MB3-03477

RAD File No. / N° de dossier de la SAR : MB3-03477 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXXX XXXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision December 9, 2013 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Luciano Mascaro Conseil(s) du (de la/des) Appelant(e)(s) 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 INTRODUCTION [1] XXXXX XXXXX, a citizen of Haiti, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] I find the decision of the RPD to be wrong in fact. I am unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the issue of the appellant's credibility and whether he is a "Convention refugee" or a "person in need of protection." [3] Pursuant to subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [4] The appellant is a 35-year-old man who alleged before the RPD that in XXXXX 2010, he bought a two-bedroom house in the city of XXXXX XXXXX and that he was threatened and robbed because of that purchase. [5] The appellant alleged that his motorcycle was stolen on XXXXX, 2012, by two armed individuals who also tried to kidnap him. He alleged that his second motorcycle was stolen by three armed individuals on XXXXX 2012. [6] The appellant alleged that, in XXXXX 2012, he was threatened on the telephone by a person who identified himself as XXXXX XXXXX because of the purchase of the house in XXXXX 2010. [7] The appellant alleged that on XXXXX, 2012, some people broke into his home, while he was absent, and ransacked it. He alleged that he received another threatening call from XXXXX XXXXX on XXXXX, 2013. [8] The appellant left his country on XXXXX, 2013, and came to Canada, where he claimed refugee protection. [9] The RPD concluded that key aspects of the claim were inconsistent and were not sufficiently explained, including the purchase of the home, the telephone threats, the appellant's behaviour following the alleged threats, and the break-and-enter on XXXXX, 2012. Consequently, it found that the appellant's credibility was undermined. [10] The RPD also concluded that the appellant had not demonstrated that the thefts and the break-and-enter of which he was a victim were related to the purchase of the house or to the threats from XXXXX XXXXX, concluding instead that they were random crimes. As a result, it determined that the appellant was not a "Convention refugee" or a "person in need of protection." [11] The appellant submits to the RAD that the RPD erred as follows in its assessment of his credibility: * by finding that his credibility with respect to the purchase of the home was undermined, particularly in light of the notarized deed of sale that was entered into evidence; * by finding that his testimony about the threatening calls was vague and evasive, without providing examples on this point; * by finding that it was inconsistent that he did not move or change jobs to avoid the agent of persecution following the threats and the break-and-enter in XXXXX 2012; * by drawing negative inferences from his testimony that the people who broke into his home in XXXXX 2012 were armed, given that he was not there; and * by concluding that he had not demonstrated a connection between the telephone threats and the crimes committed against him. [12] For these reasons, the appellant requests that the RAD set aside the RPD decision and make any order that it considers appropriate. STANDARD OF REVIEW [13] The IRPA does not expressly set out the standard of review that the RAD should apply when it reviews decisions rendered by the RPD, nor is that standard of review directly set out in the case law. In this case, the appellant does not specifically propose in his memorandum what that standard of review should be. [14] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada revisited the foundations of judicial review and the standards of review that apply in various situations. In order to simplify the analysis, the Supreme Court decided that, henceforth, there ought to be two standards of review: correctness and reasonableness. [15] Although the RAD does not conduct judicial reviews of RPD decisions, but rather acts as an appellate body within the same administrative tribunal, the IRB, I am of the opinion that, absent more direct guidance from higher courts, the principles developed in Dunsmuir can be applied to the RAD. [16] In paragraph 51 of its decision in Dunsmuir, the Supreme Court wrote: "...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness". [17] In this case, the issue of whether the RPD erred in its assessment of the appellant's credibility is a question of fact. Consequently, I will apply the reasonableness standard of review. [18] At paragraph 47 of Dunsmuir, the Court states that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Judicial deference is therefore required, and deference must be given to the RPD decision. ANALYSIS [19] The issue in this case is whether the RPD erred in its assessment of the appellant's credibility. [20] Regarding the purchase of the house that, according to the appellant, was the source of his problems, the RPD concluded in its reasons, that it [translation] "...draws a negative inference about his credibility regarding the purchase of the house" (see paragraph 16 of the RPD's reasons), first because the deed of sale entered into evidence indicates that the house was purchased on XXXXX, 2011, and second because the RPD was of the opinion that the appellant was unable to provide details about the purchase. [21] I find that the RPD's conclusion is unreasonable. First, in my opinion, the RPD's conclusion is not clear: the RPD drew a negative inference about the appellant's credibility regarding the purchase of the house, but does that mean that the RPD did not believe that the claimant bought the house? If so, what probative value did it give to the deed of sale entered into evidence, which confirms that a purchase was made? I am of the opinion that the RPD should have analyzed this when it assessed the appellant's credibility on this issue. Second, I am of the opinion that the fact that the appellant was unable to state when in 2010 he made payments for the purchase of the house-which was apparently finalized in XXXXX 2011 according to the deed of sale-for which he was criticized by the RPD, is a minor oversight, especially since he testified that he had made two payments in 2010 and one on XXXXX 2011. The RPD also did not indicate what other details about this purchase it would have expected him to provide in his testimony. [22] The RPD then found that it did not believe that the appellant received two threatening calls from someone named XXXXX XXXXX, as he alleged, and concluded that the appellant's testimony on this point was vague and evasive (see paragraphs 17 to 20 of the RPD's reasons). The appellant submits that the RPD's finding is capricious and, therefore, wrong because, on one hand, it gave no examples of the testimony that it considered to be vague and evasive, and on the other, it rejected his testimony that the police had told him that XXXXX XXXXX was a man who was causing problems for them, because it arose [translation] "too late." [23] I agree with the appellant's submissions. As an example of his vague and evasive testimony, the RPD mentioned the fact that the appellant repeated the threatening statement that had been made to him during the calls-that statement also appears in the police complaint entered into evidence-but the RPD did not indicate what other details it would have expected the appellant to give about the calls. In addition, the RPD did not indicate what probative value it gave to the police complaint entered into evidence that mentions these telephone threats (see page 105 of the RPD record). [24] I am also of the opinion that it was unreasonable for the RPD to reject the appellant's testimony when he eventually provided details, which, moreover, were not about the calls as such but about a statement made by the police about XXXXX XXXXX, simply because that detail [translation] "came up too late" (see paragraph 20 of the RPD's reasons). Why did the RPD see the need to repeat the questions about the details of these calls, as it wrote that it had done (see paragraph 19 of the reasons), if it concluded that the details were provided too late when the appellant eventually did give them? As a result, I find that the RPD's conclusion in this regard is unreasonable. [25] The RPD was also of the opinion that the appellant's behaviour-he did not move or change jobs following the threatening calls-was inconsistent (see paragraph 21 of the RPD's reasons). In my opinion, this element on its own is not sufficient to reject the appellant's entire testimony about the threats, especially since there is no indication in the reasons that the RPD confronted the appellant about this or considered his explanations. [26] The RPD also found that the appellant's credibility was undermined by the fact that he testified that the people who had entered his home in XXXXX 2012 were armed, given that he had not been there to make that observation (see paragraph 22 of the RPD's reasons). The appellant explained that he assumed that these individuals had been armed because criminals in Haiti are, according to him. In my opinion, it was unreasonable for the RPD to draw the conclusion it did simply because the appellant was apparently speculating on this matter (see paragraph 22 of the RPD's reasons), especially since that [translation] "speculation" appears to me to be incidental in the context of the appellant's allegations as a whole. [27] Finally, the RPD concluded that the appellant had not demonstrated that there was a connection between the thefts and the ransacking of his home on the one hand, and the threatening calls from XXXXX XXXXX on the other (see paragraphs 24 to 29 of the RPD's reasons). That can only be an alternative conclusion, since the RPD had already found that it did not believe that the appellant had received threatening telephone calls from XXXXX XXXXX. I found above that that conclusion by the RPD was unreasonable. [28] Regardless, in my opinion, the RPD's conclusion about the connections between the events is also unreasonable because it is primarily based on the fact that the people who stole the motorcycles did not mention XXXXX XXXXX or the house that had been purchased. The RPD also did not state what probative value it gave to the appellant's explanations about this, namely, that he connected these events because he had never had any problems before the threats from XXXXX XXXXX and because XXXXX XXXXX had in fact threatened to retaliate (see paragraph 26 of the RPD's reasons). I also note that there is a certain logical sequence to the events alleged by the appellant that the RPD should have considered when analyzing the connections between the events, as with the fact that the appellant also connected these events because the individuals who had broken into his home in XXXXX 2012 ransacked it but did not steal anything. [29] For all these reasons, I find that the RPD's decision is unreasonable because it does not fall with the range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDIES [30] I conclude that the RPD's decision is wrong in fact. I am unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD with respect to the issue of the appellant's credibility and whether he is a Convention refugee or a person in need of protection. Under subsection 111(1) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. [31] The appeal is allowed. Normand Leduc Normand Leduc December 9, 2013 Date IRB translation Original language: French REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / VICTIM OF CRIMINALITY / KIDNAPPING / ASSESSMENT / CREDIBILITY / MALE / REFER THE MATTER / HAITI 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-03477 8