TB7-24191

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 / Dossier de la SAR : TB7-24191 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 21, 2018 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are) the subject of the appeal David Matas Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX is a citizen of Pakistan, and appeals a decision of the Refugee Protection Division (RPD) dated October 13, 2017, rejecting his claim for refugee protection. The Appellant is requesting a new hearing and is submitting new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either a Convention refugee or a person in need of protection, or that the RAD refer the matter back to the RPD for reconsideration. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleges that his father inherited land from his aunt in 1989. The aunt did not have any children; as such, the Appellant's father was the only heir on her side of the family. However, the family of the aunt's husband argues that the land rightfully belongs to them. As a result, there has been a longstanding dispute between the Appellant's family and XXXX and XXXX, two of the aunt's step family members. [4] The Appellant alleges that his father was threatened and physically assaulted throughout the years, and the Appellant believes that the stress from the dispute ultimately lead to his father's death in 2003 at which time the Appellant inherited the land in question. He alleges that in 2009 he was attacked in his home; he was beaten with an iron rod and the back of a knife. [5] The Appellant alleges that both he and his father had reported the threats to the police who did not provide any assistance and, as a result, the Appellant decided to leave Pakistan. He travelled to Venezuela in XXXX 2009 where he remained until XXXX 2014. While in Venezuela, the Appellant obtained a work permit and remained with legal status until the situation in the country began to deteriorate. He then travelled throughout South and Central America until he reached the United States (U.S.) in XXXX 2014. He filed a claim for asylum in the U.S., which was rejected in XXXX 2015. The Appellant remained in U.S. immigration detention until XXXX 2016 and then travelled to Canada in XXXX 2017 and filed a claim for protection. [6] The Appellant's wife and children remain in Pakistan. They have been living with family since the Appellant's departure in 2009. ROLE OF THE RAD [7] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness as per Huruglica.1 [8] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. NEW EVIDENCE [9] The RAD's analysis of the admissibility of the proposed new evidence will be carried out pursuant to the test set out in subsection 110(4) and in accordance with the Federal Court of Appeal Decision in Singh.2 [10] The Appellant has submitted a) a Letter from his lawyer in Pakistan (Mr. XXXX XXXX XXXX), dated XXXX XXXX, 2017; b) an Affidavit from his wife (XXXX XXXX), dated XXXX XXXX, 2017); and, c) an Affidavit from a friend (XXXX XXXX XXXX) dated XXXX XXXX, 2017. [11] All of the documents were sworn after the RPD rendered its decision. The Affidavit of the Appellant's wife and the Affidavit of Mr. XXXX do not contain any new evidence. These documents simply repeat the allegations made by the Appellant. [12] With respect to the Affidavit of the Appellant's lawyer, he too repeats the allegations of the Appellant. He does add that on XXXX XXXX, 2017 the land of the Appellant was occupied. The RPD hearing was heard on October 3 and the decision rendered on October 13, 2017. This particular incident occurred prior to the RPD's decision. In his affidavit in support of the New Evidence, the Appellant does not provide an explanation as to why this particular allegation was not reasonably available to him prior to the RPD rendering its decision. [13] For all of these reasons, the RAD will not accept the documents as new evidence. As the RAD has not accepted any new evidence, the RAD will not hold an oral hearing. ANALYSIS ON THE MERITS OF THE APPEAL [14] The RPD concluded that the Appellant was not a credible witness. The Appellant alleges that the RPD erred in its credibility conclusion. [15] Subsection 110(1) of the IRPA lays out the conditions under which a person 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.3 [16] Paragraph 3(3)(g) of the RAD Rules directs the composition of the appellant's record, and subparagraphs 3(3)(g)(i) and (ii) are particularly relevant in this case: (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, [17] The RAD Rules are clear that the Appellant has a responsibility to include full and detailed submissions regarding the errors that are the grounds of appeal in the memorandum. [18] The appeal process is to be party driven. As stated by the Federal Court in Dhillon:4 It is not the RAD's function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place. It is also not its role to come up with new ideas that might assist appellants in succeeding with their appeal and, ultimately, their refugee claim. [19] In Ghauri,5 the Court commented favourably upon Dhillon and noted: [A]ppellants before the RAD that fail to specify where and how the RPD erred do so at their peril. [20] In the Murugesu.6 Decision, the Court stated: ... it is the responsibility of the appellant, not the RAD, to establish that the RPD erred in a way that justifies the RAD's intervention. It is not the RAD's function to supplement the weaknesses of an appeal. [21] Having reviewed all of the evidence and listened to an audio recording of the RPD hearing, the RAD fails to see the errors in the RPD decision. The determinative issue is credibility. There were three major credibility findings of the RPD: the allegation that the Appellant had been physically assaulted by members of his aunt's family; the question of whether his father had been physically assaulted by members of his aunt's family as a result of the land dispute; the events after his alleged assault in 2008. The RPD pointed out to the Appellant the contradictions between his oral testimony and written evidence. In particular, the RPD noted that in his oral testimony the Appellant had stated that his father had not been assaulted which contradicted his Basis of Claim (BOC) form; that he had not mentioned in his US asylum declaration that he had been physically assaulted; that he had mentioned in his BOC that he was assaulted in 2009 while in his oral testimony he had stated that the assault took place in 2008; that he had failed to mention in his BOC and included in the forms submitted with his refugee application that, after his alleged assault, he had relocated to a friend's house. The RAD does not see an error with respect to the RPD's finding that the Appellant failed to explain the discrepancies and omissions between his oral and written testimony. [22] The RPD reached its conclusion by analyzing and referring to specific written and oral testimony of the Appellant, and by referring to documents provided by the Appellant. In his submissions, the Appellant does not directly challenge any of these findings by the RPD. He does not provide any explanation which might have clarified the oral or written testimony which he provided to the RPD. [23] The Appellant's submissions to the RAD are, for the most part, broad and generalized whereas, in compliance with RAD Rule 3(3)(g), an appellant is required to make full and detailed submissions with respect to the errors the RPD is alleged to have made, and the location of those errors. The submissions contain a random collection of assorted legal principles and case law which are not appeal specific. Various general errors are alleged on the part of the RPD but where these errors occur in the current case remains unspecified. For example, it is submitted that the RPD ignored the Appellant's oral testimony and the RPD should not have disbelieved the Appellant merely because there was no evidence to support it. It is also submitted that the RPD erred in law for failing to provide good reasons to prefer some documentary evidence over others. All of these submissions are vague and non-specific and, therefore, not compliant with RAD Rule 3(3)(g). [24] The RAD finds that the RPD's finding that the Appellant has not established that he is a person in need of protection through credible testimony is correct. Despite the lack of submissions to address specific errors made by the RPD and lack of references to the location of the errors in the RPD decision and of the audio recording of the hearing, the RAD does have an onus to do an independent assessment of the RPD record. Furthermore the RAD rules are clear that the Appellant has a responsibility to include full and detailed submissions regarding the errors that are the grounds of the appeal in the memorandum. In this case, specific arguments or analyses of how the RPD erred are missing or obtuse. [25] The RAD finds that there is noncompliance with Rule 3(3)(g)(i) and (ii). It is not the duty of the RAD to engage in a search for errors in the RPD's decision in the absence of guidance from the Appellant. The RAD has completed an independent assessment of the RPD's record, including listening to an audio recording of the RPD hearing and reviewing all of the documentary evidence provided, as it relates to the specific errors alleged in the memorandum. The RAD need not look further for errors not disclosed by the Appellant, and the RAD upholds the RPD's decision. [26] The RAD also finds that there are numerous tools available to appellants and their representatives to assist with filing and perfecting their appeal. The RAD's webpages on the IRB website provides an appellant record form in both official languages which clearly indicates all of the criteria required when perfecting an appeal. The Appellant's Guide specifically directs the appellant to include: 7. A memorandum, which is a document that gives as many details as possible about: * the specific mistakes made by the RPD that you want the RAD to review; * where to find these mistakes in the RPD reasons or in the recording or transcript of the hearing; [27] There are also Important instructions about your appeal in sixteen different languages and both official languages. There is contact information for the RAD Registry in each region. In addition, Information Sessions for self-represented appellants and representatives are held regularly in all regions to assist in the perfection of the appellant's record. [28] In Dahal,7 Chief Justice Crampton noted: By simply satisfying itself that no such additional errors were made, the RAD's decision should not become vulnerable to being set aside on judicial review, based solely on its general concurrence with findings made by the RPD in respect of matters that were not raised on appeal by the Applicants. In my view, this would largely vitiate the purpose of Rule 3(3)(g) of the Rules, which requires an appellant to identify (i) the errors that are the grounds of the appeal, and (ii) where those errors are located in the RPD's decision, or in the transcript recording of its hearing. DECISION [29] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. [30] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino August 21, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 44. 3 Subsection 110(1), Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 4 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321. 5 Ghauri, Muhammad Habib v. M.C.I. (F.C., no. IMM-3426-15), Gleeson, May 16, 2016, 2016 FC 548. 6 Murugesu, Leeladevi v. M.C.I. (F.C., no. IMM-5724-15), Fothergill, July 19, 2016, 2016 FC 819, at para. 27. 7 Dahal v. Canada (Citizenship and Immigration), 2017 FC 1102, at para. 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-24191 RAD.25.02 (August 08, 2018) Disponible en français 8 RAD.25.02 (July 05, 2018) Disponible en français