MB3-02123

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 : MB3-02123 Private Proceeding / Huis clos Reasons and decision - Motifs et décision Person who is the subject of the appeal XXXXXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 24, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Federal Court ordered the Refugee Appeal Division (RAD) to re-determine the appeal filed by XXXXX, a Cambodian citizen. [2] He appealed the decision of the Refugee Protection Division (RPD), which was rendered on June 11, 2013, rejecting his claim for refugee protection. On October 22, 2013, the RAD confirmed the RPD's decision because it was of the opinion that, "taken as a whole, the RPD's decision with respect to the appellant's credibility falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law." [3] Justice XXX ordered this matter to be re-determined because he was of the opinion that "the RAD misinterpreted its role as an appeal body in holding that its role was merely to assess, against a standard of reasonableness, whether the RPD's decision is within a range of possible, acceptable outcomes."1 [4] In his memorandum, the appellant asks the RAD to set aside the RPD's determination and grant him refugee status. [5] The appellant did not file any new evidence in support of his appeal and is not requesting that a hearing be held under subsection 110(6) of the IRPA. [6] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [7] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that XXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [8] The appeal is dismissed. FACTUAL BACKGROUND [9] The appellant, a young Cambodian, arrived in Canada on December 25, 2012, with a student visa that was issued in Bangkok on XXX, 2012. He filed a claim for refugee protection on January 16, 2013. He alleges, in his Basis of Claim Form (BOC Form), a well-founded fear of persecution by reason of real or imputed political opinion. He also alleges that, if he were to return, his life would be subjected to one of the risks set out in section 97 of the IRPA by police officers, officers of the party in power, the Parti du peuple cambodgien [Cambodian people's party]. [10] He alleges that he was arrested, detained and tortured by police officers on XXX, 2012, because he attended a speech by the parti Sam Rainsy [Sam Rainsy party], the main opposition party. [11] He alleges that, on XXX, 2012, he was again brought to the police station where he was tortured. He alleges that, on XXX, 2012, the police officers beat him at his home with an electric baton and that, on XXX, 2012, the police brought him to the police station where he was again tortured. Decision under review [12] On June 11, 2013, the RPD rejected the claim for refugee protection, finding that the appellant was not credible with regard to important aspects of his claim for refugee protection. The RPD raised the following points: - The refugee protection claimant travelled to Vietnam in XX 2012 to receive health care for the injuries inflicted by the police officers and alleged that he fears for his life because of the abuse he experienced. Nevertheless, he returned to Cambodia even though his life was in danger there; - The refugee protection claimant alleged that the police officers are persecuting him by reason of imputed political opinion. However, in XX 2012, he obtained a certificate of attitude issued by the chief of police in the commune where he resided; - The information contained in his visa application contradicted the statements made at the hearing, as well as the information included in the BOC Form. More specifically, to the question of whether he had ever been arrested, been charged with or convicted with any criminal offence in his country, he responded no in the visa file. However, in the BOC Form and at the hearing, he alleged that he was arrested and detained on two occasions; - The RPD drew a negative inference from the lack of evidence corroborating his allegations that he received medical services in Vietnam because of the injuries inflicted by police officers in Cambodia; - The RPD drew a negative inference regarding his credibility under the pretext that his statements, when examined in parallel with those made by his father in a letter attesting to the medical care he received in Vietnam, are contradictory; - Taking into account these various factors, the RPD found that the appellant is generally not credible and, consequently, he did not establish a serious possibility of persecution or that his life would likely be subjected to one of the risks set out in section 97 of the IRPA if he were to return. GROUNDS OF APPEAL AND REMEMDY SOUGHT Appellant's claims [13] In his memorandum, the appellant submits that the RPD erred in assessing his credibility. He argues that it: - undermined the appellant's credibility because he obtained a certificate of attitude without taking into account his age and his explanations;2 - unreasonably rejected the full content of the letter from the appellant's father regarding his medical condition;3 - erred when it criticized the appellant for not providing evidence in relation to the medical care received in Cambodia, even though this criticism can only be given once credibility is undermined, without taking into account the appellant's explanations;4 - erred when it criticized the appellant for choosing to live illegally in a country, Vietnam, rather than returning to his country and finding a real solution for his protection by pursuing his visa application in Canada;5 - failed to assess the appellant's credibility in relation to the testimony given at the hearing;6 and - rejected his claim for refugee protection on the basis of peripheral factors.7 RAD'S ROLE AND FUNCTIONS [14] In his memorandum, the appellant submits that the RAD can hear appeals de novo, similar to the Immigration Appeal Division (IAD), that the RAD owes no particular deference to the RPD and that, contrary to the Federal Court, it must analyze the evidence before it and draw its own conclusions.8 [15] Relying on the reasoning of the Quebec Court of Appeal in Parizeau v. Barreau du Québec,9 Justice Shore states, at the judicial review of the decision of my colleague in this case, that: [27] ... [T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ... [28] ... [As] a specialized (if not overspecialized) tribunal...the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). 10 [16] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. According to Justice Shore, "even though there are similarities, these standards are different." [17] Justice Shore was the first to rule on the RAD's jurisdiction when it reviews an RPD decision. Since then, the Federal Court has made a number of rulings. Before it are two significant lines of jurisprudence. [18] Justices Roy and Leblanc11 also agree in the sense that an error must be "palpable and overriding" to "succeed on appeal." Justice Roy adds that the appeals before the RAD are meant to be generous but that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."12 He is of the opinion that: "It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)." [19] The other line of jurisprudence, put forward by Justice Phelan in Huruglica,13 proposes a different approach. According to Justice Phelan, "the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."14 [20] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may well be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [21] Despite these different approaches, the Federal Court recognizes the RAD's "expertise" on issues relating to refugees. According to the Federal Court, broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals."15 Decisions rendered to date indicate that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."16 [22] The statutory requirements precisely indicate the allowable grounds for appeal,17 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the impugned determination, to set it aside and substitute the determination that, in its opinion, should have been made, or to refer the matter to the RPD for re-determination, giving the directions that it considers appropriate.18 [23] An appeal before the RAD is not in the nature of a judicial review,19 nor is it an opportunity for a [translation] "new proceeding." In order to conduct its own assessment of the evidence and arrive at its own opinion, the Division generally proceeds without a hearing, on the basis of the appeal record.20 [24] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of decisions before the RAD. In fact, it is stated that the RAD may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraphs 111(1)(a) or (b) without hearing evidence that was presented to the RPD.21 [25] In light of the Court's statements to date, it seems to me that the RAD, a tribunal specializing in refugee protection matters, must review all the evidence to determine whether the decision is well founded with regard to the evidence before the RPD and any additional evidence admitted as new evidence that it deems admissible within the meaning of subsection 110(4) of the IRPA. In reviewing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position over the RAD. [26] Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, there is reason to intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [27] With regard to errors of law, Justice Shore states that, "the RAD must be able to correct any error of law."22 MERITS OF THE APPEAL [28] Before the RPD, the determinative issue was the appellant's credibility. Assessing credibility is a complex process for which the RPD is better positioned because it has the advantage of seeing and hearing the refugee protection claimants or witnesses.23 The RAD only benefits from this opportunity in the circumstances set out in subsection 110(6) of the IRPA. However, in this case, no new evidence was filed to justify a hearing being held. [29] The grounds of appeal raised by the appellant can be summarized as follows: the RPD erred in assessing his credibility by focusing on peripheral factors of the claim for refugee protection. Furthermore, the member was not impartial or neutral in assessing his claim for refugee protection. [30] After having read the transcript of the hearing before the RPD, and reviewed all the evidence, I am of the opinion that the RPD rendered the correct decision. Panel's impartiality [31] In this regard, the appellant's arguments can be summarized as follows: He criticized the member for having asked numerous theoretical questions for the sole purpose of justifying a rejection. The member's questions were confusing and so poorly formulated that the interpreter, the appellant and counsel asked the member to reformulate them. For example, he cited the series of questions regarding the visa file, more specifically, in relation to the fact that he did not mention being arrested in Cambodia. According to the appellant, this biased approach shows that the panel was not impartial or neutral in its assessment.24 [32] As pointed out by the Court: "An allegation of bias is a serious matter" that must be "properly supported by credible evidence and sound reasoning."25 The threshold established in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, pages 394 and 395, is high: ... [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." [33] After having listened to the recording of the hearing, I am of the opinion that it was not established that the member acted with bias, even if he was insistent in his questions and they were sometimes awkwardly asked. [34] The evidence on the record shows that counsel had the opportunity to intervene as the member was asking questions, and to clarify or reformulate the questions that were not always understood by the interpreter or the appellant. After the member finished his questions, counsel was invited to ask his own questions, which he did in a short amount of time, considering that he had had the opportunity to do so throughout the hearing. [35] A review of all the evidence shows that the member took into account all the evidence in making his decision. Consequently, it is not a case where "an informed person, viewing the matter realistically and practically-and having thought the matter through" could conclude that the member demonstrated a bias. Return to Cambodia [36] The appellant claimed that his life has been in danger since XXX, 2012, when he attended a speech by the main opposition party. He was allegedly detained on two occasions by police officers and beaten or tortured on three occasions. He allegedly sustained injuries that required him to go to Vietnam for medical evaluations. Despite the danger awaiting him, he returned to Cambodia. [37] I am of the opinion that this return to Cambodia cannot be easily reconciled with the danger that he claims is waiting for him. In this case, he fears being tortured or even killed. [38] Relying on various decisions of the Federal Court,26 I would add that, under section 96 of the IRPA, the appellant did not establish the subjective element of his fear of persecution on the ground of "real or imputed political opinion". On this topic, I cite the statements of Justice Tremblay-Lamer in Kamana27 to the effect that: The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition-subjective and objective-must be met. [39] In addition, I am of the opinion that, this return to Cambodia seriously undermines the credibility of his claims that his life is at risk because of the reasons alleged. Furthermore, according to the information in the passport, this is not the only travel outside the country following the alleged issues. A review of the passport shows that the appellant travelled to Thailand on XXX, 2012, and XXX, 2012. He returned to Cambodia after these trips. This leads me to conclude that he is probably not subjected to the alleged risk. Certificate of attitude [40] The panel agrees with the RPD that it does not seem credible that the police chief of his commune of residence would issue a certificate of attitude to a young man suspected of having opinions contrary to those of the government in power, who was allegedly arrested in XXX 2012 and XXX 2012, and who was allegedly beaten at his home by police officers in XXX 2012. This certificate of attitude, included in the visa file,28 suggests that the alleged problems probably did not occur. Lack of corroborating evidence [41] Of course, it is erroneous to draw a negative inference regarding credibility from the mere fact that a document was not produced in support of a claim for refugee protection.29 However, because the credibility of the refugee protection claimant was already undermined, the RPD was justified in taking this factor into account. Section 106 of the IRPA, rule 7 of the RPD Rules and the BOC Form set out that the refugee protection claimant must take reasonable steps to corroborate the information in their claim for refugee protection. In this case, the appellant did not establish that he had made reasonable efforts in this regard. He stated that it was impossible for him to obtain a copy of medical documents attesting to his medical consultation in Vietnam. Nevertheless, it is important to point out that the appellant was also hospitalized in Cambodia and that he received emergency care there, according to his testimony. His parents, who are [translation] "rich" people, still reside in Cambodia. The appellant did not establish that he had taken steps with his parents to obtain any document attesting to the medical care received in Cambodia. His lack of effort in this regard undermines his credibility, especially since the RAD points out that the appellant did not leave his country in a hurry. He allegedly received health care in XX 2012 in Cambodia and left his country in XX 2012. It is interesting that the appellant did not take any steps to obtain medical documents to corroborate his hospitalization in Cambodia. His arguments that the RPD did not take into account his explanations suggesting that his parents did not request documents after his hospitalization because they feared the authorities, do not seem credible in this case, particularly because the doctor is not obligated to state the circumstances of the injuries. Contradiction between the visa file and statements in the BOC Form and at the hearing [42] Another point raised by the appellant is that the RPD erred in concluding that he failed to write that he was arrested in Cambodia in the visa file. [43] The evidence shows that the appellant took steps to study in Canada before the start of his alleged problems in XX 2012. The documents for the visa application are dated XX 2012. Although I am sensitive to his arguments that if he had mentioned his alleged arrests, the visa would likely not have been issued, I find that this factor alone was not determinative in the RPD's assessment of his credibility. As I have already mentioned, I am of the opinion that the RPD rendered the correct decision in this case. [44] In this case, a number of factors led the RPD to seriously doubt the appellant's credibility and find that, because of his lack of credibility in relation to important facts in his claim for refugee protection, it does not grant any credibility to his testimony as a whole. This approach was accepted by the Federal Court of Appeal in Sheikh.30 Consequently, it was not established that the member erred in reaching this conclusion. [45] Taking into account all the evidence, I am of the opinion that the appellant did not discharge his burden of establishing, on a balance of probabilities, the factors at the heart of his claim for refugee protection, in particular, his arrests and the injuries sustained because of them. Nor did he establish that the RPD's decision is erroneous or that it fails to take into account the evidence on the record. [46] In this case, there is no reason to proceed with a separate analysis of the claim for refugee protection under section 97 of the IRPA given that his allegations of persecution based on imputed political opinion are not credible.31 CONCLUSION [47] For these reasons, after having listened to the recording of the hearing and reviewed all the evidence filed, the RAD confirms the RPD's determination, namely, that XXXXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [48] The appeal is dismissed. Maria De Andrade Me Maria De Andrade March 24, 2015 Date IRB translation Original language: French 1 XXXXXXX v. Canada (Minister of Citizenship and Immigration), 2014 FC XXXXXX. 2 Appellant's memorandum, pages 77 and 78. 3 Idem, page 79. 4 Idem, pages 79 and 80. 5 Idem, page 80. 6 Idem, page 75. 7 Idem, page 81. 8 Idem. 9 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 10 Supra, footnote 1. 11 Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 13 Huruglica v. Canada (Minister of Citizenship and Immigration),. 14 Idem. 15 xxxxxxx v. Canada (Citizenship and Immigration), 2014 FC xxxxxxx. 16 Idem. 17 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 18 Subsection 111(1) of the IRPA. 19 xxxxxxx v. Canada (Minister of Citizenship and Immigration), 2014 FC xxxxxxx; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 20 RPD record, parties' memorandum or any [translation] "new admissible evidence." 21 Subsection 111(2) of the IRPA. 22 xxxxxx and Alvarez. 23 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084, para. 17, Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, para. 20. 24 Appellant's memorandum, pages 76, 77 and 81. 25 Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627. 26 Geron v. M.C.I. (F.C. No. IMM-4951), Nazir v. M.C.I. (F.C. No. IMM-3857-04). 27 Kamana, Jimmy, v. M.C.I. (No. IMM-5998-98), Tremblay-Lamer, September 24, 1999. 28 RPD record, pages 117 and 118. 29 Pinedo v. Canada (Minister of Citizenship and Immigration), 2009 FC 1118. 30 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL). 31 Emangongo v. Minister of Citizenship and Immigration, Justice Kelen, 2010 FC 208; Ayaichia v. Canada (Minister of Employment and Immigration), 2007 FC 239. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB3-02123 8 RAD.25.02 (2014.09.11) Disponible en français