TB4-01478

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 : TB4-01478 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 20, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie 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) is a citizen of Nigeria and she is appealing the Refugee Protection Division's (RPD's) determination which rejected her claim for refugee protection. [2] The Appellant did not submit new evidence in support of her appeal and wants an oral hearing at the RAD, which is not permitted without new evidence being accepted at the RAD. [3] The Appellant wants the RAD to set aside the RPD decision and substitute it with a positive decision or alternatively refer the matter back to the RPD for re-determination. Determination [4] 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 [5] The Appellant alleged before the RPD that she married in a traditional church wedding on XXXX XXXX, 2013, and became pregnant the XXXX XXXX. After returning from her honeymoon in XXXX XXXX the news of her pregnancy was shared with the extended family. In XXXX 2013, her parents-in-law told her and her husband to attend a family meeting with the elders from her father-in-law's village in the village XXXX. During this meeting, the village elders announced that she would have to perform certain rituals that include making promises to be forever faithful to her husband, sacrificing a white fowl, and drinking an unknown concoction while swearing allegiance to an idol. [6] They told village elders that she and her husband are Christians, and their religious beliefs do not permit such rituals, and they returned home to XXXX. In XXXX 2013, she received a number of threatening telephone calls from villagers to go through with the rituals. She reported to the police who did not help. Emissaries from village elders came twice to tell her to come back and threaten her. She fled to XXXX to hide from the village elders. She went to the USA on a visa and, after a stay of more than XXXX XXXX, entered Canada illegally and claimed protection. [7] The RPD stated that "So given those cumulative credibility concerns surrounding your allegations of persecution and harm, I disbelieve your story.", and found that the Appellant had not established that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would personally be subjected to a danger of torture or face a risk to life, or a risk of cruel and unusual treatment or punishment upon return to Nigeria. [8] The Appellant did not submit new evidence in support of the appeal and is not requesting a hearing before the RAD. The Appellant wants the RAD to set aside the RPD's determination and substitute it with a positive decision or refer the matter back to the RPD for redetermination. [9] Since there is no new evidence, this appeal will be considered based on the Appellant's record and memorandum, and the RPD record. Analysis Standard of Review [10] The Appellant did not make submissions on what should be the appropriate standard for review. The Appellant submits that the RPD "perversely erred and committed errors" in its credibility findings. This is an issue of fact. [11] The Immigration and Refugee Protect Act (IRPA or the Act) does not provide direction or guidance as to what is the appropriate standard of review to be applied in its appeals brought before it. [12] In Dunsmuir,1 the Supreme Court of Canada concluded that there are two standards of review: correctness and reasonableness. [13] In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute. This case was not specifically in the context of an appeals tribunal charged with reviewing the decision of a tribunal of first instance. [14] 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:3 (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. [15] The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.4 The subject of the RPD proceedings or the Minister may appeal decisions of the RPD to the RAD. The appeal may be regarding a question of law, a question of fact, or a question of mixed law and fact. The Immigration and Refugee Protection Act empowers the RAD to determine questions of jurisdiction as well as questions of law and fact. The RAD is charged with a review of the appeal and determines whether to confirm the RPD's decision; or set aside that determination and substitute another; or refer the matter back to the RPD for redetermination with or without directions it deems appropriate. [16] The respective roles of the RPD and the RAD in the Act suggest that deference is owed to the RPD on findings of fact, or findings of mixed fact and law, that the RPD finds based on the evidence and the testimony of the refugee claimants given at the RPD hearing. However, in cases where the RAD accepts new evidence, relatively less deference may be owed to the RPD because the RPD did not have the new evidence before it. [17] 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. [18] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.5 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. [19] 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. [20] 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." [21] 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. d: The Expertise and Advantageous Position of the Tribunals: [22] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,6 and each can take notice of information and opinions within its specialized knowledge.7 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,8 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 proceeding.9 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will not have this opportunity in all cases. Despite several similarities between the two tribunals, this fact that the RPD directly takes testimony suggests that the RPD is owed deference on findings of fact, particularly in respect to credibility,10 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence firsthand. e. The Need to Limit the Number, Length and Cost of Appeals: [23] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.11 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 important objective of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [24] The interpretation of the legislation as a whole, and the 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, other factors suggest 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. If the question is one of fact, the Courts have held that triers of fact are better situated to make findings of fact at first instance.12 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 proceedings would be reduced to little more than preliminary inquiries. [25] 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 the 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.13 Thus, the RAD does not agree with the Appellant's submission that the RAD should not defer to the findings of the RPD. [26] The issues in this appeal concern findings of fact where the appropriate standard of review is 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.14 The RPD's Determination [27] The RPD's determinative issues were lack of evidence to support well-foundedness of fear of persecution, and credibility, and the RPD found that the Appellant lacked both. The Appellant obviously disagrees. I will consider each of the issues raised by the Appellant. [28] The first issue raised by the Appellant is regarding her failure to claim in the USA where she stayed for more than XXXX XXXX and made enquiries about her claim. The RPD stated on this issue the following: There is an expectation at law that when someone is fleeing their country of nationality because they fear for their life that they will seek protection at the first reasonable opportunity. Your behaviour while in the United States - a signatory country to the Refugee Convention - spent researching the American asylum system and subsequently using an agent to travel unlawfully into Canada is not consistent with someone having a well-founded fear. In addition to your failure to seek protection in the United States, I noted a number of credibility concerns and implausibilities with your evidence. [29] The RPD did not look at the failure to claim in isolation, it is but one of the many factors the RPD identified. In Lopez, a 2014 case, the Federal Court15 stated: [35] Although the failure to claim refugee status in another country is not determinative of a lack of subjective fear, it is a relevant factor which also affects credibility16 [30] The RPD considered her explanation that she wanted to come to Canada to be with her husband. Her profile indicates that she is well educated, holds a B.Sc degree and is sophisticated; and the RPD also considered Gender Guidelines. Therefore, I cannot find that the RPD erred by considering failure to claim in the USA as one of the many factors in impugning the Appellant's credibility. [31] The next issue raised by the Appellant is "that the panel perversely misconstrued and misapplied the evidence when it impugned the Appellant's credibility at pages 4 to 8 of its reasons when it concluded that the Appellant's claim is based on religious persecution. The Appellant submits that she stated in her BOC and further testified that she fears persecution in Nigeria in the hands of her husband's family who wants to force her to perform traditional rituals and that she refused because she is a Christian". [32] A careful review of the Basis of Claim (BOC), the RPD reasons and listening to the audio record of the actual hearing, I find that the RPD was correct in finding religion as the nexus to the Convention. The Appellant seems to suggest membership in a particular social group - fear from her in-laws. I disagree. The Appellant, in my opinion, comes across clearly as stating that even though the first meeting was arranged by her in-laws, the fear and threats are from the village elders and her father-in-law was not even aware of what was involved with the ritual. I note that the RPD wrote in its reasons, "Both you and your husband testified that your in-laws were strongly opposed to the rituals that were being asked of you". Moreover, it is her father-in-law who warned her, which the counsel mentions in his paragraph 5. [33] I am surprised that counsel submits that the alleged agents of persecution are the parents-in-law of the Appellant. I reviewed the audio recording and it confirms that the RPD member correctly found that the village elders are the agents of persecution. The Appellant's relevant statements and time mark on the audio recording are as follows: Time Mark Statement 19:23: fear elders from husbands village 28:23; the chief was scheduling and was the spokesperson 40:20 fear elders, threats by elders 48:40 religion as nexus 53:12 report to police threats by elders 1:13:40 Parents-in-law warned her that elders planning to abduct her 2:02:25 Counsel, in his submissions, states parents-in-law not in support of claimant performing rituals 2:16:00 After the counsel submitted several times threats from in-laws, the member asks for clarification and counsel confirms in his submission that the threats to the Appellant are from village elders. [34] Based on the foregoing, I find that the RPD did not err in identifying who the Appellant fears in Nigeria and that religious belief is the nexus to the Convention. [35] The next issue raised by the Appellant is regarding that the RPD erred when she was not fully aware of her husband's father's village; and the details about the alleged rituals. The RPD wrote, "I found it somewhat surprising that you were unable to spell the name of the village and that your counsel was forced to spell it for you, given that this is your story of persecution". I note that the Appellant is a university graduate and thus the RPD was reasonable in showing some concern; however, the RPD does not seem to have used this finding for impugning her credibility. Thus, this concern of the Appellant is not material. [36] Regarding the rituals, the RPD expressed concerns about her in-laws taking the Appellant, when she was pregnant, for a nine-hour car ride to her father-in-law's ancestral village for a ritual of their village elders and they don't even know what the ritual is until they reach the village. The RPD is not wrong to have concerns that it stated, "Compounding my concern is that this is your father-in-law's tribe, his customs, and his elders. So for him not to know his own traditions and to expose you to risk is simply not credible". The RPD raised concern to the Appellant and took into consideration her explanation, arrived at its finding and provided cogent reasons; thus I cannot find this finding to be unreasonable. [37] The next issue raised by the Appellant is about how the Appellant learned about the threat that she would be abducted. The RPD pointed out the contradiction to the Appellant about how she found out about the alleged plans by the village elders to abduct her - through her in-laws or through the two emissaries of the village elders. The RPD gave the Appellant the opportunity to respond to clarify the contradiction and did not find the explanation reasonable. The Appellant states that her testimony was consistent; however, the Appellant does not explain how her testimony was consistent. Based on what I have read and heard, I do not agree with the Appellant. [38] The next issue raised by the Appellant is in paragraph 6 of the memorandum about the RPD's plausibility concern, which states "find it implausible that you would have received several threatening telephone calls from village elders in XXXX 2013, and then two visits from emissaries and that you were never removed and taken back to the village. I do not accept that you were given so many opportunities to refuse their demands and elude capture". The court in Yang17 stated: The standard for making a implausibility finding is stated by Justice Muldoon in Valtchev,18 at paragraph 7: A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, implausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. [39] In this case, the RPD is not wrong to find it implausible that the Appellant was allowed to leave the village in XXXX 2013, received numerous calls without action and two visits by two persons representing the village council and yet they do nothing. In Imaniraguha19, a recent case, the court stated," It is true that implausibility findings can only be made in the clearest of situations20 (Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), 2001 FCT 776 at para 7, [2001] FCJ No 1131 [Valtchev])." I am using the words of the court here because I believe that they apply here as well. The RPD clearly expressed the rationale behind its finding, laid out all the facts, and referred to relevant evidence as required by Valtchev, above. This inference was not drawn from speculations or conjecture. Moreover, this finding of implausibility is not the only reason given by the RPD to impugn the credibility of the Appellant. It is but one of the many concerns RPD had with the claim. [40] The last issue is regarding a contradiction about when her husband left Nigeria. The Appellant submits, "The appellant submits that it was XXXX 2013, that her husband left Nigeria and that he left because he wanted to return to Canada and start the process for getting us settled in Canada. The appellant submits that the panel had no evidentiary basis for impugning her evidence and testimony". The Appellant ignores contradictions in her own testimony. First, she testified that he left in XXXX 2013 and later she changed it to XXXX2013. This issue could have been resolved had the Counsel for the Appellant taken the opportunity to directly question her husband at the hearing and/or produced a copy of his passport that would settle this issue. Thus there is evidentiary basis for the RPD's finding and thus it is reasonable. DISPOSITION [41] Based on the foregoing, I find that the RPD did not err in its findings and provided cogent, intelligible, justifiable and transparent reasons. Thus, the RPD's credibility finding falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. [42] The RAD confirms the determination of the RPD, pursuant to subsection 111(a) of the Immigration and Refugee Protection Act, and find that the Appellants are neither Convention refugees nor persons in need of protection. The appeal is dismissed. [43] This appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal May 20, 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, para. 43. 4 IRPA, Sections 96 and 97. 5 IRPA, Section 3(2)(a). 6 IRPA, Sections 170(g) and 171(a.2). 7 IRPA, Sections 170(i) and 171 (b). 8 IRPA, Section 170(b). 9 IRPA, Section 110(3). 10 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 11 Newton, para. 80. 12 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 13 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 14 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes. 15 Lopez v. Canada (Citizenship and Immigration), 2014 FC 102 (CanLII), 16 Gavryushenko v Canada (Minister of Citizenship and Immigration) 2000 (CanLII) 15798 (FC), (2000), 194 FTR 161, [2000] FCJ No 1209 at para 11 17 Yang v. Canada (Citizenship and Immigration), 2012 FC 1350 (CanLII) 18 Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (Fed. T.D.) 19 Imaniraguha v. Canada (Citizenship and Immigration), 2014 FC 349 20 Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), 2001 FCT 776 at para 7, [2001] FCJ No 1131 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01478