TB6-07845

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 : TB6-07845 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 July 31, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Bjorna Shkurti Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant€(s) désigné€(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [1] XXXX XXXX(the Appellant), a citizen of Albania, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He submitted no new evidence when filing his appeal, but subsequently made an Application for an Extension of Time to Perfect the Record, in order to submit new evidence. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be a Convention refugee or refer the matter back to the RPD for redetermination. 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 lived in a lawless village in southern Albania, where a criminal gang attempted to recruit him. When he refused to join them, he was threatened and assaulted. Upon return to Albania, he fears harm at the hands of these gangs. [4] The Minister of Citizenship and Immigration Canada intervened in the Appellant's refugee claim before the RPD.1 The Minister argued that the Appellant had not established his identity with credible evidence, and further submitted that his credibility was undermined by inconsistencies within his evidence. [5] The Appellant's application for refugee protection was heard on November 10, 2015. By a decision of November 20, 2015, the RPD rejected the claim. The panel concluded that the Appellant was not recruited or targeted by the criminal gang, and further found that the gang in question has been decimated by police operations and would have no interest in the Appellant in the future. [6] The Appellant submits that the RPD erred by failing to conduct separate analyses of sections 96 and 97 of the IRPA, and by engaging in a microscopic analysis of his credibility. Application for an Extension of Time to File or Perfect an Appeal [7] The Appellant's refugee claim was rejected by a decision of November 20, 2015, which was communicated to the Appellant by a Notice of December 4, 2015. [8] The Appellant filed a Notice of Appeal on December 17, 2015. On January 4, 2016, his counsel wrote to the RAD indicating that the Appellant received the RPD's decision on December 8, 2015, and that "meanwhile, there have been a number of serious events that have taken place in Albania, which relate to [his] claim and are highly relevant for the purposes of this appeal." Counsel wrote that the Appellant was awaiting these documents via mail, and asked for an extension of two weeks to perfect the appeal. The application was rejected by the RAD by letter of January 5, 2016 because it was not properly filed, as it did not include the Appeal Record. [9] On January 11, 2016, the Appellant filed his Appeal Record. It did not include his proposed new evidence, but counsel indicated that such evidence would be submitted by January 18, 2016, with an application for an extension of time to perfect the appeal. [10] On January 18, 2016, the Appellant made an Application for an Extension of Time to File or Perfect an Appeal. He asked the RAD to accept two documents: an affidavit from the Appellant's father, and a statement from the Albanian police. The Assistant Deputy Chairperson of the RAD determined that the Application would be decided by the RAD panel assigned to hear the appeal. The Minister has been provided with the Application but has not made submissions. [11] In the RAD's view, the Appellant has applied under the wrong RAD rule. An Application for an Extension of Time to Perfect is normally made with an Appeal Record that is not filed within the time limits set out in the Regulations. The rejection of such an application means that the appeal has not been perfected as required by the Rules, and may therefore be dismissed for lack of perfection.2 [12] Here the Appellant perfected his appeal within the time limits set out in the Regulations. He asks the RAD to accept documents after the perfection of that appeal. Rule 29 allows an Appellant to make an Application for the RAD to accept documents or submissions not previously provided. [13] The Appellant's application for the RAD to accept his new evidence was improperly made as an Application for an Extension of Time. In the interest of fairness to the Appellant, however, the RAD will not reject the application on that basis. Instead, the RAD will consider the Application as if it were made under Rule 29: 29 (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and I whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [14] The Appellant argues that the proposed new evidence is credible, relevant, and material, and should therefore be admitted under section 110(4). In the cover letter to the Application, counsel writes that the Appellant "received new evidence that is highly pertinent to his appeal following the submission of his record."3 [15] This Application, whether to extend time or to provide further documents, simply does not address the factors that the RAD is to consider. If this was properly an Application for an Extension of Time to Perfect, the RAD would be required by Rule 6(7) to consider factors including whether the Application was made in a timely manner, and any explanation for delay; whether there is an arguable case; whether there is prejudice to the Minister; and the nature and complexity of the appeal. The Appellant does not address any of these factors. [16] As set out above, the RAD considers this more properly considered as a Rule 29 Application. In deciding whether to allow such an Application, the RAD must consider factors including the relevance and probative value of the documents, the new evidence the documents bring to the appeal, and whether the Appellant, with reasonable effort, could have provided these documents with his Appeal Record. [17] These documents are arguably relevant. The Appellant's father's affidavit is dated January 18, 2016. It states that the affiant has received threatening phone calls with respect to his son, and that his car was broken into on XXXX XXXX, 2015; a recording and filming device was found inside. The matter was reported to the police. A purported police statement, dated XXXX XXXX, 2016, recites the entire basis of the Appellant's refugee claim and states that there were anonymous phone calls directed at the Appellant's family, that their car was broken into, and that there were recording and filming devices found in the car. [18] Do the documents have probative value? The RAD is struck by the fact that the alleged vehicle incident happened on XXXX XXXX, 2015. Despite this, the affidavit was not sworn until almost XXXX months later ? even though the Appellant learned of the rejection of his claim in early December. What is particularly remarkable is that the Appellant, in the affidavit accompanying his Appeal Record, made no mention of the vehicle incident or the reporting of that incident to the police. In that January 7, 2016 affidavit, he declared that his family continues "receiving threats."4 However, even though the vehicle incident had allegedly occurred some XXXX weeks earlier, and been reported to police at the end of XXXX, he made no mention of it in his affidavit ? despite the fact that his counsel's letter to the RAD, dated January 4, 2016, referred to "serious events" in Albania. To put it simply, the Appellant asked the RAD to allow him extra time to provide documents about a serious incident with his family ? but he did not appear to know what that incident was, even though it was directly related to him and his claim. It seems to the RAD that the Appellant did not know what his new documents would say until he received them, which is highly suspicious in the circumstances. [19] The police document is also of dubious probative value. The document has little to say about the actual vehicle incident; instead, it is a reiteration of the Appellant's refugee claim. It is difficult to see why the Albanian Ministry of Internal Affairs would provide a report setting out that claim in detail, with the vehicle incident added as almost an afterthought. The police report appears to suggest that the police broke the windows of the vehicle, which is both odd and quite different than the father's affidavit, which states that "my car was attacked, its windows were broken...." [20] Do these documents bring new evidence to the appeal? They appear to, though that evidence is of little probative value. [21] The Appellant has not explained why this information could not have been provided with his Appeal Record. Even if the Appellant was not in possession of the actual documents, he could have included the evidence ? the allegations of the vehicle break-in, hidden spy equipment, and police response ? in his affidavit. He did not. Further, the Appellant has not provided an explanation for why these documents could not have been provided with his Appeal Record. The incident and report to the police allegedly happened in late XXXX, before he had even received the rejection of his refugee claim. Why did the Appellant's father not make his declaration until XXXX XXXX, 2016, almost XXXX months after the incident? Why was the police report written on XXXX XXXX XXXX 2016, when the report was allegedly made to the police on XXXX XXXX? [22] While the documents in this Application are relevant, and arguably new, they are of little probative value. Further, the RAD sees no reason that the Appellant could not have provided these along with his Appeal Record, and the Appellant has given no explanation for this delay. Even if the Appellant did not have the actual documents, he could reasonably be expected to have referred in his Affidavit to the important evidence they claim to prove. [23] The RAD has considered, and rejects, this Application under Rule 29. Had the RAD considered the Application as filed, under Rule 6, it would also have rejected it as the Appellant simply has provided no justification for the delay. There is simply no reason provided as to why the Appeal Record was silent on this important evidence. [24] In the alternative, even if the RAD would allow this Application, the documents would not be admissible here, as they are not credible or trustworthy as contemplated by section 171(a.3) of the IRPA. The Appellant's XXXX, 2016 affidavit is oblivious to the serious incidents claimed in the documents, though they allegedly happened in XXXX of 2015. The police report conflicts with the Appellant's father's affidavit. These documents are submitted by an individual who, for reasons set out below, has been found by both the RPD and the RAD to lack credibility. [25] For all these reasons, the RAD rejects the Appellant's Application and does not accept his proposed new evidence. ANALYSIS THE ROLE OF THE RAD [26] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [27] The Appellant submits that the RAD is to conduct an independent assessment of the evidence and make its own determination. He argues that it would be an error for the RAD to apply a standard of reasonableness, though he subsequently asks the RAD to find the RPD's decision to be unreasonable.5 [28] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.6 [29] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.7 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.8 [30] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.9 [31] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.10 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.11 [32] There are, however, cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.12 The Federal Court of Appeal, in discussing the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.13 [33] While it is clear that some level of deference is warranted, it is less obvious how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.14 [34] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony. As such, credibility findings arising from that oral testimony are deserving of deference, as are other findings of fact based on oral evidence, as are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [35] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.15 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.16 [36] How much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".17 This passage has subsequently been endorsed by other decisions of the Court. [37] Although the Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.18 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [38] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 19 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [39] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached. [40] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that the RAD engage in its own review of the evidence in the RPD's record, in order to determine whether the RPD's finding is supported by that evidence. [41] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [42] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a comprehensible reasoning process whose premises are rooted in such advantages. If either the process or the outcome does not meet these requirements, the RAD will determine the findings to be in error. [43] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. The RPD's Findings [44] The Appellant argues that the RPD committed various errors in dismissing his claim. Analysis under sections 96 and 97 [45] The RPD determined the Appellant's refugee claim on the basis of credibility. It did not consider whether there was a nexus between the claim and a Convention ground, and it did not specify whether it considered the claim under section 96 of the IRPA or section 97. The panel concluded its credibility analysis with this statement: Considering, the credible and trustworthy evidence before me, I do not find that there is sufficient evidence to conclude that the claimant has established that he would face more than a mere possibility of risk or the higher test, that it would be more likely than not, that he would be targeted by individuals from this gang, if he were to return to Albania.20 It went on to conclude that the Appellant is "not a Convention refugee as set out in section 96, nor a person in need of protection within the meaning of subsection 97(1) of the Act."21 [46] The Appellant argues on appeal that sections 96 and 97 are distinct and require a separate analysis. It was not enough for the RPD to make a blanket statement that he is not a person in need of protection when there is no indication that the different harms and requirements were considered under both sections. In his submission, the RPD should have explained why he failed to establish the existence of both a subjective fear and an objective basis for that fear. It should also have considered whether the Appellant faces a risk due to the unstable situation in XXXX, his home village. Finally, he notes that the standard of proof required under section 96 is different than that under section 97. [47] Whether or not the omission of a separate section 97 analysis is an error depends on the particular circumstances of each case.22 Here the RPD did not conduct separate analyses under sections 96 and 97; however, it was not required to do so. It considered the Appellant's credibility and found it to be severely deficient. It found that he had not established with credible evidence that he was recruited, assaulted, or sought by a criminal gang, as he claimed. This analysis was relevant to the Appellant's claim under both relevant sections of the IRPA, and the credibility conclusion also applies to each section.23 [48] There may be cases where a general credibility finding is determinative of a claim under section 96, but where section 97 must nevertheless be addressed on the basis of the refugee claimant's remaining profile. Once the allegations of gang recruitment and threats are removed, there is little in the Appellant's profile which places him at risk to his life or at risk of cruel and unusual treatment or torture. However, the RPD did assess the situation in XXXX, noting that the Appellant's family had returned to live there; it also considered objective evidence that says little about gang recruiting, and which indicates that XXXX is now controlled by the authorities, who maintain a large police presence there.24 [49] The RPD did not err by combining its section 96 and section 97 analyses. It referred to the correct test for each section, and determined the Appellant's refugee claim on the basis of an issue ? credibility ? which was equally applicable to sections 96 and 97. Credibility [50] The RPD made negative credibility findings on the basis of a number of inconsistencies in the Appellant's evidence. He was interviewed at the Port of Entry (POE) but said little about gang recruitment and nothing about being assaulted. His Basis of Claim (BOC) narrative also omitted details of a significant alleged assault, and his evidence about the timing of the assault was inconsistent with objective evidence. The RPD found that police and hospital reports had little probative value due to the Appellant's inconsistent evidence about the incidents referred to in those reports. The panel also considered the Appellant's evidence that his family had fled to XXXX, which was not consistent with documents from his family, which indicate that they live in XXXX. Finally, the RPD also assessed objective evidence, which makes little mention of gangs in XXXX forcibly recruiting members, and concluded that there was no need for the gang to recruit the Appellant, as local citizens were willing to voluntarily participate in its lucrative activities. [51] The Appellant takes issue with these findings. He submits that he was forthcoming at the Port of Entry interview; his limited English may have led him to misunderstand a question, but his answers were consistent with the basis of his claim. In his view, he was not required to give detailed answers at the POE interview. Further, he submits that the RPD focused on what he did not say at the interview, but failed to recognize what he did say that bad things happen in Albania and that he fears living there. [52] The RAD recognizes that a POE interview cannot be expected to contain all the details of a refugee claim. At the same time, however, the RAD cannot understand why the Appellant did not provide the basic components of his claim when asked about them. His claim is based on the allegation that a criminal gang has demanded that he join them and that he was severely beaten when he refused. His POE answers, however, communicate a general fear of the situation in Albania but nothing more.25 When asked "in which country do you fear persecution?" he replied, "Nowhere." When asked "Why are you making a refugee claim against Albania?" he answered, "I think there is no hope for me. I started to be more fear living in Albania, lots of bad things happen every day." [53] The Appellant was then asked, "Who or what are you afraid of?" He replied, "The gangs are rising, there is no protection. There are conflicts between the gangs and police where I live. It's starting to be a bit dangerous, and these are some of the reasons." When asked whether he has ever had encounters with the gang, he replied that "they pressured honest people to be with them, especially where I live, even to my family." The Appellant was asked very directly whether he has been assaulted or discriminated against while in Albania; he replied with a simple "no." [54] The RAD finds the Appellant's POE answers to be vague and general descriptions of the situation in his home town. The Appellant could not be expected to provide the full details of his refugee claim at the POE. However, it is difficult to understand why he did not even mention the basis of his claim ? that a gang was trying to forcibly recruit him, that he had been severely beaten, and that he and his family fled to another area. He was asked specifically whether he was assaulted or even discriminated against, and he replied in the negative. Even if he did not fully understand this question ? and this is a weak explanation, given that he chose to proceed in English and gave answers that indicated an understanding of the questions ? he had ample opportunity to tell the interviewing officer about the core of his claim. He was asked who he was afraid of, but did not reveal the threats or assaults. He was asked about encounters with the gang, and again did not provide this important information. He was given an opportunity at the end of the interview to add further information, and he provided nothing more. [55] Having reviewed the evidence, the RAD agrees that the Appellant's failure to provide core elements of his refugee claim at the POE interview seriously damages his credibility. [56] The Appellant told the RPD that he was beaten by the gang on XXXX XXXX, 2014;26 in an affidavit accompanying his appeal, he declares that this assault took place on XXXX XXXX XXXX 2014, and hospitalized as a result of severe injuries.27 This event is simply not mentioned in his Basis of Claim narrative. The Appellant argues that the narrative states that "I was approached by the Group and was coerced to join them;" in his view, this communicates that the assault took place and there is no omission. [57] The RAD does not accept this argument. As noted by the RPD, the instructions to the BOC direct a refugee claimant to "explain everything in order... INCLUDE EVERYTHING THAT IS IMPORTANT TO YOUR CLAIM. INCLUDE DATES, NAMES, AND PLACES WHEREVER POSSIBLE."28 The Appellant alleges that he was severely beaten and hospitalized in XXXX of 2014. Not only did he fail to mention this in his POE interview, but he also omitted it from his BOC. Claiming that he was "coerced" is simply not the same as explaining that he was attacked and required medical attention. This was a significant and unexplained omission, and further undermines the Appellant's credibility. [58] The RPD asked the Appellant about the XXXX 2014 assault. He claimed that it happened at the time the police entered XXXX in a massive raid. The RPD reminded him of objective evidence that the police entered XXXX in mid-XXXX; the Appellant then claimed that the police operation lasted some time. The RPD did not accept this, as the objective evidence suggested that the pacification operation took days but not an entire month. The RPD made another negative credibility finding. [59] The Appellant argues on appeal that the police operation did indeed take more than a month, and that he was faulted by the RPD for something that was not in fact an inconsistency. [60] The RAD has reviewed the evidence. The Appellant was asked about his conflict with the gang; he replied that this happened "at the moment when the police were trying to enter the village. I believe it was on the XXXX XXXX XXXX, 2014."29 Objective evidence indicates that the police operation in XXXX began in mid-XXXX, 2014; by the second day of the operation, the police had already taken control of a quarter of the village.30 Another document, dated XXXX XXXX, 2014, reports that "after five days of action, the State Police has managed to establish control XXXX."31 [61] The RAD agrees that the Appellant's own evidence cannot be reconciled with the objective evidence. He testified that the "moment the police were trying to enter the village" was on XXXX XXXX, 2014; objective evidence indicates that police began trying to enter the village around XXXX XXXX or XXXX, controlled a quarter of the village by the following day, and the entire village by the end of the week. In this context, his claim that the police were trying to enter the village on XXXX XXXX, 2014 simply makes no sense. [62] The RPD did not err by finding that the Appellant's mis-timing of the police entry further harms his credibility; having reviewed the evidence, the RAD reaches the same conclusion. [63] The Appellant argues further that the RPD erred by failing to give weight to corroborating documents, including hospital and police reports. In his view, the RPD should not use its credibility concerns with respect to the XXXX 2014 attack to dismiss corroborating documents. [64] In the RAD's view, the Appellant's corroborating documents must be considered in the context of his credibility. He did not include any alleged assaults in his POE interview. He did not include the alleged XXXX 2014 assault in his BOC narrative. When he testified about that assault, he provided a date which cannot be reconciled with objective evidence ? and yet he provided police and hospital reports which bear the same date.32 Confusing things further, he provided an affidavit to the RAD which gives an entirely different date ? XXXX XXXX, 2014. In this context, these documents deserve no weight. [65] The RAD recognizes that the Appellant provided other documents as well ? another medical report, as well as affidavits and letters. However, the Appellant is generally lacking in credibility, for reasons discussed in detail above. These documents cannot be independently verified, and their authors were not questioned by the RPD or RAD. The Appellant was questioned, and found to be lacking in credibility; these documents cannot overcome this deficiency. [66] The Appellant told the RPD that his family had to relocate to XXXX because of the gang threat in XXXX. However, he provided corroborating documents from his family indicating that they now live in XXXX. When confronted with this, he told the RPD that his family returned home around the time he left for Canada. The RPD made a negative credibility finding. [67] The Appellant argues on appeal that the RPD erred by treating his family's fear and their desire to assist him as mutually exclusive. The RAD disagrees. There are two problems with the Appellant's evidence here. First, his Basis of Claim narrative indicates that his family fled to XXXX "as a result of the ongoing threats they were receiving in XXXX." It goes on to explain that the situation in XXXX remains unstable.33 The Appellant also provided information in his BOC indicating that his mother, father, and sister live in XXXX.34 In other words, the Appellant alleged in his BOC that his family fled to, and remained, in XXXX, even though they in fact returned to XXXX around the time he left for Canada. This is a serious credibility concern. It also leads to a second problem: the Appellant claims that his family was threatened by the same gang who pursued him. The Appellant alleges that XXXX remains too dangerous for him. Despite this, his family returned there even before he made his refugee claim, though he appeared to attempt to conceal this fact from the RPD. [68] The RPD did not err in its consideration of the relocation of the Appellant's family; having reviewed the evidence, the RAD agrees that this matter raises even more credibility concerns. [69] For reasons set out above, the RAD finds that the Appellant is generally lacking in credibility. He has not established with credible or trustworthy evidence that he was or is sought by any criminal gang in Albania, that he was threatened or harmed, or that he faces any such risk upon return. Return to Albania [70] Even though the Appellant did not establish any specific risk of persecution or other harm, the RPD considered the general situation in XXXX. The Appellant argues on appeal that his village is not safe: a police officer has been killed, and the Interior Minister has stated that the war on drugs knows no end. [71] Having reviewed the evidence, however, the RAD agrees that the Appellant faces no more than a mere possibility of persecution in XXXX, and does not, on a balance of probabilities, face a risk to life or of cruel and unusual treatment or punishment. He has not established with credible evidence that he is sought by criminals or has any history of interaction with them. Evidence cited by the RPD,35 and reviewed by the RAD, indicates that the police are in control of XXXX and maintain a large force there; the criminal organization is significantly weakened and its leaders jailed. While there have been sporadic flare-ups of violence between criminals and police, this does not indicate that the Appellant faces any danger. [72] For all these reasons, the Appellant's refugee claim, and his appeal of its rejection, must fail. CONCLUSION [73] Pursuant to section 111(1)(a) of the 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) "Edward Bosveld" Edward Bosveld July 31, 2016 Date 1 Exhibit RPD-1, RPD's Record, p. 96. 2 Refugee Appeal Division Rules, Section 2. 3 Exhibit P-3, Application for an Extension of Time to Perfect the Record of the Appellant (January 18, 2016). 4 Exhibit P-2, Appellant's Record, p. 15, para. 17. 5 Exhibit, P-2, Appellant's Record, p. 470, para. 69. 6 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 7 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 8 Dhillon, paras. 14-18. 9 Huruglica, 2016 FCA 93, para. 103. 10 Ibid. 11 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 12 Huruglica, 2016 FCA 93, para. 70. 13 Ibid., para. 74. 14 Akuffo, paras. 34-35; see also Meilina, Yani v. M.C.I. (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233, para. 11. 15 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 72. 16 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, 2014 FC 78, which decision contains a thorough discussion of the drawing of inferences.). 17 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, para. 55. 18 See Yin, Sarom v. M.C.I. (F.C., no. IMM-2845-14), Noël, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084, and Sajad, Zeeshan v. M.C.I. (F.C., no. IMM-926-14), Shore, November 21, 2014, 2014 FC 1107; also Bui, Van Son v. M.C.I. (F.C., no. IMM-1654-14), Shore, November 28, 2014, 2014 FC 1145. 19Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 20 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 16. 21 Ibid., para. 17. 22 Kandiah, Thuraiveerasingam v. M.C.I. (F.C., no. IMM-1559-04), Martineau, February 7, 2005, 2005 FC 181, para. 16. 23 Velez, Liliana v. M.C.I. (F.C., no. IMM-5660-09), Crampton, September 15, 2010, 2010 FC 923, paras. 46-51. 24 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 15. 25 Exhibit RPD-1, RPD's Record, pp. 52-53. 26 Exhibit RPD-1, RPD's Record, p. 296, Transcript. 27 Exhibit P-2, Appellant's Record, p. 14, Affidavit, para. 9. 28 Exhibit RPD-1, RPD's Record, p. 15. 29 Exhibit RPd-1, RPD's Record, p. 296, Transcript, lines 12-13. 30 Exhibit RPD-1, RPD's Record, p. 187. 31 Ibid., p. 185. 32 Exhibit RPD-1, RPD's Record, pp. 110 and 114. 33 Exhibit RPD-1, RPD's Record, p. 25. 34 Ibid., p. 20. 35 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07845