MB5-00899

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. / No de dossier de la SAR : MB5-00899 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/heard at Montréal, Quebec Appel instruit à Date of decision April 21, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Nicole Ranger Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, is a citizen of the Democratic Republic of the Congo (DRC) and is appealing against the decision of the Refugee Protection Division (RPD). He is arguing that the RPD erred in analyzing his credibility, in particular, by breaching its duty of procedural fairness. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form), which he signed on January 15, 2014, the appellant states that, if he returned to his country, he believes that XXXX XXXX, a XXXX, would do everything he could to kill him and make him disappear. He also states that, in the past, he was arrested, detained and tortured by soldiers and police officers who were acting on the orders of this XXXX. [4] In his BOC Form, the appellant states that the XXXX was targeting him because he continued to meet with XXXX XXXX after she married him, despite the fact that, in the past, Ms. XXXX and the claimant had a romantic relationship.1 [5] In addition to his BOC Form, the appellant submitted into evidence before the RPD a few personal documents and a number of documents regarding the situation in the DRC.2 [6] The Minister of Citizenship and Immigration Canada (the Minister) intervened in this matter. He produced evidence3 and stated that the claimant's credibility was at issue. The Minister also indicated that he was reserving the right to intervene and apply an exclusion under Article 1E of the Refugee Convention, as he was of the opinion that there are reasons to believe that the claimant had status in Chile.4 [7] On July 2, 2014, after being informed by the Chilean authorities that the claimant had no status in Chile and that his temporary residence permit for this country had expired, the Minister informed the RPD that he wanted to withdraw his notice of intention to intervene in this claim for refugee protection.5 B. RPD decision [8] The hearing before the RPD was held on May 22 and June 25, 2014, and the decision to reject the refugee protection claim was made on August 26, 2014.6 [9] The RPD found that the claimant's account was not credible.7 [10] It first referred to an article that appeared in a Chilean newspaper that states that the claimant had obtained refugee status in Chile and that he had been living there safely for the last three years with his spouse and two sons. In his testimony to the RPD, the claimant stated that the content of this article was fabricated. After pointing out that the email address that appears in this article is the same as the one used by the claimant in his temporary resident visa application for Canada and that it does not have any evidence corroborating the claimant's allegation that he asked for the article to be retracted, the RPD found that his overall credibility was undermined.8 [11] It also considered it implausible that, after being arrested, detained and tortured in 2009 on Mr. XXXX's orders, the claimant would risk suffering similar treatment by continuing to maintain a relationship with the woman who had become the spouse of his agent of persecution.9 [12] The RPD also did not believe that guards at the detention centre where he was allegedly detained for three months in 2013 would risk helping him escape when he was reportedly being detained at the request of a high-ranking government representative.10 [13] In light of the conditions in detention centres in the DRC, the RPD also did not believe that, after having been detained and tortured for three months in such a centre, the claimant was able to board an airplane and leave his country 24 hours after XXXX XXXX XXXX XXXX XXXX. Finally, it considered the claimant's account regarding the period that he allegedly spent in detention to be implausible.11 [14] The RPD also did not believe that the claimant maintained a relationship with the woman he described as his former lover. Here is what it writes in this regard: [28] Given that the claimant's relationship with XXXX was central to his claim, the panel would have reasonably expected the claimant to have provided evidence to corroborate his relationship with her such as letters, family photos or even a marriage certificate, as the claimant stated in his narrative that he had been asked to annul his marriage with XXXX. The panel notes that the claimant was in contact with his own family and friends in the DRC as demonstrated by the letters, photos and documents which he received. The panel therefore draws a negative inference as it relates to the credibility of the claim and the claimant's relationship with XXXX. The panel is not, on a balance of probabilities, persuaded that the claimant was involved in a relationship with XXXX. 12 [15] The RPD finally considered that the claimant's subjective fear was undermined by the fact that he did not claim refugee protection at the first opportunity, that is, when he was in Morocco.13 C. Grounds of appeal and remedy sought [16] In his memorandum, the appellant states that the RPD erred in analyzing his credibility, in particular, by breaching its duty of procedural fairness.14 [17] The appellant first criticizes the RPD for breaching its duty of procedural fairness by not questioning him on his relationship with XXXX and by not asking him to explain the circumstances surrounding his attendance at XXXX's daughter's birthday. The appellant states that the RPD undermined his credibility without raising major concerns and without giving him the chance to address questions critical to his credibility.15 [18] The appellant then criticizes the RPD for erring in its interpretation of a central fact, that is, it believed that he had been married to XXXX when this was not the case. He states that this misinterpretation of the facts unduly influenced the RPD's decision.16 [19] The appellant also criticizes the RPD for making implausibility findings on the basis of conjectures, in particular regarding the content of an article that appeared in Chile, regarding his relationship with XXXX, and regarding his detention and XXXX XXXX XXXX XXXX XXXX between XXXX and XXXX 2013. The appellant argues that this constitutes an error as it has been well established by the case law that an administrative tribunal cannot draw such conclusions on the basis of speculation or conjectures.17 [20] The appellant also states that the RPD undermined his credibility by focusing on the fact that he had been unable to produce sufficient evidence corroborating his relationship with XXXX. He also states that the RPD erred by attributing little weight to the letters that he submitted into evidence.18 [21] The appellant finally states that the RPD erred when it assessed his subjective fear, particularly because it did not evaluate whether Morocco could provide him with adequate protection. He also indicates that he stayed in this country for only four days and that he then followed the instructions of his friends, who had planned his trip.19 [22] The appellant is asking the RAD to allow his appeal and grant him refugee status, or, alternatively, to refer the matter to a differently constituted panel of the RPD.20 IV. ADMISSIBILITY OF THE DOCUMENTS PRESENTED ON APPEAL A. The appellant filed documents on appeal [23] An affidavit21 and the appellant's memorandum indicate that the appellant intends to present new documents on appeal.22 B. Test for admissibility [24] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present to the RAD 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. It should be noted that the time limit referred to in subsection 110(4) is the rejection of the appellant's claim for refugee protection, not the hearing before the RPD. After the RPD hearing but before the decision takes effect, a party who wants to provide a document as evidence may make an application to that effect.23 [25] In Iyamuremye, the Federal Court, discussing the Federal Court of Appeal's decision in Raza, has this to say: This case law established a legal meaning to the general application of the words "new evidence," which, in the Court's view, is consistent with Parliament's clear intention with regard to subsection 110(4) to require that the RAD review the RPD's decision as is, unless new, credible and relevant evidence arose after the rejection, that might have affected the outcome of the RPD hearing if that evidence had been presented to it. 24 [26] In Ghannadi, the Federal Court states that the RAD must consider the tests set out in Raza when analyzing the admissibility of documents presented on appeal.25 [27] That being said, in Parminder Singh, the Federal Court stresses the importance of distinguishing the role of a PRRA officer from that of a RAD member when it comes to interpreting subsection 110(4) of the IRPA in relation to paragraph 113(a) of the IRPA: [51] The language of paragraph 113(a) is similar to that of subsection 110(4). The latter provision sets out that the RAD can only declare evidence admissible if it arose after the RPD's rejection of the claim or if it was not reasonably available or if the person could not reasonably have been expected in the circumstances to have presented it (unlike for paragraph 113(a), the French version of subsection 110(4) does not use "reasonably have been expected" but rather the equivalent of "normally have been expected"). The RAD however considers this evidence in a very different light than does the PRRA officer; it is doing so in an appellate review of the correctness of the RPD's determination. [52] I recognize that an appeal to the RAD is mostly intended as a "paper-based" appeal. [53] 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.26 [28] In Bhata, the Federal Court states that the salient point for consideration by the RAD when deciding on the admissibility of evidence presented to it on appeal is whether or not it was available, rather than whether or not the information it contains existed prior to the hearing before the RPD.27 [29] In Sow, the Federal Court reiterates its analysis that an appeal to the RAD is not the equivalent of a PRRA. It states that the reasons for strictly limiting the receipt of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal to the RAD, particularly given the truncated timeline for completing the underlying refugee determination proceeding before the RPD.28 [30] I am of the opinion that, to the criteria specifically set out in subsection 110(4) of the IRPA, which refer explicitly to the time when the evidence arose or when the facts to which it refers took place, other criteria must be considered regarding the value of the evidence submitted, that is, its reliability29 and its relevance.30 [31] Finally, the Refugee Appeal Division Rules (RAD Rules) stipulate that the appeal record must contain, among other things, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding how that evidence meets the requirements of that subsection and how it relates to the appellant.31 C. RAD decision regarding the admissibility of the documents in question [32] In this case, the appellant signed his BOC Form on January 15, 2014. The hearing before the RPD was held on May 22 and June 25, 2014. The RPD's decision was rendered on August 26, 2014. [33] The appellant's memorandum indicates that the documents that he intends to file on appeal were not part of his RPD record.32 a) Photographs of the appellant and XXXX XXXX [34] The appeal record includes three photographs.33 In these photographs, the faces of two people identified as XXXX and XXXX are circled. These photographs do not contain any information regarding the location and the date they were taken. The appellant's memorandum indicates that these photographs attest to his relationship with XXXX and support his credibility. I am of the opinion that there is nothing in these photographs that allows for the conclusion that there was a romantic relationship between the two individuals identified as XXXX and XXXX. As a result, I do not see how these photographs are relevant. [35] Consequently, I conclude that these photographs are not admissible on appeal. b) Letter dated XXXX XXXX, 2014 [36] The appeal record includes a letter dated XXXX XXXX, 2014, from Santiago, Chile.34 This letter certifies that the appellant worked for the company XXXX XXXX from XXXX XXXX, 2009, to XXXX XXXX, 2010. The appellant's memorandum indicates that this letter supports his credibility and confirms that the Chilean newspaper article was fabricated. I absolutely do not see how this letter supports the appellant's credibility or that the Chilean newspaper article was fabricated. [37] Consequently, I am of the opinion that this letter is not admissible on appeal. c) Webpage from a newspaper website [38] The appeal record includes a webpage from the "XXXX" website.35 In his memorandum, the appellant states that this document is being filed in response to those filed by the Minister, namely, the article titled XXXX XXXX XXXX XXXX XXXX XXXX XXXX [XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX], and that this document can consequently be filed on the appeal record under subsection 110(5) of the IRPA. I am of the opinion that the webpage in question cannot be admissible under subsection 110(5) of the IRPA because the Minister did not file any evidence as part of this appeal. Subsection 110(5) of the IRPA applies only when the Minister has filed evidence on appeal, which is not the case here. Futhermore, I do not see how this document is relevant given that an article can be taken down from a website for a number of reasons, and not necessarily those cited by the appellant. Finally, at his hearing before the RPD, the appellant made a statement that is consistent with what he is trying to establish with this webpage from the newspaper website.36 [39] Consequently, I am of the opinion that this document is not admissible on appeal. V. HOLDING A HEARING BEFORE THE RAD A. The appellant did not formally request that a hearing be held before the RAD [40] The RAD Rules provide that the record of the person who is the subject of the appeal must contain, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the RAD should hold a hearing, if the appellant is requesting that a hearing be held.37 [41] In his affidavit38 and in his memorandum, the appellant does not formally request that a hearing be held before the RAD. However, while referring to holding a hearing before the RAD under subsection 110(6) of the IRPA, he states that it is in the interest of justice that his record be referred to the RPD for another panel member to hear his testimony and review his case.39 B. Test under subsection 110(6) of the IRPA [42] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. The RAD's decision on holding a hearing [43] In this case, I am of the opinion that the documents filed by the appellant are not admissible on appeal. [44] Consequently, there is no cause to hold a hearing. VI. APPROACH TO BE TAKEN IN THIS APPEAL [45] In his memorandum, referring to Federal Court decisions, the appellant states that the RAD must conduct a hybrid appeal, review all the aspects of the RPD's decision, and come to its own conclusion as to whether he is a Convention refugee or a person in need of protection.40 [46] In Djossou, Justice Martineau demonstrates that the approach then used by the RAD to determine its role in relation to that of the RPD was not an acceptable outcome in law.41 He is unequivocal: an appeal before the RAD is not a judicial review, as the RAD has much broader powers on appeal than those of a court of law sitting in judicial review,42 and he urges the RAD to consider the three options before it-true appeal, appeal de novo or hybrid appeal-with an open mind.43 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD until such time as the Federal Court of Appeal or even the Supreme Court of Canada has decided the issue definitively. He states that, in the meantime, the onus is on the RAD to review the IRPA and to adopt a new test based on an analysis that takes all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and the composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact or law and fact being also a possible option. 44 [47] In Aloulou, Justice LeBlanc states that respect for legislative intent weighs against treating appeals before the RAD as a form of judicial review and against developing a policy of deference, the effect of which would be to turn appeals before the RAD into pseudo-judicial reviews. He goes on to state that the RAD has a different purpose: it serves to rectify any error in law in the RPD's decision or any palpable and overriding error in the determination of the facts or the application of the law to the facts, assuming that it was correctly identified.45 [48] In Akuffo, Justice Gagné states that, when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions diverge within the Federal Court on the level of deference that is owed.46 In Sajad and Bui, Justice Shore states that the RAD owes a certain level of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.47 [49] Guided as much as possible by the decisions rendered to date by the Federal Court, I am of the opinion that, in this case, while conducting an independent review of the record, I must show a measure of deference to the RPD's findings concerning the appellant's credibility, although similar deference does not apply to the question of procedural fairness. In fact, when an argument is raised regarding a lack of procedural fairness, one must simply determine whether the breach of procedural fairness has been established. VII. ANALYSIS OF THE MERITS OF THE APPEAL [50] Having conducted an independent review of the record, I conclude that the RPD did not err in assessing the appellant's credibility. I am also of the opinion that the allegation of a breach of the principles of procedural fairness does not have merit. Here is why. A. Credibility assessment [51] It should be recalled that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application."48 The RPD is entitled to make findings based on implausibility, common sense and rationality.49 A lack of credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based. 50 [52] In my opinion, in this case, the RPD did not err by finding that the claimant was not credible. [53] In this regard, there are three aspects of the RPD's reasons for decision that seem particularly determinative: first, the implausibility identified by the RPD regarding the fact that, after he was arrested, detained and tortured in 2009 on Mr. XXXX's orders, the claimant risked suffering similar treatment by continuing to maintain a relationship with the woman who had become the spouse of his agent of persecution;51 then, the implausibility identified by the RPD regarding the fact that, after being detained and tortured for three months in a detention centre, the claimant was able to board an airplane and leave his country 24 hours after XXXX XXXX XXXX XXXX XXXX;52 and finally, the fact that the claimant did not provide any evidence corroborating the fact that he had maintained and pursued an intimate relationship with the woman who, in the past, had allegedly been his lover, but who had since become the spouse of his agent of persecution.53 [54] With regard to the implausibilities, it is true that there is reason to be prudent.54 However, I am of the opinion that, in this case, in light of all the evidence, the RPD could make the two implausibility findings identified in the previous paragraph. [55] First, I am of the opinion that it is in fact reasonable to conclude, in the context of the DRC, that to continue to maintain a relationship with the woman who had become the spouse of his agent of persecution after this man ordered his arrest and detention, and the fact that the appellant was tortured, is outside the realm of what is reasonably expected. [56] I am further of the opinion that it is also reasonable to conclude, in the context of the DRC, that to be able to board an airplane and leave his country 24 hours after XXXX XXXX XXXX XXXX XXXX where, for three months, the appellant was allegedly detained and where, over the first month, he was reportedly tortured every day with a whip, wire rope and batons is outside the realm of what is reasonably expected. [57] On this topic, I listened attentively to the testimony presented before the RPD. When asked to describe what was done to him, the appellant stated that he was struck with whips, batons and water hoses almost every day during the first month, that he was given only a small piece of bread to eat, that he had to personally remove with his own hands his excrement from the same place he was being detained, and that all of it was terrible.55 He also stated that, after leaving his prison, he had injuries to his feet and back and that, in Brazzaville, he had had to buy antibiotics. He stated that he was not as strong as he is today.56 [58] It is not necessary to be a doctor to understand that such treatment, if the appellant did indeed suffer it, would have had serious consequences on his physical and psychological health. However, in this case, there are no documents corroborating the appellant's statements. According to his statements, the appellant left the detention centre XXXX XXXX XXXX of XXXX XXXX, 2013, and arrived in Canada on XXXX XXXX, 2013. In the circumstances, I am of the opinion that one would expect him to then consult a doctor and a psychologist in order to corroborate his statements regarding the treatment that he allegedly suffered just before his arrival in Canada. It should be recalled that failure to file supporting documentation that it is reasonable to expect may have an impact on the refugee protection claimant's credibility.57 Rule 11 of the Refugee Protection Division Rules58 clearly indicates that refugee protection claimants are obligated to provide documents and other evidence supporting the refugee protection claim. The English version of this rule has been found to speak more directly than the French version and states, "The claimant must provide...".59 However, it must be remembered that, in French, writing in the present indicative suffices to express the imperative nature of a rule. Regardless, the point is that a lack of diligence by a person who does not try to obtain an important document that could have corroborated their testimony may undermine their credibility.60 [59] Finally, with regard to the appellant's failure to file a claim for refugee protection during his stay in Morocco, I am of the opinion that the arguments presented by his lawyer in the appeal memorandum cannot be retained. In fact, such a failure can compromise the appellant's credibility with regard to his subjective fear of being persecuted if he were to return to the DRC to live. On this point, it is clearly established that failure to immediately claim international protection can impugn the credibility of a person who is claiming refugee protection in Canada.61 When there is no convincing or reasonable explanation for the delay, not claiming refugee protection at the first opportunity may undermine the credibility of a refugee protection claimant.62 I am of the opinion that, in this case, the explanation that the appellant stayed in Morocco for only four days and that he was then following the instructions of his friends, who had planned his trip, is neither convincing nor reasonable. Although the appellant argued that the RPD erred when it assessed his subjective fear, particularly because it did not assess whether Morocco could provide him with adequate protection, I am of the opinion that the RPD did not have to conduct such an assessment. B. Principles of procedural fairness [60] Where procedural fairness is in issue, the proper approach is to ask whether the requirements of natural justice of the case have been met.63 In a claim for refugee protection before the RPD, procedural fairness ensures that the person claiming refugee protection understands the procedure, has a reasonable opportunity to tender any evidence to support their claim and has the opportunity to persuade the RPD that their claim is well founded.64 A breach of procedural fairness will not result in relief in each case. According to the case law, if it is apparent that the decision-maker would have reached the same decision notwithstanding a breach of procedural fairness, and no purpose would be achieved by referring the matter to the RPD for re-determination, the decision should stand.65 [61] I am of the opinion that the RPD did not breach its duty to respect the principles of natural justice and procedural fairness by deciding not to ask certain questions, so long as the appellant understood the procedure, had a reasonable opportunity to tender evidence in support of his claim and had the opportunity to persuade the RPD that his claim was well founded. It should be pointed out that the questioning at the hearing must bring out relevant information that will help the RPD make an informed decision. In such a context, it is not necessary to ask questions on all the claimant's allegations, specifically those in his BOC Form.66 [62] Nevertheless, in this case, during her questioning, the appellant's lawyer had the opportunity to ask the appellant questions, including questions regarding the credibility of his claim. Furthermore, she asked the appellant to explain his relationship with XXXX, which he did by stating that his relationship with XXXX was good and that, after he returned from Chile, they saw each other as friends, that she helped him with his XXXX XXXX contacts and that she married Mr. XXXX because he had agreed to help her father repay debts.67 Moreover, in her written submissions to the RPD, the appellant's lawyer never states that the RPD breached procedural fairness by not asking certain questions, specifically questions about his relationship with XXXX and his attendance at her daughter's birthday.68 [63] Having analyzed the situation realistically and practically, as a reasonable and right-minded person, by taking into account all the required information, I conclude that the appellant did not establish that the RPD breached a principle of procedural fairness. C. No credible basis for the claim [64] Acting as the RPD did in this case is, in my opinion, completely consistent with one of the objectives of the IRPA, that is, to establish fair and efficient procedures that will maintain the integrity of this system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.69 [65] I add that, under subsection 107(2) of the IRPA, the RPD certainly could have stated in its decision that there is no credible basis for the claim because the claimant did not file any credible or trustworthy evidence on which it could have made a favourable decision. VIII. CONCLUSION [66] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [67] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 21, 2015 Date IRB translation Original language: French 1 Basis of Claim Form, pages 23 and 31 to 37 of the Refugee Protection Division (RPD) record. 2 The list of documents is presented at pages 271 and 272 of the RPD record. The documents themselves are reproduced at pages 273 to 385 of the RPD record. 3 See the documents included in the written submissions and disclosures from counsel for the claimant at pages 149 to 251 and 254 to 273 of the RPD record. 4 Notice of intention to intervene, March 14, 2014, pages 87 to 89 of the RPD record. 5 Withdrawal of notice of intention to intervene from the intervening party, July 2, 2014, page 253 of the RPD record. 6 Notice of decision, page 1 of the RPD record. Although the reasons for the decision indicate that the hearing was held on May 26 and August 29, 2014, the hearing actually began on June 17, 2014, and not on May 26. Cf. Recording of the first part of the hearing before the RPD on June 17, 2014, 02:00 and 15:35. 7 RPD's reasons and decision, at paragraph 14, in French, pages 6 and 7, in English, page 16 of the RPD record. 8 Idem, at paragraphs 15, 16 and 17, in French, pages 7 and 8, in English, page 17 of the RPD record. 9 Idem, at paragraph 18, in French, page 8, in English, page 18 of the RPD record. 10 Idem, at paragraphs 19 and 20, in French, pages 8 and 9, in English, page 18 of the RPD record. 11 Idem, at paragraphs 21 to 24, in French, pages 9 and 10, in English, pages 18 and 19 of the RPD record. 12 Idem, at paragraph 28, in French, page 11, in English, page 20 of the RPD record. 13 Idem, at paragraphs 29 and 30, in French, page 11, in English, pages 20 and 21 of the RPD record. 14 Appellant's memorandum, October 22, 2014, pages 173 to 197 of the appeal record. 15 Idem, at paragraphs 23 to 28, pages 182 and 183 of the appeal record. 16 Idem, at paragraphs 29 to 35, pages 183 and 184 of the appeal record. 17 Idem, at paragraphs 36 to 59, pages 184 to 191 of the appeal record. 18 Idem, at paragraphs 60 to 69, pages 192 and 193 of the appeal record. 19 Idem, at paragraphs 70 to 73, pages 193, 194 and 195 of the appeal record. 20 Idem, page 197 of the appeal record. 21 Appellant's affidavit, October 21, 2014, pages 70 to 73 of the appeal record. 22 Appellant's memorandum, pages 195 and 196 of the appeal record. 23 Refugee Protection Division Rules (RPD Rules), SOR/2012-256, rule 43. 24 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494, at paragraph 45. 25 Ghannadi v. Canada (Minister of Citizenship and Immigration), No. IMM-1458-14, Manson, September 15, 2014; 2014 FC 879, at paragraphs 17 and 18. 26 Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-6711-13, Gagné, October 28, 2014; 2014 FC 1022, at paragraphs 51, 52 and 53. At paragraph 51, emphasis is the Honourable Justice Gagné's. 27 Bhata v. Canada (Minister of Citizenship and Immigration), No. IMM-5037-13, Simpson, December 19, 2014; 2014 FC 1245, at paragraph 18. 28 Sow v. Canada (Minister of Citizenship and Immigration), No. IMM-1011-14, Barnes, March 9, 2015; 2015 FC 295, at paragraph 16. 29 Paragraph 171(a.3) of the Immigration and Refugee Protection Act (IRPA). 30 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, 3(3)(d)(i), 3(3)(g)(iii), 5(2)(d)(ii) and 29(3). 31 Idem, subrule 3(3). 32 Appellant's memorandum, page 196 of the appeal record. 33 These photographs are reproduced at page 165 of the appeal record. 34 This letter and its translation are reproduced at pages 167 and 168 of the appeal record. 35 This document is reproduced at page 169 of the appeal record. 36 Recording of the hearing on June 25, 2014, 28:25 to 28:30: [translation] "When I click on the link, there is no article in le petit journal." 37 RAD Rules, SOR/2012-257, subrule 3(3). 38 Appellant's affidavit, XXXX XXXX, 2014, pages 70 to 73 of the appeal record. 39 Appellant's memorandum, page 196 of the appeal record. 40 Idem, at paragraphs 18 to 22, pages 179, 180 and 181 of the appeal record. 41 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 42 Idem, at paragraph 41. 43 Idem, at paragraph 55. 44 Idem, at paragraph 91. 45 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraphs 54 and 57. 46 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 47 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 48 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 49 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 50 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 51 RPD's reasons and decision, paragraph 18, in French, page 8, in English, page 18 of the RPD record. 52 Idem, paragraphs 21 to 24, in French, pages 9 and 10, in English, pages 18 and 19 of the RPD record. 53 Idem, at paragraph 28, in French, page 11, in English, page 20 of the RPD record. 54 On the concept of implausibility, I am relying on the case law and the tests to be applied in this regard. Diaz Puentez v. Canada (Minister of Citizenship and Immigration), No. IMM-6022-06, Campbell, December 19, 2007; 2007 FC 1335, at paragraph 16, where Justice Campbell refers to the words of his colleague Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, particularly at paragraph 7: "A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only 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 actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu (citations omitted)." 55 Recording of the hearing on June 25, 2014, 42:28 to 44:50. 56 Idem, 47:10 to 49:00. 57 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6. 58 RPD Rules, SOR/2012-256. 59 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 60 Idem, at paragraph 15. 61 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11, citing the decision of Justice Teitelbaum in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL). 62 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374 at paragraph 28. Basaa v. Canada (Minister of Citizenship and Immigration), No. IMM-9938-03, Snider, February 8, 2005; 2005 FC 201, at paragraph 10: "...a short delay in making a claim, with a reasonable explanation for the delay, cannot be determinative of a negative decision in a refugee claim." 63 Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at paragraph 7. Also read Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, at paragraph 13. 64 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCT 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 65 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at paragraph 8. Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, at paragraph 34: "While there is no need to establish a prejudice in order prove a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). Mobil Oil Canada Ltd. v. Office Canada-Terre-Neuve des hydrocarbures extracôtiers, [1994] 1 S.C.R. 202. 66 Immigration and Refugee Board of Canada, Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, effective date December 1, 2003, amended on December 15, 2012, article 5.7. 67 Recording of the hearing on June 25, 2014, from 01:20:56 to 01:23:35. 68 XXXX XXXX, Written submissions, July 16, 2014. These submissions are reproduced at pages 255 to 268 of the RPD record. 69 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-00899 19