MB4-00034

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 : MB4-00034 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person Who Is the Subject of the Appeal XXXXX XXXXX XXXXX Personne en cause Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision March 12, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the Person Who Is the Subject of the Appeal Me Anthony Karkar Conseil de la personne en cause Designated Representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXXX XXXXX XXXXX, a citizen of Egypt, is appealing the Refugee Protection Division (RPD) decision rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that XXXXX XXXXX XXXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. BACKGROUND [3] The appellant alleged in his Basis of Claim Form (BOC Form) filed with the RPD that he was arrested in 2012 at a roadblock by [translation] "extremists who were in power," who took his car, because he is a member of the [translation] "opposition." He alleged that he was targeted by the forces of the regime for the same reason. [4] The appellant arrived in Canada in XXXXX 2013 with a Canadian visa that he obtained in Saudi Arabia. He claimed refugee protection on June 26, 2013. [5] The RPD rejected the claim for refugee protection on the ground that the appellant's essential allegations were not credible. [6] Before the RAD, the appellant is arguing that the RPD erred in its assessment of his credibility. [7] For this reason, he is asking the RAD to set aside the RPD decision and grant him refugee protection or, in the alternative, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW [8] The IRPA does not expressly set out the standard of review that should be applied by the RAD when reviewing decisions rendered by the RPD, nor is that standard of review directly set out in the case law. In his memorandum, the appellant makes no submissions regarding what standard should be applied. [9] In Dunsmuir,1 rendered in 2008, the Supreme Court of Canada revisited the foundations of judicial review and the standards of review applicable in various situations. In order to simplify the analysis, the Supreme Court determined that there should now be only two standards of review: correctness and reasonableness. [10] 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 the higher courts, the principles developed in Dunsmuir can be applied to the RAD. [11] In paragraph 51 of its decision in Dunsmuir, the Supreme Court states the following: ... 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 while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. [12] I am of the opinion that, in this case, the issue of whether or not the RPD erred in its assessment of the appellant's credibility is a question of fact. I will therefore apply the standard of review of reasonableness here. [13] In 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 it 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 [14] The issue in this case is whether or not the RPD erred in its assessment of the appellant's credibility. [15] In its reasons, the RPD concludes that the appellant was not a credible witness and that it does not believe his story, for the following reasons: [16] The RPD drew negative inferences from the omission of two important events from the appellant's BOC Form, events which the appellant testified were the reason he left his country. The RPD did not find the appellant's explanations on this subject reasonable, namely that he had not written everything out and that he was using the present opportunity to tell his story, stating that he felt good in Canada (see page 3 of the RPD's reasons). [17] The RPD then drew negative inferences from contradictions regarding where in Egypt the appellant's wife and children allegedly were. The appellant testified that he had relocated them to a city called XXXXX (phonetic), whereas he wrote in response to question 5 of his BOC Form that they were still living in the city of XXXXX. The RPD considered the appellant's explanations on this subject to be contradictory (see pages 3 and 4 of the RPD's reasons). [18] The RPD also drew negative inferences from the appellant's failure to state in his BOC Form that he feared the members of the Muslim Brotherhood political party, as he testified, having instead written that he feared [translation] "extremists" (see page 5 of the RPD's reasons). [19] The RPD then drew negative inferences from contradictions in the appellant's testimony regarding the incident described in his BOC Form that allegedly occurred in 2012. The appellant testified that this was the same incident that he had testified about at the start of the hearing, which the RPD had determined constituted an important omission; however, the RPD noted that the facts he described orally differed from what he had written in his form (see page 5 of the RPD's reasons). [20] Finally, the RPD drew negative inferences regarding the appellant's overall credibility from the fact that his passport states that he works as a XXXXX though in reality, he is a XXXXX, and from his failure to declare in his IMM 5669 form that he was deported from the United States in 2009 (see page 6 of the RPD's reasons). [21] The appellant's memorandum is fairly brief. [22] In paragraphs 13 and 14, he argues that the RPD erred in finding that he had failed to mention in his BOC Form that he feared the Muslim Brotherhood, because he had written that he had had problems with the [translation] "extremists in power," which meant the Muslim Brotherhood. [23] While it is true that the Muslim Brotherhood may have been the extremists in power at that time, that is not the explanation that the appellant gave the RPD. Rather, he explained that he had mentioned the Muslim Brotherhood while his form was being completed and did not know why this was not included in the form that was filed (see page 5 of the RPD's reasons). In my opinion, it was therefore open to the RPD to conclude as it did on this subject, even though this omission or contradiction alone would probably not be fatal to the claim for refugee protection. [24] In paragraph 15 of his memorandum, the appellant argues that the RPD erred in considering the omissions it had noted to be important. [25] In my opinion, it was open to the RPD to draw the conclusions it did regarding the omissions from the BOC Form. These omissions (mentioned above in paragraph 16) were important, because they go to the heart of his claim for refugee protection-they concern the past events that allegedly led the appellant to leave his country. [26] Finally, in paragraph 18 of his memorandum, the appellant argues that the RPD erred in finding that his credibility was undermined by the indication in his passport that he worked as a XXXXX rather than as a XXXXX, because this was a peripheral element of his claim. [27] I agree that this is not a determinative element in the claim for refugee protection. However, as I mentioned above, the RPD's conclusions are based on a number of elements that are, in my opinion, important to the claim. [28] In light of the foregoing, I am of the opinion that, taken as a whole, the RPD decision is reasonable because it is intelligible, transparent and falls within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law. REMEDIES [29] For all these reasons, I confirm the RPD decision, that XXXXX XXXXX XXXXX is not a "Convention refugee" or a "person in need of protection." [30] The appeal is dismissed. Normand Leduc Normand Leduc March 12, 2014 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-00034 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-00034 2