TB4-02248

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 : TB4-02248 Private Proceeding / Huis clos Amended 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 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 24, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Jeffrey L. Goldman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXXXXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Catherine Bond Conseil du (de la) ministre Reasons and Decision [1] The Minister of Citizenship and Immigration Canada (the Minister) appeals a decision of the Refugee Protection Division (RPD) in which XXXX XXXX (the Respondent) was found to be a person in need of protection. The Minister has submitted new evidence in support of this appeal, and the Respondent has also provided new evidence in response. The Minister asks the Refugee Appeal Division (RAD) to set aside the positive determination of the RPD and substitute its own finding that the Respondent is not a Convention refugee or a person in need of protection, that there was no credible basis for his claim, and that the claim was manifestly unfounded. [2] The Respondent is a minor and was assigned a designated representative for the proceedings before the RPD, who also represents the Respondent in this appeal. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Respondent is a person in need of protection. This appeal is dismissed. Background [4] The Respondent alleged before the RPD that his family is embroiled in a blood feud with the XXXX family, which puts all males in his family at risk. As a result of that dispute, the Respondent was self-confined in the family home, as the ancient rules governing blood feuds forbid the killing of a target in his own house. The XXXX clan, frustrated that they could not locate any members of the Respondent's family to kill, instead attacked the home of his relatives. Given the XXXX apparent disregard for the traditional rules of blood feuds, the Respondent's family decided that he was at risk, even in self-confinement, and arranged for him to leave the country. He fled Albania in XXXX of 2013 and made a refugee claim in Canada the following month. [5] The Respondent's refugee claim was heard on January 27, 2014, and accepted in a decision delivered orally at the conclusion of the hearing. The RPD found the Respondent to be credible, concluded that adequate state protection is not available to him in Albania and that he cannot find a viable internal flight alternative (IFA) there, and it determined that he is a person in need of protection.1 [6] The Minister relies on new evidence to impugn the Respondent's credibility. The Minister submits biometric information indicating that the Respondent entered Canada from the U.S. on false identity documents, as well as photographs from the social networking site Facebook which show the Respondent engaged in various activities outside of his home. The pictures were posted during the time period in which the Respondent was allegedly self-confined. The Minister submits that the new evidence is fatal to the Respondent's credibility. [7] In response, the Respondent points out that the biometric data does not contradict, but in fact confirms, his story. He also submits the photographs that were posted on Facebook, and he asks the RAD to note that the photos were taken in the time period before he was in self-confinement. [8] The Minister did not file a reply. ANALYSIS Admissibility of Evidence Submitted on Appeal [9] While IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal,2 such restrictions do not apply to the Minister (the Appellant here),3 nor do they apply to the Respondents' evidence submitted in response to the Minister.4 [10] Section 171(a.3) of IRPA provides that the RAD may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. [11] The Minister's proposed new evidence consists of biometric evidence based on the Respondent's fingerprints,5 as well as photos posted on the Facebook pages of the Respondent and his parents.6 The Minister also submits as new evidence translations done by the online service, Google Translate.7 [12] The RAD has no reason to doubt the credibility or trustworthiness of the biometric evidence, which results from communication between Canadian and American border security officials, or of the Facebook material, as the Respondent concedes that it is genuine. [13] Section 28 of the RAD Rules sets out the following in respect to the translation of documents: 28. (1) All documents used by a person who is the subject of an appeal in an appeal must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator. (2) All documents used by the Minister in an appeal must be in the language of the appeal or be provided together with a translation in the language of the appeal and a declaration signed by the translator. (3) A translator's declaration must include the translator's name, the language and dialect, if any, translated and a statement that the translation is accurate. [14] Here, the Minister has not provided a translation of the Albanian-language wording on the Facebook pages, and yet seeks to rely upon that wording to establish that the Respondent's father is employed as a XXXX XXXX XXXX, which the Minister argues is not consistent with self-confinement at home. The Respondent disputes this contention, noting that the Minister has only translated selective words, and he disagrees that the words relate to his father's employment. [15] The Minister has not complied with the requirement to provide a signed translator's declaration along with the translation of the Albanian words on the Facebook posts. Further, even if such a declaration had been provided, the RAD would still have some difficulty because only a partial translation has been provided. The translation provided does not comply with the Rules, is not complete, and the RAD cannot determine whether it is accurate. The RAD therefore declines to admit the Google translations into evidence. [16] The Respondent has also provided new evidence. He obtained the pictures that were posted to Facebook, along with date stamps showing when they were developed.8 He also submits an affidavit from his Grade 9 teacher,9 declaring that the Respondent is indeed in a blood feud and that the school pictures posted on Facebook were taken in the time period before the feud arose. The Respondent provides another affidavit, from his cousin, declaring that other pictures posted on Facebook were also taken prior to the blood feud.10 Another affidavit, from the Respondent's childhood friend, declares that other pictures posted on Facebook were also taken prior to the blood feud.11 [17] The RAD has no reason to doubt the credibility or trustworthiness of the Respondent's new evidence. The RAD notes that the Respondent was found to be credible by the RPD and that the Minister has not challenged the veracity of the new evidence. The RAD therefore admits the Respondent's documents as new evidence in this appeal. Standard of Review [18] 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. [19] Neither the Minister nor the Respondent makes any submissions on the appropriate standard of review to be applied here. In fact, as this appeal relies solely upon new evidence, it is not entirely clear whether it is even necessary to select a standard of review. [20] In the RAD's view, it is appropriate to consider and select a standard of review even where an appeal is based on evidence that was not before the RPD. Even though this appeal is not based on any errors allegedly made by the RPD, the RAD must nevertheless determine whether the RPD decision can stand when considered in light of the new evidence presented on appeal. The RAD must therefore consider whether that decision-in retrospect-is fatally flawed. In Dunsmuir,12 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. There is some distance, in the RAD's view, between those two standards. It is not inconceivable that new evidence presented on appeal could show a decision of the RPD to be incorrect, in that the RAD does not agree with the RPD's reasoning, while that decision could nevertheless remain reasonable in that it falls within a range of possible, acceptable outcomes. [21] This appeal challenges the RPD's findings in respect to the Respondent's credibility, and thus raises questions of fact. The RAD will therefore consider the appropriate standard of review to be applied to such questions. [22] 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.13 The Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.14 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.15 The RPD is therefore in an advantageous position when it comes to assessing credibility and making findings of fact. [23] One of the purposes of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...."16 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.17 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.18 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. [24] For these reasons, the RAD will show deference to the RPD on findings of fact, including credibility.19 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.20 [25] The appropriate standard of review for questions of fact 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.21 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.22 The Respondent's Credibility [26] The Minister argues that the Respondent's credibility is destroyed by new evidence, including a biometric report showing that the Respondent entered Canada using a Greek passport in the name of XXXX XXXX. In the Minister's submission, the information contained in the biometric report "reveals inconsistencies which seriously undermine the respondent's credibility, the merit of his claim, and his declared nationalities. When compared to the information provided by the respondent, [this new evidence] illustrates that the respondent has not been forthcoming with respect to his identity, nationality, and date of birth." [27] The Respondent disagrees, arguing that the biometric evidence in fact is consistent with his own story and even confirms his date of entry to Canada. [28] The RAD Rules require the Minister to make full and detailed submissions regarding the errors that are the grounds of the appeal.23 The Minister's Memorandum does not make such submissions in respect to the biometric information, and it is difficult for the RAD to ascertain the inconsistencies which allegedly undermine the Respondent's credibility. When he made his refugee claim, the Respondent asserted that he travelled from Albania to Athens and then on to New York, using a false passport.24 He indicated that he did not know the name or nationality in the passport, which was retained by the smuggler who provided it. He reported that he entered the U.S. on XXXX XXXX, 2013, and Canada on XXXX XXXX, 2013. These dates are identical to those contained in the Minister's new biometric information. [29] The biometric information provided by the Minister does not contradict the evidence given by the Respondent to the RPD, and therefore cannot damage his credibility. [30] The Minister also relies upon numerous photographs, posted on Facebook during the time that the Respondent was allegedly confined to his home. Those pictures portray the Respondent visiting a beach, attending a wedding, in a classroom, playing pool, jumping into a body of water, at a movie theatre, and shooting a gun outdoors. In the Minister's submission, these documents show that the Respondent was not telling the truth when he convinced the RPD that he was in self-confinement during this time period. [31] The Respondent, however, submits that these photographs were taken before the period of self-confinement, and he only posted to Facebook after the blood feud arose. In fact, he points out that some pictures were posted after he arrived in Canada, and thus they were clearly not new. [32] The pictures submitted to the RAD by the Respondent show date stamps from prior to the blood feud, and the Respondent has provided affidavits confirming that these pictures were taken before he was self-confined. The RAD finds that, while the dates on the Facebook material provided by the Minister show when the photographs were posted to the social media site, they cannot establish when the pictures were taken. As such, the Respondent's evidence about the dates on which the photos were taken stands uncontradicted. The RAD finds, on a balance of probabilities, that the photographs were taken prior to the Respondent's period of alleged self-confinement, and thus they cannot undermine his credibility. [33] The Minister also points out that the Respondent claimed he was home-schooled beginning in XXXX of 2011, while the blood feud was not declared until XXXX of 2012. In the Minister's submission, if the Respondent was home-schooled, it was clearly not because of the blood feud. The RAD cannot accept this argument. The Respondent's Basis of Claim (BoC) narrative reports that, in XXXX 2011, there was a major altercation between the feuding families, leading to the death of a man from the XXXX clan, and a blood feud was declared at the time against certain members of the Respondent's family; it was expanded in XXXX of 2012 to apply to all males in the family.25 It is clear that the Respondent was withdrawn from school around the time of the murder and the first blood feud declaration, and it is not unreasonable that the Respondent's family feared for his safety at this time. [34] Finally, the Minister argues that the Respondent's father's Facebook profile shows that he is a XXXX XXXX XXXX, and lists his employer. If all males in the Respondent's family are in self-confinement, the Minister reasons, it is highly unlikely that the father would be employed as a XXXX XXXX XXXX. The RAD does not accept this argument; as set out above, the Minister has failed to provide a proper translation of the pages in question, and the RAD is therefore unable to determine whether their contents support the Minister's position. [35] The Minister's new evidence does not impugn the Respondent's credibility, and, outside of that evidence, the Minister has raised no challenge to the reasonableness of the RPD's decision itself. This appeal must therefore fail. CONCLUSION [36] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Respondent is a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld June 24, 2014 Date 1 The RPD appears to have confused Sections 96 and 97 of IRPA. It began its analysis under Section 97, and ultimately concluded that the Respondent's "subjective fear" was "well-founded," though these terms are associated with Section 96. 2 IRPA, Section 110(4). 3 IRPA, Section 171(a.5) 4 IRPA, Section 110(5). 5 Appeal Record, pp. 10-13. 6 Appeal Record, pp. 14-34. 7 Appeal Record, pp. 35-36. 8 Respondent's Record, pp. 13-16, 21-28, 53-55. 9 Respondent's Record, p. 11. 10 Respondent's Record, p. 18. 11 Respondent's Record, p. 50. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 13 IRPA, Sections 110(3) and 110(6). 14 Khosa, para. 89. 15 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 39. 16 IRPA, Section 3(2)(e). 17 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 80. 18 Iyamuremye, para 1. 19 Iyamuremye, paras. 39-40. 20 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 21 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 22 Dunsmuir, para. 47; Iyamuremye, para 3. 23 Refugee Appeal Division Rules, Section 3(3)(g)(i). 24 RPD's Record, pp. 43-45, Schedule 12: Additional Information - Refugee Claimants Inside Canada. 25 RPD's Record, pp. 9-10, Basis of Claim Narrative. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-02248