Chennai. The RPD noted the two-prong test in case law requiring there be no serious possibility of the Appellant being persecuted in the proposed IFA, and that it would not be unreasonable, in all the circumstances, for the Appellant to seek refuge there. The RPD found that despite the credibility findings noted above, if the Appellant's allegations of false accusations against him by the local police were true, the evidence does not establish that there is a serious possibility he would face mistreatment or persecution at the hands of the police elsewhere in India, such as Mumbai or Chennai. In this regard, the RPD found the Appellant had not established with credible and trustworthy evidence that the agents of persecution, either XXXX, a competitor, or the local police in his hometown, would have the ability or motivation to locate him in such a large city. [10] The RPD noted the Appellant had not provided any evidence to show his name had been entered into police records or communications systems. The RPD cited evidence that indicated the police communicate with each other across different cities and states to find persons of interest, including criminal suspects, witnesses of crimes, and potential threats to national security, but noted the Appellant did not fall into any of these categories. In regard to whether it was reasonable for the Appellant to re-settle in Mumbai or Chennai in his particular circumstances, the RPD noted the Appellant was a young man without dependents, with work experience and a driver's license, indicating transferrable skills. The RPD found there appeared to be no obstacles to his re-location elsewhere in India. [11] The RPD considered the Appellant's testimony that there was hostility to Tamil-speakers elsewhere in India, and that local police would be suspicious of newcomers anywhere in India. In this regard the RPD noted the diversity of the Indian population and the lack of any persuasive evidence that Tamil-speakers, or outsiders in general, face a serious possibility of harm merely on the basis of their home region. The RPD found that the Appellant's assertions in this regard were speculative, and that he would not face either a serious possibility of harm or of adverse conditions that would jeopardize his life or safety, in a large city such as Mumbai or Chennai. [12] The Appellant submits that the RPD erred in its assessment of evidence and consideration of credibility; and that the RPD placed an impossibly high onus on the Appellant to establish that the Tamil Nadu police would have an interest in him in a different locale, and that there was no possibility of an Internal flight Alternative. This Appeal therefore raises questions of fact and mixed fact and law. STANDARD OF REVIEW [13] The Appellant submits that the RAD owes no deference to an RPD decision as the RAD is not a superior court and has the same level of expertise as the RPD. The Appellant further submits that the best analogy is to the Immigration Appeal Division (IAD), which conducts de novo hearings and gives no deference to visa officers or the Immigration Division. The RAD disagrees. [14] 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. [15] In Dunsmuir,1 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,2 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. [16] In Newton,3 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. [17] 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 the 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. [18] 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. [19] The nature of the question in issue: In this appeal, the questions in issue are ones of fact, and mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [20] 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. [21] 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. [22] 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. [23] 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." [24] 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. [25] 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 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,12 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [26] 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.13 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...." [27] 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. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [28] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to the factual and credibility findings of the RPD. 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.15 [29] The appropriate standard of review in these appeals 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.16 THE APPELLANT'S MEMORANDUM OF ARGUMENT [30] In regard to the RPD's credibility findings, the Appellant submits that the RPD did not directly address such factors as the passage of time, different interpreters and cultural differences. In this regard the Appellant further submits that the RPD did not consider the fact that some of the 'events' found to lack credibility or to have contained material omissions involved actions which the Appellant had not personally witnessed, such as why his persecutor, XXXX, involved the police in a business dispute. [31] The RAD notes that the RPD specifically indicated it was cognizant of the difficulties claimants face in establishing their claims, including cultural factors, and the stress responding to questions through an interpreter. The RAD further notes no specific evidence was disclosed regarding any cultural constraints. The RAD notes as well the RPD dealt with a possible interpreter problem in the hearing, and no objections were raised by either the Appellant or counsel after the RPD's intervention. In regard to the alleged persecutor, XXXX, the RAD notes the issue concerned the Appellant's failure to mention his name or alleged contacts with the police in his documentary evidence. The RAD finds the RPD's actions and findings in this regard were reasonable. [32] The Appellant submits the RPD made significant errors in its analysis regarding police accusing the Appellant of being a Naxalite. The Appellant further submits it was totally irrelevant that there was no Naxalite activity in Tamil Nadu and that local police used this allegation only to justify persecuting the Appellant and his family. The RAD disagrees and finds the lack of credible information regarding any Naxalite activity in Tamil Nadu undermines any possible charge that the Appellant was a Naxalite activist in Tamil Nadu. The RAD further finds that this evidence, in the context of the Appellant's failure to provide any corroborative credible evidence to support his allegation that he would be sought by police if he were to return to India for purported Naxalite connections, further undermines his assertion of subjective fear if he were to return to India. The RAD notes, as well, that the Appellant's assertion that the local police accusation concerning his alleged Naxalite activity was merely a means to justify persecuting the Appellant indicates that it was unlikely there would be any pursuit of the Appellant through contact with other police agencies in India. [33] In regard to the RPD finding that an Internal Flight Alternative was available to the Appellant, the Appellant submits that the RPD placed an impossibly high onus on him to establish that the Tamil Nadu police would have an interest in him in a different locale. The Appellant further submits that even if the Tamil Nadu police were not actively looking for him throughout India, there was more than a mere possibility that his location would become known to the Tamil Nadu police if he were to have an encounter with Mumbai or Chennai authorities. The RAD disagrees. [34] The RAD finds that the RPD provided a full and appropriate analysis concerning the availability of an Internal Flight Alternative on the basis of the two-prong test established in Federal Court case law. The RPD noted in this regard the Federal Court decision in Singh in which the Court reiterated the principle that the threshold for the 'objectively unreasonable' standard is very high and requires, at a minimum, the proof of adverse conditions which would jeopardize the life and safety of the appellant in relocating to a safe area. The RAD notes that no such evidence was disclosed and finds the onus on the Appellant to provide such evidence is reasonable and based in case law, and that the RPD finding in this regard is reasonable. APPLICATION FOR AN ORAL HEARING [35] The Appellant seeks an oral hearing pursuant to section 110(6) of IRPA. [36] Section 110(3) of IRPA requires that the RAD proceed with a hearing on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Applicant. The person who is the subject of the Appeal may, pursuant to section 110(4), present "only evidence that arose after the rejection of the 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." [37] According to section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4). [38] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [39] The Appellant has submitted no new evidence in support of his claim. As such, the RAD must proceed without a hearing in his appeal, and his application for an oral hearing is denied. DISPOSITION [40] Pursuant to section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [41] The appeal is dismissed. (signed) 'Milton Israel' Milton Israel March 25, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 4 Newton, 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 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------