TB3-05839

RAD File No. / N° de dossier de la SAR : TB3-05839 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 November 18, 2013 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ochiemuan Okojie 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) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal, and she requests an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the RPD's decision and either substitute its own positive determination or refer her refugee claim 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, when her fiancé died of heart problems in XXXX of 2010, his family blamed her and accused her of being a witch. Although she moved to another city, she received threatening calls there; after relocating again, she received further threats. In XXXX of 2010, she came to Canada to visit her sister. In XXXX of 2011, her deceased fiancé's family attacked her family, and the police did not provide protection. Another attack occurred in XXXX of 2011, in which the Appellant's cousin was killed, her uncle shot, her sister raped, and her brother injured. In XXXX of 2013, her uncle and brother were kidnapped and have not been seen since. On XXXX XXXX, 2013, the Appellant claimed refugee protection in Canada. Her claim was based on a fear of her late fiancé's family, and also on a fear that her Canadian-born daughter will be forcibly circumcised in Nigeria. [4] The Minister of Citizenship and Immigration Canada intervened before the RPD in the Appellant's claim.1 The Minister brought to the RPD's attention that the Appellant applied in 2006 to come to Canada as a skilled worker, that when she entered Canada in 2010, she told an immigration official that she had no problems in Nigeria, and that she also indicated that she planned to marry in that country in XXXX of 2010. The Minister also pointed out that the Appellant obtained an extension to her visitor's status in Canada by showing proof that she had an airline ticket to return to Nigeria in XXXX of 2010, but she did not return and instead stayed in Canada without status. The Minister submitted that these concerns, along with the Appellant's lengthy delay in filing a refugee claim, severely diminish her credibility. [5] The Appellant's application for refugee protection was heard on July 25, 2013. By a decision of July 31, 2013, the RPD rejected the claim, finding that the Appellant was not credible on several material aspects of her story. [6] The Appellant submits that the RPD erred in rejecting her refugee claim. She argues that the RPD "perversely erred" when it rejected her explanations for contradictions in her evidence, and she submits that, in fact, there were no material inconsistencies within her claim. She challenges the panel's finding in respect to her delay in claiming, and she submits that the RPD perversely erred when it concluded that she did not provide supporting documents. Finally, the Appellant argues that the RPD erred in failing to consider harm faced by her Canadian-born child in Nigeria. ANALYSIS Standard of Review [7] The Appellant argues that the RPD erred in its consideration of the evidence and of her credibility, which raises questions of facts. [8] The Appellant makes no submissions on the appropriate standard of review to be applied in this appeal. [9] 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. [10] 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, however, which 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. [11] 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. [12] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.5 An appeal to the 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 decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [13] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [14] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.6 [15] The interpretation of the statute as a whole: 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. [16] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.7 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. [17] In the context of an appeal to the 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. [18] 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." [19] 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. [20] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,8 and each can take notice of information and opinion within its specialized knowledge.9 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,10 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's proceeding.11 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently 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,12 other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand. [21] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.13 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 IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [22] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. 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. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The question in issue is one of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 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 the RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [23] 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 before it substitutes its own decision.15 [24] The appropriate standard of review in this appeal 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.16 The RPD's Findings [25] The Appellant argues that the RPD erred in its assessment of the evidence before it and in finding that she was not credible in respect to material aspects of her claim. Specifically: [26] Omissions from Schedule A and the Basis of Claim form: The RPD questioned the Appellant about information she provided on immigration form Schedule A, where she declared that she had never been refused an immigrant or permanent resident visa,17 even though the Minister provided the RPD with information indicating that the Appellant had been refused such a visa. Although the Minister's information indicates that the Appellant's application was terminated in XXXX of 2012, the Appellant testified that she did not realize it had been terminated. [27] The RPD also asked the Appellant why, in her Basis of Claim (BoC) form, she indicated that no relative has sought refugee protection in Canada, when in fact her sister received refugee protection in 2002. The Appellant explained that this was so long ago that she did not think to mention it. [28] The panel rejected the Appellant's explanations for both of these omissions, noting that she is a well-educated professional who speaks English and who was assisted in her refugee claim by legal counsel. The Appellant argues to the RAD that the RPD erred because her explanations for these omissions were reasonable. [29] The RAD must consider whether the RPD's determination on this matter falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. The Appellant made a prior application to move to Canada, and this was terminated almost a year before she made a refugee claim. Given that the Appellant has a Master's degree in Business XXXX, was formerly the XXXX XXXX XXXX at a bank, speaks English, and was assisted by counsel in preparing her refugee claim,18 it was reasonable for the RPD to reject her explanation that she did not know that her application to immigrate to Canada had been terminated almost a year before she claimed refugee protection. As the Appellant told immigration officials that she was coming to Canada to visit her sister,19 and then later made a refugee claim, it was also reasonable for the RPD to expect that the Appellant would know that her sister obtained status in Canada via her own refugee claim. [30] Failure to disclose problems upon arrival in Canada: The RPD observed that the Appellant, when entering Canada in XXXX of 2010, told immigration officials that she had no problems in Nigeria and that there was no reason she could not return to her country. Noting that the Appellant claimed to have been fleeing for her life due to problems which arose in XXXX of 2010, the panel rejected her explanation that she expected her situation to get better and that she had no intention of claiming refugee status at the time she arrived in Canada. The RPD also noted that the Appellant told immigration officials that she planned to marry in XXXX of 2010, which is inconsistent with her claim that her fiancé had died three months earlier. The panel rejected the Appellant's explanations-first, that she did intend to marry, but her fiancé was dead, and then that she lied to the officer because she thought this would help her get a visa. The RPD noted that this could not explain why she would claim the pending marriage upon arrival in Canada, when she was already in possession of the visa. [31] The Appellant argues to the RAD that the RPD's analysis was microscopic, that there were no material inconsistencies in her claim, and that "she got the wrong advice and that she did not intend to mislead immigration and that her explanations are reasonable."20 The RAD disagrees. The RPD identified a very significant inconsistency: the Appellant was allegedly on the run from her fiancé's family, who sought to harm her, and yet she told Canadian immigration officials that she had no problems in Nigeria and could return. The RAD recognizes that a refugee claimant may have no choice but to provide untruthful information in order to gain access to protection in Canada, but the Appellant was not in such a situation. She was in a position to tell a Canadian official about her problems and to initiate a refugee claim, but instead she stated that she had no fear in Nigeria. This raises a credibility concern that goes to the heart of her claim, and it was reasonable for the RPD to make an adverse credibility finding here. It was also reasonable for the RPD to make such a finding in respect to the Appellant's statement to immigration officials that she was to be married in XXXX of 2010, when her fiancé had allegedly died months earlier. [32] Delay in claiming: The RPD noted that the Appellant did not file a refugee claim until almost three years after her arrival in Canada. It considered and rejected her explanation that she initially thought the situation would be resolved and she could return, and it noted that she waited more than a year after her fiancé's family attacked her relatives in late 2011. [33] The Appellant argues to the RAD that she only made her claim when she did because she had been relying on her uncle for comfort and reassurance, and when that uncle disappeared, she realized she needed Canada's protection. The RAD cannot accept this argument. The Appellant was allegedly threatened after her fiancé died, and she moved to another city, where she was again threatened. She moved again, received further threats, and came to Canada. After she had arrived in Canada, her cousin was killed in Nigeria; her sister was raped, and her uncle was attacked. None of this prompted the Appellant to make a refugee claim, even though she was living with her sister, who had herself made a successful refugee claim in Canada. Having considered these circumstances, it was reasonable for the RPD to expect that the Appellant would have made a refugee claim at an earlier date, and to find that the Appellant's delay in seeking protection raises credibility concerns. [34] Lack of supporting documents: The RPD drew a negative inference from the Appellant's failure to provide documents to corroborate the extensive violence inflicted upon her family in Nigeria, including murder, rape, and kidnapping. The panel noted that the Appellant did not provide medical records, police reports, newspaper articles, or affidavits that speak to these events, and that she had no explanation for the absence of these documents other than that she did not try to obtain them. Given that the Appellant was in Canada for three years before her refugee hearing, and that she was represented by counsel, the RPD expected her to provide such documents. [35] The Appellant submits that the RPD ignored affidavit evidence that she submitted, which corroborates her claim of persecution in Nigeria, and engaged in a microscopic reading of the evidence. The RAD disagrees. The RPD's reasons specifically address the affidavits, and reasonably observe that they do not corroborate many of the Appellant's key allegations: the murder of a cousin, the rape of a sister, the shooting of an uncle, or the kidnapping of an uncle and a brother. While the RPD does not make a clear finding in respect to the affidavits, it is apparent that the panel gave the documents little or no weight. Given that the affiants-the Appellant's sister, and her family's pastor-could be expected to have knowledge of these terrible events, the RPD's treatment of these documents was reasonable. It was also reasonable for the RPD to expect that there would be some documentary corroboration of the mayhem allegedly inflicted upon the Appellant's family, and to expect that she would have made some effort to obtain such documents. [36] The Appellant's Canadian-born child: The Appellant argued to the RPD that she would face persecution upon return to Nigeria because her child-born in and a citizen of Canada-would be subjected to forcible genital mutilation in Nigeria. The RPD rejected this argument, noting that the child is not a refugee claimant. [37] The Appellant argues to the RAD that the RPD's finding here was perverse "because there was credible and trustworthy evidence before the panel which the panel rejected that shows that the appellant Canadian born daughter would be forced to undergo female genital mutilation in Nigeria."21 [38] The child is not an appellant here, and thus the RAD has no jurisdiction to consider whether the RPD erred in failing to consider the risk to that child. Neither could the RPD consider the risk to someone who had not made a refugee claim. In any event, the child is presumably a Canadian citizen and is therefore entitled to remain in Canada. [39] Having considered the RPD's reasons and the Appellant's submissions, the RAD finds no errors in those reasons. The RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. Application for an Oral Hearing [40] The Appellant requests an oral hearing under Section 110(5) of IRPA.22 The RAD has considered this application under Section 110(6), which deals with oral hearings before the RAD. [41] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [42] According to Section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [43] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [44] The Appellant has submitted no new evidence in support of her appeal. As such, the RAD must proceed without a hearing in her appeal, and her application for an oral hearing is denied. CONCLUSION [45] 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 November 18, 2013 Date 1 RPD's Record, p. 77, Notice of Intent to Intervene. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton, para. 43. 5 IRPA, Sections 96 and 97. 6 Khosa, para. 89. 7 IRPA, Section 3(2)(a). 8 IRPA, Sections 170(g) and 171(a.2). 9 IRPA, Sections 170(i) and 171 (b). 10 IRPA, Section 170(b). 11 IRPA, Section 110(3). 12 Khosa, para. 89. 13 Newton, para. 80. 14 Khosa, para. 89. 15 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 16 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 17 RPD's Record, p. 31, IMM 5669. 18 RPD's Record, pp. 12-24, Basis of Claim form, Questions 1(g) and 9; RPD's Record, p. 32, IMM 5669, Questions 7 and 8. 19 RPD's Record, p. 90. 20 Appellant's Record, p. 24, Memorandum, para. 5. 21 Appellant's Record, p. 25, Memorandum, para. 9. 22 Appellant's Record, p. 1, statement. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05839