TB3-09110

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 : TB3-09110 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 25, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel L. Winbaum 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] XXXXX XXXXX XXXXX (the Appellant), a citizen of the Democratic Republic of Congo (DRC), 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 decision of the RPD and to either find her to be a Convention refugee or to 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 was an activist and advocate for women's rights in the DRC, where she worked for a non-governmental organization known as XXXX XXX. She claimed that, as a result of her efforts to protect and educate women, she was targeted by militants and government forces, and she had to flee on several occasions. She sought a Canadian visa in 2011, but her application was rejected, as the visa officer suspected that her documents were fraudulent. In XXXX of 2013, she was successful in obtaining a visa, and she traveled to Canada in early XXXX. In August, she made a claim for refugee protection. [4] The Minister of Citizenship and Immigration Canada (the Minister) intervened in the Appellant's claim before the RPD. The Minister pointed out that the Appellant sought a Canadian visa in 2011, but she did not include this information in her Basis of Claim (BoC) form, and also that the Appellant claimed she did not leave the DRC before 2013 because of a lack of financial resources, which is inconsistent with having applied for a visa in 2011. The Minister asked the RPD to note that the Appellant provided different employment information in the 2011 application than in her BoC. Because of these credibility concerns, the Minister asked the RPD to find that the Appellant is not a Convention refugee or person in need of protection. [5] The Appellant's application for refugee protection was heard on October 15, 2013. By a decision of November 20, 2013, the RPD rejected the claim. The panel made negative credibility findings on the basis of the Appellant's multiple exits and re-entries to the DRC, on her vague evidence in respect to the work she allegedly performed for XXXX XXX and the nature of the organization, and on her failure to leave the DRC at an earlier date. It gave little weight to documents she submitted from XXXX XXX because of her vague evidence about how these documents were obtained and because she had previously admitted to using fraudulent documents in her 2011 attempt to enter Canada. [6] The Appellant submits that the RPD made a reviewable error when it concluded that her employment documents were not authentic, when it considered her evidence about XXXX XXX and her work for that organization, when it failed to review the original documents, and when it accepted her explanation for the prior use of fraudulent documents but then used those same documents to impugn the authenticity of her further documents. The Appellant also argues on appeal that the RPD failed to consider documentary evidence relating to conditions in the DRC, particularly in respect to sexual violence against women. The Appellant also submits to the RAD that the RPD erred in considering her delay in departing the DRC, and her returns to that country. ANALYSIS Standard of Review [7] The Appellant submits that the RPD erred in its consideration of the evidence and in its credibility findings. This appeal therefore raises questions of fact. [8] 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. [9] The Appellant argues that the provisions of IRPA-which give the RAD broad powers to dispose of an appeal, including the power to substitute its own decision for that of the RPD-are more consistent with a true appeal than with an application for judicial review. The RAD should therefore show no deference to the findings of the RPD, and, in the Appellant's submission, the RPD's decision should be reviewed on a standard of correctness. [10] 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. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,2 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,3 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 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 an 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 questions in issue are ones 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 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 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 made various errors in reaching its determination that she is not a Convention refugee or person in need of protection. [26] Evidence of employment with XXXX XXX: The Appellant submits that the RPD erred when it found that she gave inconsistent evidence about whether XXXX XXX is an international organization. She submits to the RAD that she misunderstood the term "international organization" and, in fact, provided work documents that show the organization also has locations in Burundi and Rwanda. She submits that she testified that she only knew the location of the organization's offices in Rwanda and Burundi but that she did not physically attend at those offices. [27] The RAD has reviewed the audio recording of the RPD's proceeding. The Appellant did initially refer to XXXX XXX as a local organization. When asked whether it is an international organization, she paused and then replied that it is not. However, her evidence was also clear that XXXX XXX has offices in Burundi and Rwanda. In the RAD's view, it would be unreasonable to make a negative credibility finding on the basis of the Appellant's understanding of what constitutes an international organization. However, the RPD's negative finding in respect to her evidence about XXXX XXX was not limited to its local or international character. The RPD noted that the Appellant could not specify the organization's activities outside of the DRC, even though she regularly visited those countries; she also gave hesitant and vague answers about her day-to-day work for the organization. The RAD's review of the audio recording confirms that the Appellant's evidence about her work for the organization-a key element of her claim-was indeed hesitant and vague. The RAD finds that it was reasonable for the RPD to draw a negative credibility conclusion based on the Appellant's evidence about XXXX XXX. [28] The Appellant argues that the RPD erred by failing to review her original documents, which were not available at the time of the hearing. According to the RPD's record, the Appellant's counsel wrote to the RAD about a week after the hearing, and before the rejection of the claim, offering to provide the original documents.17 It does not appear, from the RPD file, that the panel requested or examined the documents. [29] In the RAD's view, it was not an error for the RPD to give these documents little weight, even without examining the originals. The RPD's rationale for assigning little probative value to this evidence had nothing to do with its appearance. Instead, the RPD found that the Appellant gave vague and unclear testimony about the manner in which these documents were obtained. There is support in the audio recording of the proceeding for this finding: the Appellant testified that a co-worker went to get the documents from one of the houses in which she had stayed, but this evidence was not specific about the house from which the documents were allegedly retrieved. The RPD also had credibility concerns with the Appellant's testimony about her work for XXXX XXX. In this context, it was reasonable for the panel to give the XXXX XXX documents little weight, and an examination of the originals would have done nothing to cure the defects in the Appellant's evidence in respect to those documents. [30] The RPD also gave the XXXX XXX documents little weight because the Appellant had previously used false documents in her failed Canadian visa application. The Appellant argues to the RAD that it was unfair for the RPD to first accept her explanation for the use of the false documents and then to use that deception as a basis to impugn the authenticity of her further documents. She argues that it is a reviewable error for the RPD to first determine that a claimant is not credible and then to use that lack of credibility as a basis for giving little weight to corroborating evidence. [31] The RPD did consider the Appellant's prior use of false documents. It recognized that individuals fleeing for their lives will reasonably resort to any means in order to find safety, and therefore it did not make an adverse credibility finding on the Appellant's use of false documents to support her 2011 Canadian visa application. In the RAD's view, there is nothing unreasonable in the RPD's logic here. The RPD noted that the Appellant had previously used false documents in an attempt to enter Canada, but it did not make a negative credibility finding. However, as it analyzed documents relating to her refugee claim, the panel did consider that she previously had been able to procure false documents and had been willing to use these to further her goal of entering Canada. To put it simply, the RPD reasoned that if the Appellant was willing to rely on false documents in the past in order to gain entry to Canada, she might be willing to rely on false documents in her refugee claim in order to gain status in Canada. This was a reasonable conclusion. [32] Country condition documents: The Appellant argues that the RPD erred by failing to refer to documentary evidence relating to the country conditions in the DRC. The RAD disagrees. The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.18 The Appellant points out that, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.19 In this matter, however, the documentary evidence does not conflict with the RPD's decision. The panel did not dispute that there is much gender-related violence and persecution in the DRC. It simply did not believe that the Appellant was an activist for women's rights, or that she was threatened by militants or government officials because of her gender, her activist activities, or her education. As such, even objective evidence about gender-related persecution in the DRC could not have led to a different determination of the claim. [33] Delay in departure and re-availment: The Appellant submits to the RAD that the RPD erred by making a negative credibility finding on her delay in leaving the DRC. She argues that her trips to other countries did not provide realistic opportunities for safety, and that the RPD failed to refer to any documentary evidence suggesting that she would be safe in neighbouring countries. The Appellant also submits that the RPD erred in considering the matter of re-availment, as the panel did not point to any evidence indicating that the DRC army and border officials share information about citizens re-entering the country, or that a system exists to track individuals leaving and entering the country. [34] The Appellant attempted to come to Canada in 2011 but failed. She remained in the DRC for two years. Although she repeatedly left the country for places such as Tanzania-which the RAD notes is a signatory to the refugee Convention-she made no effort to seek safety in those places. Although she visited Burundi and Rwanda-where XXXX XXX apparently has offices-she did not seek the help of her employer to find safety in those countries or elsewhere. Although she allegedly feared for her life in DRC, she returned time after time, not only to the country, but to her own area. [35] The absence of subjective fear is fatal to a refugee claim, and the RPD is entitled to hold against the Appellant her delay in removing herself from danger.20 Not only did the Appellant's evidence suggest a lack of subjective fear, but it also raised credibility concerns. Her actions stood in contradiction to her allegations. She alleged she was afraid for her safety and even her life, but she did not act in a manner consistent with such fear. [36] The Appellant submits to the RAD that there is no evidence that the government authorities in the DRC had the coordination, communication, or technology to detect her frequent re-entries. In the RAD's view, this argument misses the point. The RPD's finding is not premised only on the assumption that the Appellant should fear being detected upon entering the DRC. More importantly, it focuses on the fact that she continued to voluntarily return to the place where she allegedly fears for her life. [37] The Appellant also argues on appeal that the RPD failed to refer to "any documentary evidence that would suggest that the Appellant would be safe based on specific country conditions" in neighbouring countries. In fact, the RPD made its negative finding on the Appellant's delay in permanently leaving the DRC and on her frequent travel and returns to the place of alleged persecution. The RPD found it unreasonable that she would delay in leaving, and then would continue to return, when she had valid travel documents and in fact traveled frequently. The RAD agrees, and it finds that the RPD's conclusion here was a reasonable one. [38] For the reasons set out above, the RAD finds that the RPD did not err when it found the Appellant to be lacking in credibility, or when it found that she is neither a Convention refugee nor a person in need of protection. CONCLUSION [39] 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 March 25, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 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. 37, Letter of October 21, 2013. 18 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 19 Nasufi v. Canada (Citizenship and Immigration) 2011 FC 586; Khan v Canada (Minister of Citizenship and Immigration), 2003 FC 1076; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425. 20 Llorens Farfan v. Canada (Citizenship and Immigration), 2011 FC 123, paras. 13-16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-09110