VB5-01274

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 : VB5-01274 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 (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision November 6, 2015 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) Ghulam Murtaza Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, also known as XXXX XXXX XXXX (the "appellant"), a citizen of Bangladesh appeals the decision of the Refugee Protection Division (the "RPD") issued on April 17, 2015 with the Notice of Decision being issued on April 20, 2015, denying his claim for refugee protection. New evidence has not been submitted pursuant to s. 110(4) of the Immigration and Refugee Protection Act (the "Act").1 The appellant seeks a hearing pursuant to s. 110(6) of the Act.2 [2] The appellant asks the Refugee Appeal Division (the "RAD") to set aside the determination of the RPD and find the appellant to be a Convention refugee as per s. 96 of the Act or a person in need of protection as per s. 97 of the Act. In the alternative the appellant asks that the decision of the RPD be set aside and the matter be returned to the RPD for re-determination by a differently constituted panel.3 [3] A copy of the appellant's record was provided to the Minister on June 12, 2015 in addition the Notice of Decision from the Assistant Deputy Chairperson (ADC) regarding filing and perfection of appeal was provided on July 7, 2015. The Minister has not responded and so it is deemed that the Minister is not intervening in this appeal. DETERMINATION [4] Pursuant to s. 111(1)(a) of the Act the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [5] The appellant is a citizen of Bangladesh. While attending college he became involved in politics and joined the student wing of the Bangladesh Nationalist Party (BNP). He became the XXXX XXXX XXXX. The opposition party was the Awami League. [6] The BNP were the governing party from 1991 to 1996 but were defeated in the 1996 general election. The appellant believes the Awami Party rigged the election. [7] The Awami League took power and began to suppress their opponents through force, utilizing government resources such as the police and the courts. [8] The appellant was singled out by the Awami Youth League leaders and was beaten and tortured. His XXXX farm was also burnt to the ground and when neighbours intervened they burnt his house. The appellant was so badly beaten his assailants left him for dead. Neighbours took him to hospital where he recovered. [9] Once he recovered he lived his life in hiding from the Awami League. He lived this way until XXXX 2001 when the BNP once again came to power. With the support of the BNP leaders the appellant restarted his XXXX business and resumed a normal life. He got married in XXXX 2001 and had a child in XXXX 2001. [10] In January 2009 the Awami League came to power again. The intimidation, torture, abuse of authority, and assaults on opponents began once again. [11] The appellant's family lives were threatened by Awami League leaders. They demanded monthly payments from the family. The appellant was not home when this threat was given but the culprits threatened to kill him also and started their search for him. [12] When the culprits could not find the appellant they tortured his father, mother, and his cousin who tried to intervene. His cousin died as a result of the attack. They also burnt the appellant's house. [13] His parents tried to report the incident to the police but were stopped on their way to the police station by Awami League members who threatened to kill them if they filed a report with the police. [14] The appellant moved from the city of XXXX to XXXX but remained active in politics in his home region. On XXXX XXXX, 2009 the appellant started a business called XXXX XXXX. This was a XXXX XXXX business and the appellant was a working partner and Director of the company. [15] This business caused him to be in contact with a Canadian company called "XXXX XXXX" regarding the XXXX XXXX XXXX. The management of XXXX XXXX invited the appellant, in his capacity of Director of XXXX XXXX, to come to Canada. The appellant applied for and received a visitor's visa but due to the fluctuating price of XXXX he postponed his trip to Canada. [16] The appellant was kidnapped and tortured by his political rivals in XXXX 2013. He was held for six days and tortured mercilessly. Finally on the sixth day he was injected with some drug that rendered him unconscious. He woke up alone in a room. He broke the glass in a window and escaped. He went to XXXX via boat. He was hospitalized there for treatment of his injuries. He spent twenty days in hospital. [17] He filed a complaint with the XXXX police but because they were controlled by the Awami League they took no action. [18] The appellant came to the conclusion he could no longer live in Bangledash and be safe from harm. As he already had a visa for Canada he left for Canada on XXXX XXXX, 2014 arriving the next day. He claimed refugee protection on or about September 12, 2014. ISSUES [19] The appellant has identified the following issue in support of his application to have the RAD set aside the RPD decision: Did the RPD err in finding the appellant was not credible? NEW EVIDENCE [20] Counsel for the appellant, in a letter dated May 19, 2015, asks the RAD for extra time for the appellant to submit his appeal record. Counsel states the appellant believes that new evidence has emerged that was not placed before the RPD and the appellant needs extra time to obtain this evidence from Bangladesh. Council asks for an extra four weeks to perfect the appeal.4 [21] The ADC ruled that the request did not comply with the Refugee Appeal Division Rules (the "RAD Rules")5 more specifically, Rule 6(5) as two copies of the appellant's record did not accompany the request. Counsel was advised that his request for extension would not be considered further at that time. The ADC did, however, advise counsel that no action to dismiss the appeal for lack of perfection would be initiated until after June 9, 2015. The appellant's record dated June 8, 2015 was received by the RAD on June 9, 2015.6 There was correspondence to counsel regarding proper procedure regarding application made under s. 110(4) and (6) of the Act and a deadline of June 22, 2015 was given in order to correct the deficiencies.7 [22] The appellant's memorandum dated June 19, 2015 was received by the RAD on June 22, 2015.8 In the cover letter for the memorandum, counsel, once again, makes reference to the appellant awaiting new evidence from Bangladesh and that his submissions would be incomplete until the new evidence is received and presented to the RAD. It is expected that counsel would be conversant with the provisions of Rule 29 that sets out the procedure for the appellant to submit evidence that was not previously provided. The RAD notes that as of the signing of this decision, no new evidence has been received. [23] The RAD proceeded on the finding that no new evidence has been submitted. RAD HEARING [24] Section 110(3) of the Act directs the RAD, with certain exceptions, to proceed without a hearing on the basis of the record of proceedings from the RPD. Section 110(6) states the RAD may hold a hearing if, in its opinion, the documentary evidence referred to in subsection (3): a) raises a serious issue with respect to the credibility of the person who is subject of the appeal; b) is central to the decision with respect to the refugee protection claim and c) if accepted, would justify allowing or rejecting the refugee protection claim. As no new evidence has been submitted there is no statutory authority to order a hearing,9 hence, no hearing will be ordered in this matter. THE ROLE OF RAD [25] The appellant did not make submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision. [26] While the Act 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 RPD. The first Federal Court (the "Court") review of a RAD decision was in May 2014.10 Since that time there has been a number of Court decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal brings more clarity to the standard of review issue I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal. [27] I have examined the various Court decisions regarding the role of the RAD and find that the process of a hybrid appeal proposed by Justice Phelan in Huruglica11 is consistent with the common thread found in the majority of the Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [28] Mr. Justice Phelan determined that, in conducting its assessment, 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [29] In keeping with the majority of the Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion based on that evidence. ANALYSIS Section 97 [30] I will first deal with one issue that was not raised by the appellant but, in the opinion of the RAD, was an error on the part of the RPD. The RPD identifies that the appellant is making his refugee claim under s. 96 and 97(1) of the Act.12 In it reasons the RPD states, "The panel finds that the claimant is not a Convention refugee." [31] This is a finding regarding s. 96 only where the RPD is mandated to make a finding under s. 96 and 97(1). I find that this was simply an oversight on the part of the RPD as it is obvious from the RPD reasons that its finding extends to s. 97(1) as well. This is demonstrated at paragraph 19 where the RPD states it rejects the claim under both s. 96 and 97(1) of the Act. [32] Section 97(1) of the Act outlines the definition of a "person in need of protection". The elements necessary to establish a claim under s. 97(1) are not identical to those necessary to establish whether a person is a Convention refugee under s. 96 of the Act. Consequently a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under s. 97 (1) of the Act.13 [33] In the case at hand the RAD finds, for the reasons stated below, that there is insufficient credible evidence, whether personal or documentary, that would provide a foundation for establishing a personal "risk" for the appellant pursuant to s. 97 (1) of the Act. THE PANEL'S FINDING REGARDING CREDIBILITY [34] When a claimant swears to the truthfulness of certain facts, there is the presumption that what he or she is saying is true unless there is reason to doubt it.14 [35] In assessing credibility the RPD is entitled to rely on its rationality and common sense.15 In this case the RPD found that there were contradictions, inconsistencies, and omissions in the appellant's evidence. The explanations he provided were not satisfactory in resolving these causing the RPD to doubt his truthfulness and come to a negative credibility finding. [36] In keeping with the Court's finding regarding the role of the RAD I take notice 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.16 I afford the RPD such recognition and respect regarding its finding regarding the credibility of the appellant in the matter before me. [37] The appellant states that the RPD based its negative credibility finding, in part, on erroneous findings of fact but does not identify what findings of fact the appellant judge are incorrect. The RAD review of the evidence has not identified any errors regarding findings of fact. [38] The appellant further submits that the RPD based its negative credibility finding on speculation and peripheral matters. He specifically identifies the RPD's analysis of the appellant's Temporary Residence Visa (TRV) application. The appellant states the RPD should have focused its analysis on the country conditions which the appellant states was the principal basis for the claim. I disagree. [39] This argument could be valid if, and only if, the RPD found the appellant to be credible. An analysis on the country conditions regarding a political situation in Bangladesh is not necessary if the RPD has not been satisfied that the allegations of the appellant are credible. The Court has stated that it is not enough to accord refugee status simply on the basis of country conditions. Appellants from countries on whom the Minister has placed a moratorium of return, are not automatically granted refugee status. There must be a subjective and objective basis for the claim,17 something the RPD found the appellant did not establish with credible and trustworthy evidence. [40] A RPD finding that the appellant is credible regarding the relevant and determinative aspects of his claim is the foundation upon which a successful refugee claim is built. It makes little sense for the RPD to enter into an analysis of the country conditions unless it is satisfied that those conditions apply to the appellant. In this case the RPD determined that the appellant was not credible in his claim of being at risk of harm from Awami League officials and its supporters hence it makes little sense that it then go onto to analyze country conditions that it has found do not apply to the appellant. [41] The determinative issue for this appeal is whether or not the RPD erred in coming to its negative credibility finding. The Court has stated that analyzing findings of fact and determinations of credibility fall within the heartland of the RPD expertise.18 [42] It is the RPD that is in the best position to make a finding on credibility as it was the RPD who had the appellant before it and was able to observe the appellant and question him on credibility related issues.19 [43] In the matter before me the RPD did not base its negative credibility finding on one inconsistency or omission but rather came to its finding based on analyzing a number of inconsistencies, omissions, and subjective fear issues, cumulatively. This is the proper manner in which to conduct a credibility analysis as it protects against the RPD conducting microscopic analysis, something it should avoid.20 The RAD does not find that the decision subject of the appeal was as a result of a microscopic analysis on the part of the RPD. [44] The RAD does find that one of the inconsistencies identified by the RPD is not significant and should not form part of the basis of a negative credible finding. The RPD's concern regarding the appellant not identifying in question 6(j) of the IMM 5669 form21 that he had been detained for six days as a result of the alleged kidnapping is not supportable in a credibility analysis. The question asks the appellant if he has ever been "detained, incarcerated or put in jail?" The RPD drew a negative inference as a result of the appellant answering no to that question. [45] In the RAD's view it is reasonable to interpret this question to mean state initiated or state sanctioned detention and not a kidnapping. The RAD does not draw the same negative inference the RPD did regarding this question. As a result of there being many more examples to justify the negative credibility findings the overall negative credibility finding of the RPD is not placed in jeopardy as a result of the RAD discounting this particular credibility finding of the RPD. [46] The RPD identified the appellant's delay in departure and delay in claiming as issues. This is well within the purview of the RPD and is a legitimate concern in a credibility analysis. [47] Delay is a well-recognized factor that can be taken into account by the RPD, when assessing the appellant's subjective fear.22 Delay in claiming refugee protection may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim.23 [48] The RPD made a negative inference as a result of the appellant not stating in his BOC that he went to the police on more than one occasion after his alleged kidnapping. This too was well within its mandate and it was correct to take this into consideration in its credibility analysis and, in the opinion of the RAD, the RPD was also correct to draw a negative inference from it. [49] The Court has found that it is not incorrect to say the answers given in the Personal Information Form (now the Basis of Claim) should be brief but it is incorrect to say that the answers should not be complete with all the relevant facts. The action, or in this case inaction, of the police and what attempts were made of higher police authorities to get state protection is extremely relevant to this claim. It is not enough for the claimant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's Basis of Claim form (BOC). The oral evidence should go on to explain the information contained in the BOC.24 [50] I do not agree with the appellant that the RPD ignored documentary evidence submitted by the appellant.25 Once the RPD came to its finding that the appellant was not credible on the basis of his claim it was not an error to discount the documentary evidence submitted by the appellant to support the basis of his claim. [51] The RPD had an opportunity to test the appellant's credibility and having found him not to be credible afforded the untested information in the documents the appellant supplied little weight. The Court has found that after a negative credibility finding it is open to the RPD to give low probative value to other documents even if they reflect the claimant's own statements.26 It would have been preferable if the RPD had explained why it did not afford the documents submitted by the appellant to be persuasive and why it afforded them little weight but that does not mean it did not consider them. It is not a requirement in law that the RPD comment on each and every aspect of the evidence presented.27 Notwithstanding the RPD not dealing with the documents submitted by the appellant in its decision, this decision serves to identify why the documentary evidence submitted by the appellant is afforded little weight. [52] I have conducted a comprehensive review of the entire record and find the RPD decision to be logical, that it is solidly based on the evidence before it, is in keeping with existing jurisprudence. In fact, having conducted my own review of the evidence, with the noted exception above, I am in agreement with the RPD's findings. The RPD did not err in coming to a negative credibility finding based on this evidence. [53] I find that the RPD did not err in coming to its negative credibility finding and therefore its finding that the appellant is not a Convention refugee or a person in need of protection should stand. DECISION [54] Pursuant to s. 111(1)(a) of the Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division that the appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Gordon C. McRae" Gordon C. McRae November 6, 2015 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 RAD Exhibit 3, Letter, dated June 19, 2015. 3 RAD Exhibit 3, Appellants Memorandum, para. 13. 4 RAD Exhibit 5. 5 Refugee Appeal Division Rules (SOR/2012-257). 6 RAD Exhibit 4. 7 RAD Exhibit 7. 8 RAD Exhibit 3. 9 Blade, Amadu Tema v. Canada (M.E.I.), 2015 FC 625, para. 32. 10 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 11 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 12 RAD Exhibit 1, page 4, para. 1. 13 Bouaouni v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211. 14 Maldonado v. M.E.I., [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 15 Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 16 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 17 Canada (Public Safety and Emergency Preparedness) v. Baraniroobasingam, 2010 FC 92. 18 Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) 152. 19 Denbel v Canada (Citizenship and Immigration), 2015 FC 629, para 38. 20 Vessaova v. Canada [1996] F.C.A.D. 1598-04 and Jun Xiang Ma v. Canada (M.E.I.) FC Oct. 26, 1999 IMM 4578-98. 21 RAD Exhibit 1, p. 52. 22 Romero Davila v. Canada (Citizenship and Immigration), 2012 FC 1116, and Csonka v. Canada (Minister of Citizenship and Immigration), 2012 FC 1056. 23 Calderon Garcia v. Canada (Citizenship and Immigration), 2012 F.C. 412. 24 Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No 1867 (F.C.T.D.). 25 RAD Exhibit 3, para. 6. 26 Giron v. Canada (Minister of Employment and Immigration)(1992), 143 N.R. 238 (F.C.A.) 152; and Tariq v. Canada (M.C.I.), 2015 FC 692. 27 Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73 (F.C.T.D). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-01274