TB4-02688

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 : TB4-02688 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 16, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Alesha A. Green 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 the Philippines, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find her to be a Convention refugee or refer the matter back to the RPD for redetermination. 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. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she arrived in Canada in 2001 on a permit to work as a XXXX XXXX XXXX XXXX. However, her applications for subsequent work permits were denied, with the final such rejection coming in 2004 or 2005. In 2008, she filed an application to gain status on humanitarian and compassionate grounds, which was denied in XXXX of 2013. In XXXX of 2013, she filed an application for refugee protection, alleging that she faces harm in the Philippines at the hands of her ex-boyfriend, with whom she had a relationship from 1993 to 1997. [4] The Appellant's application for refugee protection was heard on February 24, 2014. In a decision of March 3, 2014, the RPD rejected the claim. It found that the Appellant was generally lacking in credibility, and further that she had not rebutted the presumption of adequate state protection in her country. [5] The Appellant submits that the RPD made unreasonable findings with respect to credibility and delay in claiming, and it ignored relevant evidence that contradicted its finding of state protection. Standard of Review [6] 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. [7] The Refugee Protection Division's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection. The RAD must, conversely, proceed without a hearing except in certain circumstances.1 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.2 The RPD has an opportunity to see and question the refugee claimant, while the RAD is infrequently in a position to do so. An appeal body cannot substitute its own reasoning for that of the first-level tribunal which had the benefit of hearing oral testimony.3 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [8] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."4 In Newton, the Alberta Court of Appeal noted that a failure to show deference to the first-level decision-maker could undermine the integrity of such hearings, which would in effect be reduced to a type of preliminary inquiry.5 A failure to show deference to the RPD on questions of fact would have a similar effect on the first-level refugee hearing, and this is not consistent with the purpose of IRPA or its specific provisions in respect to appeals. 6 In the RAD's view, IRPA clearly signals that an appeal is not to be a de novo hearing of the refugee claim, as the RAD is restricted in accepting new evidence and holding an oral hearing, and this too suggests that deference be shown to the findings of fact made at the first level. [9] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility, and on findings of mixed fact and law.7 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.8 [10] The appropriate standard of review for questions of fact and of mixed fact and law 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.9 In considering the reasonableness of the decision, the RAD must be cognizant of the evidence that was before the RPD and determine whether the RPD properly considered that evidence and reasonably justified the conclusions drawn from it.10 [11] The RAD will not show deference to the RPD, however, on questions of law. 11 Here, the lower and appellate tribunals have similar expertise with respect to questions of law, including those arising from their shared home statute, and this suggests that no deference is warranted. It is an appropriate function for the RAD to ensure that the RPD is applying the correct law; this approach promotes just decisions and avoids inconsistent application of the law.12 A correctness standard on questions of law ensures universality in the application of the law.13 [12] For these reasons, the RAD will review questions of law on a standard of correctness. The RAD will not show deference to the RPD's reasoning process on such issues, but it will undertake its own analysis of the question to determine whether it agrees with the RPD on the matter.14 The RPD's Findings [13] The Appellant argues that the RPD made various errors in rejecting her claim. [14] Credibility: The Appellant argues that the RPD unreasonably found that her ex-boyfriend's actions were not consistent with having an obsessive interest in her. Here, the Appellant argues, the RPD disregarded her evidence about her knowledge of her partner, gained from the years in which they had a relationship. She also submits that the panel erred by first asking her to speculate and explain the agent of persecution's intentions and then to reject that explanation. [15] The RPD considered why the ex-boyfriend, who had not previously been violent or abusive, would wish to harm the Appellant today for having ended their relationship seventeen years ago. The Appellant explained that he has an obsessive personality. The RPD then considered his actions-he allegedly threatened her in 2003, when she visited the Philippines, and he then made threats to her friend and sister ten years later in 2013. The RPD concluded that these threats-six years after the end of the relationship and then another ten years later-did not support the Appellant's contention that the man is obsessively interested in her. The Appellant testified of a man who was obsessed with her and wanted to harm her, but her evidence was not consistent with this characterization. It was reasonable for the RPD to make a negative credibility finding in respect of this evidence. [16] The Appellant also submits that the panel unreasonably expected her to produce corroborative evidence from her sister and a friend, both of whom had recent contact with the alleged agent of persecution, disregarding the fact that both individuals were aware of the threat posed by the man. She argues further that the RPD erred in requiring her to corroborate her sworn testimony with documentary evidence. [17] Refugee claimants are entitled to the presumption of truthfulness,15 and, as such, a successful refugee claim can be founded only on credible oral evidence. However, where the RPD has valid reasons for doubting a claimant's credibility, it may properly consider a failure to produce corroborating documents where it does not accept the claimant's explanation for such failure.16 Here, the RPD had good reason to doubt the Appellant's credibility. It also considered her explanation for the failure to provide corroborating documents-that her sister and friend were scared-and did not find it satisfactory. How would the ex-boyfriend-whom the sister and friend apparently encountered only once in the 16 years since the relationship ended-know if they sent a corroborating letter to the Appellant in Canada? The RAD cannot find the RPD's conclusion here to be unreasonable. [18] The Appellant also challenges the RPD's finding that it was a "striking coincidence" that the alleged agent of persecution made contact with her friend and her sister in February of 2013-the very month she learned that her application to remain in Canada on humanitarian and compassionate grounds had been rejected. In the Appellant's submission, this was a finding of implausibility, and there was nothing implausible about two events occurring in the same month. [19] The Appellant allegedly ended her relationship with her ex-boyfriend in 1997, about seventeen years ago, and that she left the country in 1998. During her twelve years in Canada, she was only threatened by the man when she returned to visit the Philippines in 2003. Nothing in her Basis of Claim form indicates that the agent of persecution sought her, or inquired about her, in the sixteen or so years she was out of the country. Then, in XXXX of 2013-after the Appellant had failed to obtain work permits, and when she learned that her humanitarian application had been rejected-the ex-boyfriend began "asking my friends and my family" about her and allegedly making threats. The RAD agrees with the RPD that this is an extraordinary coincidence-that a man whose relationship with the Appellant had ended so long ago and who had last threatened her 10 years ago-would encounter her friend and sister and issue new threats just as she was running out of options to remain in Canada. [20] The RPD's credibility findings were reasonable. [21] Delay in claiming: The Appellant argues that her twelve-year delay in filing a claim could not reasonably lead to a determination that she was not credible or lacked subjective fear. She submits that, while delay is relevant, it is not usually determinative of a refugee claim. She relied on other means to secure status in Canada, and therefore she should not be faulted for failing to seek refugee protection. [22] Delay in claiming is an important factor which the RPD is entitled to consider in weighing a claim for refugee protection.17 The RAD agrees with the Appellant's submission that delay in claiming is not usually determinative of a refugee claim, and it notes that it was not in itself determinative of the Appellant's claim. [23] The Appellant alleged that she left the Philippines to get away from her dangerous ex-boyfriend. When she arrived in Canada, she had a work permit and thus temporary status. However, once her permit expired, she faced years of uncertain status. When she returned to the Philippines in 2003, she allegedly encountered her ex-boyfriend and was threatened. She returned to Canada, but despite her failure to obtain status, she did not seek refugee protection. While she alleges that one representative failed to carry out his promised undertaking to perform work on her behalf, she provided neither the RPD nor the RAD with any evidence that she has complained about this alleged misconduct. [24] To put it simply, the Appellant was in Canada for many years, during all of which she was allegedly in fear of her ex-boyfriend. Even though her status here was uncertain, and though she engaged representatives to assist her in seeking status through other means, she made no effort to file a refugee claim. In this context, it was reasonable for the RPD to conclude that her actions were indicative of a lack of subjective fear and that the inconsistency between her allegations and her actions also damaged her credibility. [25] State protection: The RPD's reasonable findings on credibility are determinative of the Appellant's refugee claim. As the Appellant did not establish with credible evidence that she faces persecution or harm, she does not require state protection. The RPD's decision can stand on its credibility findings alone, and it is therefore unnecessary for the RAD to consider the Appellant's challenge to the RPD's state protection analysis. CONCLUSION [26] 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. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld June 16, 2014 Date 1 IRPA, Sections 110(3) and 110(6). 2 Khosa, para. 89. 3 Iyamuremye v. M.C.I., 2014 CF 494, para. 39. 4 IRPA, Section 3(2)(e). 5 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 6 Iyamuremye, para 1. 7 Iyamuremye, paras. 39-40. 8 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 9 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 10 Dunsmuir, para. 47; Iyamuremye, para 3. 11 Iyamuremye, para. 2. 12 Dunsmuir, para. 50. 13 Khosa, para. 90. 14 Dunsmuir, para. 50. 15 Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.). 16 Amarapala, Priyanga Udayantha v. M.C.I. (F.C., no. IMM-5034-03), Kelen, January 7, 2004; 2004 FC 12, at para. 10. 17 Espinosa, Roberto Pablo Hernandez v. M.C.I. (F.C., no. IMM-5667-02), Rouleau, November 12, 2003; 2003 FC 1324, at para 16; and Calderon Garcia, Cid Onasis v. M.C.I. (F.C., no. IMM-5949-11), Near, April 11, 2012; 2012 FC 412, at paras 19-20; both decisions cite Heer v. M.E.I., [1988] F.C.J. No. 330. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02688