TB4-07115

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 : TB4-07115 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 8, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Sarah L. Boyd 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 and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Iran, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be a Convention refugee or to refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he is a convert from Islam to Christianity and that the Iranian authorities seek to punish him for this reason. [4] The Appellant's application for refugee protection was heard on November 6, 2013 and February 14, 2014. By a decision of July 18, 2014, the RPD rejected the claim on the basis of credibility, citing several apparent contradictions and inconsistencies within the Appellant's evidence. [5] The Appellant submits that the RPD erred in basing its global credibility finding on peripheral issues, on finding inconsistencies where there were none, and on finding that the Appellant failed to produce requested documents when in fact there was no such request. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that an Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for an Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.2 [8] 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, or is immaterial to the issues to be considered by the RAD, it would make little sense to admit such document, even if it meets the test in Section 110(4). [9] The RAD has, in almost all appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.3 While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). The Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.4 [10] In Iyamuremye5, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA. Subsequently, in Ghannadi,6 the Court held that the RAD should consider the factors in Raza, but noted that these are merely considerations to be taken into account and not necessarily determinative of admissibility. Most recently, the Court, in Singh,7 found that the factors in Raza are based specifically on the language of Section 113(a) and are not transferable in the context of an appeal before the RAD. The Court found that it was unreasonable for the RAD to strictly apply the Raza factors without distinguishing its own role from that of a Pre-Removal Risk Assessment (PRRA) officer who is bound by Section 113(a). [11] In Singh, the Court wrote that: ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.8 [12] The Court also held that the "main issue is whether the evidence 'was not reasonably available, or that the person could not reasonably (or normally, according to the French version) have been expected in the circumstances to have presented'."9 [13] The Court did not discuss Iyamuremye or Ghannadi in its analysis of Sections 110(4) and 113(a). It did, however, certify the following question: "In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c. 27 apply to its subsection 110(4)?" [14] While the certified question has not yet been answered, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. While it may be inappropriate to strictly apply the factors in Raza, given that they are not specific to Section 110(4) and were not crafted for use in an appellate process, the RAD's consideration of new evidence cannot end with the application of the test in Section 110(4). To limit its analysis to that provision would be to ignore other provisions of IRPA-such as Sections 162(2) and 171(a.3)-as well as established jurisprudence based on statutory provisions almost identical to Section 110(4). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [15] The RAD presumes that Parliament, in creating Section 110(4), was well aware that this provision is almost identical in wording to Section 113(a)-which provides a strong indication that Parliament intended the test from Raza to be used by the RAD.10 [16] The RAD will therefore undertake an analysis of any proposed new evidence, not only for its timeliness, which is largely the focus of Section 110(4), but also for its evidentiary value. In doing so, the RAD will look to the factors in Raza but will not be strictly bound by them and, in applying any Raza factors, must distinguish its own role from that of a PRRA officer. [17] Section 171(a.3) of 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 and trustworthiness of proposed new evidence. [18] While IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.11 Apart from the support from the case law, it would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of 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." [19] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [20] The RAD will also consider whether the proposed new evidence is material. In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [21] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,12 and the officer has no power to reconsider or set aside the RPD's decision. A PRRA will in most cases take place a year or more after the RPD's decision.13 In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. [22] However, as the Court noted in Singh, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The RAD appeal is meant to be decided within four or five months of the RPD's decision. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. It is of paramount importance that the RAD may look only to admissible new evidence when considering whether to hold a hearing under Section 110(6).14 [23] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD would apply the materiality factor as set out in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. Further, the RAD is not asking-as the PRRA officer is under Raza-whether the RPD decision would have been different. The RAD is considering whether the RAD thinks the determination should have been different or whether the RPD decision was in error. [24] For example, it is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations, the RPD is not required to go further to consider the evidence of persecution.15 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality. [25] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. While the PRRA officer is required to focus on a single issue-risk to the applicant-the RAD is required to consider both, whether the RPD decision is in error and, after having reviewed all of the evidence, whether the Appellant is a protected person. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [26] For these reasons, the RAD will apply the following factors to evidence that passes the test in Section 110(4). (a) The RAD will consider whether the proposed new evidence is credible and trustworthy. (b) The RAD will assess the relevance of the evidence-whether it is capable, together with the other evidence in the record (including other admissible new evidence) of proving or disproving a fact at issue in either the refugee claim or the appeal.16 (c) The RAD will determine whether the evidence is material, in the sense that it would be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of IRPA. [27] If the proposed new evidence does not meet each of the factors above, the RAD may choose not to admit it. These factors, however, are not exhaustive, as the RAD may consider other factors as appropriate in the circumstances. [28] The Appellant's proposed new evidence consists of the following: (a) The Appellant's affidavit of August 23, 2014;17 (b) Documents about the Iranian educational system, including material dated April 1, 2013,18 and an undated Wikipedia entry;19 (c) A translated copy of the Appellant's educational degrees;20 and (d) Documents relating to the Appellant's business in Iran.21 [29] These documents may or may not meet the requirements of Section 110(4). It is not necessary for the RAD to assess whether they meet the statutory test for new evidence. Even if these documents were admissible as new evidence under Section 110(4), the RAD would reject them because they are not material. The documents relate to peripheral issues in the Appellant's refugee claim. For the reasons set out below, the RAD finds that the RPD was wrong to base its general credibility finding on these peripheral issues. As the RPD's findings on these issues were wrong on their face, there is no reason for the RAD to admit or consider new evidence which serves only to rebut the RPD's flawed findings. Further, the evidence can, at best, prove only that the Appellant was credible on peripheral matters, and this does not assist the RAD in disposing of his appeal. [30] The Appellant's proposed new evidence is not admissible in this appeal. Application for an Oral Hearing [31] The Appellant asks that an oral hearing be held, pursuant to Section 110(6) of IRPA. He submits that such a hearing is required because the RPD wrongly made negative credibility findings, some of which are proved wrong by new evidence, and others which are unsupportable for other reasons. As credibility was the central issue in the RPD's decision, the reversal of any one credibility finding might "tip the balance towards believing the claimant on the other points, which could be determinative of the claim."22 [32] Section 110(3) of IRPA provides that: Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. [33] Section 110(4) sets out requirements for new evidence: 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. [34] Section 110(6), upon which the Appellant relies, provides that: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. (emphasis added) [35] The RAD has consistently understood the phrase "documentary evidence referred to in subsection (3)" in relation to Section 110(4). That is, the RAD has interpreted Section 110(6) as allowing a hearing if the Appellant has submitted new evidence, as defined by Section 110(4). Reading Section 110(3), (4), and (6) together, the RAD has concluded that it must not hold an oral hearing unless there is new (Section110(4)) evidence, in which case the RAD may hold a hearing if that new evidence meets the requirements of Section 110(6). [36] The Appellant urges the RAD to accept a broader interpretation of Section 110(6). He argues that "documentary evidence" could also be understood to refer to "the record of the proceedings of the Refugee Protection Division," a phrase which also appears in subsection (3). In his submission, the RAD's jurisdiction would be seriously fettered if it restricted oral hearings to new evidence; for example, if the RAD was not satisfied by the RPD's credibility findings, but was also not satisfied that they were wrong, it could not hold an oral hearing if it made new evidence a requisite for such a hearing. The Appellant argues further that the principles set out by the Supreme Court, in Singh, require the RAD to hold a hearing where serious questions of credibility arise.23 [37] The RAD cannot accept this argument. First, the phrase "documentary evidence" in Section 110(6) clearly mirrors identical wording in subsection (3). The Appellant invites the RAD to understand the Section 110(6) reference to "documentary evidence" to include "the record of the proceedings of the Refugee Protection Division" in subsection (3), but a plain reading of Section 110(6) does not lead the RAD to this conclusion. [38] Second, the language of subsection (3) itself does not support the Appellant's argument. That subsection holds that the RAD must proceed without a hearing, on the basis of the record of the RPD proceedings. It would be difficult to nevertheless conclude that the RAD may hold a hearing to consider evidence already in the RPD record. [39] Third, the Appellant's argument here does not consider Section 111 of IRPA, which provides that: (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. (emphasis added) [40] The RAD may only refer a matter back to the RPD if it cannot confirm the RPD's decision, or set it aside and substitute its own determination, without hearing evidence that was presented to the RPD. In the RAD's view, this provision makes clear that the RAD is not to rehear evidence in the RPD's record. When Section 110(6) is considered in the light of Section 111, it cannot be understood to allow an oral hearing to consider evidence that was part of the RPD's record. [41] Fourth, the RAD does not read the decision of the Supreme Court in Singh to require a RAD hearing. In that decision, the Court wrote: I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806-08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.24 [42] In this matter, credibility was in fact determined on the basis of an oral hearing before the RPD. While the RAD may, as discussed below, show some deference to credibility findings of the lower tribunal, it nevertheless has a remedy available if it determines that such findings are wrong. The RAD can refer the matter back to the RPD, where the Appellant will receive another oral hearing. The concern of the Supreme Court-that a tribunal might make "significant findings of credibility solely on the basis of written submissions"-is not a concern here. The RPD's findings are based on an oral hearing; if the RAD determines those findings to be wrong, it can set aside the RPD's decision and either substitute its own positive determination or refer the matter back to the RPD for another oral hearing. The principles in Singh do not require the RAD to accept the Appellant's proposed broad interpretation of Section 110(6). [43] Finally, the RAD notes that the Federal Court recently commented on this very issue. In discussing the RAD's approach to evaluating new evidence-that is, evidence presented under Section 110(4)-the Court noted the importance of such evidence to an appeal: However, in considering whether to grant a hearing, the RAD may only look to admissible evidence. Given this requirement, the approach taken to applying admissibility criteria - either strictly or leniently - is of paramount importance because when a claimant, who is deserving of a hearing, is refused one, serious issues of procedural equity are potentially implicated. In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible.25 [44] For all of these reasons, the RAD cannot accept the Appellant's invitation to apply Section 110(6) so broadly as to order an oral hearing to consider evidence in the RPD's record. The reference to "documentary evidence" in Section 110(6) must be understood, in the context of this appeal, as referring to new evidence presented by the Appellant under Section 110(4). As the RAD has not accepted the Appellant's proposed new evidence, it must proceed without an oral hearing. Role of the RAD What is the role of the RAD in considering an appeal against a decision of the RPD? [45] While 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. [46] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [47] In Iyamuremye, the Court found itself: ...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law....26 [48] The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".27 [49] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.28 It held that the RAD is not to undertake a process of judicial review, but rather must perform its own assessments of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error".29 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [50] In Malhotra,30 issued after Alvarez, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [51] More recently the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.31 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.32 [52] While the Court had endorsed the standard of reasonableness in Iyamuremye and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. [53] The Appellant argues "on the authority of Huruglica, that the standard of review is correctness and that the RAD is essentially to conduct a de novo review."33 [54] In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the RPD's findings only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. The RPD's Findings [55] The Appellant's refugee claim was based on his alleged conversion to Christianity in Iran and the continued practice of this faith in Canada. It is unfortunate that the RPD's decision left the core of his claim almost untouched. Instead, the panel focused on other matters-such as whether he holds a Bachelor's or Master's degree, whether he attempted to recover his passport from a smuggler, the precise date on which he left Iran for Turkey, whether he obtained the photo for his passport, whether he knew that his flight stopped in XXXX on its way to Canada, and whether he completely filled out the forms for a previous application to immigrate to Canada. [56] The RPD did write that it "had concerns with the claimant's evidence... on issues going to the heart of his claim, including his involvement with Christianity in Iran, his being wanted by the Sepah for this, and his fleeing from Iran to Canada."34 However, the panel simply does not detail the basis for its concerns with the Appellant's evidence about his involvement with Christianity in Iran, which is indeed at the heart of the claim. It is not sufficient for the RPD to simply express, in general terms, that it had concerns, without explaining those concerns. [57] It may even be that the RPD had credibility concerns it did not disclose in its reasons. After making some general statements about credibility, the RPD wrote that: "In short, the panel did not find the claimant to be a credible witness and found his story as a whole lacked the ring of truth. Some of the panel's concerns are outlined below."35 This could be understood to mean that the RPD's decision was also based on other credibility concerns which do not appear in its reasons. If true, this would be profoundly unfair to the Appellant, whose claim may have been rejected for reasons that have not been revealed to him and which he therefore cannot contest on appeal. If the RPD had other credibility concerns which factored into its general credibility finding, it was obligated to set out these deficiencies in its reasons. [58] Some of the credibility concerns set out in the reasons are themselves deficient. The RPD spent a significant amount of time and effort considering the Appellant's education. There was some confusion about whether the Appellant finished his Bachelor's degree in 1999 or in 2010, and the panel drew a negative inference from what it found to be inconsistent testimony. Although the RPD wrote that the panel confirmed that the error was not made by the hearing room interpreter, but by the claimant, this is not accurate. [59] The RAD has reviewed a transcript of the relevant portion of the hearing. There was a lengthy exchange about the Appellant's graduation dates, with some confusion as the dates were changed from the Persian to the Gregorian calendar. The Appellant testified that he finished a post-high school diploma in 1992 and his Bachelor's degree in 2010, and he worked for a year between the two. When the panel asked the Appellant if there was an 18-year window between the diplomas, the interpreter interjected to note that "there's a bit of confusion with the date." The RPD asked if "the wrong date was given by you or the claimant", and the interpreter replied, "No, I think that the claimant was confused, yeah, so it's 1999." The RPD asked, apparently of the Appellant, "Why were you initially giving that other date?" but the interpreter responded, "I think, I believe that the date was given that I converted to 2010 but the new date, it makes more sense and I believe that the gap, the claimant noticed that and told me that that's 1999."36 This confusion was simply not a sufficient basis for the RPD to make a negative credibility finding, particularly as the Appellant presented a diploma corresponding to the alleged 1992 date, and as in any event, this was a matter very peripheral to the Appellant's refugee claim. [60] The RPD also found fault with the Appellant's evidence about the level of education he completed in Iran. The Appellant submitted his Master's degree, issued in 2000; the RPD found this inconsistent with the Appellant's testimony that his highest degree was a Bachelor's. The RPD acknowledged that this matter was "peripheral to the basis of the claim," but held it against the Appellant anyway, noting that "no documents were provided related to the claimant's work in Iran or his operating a business there, which is more recent and more relevant as it was allegedly through the claimant's work that he met the individual who introduced him to Christianity."37 [61] This analysis is problematic. First, it ignores the fact that the hearing room interpreter was unsure of the proper terminology for the Appellant's post-secondary degrees. While the RPD characterized the first degree as "post high school" and the second as a Bachelor's, it did not note the interpreter's apparent difficulty here: I may Madame, I ask there is a, some sort of a title, you may ask what that means in Farsi, I'm not familiar with that particular, it's not a Bachelor's but it's a different kind of word that I'm not familiar with the Claimant, he told me this is a post, he told you this is a post-high school diploma.38 [62] The panel then went on to describe the document as a Bachelor's degree, based on the translation of the document, but the interpreter objected, "That's not my reading of it." [63] The RPD also drew a negative inference from the absence of documents relating to the Appellant's employment. The panel wrote that these documents were discussed in the hearing, and therefore the Appellant was expected to provide these along with other post-hearing documents. The RPD wrote that, while other documents were provided post-hearing, "no explanation was provided for the absence of [employment] documents" in counsel's cover letter. [64] In fact, these documents were not requested of the Appellant during the hearing. The Appellant's counsel agreed to provide corrected translations of the educational documents, and did so. Counsel also told the RPD during the hearing that the Appellant had provided counsel with untranslated documents about his company, which counsel did not file as evidence. The panel did not ask for those documents. In fact, it is difficult to see how documents about the Appellant's business are terribly relevant to the question of whether he converted to Christianity and is therefore at risk of persecution. The RPD attempted to make this connection by claiming that the Appellant's employment documents were relevant because he claimed his conversion began through a workplace relationship, but, in the RAD's view, this hardly requires the production of documents establishing that he operated a business. [65] There are further problems with the RPD's credibility findings. The Appellant testified that he had a genuine passport in Iran, but he gave it to the smuggler who helped him leave the country. The smuggler was to give the passport to the Appellant's uncle in Iran. The RPD drew a negative inference from the absence of this document and from the Appellant's lack of efforts to retrieve it. This is difficult to understand. The Appellant provided the RPD with ample identity documentation, and the RPD had no difficulty in finding that he had established his identity. The RPD concluded that "it is reasonable that he would want [the passport] returned rather than remain in the hands of a smuggler, where it could possibly be used illegally or if caught could put the claimant at further risk." This reasoning is not clear. The Appellant made it to Canada without the passport; he already feared for his life in Iran. He had documentation to prove his identity, and he could not reasonably have anticipated that the RPD would want to see his passport to study his prior travel history. The RPD erred by making a negative finding with respect to the passport. [66] The RPD also made a negative credibility finding with respect to the dates in which the authorities took his wife into custody while seeking to detain him as well. A letter from the Appellant's wife placed this incident on XXXX XXXX, 2013, while the Appellant stated that this incident took place on Friday, XXXX XXXX, 2013. In fact, XXXX XXXX, 2013 was a Thursday, while XXXX XXXX, 2013 was a Friday. As such, the Appellant got the day of the week right but the date wrong. The RPD, which also had other concerns with the Appellant's testimony about this raid, made a negative credibility finding. [67] In the RAD's view, this finding was microscopic. There is clearly an inconsistency, but it is a minor one and not sufficient basis for a negative credibility finding. Similarly, the RPD erred when it found that the Appellant should have better known the path of his flight to Canada. He testified that he flew from XXXX to XXXX, from XXXX to XXXX XXXX, and from there to what he thought was another city in XXXX.39 He completed an immigration form in support of his refugee claim, where he listed the last stop as "unknown." From this, the RPD somehow drew the conclusion that the Appellant was "intentionally obfuscating his travel history" and drew a negative inference. The panel speculated that "during flights they would at some point have mentioned that the flight was departing a certain location, travelling to a certain location, or making its descent at a certain location", and rejected the Appellant's explanation that he did not understand the language used, as he "might reasonably have heard a city name being announced", even though he claimed he was sleeping at the time.40 This was an error. [68] The RPD also erred in its consideration of the Appellant's obtaining of a false passport in Turkey. The Appellant testified that he was not involved in arranging his travels out of Turkey, but he later stated that he had his photograph taken for the false passport. The RPD drew a negative inference from this evidence. The RAD has reviewed the transcript here; it is very difficult to see any real inconsistency in the Appellant's evidence. However, even if there was an inconsistency-that the Appellant arranged for his photo to be taken, after stating that he "wasn't involved in any of these issues" relating to travel arrangements41-this was a very minor deficiency indeed. [69] The RPD also erred in its treatment of the Appellant's previous application-seventeen years prior-to enter Canada. He indicated at the port of entry that he had previously completed a permanent resident application for Canada. However, he testified to the RPD that he did not fill out the forms; the panel then questioned why the immigration notes indicate that he completed the application and gave it to his sister. The RPD found the Appellant's testimony to be "shifting" and made a negative credibility finding. It is difficult to see how the matter of whether the Appellant actually completed immigration forms seventeen years ago is relevant to his credibility. The Appellant did not conceal his previous attempt to enter Canada and, in fact, provided this information at the port of entry. Whether or not he completed this process is simply not relevant to his refugee claim. [70] It is not necessary for the RAD to deal with the RPD's other credibility findings. The RPD danced around the core of the Appellant's refugee claim, while microscopically examining and vigorously attacking his evidence on peripheral matters. The RPD's finding of a general lack of credibility rests on these errors and therefore must be set aside. [71] The Appellant asks the RAD to substitute its own determination that he is a Convention refugee. The RAD cannot do that. Although the RPD made errors in its credibility determination, there remain areas of credibility concern. As noted by the RPD, the Appellant alleged in his hearing that the authorities continued to visit his home, seeking him, after he left for Canada; although he knew this information before he completed his claim, he did not include it in his Basis of Claim form. Although the XXXX, 2013 raid was allegedly intended to capture him, he testified that he was told his wife had been detained, but did not recall that he also learned, for the first time, that the authorities were seeking him in the raid. [72] While the RPD's decision must be set aside, the RAD is unable to substitute its own determination, and this matter must therefore be reheard by the RPD. CONCLUSION [73] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act, the Refugee Appeal Division refers the matter to the Refugee Protection Division for redetermination by a differently-constituted panel. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld December 9, 2014 Date 1 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected"; see Singh v. M.C.I., 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, [2008] 1 F.C.R. 4 Ibid, Raza, paras. 13-15. 5 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 45. 6 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014; 2014 FC 879, paras 17-18. 7 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014; 2014 FC 1022, para 56. 8 Singh, para. 55. 9 Singh, para. 58. 10 The presumption of consistent expression holds that "it is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings." Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), at pp. 214-15: 11 There is a great deal of support for this view. "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 Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 12 Cupid, Keturah Laverne v. M.C.I. (F.C., no., IMM-1737-06), Snider, February 16, 2007; 2007 FC 176, paras. 4, 25, and 26. 13 IRPA, s 112(b.1). 14 Singh, para. 53. 15 Liu, Yanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007; 2007 FC 831, para. 18. 16 See Raza at para. 13.4; also David Paciocco & Lee Stuesser, The Law of Evidence, 3d ed. (Irwin Law, 2002) at 24: "Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence." 17 Appellant's Record, p. 91. 18 Appellant's Record, p. 98. 19 Appellant's Record, p. 124. 20 Appellant's Record, p. 141. 21 Appellant's Record, p. 146. 22 Appellant's Record, p. 417, Memorandum, para. 4. 23 Singh (Harbhajan): v. M.E.I., [1985] 1 S.C.R. 177, 50 N.R. 1, 17 D.L.R. (4th) 422, 12 Admin. L.R. 137. 24 Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177, para. 59. 25 Singh, Parminder v. M.C.I. (F.C., no., IMM-6711-13), Gagné, 28 October 2014; 2014 FC 1022, para 53, emphasis added. 26 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, para. 2 27 Iyamuremye, para. 3. 28 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 29 Alvarez, para. 33. 30 Malhotra, Sunil et al. v. M.C.I. (F.C., No. IMM-6899-13) Bédard, August 1, 2014; 2014 FC 768. 31 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 32 Huruglica, para. 45. 33 Appellant's Record, p. 419, Memorandum, para. 10. 34 RPD's Reasons, para. 47. 35 RPD's Reasons, para. 11. 36 Appellant's Record, pp. 53-54, Transcript. 37 RPD's Reasons, paras. 25-26. 38 Appellant's Record, p. 55, Transcript, p. 34. 39 Appellant's Record, p. 41, Transcript, p. 20. 40 RPD's Reasons, paras. 39-40. 41 Appellant's Record, Transcript, p. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07115