TB4-01101

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 : TB4-01101 TB4-01102 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 21, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mohammad Reza Rouhi 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) and his wife XXXX XXXX are citizens of Iran; they are appealing the Refugee Protection Division's (RPD) determination which rejected their claims for refugee protection. Determination [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Background [3] The Appellants alleged before the RPD that they converted to Christianity in 2011 while they were on a visit to India. They practiced their new religion in Iran with discretion. Their relatives in Iran suspected them of having converted from Islam to Christianity, and they were questioned by the religious police. Their claims were heard on July 30, 2013 and August 20, 2013; the RPD rendered its decision on January 23, 2014. [4] In rejecting their claims, the RPD determined that the Appellants were not credible. [5] The Appellants submitted new evidence in support of their appeal and want a hearing before the RAD and want the RAD to set aside the RPD's determination. [6] New documents include: 1. Letter of XXXX XXXX, 2014, issued by the Appellant's Family Physician that the Appellant suffers from XXXX XXXX XXXX XXXX 2. Letter from an XXXX dated XXXX XXXX, 2014 regarding surgery on January 10, 2014, re XXXX XXXX. 3. Daughter: Sworn Affidavit by the Appellant's daughter, and 3.1. her certificate of Baptism, from XXXX, India. 3.2. photocopy of her Canadian Citizenship Certificate. 4. Son: Sworn Affidavit by the Appellant's son, and 4.1. His certificate of Baptism, from XXXX, Turkey. 4.2. photocopy of his Permanent Resident Card. [7] In order for the RAD to consider this as new evidence, it must meet the criteria set out in subsection 110(4) of the Act which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (4) On appeal, 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. [8] In this case, none of the documents except the medial note meet the express statutory conditions as these events arose after the rejection of the claims. Even though many of these documents are dated after the rejection of the claim, the information contained therein predates the rejection. Moreover, these documents could have been obtained by reasonable effort and the Appellants were represented by an experienced counsel and thus they could reasonably have been expected in the circumstances to have presented, at the time of the rejection. The explanation for their daughter's inability to attend the hearing is simply that counsel stated that that the daughter was not available to give testimony at the hearing. It is not really an explanation moreover while she may not have been available to testify at the hearing, there is no explanation as to why an affidavit from the daughter was not reasonably available. With respect to the appellant's son's affidavit, there is no explanation provided by the appellant as to why this was not reasonably available. For these reasons, these documents are not new evidence. [9] Regarding the medical note about XXXX, it is not apparent from the face of the letter that the XXXX is a new development occurring after the rejection by the RPD. However counsel submits that the appellant has had XXXX for a while, it is well recognized that submissions are not evidence. Thus I would consider this document as having met the express statutory condition and will consider whether it meet the Raza test. [10] The appellant in his submissions states that the medical note accounts for his memory problems which gave rise to inconsistent testimony at the RPD hearing. I note that the medical states that the appellant is diagnosed with XXXX. The medical note is silent with respect to whether this contributed to any memory issues. Thus this document would fail on not being material given that it says nothing other than that the appellant has XXXX. Therefore it is not accepted as new evidence. For the same reasons, document 2, that the Appellant suffers from XXXX XXXX and had XXXX is rejected as new evidence. [11] Since no new evidence is accepted pursuant to s. 110(4), the RAD may not hold an oral hearing pursuant to s.110(6) of IRPA. Thus these appeals will be considered based on the Appellant's record, the memorandum and the RPD record. Standard of Review [12] The Appellant did not make submissions on what should be the appropriate standard for review, but submit that the RPD erred in finding that the Appellants are not credible. This is an issue of fact. [13] The IRPA does not provide direction or guidance as to what is the appropriate standard of review to be applied in its appeals brought before it. [14] In Dunsmuir,1 the Supreme Court of Canada concluded that there are two standards of review: correctness and reasonableness. [15] In Khosa,2 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute. This case was not specifically in the context of an appellate tribunal charged with reviewing the decision of a tribunal of first instance. [16] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:3 (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, (g) other factors that are relevant in the particular context. [17] The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.4 The subject of the RPD proceedings or the Minister may appeal decisions of the RPD to the RAD. The appeal may be regarding a question of law, a question of fact, or a question of mixed law and fact. The Immigration and Refugee Protection Act empowers the RAD to determine questions of jurisdiction as well as questions of law and fact. The RAD is charged with a review of the appeal and determines whether to confirm the RPD's decision; or set aside that determination and substitute another; or refer the matter back to the RPD for redetermination with or without directions it deems appropriate. [18] The respective roles of the RPD and the RAD in the Act suggest that deference is owed to the RPD on findings of fact, or findings of mixed fact and law, that RPD finds based on the evidence and the testimony of the refugee claimants given at the RPD hearing. However, in cases where the RAD accepts new evidence, relatively less deference may be owed to the RPD because the RPD did not have the new evidence before it. [19] The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [20] Canada's refugee system is, in the first instance, about saving lives and offering protection to the displaced and persecuted.5 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (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. [21] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [22] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [23] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. d) The Expertise and Advantageous Position of the Tribunals: [24] Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,6 and each can take notice of information and opinions within its specialized knowledge.7 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,8 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD proceeding.9 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will not have this opportunity in all cases. Despite several similarities between the two tribunals, this fact that the RPD directly takes testimony suggests that the RPD is owed deference on findings of fact, particularly in respect to credibility,10 other than in situations where the RAD holds an oral hearing and therefore has the opportunity to consider evidence firsthand. e). The Need to Limit the Number, Length and Cost of Appeals: [25] In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.11 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would, in effect, be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one important objective of the IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [26] The interpretation of the legislation, as a whole, and the intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, other factors suggest a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. If the question is one of fact, the Courts have held that triers of fact are better situated to make findings of fact at first instance.12 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD proceedings would be reduced to little more than preliminary inquiries. [27] 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 the 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.13 Thus, the RAD does not agree with the Appellant's submission that the RAD should not defer to the findings of the RPD. [28] The issues in this appeal concern findings of fact where the appropriate standard of review is 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.14 Analysis [29] The RPD found material discrepancies regarding the children of the Appellants who were the first two members of the family who allegedly converted to Christianity. The Appellants submit that "Discrepancies in testimony in respect of the children though relevant but are not determinative factors of the Appellants' claim". A read of the RPD reasons indicates that the RPD identified contradiction, gave the Appellants an opportunity to explain "but she was either unable or unwilling to clarify or to resolve the contradiction. The panel invited the claimants' counsel to ask questions which might lead to a clarification, but counsel chose not to pursue the matter". The RPD panel has the right to question the Appellants about the issue surrounding the basis of the claim, had concerns and gave the Appellants and counsel an opportunity to clarify. Moreover, the RPD chose to give no weight and did not as the counsel alleges that "the panel drew an unreasonable and unfair inference of the Appellants' testimony." [30] The counsel for the Appellant, in his sections 2, 2.1 and 2.2, gives evidence rather than submissions. The information he is forwarding is not in evidence and there were no objective documents in evidence upon which he could make such statements. I reject the submissions as there is no evidence entered to support the argument of the appellant. [31] In his section 2.3, the Appellant blames the panel for not asking further questions to clarify a contradiction in the name of the female Appellant's mother. The Appellant was represented at the hearing, and Counsel could have asked further questions to clarify this concern. In the second paragraph of section 2.3, counsel again makes submissions where there is no evidence to support these submissions. [32] The Appellant, in section 3, states that the "the panel once again, did not give any consideration to the medical condition and the immense stressful situation that the Appellants were under during the hearing. The panel failed to pay any attention to the Appellant's allegations that he suffered from XXXX and that is the reason for his loss of memory." I am not persuaded that the RPD made an error or ignored the evidence before it. If the Appellant's memory was such an issue, I would reasonably expect that the Appellant's counsel would provide supportive medical documents. As stated earlier, the Appellant did provide a medical certificate that was not accepted into evidence. Even if I had accepted this into evidence, I note that the letter confirms that the Appellant suffers from XXXX but the doctor makes no mention that this condition is affecting the Appellant's ability to recall past events or his memory. [33] As to the stressful situation, even though the RPD conducts its hearing in a very informal manner, the situation is stressful for all the persons appearing before it seeking protection. [34] In section 5, the Appellant states, "...the errors made by the panel are extremely central to the decision with respect to the current refugee claim." But does not specify what exact errors and where exactly these are located. The RAD Rule 3 (g) ii clearly puts the burden on the Appellant to state: (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection [36] I note that the RPD did not conduct a microscopic examination of the Appellants regarding their religious knowledge. The RPD noted that the Appellants were unable to answer even the very basic questions about what denomination of the church they belonged to, and it was only after the recess that the Appellant was able to tell the Panel that he belonged to a Baptist church. I also note that the RPD made a finding in paragraph 16 that "the male claimant described with some degree of plausibility his attendance at services every Sunday". Despite this finding, the RPD was not persuaded that the Appellants are converts as they allege. Disposition [37] Based on the foregoing, I find that the RPD did not err in its findings and provided cogent, intelligible, justifiable and transparent reasons. Thus, the RPD's credibility finding falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. [38] The RAD confirms the determination of the RPD, pursuant to subsection 111(a) of the Immigration and Refugee Protection Act, and finds that the Appellants are neither Convention refugees nor persons in need of protection. [39] This appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal May 21, 2014 Date 1 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 2 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 3 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, para. 43. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, Sections 96 and 97. 5 IRPA, Section 3(2)(a). 6 IRPA, Sections 170(g) and 171(a.2). 7 IRPA, Sections 170(i) and 171 (b). 8 IRPA, Section 170(b). 9 IRPA, Section 110(3). 10 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 11 Newton, para. 80. 12 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 89. 13 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 14 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-01101 TB4-01102