MB6-01349

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 : MB6-01349 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 18, 2016 Date de la décision Panel Me Caron George Tribunal Counsel for the person who is the subject of the appeal Me Melissa Singer Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION A. Introduction [1] XXXX XXXX XXXX, a citizen of India, appeals the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) rejecting his claim for refugee protection under the Immigration and Refugee Protection Act (IRPA). B. Determination of the Appeal [2] Pursuant to subsection 111(1)(c) of IRPA, the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination as to whether XXXX XXXX XXXX is a Convention refugee or a person in need of protection, pursuant to sections 96 and 97 of IRPA. C. Background The Claim [3] The Appellant sought protection as a Convention refugee on the basis of a well-founded fear of persecution for reason of political opinion. It was alleged that the Appellant was threatened by members of the Communist Party of India - Marxist (CPI-M or the Party) for his refusal to XXXX XXXX when requested by members of CPI-M, regardless of whether the applications conformed to the rules of the Appellant's employer, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant also alleged that he was threatened because of his refusal to participate with CPI-M and his rejection of an executive position in the Party. [4] The Appellant also claimed to be a person in need of protection on the basis that his removal to India would subject him personally to a risk to his life or to a risk of cruel and unusual treatment by members of CPI-M, who physically assaulted the Appellant and threatened his life. The Appellant also alleged that his wife told him that the threat to his safety and life from members of CPI-M continued after he came to Canada. The RPD Process and Decision [5] The RPD held an oral hearing on January 27, 2016, during which the Appellant testified. The Appellant filed Affidavits from his wife, XXXX XXXX (date stamped XXXX XXXX XXXX 2016), and XXXX XXXX (date stamped XXXX XXXX XXXX 2016), in support of his claim before the RPD. The RPD rendered a decision on February 29, 2016, holding that the determinative issue was credibility1 and the Appellant's claims under IRPA were denied. [6] The Appellant was admitted to Canada as a visitor on XXXX XXXX, 2014. The RPD held that the Appellant testified that he came to Canada because his life was threatened; however, he hoped that if the situation in India improved, that he would be able to return to India, where his wife and son continue to live. The Appellant's visitor's status expired in XXXX 2015, and he remained in Canada. The Appellant made a refugee claim on December 2, 2015. [7] The RPD held that the Appellant's delay in making a refugee claim and his failure to ensure he had some form of legal status to remain in Canada after his visitor's permit expired were not satisfactorily explained and undermined the Appellant's credibility regarding the alleged dangers he faces in India. The RPD went on to find that the Appellant's behaviour was incompatible with a person seeking protection and showed a lack of subjective fear of persecution, in particular because the Appellant was out of status in Canada for 6 months and risked being deported back to India.2 [8] The RPD also held that: "the claimant's explanation of his knowledge of English and his omissions of stating so in his BOC is not satisfactory and undermines credibility regarding his knowledge of English and his ability to inform himself in a timely manner regarding how to remain permanently in Canada by making a refugee claim or making some other request."3 [9] The RPD held that the Affidavit by the Appellant's wife, XXXX XXXX, was not credible or trustworthy and that it held no probative value for the following reasons: * The Affidavit states that Ms. XXXX resides in Kalyani, in Nadia district and not in Tehatta, which is her parent's home where the Appellant testified that Ms. XXXX and their son went to live after the incidents with CPI-M. The RPD did not accept the Appellant's explanation that the person who prepared the Affidavit required his wife to state that she resides in Kalyani (her permanent address) and not Tehatta (Ms. XXXX parent's address). The RPD held that if the notary was able to force the wife to make "false declarations" regarding her residential address, then the Affidavit is not credible or trustworthy and the RPD gave it no probative value.4 * The Affidavit does not state that the Appellant's wife or his son "had ever been threatened with being killed by CPI-M or anyone else" or that they were forced into hiding. The RPD held that this omission supports a finding that the Affidavit does not have any probative value in corroborating the Appellant's allegation that his wife and son have been threatened with death by CPI-M.5 [10] The RPD held that the Affidavit by XXXX XXXX did not show that Mr. XXXX had objective and independent knowledge of the threats made to the Appellant by CPI-M because the Affidavit only recounts what the Appellant told Mr. XXXX. The RPD went on to find that "[c]onsequently, given the claimant's weakened credibility, this affidavit does not have probative value."6 [11] The RPD held that the documents the Appellant filed from his employment with XXXX were not probative evidence in support of the allegation that the Appellant's life was threatened in relation to his work with XXXX.7 [12] The RPD determined that there is no serious possibility that the Appellant will be persecuted in India, or that, on a balance of probabilities, the Appellant will be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment if he returns to India. The RPD found that the Appellant is not a Convention refugee and is not a person in need of protection pursuant to IRPA and dismissed the claim. The Appeal [13] The Appellant requests that the RPD's decision be set aside and the matter returned to the RPD for re-determination before a reconstituted panel. [14] The Appellant submits that the RPD was over-zealous and committed substantive errors in its evaluation of the Appellant's credibility. It is submitted that the RPD's evaluation of credibility was "patently faulty and at variance with the cardinal rules of making a credibility finding as set out in Maldonado."8 [15] The Appellant points to three areas in which the RPD's findings contain errors: i) The RPD decision demonstrates a disproportionate concern with the Appellant's illegal stay in Canada and improperly discounts the Appellant's reasonable explanations for the delay in bringing a refugee claim. The RPD fails to consider the refugee claim on its merits and that it may be a valid claim even though it was not made at the earliest opportunity. The delay in bringing a refugee claim does not mean there is an absence of subjective fear.9 ii) The Appellant is not fluent in English, as shown by the Bengali interpreter at the hearing and his difficulties in understanding English during the proceedings. The Appellant's refugee claim should not be compromised because of his limited knowledge of English, as this element is not central to the claim.10 iii) The RPD speculating that the Appellant's wife was forced by the notary to make false declarations regarding her residential address is an error. The Affidavits of the Appellant's wife and XXXX XXXX are peripheral to the Appellant's claim; the Appellant's right to have his claim determined in function of the Convention Refugee definition should not be denied because of these Affidavits. The failure of the wife's Affidavit to mention that she or her son had ever been threatened by the CPI-M or that she was forced into hiding should not militate against the Appellant.11 D. Application to Admit New Evidence [16] The Appellant brings an application pursuant to Rule 37 of the RAD Rules (the Rules) and subsection 110(4) of IRPA seeking the admission of an Affidavit sworn by the Appellant's wife, XXXX XXXX (date stamped XXXX XXXX, 2016) and of a letter from a lawyer named XXXX XXXX (dated XXXX XXXX XXXX 2016). The Appellant is also requesting a hearing before the RAD, pursuant to subsection 110(6) of IRPA. [17] The Appellant may only present evidence that arose after the rejection of his claim, or that was not reasonably available, or that the Appellant could not have reasonably been expected to have presented, at the time of the rejection of his claim. The documents presented by the Appellant in this appeal are not necessarily new evidence merely because they are dated after the RPD's decision; the content of the documents must be considered to determine if each document meets the requirements of subsection 110(4) of IRPA. [18] The burden is on the Appellant to prove that this evidence is admissible as new evidence. Rule 3(3)(g)(iii) of the Rules requires the Appellant to explain in his Memorandum how these documents meet the requirements of subsection 110(4) of IRPA. The Appellant failed to provide any explanation. The only submission is the statement in the Application that these documents were not reasonably available and arose after the claim to refugee protection, without any further explanation. Therefore, I can only determine whether a document is admissible as new evidence based upon the contents of that document. [19] All of the information contained in the Affidavit sworn by the Appellant's wife, XXXX XXXX (date stamped XXXX XXXX, 2016) arose before the RPD hearing. The prior Affidavit by Ms. XXXX (date stamped XXXX XXXX, 2016) was filed with the RPD and it contained the information that the men who came and harmed and threatened the Appellant continued to search for him, and that the Appellant continued to be in danger. The other information in the more recent Affidavit of Ms. XXXX, as to the address where she is residing with their son and that they are not going back to their apartment in Kalyani, was available at the time of the RPD hearing and before the rejection of the claim by the RPD. Further, the statement that the men in India "are still looking for" the Appellant does not indicate if the men took any further steps to find the Appellant or if Ms. XXXX is simply relying upon information that was available at the time of swearing her last Affidavit as the basis for her belief that the men continue to look for her husband. Further, the Appellant has not shown that it was unreasonable to expect in the circumstances that this information be provided to the RPD before its rejection of the Appellant's claim. Therefore, the Appellant has not met his burden to prove that the Affidavit of Ms. XXXX (date stamped XXXX XXXX, 2016) is admissible as new evidence pursuant to subsection 110(4) of IRPA. [20] The letter from XXXX XXXX (dated XXXX XXXX, 2016) contains information provided in the Appellant's Basis of Claim (BOC) form, in his oral testimony and in the Affidavits filed before the RPD. All of this information arose before the RPD hearing and before the rejection of the Appellant's claim. The Appellant has failed to show that the evidence was not reasonably available, or that the Appellant could not have reasonably been expected to have presented the evidence, at the time of the rejection of his claim. [21] There is no basis for the Appellant to be granted an oral hearing before the RAD, pursuant to subsection 110(6) of IRPA, because the Appellant has failed to meet his burden to prove that the Affidavit of Ms. XXXX (date stamped XXXX XXXX XXXX 2016), and the letter from XXXX XXXX (dated XXXX XXXX XXXX 2016) are admissible as new evidence, pursuant to subsection 110(4) of IRPA. E. Scope of the Appeal to the RAD [22] In the Huruglica12 decision, the Federal Court of Appeal stated that under the provisions of IRPA, the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. "This translates into an application of the correctness standard of review."13 [23] The Federal Court of Appeal also stated that there is no generalized requirement to show deference to the RPD's findings of fact;14 however, the Court stated that there may be cases where the RPD enjoys a "meaningful advantage" over the RAD in making findings of fact or mixed fact and law because the findings require an assessment of the credibility or weight to be given to oral evidence. The court concluded that the RAD must take a case-by-case approach as to whether the circumstances warrant a degree of restraint in the RAD substituting its own decision.15 Gauthier, J. continues to explain as follows: [70] ...In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there are no issues of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.16 [24] Following the principles outlined in Huruglica, my approach to the present appeal was to analyze the record and determine whether the RPD has made any errors based on the issues identified in the Appellant's Memorandum (Memorandum). I listened to the recording from the hearing and reviewed the case file, the decision by the RPD and the Memorandum in arriving at my decision on the issues raised in this appeal. [25] The determinative issue in this appeal is whether the RPD erred in its credibility findings. The RPD's credibility findings are grounded in the RPD unreasonably discounting the Appellant's explanation for a delay in seeking refugee protection, speculating, misapprehending evidence and examining issues that are immaterial or peripheral to the Appellant's claim. The Court in Huruglica did not envisage deference being shown to the RPD in these circumstances (see the emphasized portions of Huruglica above). I have also considered that the Federal Court fails to show the RPD's credibility findings deference and intervenes "where the contradictions or omissions are insignificant or result from a microscopic examination, or when explanations have been unreasonably discounted, or where relevant contextual information has not been considered."17 It is important to note that the Federal Court intervenes in these circumstances even though it does not apply the correctness standard that the RAD must apply. The errors I have identified are errors of law or mixed fact and law and I have not shown the RPD deference because the RPD was not in an advantaged position in relation to these findings. F. Analysis of the Merits of the Appeal [26] In Maldanado the Federal Court of Appeal stated: It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant's credibility concerning the sworn statements made by him and referred to supra. When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.18 [27] The RPD is under a "very clear duty" to give reasons for casting doubt upon an applicant's credibility in "clear and unmistakable terms"19 and to justify its credibility findings with "specific and clear reference to the evidence."20 [28] The Federal Court in Valtchev states: A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can reasonably said to exist. However, plausibility findings should only be made in the clearest of cases, i.e. if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and the actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu.21 [29] Findings of implausibility are inherently subjective assessments which are largely dependent upon the RPD member's belief as to what constitutes rational behavior. Whether such a finding is appropriate can only be assessed where the RPD "clearly identifies all of the facts which form the basis for their conclusions" and it is an error to fail to refer to relevant evidence that could potentially refute their conclusion.22 [30] The RPD provides the following findings with respect to delay, subjective fear and credibility: The Claimant's explanation for his delay in make a refuge claim is not satisfactory and undermines his credibility regarding alleged dangers in India. The claimant's behavior is incompatible with someone seeking protection (he testified that he came to Canada to save his life) and shows a lack of subjective fear of persecution, in particular since the claimant was out of status for six months in Canada and risked being deported and forced to be returned to India. The claimant has not sufficiently explained how he would reasonably expect the situation to change in India if regular reports from his wife allegedly showed that his aggressors continued to seek him out.23 [31] The RPD decision recounts that the Appellant alleges he came to Canada to save his life. The Appellant intended to return to India if the situation there improved. The Appellant testified that he took refuge in a temple after his arrival in Canada on XXXX XXXX XXXX 2014, and that on XXXX XXXX or XXXX, 2014, upon the advice of others at the temple, he spoke to an immigration consultant who dealt with people from Bangladesh.24 This consultant wanted the Appellant to secure a Bangladeshi passport and make a refugee claim as a Bangladeshi. The Appellant is not Bangladeshi and testified he was uncomfortable with this suggestion and he refused to proceed in this manner. The RPD challenged the Appellant as to why he spoke to the immigration consultant if he did not intend to remain in Canada at that time and the Appellant stated that he wanted to find out the process. [32] The RPD relies in part upon its finding that the Appellant "testified that he knew he risked deportation back to India for more than 6 months before making a refugee claim."25 However, the Appellant did not state this in his oral testimony. The RPD member asked whether after XXXX XXXX XXXX 2015, the Appellant was worried that he may be deported from Canada if the Canadian authorities found him and the Appellant responded "At the beginning I did not know." The RPD followed up by asking "Beginning of what?" which resulted in the testimony moving to another matter; there was no further questioning to determine when the Appellant knew that the expiration of his visitor's status had not been addressed by the consultant.26 Later in the hearing, the RPD asked the Appellant if he was fearful he would be deported if he was in Canada illegally after XXXX XXXX, 2015. The Appellant responded "Yes, but [immigration consultant] said you do not have to think about it, I will take care of it."27 [33] Then the RPD put to the Appellant that he was illegally in Canada from mid-XXXX until the time he made a refugee claim (approximately 6 months): why would he not have contacted immigration at some earlier time if it seemed like the consultant was not doing much? The Appellant responded "He just misguided me. I am not easy with his decision."28 The RPD inferred that the Appellant knew for a period of six months that his visitor's status had expired before he made a refugee claim; however, this inference cannot be reasonably made from the evidence. The RPD measures the reasonableness of the delay in claiming refugee status partially upon its improper finding that the Appellant knew his visitor's status expired, and he did nothing to address this situation, for 6 months. [34] The Appellant testified that the immigration consultant said he did not have to renew his visitor's visa; the consultant was taking care of that so the Appellant did not have to think about it.29 The evidence does not indicate when the consultant told the Appellant this. The Appellant did testify to seeing the consultant on XXXX XXXX or XXXX, 2014, and XXXX XXXX, 2015, but he was not questioned as to whether there were other interactions or when the consultant made this assurance to the Appellant. The RPD did not consider that it may have been appropriate for the Appellant to rely upon the statements by the immigration consultant which, in the context of the Appellant's stated desire to return to India if the threat to him ceased, reasonably explain the Appellant's delay in seeking refugee protection. [35] At the XXXX meeting the Appellant asked the consultant to help with his refugee claim based upon his Indian passport, the consultant gave the Appellant the address where he should submit "the papers," which were translated from what the Appellant wrote in Bengali to English, and the Appellant was told to give $ 2,000 to a lawyer. The Appellant testified that he did not have the money to retain a lawyer and proceeded to secure legal aid and find a lawyer. [36] The RPD decision states that the Appellant was told he should talk to "immigration" but he did not do so.30 This is a misapprehension of the Appellant's evidence because when questioned by the RPD member it was clear that the Appellant was told by the people at the temple to speak to the immigration consultant, not to a government department. The Federal Court of Appeal's caution that a hearing through interpreters is fraught with the possibility of misunderstandings31 should have been heeded by the RPD on this issue; it was apparent the Appellant was referring to being told to speak to the immigration consultant and not that he had been directed to the government immigration department. [37] Federal Court of Appeal in Huerta32 stated that delay in making a claim to refugee status is not a decisive factor in itself, but it is a relevant element that may be taken into account "in assessing both the statements and the actions and deeds of a claimant."33 It is important to note that in the Huerta case, the claimant's explanation for the delay in claiming refugee protection was a lack of familiarity with the process. This explanation was not accepted because it was inconsistent with other evidence (the claimant's refugee claim was based upon events of which her brother and sister-in-law had been victim, she was living with them after her arrival in Canada and they had already made refugee claims). The finding of a lack of subjective fear was also based upon the actions of the claimant in her own country, after the incidents that grounded her refugee claim occurred and before she left for Canada. The Court of Appeal upheld that it was hard to see the claimant's conduct as consistent and to reconcile it with the conduct of a person who fears for her life, flees her country and comes to Canada to seek refugee protection.34 [38] The Federal Court addressed findings that an applicant lacks credibility because of an alleged lack of subjective fear in the recent Ntatoulou35 decision: [14] The Court finds that the RPD erred in its determination that the Applicant lacked credibility because of her alleged lack of subjective fear. Neither failure to make a claim elsewhere, nor, delay in making a claim are, in and of themselves, determinative (Pena v Canada (Minister of Citizenship and Immigration), 2011 FC 326 (CanLII) at para 4 [Pena]; Hue v Canada (Minister of Citizenship and Immigration), [1988] FCJ No 283; Wamahoro v Canada (Minister of Citizenship and Immigration), 2015 FC 889 (CanLII) at para 32): [T]he long delay in making a claim must not be a pretext and is not in itself sufficient to reject a refugee claim without reviewing the other facts in the record. (Malaba v Canada (Minister of Citizenship and Immigration), 2013 FC 84 (CanLII) at para 11) [15] Unfortunately, this is exactly what the RPD did. The RPD had a duty to carefully consider the explanations provided by the Applicant, but, failed to do so (Pena, above at para 4)...36 [39] Delay in claiming refugee protection may assume a decisive role where the totality of the evidence supports a finding on a balance of probabilities that the applicant lacks subjective fear. The facts in Huerta can be distinguished from the present appeal because the RPD did not point to any evidence of the Appellant's behavior, in India or after coming to Canada, which supports a finding that the Appellant lacks subjective fear; the RPD relies upon its finding that the Appellant's explanation for the delay in claiming refugee status is not plausible. [40] The Court in Malaba37stated that before making a finding of a lack of subjective fear that the RPD must consider any explanation provided by the applicant about the causes of delay and cannot arbitrarily set aside any reasonable explanation.38 The RPD must properly canvass the period of delay at the hearing and must have cogent evidence to support a finding that the Appellant did not reasonably explain the delay and that, when considered with the other evidence, the delay supports a finding of a lack of subjective fear. The RPD did not do so in the present claim. [41] In the present appeal, the RPD held that the Appellant's "behavior is incompatible with someone seeking protection"; however, the RPD failed to consider that the Appellant's behavior in waiting to make a refugee claim could be consistent with a person hoping to return to his home country and that such desire or hope does not change that person's fear of harm or persecution continuing in his home country. It is plausible that if a person sees his departure from his home country (and his arrival in Canada) as necessary to ensure his physical safety, that the period during which the person fails to accept that he cannot return home may be lengthier for one person when compared to another. The RPD erred in finding that it was unreasonable that the Appellant could continue to hope or believe that he could return to India simply because his wife regularly told him during telephone conversations that the CPI-M continued to look for him. The RPD member applied his own beliefs to determine if the Appellant's behavior was plausible, without properly questioning the Appellant with respect to the reasons he wanted to return to India or why he retained hope that he could do so. [42] The RPD also failed to consider that the Appellant not taking independent steps to extend his visitor's visa is consistent with his belief that the immigration consultant was addressing the expiration of this visa. The RPD failed to question the Appellant about any representation made by the immigration consultant to determine if the Appellant's reliance upon such a representation was reasonable. The RPD failed to question the Appellant, other than in a peripheral manner, as to his interactions and relationship with the immigration consultant, yet such evidence is material to any findings with respect to the Appellant's explanation for the delay.39 It is an error to fail to refer to relevant evidence, such as reliance on the representation of the immigration consultant, that could potentially refute the RPD's conclusion that the Appellant had not provided an explanation for his delay in claiming refugee protection and for his visitor's status expiring. [43] The evidence on the record is insufficient to support the RPD's finding that the Appellant's delay in making a refugee claim supported a finding that the Appellant was not credible because he had not proven he had subjective fear. It was an error for the RPD to unreasonably dismiss the Appellant's explanation considering: a. The Appellant's desire and hope to be able to return to India could be seen as reasonably explaining the delay in claiming refugee status without minimizing the risk the Appellant felt existed in India to his well-being and his life; b. There was insufficient evidence to find the Appellant's explanation as lacking credibility (such as there being other behaviour that was inconsistent with the Appellant having a subjective fear); c. There was no basis to find that the Appellant overall lacked credibility because of clearly articulated, relevant issues with the Appellant's testimony, his sworn statements or the evidence filed in the claim; and, d. The Appellant's testimony that he believed that the immigration consultant was taking care of his status to remain in Canada was not properly canvassed during the hearing or addressed by the RPD in its decision. [44] In making an adverse determination of credibility, the RPD must consider all of the evidence before it, both oral and documentary, in totality and not just selected portions of the evidence in isolation.40 Although every piece of evidence does not need to be referred to or discussed in a decision, the burden of explanation increases with the relevance of the evidence to the disputed facts.41 Credibility findings must have a proper foundation in the evidence. [45] The RPD found that the credibility of the Appellant's allegation as to the danger he faced in India was "negatively impacted" by the RPD finding the Appellant's explanation for his delay in claiming refugee protection was not "satisfactory." The RPD did not point to any issues with the Appellant's sworn evidence (in the BOC or his testimony) to support its finding that the Appellant was not credible regarding the alleged events in India, which are at the heart of the Appellant's refugee claim. The RPD made an improper finding with respect to the Appellant's explanation for the delay in making a refugee claim and then used this improper finding as a basis to undermine the merits of the Appellant's refugee claim, which is a further error. [46] The Federal Court in Cooper42 held that the Board had not focused on the factual issues that are material for a claim for protection and focused on matters that were immaterial and irrelevant to the claim for protection. "In consequence, the Board undertook no analysis of the principle basis of the claim of risk."43 The Court quoted Justice Martineau in the Lubana44 decision, including as follows: ...the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality...The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence.... However, not every kind of inconsistency or implausibility in the applicant's evidence will reasonably support the Board's negative findings on overall credibility. It would not be proper for the Board to base its findings on extensive "microscopic" examination of issues irrelevant or peripheral to the applicant's claim...45 [47] The RPD's decision also focused on the Appellant's evidence in areas which were immaterial, or at best peripheral, to the Appellant's refugee claim: the Appellant's ability to speak and read English; why the Appellant did not state in the BOC that he speaks English;46 and, a change the Appellant made to the BOC at the beginning of the RPD hearing in which a year is corrected from "2015" to "2014" in one paragraph. [48] With respect to the change of the year, the RPD focused on an error of one digit in one reference to a year, even though the correct year appears in two prior and one later paragraphs of the narrative, and the Appellant testified that the interpreter made the error when translating the narrative from Bengali to English. The evidence establishes that the error was not made by the Appellant and was likely a typographical error made by the interpreter.47 Although the RPD writes about challenging the Appellant as to why he did not make the correction of the year until the hearing date (because he can read English and read his BOC), the RPD ultimately finds that the error is not "in itself determinative or significant" because the Appellant entered Canada on XXXX 2014 and could not reasonably have been in India in XXXX 2015. 48 [49] The RPD does go on to find: However, the claimant's explanation of his knowledge of English and his omission of stating so in his BOC is not satisfactory and undermines credibility regarding his knowledge of English and his ability to inform himself in a timely manner regarding how to remain permanently in Canada by making a refugee claim or making some other request.49 [50] The Appellant testified that he is not fluent in English and is able to read and understand English, due to attending college and working at XXXX, but he cannot speak English. The Appellant used a Bengali interpreter to translate his BOC narrative into English and to interpret during the RPD hearing. The RPD drawing a negative inference as to the credibility of the Appellant because of its finding that there had been some form of misrepresentation by the Appellant as to his capacity in English in the BOC is an error in two ways: the evidence does not support a finding that there had been any misrepresentation and the Appellant's capacity in English is immaterial to the merits of his refugee claim. [51] The RPD also erred by finding that the Appellant's explanation for his delay in claiming refugee protection was not credible because he speaks English and could have informed himself in a timely manner regarding how to remain permanently in Canada. The Appellant did not testify that he failed to seek protection because he could not understand English or that a lack of capacity to speak and understand English impeded any attempts he made to get information about obtaining more permanent status in Canada. It was not reasonable for the RPD to infer that the Appellant's explanation for the delay (his hope to return to India and his reliance upon the immigration consultant) is not credible because of the RPD's speculation as to what actions by the Appellant are appropriate based upon the RPD's belief as to the Appellant's capacity in English. The Affidavits Filed in the Claim [52] The Appellant raised another error stating that the RPD improperly inferred that the Appellant's wife was forced to make false declarations regarding her residential address by the notary swearing her Affidavit (date stamped XXXX XXXX, 2016). [53] The Appellant's evidence was that the family still retain their home in Kalyani, even though his wife and son are staying with the wife's parents in Tehatta. When asked why the wife's Affidavit stated she resided at the family's address in Kalyani, the Appellant testified that his wife told him that the notary required this because "it was the code" and that his wife had to use this address "because the CPI-M goons are not letting you stay in this address but this is your permanent address and you have to use this address and not your father's address."50 [54] The RPD had no basis for finding that it is not plausible that the law in India requires a person who swears an affidavit to put her permanent residential address, which is more likely to be corroborated in identification documents, in an affidavit. The RPD did not have any evidentiary basis for finding that the wife was "forced to declare false information" and makes a further error when it uses this finding to hold that the Appellant's credibility with respect to his evidence that the wife took refuge at her father's was undermined. The RPD then finds: Because of this contradiction regarding the address, the panel does not give the affidavit any probative value. Furthermore, if the claimant's wife was forced by the notary to make false declarations regarding her residential address, then the panel does not consider this affidavit to be a credible or trustworthy document and gives it no probative value.51 [55] The RPD then states that the Affidavit by XXXX XXXX does not show that Mr. XXXX has objective and independent knowledge of the threats made against the Appellant, other than what the Appellant told him. The RPD goes on to find that the Affidavit does not have probative value "given the claimant's weakened credibility." The RPD then makes a statement which appears to find the Affidavit lacking in credibility because it was requested and obtained after the Appellant made a refugee claim and more than one year after the Appellant's arrival in Canada.52 First, as the RPD's findings with respect to credibility are in error, the failure to give the Affidavit weight on this basis is an error. Secondly, the Appellant seeking and receiving the Affidavit after filing his claim has no bearing on whether the Affidavit is credible or should be given probative value and the RPD makes a further error in this regard. [56] Finally, the RPD finds that the documents produced from XXXX are not probative evidence in support of the allegation that the Appellant's life was threatened in relation to his work with XXXX. The RPD fails to consider that these documents corroborate that the Appellant worked with XXXX for 9 years and was in a position to be approached by CPI-M in the manner the Appellant described because he was an XXXX XXXX in their XXXX XXXX section. G. Conclusion [57] The RPD did not have sufficient cogent evidence upon which to base a finding that the Appellant was not credible or that the allegations of what occurred to the Appellant in India were not credible or that the Appellant had not proven a subjective fear of persecution or harm if he returned to India. I find that the RPD was wrong in law or mixed fact and law and I refer this matter back to the RPD for redetermination before a newly constituted panel because I cannot make a decision without hearing evidence that was presented to the RPD. H. Remedies [58] The appeal is allowed and this matter is returned to the RPD for re-determination before a newly constituted panel, pursuant to subsection 111(1)(c) of IRPA. Caron George Me Caron George November 18, 2016 Date /cos 1 RPD decision at para 14. 2 Ibid., at para 21. 3 Ibid., at para 23. 4 Ibid., at paras 24-26. 5 Ibid., at para 28. 6 Ibid., at para 29. 7 Ibid., at para 30. 8 Maldonado v. Canada (Minister of Citizenship and Immigration), [1980] 2 F.C. 302 (F.C.A.) [Maldonado]. 9 Appellant's Memorandum at Part II, subparagraph 1 i). 10 Ibid., at subparagraph 2 ii). 11 Ibid., at subparagraph 3 iii). 12 The Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 [Huruglica]. 13 Ibid., at para 78. 14 Ibid., at paras 58-59. 15 Ibid., at para 70. 16 Ibid., at paras 70-74 [Emphasis added by writer]. 17 Manege v. Canada (Minister of Employment and Immigration), 2014 FC 374 at para 17 [Manege]. 18 Maldanado, supra note 8, at page 305 [Emphasis added by writer]. 19 Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (F.C.A.) [Hilo]. 20 Leung v. M.E.I. [1994] F.C.J. No. 774 (F.C.T.D.) at para 14 [Leung]. 21 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7 [Valtchev] [Emphasis added by writer]. 22 Leung, supra note 20, at paras 15-16. 23 RPD decision at para 21. 24 The Appellant named the immigration consultant during the RPD hearing. 25 RPD decision at para 17. 26 The Appellant's testimony following 56:46. 27 Ibid., 1:14:25. 28 Ibid., 1:15:04 to 1:16:04. 29 Ibid., 1:14:25. 30 RPD decision at para 19. 31 Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (F.C.A.) at page 2 [Owusu-Ansah]. 32 Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (F.C.A.) [Huerta]. 33 Ibid., at page 2. 34 Ibid., at page 2. 35 Ntatoulou v. Canada (Minister of Citizenship and Immigration), 2016 FC 173 at para 14 [Ntatoulou]. 36 Ibid., at paras 14-15. 37 Malaba v. Canada (Minister of Citizenship and Immigration), 2013 FC 84 [Malaba]. 38 Ibid., at para 15. In this case, the Court was referring to delay in requesting state protection, but this is equally applicable to a delay in seeking refugee protection once in Canada. 39 For example: details as to the contact the Appellant had with the immigration consultant (in person, by telephone and electronically); if and when the Appellant retained the consultant; what the consultant was retained to do; when any representations were made that the immigration consultant would take care of the Appellant's visitor's visa expiring; questions to determine why the Appellant would retain the immigration consultant after being uncomfortable with his initial advice to seek a Bangladeshi passport in order to claim refugee status. 40 Tung v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 292 (F.C.A.). 41 Mains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (F.C.T.D.). 42 Cooper v. Canada (Minister of Citizenship and Immigration), 2012 FC 118 [Cooper]. 43 Ibid., at para 3. 44 Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FC 116 at paras 10-12 [Lubana]. 45 Cooper, supra note 42, at para 3. 46 The Appellant's testimony was that he reads and understands English, but he does not speak it and he did not put English in the BOC because he is not fluent; the RPD does not address this explanation. 47 Narrative added to the BOC at paras 6 and 8, at pages 15 and 16 of the RAD Appeal Record. 48 RPD decision at para 23. 49 Ibid., [Emphasis added by writer]. 50 The Appellant's testimony just prior to 1:22:11. 51 RPD decision at para 27. 52 Ibid., at para 29. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-01349 21