MB7-01546

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 : MB7-01546; MB7-01547 Private Proceeding / Huis clos Reasons and decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 15, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the respondent Me Vincent Desbiens Conseil de l'intimé Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, the appellants, are Brazilian citizens and they are appealing against the decision of the Refugee Protection Division (RPD). The appellants did not submit any new evidence as part of their appeal and they did not request a hearing. They argue that the RPD committed a fatal error when it failed to consider a relevant factor, namely their testimony at the first hearing before the RPD. [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD determination. I. BACKGROUND A. Summary of alleged facts [3] In their Basis of Claim Forms (BOC Forms), the appellants state that their lives have been in danger in Brazil since the female appellant was abducted and raped by an individual who went after her because her brother had witnessed a police officer demanding bribes from a drug trafficker in Belém in the state of Para, Brazil. They also claim that, after the female appellant managed to escape, she and the man who became her husband were threatened by the individual in question.1 [4] Other than the BOC Form, the appellants, who were then referred to as claimants, submitted documents as evidence before the RPD. 2 B. RPD decision [5] There was an initial hearing before the RPD on May 30, 2016; however, the member who presided over that hearing left the RPD before finalizing the decision.3 A second de novo hearing was therefore held on January 19, 2017, before another member of the RPD. This member rendered an oral decision at the end of that hearing. [6] In its decision, the RPD concludes that the claimants' testimonies before it were rife with omissions, contradictions, inconsistencies and inconsistent behaviour that undermined their credibility.4 II. GROUNDS OF APPEAL AND DECISION SOUGHT [7] In their memorandum, the appellants argue that the RPD's failure to listen to the recording of their testimony at the first hearing, the one held on May 30, 2016, was a fatal error that vitiated the entire decision. They add that the analysis conducted at the hearing of January 17, 2017, is erroneous because it is incomplete because the recording of their testimony at the first hearing is part of the record, but the RPD did not listen to it. [8] In conclusion, the appellants request that the Court [sic] set aside the determination of the member assigned to their file and allow their refugee protection claim or refer the matter to the RPD for re-determination by a new member.5 III. APPLICABLE STANDARD OF REVIEW [9] The RAD reviews RPD decisions applying the correctness standard of review after conducting its own analysis of the record. The exception to that rule is when the RPD enjoys a meaningful advantage in assessing credibility.6 That being said, the RAD's role is not to carry out a de novo consideration of refugee protection claims, but rather, to determine whether, as the appellants claim, the RPD did indeed err.7 [10] After conducting my own analysis of the record, I am of the opinion that the correctness standard of review must be applied, given that my own decision requires the evaluation of some elements for which the RPD did not enjoy a meaningful advantage by relying on a first-hand observation of the claimants' behaviour.8 IV. ANALYSIS OF THE APPEAL [11] Having applied this standard of review, I am of the opinion that the appellants' argument that the RPD committed a fatal error at the hearing of January 17, 2017, by not listening to the recording of the hearing of May 30, 2016, is unfounded. Here is why. [12] In rendering its oral decision on January 17, 2017, the RPD conducted a thorough assessment of the claimants' credibility, after ensuring at the start of the hearing that the forms and documents submitted as evidence, including the amendments made a few days before the hearing, were complete, true and correct and well understood by the claimants.9 Its assessment and findings regarding the claimants' credibility were based on their testimony during that hearing and on the various documents that were submitted as evidence. In other words, on January 17, 2017, the RPD never confronted the claimants with parts of their testimony of May 30, 2016, and never drew conclusions regarding the contradictions, omissions or inconsistencies by comparing the testimony delivered before it with that of the hearing of May 30, 2016. [13] It is true that the claimants' testimony on May 30, 2016, was included as evidence. It is also true that the member stated at the hearing of January 17, 2017, that he had not listened to the recording of that testimony, but that he could do so if required. The claimants' lawyer indicated that he had obtained that recording and listened to it; he also referred to it when the issue came up regarding the originals of the documents submitted to the RPD for the hearing on May 30, 2016.10 [14] Having conducted my own analysis and considered the case law,11 I am of the opinion that the RPD did not commit any error. In fact, if required, it could have used the recording of the hearing of May 30, 2016; on January 17, 2017, it was conducting a de novo hearing, and it was not required to do so. Furthermore, the claimants' counsel, who had listened to the recording, had the required latitude at the hearing of January 17, 2017, to raise any issue on that subject, either to reinforce the claimants' testimony or to introduce any new elements for the RPD to consider in its analysis. [15] In their memorandum, other than the general argument presented, which is unfounded in my opinion, the appellants had all the latitude required to present full and detailed submissions that could establish what errors the RPD committed because it had not listened to the recording of the hearing of May 30, 2016,12 but they did not do so. [16] Similarly, they did not present any full and detailed submissions regarding the errors that the RPD allegedly committed by proceeding as it did, which is to say, in analyzing their testimony of January 17, 2017, as well as the documents submitted as evidence. The onus is on the appellants to raise any potential grounds of appeal that arise from the RPD decision; the RAD has no responsibility to consider any other grounds.13 CONCLUSION [17] For these reasons, I confirm the RPD determination that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not Convention refugees pursuant to section 96, or persons in need of protection pursuant to section 97 of the IRPA. [18] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette November 15, 2018 Date IRB translation Original language: French 1 The appellants' BOC Forms are reproduced on pages 10 to 28 of the RPD record. 2 These documents, which include the amendments to their BOC Forms, are reproduced on pages 139 to 199 of the RPD record. 3 Recording of the RPD hearing of January 17, 2017, 03:00 to 04:00. 4 RPD Reasons and Decision, January 13, 2017, pages 3 to 7 of the RPD record. 5 Appellants' memorandum, March 20, 2017, pages 16 to 22 of the appeal record. 6 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145, paragraph 105. 7 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 8 Canada (Minister of Citizenship and Immigration) v. Abdul Salam, No. IMM-5358-17, Grammond, July 3, 2018; 2018 FC 676, paragraph 16. 9 Recording of the RPD hearing of January 17, 2017, 15:00 to 23:30. 10 Ibid., 9:00 to 10:30 and 14:15 to 14:45. 11 Cheema v. Canada (Minister of Citizenship and Immigration), No. IMM-694-14, Noël, November 17, 2014; 2014 FC 1082, paragraph 25. Kabengele v. Canada (Minister of Citizenship and Immigration), No. IMM-1422-99, Rouleau, November 16, 2000; 2000 CanLII 16629 (FC), paragraph 45. 12 RAD Rules, SOR/2012-257, subparagraphs 3(3)(g)(i) and (ii). 13 Ilias v. Canada (Minister of Citizenship and Immigration), No. IMM-5152-17, Bell, June 27, 2018; 2018 FC 661, paragraph 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la RAD / RAD File No.:MB5-04774 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB7-01546; MB7-01547 5