TB4-02216

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 : TB4-02216 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal 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 June 18, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard Odeleye Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant), a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant did not provide any new evidence in support of his appeal and did not request an oral hearing. The Minister did not intervene in this appeal. The Appellant requested that the appeal be allowed and that either he be found to be a Convention refugee, or, in the alternative, that the matter be referred back to a different member of the Refugee Protection Division for redetermination. DETERMINATION [2] Pursuant to ss. 111(1)(c) and 111(2) of IRPA, the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination by a differently-constituted panel. BACKGROUND [3] The Appellant alleges that he fears returning to Nigeria because the members of the Boko Haram Muslim group have targeted him and his family members due to the fact that his father and others in the church congregation spoke openly about the ideology of the group. * His father and sister were killed along with other parishioners when their church was bombed. His cousin, who escaped the bombing uninjured, identified the perpetrators as the Boko Haram group. His cousin and the Appellant were approached to join the Boko Haram group. The Appellant and his cousin were raised Christian and could not convert into Islam. Fearing death if they did not join, they went into hiding. The Appellant made plans to flee the country with the goal of reaching Canada. He left Nigeria on XXXX XXXX, 2013, arriving in Canada on XXXX XXXX, 2013, and he claimed for refugee protection on October 31, 2013. He alleges he cannot return to Nigeria due to his fear of being killed by Muslim militants and Boko Haram members. STANDARD OF REVIEW [4] 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. The Appellant makes no submissions on the standard of review; however, he challenges the RPD's credibility findings and the fairness of the hearing conducted by the RPD. The challenge to the credibility findings raised issues of fact. The challenge to the fairness of the RPD's hearing raises issues of law. [5] 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. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,2 which take into account the list of factors in Dunsmuir.3 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [6] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of the first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [7] These factors are: 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. [8] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [9] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits; while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [10] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.4 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing6 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [11] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.8 [12] It is the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, given that the RPD has held a hearing on the totality of the evidence, and given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD will be, in most cases, in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".9 [13] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [14] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of the IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearings in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [15] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. That is why this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [16] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.10 [17] In the case at hand, the Appellant submits: 1) The RPD erred when it based its credibility findings largely on suspicion and conjecture and by ignoring evidence, thus denying him procedural fairness. 2) The RPD breached the procedural fairness right by not adhering to the procedure that would ensure that he, who was not represented by counsel, was able to meaningfully participate in the proceeding before the Board. 3) The RPD dispensed with this important natural justice principle because the RPD felt that since the Appellant had already gone through the asylum system in the United States (US), he must have knowledge of the asylum system in the US before imputing certain knowledge before him. [18] These errors alleged by the Appellant would constitute an error in law which must be assessed under the standard of correctness. The errors of fact and mixed fact and law must meet the reasonableness test. [19] The issues set out by the Appellant, namely, did the RPD come to a negative credibility finding based on an incorrect assessment of the evidence before the Member? Did the RPD breach natural justice and the procedural fairness rights of the Appellant? The Appellant also challenges the RPD's finding that he has an internal flight alternative in Lagos. The first issue raises a question of fact and is dealt with on a reasonableness standard; the second issue is an issue of law, to be dealt with on a correctness standard, and the third issue raises a question of mixed fact and law and will be dealt with on a reasonableness standard. [20] For these reasons, the RAD concludes that, in considering this issue, it must show deference to the factual and credibility findings of the RPD. The appropriate standard of review is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility with the RPD's decision-making process, but with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.11 [21] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact and questions of mixed fact and law in this claim and will consider whether the findings meet the reasonableness test. The issue of the RPD's breach of procedural fairness and natural justice is one of correctness. ANALYSIS OF THE MERITS OF THE APPEAL [22] The RPD stated in its reasons that the determinative issues were: personal identity, credibility, and the issue of internal flight alternative (IFA). TREATMENT OF THE EVIDENCE Delay [23] The Appellant argues that the RPD erred in impugning the credibility of the Appellant on the basis of delay. [24] The RPD drew a negative inference on the Appellant's assertion of possessing a subjective fear of persecution due to a ten-month delay in leaving his country. The RPD believed if the Appellant was truly facing persecution, he would have followed his mother to seek refuge rather than wait ten months to leave Nigeria. The RPD concluded that the Appellant did not reasonably explain the lengthy delay in leaving Nigeria. The RAD finds the Appellant did provide an explanation for not following his mother. He explained to the RPD that his mother and cousin had moved to one of the African countries, but he did not know which one. This information is affirmed in his Basis of Claim (BoC) form, at question 5(b), where the Appellant lists his relatives and notes that the place and country where his mother lives is written as "unknown." The RPD's expectation for the Appellant to follow his mother when he did not know her whereabouts is unjustified and unreasonable. [25] The Appellant further explained that he did not leave earlier because he was in hiding until he could raise the money to leave. The RPD noted that, although the Appellant stated he was in hiding, his Schedule A form at Question 8 notes that he lived in XXXX, Nigeria and worked as a XXXX XXXX XXXX XXXX from XXXX XXXX 2013 until XXXX 2013. This is incorrect. The correct dates noted in the Schedule A when he resided in XXXX are from XXXX 2012 to XXXX 2013. The RAD has listened to the audio recording of the hearing and reviewed the transcript submitted by the Appellant.12 The RAD notes that the RPD failed to put this concern to the Appellant and give him an opportunity to explain this contradiction, yet it applied a negative credibility finding to this information. The RAD finds that the RPD drawing a negative inference on his assertion of possessing a subjective fear due to his ten-month delay in leaving his country as well as the finding that the Appellant did not reasonably explain the lengthy delay in leaving Nigeria was unjustified and lacked transparency. Its unfairness led to an unreasonable finding. These individual findings formed the basis for the RPD's overall finding that the Appellant was not credible regarding his subjective fear. Given that the individual findings were found not to be reasonable, the RAD finds that the overall negative credibility finding regarding the Appellant's delay in leaving was unreasonable. Procedural Fairness and Denial of Natural Justice [26] A review of the audio recording and the transcript of the hearing show the RPD stated at the onset of the hearing: "I know you've been through the asylum process in the United States so I know you are aware of the nature of asylum and what refugee protection and protected persons are", and it then directly commenced with questions pertaining to his claim. [27] The Appellant stated there was no evidential foundation or inquiry into this by the RPD and because of this, he was prejudiced. [28] In the pleadings, the Appellant cited the Austria decision13 to support his argument., In Austria (Mervilus v. Canada (Minister of Citizenship and Immigration), 2004 FC 1206 and Canada (Minister of Citizenship and Immigration) v. Fast (T.D.), 2001 FCT 1269), the Federal Court noted that its case law holds that the right to counsel in immigration matters is not absolute. What is absolute, however, is the right to a fair hearing. The Federal Court held that the RPD did not proceed fairly in the case before it, notwithstanding that the claimant was unrepresented, in part because the presiding member explained the manner of proceeding, the burden of proof, the five Convention refugee grounds, and the definition of a person in need of protection as well as the importance of credibility in very straightforward terms. During the hearing, the Board took the necessary time to ensure the applicant understood the materials, for example, his personal information form. The Board noted the evidence which was previously submitted by the applicant's former counsel. The Board also gave the applicant the opportunity to introduce his own documentary evidence. Finally, on more than one occasion, the Board asked the applicant if he understood what was asked of him, to which he consistently replied in the affirmative. [29] In this case, the Appellant argues that the failure to take these steps led to a failure of natural justice because the Appellant was unable to meaningfully participate in the proceedings. The RAD accepts this argument, and it finds the RPD proceeded unfairly in this case, in light of the fact that the Appellant was unrepresented. [30] The Appellant also argues that the RPD erred in making adverse credibility findings for failing to provide a newspaper article regarding the specific event in question. [31] The RPD found the Appellant not credible due to the lack of supporting documents. The RPD expected to see a newspaper article detailing the tragic event that led to the death of his father and sister, affidavits from a witness, a letter from the church in Nigeria, and/or a medical report concerning his sister's treatment (from the injuries she incurred during the bombing of the church). The RPD asked the Appellant why he had not produced these documents and what steps had been taken to obtain such documents. The RPD found the Appellant was "non-responsive." A review of the audio recording and the transcript of the hearing show this is not correct. It was brought to the Appellant's attention by the RPD that a newspaper article concerning the bombing that took the life of his father and sister was not included in the newspaper articles as part of his disclosure. He responded at length explaining that he had done all of the research himself for disclosure. He stated, "I cut this evidence out myself; maybe when I was pulling them out from the library, I must have left it. I know the President was there (at the site following the bombing). It was in the news..." The Member put to the Appellant the importance of the news article and the expected standard of proof. Once again, the Appellant explained that he had gone to the library and brought the evidence himself and maybe it (the article) had "escaped" him. [32] The RAD finds the RPD erred in finding the Appellant was non-responsive. The evidence shows the Appellant clearly, and without hesitation, provided an explanation to the RPD for the lack of the news article. At the very least, it would have been appropriate for the RPD to have offered the Appellant the opportunity to provide the news article post-hearing, but they did not. The Appellant was unrepresented, and he did not have the advantage of counsel to provide submissions on this issue. The RAD finds the RPD relied on the inaccurate evidence that the Appellant was non-responsive to form a key component of the RPD's credibility analysis and acted unfairly by not giving him a chance to submit post-hearing evidence. The RPD's finding that the Appellant lacked credibility is therefore insufficiently supported by the evidence. [33] The Appellant was asked by the RPD if he had any affidavit from witnesses or a letter from the church in Nigeria. The Appellant responded that he did not because the church, after the bombing, "went dead and did not come up again." He also responded that he did not have a letter because he did not know any members of the church. The evidence before the RPD was that the church no longer existed. To expect the Appellant to obtain affidavits from witnesses or a letter from the defunct church in Nigeria is unreasonable. The RAD finds the negative credibility finding is this matter is unjustified and unreasonable. [34] The Appellant further states that the RPD found him not credible because he did not provide a copy of his US asylum record at the hearing. The RPD assumed that he should know this. The Appellant further states that, had this issue been raised at the beginning of the hearing, he could have sought a postponement to obtain the record, since it appeared that the RPD thought it was crucial to his case. [35] A review of the audio recording and transcript show the Appellant was not given notice by the RPD at the onset of the hearing that his asylum claim in the US would be an issue. The RAD is persuaded by the Appellant's argument that the RPD thought the US asylum documents were crucial to his case, as the RAD notes the RPD applied a negative credibility finding to his lack of tendering these documents. [36] The RAD finds that, based on the evidence, the RPD erred in its assumption that the Appellant, unrepresented by counsel at the hearing, would understand the importance of providing his US asylum documents. The RAD also considered the relevance of these documents, since the factual allegations that form the basis of the Appellant's claim concern events that occurred after he left the United States. For example, the instructions on filling out the BoC say "Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you." In this case, since his Canadian claim is based on facts that post-dated his stay in the US, it is not clear why the RPD would expect him to have produced his US asylum claim. The RPD also erred by applying a negative credibility finding to the lack of supporting documents that are not available to the Appellant. These unreasonable findings formed a key component of the credibility analysis. The RAD finds the RPD's finding that the Appellant lacked credibility is insufficiently supported by the evidence and was reached in an unfair manner. In addition, in the RAD's view, the impugned credibility findings are key elements of the RPD's conclusion that the Appellant was not credible, and without them, the overall credibility finding is not supported. Furthermore, the RPD's assumption that the Appellant would be prepared to proceed without instruction or explanation of the hearing room procedures and process, because he has claimed for asylum in the US, is unreasonable and a breach of procedural fairness. For the reasons given, the RAD finds the RPD's failure to do so amounts to a breach of procedural fairness and a denial of natural justice, which is an error of law. As such, the RPD's decision cannot stand. Internal Flight Alternative (IFA) [37] In the RAD's view, the RPD's finding on IFA is linked to its conclusion on the Appellant's credibility. After determining that the Appellant was not credible, the RPD went on to consider IFA and to disbelieve or discount the Appellant's testimony in respect to that IFA. This finding was not in the alternative to the RPD's credibility finding; for such an alternative finding to stand on its own, the RPD would be required to accept the Appellant as credible, including his testimony regarding his fear of the Boko Haram and his inability to return to Nigeria. It is not obvious whether or not the RPD relied on its credibility conclusions. The RAD cannot tell to what extent the finding is based on its previous credibility findings. In this case, the RPD's finding relies upon, and is not truly in the alternative to, its conclusion on the Appellant's credibility. In light of the evidence, as the decision of the RPD is flawed, so too the IFA finding cannot stand because of its implicit reliance on the credibility finding. SUMMARY [38] A review of the totality of the evidence leads the RAD to conclude the decision of the RPD in this matter was wrong in law, as there was a breach of procedural fairness and a denial of natural justice. In addition, the RAD finds the RPD made errors of fact and law in failing to properly consider the evidence. The Appellant contests other findings of the RPD; however, it is not necessary for the RAD to deal with further issues, as the RPD's findings, discussed above, are sufficient to dispose of this appeal. Disposition and Remedy [39] In the RAD's view, the only appropriate remedy for the breach of natural justice in this matter is to refer the matter to the RPD for redetermination. [40] Section 111(1)(b) of IRPA allows the RAD to set aside a decision of the RPD and substitute a determination that, in its opinion, should have been made. The RAD may only refer the matter back to the RPD if the RPD was wrong in law, in fact, or in mixed law and fact, and if the RAD cannot make a decision to confirm or substitute the RPD's decision without hearing evidence that was presented to the RPD.14 [41] The RAD finds that the RPD's decision in this matter was wrong in fact and law. The RAD considered the totality of the evidence before it and found that it could not substitute a decision for that of the RPD without hearing evidence that was presented to the RPD. [42] Once the RPD's unreasonable findings are removed, there is insufficient evidence for the RAD to make its own determination. The RAD has not seen or questioned the Appellant and is therefore in no position to make its own credibility finding on his refugee claim. The Appellant has submitted no new evidence, and therefore any substitute decision would have to rely on evidence that was already presented to the RPD. For these reasons, the RAD cannot substitute its own determination for that of the RPD, and it cannot find the Appellant to be a Convention refugee or a person in need of protection. DETERMINATION [43] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. (signed) "C. Forbes" C. Forbes June 18, 2014 Date 1 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 2 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 3 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 4 IRPA, s. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110(3). 8 RAD Rule 57. 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 11 Dunsmuir, para. 47; in Khosa, para. 4, the "range of reasonableness outcomes". 12 Appellant's record, at pp. 90 to 103. 13 Austria, Javier Armas v. M.C.I. (F.C., no. IMM-3477-05), Tremblay-Lamer, March 31, 2006; 2006 FC 423. 14 IRPA, Section 111(2). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02216