TB3-08072

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 : TB3-08072 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 2, 2014 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robert I. Blanshay Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre Reasons and Decision [1] XXXX XXXX (the Appellant) a citizen of Sri Lanka, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee or a person in need of protection, or refer back to the RPD to a differently-constituted panel. In the alternative, the Appellant requests a hearing before the RAD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is a Tamil born in the northern province of Jaffna, Sri Lanka. He and his family faced numerous incidents of violence, abuse and harassment by Sri Lankan authorities over the years beginning in the year 2000. In 2009, he alleges he was detained and tortured by Sri Lankan authorities in an open prison in Vanni. On XXXX XXXX, 2013, he was arrested and detained by the police on his way to work XXXX XXXX XXXX XXXX. He was interrogated and tortured over the course of two days by the police who perceived him to be pro-Liberation Tigers of Tamil Eelam (LTTE). He was released by police when they discovered that he was not a student XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The conditions of his release required him to report on a weekly basis about the activities of students and members of the LTTE. Fearing for his safety, he instead went into hiding. While in hiding, he contacted his brother in France who assisted him to leave Sri Lanka. [4] He fears he will be arrested, tortured and killed at the hands of the Sri Lankan Army pro-government forces should he return to Sri Lanka. [5] The Minister of Citizenship and Immigration Canada intervened before the RPD and tendered a biometric report which confirmed that the Appellant was in Doha, Qatar on XXXX XXXX, 2012 where he was applying for a US visa despite the allegation in his original Basis of Claim (BoC), which alleges he was in Sri Lanka. [6] In an amended BoC, the Appellant alleged before the RPD that he had been counselled by his smuggler to mislead the Board about traveling to the US in order to bolster his chances for a successful claim. [7] The Appellant's application for refugee protection was heard over two sittings on June 14, 2013 and June 26, 2013. In a decision of October 11, 2013, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found the Appellant was not a credible witness. [8] The Appellant submits that there was a failure of procedural fairness and natural justice because the RPD failed to afford the Appellant the opportunity to adjourn his hearing in order for the Appellant to obtain counsel. The Appellant also alleges that the RPD made erroneous credibility findings. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of IRPA provides that 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. [10] The Appellant tendered the following new evidence in support of his appeal: (a) Excerpt from Legal Aid Research Series/Department of Justice Report: representation for Immigrants and Refugee Claimants; (b) UNHCR Report: The Impact of the Lack of Legal Representation in the Canadian Asylum Process; and (c) Letter from the Appellant's former counsel.1 [11] The Appellant argues that the evidence meets the requirements of subsection 110(4) of the IRPA and relates to the Appellant in accordance with subsection 3(3)(g)(iii) of the RAD Rules, and, as such, it should be admitted. [12] The RAD is not persuaded by the Appellant's argument in this regard. The statutory requirements with respect to the non-availability of the proffered evidence at the time the claim was rejected are only some of the factors to be considered. [13] The RAD must also assess the relevance and quality of the proposed evidence. Guidance for this assessment is found in Raza.2 In Raza, the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.3 [14] While Raza establishes that the further analysis of the evidence is required before the RAD can accept the affidavit as new evidence, the analysis as set out in Raza is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. Accordingly, the RAD has adapted the analysis in Raza to the assessment of evidence submitted to the RAD as follows: Express statutory provisions [15] The RAD's analysis of the new evidence must begin with the test set out in Section 110(4). First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.4 [16] The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.5 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [17] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [18] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.6 [19] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,7 or that it proves a fact that was unknown to him at the time of the hearing?8 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [20] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.9 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, relevance, and materiality of the document. [21] The RAD finds that the proposed evidence tendered by the Appellant in this case meets the test set out in the Express Statutory conditions. As such, the RAD will proceed to assess the newness, credibility, relevance, and materiality of the document.10 [22] The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.11 Newness [23] The "newness "of evidence submitted under Section 110(4) is an explicit statutory provision in IRPA, which requires the RAD to consider when the evidence arose and whether it was reasonably available at the time of the rejection of the refugee claim. [24] In the RAD's view, it makes little sense to also consider newness within the Raza analysis. In other words, if the proposed evidence is not new, it may not pass the test for newness in Section 110(4) and therefore may not need to be assessed under Raza. The RAD will therefore incorporate the "newness" factor into its Section 110(4) analysis, rather than again considering the newness of evidence which has already passed the legislative test of Section 110(4). Credibility [25] Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Evidence that passes the test in Section 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.12 Relevance [26] The RAD must consider whether the evidence is relevant to the appeal, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered.13 Materiality [27] Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. [28] After review of the facts in this case, the RAD finds that the Appellant's proposed new evidence is not admissible in this appeal. The RAD finds that the documents are not material in that they are not capable of showing that the decision or reasons of the RPD are in error. It is the view of the RAD that materiality is the measure of the estimated effect that the presence or absence of an item of information may have on the accuracy or validity of a statement. That evidence has to have a certain threshold effect to be material, namely, that the evidence is capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal. [29] The RAD notes that the proposed new evidence all relates to the Appellant's allegations of a failure of procedural fairness and natural justice. The RAD finds that, on the appeal, the proposed new evidence would not establish a failure of natural justice or a breach of procedural fairness. As such, these documents are excluded as evidence. Application for an Oral Hearing [30] The Appellant has requested an oral hearing, pursuant to Section 110(6); however, he provides no argument to support his submission. Section 110(6) states that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [31] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [32] The RAD has not admitted the Appellant's proposed new evidence as evidence in this appeal. As such, the RAD must proceed without a hearing in his appeal, and his application for an oral hearing is denied. ANALYSIS Standard of Review [33] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. The Appellant submits that the applicable standard of review on procedural fairness is that of correctness and that the applicable standard of review on issues of fact or mixed fact and law is reasonableness. The RAD agrees with the Appellant's submissions in this regard. [34] In Dunsmuir,14 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. In assessing and selecting the appropriate standard of review, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,15 which take into account the list of factors in Dunsmuir.16 The Newton factors are applied to determine the standard of review for any issue of fact, mixed fact and law, or law. [35] The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, and given the relationship between the RPD as a tribunal of first instance and the RAD as an appellant administrative tribunal, the Newton factors are highly relevant. [36] These factors are: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context. [37] In considering the factors in Newton, the RAD has considered which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: * the respective roles of the RPD and the RAD in the context of IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [38] Both the RPD and the RAD derive their jurisdiction from the same statute: IRPA. The Act gives each Division similar powers, although their roles are not the same. It is the primary role of the RPD as a tribunal of first instance to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [39] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.17 The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.18 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD, in most cases, must conduct a hearing19 and assess the totality of the evidence, including evidence related to the credibility of the Appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [40] In contrast to the RPD's authority to assess a claim for protection, IRPA places some limitations on the RAD's ability to consider evidence. For instance, persons who are the subject of the appeal are limited in their ability to present evidence to the RAD. The RAD is not a tribunal of first instance but exists primarily to review the decision made by the RPD and, in the cases where new evidence is considered, to review those decisions in the context of that new evidence. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.20 The RAD's authority to consider new evidence is also limited by the conditions set out in IRPA. Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.21 [41] It is the RAD's view that, given the limitations imposed on the role of the RAD by IRPA, the presence of a right of appeal in and of itself does not warrant a correctness standard on all issues. Rather, given that the RPD has held a hearing on the totality of the evidence, given that the RPD has heard from the Appellant directly at a hearing, and given that the RAD's authority to consider new evidence is limited in IRPA, the RPD will be, in most cases, in the best position to assess the credibility of the Appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton, at paragraph 82, where it indicates with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".22 [42] Dunsmuir also states that most questions of law are to be interpreted on a standard of reasonableness, except for certain narrow categories, such as constitutional questions, true questions of jurisdiction, questions of law that are of central importance to the legal system and outside the specialized area of expertise of the tribunal, and questions about the jurisdictional lines between tribunals. [43] However, unlike the situation in Dunsmuir, both the RAD and the RPD have similar expertise in the interpretation of IRPA. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, the RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal and tends to support a standard of correctness for questions of law. Also, both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. Furthermore, the RPD's advantage of holding hearings in all cases does not seem to provide a reason for the RAD to show deference on questions of law. [44] Additionally, under s.171(c) of IRPA, Parliament has given the RAD authority to review decisions of the RPD. Section 171(c) provides that decisions of a three-member RAD panel have "the same precedential value as a decision of an appeal court has for a trial court" for "the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division." Decisions of appeal courts are binding on questions of law. Therefore, this provision suggests a correctness standard. The provisions of IRPA suggest that the RAD is empowered to bring finality to the refugee protection process and, as such, is entitled to show less deference to the RPD in matters of errors of law. [45] For these reasons, the standard of correctness will be applied to errors in law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.23 [46] In the case at hand, the Appellant submits that there was a denial of natural justice and that the RPD erred in making adverse credibility findings. Allegations of a denial of natural justice are allegations of errors in law, which must be reviewed on a standard of correctness. [47] Credibility findings are issues of fact. The appropriate standard of review on findings of fact is reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.24 In considering this appeal, the RAD must show deference to the factual findings of the RPD. ANALYSIS OF THE MERITS OF THE CLAIM Breach of Procedural Fairness and Natural Justice [48] The Appellant submits that there was a failure of procedural fairness and natural justice in the Appellant's hearing. The Appellant alleges that, at the first sitting, his counsel at that time requested and was granted an application to be removed as counsel of record. [49] The Appellant submits that he was unaware of his previous counsel's intentions and that his counsel had deceived him only telling him prior to the hearing that he would only try to adjourn the hearing in order to have more time to prepare. [50] The RPD re-scheduled the hearing on June 26, 2013 and informed the Appellant that he should be prepared to proceed on that date with or without counsel. The Appellant attended the second sitting of the hearing on June 26, 2013 without counsel and proceeded with the hearing self-represented. [51] The Appellant argues that, given the problems created by the Appellant's counsel at the time and the complexity of the case, he struggled through the hearing. The Appellant submits that, given the RPD did not provide the Appellant with additional time to obtain new counsel or inform him of the availability of legal aid, he was denied a fair hearing. [52] The Appellant argues that he had no job or income and was unable to afford to hire any of the lawyers he contacted. He further argues that he did not know anyone in Canada and was not aware of the availability of Legal Aid. The Appellant also argues that the RPD did not tell him that it would be useful for him to have a lawyer, given the complexities of the case or inform him of the availability of legal aid. [53] The RAD is not persuaded by the Appellant's argument. The Appellant has raised two main issues with regard to natural justice. First, counsel misconduct; and, secondly, failure of the RPD to inform the Appellant of the availability of Legal Aid and that it would be useful for him to have a lawyer, and to afford the Appellant with additional time to obtain a lawyer. [54] Allegations of Counsel Misconduct - Central to the Appellant's argument is his submission that he was unaware that his counsel would be withdrawing as counsel of record at his first hearing appearance. It is the Appellant's contention that he was deceived by his counsel. The Appellant submits that his inability to obtain other counsel and the fact that he struggled in his hearing was partly due to the actions of his previous counsel. Imbedded in this submission is an allegation of counsel misconduct. [55] Where counsel incompetence is alleged, the courts have required corroboration of the allegations, usually in the form of a letter or complaint to the counsel's governing body.25 It is also required that former counsel be given notice and an opportunity to respond.26 Complaints against former counsel are easy to make, and the onus therefore remains on the Appellant to convince the RAD that adequate notice has been given to that counsel.27 There are also the recently released Federal Court Guidelines that mandate this practice before the Federal Court. [56] The Appellant has not provided any evidence to demonstrate that his previous counsel was advised of his concerns with the representation provided. Nor was any evidence provided which demonstrated that the Appellant brought his concerns to the Law Society, counsel's governing body. [57] As such, the RAD finds that previous counsel has not been given notice or an opportunity to respond. The RAD therefore does not accept the Appellant's allegations of counsel misconduct or that he was unaware that his counsel would be withdrawing at the first sitting of the hearing. [58] Allegations of RPD Errors - The Appellant submits that the RPD failed to inform him of the availability of Legal Aid or that it would be useful for him to have a lawyer, and it further failed to afford the Appellant additional time to obtain a lawyer. [59] The Appellant seems to suggest that he was denied his right to counsel by the failures of the RPD. The Appellant suggests that the RPD was under the obligation to inform him about the potential availability of Legal Aid. The Appellant argues that he was unable to afford any of the lawyers he contacted and seems to suggest that the RPD ought to have known that. The RAD disagrees with the Appellant's argument in this regard. The RAD finds that there is no obligation of the RPD to inform claimants of the availability of Legal Aid. [60] The Appellant also submits that the RPD ought to have given more time to obtain counsel. The RAD agrees that the Appellants have the right to be represented by counsel; however, this right is not absolute. The Appellant was provided two weeks to obtain alternate counsel but did not do so. The RAD notes that the Chairperson's Guideline 628 states in part: 3.6.1 The IRB recognizes that parties have the right to be represented by counsel,29 but this right is not absolute. The opportunity to retain counsel is not unlimited. The parties and any counsel they choose to retain must be ready and able to appear and proceed according to the scheduling requirements of the division30 and the requirements of the legislation. 3.6.2 If counsel is retained after a date has already been set for a proceeding, the party is responsible for making sure that counsel is available and ready to proceed on the scheduled date. The IRB does not generally allow applications to change the date or time of a proceeding if a party chooses to retain counsel who is not available on a date that has already been fixed. 3.8.2 The IRB endeavours to inform self-represented parties of its process sufficiently in advance of the proceeding to help ensure that they will be ready to proceed on the scheduled date. This includes informing them of the right to be represented by counsel. The IRB expects self-represented parties to be prepared to present their case on the scheduled date. [61] The RAD finds that the Appellant was duly informed to be ready for the scheduled hearing date and that the Appellant had ample opportunity to obtain alternate counsel, if he chose to do so. Furthermore, there was no evidence in the record that the RPD was made aware that the Appellant was unable to afford counsel or that the Appellant required more time to obtain counsel before proceeding. The RAD notes that the Appellant received all of the disclosure from his previous counsel and attended the hearing prepared to proceed and, in fact, tendered additional documents in support of his claim at that time. [62] The Appellant also argues that, due to the complexity of the case, the RPD ought to have informed him that he would benefit from having counsel. The RAD is not persuaded by this argument. The Appellant has failed to demonstrate how his case is complicated. The RAD finds that the claim involved the single issue of credibility. The allegations were straight forward and there are no particularly complicated issues involved outside of the Appellant's credibility. [63] On the basis of the foregoing, the RAD finds that the Appellant has failed to establish a breach of procedural fairness or natural justice. The RPD's Adverse Credibility Findings [64] The Appellant argues that the RPD's adverse credibility findings are erroneous. [65] Inconsistent Account of Events - The RPD drew an adverse credibility finding from the Appellant's testimony concerning his account of events leading up to his departure from Sri Lanka in XXXX 2013. The Appellant alleged in his original BoC that he was living in Sri Lanka until XXXX 2013. He alleges that, on XXXX XXXX, 2013, he was detained and tortured by the police in Sri Lanka. However, a biometrics report placed the Appellant in Doha, Qatar on XXXX XXXX, 2012. [66] The Appellant submits that RPD's finding was erroneous. The Appellant argues that, at the second sitting, he was extremely forthcoming and that he provided an amended BoC narrative acknowledging the misinformation he provided in his first BoC. The Appellant argues that he was acting on the advice of his smuggler and his former lawyer to omit details regarding his travel to the US in order for his claim to success and that he felt he had no other choice then to follow that instruction in order for his claim to succeed. The Appellant argues that his explanation is reasonable. [67] The RAD is not persuaded by the Appellant's argument in this regard. The Appellant alleges that his initial decision to mislead the RPD was influenced by his previous counsel who counselled him to omit facts from his BoC. Again, the Appellant is alleging counsel misconduct. For reasons already stated, the RAD does not accept the Appellant's allegations of counsel misconduct. [68] The Appellant also argues that he was influenced by his smuggler who also counselled him to omit facts from his BoC. The Appellant argues he felt he had no other option but to follow his smuggler's advice. The RAD disagrees. The Appellant had the option to tell the truth. As pointed out by the RPD, the Appellant was aware of when he was completing his original BoC, he was providing information that was not true. The Appellant swore to the truthfulness of the statements he made in his original BoC even though he was aware they were untrue. [69] The RAD notes that the RPD identified that the Appellant's amended BoC and change in allegations only arose after it was disclosed to him that the biometrics report undermined his allegations. The Appellant's argument that he was "extremely forthcoming" after he was caught in a lie does overcome his intention to mislead the Board with false allegations or repair his credibility. Although the Appellant submits that the RPD drew an "adverse credibility finding" in relation to the Appellant's allegations of detention and torture in Sri Lanka in January 2013, the RAD finds that the RPD's findings were much more determinative. The RPD found that the Appellant lied about material events giving rise to his claim for refugee protection and that, in doing so, his overall credibility and the credibility of his other allegations he made were also undermined. The RAD finds that the RPD's finding in this regard was reasonable. [70] The RPD drew an adverse credibility finding from the contradiction between the Appellant's testimony concerning who had counselled him to misrepresent facts on his BoC narrative and his amended BoC. The Appellant submits that the RPD did not give consideration to the fact that his previous counsel was in the hearing room at the first sitting. The Appellant argues he was afraid of implicating his counsel. He felt stress and worried about the consequences about speaking openly with his counsel present. The Appellant argues that it is reasonable that his former counsel's presence in the hearing room would impede him from implicating him. The Appellant submits that the RPD erred in dismissing the presence of his former lawyer as an adequate explanation for his inconsistent testimony. [71] The RAD is not persuaded by the Appellant's argument. First, the RAD finds that the RPD did consider the presence of the Appellant's lawyer in coming to its determination on this issue. Secondly, the RAD finds that the RPD found that the Appellant's testimony evolved. Thirdly, the RPD's finding in this regard is not solely based on the inconsistent statements made by the Appellant at the first and second hearings. The RPD noted that the Appellant stated in his amended BoC tendered at the second hearing that it was his smuggler who influenced his decision to misrepresent the facts on his original BoC. His explanation for not mentioning that his lawyer was also responsible was that he did not have the benefit of advice as to how to prepare his amended BoC. The RAD finds that it was open to the RPD to reject this explanation. [72] The RAD finds that the RPD's adverse credibility finding from the Appellant's inconsistent testimony concerning his lawyer's influence in providing misinformation to the Board is reasonable. Omissions from BoC Amendments [73] The RPD drew adverse inferences from the Appellant's failure to include significant allegations in his amended BoC. In particular: (a) Omitted that his lawyer influenced his decision to misrepresent facts in his original BoC; (b) Omitted that he was detained and interrogated in XXXX 2012; (c) Omitted that his brother had been detained three times; and (d) Omitted that he had been rounded up from time to time by the police and interrogated by police. [74] The Appellant submits that he provided reasonable explanations that he was unsure what to include; he was advised by his former counsel that it was not necessary, and he simply forgot to mention it. He argues these explanations are reasonable given that he had less than two weeks to prepare, that he had no legal representation and no English language skills, it is entirely reasonable he would not be able to provide a flawless and comprehensive account of his story. He further argues that his case had been severely damaged by his former counsel and his smuggler. [75] The RAD is not persuaded by the Appellant's argument in this regard. The RAD has provided reasons elsewhere in this decision on the Appellant's allegation that his lawyer influenced him to misrepresent facts, and there is no need to revisit them. Suffice to say, the RAD does not accept the Appellant's reliance on failures of his counsel as an explanation for his omissions. The RAD notes that the RPD has rejected the Appellant's explanation for these material omissions. The RPD has found that the Appellant's overall credibility has been undermined by his deliberate misrepresentation of the facts. The RPD has also found that the allegations made by the Appellant at the second hearing were an attempt to bolster his claim. The RAD finds it was open to the RPD to reject the explanations of the Appellant and that its adverse credibility findings are reasonable. [76] In the alternative, the Appellant has argued, in the event that the RAD finds the RPD was reasonable in rejecting his explanation, it was within his right to add detail to his evidence in the form of oral testimony at the hearing. The RAD is not entirely persuaded by the Appellant's argument in this regard. The RAD finds that details omitted by the Appellant in his amended BoC are not details which were intended to "flesh out" specific events consistent with his BoC but rather they are details of new allegations. As such, the RAD finds that the findings of the RPD are reasonable under the circumstances and that the argument of the Appellant in this regard fails. Documentary Evidence [77] The RPD drew an adverse credibility finding with regard to the Appellant's church letter as well as the birth and baptismal certificate. The Appellant submits that the RPD did not declare specialized knowledge and thus erred in making a purely speculative assessment of the church documents. The Appellant further argues that the RPD engaged in a forensic analysis of the documents and, in doing so, engaged in a microscopic assessment of the evidence. [78] The RAD is not persuaded by the Appellant's argument in this regard. The RPD has examined the original documents and is open to draw conclusions about them. The RAD is cognizant that the Federal Court has said that the Board is under no obligation to send documents for forensic analysis.31 Also, the RAD is guided by the Federal Court's decision in Sertkaya,32 which asserts that it is open for the Board to consider the authenticity of documentary evidence and the ability of the claimant to obtain and use fraudulent documents. The panel is also mindful of the Federal Court's decision in Rasheed, 33 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official, should be accepted as evidence of their contents unless the Board has some valid reason to doubt their authenticity. [79] In this case, the RPD noted that the letter from the church contained false information and that the icons in the letterhead of the documents do not match, even though they are reportedly from the same church. The RAD finds there are sufficient reasons for the RPD to doubt the genuineness of these documents. The RAD finds that it was open to the RPD to make findings based on the irregularities on the face of these documents and that there was no need for the RAD to declare specialized knowledge to do so. The RAD finds that the RPD's findings with regard to these documents, in the context of the totality of the RPD's findings, were reasonable. [80] The RAD finds that the RPD's findings together with the record are sufficient to establish that the Appellant has not satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture. [81] The RPD's finding in this regard was justifiable, intelligible, and transparent, and falls within the range of acceptable outcomes which are defensible in respect of the facts and the law. DISPOSITION [82] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "L. Favreau" L. Favreau April 2, 2014 Date 1 Exhibit P-2, pp. 18-42. 2 Syed Massood Raza et. al. v. Canada (Minister of Citizenship and Immigration), (F.C.A. A-11-07); 2007 FCA 385. 3 Raza, paras. 13-15. 4 Raza, para. 13.3(a). 5 Raza, para. 16. 6 Raza, para. 13.5(b). 7 Raza, para. 13.5(a). 8 Raza, para. 13.3(b). 9 Raza, para. 13.5(a). 10 Raza, para. 13.5(b). 11 Raza, paras. 14, 15. 12 Raza, para. 13.1. 13 Raza, para. 13.2. 14 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 15 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 16 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 17 IRPA, s. 110 (1). 18 IRPA, s. 107. 19 IRPA, s. 170. 20 IRPA, s. 110(3). 21 RAD Rule 57. 22 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 23 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 50. 24 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 25 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para. 42. 26 Ibid., para. 43. 27 Ibid., para. 56. 28 Chairperson's Guideline 6: Scheduling and Changing the Date or Time of a Proceeding: Guidelines Issued by the Chairperson, Pursuant to Paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: April 1, 2010 Amended December 15, 2012. 29 IRPA, section 167. 30 Pierre v. Minister of Manpower and Immigration, [1978] 2 F.C. 849 (F.C.A.); Aseervatham, Vimalathas v. Minister of Citizenship and Immigration, (F.C.T.D., no. IMM-1091-99), Dubé, June 1, 2000; Kandasamy, Ratnanathan v. Minister of Citizenship and Immigration, (F.C.T.D., no. IMM-4825-99), Hansen, September 13, 2000. 31 Farooqi, Shaukat Ali v. M.C.I. (F.C., no. IMM-5446-03), Harrington, October 12, 2004; 2004 FC 1396. 32 Sertkaya, Ismail v. M.C.I. (F.C., no. IMM-9058-03), Layden-Stevenson, May 21, 2004; 2004 FC 734. 33 Rasheed, Sohail v. M.C.I. (F.C., no. IMM-1956-03), Martineau, April 21, 2004; 2004 FC 587. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08072