VB4-00837

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 : VB4-00837 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision July 10, 2014 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Pubalagan Venkatraman Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative XXXX XXXX XXXX XXXX for Représentant(e) désigné(e) XXXX XXXX XXXX XXXX Counsel for the Minister Peter Sandford Conseil du ministre REASONS FOR DECISION [1] The Minister of Citizenship and Immigration Canada ("the appellant" or the "Minister") appeals the March 5, 2014 determination of the Refugee Protection Division (the "RPD") that, XXXX XXXX XXXX XXXX (the "wife"), her spouse, XXXX XXXX XXXX XXXX (the "husband") and their minor child, XXXX XXXX XXXX XXXX (the "daughter"), (collectively referred to as the "respondents"), are Convention refugees. The claim was heard by the RPD on January 30, 2014 with an oral decision being rendered on that date. The RPD found that the respondents were Convention refugees by reason of political opinion pursuant to section 96 of the Immigration and Refugee Protection Act (the "IRPA" or the "Act").1 The wife serves as the designated representative of the daughter. DETERMINATION [2] Pursuant to subsection 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a differently constituted panel, without directions. The appeal is allowed. BACKGROUND [3] The appellant Minister did not intervene at the RPD. The respondents were not represented at the RPD. [4] In response to the Minister's filing and service on the respondents of its Notice of Appeal to the RAD,2 and prior to the Minister filing an Appellant's Record (AR),3 the respondents filed a Notice of Intent to Respond which included claimant-specific documents, country condition documents and a self-prepared memorandum.4 This document will be referred to as the Initial Response (IR). The Minister then filed the AR. Subsequent to the filing of the AR and the RPD Record (RPDR),5 the respondents then retained counsel who also filed a Notice of Intent to Respond with the Respondent's Response (RR),6 including a new memorandum of the respondents prepared by counsel, different from that found in the IR, as well as some "new" documents. [5] The Minister has included a transcript of the RPD proceedings in the AR.7 [6] The Minister does not seek to present documents to the RAD pursuant to subsection 110(4) of IRPA nor a RAD hearing pursuant to subsection 110(6) of the Act.8 [7] The respondents seek to present two documents to the RAD pursuant to subsection 110(4) of the Act. The first is a XXXX 2010 hospital report which confirms that the husband was treated for a head wound, "caused by trauma with Police patrol."9 The second is an undated psychiatric report regarding the daughter. I will discuss these documents further in the Analysis/Remedy portions of this decision. Like the Minister, the respondents do not seek a hearing before the RAD pursuant to subsection 110(6) of IRPA. Basis of Claim [8] The wife is 38 years old and holds a university degree in XXXX XXXX XXXX which she received in 2002.10 Her husband is also 38. He became a XXXX in 1999 and obtained a XXXX XXXX XXXX XXXX XXXX in 2004. In 2010, he received accreditation as a XXXX XXXX XXXX.11 [9] The wife travelled to Canada on a visitor's visa in May 2013. The husband and daughter travelled together to Canada in July 2013. All three made claim for refugee protection shortly thereafter. All of the respondents travelled directly to Canada from Cuba. [10] Each of the adult respondents prepared separate narratives for their Basis of Claim forms (BOC). [11] Stated briefly, the wife alleges12 that, from a young age when members of her extended family who opposed the communist government of Cuba and were mistreated to the point that they fled the country, she has had an ongoing resentment of the lack of human rights in Cuba. After she received her degree and began working, her XXXX career became marginalized because she did not share the views of the communist government. She and her husband married in 1999, with their daughter being born two years later. As a XXXX, the government required her husband to XXXX XXXX XXXX for a time under unsafe conditions when the daughter was only two, leaving her in the sole care of the wife. The husband too shared his wife's views on human rights and the Cuban government. As a result, at XXXX XXXX he was questioned and threatened with losing his XXXX XXXX XXXX XXXX which would mean he would not be able to work at his profession. [12] The adult respondents met with other XXXX and XXXX who shared their views. The wife wrote that their daughter was humiliated and abused at school by teachers and students because of her father's views. They told the daughter that he was going to end up in jail. This led to the daughter requiring psychiatric treatment. When the Cuban government relaxed its policy on allowing XXXX and minor children to leave the country on tourist visas, the family took advantage of that opportunity to travel to Canada where they have relatives who left Cuba years ago, who have been citizens of Canada for many years. [13] The wife alleges that, if she is returned to Cuba, she would be at risk of being "severely punished, humiliated and abused by the Cuban government" because she had sought asylum in another country. Her husband would lose his job and his XXXX XXXX XXXX XXXX. The wife would not be able to fully pursue her own career. In her BOC, she only mentions being impeded in her career, substituting it with freelance work. The fear that the daughter would have of returning to school in Cuba would mean that she would need to resume psychiatric treatment. [14] The husband reiterates13 his wife's attitudes towards the Cuban government and the lack of human rights in that country. He confirms that he was required by the government to serve as XXXX XXXX XXXX XXXX and XXXX in dangerous areas under unsafe conditions. He maintains that, when he resisted being sent to these places, he was threatened with losing his accreditation as a physician and that he would not be able to practice his profession ever again. He writes that this sort of thing has happened to many others in similar circumstances, including people personally known to him, who have fled the country. [15] This husband states that if the family is returned to Cuba, they would be "damaged, abused, humiliated and marginalized" immediately upon their arrival. The daughter's problems would return. Somewhat inconsistently, at one point the husband alleges that his right to work and perform his profession would be taken away which would lead to the family running out of sustenance. Elsewhere however, he states that, "in XXXX XXXX where I worked I will be seriously harassed by the political leadership of the center, XXXX XXXX XXXX XXXX where I worked I would mistreated [sic] by administrative and political direction of the department."14 [16] The respondents allege that they would be unsafe everywhere in Cuba and that adequate state protection would not be available to them in their country. RPD Decision [17] The RPD found that the respondents were all citizens of Cuba. [18] The RPD determined that all three respondents were Convention refugees based on persecution by reason of imputed political opinion.15 [19] Only the husband provided testimony at the RPD proceedings. His wife, the principal respondent, did not. As will be discussed more fully in the Analysis portion of these reasons, the oral decision of the RPD is brief. As well, the reasons are conversational in tone and the Member often uses the phrases "you" and "your" such that it is not wholly clear if he is addressing the respondents individually or collectively. However, based upon the context in which the words are used, in my assessment the Member, in virtually all cases, is referring to the husband. The Member made the following credibility findings or, if not actual "findings", then comments: [20] A) With respect to the allegations that, upon a return to Cuba, the husband would not only lose his work but also face detention and charges as a "counter-revolutionary" or "deserter", the RPD noted that none of the documentary evidence supported the allegation that he would be made a political prisoner. This was true not only of documents presented by the respondents but also documents found in the National Document Package for Cuba which was disclosed in this matter. Due to a lack of proof, the RPD stated: So because I do not have proof on that, I find it very difficult to accept. In this case I could very easily say that you overstated your fear of return to Cuba because the documents do not support it.16 B) With regard to the overall allegations of mistreatment relating to political opinion the Member stated: I questioned you quite specifically regarding why would the government pay for your education and why would they pay for you to become a XXXX. Because it just does not make sense that a government, who monitors their people so very closely, would offer you a high-standing position in Cuban society as a XXXX XXXX XXXX XXXX XXXX. So that part just does not make sense to me.17 C) With respect to the allegation that the husband had been detained three times by Cuban authorities, the RPD noted his testimony was that there was no proof of criminal activity and there is no criminal record against the respondent. The RPD found that these detentions were examples "of an overzealous security service or police force but I do not think that is persecution."18 D) With regard to the husband allegedly being a "dissident", the RPD found that, if that were so, "I am finding it difficult to believe that the government would let you just leave Cuba." As well, after commenting that, in Cuba, it was conceivable that those who openly support the government would "receive superior treatment" as compared to other people such as the respondent who are not supportive of the government and who would get "less desirable service opportunities," the Member commented, "So you can see, up to this point, I do not see where you have established persecution in your own case."19 E) There was evidence that the husband had signed a contract with Cuban authorities prior to leaving his country whereby, after he was away for one month, upon his return he would go to XXXX to provide XXXX XXXX there. The RPD noted that, while the respondent may not have wanted to do so, that was a term of a contract he had signed and had broken. In answer to the Member's own question, "So does that make you a refugee?" the Member found: No. Not in itself. We cannot just grant refugee protection to people who willingly break work contracts. We cannot just grant refugee protection to people who know the law of Cuba, that you have to return in a certain amount of time, but they just choose not to return to Cuba, because even though the laws in Cuba are a lot worse than the laws in Canada, the laws in Cuba still apply to everyone in Cuba.20 F) Having provided the above reasons as to why the husband had not credibly established his allegations of persecution, the Member provided the following as to why the claim would succeed:21 I do not know if you would go to prison or not because our documents do not support your allegations, but I am quite confident that you have removed from yourself the opportunity to be a XXXX in Cuba. The only education that you have and the only opportunity that you have for employment is through the Cuban government, either directly or indirectly. So on a balance of probabilities, you would not get a job as a XXXX again, in Cuba. So even though much of the problem is your own doing because you broke your own contract, the punishment that you would face if you returned to Cuba, in that you would not be a XXXX again, is too severe. Here in Canada, if you broke a contract, you would not be able to work for that XXXX again, but you might find work at a different XXXX. Because the government is either directly or indirectly your employer in Cuba and you would not be able to earn a livelihood, in my view, that is persecutory or persecution. [21] The RPD found that, as the government would be the agent of persecution, "there would be no state protection or no internal flight alternative."22 [22] As noted earlier, the RPD only heard testimony from the husband and not his wife. The RPD provides no independent analysis of her claim. With regard to the daughter, the RPD simply states that, "Your daughter is joined to your claim and so because your claims are accepted, hers is, as well."23 [23] The Member closed his oral decision as follows:24 I want to say that the standard that I needed to judge this claim by was more than a mere possibility of persecution. It is a very low standard and you just made it. But you did make it. The Board accepts your claim. You are Convention refugees. GROUNDS OF APPEAL [24] The appellant Minister stated its general position on the appeal as follows:25 The appellant takes the position that the RPD breached the principles of procedural fairness and natural justice by failing to provide adequate reasons to support its positive determination. The Panel provided reasons as to why a number of the Respondents' allegations did not make them Convention Refugees or persons in need of protection. However, the Panel concluded its reasons with a finding that Mr. XXXX XXXX would be persecuted by being deprived of his opportunity to work or exercise his profession as a XXXX upon return to Cuba, but the Panel did not refer to any documentary evidence on file or oral testimony in support of this finding. The Panel also failed to analyze how Mr. XXXX XXXX wife faces a serious possibility of persecution if she returns to Cuba. [25] The issues as stated by the Minister were that the RPD breached its duty of procedural fairness by failing to provide sufficient reasons for:26 a) Its finding that Mr. XXXX XXXX would, on a balance of probabilities, be prohibited from exercising his profession as a XXXX in Cuba if he returns to Cuba. b) Its finding that Ms. XXXX XXXX faces a well-founded fear of persecution upon return to Cuba. [26] With respect to the issues, the respondents submit that the RPD did not breach its duty of procedural fairness and did provide sufficient reasons with regard to the two issues cited by the appellant.27 REMEDY SOUGHT [27] The appellant Minister seeks an order from the RAD setting aside the determination of the RPD and substituting it with a determination that the respondents are neither Convention refugees nor persons in need of protection. Alternatively, the Minister seeks an order that the matter be referred to the RPD for redetermination, giving the RPD directions which the RAD considers appropriate.28 [28] The respondents seek an order that the appeal be dismissed, i.e. that the RAD confirm the positive determination of the RPD. Alternatively, if the appeal is not dismissed, like the appellant, the respondents seek an order that the matter be referred to the RPD for redetermination, with directions considered by the RAD to be appropriate.29 STANDARD OF REVIEW [29] The appellant submits30 that the appropriate standard of review to be applied by the RAD with regard to the alleged breach of procedural fairness represented by the deficiencies in the RPD reasons in this case is that of correctness. The respondents agree.31 In this regard the appellant cites the following extract from the Supreme Court of Canada (the "SCC") decision in Newfoundland and Labrador Nurses' Union:32 [20] Procedural fairness was not raised either before the reviewing judge or the Court of Appeal and it can be easily disposed of here. Baker stands for the proposition that "in certain circumstances", the duty of procedural fairness will require "some form of reasons" for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44). [21] It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review. As Professor Philip Bryden has warned, "courts must be careful not to confuse a finding that a tribunal's reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it" ("Standards of Review and Sufficiency of Reasons: Some Practical Considerations" (2006), 19 C.J.A.L.P.191, at p. 217; see also Grant Huscroft, "The Duty of Fairness: From Nicholson to Baker and Beyond", in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context(2008), 115, at p. 136). [22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. (Italics in original; appellant's underlining) [30] The appellant submits33 that the above authority stands for the proposition that: ...the provision of inadequate reasons does not amount to a denial of procedural fairness, provided that some reasons are given. The Court also agreed that a breach of procedural fairness occurs when a tribunal provides no reasons in cases where it is required to do so. The Appellant submits that the Decision in the Respondents' case falls within the latter. According to the reasons for the Decision, the RPD granted refugee protection to the Respondents based solely on the ground Mr. XXXX XXXX would, on a balance of probabilities, be unable to practice his profession as a XXXX upon return to Cuba. However, the Presiding Member did not provide any analysis to explain how he reached that conclusion. [31] In this regard, the respondents also allege that the appropriate standard of review is correctness and submit that the RPD did not err and adequately explained why it concluded that the husband is more likely than not to be barred from employment as a XXXX upon a return to Cuba. As stated by the respondents:34 As this was the only ground the Panel found the Respondents to be Convention refugees, the RPD as part of its duty of procedural fairness was required and did provide its reasons for this finding. Since the reason provided was adequate, the appellant should be able to assess that the RPD's decision was reasonable. [32] When considering assessment standards with regard to the judicial review of administrative tribunal determinations, the SCC in Dunsmuir35 has held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [33] In what is, to my knowledge, the first Federal Court review of a RAD decision regarding the appropriate standard of review to be applied by the RAD, Justice Shore on May 26, 2014, in Iyamuremye36 confirmed that, with respect to findings of fact and of mixed fact and law, the standard of review to be applied by the RAD in assessing the determinations of the RPD is reasonableness. The standard regarding matters of law is correctness. [34] In my assessment, the issues raised by the appellant inferentially concern the RPD's credibility findings, which are findings of fact37 together with the methodology by which the RPD conducted its assessment of credibility which raises issues of mixed fact and law. According to Iyamuremye, the findings of the RPD arising out of all of those issues should be assessed by the RAD by applying the standard of reasonableness. [35] Reasonability is concerned with the justification, transparency and intelligibility of the decision-making process as well as whether a decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts and law.38 In my opinion, there is no substantive reason why the RAD should not apply a similar definition of reasonableness in this appeal. [36] As discussed in the Analysis, to the extent the appellant alleges that the RPD made errors of law with regard to the lack of reasons provided by the RPD, as opposed to their adequacy, the Court in Iyamuremye, as noted earlier, found that the standard of review is correctness. ANALYSIS OF THE MERITS OF THE APPEAL [37] Both the appellant and the respondents have cited the 2011 SCC decision in Newfoundland and Labrador Nurses' Union39 with respect to the current state of the law regarding the adequacy of administrative tribunal reasons and the standard of review to be applied regarding them. I concur with them that that decision, together with the earlier SCC decision in Dunsmuir,40 are of particular importance in this appeal. [38] As succinctly stated by Mr. Justice Roy of the Federal Court in the 2013 Manga decision:41 [15] On the other hand, the adequacy of reasons cannot, in and of itself, support the quashing of an administrative tribunal decision. The Supreme Court of Canada, in Newfoundland and Labrador Nurses' Union, cited above, saw the reasons being considered together with the outcome: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at ss.12: 5330 and 12:5510). It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47). [39] The following extract from Newfoundland and Labrador Nurses' Union was cited by both the appellant and the respondents: [20] Procedural fairness was not raised either before the reviewing judge or the Court of Appeal and it can be easily disposed of here. Baker stands for the proposition that "in certain circumstances", the duty of procedural fairness will require "some form of reasons" for a decision (para. 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. In fact, after finding that reasons were required in the circumstances, the Court in Baker concluded that the mere notes of an immigration officer were sufficient to fulfil the duty of fairness (para. 44). [21] It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review. As Professor Philip Bryden has warned, "courts must be careful not to confuse a finding that a tribunal's reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it" ("Standards of Review and Sufficiency of Reasons: Some Practical Considerations" (2006), 19 C.J.A.L.P.191, at p. 217; see also Grant Huscroft, "The Duty of Fairness: From Nicholson to Baker and Beyond", in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context(2008), 115, at p. 36). [22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. (Italics in original; RAD underlining) [40] I take then from the above authority that, if reasons are required and are not provided, that constitutes a breach of the duty of procedural fairness and is an error of law subject to a correctness review. On the other hand, if there are reasons, principles of procedural fairness are not breached and a review of those reasons should be on the standard of reasonableness. Subsection 169(b) of IRPA provides that reasons must be given with respect to a decision (other than an interlocutory decision) of any Division of the Immigration and Refugee Board. [41] The benefits of principles of procedural fairness accrue, not only to a claimant for refugee protection, but also to the Minister. "It is not a one-way right".42 [42] In my assessment, the RPD in this case provided a "conclusion" but not what could be legitimately termed "reasons" with regard to the wife and the daughter. Assuming this approach and as guided by the Newfoundland and Labrador Nurses' Union decision, the standard of review is correctness. The RPD determined that both were Convention refugees but, in neither case, connected that result to any analysis of the evidence as it related to each of them individually or, even, how their status as Convention refugees is connected to the positive finding rendered with respect to the husband. Moreover, in my assessment the RPD was wrong in law with regard to the daughter when stating, "Your daughter is joined to your claim and so because your claims are accepted, hers is, as well."43 Joinder has the effect, inter alia, of making evidence heard with respect to one refugee claimant potentially applicable to another. However, I am unaware of any legal authority for the proposition that the finding of refugee status with regard to one claimant automatically flows to the benefit of each and every other joint claimant. In fact, the law is quite the opposite. It is also long settled that the concept of family unity does not apply to refugee cases heard before the RPD.44 The wife and daughter cannot become refugees simply because the husband was found to be one. In Canadian law, refugee determinations are personal and unique to the individual. [43] Given the above analysis, I find that the lack of reasons regarding the wife and daughter constitute a breach of procedural fairness as a matter of law. Accordingly, it was incorrect for the RPD to determine that they were both Convention refugees. On that basis alone, the determination of the RPD that they are both Convention refugees must be set aside. [44] Alternatively, if on the other hand I conclude that no matter how abbreviated or vague the RPD decision might be with regard to the wife and daughter, the oral decision, nonetheless, constitutes "reasons", the standard of review would be reasonableness. For the reasons that follow, even when applying that standard, I find that the determination of the RPD does not meet the test of reasonableness as considered by the Supreme Court of Canada in Dunsmuir and Newfoundland and Labrador Nurses' Union. This finding is also my determination with regard to the RPD's positive determination in favor of the husband. The determination with regard to all three respondents must be set aside. [45] Importantly, Newfoundland and Labrador Nurses' Union not only clarifies that, if there are "reasons", the standard of review on any challenge to the reasoning/result set out in them is reasonableness, in the latter portion of paragraph 16 of the decision it also provides guidance as to what reasonability might be in that context: [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. (RAD emphasis) [46] The transcript of the RPD proceeding shows that the Member's initial intention was to question the husband first and have the wife testify later.45 After completing his questioning of the husband, and before taking a break, the Member stated that he "was going to ask your wife some questions."46 However, upon his return from the break, the Member proceeded to render his oral decision. [47] As noted earlier, the oral decision does not mention or explain why the wife should be found to be a refugee. The transcript does not show that her husband was asked any questions specifically relative to her political activities, except in conjunction with his own. He was not asked about her ability to work upon a return to Cuba. Indeed, her own BOC narrative does not indicate that she was unable to work, only that the opportunities that might have otherwise been available to her given her educational background were not and that she had to work freelance. To the extent she alleged that she too is perceived as a dissident, with respect to her husband the RPD found that he had failed to establish persecution in that regard. That being so, I do not understand through the reasons why she could be perceived as a dissident based on the evidence when the husband was not. Similarly, she alleged in her BOC that the family would be severely punished because they had sought asylum in another country. Her husband's similar allegation was rejected by the RPD. [48] Given the limited basis for the positive decision regarding her husband, being directly and specifically tied to the singular prospect that he would no longer be able to work as a XXXX, what aspect of that finding extends to his wife, or for that matter, their daughter such that they are refugees? In light of that backdrop, I find that the RPD reasons do not permit me to understand why the RPD rendered a positive decision with respect to the wife and daughter. Not understanding why puts me in a position of not being able to determine whether, in the result, the outcome falls within the range of acceptable outcomes. I therefore find that the RPD determination with respect to the wife and daughter was not reasonable. [49] This then brings me to consider the reasonability of the sole positive finding of the RPD, i.e. that the father would not be able to pursue his profession as a XXXX as a basis for the conclusion that he faces persecution in Cuba if returned. For the reasons that follow, I find that determination is also not reasonable. [50] In this regard the RPD found: I do not know if you would go to prison or not because our documents do not support your allegations, but I am quite confident that you have removed from yourself the opportunity to be a XXXX in Cuba. The only education that you have and the only opportunity that you have for employment is through the Cuban government, either directly or indirectly. So on a balance of probabilities, you would not get a job as a XXXX again, in Cuba. So even though much of the problem is your own doing because you broke your own contract, the punishment that you would face if you returned to Cuba, in that you would not be a XXXX again, is too severe. Here in Canada, if you broke a contract, you would not be able to work for that XXXX again, but you might find work at a different XXXX. Because the government is either directly or indirectly your employer in Cuba and you would not be able to earn a livelihood, in my view, that is persecutory or persecution. [51] As discussed by the SCC in Dunsmuir, reasonability is concerned with the justification, transparency and intelligibility of the decision-making process and whether the decision falls within a range of possible, acceptable outcomes, defensible in respect of the facts and law. [52] With regard to the facts, in his sworn BOC, the husband writes in connection with what might happen to him if he returns to Cuba:47 I believe that if my family and I return to Cuba, we can be damaged, abused, humiliated and marginalized, without the right to work and perform my profession again, which would be bad because we would run out sustenance, my daughter would be equally threatened at school, like my wife. The government with its hostile policy and communist would take care of all the rights to take off as a Cuban citizen just because I've never agreed with the product cruel inhuman and Cuban communist politics, this would happen to us immediately if returned to Cuba from the airport for part of the customs and immigration and state security, all this organizations are responding to the Cuban political dictatorship, in the province where I live by the direction of the party and the government, in the XXXX where I worked I will be seriously harassed by the political leadership of the center, XXXX XXXX XXXX XXXX XXXX where I worked I would mistreated by administrative and political direction of the department. (RAD emphasis) [53] The information provided in the above is ambiguous. Initially, the husband states that he would be without the right to work and perform his profession again. However, in his closing statements he quite clearly conveys that, looking forward, he will be seriously harassed by the leadership at his XXXX and would be mistreated in his XXXX XXXX. This latter statement indicates that he would continue to be employed as a XXXX, likely to be harassed in a way similar to that which he said had happened to him over many years while he, not only continued his employment as a XXXX but, as recently as 2010, was educated to a higher specialty. The RPD Member did not put this inconsistency to the husband. I must note as well that the transcript of the RPD proceedings reveals that at no point in the hearing did the husband or the Member discuss the possibility that the husband could lose his opportunity to work as a XXXX in Cuba. [54] The Member had the following to say about documentary evidence and whether or not the family was, in fact, in breach of current Cuban law about leaving the country:48 The central credibility issue is this. You state in your clarifications or narrative, which is in Exhibit 4, that if you returned to Cuba, in addition to losing your work, you would automatically be charged through an Order of Detention on charges of being a counter-revolutionary. As a deserter, they would send you directly to prison as a political prisoner. I referred to you earlier that the Board has numerous documentary evidence relating to Cuba and none of our documents support that allegation. None of our documents say that a person in your circumstance would automatically be sent to prison. I am referring to the Board's documents in Exhibit 5, Items 14.1, 14.2 and 14.5. You have not breached Cuba's exit laws. You have not been out of Cuba for two years and this is the kind of punishment that someone might receive under certain circumstances, being away for two years. Now, you said that you signed a whole bunch of documents that said that in your case that this would happen to you because of the documents that you signed, but I do not have any documentary evidence; I do not have proof on that. So because I do not have proof on that, I find it very difficult to accept. In this case, I could very easily say that you overstated your fear of return to Cuba because the documents do not support it. [55] In the above, the Member finds, based on the evidence and the country documentation, that the family had not been away from Cuba long enough to be in violation of its laws whereby they would be deemed deserters or be imprisoned for political reasons. Moreover, with regard to possibility of the husband losing his work, the husband had provided no proof. As mentioned earlier, the prospect of losing his work as a XXXX was not even discussed in the RPD hearing. [56] Not having apparently considered the above consistencies and contrary findings, I do not understand why, based on the facts as revealed in the evidence and the law, the Member ultimately came to the positive conclusion which he did as is set out in his reasons. In that sense, the reasons are not intelligible. Further, I cannot find that the resolution arrived at by the RPD is justified based upon the evidence referred to by the Member and the entire lack of testimony from the husband about the possibility of his losing his profession. The Member has provided a conclusion, but a non-transparent rationale as to why he arrived at that finding. The decision is not reasonable. [57] I have considered the respondents' memorandum in coming to the above conclusion. Essentially, in my view their argument does not address the fundamental problems noted above but simply asserts that the RPD reasons were adequate. The memorandum refers to 49 the Member making a number of findings. However, in fact, the referenced Member's comments were a mere recitation of the respondent's various allegations, not findings. Moreover, with the singular exception noted above, the Member's comments concluded in negative findings, not positive. [58] The respondents do refer50 to documentary evidence which was disclosed in the RPD proceedings such as a letter51 from the husband's mother-in-law concerning the loss of the husband's XXXX XXXX and a warrant for his arrest, as well as letters from friends regarding political meetings the respondents used to attend. This evidence was not mentioned by the Member in his reasons. While not in so many words, I take the respondents reference to these documents to be an invitation to the RAD to review the record to ascertain if the ultimate determination arrived at by the RPD is sustainable, even if the reasons are not as fulsome as they might be. In this regard, Mr. Justice Rennie of the Federal Court in the 2013 decision in Komolafe52 stated: [9] The decision provides no insight into the agent's reasoning process [Canada Citizenship and Immigration Agent]. The agent merely stated her conclusion, without explanation. It is entirely unclear why the decision was reached. [10] Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 does not save the decision. Newfoundland Nurses ensures that the focus of judicial review remains on the outcome or decision itself, and not the process by which that outcome was reached. Where readily apparent, evidentiary lacunae may be filled in when supported by the evidence, and logical inferences, implicit to the result but not expressly drawn. A reviewing court looks to the record with a view to upholding the decision. [11] Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page. [59] I appreciate that Komolafe is a Federal Court judicial review decision and not a RAD appeal. While there are numerous similarities between the two processes, particularly when assessing the reasonability or correctness of lower tribunal decisions, the RAD has broader powers than the Federal Court to substitute its decision for that of the RPD and even, in limited ways, consider "new" documentation pursuant to subsection 110(4) of the Act and conduct its own RAD hearings in those special circumstances referred to in subsection 110(6). I will deal with the respondent's application to present two documents to the RAD shortly. However, with respect to my assessment as to whether or not the RPD determination was reasonable, I come to a conclusion similar to that of Mr. Justice Rennie, i.e. that this is not a case where the RPD Record has sufficient "dots on the page" to enable me to connect them and, perhaps, uphold the RPD determination, even with its flaws. There are simply too many holes in the evidence and areas never explored in the testimony to properly allow me to do so. For example, through no fault of her own, the wife was never able to provide any testimony with respect to her claim or that of her daughter as the hearing was aborted following a break when the Member returned with his oral positive decision. A decision I found to be unreasonable. The record is simply not there. The situation is similar with respect to the husband in that the whole question of whether he would lose his XXXX and his livelihood if he returns to Cuba was simply not investigated in the hearing. I find that the letter from the mother-in-law referred to above, as well as the friends letters, are inadequate, standing on their own and without being tested through the husband's own testimony, to back-fill the rationale of the RPD so as to uphold its determination. [60] With regard to the two documents the respondents wish to present pursuant to subsection 110(4) of the Act, I find for the following reasons that they do not meet the criteria necessary to do so. However, given my determination that the matter of the three claims is to redetermined, these documents can be presented to the RPD at that time. [61] As stated earlier, one document is a hospital report that purportedly confirms an injury received by the husband in 2010 "caused by trauma with police patrol". The second is an undated handwritten psychiatric report regarding the daughter. [62] With regard to the admission of documents as evidence before the RAD pursuant to subsection 110(4) of IRPA, the section provides: 110(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [63] While a Pre-Removal Risk Assessment (PRRA) differs from an appeal to the RAD, the wording of subsection 110(4) of IRPA is almost identical to section 113 of the Act which identifies what evidence is to be allowed in support of a PRRA application. Accordingly, I find that the Federal Court of Appeal and Federal Court jurisprudence regarding section 113 provides important guidance with respect to the interpretation of subsection 110(4). Section 113 of IRPA provides: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [64] Given the near identical wording of subsection 110(4), I find that there is a legislative intent that the two provisions are to be interpreted alike and that jurisprudence concerning section 113 is helpful in interpreting 110(4). [65] A seminal authority with respect to the interpretation of section 113 is the 2007 Federal Court of Appeal decision in Raza.53 Relying on the guidance of this authority, the first step with regard to subsection 110(4) is to determine whether or not the proffered evidence was not available or could not have been provided to the RPD. If it could not have been, the RAD must then assess its credibility, relevance, newness and materiality. An applicant is required to state why the evidence constitutes new evidence and why it should be considered. The burden of proving both the newness and materiality of the evidence lies with the applicant. (RAD emphasis) [66] However, in interpreting Raza, the Federal Court has held that it would be a misapplication of that authority to find that if any one of the Raza grounds were met, the evidence would be considered new evidence, regardless of other grounds. The Federal Court in Mooketsi held that:54 [18] In my view, the Applicants have misapplied the Court of Appeal decision in Raza. I do not read the decision and, in particular paragraph 13, as a statement to the effect that, if any one of the questions posed can be answered in the positive, the evidence is "new". As noted in paragraph 15 of Raza decision, evidence must be considered "unless it is excluded on one of the grounds stated in paragraph [13] above". Thus, if the "new" evidence could have been presented at the RPD hearing, then s. 113(a) requires that such evidence be rejected, even if it contradicts a finding of fact by the RPD. This is reinforced by paragraph 13(5)(a) of the Raza decision. [67] Thus then, if a document cannot pass the first test of having arisen after the rejection of a claim, or was not reasonably available, or that could not reasonably have been expected in the circumstances to have been presented, the document will not be accepted. If it does meet that test, it is still necessary to then assess its credibility, relevance, newness and materiality. [68] The respondents do not wholly explain why the documents could not have been presented to the RPD, other than to state that they just received them,55 presumably from Cuba. In any event, even if it is accepted that the documents could not have reasonably been presented to the RPD, they are not sufficiently material to the many issues I have noted above arising from the RPD reasons to, of themselves, or combined with documents previously disclosed to the RPD, lead me to either confirm the RPD determination or substitute it with another. That being so, acknowledging that neither the appellant nor the respondents have requested a RPD hearing, but recognizing that the RAD can, in appropriate circumstances, nonetheless on its own require a RAD hearing, the circumstances do not permit such a hearing due to subsection 110(6) which provides: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. (RAD emphasis) [69] As noted above, I find there is no such documentary evidence which meets the criteria of subsection 110(6). REMEDY [70] The appellant Minister sought an order from the RAD setting aside the RPD determination and substituting it with a determination that the respondents are not Convention refugees or persons in need of protection. The respondent sought an order confirming the RPD determination. In the alternative, both seek an order that the matter be referred to the RPD for redetermination. [71] For the many reasons noted above concerning the lack of an adequate RPD Record, there is no proper evidentiary base for me to make the order sought by the Minister. As noted, the claims of the wife and the daughter were never explored at the RPD hearing. With regard to the husband, similar problems with regard to the inquiry cannot be overcome by the RAD. As noted earlier, the RAD itself is not a position to conduct a RAD hearing given the provisions of subsection 110(6). Regarding the respondents, I have already found that the positive determination of the RPD was not reasonable and must be set aside. [72] Accordingly, the appropriate remedy pursuant to subsection 111(1)(c) of IRPA is to refer the matter to the RPD for redetermination. CONCLUSION [73] Based on all of the foregoing, the RAD sets aside the determination of the RPD and the claims of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are referred to the RPD for redetermination by a differently constituted panel, without directions. The appeal is allowed. (signed) "Philip MacAulay" Philip MacAulay July 10, 2014 Date 1 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 2 RAD Exhibit 1, Notice of Appeal. 3 RAD Exhibit 3, Appellant's Record (AR). 4 RAD Exhibit 2, Initial Response (IR). 5 RAD Exhibit 4, Refugee Protection Division Record (RPDR). 6 RAD Exhibit 5, Respondent's Response (RR). 7 RAD Exhibit 3, AR, pp. 11-22. 8 RAD Exhibit 3, AR, pp. 23-24. 9 RAD Exhibit 5, RR, pp. 13-16. 10 RAD Exhibit 4, RPDR, p. 55. 11 RAD Exhibit 4, RPDR, p. 59. 12 RAD Exhibit 4, RPDR, pp. 7-17. 13 RAD Exhibit 4, RPDR, pp. 18-28. 14 RAD Exhibit 4, RPDR, p. 20. 15 RAD Exhibit 4, RPDR, p. 3, lines 26-27. 16 RAD Exhibit 4, RPDR, p. 4, lines 3-23. 17 RAD Exhibit 4, RPDR, p. 4, lines 27-31. 18 RAD Exhibit 4, RPDR, p. 4, lines 33-40. 19 RAD Exhibit 4, RPDR, p. 5, lines 3-15. 20 RAD Exhibit 4, RPDR, p. 5, lines 26-30. 21 RAD Exhibit 4, RPDR, pp. 5-6. 22 RAD Exhibit 4, RPDR, p. 6, lines 7-8 23 RAD Exhibit 4, RPDR, p. 6, lines 10-11. 24 RAD Exhibit 4, RPDR, p. 6, lines 13-17. 25 RAD Exhibit 3, AR, p. 56, para. 2. 26 RAD Exhibit 3, AR, p. 62, para. 16. 27 RAD Exhibit 5, RR, p. 6, para. 13. 28 RAD Exhibit 3, AR, p. 68. 29 RAD Exhibit 5, RR, p. 11, para. 20. 30 RAD Exhibit 3, AR, pp. 63-64. 31 RAD Exhibit 5, RR, pp. 7-8. 32 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. 33 RAD Exhibit 3, AR, p. 64, para. 19. 34 RAD Exhibit 5, RR, p. 7, para. 14. 35 Dunsmuir v. New Brunswick, 2008 SCC 9. 36 Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494. 37 Zhou v Canada (Minister of Citizenship and Immigration), 2013 FC 619, at para 26; Rodriguez Ramirez v Canada (Minister of Citizenship and Immigration), 2013 FC 261, at para 32; Wu v Canada (Minister of Citizenship and Immigration), 2009 FC 929, at paras 17-18; Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (CA). 38 Dunsmuir v New Brunswick, 2008 SCC 9, at para 47. 39 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62. 40 Dunsmuir v. New Brunswick 2008 SCC 9. 41 Manga v. Canada (Minister of Citizenship and Immigration), 2013 FC 799. 42 Canada (Minister of Citizenship and Immigration) v. Xu, 2010 FC 1145 at para.11. 43 RAD Exhibit 4, RPDR, p. 6. 44 Casetellanos v. Canada (Solicitor General), (1994) F.C.J. No. 1926. 45 RAD Exhibit 3, AR, p.14, lines 4-8 and p. 15, lines 23-28. 46 RAD Exhibit 3, AR, p. 21, line 27. 47 RAD Exhibit 4, RPDR, p. 20, question 2(b). 48 RAD Exhibit 4, RPDR, p. 4, lines 3-23. 49 RAD Exhibit 5, RR, p. 9-10, para.18. 50 RAD Exhibit 5, RR, p. 10 51 RAD Exhibit 4, RPDR, pp. 183-184. 52 Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431. 53 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 54 Mooketsi v. Canada (Citizenship and Immigration), 2008 FC 1401. 55 RAD Exhibit 5, RR, p. 9, para. 18 (iv) and p. 10, para. 18 (ix). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-00837