VB7-00285

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 : VB7-00285 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal (XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appeal considered at Vancouver, BC Appel instruit à Date of decision October 11, 2017 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, also known as XXXX XXXX XXXX (the "appellant"), a citizen of Rwanda, appeals the December 30, 2016 decision of the Refugee Protection Division (the "RPD"). The claim was heard by the RPD on December 14, 2016 with a Notice of Decision being sent to the appellant on January 6, 2017. The RPD found that the appellant is neither a Convention1 refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the "Act" or "IRPA").2 DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(c) of the Act, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a different member of that division. BACKGROUND [3] The appellant was represented before the RPD. The appellant is represented by a different counsel before the RAD. The Minister has not intervened before the RPD or the RAD. [4] The appellant seeks to present "new" evidence3 to the RAD pursuant to subsection 110(4) of the Act. BASIS OF CLAIM [5] According to the allegations set out in the appellant's Basis of Claim form ("BOC") and statement,4 the appellant is a XXXX-year-old Rwandan national. He holds a Bachelor's Degree. He is married with children. He has many remaining relatives in Rwanda. He alleges the following. [6] He is a member of the XXXX XXXX XXXX ("XXXX XXXX XXXX") political party. He joined this XXXX party in Rwanda in XXXX 2011. He was appointed as a XXXX XXXX for the party in XXXX in XXXX 2012. In XXXX 2012, he started receiving calls from security forces threatening to stop his involvement and activities or his life would be at risk. In XXXX 2012, he received a police summons. He reported as requested and was detained for a few days. [7] In XXXX 2013, his wife was asked by a relative, who is an active member of the XXXX XXXX XXXX party, to accompany her to visit the long-detained leader of the XXXX XXXX XXXX XXXX, XXXX XXXX. The wife did so and was arrested and physically assaulted as a result. [8] In XXXX 2014, the claimant was fired from his government position for refusing to publicly denounce the political XXXX of which he was a part. In XXXX 2015, the claimant obtained a new Rwandan passport. In XXXX 2016, the claimant's home was attacked by police with guns. He was beaten. In XXXX 2016, his Canadian visitor visa was issued. [9] He left Rwanda on August 16, 2016, entering Canada on August 17, 2016. On XXXX XXXX, 2016, a police summons was issued for the claimant in Rwanda. On XXXX XXXX, 2016, a relative of his wife's, who is also the person who recruited him into the party, was arrested in Rwanda. [10] He made a refugee claim within Canada. His relatives in Rwanda are fearful of targeting for political reasons relating to his refugee claim. [11] The appellant also alleges a fear of risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm. [12] The RPD's reasons stated that the appellant's case for refugee protection was rejected based on the issue of credibility. GROUNDS OF APPEAL [13] The appellant's submissions as to the grounds of this appeal can be summarized as follows:5 * Did the RPD member err in her credibility analysis by assessing the evidence incorrectly? CONSIDERATION OF NEW EVIDENCE [14] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [15] The appellants are required to provide full and detailed submissions as part of their memorandum and provide explanations for how the proposed new evidence meets the requirements of subsection 110(4), and how it relates to their claims.6 [16] Once the "new evidence" has been accepted by the RAD, the RAD is also guided by the recent Federal Court of Appeal ("FCA") case, Singh.7 In Singh, the FCA has said: [64] In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case. [17] In Singh,8 the FCA also said: [54] . . . The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected. [18] The RAD will assess the evidence on "newness" as outlined in subsection 110(4). If it passes this test, the RAD will go on to assess the "new evidence" on credibility and relevance before admittance of such evidence for the RAD appeal. [19] The appellant has submitted the following document9 as new evidence pursuant to subsection 110(4) of the Act; an article dated 2014. [20] This article is dated 2014 and has not been translated in either of the official languages of Canada. Given this, I find that this document is not admissible as it was reasonably available at the time of the RPD rejection. The appellant has not provided any arguments as to how this article constitutes "new evidence" for this RAD appeal. Therefore, I decline to admit this document as new evidence in this appeal. [21] Considering that this document has not been accepted as "new evidence" by the RAD, I do not find that it is necessary to continue with any further analysis of this document. The appellant has not requested an oral hearing as per subsection 110(6) of the Act. REMEDY SOUGHT [22] The appellant has requested10 that the RAD, under paragraph 111(1)(b) of the Act, set aside the determination of the RPD and substitute a positive determination. In the alternative, the appellant requests that the RAD, under paragraph 111(1)(c), refer the matter to the RPD for redetermination by a differently constituted panel. ROLE OF THE RAD [23] Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [24] In this appeal, and taking into consideration the recent FCA decision in Huruglica,11 with respect to findings of fact (and mixed fact and law), which raise no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Otherwise, where an issue concerning credibility of oral evidence is evident, I will be applying the points set out in Huruglica12 which is to conduct an independent assessment of all the evidence to determine whether the appellant is a Convention refugee or a person in need of protection, while giving certain deference to the RPD's findings regarding the appellant's credibility and any other issues where the RPD enjoys a particular advantage. As well, it is clear from the many recent court cases that have been previously mentioned, all agree that the standard of correctness should be used for any error of law found in the RPD decision on appeal to the RAD. ANALYSIS OF THE MERITS OF THE APPEAL [25] I will now turn to the specific submissions by the appellant as to errors allegedly made by the RPD member in her credibility assessment. Given the result of this appeal, I will not be making a finding on all the arguments put before RAD by the appellant. Membership card [26] The appellant submits13 the membership card before the RPD stated that he was in charge of XXXX. The RPD member finds14 that the other party documents before her do not mention the appellant's responsibilities. Furthermore, the RPD member finds15 that the membership card does not indicate that the card was issued in Rwanda. The appellant submits16 that the RPD member "found that the party documents did not mention in a credible fashion what one would reasonably expect them to mention. Yet, the claim of what one would reasonably expect is drawn out of thin air. It is an assertion of what one would reasonably expect, without reason, without evidence."17 [27] The appellant also submits18 that the RPD member did not refer to any country condition information to determine what is normally on membership cards or other party documents. [28] The RPD member finds:19 Other than the membership card,20 the claimant-specific party documents make no specific mention of his role per se in the party. [29] I note that the testimonial letter21 states that the appellant and others were involved in mobilization and recruitment. The testimonial letter indicates that the appellant has been working with the party since the time he was in Rwanda (2011) up to the date on the letter. It refers to "our tasks consist of mobilising and sensitizing the Rwandese youth on the problematic of Rwanda."22 [30] I have reviewed all the evidence before the RPD and the RAD in its entirety, including the compact disc of the RPD oral hearing. In particular, I note that the membership card23 does note that the appellant was involved in mobilisation and the RPD member agrees to this as well. However, in the testimonial letter,24 I note that the writer specifically states that the appellant was involved in mobilising and the RPD member acknowledged this in her decision. The appellant also mentions in his BOC that he "was appointed as XXXX XXXX XXXX XXXX working XXXX."25 However, from my review of the evidence before the RPD, I find that the RPD member did not explain clearly why she made a negative inference from this evidence. The RPD member finds "that the party documents do not mention in a credible fashion what one would reasonably expect them to mention. They also are not consistent in what they do mention of his specific actions within the party."26 I do not agree with the RPD member. There is no objective evidence that clearly states that membership cards and certificates from parties would include mandatory information such as what the RPD member expected. Thus, through my own independent assessment of the evidence, I find the RPD member's findings are not adequate given the evidence that was before her and she is speculating as to what these documents should include. Persecution [31] The RPD member finds that "the party documents that are claimant-specific make no mention of the alleged acts of persecution against the claimant, other than to generically state that he was the subject of harassment".27 Again, I have conducted my own independent assessment of the evidence. I note that there are two testimonial letters that refer to the appellant's situation. There is a letter from the First Vice President of XXXX XXXX XXXX who states that the appellant has been "harassed, detained, and tortured by Rwandan security agencies."28 Then, another letter from the President of the XXXX XXXX also states that the appellant has been "persecuted due to his political activities".29 I note that the RPD member noted these statements in her decision but then goes on to make a finding that "there are no mention in these documents of summonses issued to him, of his detention, or of his having been fired from his job as a consequence of his political activities".30 [32] I find the RPD member is focusing on not what is included in the letters but what should be included. Again, I do not find this a reasonable expectation for the RPD member to use in making adverse credibility findings and I do find that the RPD member`s findings are flawed on this issue. [33] The courts have said that "it is doubtful that an adverse inference as to credibility can be drawn on the basis of documents such as letters that do not corroborate the claimant's story. Generally, such documents cannot be relied on to contradict a claimant's story merely because they do not confirm it.31 [34] The Federal Court has also made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.32 I find that the RPD member has not adequately assessed all the evidence before her in finding the appellant to be not credible. [35] I find the appellant has accurately identified errors in the RPD member's assessment of the claim. I considered whether I could substitute the RPD determination by doing an independent assessment of the claim (as directed by Huruglica), but I find I cannot do so without hearing evidence that was presented to the RPD member. I therefore allow the appeal and refer the matter back to the RPD for redetermination. REMEDY [36] For all these reasons, I set aside the determination of the RPD and refer the claim of XXXX XXXX XXXX, also known as XXXX XXXX XXXX, to the RPD for redetermination by a differently constituted panel as per paragraph 111(1)(c) of the Act. (signed) "Rena Dhir" October 11, 2017 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 3 Exhibit 2, Appellant's Record (AR), p. 21. 4 Exhibit 3, Refugee Protection Division Record (RPDR), Basis of Claim (BOC). 5 Exhibit 2, Appellant's Record (AR). 6 Refugee Appeal Division Rules, SOR/2012-256, subparagraph 3(3)(g)(iii). 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 8 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 9 Exhibit 2, AR, p. 21. 10 Exhibit 2, AR. 11 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 12 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 13 Exhibit 2, AR, Memorandum (Memo). 14 Exhibit 3, RPDR, Member's Decision. 15 Exhibit 3, RPDR, Member's Decision. 16 Exhibit 2, AR, Memo. 17 Exhibit 2, AR, Memo. 18 Exhibit 2, AR, Memo. 19 Exhibit 3, RPDR, Member's Decision. 20 Exhibit 3, RPDR, Member's Decision, Footnote 12: Exhibit 5, p. 3. 21 Exhibit 3, RPDR, pp. 166-167. 22 Exhibit 3, RPDR, p. 166. 23 Exhibit 3, RPDR, Exhibit 5, p. 3. 24 Exhibit 3, RPDR, Exhibit 5, p. 166. 25 Exhibit 3, RPDR, BOC. 26 Exhibit 3, RPDR, Member's Decision. 27 Exhibit 3, RPDR, Member's Decision. 28 Exhibit 3, RPDR, p. 170. 29 Exhibit 3, RPDR, p. 167. 30 Exhibit 3, RPDR, Member's Decision. 31 The following decisions of the Trial Division have held that documents such as letters and medical reports must be considered for what they say, and not for what they do not say: Mahmud, Sultan v. M.C.I. (IMM-5070-98), Campbell, May 12, 1999; Bagri, Davinder Singh v. M.C.I. (F.C.T.D., no. IMM-2908-98), Campbell, May 25, 1999 (medical report); Solis, Anastacio Roberto Vera v. M.C.I. (F.C.T.D., no. IMM-1094-98), Evans, March 17, 1999; Khandaker, Jahangir, Alam v. M.C.I. (F.C.T.D., no. IMM-1703-01), Pinard, January 10, 2003, 2003 FCT 7. In Tameh, Ali Farrokhi v. M.C.I. (F.C., no. IMM-6266-02), Blanchard, December 15, 2003, 2003 FC 1468, the Court distinguished Mahmud, because the Board's decision was not merely based on the fact that the letter failed to corroborate the claimant's claims, but on the fact that the substance of the letter was inconsistent with the claimant's explanation of the source of the letter. According to Tameh, the case of Mahmud stands for the proposition that letters cannot be relied upon to contradict a claimant's story merely because they do not corroborate his story. See also Dzey, Oksana Olesy v. M.C.I. (F.C., no. IMM-1-03), Mactavish, January 30, 2004, 2004 FC 167, where the Court upheld the RPD's decision to give little weight to a hospital report that did not mention that the claimant's husband was the attacker since it did not go far in corroborating the claimant's story. For a different conclusion, see Ignatova, Anna (Ganna) v. M.C.I. (F.C.T.D., no. IMM-5771-01), Kelen, December 11, 2002, 2002 FCT 1287. 32 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-00285 RAD File No. / N° de dossier de la SAR : VB7-00285