TB4-11783

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 : TB4-11783 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 16, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shelley Levine 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 ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. 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 re-determination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he turned to Christianity in 2013 as a result of marital difficulties. In XXXX of 2014, he alleges, the Public Security Bureau (PSB) raided his underground house church. A few days later, he learned that detained members of his church had revealed his name to the authorities, and that a summons had been issued for him. He fled to Canada in XXXX of 2014 and made a refugee claim. [4] The Appellant's application for refugee protection was heard on November 5, 2014. By a decision of November 12, 2014, the RPD rejected the claim. The panel found it implausible that the Appellant was able to leave China illegally, gave no weight to corroborating documents, and found that in any event he would be able to practice Christianity without persecution in China. [5] The Appellant submits on appeal that the RPD erred in its analysis of corroborating documents, ignored importance evidence, failed to make findings of fact in respect to central issues, and engaged in a deficient analysis of the nature of religious persecution. ANALYSIS What is the role of the RAD? [6] 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. [7] The Appellant makes no submissions on the standard to be applied to the RPD's decision. [8] The RAD has, in respect of proceedings brought before it under the IRPA, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.1 While the RAD is a relatively new tribunal, it has by now rendered more than a thousand decisions on the merits of appeals. It has experience in interpreting the IRPA, its home statute and one with which it has particular familiarity. It is therefore appropriate for the RAD to consider its own role and expertise, the nature of the appeals it considers, as well as the degree and scope of deference it will show to findings of the RPD. In Djossou,2 the Federal Court encouraged the RAD to carefully consider the nature and purpose of a RAD appeal, which the RAD will do below. Background Legislation [9] The legislative history of the RAD is carefully detailed in Djossou,3 and will not be repeated here. [10] While the IRPA does not specifically set out the purpose of the RAD, it does describe the purposes of the legislation with respect to refugees:4 a. to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; b. to fulfil Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement; c. to grant, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; d. to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; e. to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; f. to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; g. to protect the health and safety of Canadians and to maintain the security of Canadian society; and h. to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. [11] While all of these objectives are generally relevant to the RAD, (e) is specifically applicable to the appellate tribunal, which must be cognizant of the requirement to establish fair and efficient procedures that will maintain the integrity of the refugee protection system while at the same time upholding respect for human rights and fundamental freedoms. [12] The IRPA sheds some light on the purpose of the RAD in Section 110(1): Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection (italicized emphasis added.) [13] This suggests that the RAD must consider questions arising from the RPD's decision. [14] Section 110(2) of the IRPA restricts access to the RAD. Those without the right of a RAD appeal include designated foreign nationals, refugee claimants whose claims were found to have no credible basis or to be manifestly unfounded, and individuals who have lost their refugee status through vacation or cessation. [15] Section 110(3) requires that the RAD proceed without a hearing, on the basis of the RPD's record, though it may also accept documentary evidence and submissions from both the Minister and the subject of the appeal. Section 110(4) imposes restrictions on new evidence filed by the person who is the subject of the appeal, who "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." These restrictions do not apply to evidence filed in response to evidence submitted by the Minister on appeal. [16] Section 110(6) sets out the exceptional circumstances in which the RAD may hold an oral hearing: where there is new evidence (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. [17] Section 111(1) provides the RAD with a broad range of remedies: it must either confirm the determination of the RPD, set that determination aside and substitute its own determination, or refer the matter back to the RPD for re-determination. According to Section 111(2), the RAD is only to refer a matter back if the decision of the RPD is "wrong in law, in fact or in mixed law and fact," and if it cannot confirm or substitute "without hearing evidence that was presented to the Refugee Protection Division." In the RAD's view, these provisions suggest both an emphasis on finality and a desire to avoid duplication between the RAD and the RPD. [18] Section 165 provides that members of the RAD have the powers and authority of a commissioner appointed under the Inquiries Act, and may do any other thing they consider necessary to provide a full and proper hearing. [19] Section 171 sets out provisions in respect to proceedings before the RAD, including that the Division is not bound by legal or technical rules of evidence; and that it may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. It also allows the RAD to take notice of facts that may be judicially noticed, of any other generally recognized facts, and of information or opinion within its specialized knowledge. Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member panels of the RAD. Where the RAD convokes such a panel, the UNHCR has a right to participate in the appeal through written submissions, and other interveners may apply to do so as well.5 [20] The Immigration and Refugee Protection Regulations6 set out a 15-day time limit for an appeal to be filed to the RAD, and require that, except where an oral hearing is held, "the time limit for the Refugee Appeal Division to make a decision on an appeal is 90 days after the day on which the appeal is perfected."7 Jurisprudence [21] As a new tribunal, the RAD did not initially have the benefit of any jurisprudence specifically dealing with its role, its relationship to the RPD, or the nature of an appeal. In hundreds of cases, the RAD rather consistently determined that it should apply a standard of review of reasonableness, deferring to the RPD's findings of fact and mixed fact and law, while applying a standard of correctness to questions of law, natural justice and procedural fairness. [22] The Federal Court first spoke to the RAD's role in Iyamuremye.8 In that case, the Court found itself entirely in agreement with the RAD that the standard of review to be applied to decisions of the RPD was one of reasonableness, though it found that the RAD had erred by failing to conduct an independent review of the evidence in order to assess whether the RPD's decision was in fact reasonable. The Court also recognized that it would be absurd, and contrary to subsection 110(3) of the IRPA, to require the RAD to re-examine in every instance whether claimants are in fact refugees or persons in need of protection. [23] In the subsequent cases of Alvarez and Eng,9 the Court clarified the role of the RAD in relation to the RPD. It held that the RAD is not to undertake a process of judicial review, but rather must conduct its own assessment of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error."10 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness. [24] In Huruglica,11 the Court considered the appropriate relationship between the RAD and the RPD. It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, one should not even engage in a standard of review analysis, but should instead consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise and comparative appellate regimes.12 [25] While the Court had strongly endorsed the standard of reasonableness in Iyamuremye,13 it found in Huruglica14 that the application of such standard was in error. In contrast to Alvarez and Eng,15 the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica,16 the Court determined that the RAD is to conduct a "hybrid appeal", respecting and recognizing the findings of the RPD only where the lower tribunal has an advantage in making such findings, and making its own independent assessment of whether the claimant is a refugee. [26] It is important to note here that while the Court in Huruglica17 held that both reasonableness and "palpable and overriding error" are not standards to be used by the RAD, it did not clearly set out what level of deference should be given by the RAD to findings of the RPD with respect to credibility or in other areas where the RPD has a particular advantage. The Court also did not clarify the areas in which the RPD has such an advantage. [27] A number of subsequent cases have cited Huruglica and adopted, in whole or in part, the reasoning therein.18 The following passages are frequently repeated: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it 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". [28] In Spasoja,19 Justice Roy agreed with Huruglica that the RAD should not engage in a judicial review of the RPD's decision. However, he held that the appropriate standard to be applied in a RAD appeal is the appellate standard of "palpable and overriding error." [29] There have been numerous Federal Court decisions since that time which speak to the RAD's role. In some, the RAD's decision was upheld on judicial review, even though it applied a standard of reasonableness, because the Court concluded that the tribunal properly showed deference to findings of credibility, even if it erred in using the language of judicial review.20 In others, the Court found that the application of a reasonableness standard deprived the Appellants of a true appeal. [30] In Alyafi,21 the Federal Court considered three approaches to the RAD's role: a judicial review-like standard of reasonableness, which has been consistently rejected by the Court, as well as the hybrid approach and the palpable and overriding error standard. Justice Martineau found himself faced with an "Olympic dilemma," as there were two competing and contradictory approaches, each adopted by some of his colleagues on the Court. He proposed that the RAD be allowed by the Court to choose either approach until the matter is finally settled by a higher court. [31] In Akuffo,22 Madam Justice Gagné agreed with Huruglica that deference is owed by the RAD only on matters of credibility and where the RPD has a particular advantage. While the Court did not set out a preferred standard, the Justice wrote that she is "far from being convinced that there is a real and pragmatic difference between an 'unreasonable' error and an 'overriding and palpable' one...."23 She held further in Kurtzmalaj24 that the RPD does not hold a particular advantage in considering documentary evidence, including a claimant's personal documents. [32] The RAD was encouraged by the Court in Djossou25 to consider the nature of a RAD appeal - whether it is a true appeal, a de novo appeal, or a hybrid. The RAD was directed to consider these three options with an open mind, and to adopt an approach taking all relevant factors into account. On the subject of deference, the Court held that the RPD did not hold an advantage over the RAD other than on issues of pure credibility.26 A few days later, the Court decided Allalou,27 and noted that the RPD, as the trier of fact, has the advantage of assessing witnesses and viewing evidence first-hand.28 [33] Notwithstanding the prior decisions with respect to the deference owed by the RAD to the RPD, the Court in Bahta29 determined that the RAD owes no deference whatsoever to the RPD on questions of fact; the RAD was directed to make its own determination of the Appellant's credibility based on the record. In Aloulou30 the Court returned to the standard of palpable and over-riding error. [34] While the preceding review of the jurisprudence is necessarily brief and limited, it may nevertheless illustrate the difficulty faced by the RAD in determining its approach. Is the RAD to employ a hybrid approach? Is it to assess the RPD's decision for palpable and overriding errors? Is it to show deference to findings of fact and of mixed fact and law, or only to credibility, or where the RPD has an advantage, or perhaps show no deference at all? Is the RAD to review the evidence in order to properly understand the RPD's decision, or for the purpose of making its own determination of the refugee claim? If the latter, how much attention-if any at all-does the RAD need to pay to the RPD's decision in coming to its own determination?31 [35] In the RAD's view, there are some aspects of the jurisprudence that are relatively consistent. It is clear that the RAD is not to engage in a process of judicial review, and it is not to use the terminology associated with judicial review: "There is a consensus amongst the judges of this Court that the judicial review regime does not apply to appeals of RPD decisions before the RAD. In my view, this implies that the RAD should avoid using and relying on both the jurisprudence and the vocabulary as developed in the context of judicial review."32 [36] The Court has also consistently held that the RAD is to independently review the evidence in the RPD's record, in addition to any admissible new evidence. Most, though not all, decisions of the Court suggest that the RAD owes some degree of deference to some findings of the RPD. [37] The Court has certified a number of questions that may lead to the resolution of the issues set out above. In the meantime, however, the RAD must continue to decide appeals, and to do so within the time limits set out in the Regulations. It is therefore necessary for the RAD to engage in its own analysis of its role, approach, and relationship to the RPD. The Role of the RAD [38] How is the RAD to determine its role? The Court has considered, among other factors, statements made by the Minister responsible for the IRB at the time RAD-related legislation was being discussed in Parliament: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal.33 [39] While the Court did question whether the stated intention of creating a true appeal was actually realized,34 and noted that legislative debates have questionable weight in the interpretation of a statute,35 this and similar statements seem to factor significantly into the Court's understanding of the role of the RAD. The Court has found that such statements indicate that Parliament intended the RAD process to be an appeal, and not a judicial review or quasi-judicial review,36 and establish that the criteria for admitting new evidence must be flexible,37 and as support for the conclusion that the RAD should show no deference to factual findings of the RPD.38 [40] Such statements provide the RAD with limited assistance in determining its role. There may be some peril in taking words spoken in political discourse-such as "full fact-based appeal"-and giving them a legal or technical meaning without having reason to believe such meaning was attached to them, or intended, at the time they were uttered. As the Court observed in Djossou, "The lax use of the terms 'appeal de novo', 'appeal', or 'full appeal' can only add to the confusion that seems to exist among parties and attorneys."39 In the RAD's view, it would be difficult indeed to consider such political statements-even in context, and when repeated on multiple occasions-as the basis for legal and technical conclusions about the role of the RAD or the nature of an appeal to it.40 [41] However, the legislative provisions themselves distinguish a RAD appeal from the judicial review process: there is a right to appeal without the requirement to seek leave, new evidence may be presented, and the RAD has broad remedial power. [42] There is no doubt that the RAD considers appeals and does not engage in a process of judicial review. The RAD, like the RPD, is an administrative tribunal created by Parliament to fulfill a statutory function. While it is bound to make decisions within the law, its main function is to make refugee determinations (as illustrated by Section 111). In contrast, Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.41 [43] The courts have a more limited role on judicial review; this role stems from the fact that the courts and administrative tribunals reside in different branches of government. The deferential standard applied by the courts is the result of a balance struck between the need to ensure the legality of administrative decisions and the need to avoid "undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures." [44] It is clear from Sections 18 and 18.1 of the Federal Courts Act that the Federal Court is given broad supervisory authority over all federal boards, commissions, or tribunals, with specific grounds of review found in 18.1(4).42 The RAD, on the other hand, obviously only reviews decisions of the RPD. [45] The role of the RAD is best determined from its enabling legislation, and the jurisprudence of the Courts interpreting that legislation, both of which are reviewed above. [46] Having considered the legislation and jurisprudence, the RAD finds that its role includes the following: a. To recognize and implement the objectives of IRPA with respect to refugee protection: that the program is about saving lives and offering protection; to grant fair consideration to those fearing persecution; and to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system,43 doing so in a manner that is consistent with the Charter and with international human rights instruments to which Canada is signatory;44 b. To provide an appeal against a decision of the RPD to allow or deny a person's claim for refugee protection;45 such appeals serve the dual purpose of ensuring that those entitled to protection under the IRPA receive it and of ensuring the integrity and efficiency of the refugee determination process; c. To efficiently correct errors made by the RPD, by conducting a complete review of questions of fact, law, and mixed fact and law;46 and d. To ensure consistency in the decision-making process by establishing uniform jurisprudence on refugee law issues.47 The Nature of a RAD Appeal [47] The legislative provisions which set out the task of the RAD make clear that an appeal is made in relation to a decision of the lower tribunal. Section 110(1) refers to an appeal "against a decision of the Refugee Protection Division." The broad remedies available to the RAD in Section 111(1) also refer to such a decision, as the RAD can confirm the RPD's determination, or set it aside and substitute, or refer the matter back to the RPD to make another decision. Section 111(2) provides that the RAD may refer the matter back if it finds that "the decision of the Refugee Protection Division is wrong in law, in fact, or in mixed law and fact." The RAD's plain reading of these legislative provisions leads it to conclude that the appeal described in the legislation is an appeal against the decision rendered by the RPD and the determination reached in that decision. [48] In Djossou, Justice Martineau wrote that "there is general agreement that there are usually three types of appeal: true appeal ("appel veritable"); appeal de novo; and hybrid appeal."48 A true appeal is the most narrow, as the appeal is founded on the record and the Appellant must demonstrate a reviewable error of law, fact or procedure. An appeal de novo is where the original decision is largely or entirely ignored, except perhaps for the purposes of cross-examination. In a hybrid appeal, the Appellant bears the onus of demonstrating error and the appeal tribunal receives the record, but the appeal is not limited as to grounds. The appeal tribunal reviews the lower decision for correctness and fresh evidence may be adduced. The Court noted that, at first glance, an appeal to the RAD looks like a true appeal, but that it may also be a hybrid appeal; the RAD was urged by the Court to consider these appeal options with an open mind. [49] The RAD is an unique tribunal, and it may be that it considers all three types of appeals. As set out above, the statutory provisions governing this tribunal's work clearly require it to consider the RPD's decision. The appeal is against a decision of the RPD and, unless there is new evidence, the appeal is founded on the RPD's record. The Appellant is required to demonstrate an error of law, fact, or mixed fact and law.49 The RAD is not to ordinarily hold a hearing, new evidence is subject to restrictions, and the RAD is not to re-hear evidence that was presented to the RPD in the course of confirming or setting aside and substituting a determination of the RPD. Where no new evidence has been admitted, an appeal to RAD is a true appeal. In such an appeal, the RAD must consider the decision of the RPD, the submissions of the Appellant challenging that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, it is therefore necessary for the RAD to consider the evidence in that record in order to determine the appeal. [50] Where new evidence is admitted on appeal, however, the nature of the appeal necessarily changes. It is no longer a "true appeal," based only on the RPD's record. In the RAD's view, an appeal with admissible new evidence might be characterized as a hybrid appeal where that evidence speaks not to a new risk to the Appellant, but rather to an error in the RPD's decision.50 In such a hybrid appeal, the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.51 [51] There may also be appeals where new evidence is tendered not for the purpose of illuminating an error in the RPD's decision, but rather to establish a new or heightened risk faced by the Appellant, or to otherwise change the overall nature of the claim. In some such appeals, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk not considered by the RPD. Such an appeal would be, in effect, a de novo appeal, as the original decision could be largely ignored. However, even such an appeal might not be a true de novo proceeding, as certain findings of the RPD-such as those in respect to identity or credibility-could remain relevant. [52] In Huruglica, the Court noted the RAD's Section 111(1)(b) power to substitute the determination which "in its opinion, should have been made." The Court then added that "one pre-condition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis."52 Later in the same decision, the Court required that the RAD "come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection." [53] Was the Court in Huruglica instructing the RAD to, in essence, engage in some type of a de novo consideration of the Appellant's refugee claim, regardless of whether the RPD's decision was in error? This would conflict with the strong statement of the Court in Iyamuremye: "The Court recognizes that it would be absurd, and contrary to subsection 110(3)... to task the Refugee Appeal Division (RAD) of the Immigration and Refugee Board with re-examining, for every instance, whether the claimants are in fact refugees or persons in need of protection...."53 Later in Alvarez (decided before Huruglica) and again in Triastcin (after Huruglica), the Court said clearly that "an appeal before the RAD is not an appeal de novo; the IRPA restricts the power of the RAD, in comparison to that of the IAD, to considering new evidence and to holding a hearing only in exceptional cases ...."54 The Court in Huruglica seemed to disagree, however: "the restriction on the ability to receive fresh evidence is not a bar to conducting a de novo appeal."55 [54] In the RAD's view, each appeal to the RAD is not a de novo appeal-that is, an appeal in which the RAD ignores the RPD's decision and makes a determination solely based on its own assessment of the evidence and arguments in the RPD's record, as well as any new evidence; in the RAD's view, Huruglica should not be read to suggest a de novo in this sense. In fact, the statutory language appears to link the RAD's remedial power to its review of the RPD's decision. While Huruglica focused on the remedy set out in Section 111(1)(b), the full language of that section provides that the RAD may, after considering the appeal (which, as per Section 110(1), is an appeal against a decision of the RPD), "set aside the determination [of the RPD] and substitute a determination that, in its opinion, should have been made" (emphasis added). There is a relationship between the first step and the second: once the RAD sets aside, it may substitute. It is difficult to conceive the RAD setting aside the determination of the RPD without first finding it to be in error, or proceeding straight to the merits of the refugee claim without first considering the RPD's decision.56 [55] Were the RAD to consider each appeal as a de novo appeal, it would risk duplicating the decision-making function of the RPD. There is no indication in IRPA that Parliament intended the RAD to repeat the RPD's process of refugee determination. The legislation requires the RAD to consider appeals against the decision of the RPD; to normally proceed without a hearing on the basis of the RPD's record; to consider only new evidence that arose after the RPD determined the claim, or was not reasonably available or could not reasonably have been expected before the RPD; and links the RAD's power to substitute to its setting aside of the RPD's decision. Significantly, Section 111(2) permits the RAD to refer a matter back to the RPD only if the RPD's decision was wrong and the RAD cannot confirm it or set it aside and substitute without hearing evidence that was presented to the RPD. In the RAD's view, this provision clearly signals that the RAD is not to duplicate the work of the lower tribunal.57 To do so would be inefficient58 and thus inconsistent with one objective of the IRPA set out in Section 3(2)(e). Moreover, in the RAD's view, if Parliament intended the RAD to re-determine the refugee claim-even absent any error by the RPD-the legislation would have said this, instead of requiring the RAD to consider the RPD's decision. In fact, the provisions of Section 111-allowing the RAD to substitute its own determination when it sets aside the decision of the RPD, and discouraging the RAD from re-hearing evidence heard by the RPD-indicate an intent that the RAD consider an appeal against the RPD's decision, not duplicate the RPD's process. [56] Can the nature of a RAD appeal be ascertained by looking to appeals considered by other administrative tribunals? The RAD is unique in that it is a Division which considers appeals against decisions of another Division of the Board. As such, it may be difficult to make accurate comparisons to appellate tribunals in other circumstances.59 In some cases, however, the Federal Court has compared the RAD to the Immigration Appeal Division (IAD), another tribunal within the IRB. In Huruglica,60 the Court found the IAD to be the most relevant comparator to the RAD, and listed a number of "shared elements" between the IAD and the RAD. Significantly, the Court noted that the IAD conducts de novo appeals, even though this is not specifically set out in the legislation. [57] In the RAD's view, it is clear from the legislation that an appeal to the IAD is considerably different than that of an appeal to the RAD. The IAD "must" hold a hearing to consider an appeal,61 while the RAD "must proceed without a hearing"62 except in very specific circumstances. IRPA also restricts the power of the RAD, but not the IAD, to accept new evidence. Section 111(2)(b) discourages the RAD from re-hearing evidence that was previously presented to the RPD, while the IAD has no such constraint. The filing of an appeal to RAD is governed by relatively short time limits, and a decision must be rendered in relatively short order. [58] While the Courts have found that the IAD's process constitutes a de novo appeal, the RAD process is significantly different in key respects. A comparison to the IAD may be informative in determining that the RAD, like the IAD, is not to engage in a judicial review process, but that is not at issue here. The RAD finds that, although its sibling tribunal conducts de novo appeals, this does not lead to the conclusion that the RAD's process is a de novo appeal.63 [59] Having carefully considered the nature of the RAD appeal, it is appropriate for the RAD to follow the words of Justice Roy in Spasoja:64 The remaining issue is the nature of the appeal. Some would consider it an appeal de novo, as defined in Black's Law Dictionary, 10th ed: "Appeal de novo. An Appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." With respect, in the statutory scheme under review, I cannot find any indicators providing for an appeal de novo. As such, the Criminal Code, RSC 1985, c C-46, for example, specifically sets out an appeal de novo in certain cases with respect to prosecuting offences punishable on summary conviction (see Part XXVII of the Criminal Code, sections 821 et seq.). Parliament was clear. There is nothing of the kind in the Act. Instead, the scheme under review addresses appeals on specific questions, be it of fact, of law or of mixed law and fact (subsection 110(1)). In my view, that means that the appellant must identify the questions on which the appeal will focus. It will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4). [60] The RAD concludes that, except in certain and limited circumstances, an appeal to the RAD is not a de novo appeal. [61] For these reasons, the RAD concludes that the nature of the RAD appeal is variable. Where there is no admissible new evidence, it is a true appeal, and the RAD must consider the Appellant's submissions and engage in an independent review of the evidence in order to determine whether the RPD was wrong. [62] Where there is admissible new evidence which points to an error in the RPD's decision, the appeal is a hybrid: the RAD must consider the RPD's decision and determination, and also consider the effect of the fresh evidence on the decision. [63] Finally, where there is admissible new evidence which speaks to a new or heightened risk, or otherwise changes the overall nature of the claim, this would justify a limited de novo appeal, in the sense that the RPD's decision (but not necessarily its record) could be largely ignored, though in most cases it would not be appropriate to entirely ignore the RPD's findings on certain issues.65 Should the RAD Show Deference to the RPD? [64] The Singh decision of the Supreme Court was a landmark ruling for Canada's refugee determination system.66 In that judgment, the Court held that refugee claimants in Canada have the right to an oral hearing of their refugee claims. The Court recognized the importance of an oral hearing to determine credibility: I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806-08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions."67 [65] The Supreme Court clearly recognized the importance of an oral hearing in determining the credibility of a refugee claimant. Today that hearing takes place before the RPD, while the RAD is, in most cases, limited to listening to an audio recording or reading a written transcript. If the RAD were to show no deference to credibility findings of the RPD, and were to make its own credibility findings on the basis of a transcript or recording, it would do so in disregard of the Supreme Court's words and rationale in Singh.68 [66] The Supreme Court has also observed, in another matter, that the trier of fact is "in a privileged position to assess the credibility of witnesses' testimony at trial. . . ."69 The RPD sees, hears, and questions the refugee claimant, while the RAD must not normally hold a hearing. The RAD now has considerable experience in reviewing the testimony of Appellants before the RPD, both through audio recordings and written transcripts. While the RAD may have comparable or greater expertise than the RPD in matters of refugee determination, it finds itself at a significant disadvantage when considering credibility through a recording or transcript. For example, a long pause by a claimant in response to a question from the RPD may be interpreted as uncertainty or evasiveness when considered via an audio recording; however, the RPD member may not have made a negative credibility finding because the pause is in fact caused by the interpreter consulting his dictionary, or by counsel making a hand gesture for the witness to wait while counsel finishes her notes of the previous answer. This would not be apparent to the RAD member listening to a recording. Similarly, the RPD might find the emotional state of a visibly distraught claimant to be consistent with and corroborative of her testimony; the RAD is unable to consider this important factor when reading a transcript. Further, having the benefit of seeing and hearing the claimant, the RPD has the advantage of deciding whether to further probe an area of evidence, while the RAD is unable to ask the questions it would like to have answered based on its review of the transcript. [67] Finally, deference is warranted because the legislation suggests that Parliament viewed the RPD as having expertise in determining certain matters. Where the RPD finds that a refugee claim has no credible basis, or is manifestly unfounded, the failed refugee claimant has no right of appeal to RAD.70 In the RAD's view, this signals a recognition of the RPD's advantage in determining credibility, as does the fact that a decision in respect to a vacation or cessation proceeding also cannot be appealed to the RAD.71 The provisions of Section 111(2)-that the RAD may refer an erroneous decision back to the RPD only if it cannot confirm it or substitute "without hearing evidence that was presented to the Refugee Protection Division"-also suggest that some level of deference is to be accorded to the findings of the RPD, as evidence heard by the RPD is not to be re-heard by the RAD. [68] 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, "With that said, there 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."72 Scope of Deference [69] Having established that it owes some deference to the RPD, the RAD must consider the extent to which that deference applies to findings of the lower tribunal, after which it will consider the appropriate level of deference. [70] In the judicial review and appellate court context, a distinction is made between questions of fact, questions of law, and questions of mixed fact and law, and the appropriate standard of review is selected on the basis of this distinction. In some decisions, the Federal Court has found that these issue categories are applicable to the determination of the scope of the RAD's deference.73 [71] However, other decisions of the Court have, instead of determining deference by issue categories, instead considered evidentiary categories. In Huruglica, the Court held that the RAD could show deference "on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion."74 The concept of deference based on categories of evidence, rather than issue categories, is also reflected in subsequent cases.75 [72] The RAD is well aware that IRPA provides for an appeal on a "question of law, of fact or of mixed law and fact,"76 and has considered whether such a provision requires that the scope of deference be determined on the basis of such questions. The Supreme Court noted in Khosa that a distinction can be made between grounds of review and standards of review.77 Here an appeal to the RAD may be made on certain grounds, but those grounds are not necessarily the basis for determining where deference begins and ends. [73] In fact, in light of the Federal Court's jurisprudence to date, it would be difficult for the RAD to determine, using issue categories, where deference is warranted. This would be particularly awkward in considering the category of mixed fact and law. In the refugee law context, this category is often applied to matters such as state protection and internal flight alternative (IFA), where the RPD is required to apply a legal principle to the specific facts of a refugee claim. [74] In the RAD context, this "mixed" category presents difficulties when it comes to determining the scope of deference. As the Courts have noted, the RAD has similar or greater expertise to the RPD in matters of refugee law. While the RPD has an advantage in making findings relating to oral testimony, that advantage does not extend to objective information, such as country conditions evidence. A "mixed" category issue such as state protection might consist of a finding by the RPD based entirely on objective documentary evidence about the availability of such protection; conversely, it might be entirely based on the refugee claimant's oral testimony about efforts to seek state protection. Similarly, a finding of IFA might be based largely on objective evidence-where deference is not warranted-or on a claimant's testimony, which would attract deference. [75] To put it simply, it is not helpful in the RAD context to determine the scope of deference on the basis of issue categories. Instead, the RAD will determine deference based on categories of evidence. [76] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such findings. 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. [77] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where that determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.78 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.79 [78] Where the RPD was in an advantageous position to reach a conclusion, the RAD will recognize and respect that finding. Where the RPD did not enjoy such an advantage, the RAD will apply a standard of correctness. Degree of Deference [79] How much deference is owed by the RAD to findings of the RPD? There is considerable jurisprudence, reviewed above, which has determined that the RAD should not employ "reasonableness" as a standard, and perhaps should not consider whether an error is "palpable and overriding." There is very little in the legislation or jurisprudence, however, to indicate what degree of deference the RAD can and should apply. [80] As an aside, the RAD notes that the difference between the various standards may not make much of a practical difference in the determination of a RAD appeal. It is difficult to conceive of a finding that is determined by the RAD to be unreasonable but is yet not a palpable and over-riding error.80 It is nevertheless important that the RAD employ the appropriate language in describing the standard to be applied-and such language must not reflect that of judicial review. [81] In Huruglica, the 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'."81 This passage has subsequently been endorsed by other decisions of the Court. [82] What level of deference does "recognize and respect" establish? Unfortunately, this was not explained in Huruglica or in subsequent jurisprudence. [83] In a number of cases, the Federal Court has upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD. While the use of the judicial review standard was an error, this was not fatal, as it was not an error for the RAD to show deference to certain findings of the RPD.82 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [84] How then is "recognize and respect" to be defined? In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.83 Despite the difference between judicial review and a RAD appeal, it seems appropriate for the RAD to adopt those elements. [85] 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. [86] 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, as repeatedly noted by the Federal Court, 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. [87] "Recognize and respect" is therefore a level of deference that 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 or, in the language of Section 111(2), "wrong." [88] On matters where the RAD owes no deference, it will consider the RPD's findings and conclusions on a standard of correctness: 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. The RAD's Approach [89] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that existing in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [90] Where the proceeding is a true appeal-that is, where there is no admissible new evidence-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [91] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.84 [92] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [93] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [94] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [95] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for re-determination. The RPD's Findings [96] The Appellant argues that the RPD made various errors in rejecting his claim for protection. Church letters [97] The Appellant provided the RPD with a letter from the pastor of a Toronto-area church; the letter corroborates the Appellant's church attendance and his faith.85 Another letter, hand-written and with multiple signatures, confirms that the Appellant participated in an adult fellowship group at the church.86 The RPD gave the letters no weight "as they are not written on formal letterhead stationery.... One of the documents was handwritten and contained a number of signatures of alleged members of a fellowship the claimant alleges to have joined, but there is no way of authenticating their genuineness." [98] It is unclear to the RAD why the RPD expected that a handwritten letter from a group of fellow church members would be placed on formal church letterhead. Even more puzzling is the RPD's statement that there is no way of verifying the signatures. This would have been a relatively simple exercise: the RPD could have asked the Appellant to make the church members available to testify as witnesses. [99] As the Appellant points out on appeal, however, he was not made aware of the RPD's concerns with these documents at his refugee hearing. He submits that, as the pastor's letter contains both office and mobile phone numbers, the RPD had the means to verify the information. [100] The RAD finds that the RPD erred in its treatment of the letters. The RAD has reviewed the recording of the refugee hearing, and finds no indication that the RPD voiced its concern with these documents. While the RPD is not required to point out every inconsistency or contradiction to a refugee claimant, this was a concern which the Appellant could have easily addressed, had he been notified, by calling the pastor or the church members to testify. It was unfair for the RPD to raise these reservations for the first time in its reasons, and simply wrong for the RPD to suggest that "there is no way of authenticating" the genuineness of the signatures on the letter. Failure to address the Appellant's summons [101] The Appellant provided a summons in support of his refugee claim; the document cites an "illegal house church gathering" and requires the Appellant to report to criminal court.87 The Appellant argues on appeal that the RPD never mentioned this document in its reasoning and never made a finding as to its authenticity. [102] The Appellant's argument here is not entirely accurate; the RPD did discuss the summons as part of its analysis of the Appellant's departure from China. The RPD reasoned that the Chinese authorities would not have granted an exit permit "as there is an outstanding summons in regard to the claimant..."88 The RPD found it implausible that the Appellant would have been able to leave China using a smuggler if the authorities were indeed seeking him, and concluded that "he was able to leave China and pass through the necessary security checks because he is not wanted by the PSB in China."89 [103] The RPD appears to have relied on the summons-"as there is an outstanding summons"-in support of its conclusion that the Chinese authorities would not have issued an exit permit, but then went on to conclude that the Appellant is not sought by the authorities. The summons stands in the path of this conclusion, but unfortunately the RPD did not analyze that document or make a conclusion with respect to its veracity. [104] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.90 However, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.91 The summons goes to the core of the Appellant's refugee claim, as it indicates that he is being sought by the authorities for attending an illegal house church. The RPD was therefore obligated to consider this document; if there were reasons to doubt its authenticity, those reasons should have been set out in the RPD's decision. [105] The RPD erred in its treatment of the church letters and of the summons. These errors are fatal to the RPD's analysis of the Appellant's credibility; in particular, had the RPD accepted that the summons was genuine, it would have been unable to conclude that the PSB was not seeking the Appellant. [106] Unfortunately, the RPD's credibility determination is not clear. In particular, it is not apparent from the reasons whether the panel made a finding in respect to the Appellant's religious identity. The RPD "considered the claimant's religious identity"92 and found that he had knowledge of Christianity, then gave no weight to the church letters, and noted that he has not been baptized. Without making a finding in respect to the Appellant's alleged Christianity, the panel went on discuss his exit from China and to find that the PSB was not seeking him. [107] The RPD then wrote, "Notwithstanding the foregoing determination, in the alternative, the panel has considered whether there is a serious possibility that the claimant would be persecuted if he returns to China and chooses to practice the Christian faith in an unregistered church."93 The panel concluded that "if the claimant were to return to Liaoning Province, on a balance of probabilities, he would not be subject to arrest."94 [108] Again, the RAD has difficulty in following the RPD's reasoning. If the panel's analysis was truly in the alternative to its credibility finding, that analysis would have accepted that the Appellant was sought by the PSB. Instead, the RPD apparently conducted its "alternative" analysis by accepting that the Appellant is a Christian, but not accepting that he is sought by the PSB as alleged. This makes little sense. [109] The RAD has further concerns with this analysis. Although it previously stated the correct test for persecution, the RPD then found that "on a balance of probabilities" the Appellant would not be subject to arrest for practicing his religion. This was the wrong test for the likelihood of persecution. [110] Further, it appears that the RPD may have applied a too-narrow definition of religious persecution. In its brief examination of objective evidence, the RPD repeatedly made reference to the lack of evidence showing that Christians in Liaoning province were detained or arrested, and concluded that the Appellant would not be subject to arrest. Aside from the use of the wrong test in reaching that conclusion, it also appears that the RPD may have wrongly focused on only one aspect of religious persecution. [111] In Fosu, the Federal Court observed that religious persecution can take various forms, such as prohibitions on worshipping in public or in private, in giving or receiving religious instruction, or in the implementation of seriously discriminatory policies against persons on account of their religion.95 The RAD notes that the International Covenant on Civil and Political Rights (ICCPR) defines the right to freedom of thought, conscience, and religion as including an individual's "freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching."96 Similarly, the Universal Declaration of Human Rights (UDHR) holds that "everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."97 [112] In Zhou,98 the Federal Court observed that equating religious persecution with being raided, arrested, or jailed is an error, as it applies a limited understanding of religious freedom. [113] The RPD's alternative analysis was wrong: it accepted some evidence and rejected other evidence, without explanation, applied the wrong test for the likelihood of persecution, and focused on only one aspect of religious persecution. Disposition [114] For the reasons set out above, the RAD finds that the RPD's decision was wrong and must be set aside. The Appellant asks that the RAD substitute its own decision that he is a Convention refugee. The RAD is in no position to do so. The RPD did not make a finding in respect to the Appellant's overall credibility, and credibility concerns remain, such as the manner in which the Appellant left China. The Appellant was denied the opportunity to address the RPD's concerns about the veracity of the pastor's letter, and the RPD must also address the summons. CONCLUSION [115] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld March 16, 2015 Date 1 Immigration and Refugee Protection Act (IRPA), Section 162(1). 2 Djossou v. Canada (Citizenship and Immigration), (F.C. no. IMM-7980-13), Martineau, November 14, 2014; 2014 FC 1080, paras. 72, 91. 3 Ibid., Djossou, para. 74. 4 IRPA, Section 3(2). 5 IRPA, Section 110(3). 6 Immigration and Refugee Protection Regulations, SOR/2002-227, last amended November 22, 2014. 7 Ibid., Sections 159.91 and 159.92. 8 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494. 9 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 10 Alvarez, para. 33. 11 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 12 Huruglica, para. 45. 13 Supra footnote 8. 14 Supra footnote 11. 15 Supra footnote 9. 16 Supra footnote 11. 17 Supra footnote 11. 18 For example, Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859; Yetna, Fidele Ngo v. M.C.I. (F.C., no. IMM-7567-13), Locke, September 10, 2014, 2014 FC 858; and Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063. 19 Spasoja, Francisca v. M.C.I. (F.C., no. IMM-7630-13), Roy, September 23, 2014, 2014 FC 913. 20 See Yin v. Canada (Citizenship and Immigration), (F.C. no. IMM-2845-14), Noel, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Akuffo, Allalou v. Canada (Citizenship and Immigration), 2014 FC 1084, and Sajad c. Canada (Citoyenneté et Immigration), 2014 CF 1107; also Bui c. Canada (Citoyenneté et Immigration), 2014 CF 1145. In Siliya v. Canada (Citizenship and Immigration), (F.C. no. IMM-5679-13), Boswell, January 23, 2015, 2015 FC 120, the Court found that the RAD erred by applying a reasonableness standard, but found this error to be irrelevant, as the Appellants failed to challenge the RPD's dispositive finding on appeal. 21 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 22 Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063. 23 Akuffo, para. 38. 24 Kurtzmalaj, Eljot v. M.C.I. (F.C., no. IMM-6639-13), Gagné, November 14, 2014, 2014 FC 1072, para. 35. 25 Djossou, paras. 46-55. 26 Djossou, para. 70. 27 Allalou v. Canada (Citizenship and Immigration), 2014 FC 1084. 28 Allalou, paras. 17-19. 29 Bahta v. Canada (Citizenship and Immigration), (F.C. no. IMM-5037-13), Simpson, December 19, 2014, 2014 FC 1245, para. 16. 30 Aloulou v. Canada (Citoyenneté et Immigration), (F.C. no. IMM-7949-13), LeBlanc, December 19, 2014, 2014 FC 1236, paras. 57-58. 31 Compare, for example, Huruglica at para. 47 with Siliya v. Canada (Citizenship and Immigration), 2015 FC 120, at para. 25. 32 Akuffo, para. 33; also Djossou, at para. 7. But also see Spasoja (para. 40), in which Justice Roy suggests that Huruglica requires the application of a standard of reasonableness to questions of credibility; further, in at least five cases, the RAD has been upheld even after assessing credibility findings on a standard of reasonableness. 33 Hansard, 41st Parliament, 1st Session, No. 90, Tuesday, March 6, 2012, at page 5,874; cited in Huruglica, para. 40; Singh, para. 54; Spasoja, para. 37; Djossou, para. 85; Bahta, para. 12. 34 Huruglica, para. 40. 35 Spasoja, para. 31, citing Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40. 36 Spasoja, para. 36; Huruglica, para. 41; Bahta, para. 14. 37 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 38 Bahta, para. 16. 39 Djossou, para. 47. 40 In fact, there were other statements made during the discussion of the RAD's enabling legislation, statements which illustrate the risk of determining the RAD's role on the basis of parliamentary debate. For example, on April 24, 2012, the Minister told Parliament, "Through this legislation, this government is creating, for the first time ever, a full fact-based appeal, including an oral hearing for failed asylum claimants at the new refugee appeal division. It is an extra safeguard to ensure that we do not return people to face danger" (Parliament of Canada, House of Commons Debates, 41st Parliament, 1st Session, April 24, 2012, at 1500, [emphasis added]; see also April 23, 2012, at 17:50: "...a new, full fact-based appeal and oral hearing afford failed claimants at the newly created refugee appeal division." Despite this, the legislation is clear that the RAD must proceed without an oral hearing except in very specific and limited circumstances. 41 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190 at para. 28. 42 See Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 36. 43 IRPA, Section 3(2). 44 IRPA, Sections 3(3)(d) and (f). 45 IRPA, Section 110(1). 46 IRPA, Sections 110(1) and 111; Djossou, para 86. 47 Djossou, para 86. 48 Djoussou, para. 46. 49 IRPA, Section 110(1) and Section 111; RAD Rules, Section 3(3). 50 Here the RAD uses the term "hybrid appeal" as discussed in Djossou - an appeal based on the record, but not limited in grounds, where fresh evidence may be adduced. This may be different than the meaning given to "hybrid appeal" in Huruglica, which appears to refer to the RAD's responsibility to do two things: review the RPD decision, and conduct an independent assessment of the evidence in the record to determine whether the Appellant is a protected person. In Bahta, however, the Court referred to Huruglica and understood "hybrid" as referring to the consideration of both new evidence and evidence in the RPD record; this is somewhat difficult to reconcile with the factual context of Huruglica, where no new evidence was presented to the RAD. 51 Reference to this type of evidence is made in Singh, para. 55. 52 Huruglica, para. 47. 53 Iyamuremye, paras. 1 and 37. 54 Alvarez, para. 25; Triastcin, Oleg v. M.C.I. (F.C., no. IMM-5981-13), Shore, October 15, 2014, 2014 FC 975, para. 22. 55 Huruglica, para. 48. 56 See Siliya, at para. 25: "The RAD's decision should not be disturbed because the Applicants never challenged the dispositive finding of the RPD as to an IFA and, thus, there was no basis for any appellate intervention by the RAD." 57 See Spasoja, para. 25. 58 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, 493 AR 89. 59 See Huruglica, para. 53. 60 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 61 IRPA, Section 175(1)(a). 62 IRPA, Section 110(3). 63 See Alvarez, para. 25; Triastcin, para. 22. 64 Spasoja, paras. 41-43. 65 In the strictest sense, a trial de novo is determined on the basis of an entirely new record, as if the original record had not existed (see Molson Breweries v John Labatt Ltd., [2000] FCJ No 159, [2000] 3 FCR 145 (FCA), paras. 46-48). This strict de novo would not be appropriate in a RAD appeal, given the statutory limitations on the RAD accepting new evidence. 66 Singh (Harbhajan): v. M.E.I., [1985] 1 S.C.R. 177, 50 N.R. 1, 17 D.L.R. (4th) 422, 12 Admin. L.R. 137. 67 Singh, SCC, pp 213-214. 68 Singh (Harbhajan): v. M.E.I., [1985] 1 S.C.R. 177, 50 N.R. 1, 17 D.L.R. (4th) 422, 12 Admin. L.R. 137. 69 Schwartz v. Canada, [1996] 1 S.C.R. 254, at page 278; see also Bui, para. 23, and Allalou, paras 17-19. 70 IRPA, Section 110(2)(c). 71 IRPA, Section 110(2)(e) and (f). 72 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 73 For example, Alvarez at para 33; Kurtzmalaj at para. 33 and in Certified Question at para 43. 74 Huruglica, para. 55. 75 For example: Njeukam, para 14; Yetna, para. 17; Akuffo, para 39; Allallou, para. 17-19. 76 IRPA, Section 110(1). 77 Khosa, paras. 3, 50, 51. 78 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; also Yu v. Canada (Citizenship and Immigration), 2015 FC 167, para. 10. 79 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, which decision contains a thorough discussion of the drawing of inferences.) 80 See Akuffo, para. 38; Alvarez, para. 29; but also see Aloulou, at para. 67. 81 Huruglica, para. 55. 82 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 83 Dunsmuir 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." 84 Reference to this type of evidence is made in Singh, (FC), para. 55. 85 RPD Record, Page 542. 86 RPD Record, Page 543. 87 RPD Record, Page 112. 88 RPD's Reasons, paras 17-18. 89 RPD's Reasons, para. 21. 90 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 91 Nasufi v. Canada (Citizenship and Immigration) 2011 FC 586; Khan v Canada (Minister of Citizenship and Immigration), 2003 FC 1076; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425. 92 RPD's Reasons, para. 13. 93 RPD's Reasons, para. 23. 94 RPD's Reasons, para. 27. 95 Fosu v. Canada (Minister of Employment and Immigration), [1994] 90 F.T.R. 182. 96 International Covenant on Civil and Political Rights, Article 18.1. 97 Universal Declaration of Human Rights, Article 18. 98 Zhou v. Canada (Citizenship and Immigration), 2009 FC 1210. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-11783