Docket: IMM-7835-19
Citation: 2021 FC 549
Toronto, Ontario, June 04, 2021
PRESENT: Justice A.D. Little
| BETWEEN:
|
| CARMEN ALVARENGA TORRES,
VINICIO ALBERTO MONTERROZA VALLADARES,
ALBERTO JAVIER MONTERROZA ALVARENGA,
MAYA ALONDRA MONTERROZA ALVARENGA, and MATEO VINICIO ALVARENGA TORRES
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
In this application for judicial review, the applicants request that the Court set aside a decision of the Refugee Appeal Division of the Immigration and Refugee Board (the “RAD”
) dated November 23, 2019. The RAD confirmed a decision of the Refugee Protection Division (the “RPD”)
, finding that the applicants are neither Convention refugees nor persons in need of protection pursuant to s. 96 and subs. 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
[2]
The applicants raised issues about the role and powers of the RAD on an appeal from the RPD. As explained in these Reasons, those arguments cannot succeed based on the language in s. 111 of the IRPA and the Federal Court of Appeal’s decisions interpreting that provision.
[3]
In addition, I conclude that there is no basis to interfere with the RAD’s decision on the merits.
[4]
The application must therefore be dismissed.
I.
Events Leading to this Application
[5]
The applicants are a family and are all citizens of El Salvador. One of the minor applicants was born in the United States and is therefore also an American citizen. The claims of the minor applicants were represented by the principal applicant, Ms Carmen Alvarenga Torres (“Ms Alvarenga”
).
[6]
The family fled El Salvador and entered Canada in April 2018. The applicants claimed that they left El Salvador because from October 2017 to March 2018, they were extorted by individuals from a criminal organization who required them to pay monthly sums in exchange for their safety.
[7]
Ms Alvarenga claimed that the extortion arose due to her role as vice-governor of the Department of the Cabañas in El Salvador. Acting in that role, in December 2015 she publicly denounced a company called Empresa El Progreso, a farming conglomerate that had dumped a large load of animal waste into the Titihuapa River earlier that month. Ms Alvarenga alleged that the Empresa was fined USD$12,000 and new compliance measures were imposed on it. Ms Alvarenga alleged that following a public meeting in which she spoke against the Empresa, one of the company’s owners approached her and told her she would pay for having imposed the sanctions on the company.
[8]
The extortion began nearly two years later, in October 2017. Ms Alvarenga received a call at work from an unknown number. The caller referred to her by her first name and knew her husband’s name and the name of her son’s school. The caller refused to identify himself. He asked for payment of USD$200 monthly and threatened that without payment, “things would go badly”
for Ms Alvarenga’s family.
[9]
Ms Alvarenga testified that in November 2017, two individuals came to her house about the monthly payment. She asked these men whether they were sent by the Empresa. The men did not answer. She inferred from their silence that the company had sent them.
[10]
Ms Alvarenga and her husband paid the USD$200 for several months, until March 2018, when the extortionists increased the demand to USD$500 per month.
[11]
At that point, Ms Alvarenga and her husband decided to report the extortion to the police. They had not filed a police report previously because they feared the extortionists and because they believed the police were corrupt. The police told them not to pay and to move to another location.
[12]
On March 13, 2018, the Alvarenga Torres family received a call from the extortionists advising them to drop off the money at the usual place a few days later. Ms Alvarenga reported that call to the police, who recommended that they not pay and promised to dispatch a patrol to the drop-off place. That night, Ms Alvarenga observed a man on a motorcycle idling for several hours outside their home.
[13]
The next day, Ms Alvarenga received another call from the extortionists, who told her she should not have contacted the police. The caller threatened her, saying that if she cared for her family that she would pay by March 19. However, Ms Alvarenga did not do so. On that day, she received many more calls to her home telephone number. She ignored those calls.
[14]
On the evening of March 25, 2018, an unknown individual came to their house. He told Ms Alvarenga’s husband that the money was not worth the lives of her family and in punishment for disobeying the extortionists’ prior orders, demanded payment of USD$700 within two days. Her husband told the man they did not have the money and asked for more time so they could sell their vehicle to raise the funds.
[15]
On April 4, 2018, the applicants sold their vehicle and left their home. They stayed with Ms Alvarenga’s mother until they left El Salvador on April 11, 2018. It is unclear in the record whether the USD$700 demand was ever paid.
[16]
Ms Alvarenga’s claim for protection under the IRPA was grounded on the basis of political opinion because she had worked for the Cabañas government and that the extortion and death threats were related to her denunciation and investigation of the company, Empresa, starting in December 2015.
A.
The RPD Decision
[17]
The RPD dismissed the applicants’ claims. The RPD determined that s. 96 did not apply because the basis of their claims had no nexus to the five Convention grounds for protection in s. 96 and specifically, to the protected ground of political opinion. Their subs. 97(1) claim did not succeed based on concerns about credibility and certain omissions in Ms Alvarenga’s Basis of Claim form. The RPD concluded that the risks faced by the applicants were generalized risks of extortion that were faced by all Salvadorans by criminal gangs, not a personalized risk as required under subs. 97(1).
[18]
The RPD made negative credibility findings based on the following:
(a) The RPD found that Ms Alvarenga embellished her testimony by testifying at the hearing about an interaction with the extortionists at her home in November 2017 that was not mentioned in her Basis of Claim form;
(b) The RPD found that Ms Alvarenga had improvised an embellishment to her narrative that the unknown man who came to their home on March 25, 2018 was armed;
(c) The RPD found that Ms Alvarenga had embellished her testimony by claiming that she was home with her husband when the unknown man visited their home on March 25, 2018 which she did not mention in her Basis of Claim form; and
(d) The RPD found that Ms Alvarenga had not provided a reasonable explanation for discrepancies in the dates when events occurred in March 2018, comparing her written narrative and her testimony at the hearing.
[19]
As a result of these credibility findings, the RPD concluded that it would give no weight to affidavits of several friends of Ms Alvarenga that she submitted to support the family’s claims.
[20]
The RPD concluded that Ms Alvarenga did not provide credible and trustworthy evidence to establish that she had personally been a victim of extortion in El Salvador. The RPD concluded that she was not personally threatened by the Empresa and that the risk feared by the claimants was generally faced by other citizens in El Salvador. In other words, they faced a generalized risk rather than a personalized one, and were not personally subjected to a risk under IRPA subs. 97(1).
B.
The RAD Decision
[21]
The applicants appealed. The RAD dismissed their appeal. The RAD disagreed with some of the RPD’s findings and upheld others.
[22]
Contrary to the RPD’s conclusion, the RAD held that there was a nexus between Ms Alvarenga’s alleged fears and a Convention ground (political opinion) under IRPA s. 96. However, the RAD confirmed the RPD’s conclusion that Ms Alvarenga’s key allegations were not credible and therefore, that neither IRPA s. 96 nor subs. 97(1) applied to her claim.
[23]
On the credibility issues identified by the RPD, the RAD concluded:
(a) Ms Alvarenga omitted a “key fact”
from her Basis of Claim form, namely, that in November 2017 two individuals visited her home to remind her of the payment due. This omission was important because during this visit, Ms Alvarenga claimed that she deduced that the two individuals were at her home on behalf of the Empresa;
(b) Ms Alvarenga omitted to mention that the man who visited her home in late March 2018 was armed, and that her husband had been home with her when he visited, but this omission was not significant; and
(c) Ms Alvarenga had adequately explained the inconsistencies identified by the RPD in her chronology of events in late March 2018.
[24]
The RAD held that Ms Alvarenga failed to establish that the Empresa was responsible for the threats and coercion she experienced. There were four reasons: 1) there was insufficient proof that the company was convicted and fined as Ms Alvarenga alleged; 2) there was no evidence of the two complaints Ms Alvarenga allegedly filed with the police following the threats, despite the fact that the applicants had more than a year and a half to obtain copies of them; 3) the RAD found it implausible that the Empresa would wait 22 months to start threatening Ms Alvarenga – something she claimed was intentional, in order to avoid implicating the company; and 4) the letters of support filed by Ms Alvarenga, written by her friends, family and colleagues, did not mention the company that was allegedly extorting the family.
[25]
The RAD also concluded that Ms Alvarenga and her family were exposed to a generalized risk of being the victims of extortion by criminals in El Salvador, not to a risk personalized to them.
II.
Standards of Review
[26]
The applicants raised issues on this judicial review application concerning the substance of the RAD’s decision, and one issue related to procedural fairness.
[27]
The standard of review of the RAD’s substantive decision is reasonableness, as described in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The onus is on the applicant to demonstrate that the decision is unreasonable: Vavilov, at paras 75 and 100.
[28]
In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified: Vavilov, at para 15. The focus of reasonableness review is on the decision actually made by the decision maker, including both the reasoning process (i.e. the rationale for the decision) and the outcome: Vavilov, at paras 83 and 86. A reasonable decision is one that is based on an internally coherent and a rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker: Vavilov, at para 85.
[29]
With respect to factual constraints, the Supreme Court in Vavilov held that absent “exceptional circumstances”
, a reviewing court will not interfere with the decision maker’s factual findings and will not reweigh or reassess the evidence: at para 125. A reviewing court’s ability to intervene arises only if the reviewing court loses confidence in the decision because it was “untenable in light of the relevant factual … constraints”
or if the decision maker “fundamentally misapprehended or failed to account for the evidence before it”
: Vavilov, at paras 101, 126 and 194. See also Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 (Rowe J), at para 61; Canada (Attorney General) v Honey Fashions Ltd., 2020 FCA 64 (de Montigny JA), at para 30.
[30]
The standard of review for procedural fairness is essentially correctness: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121 (“CPR”
), esp. at paras 49 and 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, at para 35. The Court’s review on issues of procedural fairness involves no margin of appreciation or deference. The question is whether the procedure was fair having regard to all of the circumstances, focusing on the nature of the substantive rights involved and the consequences for the individual(s) affected: CPR, at para 54; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
III.
Analysis
A.
The RAD’s Role and Powers on Appeal from the RPD
[31]
The applicants’ first and principal submission concerned the role and powers of the RAD on an appeal from the RPD. In essence, the applicants’ position was that the RAD should have allowed their appeal and sent the matter back to the RPD for redetermination due to the significant number of flaws in the RPD’s decision. In the applicants’ submission, there is a limit to the RAD’s capacity to correct errors and substitute its own decision for the RPD’s. When that limit or threshold is exceeded, the whole process should start over with a new decision by the RPD.
[32]
The applicants argued that the RPD made five fundamental errors in its decision. They submit that the RAD should therefore have presumed that the record before the RPD was insufficient, which in turn implies that the RAD was inherently unable to correct all the problems and substitute its own decision. In that circumstance, the applicants argued that the RAD should have sent the matter back to the RPD for redetermination from scratch. While they did not refer to the standard of review in Vavilov, the applicants’ implicit position was that the RAD’s failure to do so was unreasonable.
[33]
I do not agree with this submission, either as a matter of law or in the circumstances of this case. In my view, this position is contrary to the statutory scheme in IRPA s. 111 and does not account for Federal Court of Appeal’s decisions including Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, [2016] 4 FCR 157 and Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223, [2020] 2 FCR 299. In addition, as I will explain, this submission cannot succeed for a number of other good reasons.
[34]
First, section 111 of the IRPA requires that the RAD make one of three decisions on an appeal from the RPD. The RAD is required to (a) confirm the determination of the RPD, (b) set it aside and substitute its own determination, or (c) refer the matter back to the RPD for determination with directions. Subsection 111(1) provides as follows:
111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions:
(a) confirm the determination of the Refugee Protection Division;
(b) set aside the determination and substitute a determination that, in its opinion, should have been made; or
(c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
[35]
In the third case, the scope of the RAD’s power to make a referral to the RPD in paragraph 111(1)(c) is expressly limited by subs. 111(2). The latter provision provides that the RAD may make that referral:
… only if it is of the opinion that
(a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and
(b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division.
[36]
In my view, the applicants’ submissions are not consistent with this provision. On its face, subs. 111(2) prescribes the “only”
circumstances in which the RAD may refer the matter back to the RPD under paragraph 111(1)(c). The circumstances must pass a conjunctive test: the conditions in both paragraphs 111(2)(a) and (b) must be present for the RAD to refer the matter back under paragraph 111(1)(c). The effect of the applicants’ submission is to read an additional option into subs. 111(2). The applicants did not point to any language in subs. 111(2) or subs. 111(1) that would enable the RAD to do what they suggested, nor do I see any.
[37]
Second, the applicants’ position does not accord with the case law on s. 111, including decisions of the Federal Court of Appeal. On an appeal from the RPD, the RAD has robust powers of error-correction consistent with its statutory purpose. Unless precluded by the IRPA, an appeal to the RAD from an RPD decision may be made as a matter of right on questions of law, fact or mixed fact and law: Kreishan, at para 42; IRPA, subs. 110(1). Speaking for the Court in Huruglica, Gauthier JA concluded that the RAD is to apply a correctness standard of review on an appeal under s. 111: at paras 78 and 103; Kreishan, at para 44. The RAD carries out its own assessment of the claim on the record: Huruglica, at paras 78 and 103; Azanor v Canada (Citizenship and Immigration), 2020 FC 613, at para 22. While an appeal before the RAD is not a true de novo hearing (Huruglica, at para 79), the RAD’s powers are essentially the same as the RPD’s with some important distinctions, including that it will rarely hold a hearing and can only admit new evidence on certain conditions: Huruglica, at para 56; IRPA subss. 110(4) and (6). In considering the merits of an appeal, the RAD does not need to show deference to the RPD’s findings of fact: Huruglica, at paras 58-59. The RAD may correct errors of law and questions of mixed law and fact: Huruglica, at para 78; Keqaj v. Canada (Citizenship and Immigration), 2020 FC 563, at para 68. The RAD is entitled to substitute its opinion for that of the RPD if the RPD was wrong: IRPA, para 111(1)(b); Huruglica, at para 78. As such, the RAD’s role is something of a hybrid between a hearing de novo and an appeal: Azanor, at para 22.
[38]
In this legal context, the applicant’s submission on this application suggested that there are some kinds of RPD errors that the RAD cannot correct and for which the RAD cannot substitute its opinion. I am unable to accept that submission, given the breadth of the RAD’s statutory power in paragraph 111(1)(b) to “substitute its own determination that, in its opinion, should have been made”
and the absence of any language qualifying that power in the IRPA, in Huruglica or in Kreishan in a manner that supports the applicants’ position. Indeed, after reviewing the legislative history of the creation of the RAD, the Court of Appeal in Huruglica observed that “[t]he RAD was essentially viewed as a safety net that would catch all mistakes made by the RPD, be it on the law or the facts”
: Huruglica, at para 98 [emphasis added]; see also Kreishan, at para 41.
[39]
I note further that in Huruglica, Gauthier JA concluded that “it is only when the RAD is of the opinion that it cannot provide such a final determination [in paragraph 111(1)(b)] without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination”
: at para 103 [emphasis added]. This conclusion reflects subs. 111(2) of the IRPA and precludes the interpretation of the RAD’s role as proposed by the applicants.
[40]
Third, there are additional reasons not to adopt the position advanced by the applicants. One is that their position would involve a subjective and potentially difficult line-drawing exercise between RPD decisions in which there are errors that are correctible by the RAD, and RPD decision in which the errors are so numerous, or fundamental, or material, or obvious – or of some other nature or quality conceived by the RAD or the Court – that the RAD should not do its assigned job under the IRPA. That line-drawing exercise is neither necessary under the existing statutory scheme nor desirable as a practical matter.
[41]
Another reason not to adopt the applicants’ position is that it would require the RAD to presume, or assume, a state of affairs at the RPD that may not be correct (and indeed, usually is incorrect). Specifically, the applicants argued that if their proposed threshold of erroneousness were met, the RAD would have to presume that the underlying record is deficient. That is, on the applicants’ position, it would not be necessary for an appellant to show the RAD that the record in the particular RPD matter was deficient, for example because the transcript of testimony stopped short of the true issue and should have continued on to inquire about it. Instead, on the applicants’ approach, upon detecting sufficient errors in the RPD’s reasons, the RAD would presume that the record is insufficient for the RAD to make its own determination of the merits. The applicants provided no convincing rationale or supporting evidence for such a presumption. I do not believe that the existence of errors, or even numerous errors, by an initial trier of fact necessarily implies that the record of evidence itself is deficient or is so inherently insufficient that an appellate decision maker cannot correct the errors. It could (in theory) occur in some cases. But in my opinion, it is unwarranted to presume a fatally deficient underlying record in every case of multiple errors by a trier of fact.
[42]
I note that the applicants did not attempt to show the accuracy or potency of their proposed presumption by exposing any determinative deficiencies in the record in this case.
[43]
I conclude therefore that the applicants’ submissions concerning the role of the RAD cannot be sustained.
B.
Was the RAD’s Decision Unreasonable under Vavilov Principles?
[44]
The applicants’ arguments identified alleged errors by the RAD that lead to the submission that its decision was unreasonable. For the following reasons, I do not agree. Applying the principles in Vavilov, I conclude that the applicants have not demonstrated that the RAD’s decision was unreasonable.
[45]
The applicants argued that the RAD unreasonably concluded that the Empresa was not responsible for the threats and extortion, because it was wrong to find that Ms Alvarenga’s claims were not credible, the RAD did not give her enough time to obtain the police report, and the RAD acted unreasonably in its finding of implausibility related to Empresa’s alleged 22-month delay in starting to threaten and extort Ms Alvarenga. The applicants also argued that the RAD did not conduct a proper analysis of whether the applicants qualified for refugee protection in Canada under s. 96 and subs. 97(1) of the IRPA.
[46]
I do not agree with any of these points. First, it was the RAD’s role as a trier of fact to assess the sufficiency and credibility of the applicants’ evidence linking the Empresa with the threats and extortion experienced by Ms Alvarenga. There was no documentary evidence to establish that link. The link was principally grounded on Ms Alvarenga’s own belief, which she based on the silence of the two men who visited her home in November 2017 in response to her question about whether the company had sent them (events recounted at the hearing but not in her Basis of Claim form) and on a threatening remark made to her by an Empresa representative at the December 2015 public meeting about the polluting of the river. The RAD noted the absence of a connection between the Empresa and the extortion in other evidence before it. In my view, it was open to the RAD on the evidence to find that Ms Alvarenga had not established that the Empresa was responsible for the threats and extortion.
[47]
Second, it was not unreasonable for the RAD to conclude that during the approximately 18 months since Ms Alvarenga left El Salvador, she should have requested or obtained the police reports of her complaints to police about the threats and extortion she allegedly experienced. Ms Alvarenga advised that her brother (a police officer himself) did not obtain them because it took too long (six months) to obtain copies from the authorities. The RAD reasonably held that the complaints could have corroborated Ms Alvarenga’s allegations that she had filed a complaint against Empresa. It was also open to the RAD to find that Ms Alvarenga’s failure to retrieve them after 18 months’ time harmed her credibility.
[48]
Third, credibility and implausibility findings are within the purview of the RAD: see Akintola v Canada (MCI), 2020 FC 971 (Pallotta J.), at paras 12-14; Amiryar v Canada (MCI), 2016 FC 1023 (Gleeson J.), at paras 17-20. On the credibility findings, the RPD and RAD agreed that Ms Alvarenga’s failure to mention the November 2017 visit by the extortionists to her home negatively influenced her credibility. On other issues in the evidence, the RAD came to its own views on credibility owing to concerns that were different from the RPD’s. The applicants have not demonstrated that the evidence requires the Court to intervene in any of the RAD findings on credibility.
[49]
The applicants challenged the RAD’s implausibility finding concerning the 22-month delay before the Empresa began to threaten Ms Alvarenga. They maintained that while there was no documentary evidence to support her position, the RAD should have believed Ms Alvarenga’s testimony and the reasons she advanced for the delay – including that the company deliberately delayed the threats and extortion in order to avoid attracting suspicion. On this issue, the applicant has asked the Court to evaluate or re-weigh the evidence that was before the RAD, something the Court is not permitted to do on an application for judicial review: Vavilov, at para 125. The applicants have not demonstrated that the RAD’s implausibility finding was unreasonable.
[50]
Fourth, the applicants challenged the correctness of the RAD’s legal and factual analysis about the RPD’s decision on the evidence of the generalized and personalized risk under IRPA ss. 96 and 97(1). The applicants’ arguments were made in the context of their submissions on the role of the RAD, discussed already, and related in part to the following paragraphs near the end of the RAD’s reasons:
[38] [The RPD’s] analysis is incorrect because the risk must be “personalized” before it can be declared “generalized”. But, in my opinion, this error is not fatal to the decision.
[39] If the appellants are subjected personally to a risk to their life or to a risk of cruel and unusual treatment or punishment as a result of extortion by criminals, this is a “generalized” risk within the meaning of subparagraph 97(1)(b)(ii) of the IRPA. The risk would not be faced by the appellants in every part of their country and is not faced generally by other individuals in or from that country. In other words, the appellants are subjected to a risk that is also faced by a large number of Salvadorans, namely, the risk of being a victim of extortion by a criminal group. This does not open the door to protection from Canada as “persons in need of protection.”
[51]
In these two paragraphs, the RAD did not expressly set out the legal test under IRPA s. 96 and appeared to focus its discussion to subparagraph 97(1)(b)(ii). If the RAD’s two paragraphs had contained the crux of its decision, the Court would have had to consider whether some additional clear and concrete analyses of each provision was necessary to satisfy the requirements of intelligibility, transparency and justification in Vavilov.
[52]
However, any frailties in these paragraphs do not detract from the reasonableness of the RAD’s determinative finding, earlier in its reasons, that there was insufficient credible evidence of a link between the Empresa and the threats and extortion on which the applicants based their claims. The absence of that link was fatal in this case to the applicants’ claims under both s. 96 and subs. 97(1). The Empresa provided the only possible factual basis for both a well-founded fear of persecution on a Convention ground under s. 96 and a risk to which the applicants would be subjected personally that was not faced generally by other individuals in El Salvador under subparagraph 97(1)(b)(ii).
[53]
Overall, I conclude that there is no basis for the Court to intervene. The RAD’s decision was reasonable as required by Vavilov, in that it displayed sufficient justification, intelligibility and transparency.
C.
Procedural Fairness
[54]
The applicants’ written submissions raised a question of procedural fairness related to their failure to obtain the police reports of their complaints about the threats and extortion. The applicants claimed the RPD and RAD should have instructed them to obtain the documents or wrongly put the burden on them to do so.
[55]
There is no merit in this argument. The applicants did not point to any legal requirement in the IRPA, or any regulation, rules or case law, to support their position that the RPD or RAD had an obligation to instruct the applicants to obtain copies of the police complaints. The burden was on the applicants to prove their claims.
IV.
Conclusion
[56]
The application will be dismissed. Neither party proposed a question for certification.
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