TB7-01677

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 : TB7-01677 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 June 2, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Maureen Silcoff Barrister and Solicitor 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 Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that he has a well-founded fear of persecution at the hands of Al Shabaab and some majority clans in Somalia because he is a member of a sub-group of a minority clan with no protection. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on December 16, 2016. A negative decision was rendered in writing on January 16, 2017. The RPD found that the Appellant was unable to establish his identity with trustworthy and credible evidence. [4] 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. Appellant's Issues [5] The Appellant does not submit that the RPD made any errors, but asks, a) Whether a standard of review applies to the RAD; and b) Whether the new evidence should be accepted; and c) Whether the new evidence establishes nationality and minority clan status; and d) Whether the new evidence allows the Appellant to meet the definition of a Convention refugee ANALYSIS The Role of the RAD [6] The RAD is an Appellate body governed by specific legislation2 and guided by the jurisprudence3 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 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." [7] 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.5 [8] 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,6 with no deference accorded to the RPD.7 [9] The RAD will show deference to the RPD's findings on credibility 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. [10] 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. [11] 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. [12] 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. [13] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [14] 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. [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Admissibility of Evidence Submitted on Appeal [16] Section 110(4) of the IRPA provides that the appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. [17] It is for the appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the appellants.9 Application of Section 110(4) [18] Section 110(4) establishes a disjunctive test.10 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [19] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.11 [20] As the RAD understands it, section 110(4) provides the appellants with an opportunity to present evidence that could not have been submitted to the RPD, either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the appellants could not have been expected to present it to the RPD. [21] Section 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.12 [22] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.13 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [23] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [24] In Singh,14 the Federal Court of Appeal held that there is no valid reason why the RAD cannot apply the criteria set out in Raza15 to the assessment of new evidence. While Raza predates the introduction of IRPA section 110(4), it is based on the nearly-identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance and newness, in addition to any express statutory provisions.16 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).17 [25] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [26] Relevance is a basic condition for the admissibility of any piece of evidence.18 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [27] In addition to credibility and relevance, the factors in Raza include "newness". Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.19 [28] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. The Appellant's proposed new evidence submitted pursuant to Section 110(4), IRPA 1) Sworn declaration from XXXX XXXX XXXX accompanied by the Appellant's explanation of that document; and 2) A letter from the Appellant's mother [29] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. The requirements to prove identity are clearly outlined in section 106 of the IRPA as well as Rule 11 of the RPD Rules. The affidavit produced as new evidence was sworn after the date of the RPD hearing. There has been no persuasive evidence presented to show that this evidence did not exist at the time of the RPD proceedings or if it did exist and was available, why the Appellant could not have been expected to present it to the RPD. The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [30] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RPD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a convention refugee or person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination."20 [31] Section 110(4) does not provide an opportunity for appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.21 In a recent Federal Court decision,22 the Hon. Justice Annis wrote: "I agree with the RAD that the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning in (of) deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD." [32] In this particular case. The Appellant writes that "I had not contacted my family in Somalia to obtain support letters before my refugee hearing because I thought that the evidence I had would be sufficient. After my refusal, I contacted my mother and asked her or other family members to write a letter of support." [33] In other words, the Appellant is attempting to "tune up" the deficiencies in his case before the RPD, exactly what Justice Annis wrote about above. The Appellant was represented by knowledgeable counsel. The Appellant was on notice from his BOC, which clearly advises the claimant to provide the RPD with any documents which may support a claim. The RAD is not meant to be a "second kick at the can" in order for an Appellant to make up for his initial deficiencies. [34] The two documents could just as easily have been obtained and presented prior to the RPD decision being rendered. No reasonable explanation for failing to present these documents to the RPD has been offered. Consequently, I find that the two documents fail the test of section 110(4) and are therefore not allowed as evidence. [35] The RAD will not admit the affidavit or the letter since they do not meet the requirements of subsection 110(4). [36] The RAD finds that there is no basis to hold an oral hearing under the provisions of subsection 110(6) since there are no new documents admitted in evidence. The Arguments [37] The Appellant presented no argument of errors on the part of the RPD. [38] Section 110(1) of the IRPA lays out the conditions under which a claimant may appeal a decision of the RPD. "110. (1) Subject to subsections (1.1) and (2), a person or the Minister 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." [39] Rule 3 of the RAD speaking to the issue reads as follows in section (3)(g): (3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (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 Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, (iv) the decision the appellant wants the Division to make, and (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held. [40] The Appellant's Memorandum does not speak to any errors in fact or in law that the RPD has made. The Memorandum only addresses potentially new evidence, which has been rejected by the RAD due to that evidence being non-compliant with IRPA section 110(4). As no new evidence has been accepted, and no errors of fact or law or mixed fact and law have been alleged, I find that this Appellant has failed to establish his identity with credible and trustworthy evidence. Without establishing his identity, he cannot be accepted as a refugee. Disposition [41] The RAD has found that the RPD decision will stand. CONCLUSION [42] Pursuant to section 111(1)(a) of the 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. (signed) "David Lowe" David Lowe June 2, 2017 Date 1 Exhibit P-2, Appellant's Record at pages 18-29. 2 Immigration and Refugee Protection Act (IRPA). 3 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14 - 18. 5 Huruglica, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 9 Refugee Appeal Division Rules, section 3(3)(g)(iii). 10 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, July 22, 2015, 2015 FC 895, para. 19. 11 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 12 Singh, 2016 FCA 96, para. 54. 13 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 14 Singh, 2016 FCA 96, para. 64. 15 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 16 Ibid, Raza, paras. 13-15. 17 Singh, 2016 FCA 96, para. 64. 18 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 19 Singh, 2016 FCA 96, para. 48. 20 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15), Gleeson, January 8, 2016, 2016 FC 26. 21 Singh, FCA, para. 54. 22 Abdullahi, Fadumo Sharif v. M.C.I. (F.C., no. IMM-3447-15), Annis, March 3, 2016, 2016 FC 260. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-01677