TB3-08198

RAD File No. / N° de dossier de la SAR : TB3-08198 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 3, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Marc J. Herman 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 Saint Lucia, 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 negative decision and to either refer the matter back to the RPD for redetermination or to substitute its own determination that the Appellant is a Convention refugee. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that she was the victim of sexual abuse in Saint Lucia, first by her stepfather, then by a man she was dating, XXXXX XXXXX , and also by his brother. In 1998, she came to Canada where she remained, without status, until she filed a refugee claim in May of 2013. She alleges that, upon return to Saint Lucia, she will be harmed or killed by Mr. XXXXX . [4] The Appellant's application for refugee protection was heard on July 15, 2013. In a decision of October 22, 2013, the RPD rejected the refugee claim. The panel noted that, while delay in seeking refugee protection is not always determinative of a claim, the Appellant's 15-year delay, even while she lacked status and risked deportation, was egregious. The RPD found that the Appellant had not provided a reasonable explanation for the delay and that it was therefore fatal to her credibility and to her refugee claim. [5] The Appellant submits to the RAD that the RPD made an unreasonable decision, that it failed to consider all of the evidence, that it improperly applied or failed to take into account the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution (the Gender Guideline) 1 and the Appellant's psychological report in relation to her delay in claiming, and that it erred by focussing only on delay in claiming and ignoring general principles of credibility. ANALYSIS Standard of Review [6] The Appellant argues that the RPD erred in its assessment of her credibility, and this appeal therefore raises questions of fact. [7] 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. [8] The Appellant submits that the standard of review for questions of fact and credibility is one of reasonableness: the RPD's findings must be justified, transparent, and intelligible. She argues that the RAD may grant relief where the RPD's decision is perverse, capricious, or not based on the evidence. For reasons set out below, the RAD agrees. [9] 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. [10] In Newton,4 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:5 (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. [11] 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.6 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. [12] 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. [13] 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.7 [14] 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. [15] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.8 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. [16] 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. [17] 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." [18] 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. [19] 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,9 and each can take notice of information and opinion within its specialized knowledge.10 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,11 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.12 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,13 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [20] 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.14 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...." [21] 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.15 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. [22] 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.16 [23] 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.17 The RPD's Findings [24] The Appellant argues that the RPD made various errors in rejecting her refugee claim. In the RAD's view, the RPD erred in failing to apply the Gender Guideline and the psychological report to its assessment of the Appellant's credibility. This error is fatal to the RPD's decision, and it is therefore unnecessary for the RAD to consider the other grounds of appeal. [25] The RPD questioned the Appellant on her very significant delay in claiming. She testified that she was unaware of the Canadian refugee system and ill advised about immigration rules, believing that Saint Lucians are not eligible for refugee protection. Although she felt the stress of being without status, she did not seek legal advice, nor did she visit a public library to gather information. After the alleged agent of persecution contacted her in 2012, she began to investigate ways in which to obtain status in Canada. She heard from friends about refugee protection and researched this on the internet. The Appellant explained to the RPD that she did not conduct such research earlier because of her state of mind and her fear of disclosing her past experiences. [26] The RPD did not accept the Appellant's explanations. It acknowledged that refugee claimants may fear or distrust persons in positions of authority, and noted that the Gender Guideline states that victims of gender-related persecution may feel shame, which might impede their ability to provide testimony. The RPD therefore "questioned the claimant with heightened sensitivity and did not ask for unnecessary details."18 However, it found that the Appellant is a resourceful individual who researched refugee protection online and engaged the services of counsel. It considered the Appellant's alleged fear of authority figures in St. Lucia but noted the she did not say she was afraid of authority figures in Canada. The RPD concluded that "her explanation for the lengthy delay is not a reasonable one,"19 and it found her to be generally lacking in credibility. [27] The RPD also briefly considered a psychological report presented by the Appellant.20 The psychologist diagnosed the Appellant as having suffered from Post-Traumatic Stress Disorder (PTSD) while living in Saint Lucia, wrote that "her lengthy history of abuse has eroded her confidence, her ability to trust others...." and that "her psychological condition remains of clinical concern. The notice of her upcoming hearing has forced many suppressed feelings to emerge and almost automatically, her past fears and anxieties have become prominent." [28] The RPD dismissed the report: I give this report little weight in the context of the Refugee Protection Division (RPD) hearing. The psychologist cannot categorically determine that the claimant's allegations are true. The psychologist's assessment is 'only as valid as the truth of the facts on which it is based.' I have determined that the claimant lacks credibility. Hence, the psychological assessment is afforded little weight in terms of establishing the claimant's allegations. A psychiatric report cannot remedy all deficiencies in a claimant's testimony. The same can be said of a psychological report. [29] The RPD was correct in noting that a psychological report does not serve to prove a refugee claimant's allegations of persecution. The Federal Court has observed that "just because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed."21 The RPD also appeared to take the report into account when it attempted to conduct the hearing in a sensitive manner. [30] However, the RPD failed to recognize that the psychological report was also relevant to the determinative issue in the Appellant's refugee application. The panel considered the Appellant's lengthy delay in claiming. It considered her testimony that she did not research refugee protection earlier "because of her state of mind; she feared disclosing her past experiences...." and did not accept this explanation. [31] The Appellant explained her delay as resulting from her mental condition and her reluctance to disclose past abuse. While the RPD cited the Gender Guideline and noted its caution that persecuted women may experience feelings of shame, it limited its application of this information to the questioning of the Appellant, and it did not seem to consider whether such shame might make an abused woman reluctant to file a refugee claim and disclose the abuse. Further, the RPD inexplicably rejected the Appellant's explanation about her state of mind without making reference to a psychological report which spoke directly to the Appellant's mental condition, including her inability to trust others and the emergence of past fears and anxieties. [32] As the RPD rejected the Appellant's refugee claim on the basis of credibility, and as this finding was based solely on her lengthy delay in claiming, the panel was required to consider that delay in light of the psychological report. Instead, the RPD simply stated that such a report cannot remedy all deficiencies in a claimant's testimony. This may be true, but that does not exempt the RPD from analyzing the determinative credibility issue with the assistance of the psychological report. [33] As the contents of the psychological report were relevant to the RPD's credibility findings, the panel should have taken the time to consider how the Appellant's medical condition affected her behaviour before making its credibility finding.22 [34] Although the RPD made reference to both the Gender Guideline and the psychological report, it failed to consider the central credibility issue-the delay in claiming and her explanation for that delay- in light of these documents. The RPD's reasons are therefore not justifiable, transparent, or intelligible. [35] The RPD's decision to reject the Appellant's refugee claim does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. CONCLUSION [36] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld February 3, 2014 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 5 Newton, para. 43. 6 IRPA, Sections 96 and 97. 7 Khosa, para. 89. 8 IRPA, Section 3(2)(a). 9 IRPA, Sections 170(g) and 171(a.2). 10 IRPA, Sections 170(i) and 171 (b). 11 IRPA, Section 170(b). 12 IRPA, Section 110(3). 13 Khosa, para. 89. 14 Newton, para. 80. 15 Khosa, para. 89. 16 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 17 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 18 RPD's Reasons, para. 27. 19 RPD's Reasons, para. 32. 20 RPD's Record, p. 54, Report of Dr. XXXXX . 21 Mico, Aleksander v. M.C.I., 2011 FC 964, para. 54. 22 Atay, Yilmaz, v. M.C.I., 2008 FC 201, para. 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08198