TB3-08960

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 : TB3-08960 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 28, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker 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(the Appellant), a citizen of the Democratic Republic of Congo (formerly Zaire), appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and either find him to be a Convention refugee or a person in need of protection or refer his claim back to the RPD for redetermination by a differently-constituted panel. [2] The Appellant did not submit new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act), and the Appellant is not seeking a hearing pursuant to subsection 110(6) of the IRPA. 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 Appellant is neither a Convention refugee nor a person in need of protection. This Appeal is dismissed. Background [4] The Appellant alleges a well-founded fear of persecution due to his physical appearance which he attributes to be that of a Rwandan. He left the Democratic Republic of Congo (DRC) in 2005 for South Africa where he obtained Refugee Status in 2008. [5] The Appellant is targeted because his physical appearance is that of a Rwandan; he was denied an electoral card for the 2006 elections and was being questioned by the security forces about his nationality and background. [6] The Appellant left South Africa on XXXX XXXX, 2013, arrived in Canada XXXX XXXX XXXXand claimed protection in June, 2013. [7] His claim was heard by the RPD on October 10th, 2013. In a decision dated November 08, 2013, the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. In reaching this decision, the RPD found that the Appellant was generally credible, and he has a viable Internal Flight Alternatives (IFA) in Bukama or Malemba in the province of Katanga, DRC. [8] The Appellant submits that the RPD erred in its assessment of the Appellant's credibility and IFA. [9] The Appellant requests that "this appeal be granted". Standard of Review [10] The Appellant made submissions on standard of review that: the RAD is not a superior court and is not required to engage in standard of review analysis; that the RAD should not defer to the findings of the RPD; if there is new evidence the RAD hearing would be a de novo hearing; and if there are errors of fact, the case must be re-determined by the RPD. [11] The Appellant raised the issue regarding the RPD finding and states that the RPD erred in its credibility assessment and points out two factors: the fact that the claimant is perceived as Rwandan and as such was suspected of supporting Rwandan rebels; and that he feared persecution based upon the fact that his wife shares the same last name as the president, supported a well-founded fear of persecution in areas outside the proposed IFA. The Appellant also submits that the RAD erred in its IFA analysis and thus its determination. [12] In this appeal, the Appellant was found to be generally credible; the issue of whether there is an IFA available to the Appellant is still the determinative issue. [13] Based on the foregoing, I am going to consider only the IFA as the determinative issue. The IFA is a question of mixed law and fact, as will be shown by the following analysis. The IFA involves the application of a legal test to the facts of the case, and, in assessing IFA, the RPD must apply the two-pronged test set out in Rasaratnam1 to the specific circumstances of a refugee claimant when considering a prospective IFA location. [14] The Immigration and Refugee Protection Act (IRPA or the Act) sets out the grounds for appeal as well as possible remedies; however, it does not specify the standard of review to be applied by the RAD. [15] In Dunsmuir,2 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 because it is not a reviewing court but rather an administrative appellate body. In Khosa,3 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, 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] It is important to consider the respective roles of the RPD, the tribunal of first instance and the RAD, the appellate tribunal by interpreting the enabling legislation IRPA. The RPD's principal role is to hold hearings to take evidence from the claimants before it and to determine whether refugee claimants are Convention refugees or persons in need of protection.5 [18] 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 determination, set aside that determination and substitute another, or refer the matter back to the RPD for re-determination. [19] 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. [20] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.6 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. [21] 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. 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." [22] Subsection 111(1)(b) of the IRPA 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. Moreover, 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. [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] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,7 and each can take notice of information and opinion within its specialized knowledge.8 In the area of fact finding and credibility assessment, the RPD has an advantage because it holds a hearing in each claim.9 The RAD, on the other hand, may hold a hearing only under certain circumstances, and in most cases it must proceed on the basis of the record of the RPD proceeding.10 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will frequently not 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.11 [26] The RAD also can hold an oral hearing and considers the evidence first-hand under certain circumstances, however the RAD's oral hearing will only pertain to the new evidence and cannot, for the most part, treat the same evidence that was taken at the RPD hearing. [27] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.12 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 the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [28] 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 and on questions of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question at issue is one of fact, and the Courts have consistently held that a trier of fact is better situated to make findings of fact at the first instance.13 The RPD has the opportunity to see and question the refugee claimant, while, in most cases, the RAD may not. Failure to defer to the RPD on matters of fact and on questions of mixed fact and law 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 proceedings would be reduced to little more than preliminary inquiries. [29] For these reasons, the RAD concludes that, in considering this appeal, 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 by reviewing the record before it substitutes its own decision.14 [30] In this appeal, the question in issue whether there is a viable internal flight alternative for the Appellant in New Delhi is one of mixed fact and law, which favours a deferential standard of review,15 and the appropriate standard of review in this appeal thus is one of reasonableness. [31] 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.16 [32] The IFA involves the application of a legal test to the facts of the case, and, in assessing IFA, the RPD must apply the two-pronged test set out in Rasaratnam17 to the specific circumstances of a refugee claimant when considering a prospective IFA location. [33] The question of whether an IFA exists is an integral part of the refugee definition. The RPD and/or the RAD must be satisfied, based on the evidence assessed, on a balance of probabilities, that there is not a serious possibility of the Appellants being persecuted in the proposed IFA. Further, conditions in the proposed location must be such that it would not be unreasonable, in the circumstances, for the Appellants to seek refuge there.18 [34] If the Appellant can indeed find safety from persecution by fleeing within the DRC, then he is not entitled to Canada's surrogate protection. [35] The Appellant allegedly suffered because of his physical appearance to a Rwandan and, as such, was denied an electoral voters card in 2005; he was confronted in the streets of XXXX; he was overlooked for promotion at his place of employment. [36] On the issue of IFA, the Appellant submitted the following:19 The RPD erred in law by finding that the Applicant has the burden of showing that his physical appearance as a Rwandan had led to threats against him, and the fact he had two brothers living in Katanga Province with the same psychical appearances and they had not experienced the same type of discrimination or harassment.20 [37] I do not agree. It is a trite law that the burden is on the claimant to show why the IFA does not exist. The Court in Bindra,21 a 1992 decision stated that the Panel or RPO must raise the possibility of IFA, and the claimant then must demonstrate an IFA doesn't exist. In a more current case,22 the Federal Court stated: [14] The question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when a claimant who otherwise meets all the elements of the Convention refugee definition in his or her home area of the country nevertheless is not a Convention refugee because the person has an internal flight alternative elsewhere in that country. The panel must then apply the two-prong test established by Thirunavukkarasu.23 (1) The panel must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an Internal Flight Alternative exists. (2) Moreover, conditions in the part of the country considered to be an Internal Flight Alternative must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for him to seek refuge there. [15] Once the issue of an internal flight alternative is raised, the onus is on the refugee claimant to show that the option does not exist, by establishing that either of the two Thirunavukkarasu24 criteria is not met. The Federal Court of Appeal in Thirunavukkarasu25 stated that an applicant need only show that there is a serious possibility of being persecuted in the new location. [38] The paragraphs 23 to 29 in the RPD reasons, where the Appellant submits that the RPD erred, state the following: Paragraph 26: The panel has considered the evidence and notwithstanding the claimant's testimony, the panel determines that there is a viable IFA for the claimant in Malemba or Bukama. Therefore, the claimant has not established on a balance of probabilities, that he would be subject personally to a risk to his life or to cruel and unusual treatment, in Malemba or Bukama at the hands of the alleged agents of persecution. Paragraph 27: Counsel further submitted that failed asylum seekers face harsh and severe treatment upon return to the DRC as a report in the documentary evidence suggests. In the report, it provided several examples of failed claimants who were forcibly returned to the DRC from the United Kingdom and the harsh treatment they faced upon their return at the hands of the Congolese authorities.26 The panel, however, notes there is contradictory documentary evidence as it relates to returns to the DRC and the treatment of failed asylum seekers. The Operational Guidance Note; Democratic Republic of the Congo issued by the United Kingdom's Home Office, the more recent report issued in May 2012, makes specific reference to the previous report and notes that "The United Nations High Commissioner for Refugees (UNHCR) noted in 2011, "in January 2011 there were 107, 900 returnee refugees (whose country of origin was DRC) in the country which UNHCR assisted 10, 900. In December 2011 there were 145,500 of which UNHCR assisted 145, 500."27 [39] In the case at bar, it is evident that the RPD considered the Appellant's testimony and his profile, and applied the correct test in its analysis of the IFA. The RAD considered the arguments which were put forth in the Appellant's Record, pages 90-92, paragraphs 21-26. [40] It appears that the counsel, in his Memorandum, is confusing the test for findings of fact (balance of probabilities) with the test for persecution (serious possibility). After considering the above mentioned paragraphs in context and in light of the Federal Court decisions cited above, I find that the RPD did not err in its finding that Malemba or Bukama are a viable IFA for the Appellant. [41] Moreover, the Appellant lived in XXXX, was employed XXXX XXXX XXXX, and fears unknown persons who perceived him as a Rwandan in XXXX. The RPD wrote, in its decision, in paragraph 20, "The claimant testified that he was born in Katanga province of the DRC, and, according to his BoC, describes his ethnicity as that of the Balubakat. The claimant further reported that he has two brothers with whom he shared the same parents who also reside in Katanga province. The claimant was then asked if they share the same physical appearance as him, to which he replied yes. Although the claimant reported that he had not spoken to his brothers in several years, it was his understanding that they had never experienced any type of discrimination or harassment based on their physical features or appearance." [42] In paragraph 21, "In documentary evidence, the panel notes that the claimant possesses a certificate of nationality identifying him as a Congolese national from the Katanga province." [43] It is evident from a review of the RPD's reasons that the RPD considered the documentary evidence,28 and the Appellant's testimony in arriving at its findings and considered appropriate jurisprudence. [44] The RPD also applied the correct two-pronged legal test and considered the Appellant's particular situation that he is a citizen of the Democratic Republic of Congo, speaks local dialects the same as millions of Congolese. The RPD Panel also found that there are no serious economic or social barriers and that it is not objectively unreasonable for the Appellant to seek refuge in any of the two cities proposed. In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect the Appellant in the IFA, and the RPD was alert to that. [45] The RAD finds that the RPD's application of the legal test to the facts of the Appellant's case was reasonable, and that the RPD's finding on IFA falls within the range of possible, acceptable outcomes defensible in respect of the facts and the law. [46] The question of internal flight alternative is integral to both the definition of a Convention refugee and that of a person in need of protection. As the Appellant can find viable internal flight alternatives in his own country, he does not require Canada's surrogate protection. [47] As such, the issue of IFA is determinative in disposing of this appeal, and it is not necessary for the RAD to consider the other grounds raised by the Appellant.29 DISPOSITION [48] 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. [49] This appeal is, therefore, dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho May 28, 2014 Date 1 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 5 IRPA, Sections 96 and 97. 6 IRPA, Section 3(2)(a). 7 IRPA, Sections 170(g) and 171(a.2). 8 IRPA, Sections 170(i) and 171 (b). 9 IRPA, Section 170(b). 10 IRPA, Section 110(3). 11 Khosa, para. 89. 12 Newton, para. 80. 13 Khosa, para. 89. 14 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 15 Khosa, para. 89. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 18 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 19 Appellant's Record, pages 90-92, paragraphs 21-26 20 Appellant's Record page 91, paragraph 24 21 Bindra v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 114 (F.C.A.) 22 X (Re), 2011 CanLII 97828 (IRB) - 2011-10-27 23 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 24 Ibid. 25 Ibid. 26 National Document Package, item 14.4 27 National Document Package, item 2.4, paragraph 5.4 28 Reasons for Decision, paragraphs, 23-28 29 Shimokawa, Oscar Hugo Campos v. M.C.I. (F.C., no. IMM-3925-05), Tremblay-Lamer, April 6, 2006, 2006 FC 445, para. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08960