TB4-04624

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 : TB4-04624 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 29, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Million H Abawana 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 (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute its own positive decision, or to refer his claim to the RPD for redetermination by a differently-constituted panel. [2] The Appellant did not ask that an oral hearing be held, pursuant to Section 110(6) of IRPA. DETERMINATION [3] Pursuant to ss. 111(1)(a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD) that the Appellant is not a Convention refugee nor is he a person in need of protection. BACKGROUND [4] The Appellant alleges his employer was accused by the Government of being a financial supporter member of the Oromo Liberation Front (OLF) party in Ethiopia. On XXXX XXXX, 2013, the Appellant's employer XXXX XXXX was arrested and detained for secretly importing arms for the OLF. The Appellant alleges that, upon his return from a delivery on XXXX XXXX, 2013, he was arrested and detained the following day when he was going out to do deliveries. The Appellant alleges he was falsely accused as being part of his employer's activities. The Appellant was released sometime in XXXX 2013, after the Appellant signed an unknown document and was released on bond where a colleague had signed as a guarantee. [5] The Appellant left Ethiopia sometime after XXXX XXXX XXXX 2013 and travelled to Canada where he made a claim for refugee protection. [6] The Appellant had a refugee determination hearing on February 28, 2014. Written reasons dismissing his claim were issued on March 21, 2014. In its decision, the RPD panel found the following: * Inconsistent evidence surrounding his lack of political details which detracted from his credibility; * Numerous omissions and vagueness from the BoC undermined the Appellant's credibility; * Inconsistency as it related to disappearance of his brother detracts from his credibility. [7] An Appeal Record was submitted to the RAD on April 28, 2014 and its structure is very confusing and hard to decipher what, if any, is new evidence being submitted. In the Appeal Record, the Appellant alleged that the RPD made several errors of law and fact as follows: * The RPD erred when it failed to consider the documentary evidence and other Convention grounds that were applicable to the Appellant. [8] The Appellant provided new evidence as follows: * Letter from Dr. XXXX XXXX XXXX XXXX1 [9] The Appellant asks the RAD to set aside the determination and substitute a positive determination, or refer the matter to the RPD for re-determination as per Section 111(1) (b) and (c) of IRPA. The Appellant did not request an oral hearing, as it relates to the new evidence presented in support of his Appeal. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As outlined above, the Appellant submitted one new piece of evidence in support of his Appeal. [11] Section 110(4) of IRPA indicates 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 the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." RAD Rule 3(3)(g)(iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of IRPA. The Appellant's memorandum did not provide a detailed explanation of why his document was unavailable before the rejection by the RPD. [12] The jurisprudence for assessing "new evidence" relates mainly to the admissibility of evidence in Pre Removal Risk Assessment proceedings. In addition to the statutory conditions for new evidence, Raza2 sets out four criteria which provide guidance in the assessment of evidence. These criteria include: credibility, newness, relevance, and materiality. [13] The Appellant did not submit an affidavit to introduce new evidence. When an affidavit is used simply as a vehicle for the submission of other evidence, generally the RAD does not consider the affidavit under 110(4). There is an exception, though, when an affidavit purports to provide new evidence. [14] In this case there is evidence in the Appellant's memorandum that was not before the RPD: * That the Appellant likely suffered post-traumatic stress disorder in the past, which might re-emerge if he is forced to go back to Ethiopia. Letter from Doctor XXXX XXXX XXXX XXXX [15] The RAD has reviewed the Affidavit and finds that the first point is not admitted as new evidence pursuant to section 110 (4), nor does it meet the test in Raza; the Appellant was aware of the post-traumatic stress disorder and could have given that evidence at his RPD hearing but did not do so. [16] The RAD considered the letter from Doctor XXXX XXXX XXXX XXXX dated XXXX XXXX, 2014. The report was written after the rejection by the RPD. The Appellant, in his memorandum, doesn't indicate why the letter was not requested for the hearing or why it was not available prior to the rejection of the claim. The RAD finds that this report was reasonably available prior to the rejection of the Appellant's claim. [17] The Appellant was represented by counsel who would have met with the Appellant prior to the RPD hearing and one would suspect, if he was aware that the Appellant had a medical impairment, he would have asked the Board to make accommodations. If the Appellant had a medical impairment, it would have been in his best interest to advise his counsel so that he could notify the Board of such impairment, so that accommodations could be made for the Appellant. The RAD cannot find any evidence of such an accommodation being requested. In reviewing the audio recording, the RAD could not find any request made by either the Appellant or his counsel to the presiding member regarding a possible medical impairment. Further, there is no indication that the member would be aware of the possible medical impairment by the Appellant before him. [18] The RAD notes that the Appellant did not raise this issue before the RPD, nor did his counsel, and, as such, the RAD cannot accept this report as new evidence. [19] The RAD finds that the new evidence provided does not meet the statutory test in section110(4) and therefore is not accepted. STANDARD OF REVIEW [20] The Appellant argues that: * the RPD erred by failing to consider documentary evidence and other Convention grounds applicable to the appellant; and, * the RPD erred in its credibility findings. [21] The Appellant argues that the RPD made errors of law, as well as credibility findings that were not supported in the evidence which are errors of fact. [22] The Appellant makes no submissions on the standard of review to be applied to the RPD's decision. Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [23] The Federal Court in Iyamuremye3 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.4 The correctness standard is applicable to questions of law and issues of general legal importance. [24] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.5 [25] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact in this claim and considered whether the findings meet the reasonableness test. [26] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.6 RPD FINDINGS [27] The Appellant argues that the RPD failed to observe a principle of natural justice, procedural fairness or other procedure that was required by law to observe. This one is on correctness standard (NJ is an error of law)! [28] In regards to procedural fairness, the Appellant argues that his counsel submitted that the reason for the Appellant's not straightforward testimony was the result of the Appellant having, for the first time, a public forum to speak of the repression he faced in Ethiopia. The Appellant further argues that the RPD gave no weight to the fact that the testimony was circuitous without sufficiently considering the reason given for the nature of the testimony. [29] The RAD unfortunately was not provided the location in the tapes of this area of the testimony which the Appellant submits the RPD erred. Although, the RAD reviewed the evidence in its totality, it was not able to locate, on the audio recording, the argument the Appellant is putting forth. As such, the RAD finds that the Appellant has not supported his argument, and there is no basis upon which the RAD can find that the RPD denied the appellant procedural fairness. [30] The Appellant argues that the panel erred when it failed to consider and assess documentary evidence in support of his claim, including a police warrant,7 and by failing to mention and address this evidence, implies that the decision was made without regard to the evidence. (this too is correctness - ignoring evidence is an error of law) [31] The RPD is presumed to have considered all of the evidence before it.8 The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,9 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [32] The RAD has reviewed the evidence referred to by the Appellant.10 In the RAD's view, some of that evidence was assessed by the RPD such as the police summons and an arrest warrant. In its reasons, the RPD mentions the Appellant's arrest in XXXX 2013 and the disappearance of his brother, however the RPD made credibility findings in regard to the arrest and his release from detention.11 This clearly shows that evidence submitted by the Appellant was reviewed and assessed, and mentioned in the reasons. [33] In this matter, the RPD did acknowledge or articulate in its reasons whether it directly or indirectly assessed all the documents corroborating the alleged targeting by the Ethiopian authorities, and the RAD finds the RPD did not err in its finding; as such, the RAD finds the RPD finding in this area to be reasonable.12 [34] The Appellant argues that the RPD made erroneous findings of fact and that they were made in a perverse or capricious manner or without regard for the material before it. The Appellant points to some examples: * On page one of the Reasons for Decision, under "allegations", it mentioned that the Appellant was 29 years of age, but the Appellant is 37 years old; * On the second page of the Reasons for Decision, under "analysis-identity", that the Appellant had provided a copy of his passport, however the Appellant states that on page one of his IMM0008, he entered Canada on a fraudulent German passport that he gave back to the smuggler. [35] The RAD has reviewed the evidence in these areas and the totality of the evidence, and finds that, although the RPD misstated the Appellant's age and there was a copy of the passport, the RAD is satisfied that the RPD was aware of the specific individual whom it was dealing with when making its decision in regards to the Appellant's claim, and that the specific individual was the Appellant, and further that the age error was not material to any of the credibility findings of the RPD. Credibility Findings [36] The RPD made many negative credibility findings, which it stated led to a final determination that the Appellant was not credible and that the lack of credibility cast doubt on the totality of the evidence. The RPD's decision was based on credibility issues including: inconsistency with the circumstances surrounding his arrest and release conditions, inconsistency with why the police arrested him, credibility as it related to the disappearance of his brother, inconsistency between knowledge in the Basis of Claim form and oral testimony. [37] The RPD had the opportunity to test the Appellant's knowledge and his testimony related to the allegations, and further the RPD findings were supported by reference to the inconsistencies in the evidence. The RPD is to be given deference in its findings of fact and in its overall assessment of the Appellant's credibility. Based on the concerns identified by the RPD and given the significant deference afforded the RPD member, the RAD finds that the RPD's findings related to credibility of the allegations were reasonable. [38] The Appellant argued that the RPD erred by ignoring country documentary evidence and the objective basis for the claim. The RPD found that the Appellant's allegations were not credible, and therefore the Appellant has not established that his employer's political profile would cause him to be wanted by Ethiopian authorities, given that the Appellant has not provided sufficient credible or trustworthy evidence to support his claim. Furthermore, documentary evidence notes that country conditions' evidence only establishes that family members of opposition members are at risk. [39] A review of the RPD's reasons reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [40] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of law and fact in this claim and considered whether the findings meet the reasonableness test. [41] As such, the RAD finds that the RPD did not err in its determination that the Appellant's allegations were not credible overall. The determination was made based on an evaluation of all of the evidence before it. It was justified and transparent, and it fell within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. SUMMARY AND DETERMINATION [42] As outlined above, the RAD finds that the RPD's finding that the Appellant's allegations were not credible was reasonable. As such, the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection is also reasonable. CONCLUSION [43] After considering the totality of the evidence before the RPD, the RAD confirms the RPD's negative determination as per Section 111(1) (a) of IRPA. [44] The Appellant is neither a Convention refugee nor a person in need of protection. This Appeal is therefore dismissed. (signed) "Luis F. Agostinho' Luis F. Agostinho July 29, 2014 Date 1 Appellant's Memorandum, page 36 2 Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 3 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 4 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 47. 5 Dunsmuir, paragraph 47; in Khosa, paragraph 4, the "range of reasonable outcomes." 6 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 7 Appellant's Record, pages 34-35 ( Arrest Warrant - English translation) 8 Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) at para 318 9 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, para. 7-8. 10 Appellant's Record, pp. 34-35 11 Reasons for Decision, paragraph 12-13 12 Appellant's Record, page 10, Reasons for Decision, paragraph 17 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-04624