TB6-09250

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 : TB6-09250 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 2, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX(the Appellant), a citizen of the Republic of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to grant her appeal. Application for Oral Hearing [2] The Appellant has not made an application for an oral hearing to be held pursuant to section 110 (6) of IRPA. DETERMINATION [3] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [4] The Appellant alleged before the RPD that she has a well-founded fear of persecution based on her political opinion as a result of being a member of the Blue Party. The Appellant further alleged before the RPD that she was detained, interrogated and raped while in detention. The Appellant alleges that she was the victim of threats, harassment and raids from Ethiopian authorities. The Appellant left Ethiopia,travelled to Canada on XXXX XXXX, 2015, and made an inland claim upon arrival at the Airport in Toronto, Ontario. [5] The Appellant's application for refugee protection was heard on May 10, 2016. By a Notice of Decision dated June 14, 2016, the RPD rejected the claim on the basis of credibility. The RPD found that the Appellant was not a credible witness and had not provided trustworthy evidence, and also identified some inconsistencies in her evidence. [6] The Appellant submits on appeal that the RPD erred in its treatment of her credibility. ANALYSIS The Role of the RAD [7] While the IRPA 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 lower tribunal. [8] The Appellant makes no submissions on the appropriate standard of review which is to be used by the RAD. [9] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.1 [10] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.2 Such an appeal: (i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.3 [11] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.4 [12] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.5 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to choose whether it agrees with the determination of the RPD; if not, then RAD will substitute its own view and provide the correct answer.6 [13] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law, as such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.7 The Federal Court of Appeal, in deliberating the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case.8 [14] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.9 [15] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. Therefore, credibility findings which arise from that oral testimony are appropriate of deference, as are other findings of fact based on oral evidence, so are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [16] The RAD notes that not every finding relating to credibility however, warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.10 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.11 [17] The question becomes how much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is a 'palpable and overriding error'.12 This passage has subsequently been endorsed by other decisions of the Federal Court. [18] It is unfortunate that the Federal Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.13 This leads the RAD to believe, this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [19] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 14 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [20] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [21] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [22] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [23] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [24] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. The RPD's Findings [25] The RAD must note here that the Appellant's Memorandum does not comply with the RAD Rules. Those Rules require full and detailed submissions regarding the errors that are the grounds of the appeal, and where those errors are located in the RPD's reasons or the transcript of the hearing. The Appellant has made very vague submissions on very general subjects, but her Memorandum includes few specifics, and this makes it rather difficult for the RAD to determine the grounds of this appeal. The RAD has nevertheless carefully reviewed the RPD's record, the transcript, the RPD's reasons, and the Appellant's Memorandum. [26] Standard of proof: The RPD found the Appellant's key allegations "not to be a credible."15 The Appellant merely attempts to rebut some RPD findings but puts forth no argument as to why those findings are in error. Issues Raised on Appeal [27] The IRPA provides that the Appellant(s) may appeal, "in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection."16 These appeals must therefore be understood as being filed against the RPD's decision, and must comply with the RAD's rules. [28] The RAD Rules require the Appellants to provide, in their Memorandum, "full and detailed submissions regarding the errors that are the grounds of the appeal," and where those errors are located in the RPD's decision.17 No such memorandum has been submitted to the RAD as prescribed by RAD Rule 3. [29] The Appellant has vaguely challenged the RPD's credibility findings. The RAD has carefully reviewed the RPD's decision as well as the evidence in the RPD record. It is clear that the credibility determination stands on its own-that is; it is not influenced by or dependent on other findings. The RPD made it clear that, it did not find the Appellant's allegations, credible, "As I do not accept the claimant's testimony as being credible, I have looked for alternative evidence that would support a protection finding."18 [30] The RAD is satisfied that the credibility findings, which the Appellant does not challenge here, were made independent of the other findings. [31] The credibility finding is determinative of the Appellant's refugee claim under both Sections 96 and 97 of IRPA and is also dispositive of this appeal. Even if the RPD erred in its analysis of credibility, and generalized risk, the Appellant's refugee claim would nevertheless fail on the basis of credibility. [32] If the Appellant does object to the RPD's conclusion on credibility, she has not stated this in her Memorandum, or explained to the RAD why she believes that finding to be wrong. The RAD cannot guess what it is that the Appellant is arguing. [33] The Federal Court has described the statutory configuration of an appeal to the RAD: In sum, the appeal before the RAD (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made.19 In seeking judicial review of the RAD's decision, the Applicants in that matter argued that the RAD erred by failing to consider a certain risk factor associated with a proposed IFA, even though they had not raised that issue on appeal. The Court, in dismissing the application for judicial review, concluded that "it is not the RAD's function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place."20 [34] In Siliya, the Federal Court considered a matter where the Appellants did not challenge the RPD's IFA finding in their appeal to the RAD. The Court concluded, "The RAD's decision should not be disturbed because the Applicants never challenged the dispositive finding of the RPD as to an IFA and, thus, there was no basis for any appellate intervention by the RAD."21 [35] The Appellant here has not challenged the RPD's determinative finding. As such, there is no basis for the RAD's intervention, and this appeal must fail. CONCLUSION [36] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [37] This appeal is therefore, dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho September 2, 2016 Date 1 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 2 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 3 Dhillon, paras. 14-18. 4 Huruglica, 2016 FCA 93, para. 103. 5 Ibid. 6 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 7 Huruglica, FCA, para. 70. 8 Huruglica, FCA, para. 74. 9 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 10 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 11 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, which decision contains a thorough discussion of the drawing of inferences.) 12 Huruglica, Federal Court, para. 55. 13 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 14 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 15 Exhibit P-2, Appellant's Record, at p. 2, lines 17-19, p. 4 lines 26-30 and lines 32-33, Reasons for Decision. 16 IRPA, Section 110(1). 17 Refugee Appeal Division Rules, Section 3(3)(g). 18 Exhibit P-2, Appellant's Record, at p. 4, p. 4, lines 26-30 and lines 32-33, Reasons for Decision. 19 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015; 2015 FC 321, para. 18, emphasis added. 20 Dhillon, para. 20. 21 Siliya, Mohamed Yusuf U v. M.C.I. (F.C., no. IMM-5679-13), Boswell, January 23, 2015; 2015 FC 120, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-09250