TB6-08200

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 : TB6-08200 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause (a.k.a XXXX XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 7, 2016 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Robin Edoh 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 XXXX (the Appellant), a citizen of Grenada, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that she fears persecution at the hands of a man known as "XXXX" who she alleges raped her and threatened her with death, in 2010. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on May 4 2016. A negative decision was rendered in writing on May 31, 2016. The RPD found that the Appellant was unable to establish her claim on the basis of credible and trustworthy evidence, under either section 96 or section 97 of IRPA. DETERMINATION [4] 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 Appellant's Issues [5] The Appellant submits that the RPD erred2: a. when the RPD failed to take under consideration reasonable explanations offered by the Appellant in describing the shame, pain and mental torture she went through in Grenada when she was sexually assaulted by "XXXX". b. when it failed to place weight and trust on documentary evidence before it. Admissibility of New Evidence [6] The new evidence submitted on behalf of the Appellant includes: 1) A letter from XXXX XXXX XXXX XXXX, dated June 27, 2016;3 2) A letter from XXXX XXXX, dated June 28, 2016;4 3) A letter from XXXX XXXX dated June 27, 2016;5and 4) An undated MTV news article from Grenada6 [7] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. The documents produced as new evidence were, in the case of the letters, written after the date of the RPD decision. Could this evidence have been presented at the time of the RPD proceedings or if not, why not. The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [8] The new evidence is being submitted in answer to issues brought forward at the RPD hearing wherein the panel had inferred negative credibility on the Appellant for failure to provide consistent evidence. The Appellant is, basically, providing the documents now which should have been before the RPD. [9] The Federal Court stated in a recent case: I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a convention refugee or person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination. 7 [10] In the case at bar, the three letters noted above all speak to the incident of 2009-2010. No reasonable explanation has been provided to me which would explain why these letters had not been obtained earlier and then presented at the RPD hearing. The letters may be credible and relevant but they certainly do not contain any new information. For that reason, the letters fail the test of admissibility under section 110(4). [11] The last item submitted as new evidence is what appears to be a print-out of perhaps an internet article originating at something called "MTV News Grenada". This document is undated, leaving me with no reasonable means to determine when the article was published or when the allegations of the article occurred. I therefore find that this article does not meet the test of section 110(4) and cannot be admitted into evidence. [12] The RAD will not admit any of the new evidence as none of it meets the requirements of subsection 110(4). [13] The Appellant's Memorandum8, a total of two (2) pages in length fails to even mention the new evidence, yet alone how this new evidence would qualify under section 110(4) for admission or why it was not disclosed prior to the RPD decision. Analysis The Role of the RAD [14] The RAD is an Appellate body governed by specific legislation9 and guided by the jurisprudence10 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.11 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. [15] The Federal Court of Appeal in its decision clearly states, that 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 in its decision. The RAD 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.12 [16] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,13with no deference accorded to the RPD.14 [17] The RAD will show deference to the RPD's findings on credibility 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 from those individuals. [18] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [19] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [20] 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. [21] However; the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [22] 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. [23] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [24] Council for the Appellant has made no arguments in support of the issues mentioned above. The Memorandum presented on behalf of the Appellant is void of any argument on the issues. The Memorandum lists the issues as follows:15 The decision made with respect to the appellant's claim by a Panel of Refugee Protection Division (hereinafter referred to as the Panel) is replete with errors of law and fact. [25] There is no follow-up on this allegation which even suggests where the Panel committed the alleged errors of law and fact. The Panel also essentially failed to take into consideration reasonable explanations offered by the claimant in describing the shame, pain, and mental torture she went through in Grenada when she was sexually assaulted. [26] Once again, there is no follow-up on this allegation which would even point me in the right direction where I could adduce such a failure by the Panel. I submit that the Panel committed a fundamental error when it failed to place weight and trust on the documentary evidence before it and therefore the unfair decision must be set aside. [27] Aside from citing case law regarding the failure to take into account, material evidence, again there is no follow up to indicate to me where this "fundamental error" occurred. [28] The Appellant has failed to provide any reasonable argument in support of her alleged issues of appeal. As no reasonable argument has been presented, I have no basis on which I could consider allowing an appeal. Disposition [29] The RAD has found that the RPD decision will stand. CONCLUSION [30] 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 (signed) "David Lowe" David Lowe September 7, 2016 Date 1 Exhibit RPD-1, RPD's Record, pp. 23-38. 2 Exhibit P-2, Appellant's Record, at p. 72. 3 Exhibit P-2, Appellant's Record, at p. 67. 4 Exhibit P-2, Appellant's Record, at p. 65. 5 Exhibit P-2, Appellant's Record, at p. 63. 6 Exhibit P-2, Appellant's Record, at p. 70. 7 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15, January 8, 2016), Gleeson, 2016 FC 26. 8 Exhibit P-2, Appellant's Record, pp. 72-73. 9 Immigration and Refugee Protection Act (IRPA). 10 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para 14, Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 11 Dhillon , para 14-18 12 Huruglica, 2016 FCA 93, para. 103. 13 Ibid. 14 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 15 Exhibit P-2, Appellant's Record, at p. 72. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08200