TB4-09000

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 : TB4-09000 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 7, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru Barrister & 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 K COWMAN Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), a citizen of Cameroon, 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 review the claim, accept the new evidence disclosed and find that the Appellant is a Convention refugee or a person in need of protection. The Appellant also requests an oral hearing. In the alternative, the Appellant requests that the matter be referred back to the RPD to be reconsidered by a differently constituted panel. [2] The Minister of Citizenship and Immigration Canada (the Minister) has intervened in this matter. The Minister requests that no weight be given by the RAD to the new evidence and that the RAD confirm the decision of the RPD. The Minister does not request a new hearing; however, does give notice that the Minister will attend should a new hearing be set for this appeal. DETERMINATION [3] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Background [4] The Appellant alleged before the RPD that as a member of the Southern Cameroons National Council (SCNC) he had been arrested, detained and tortured on multiple occasions by forces of the government of Cameroon. The arrests, detention and torture were a direct result of the Appellant's political opinion as a member of the SCNC. [5] The Appellant's application for refugee protection was heard on August 25, 2014. The RPD found that the Appellant was neither a Convention refugee nor a person in need of protection. The RPD found what it considered multiple credibility issues, inconsistencies and/or contradictions in the testimony of the Appellant and/or between his testimony and documents disclosed by the Appellant.1 [6] The Appellant submits that the RPD erred in its credibility findings and has submitted new evidence to support that submission. The Appellant asks the RAD to accept that new evidence2 and to reverse the determination of the RPD. ANALYSIS Admissibility of Evidence Submitted on Appeal [7] Section 110(4) of IRPA provides that the 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 expected in the circumstances to have presented, at the time of the rejection. [8] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. In Raza,3 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.4 In Iyamuremye, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA.5 It is noteworthy that the Appellant has not disputed the applicability of Raza. [9] The RAD refers to Ghannadi as well where RAD is reminded that "[w]hen considering whether new evidence should be admitted, the following factors should be considered; credibility, relevance, newness and materiality, in addition to any express statutory provisions". 6 [10] Of course, the RAD must consider all new evidence on its own merit and when an application is made by the Appellant under Rules 37 and 29, due assessment must be made of that application. In this particular case, there is such an application which will be considered below. [11] It is for the 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.7 [12] In paragraph 16 of Raza, the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. New Evidence [13] The Appellant has disclosed two documents and has requested that the documents be entered into evidence in support of this appeal. [14] The first document8 is a letter from the SCNC, dated XXXX XXXX, 2014. This document, apparently on SCNC letterhead and apparently stamped with the SCNC seal, purports to confirm the Appellant's membership in the SCNC and speaks to the credibility issues previously raised in the RPD's reasons for determination. The Appellant submits that this letter speaks to, amongst other things, events which occurred after the hearing of August 25, 2014 and the Reasons issue date of September 16, 2014, while confirming the Appellant's membership in the SCNC and detailing the Appellant's arrests and hospital treatments. [15] The Minister submits that this evidence should be given no weight as the document was clearly written after the decision of the RPD and was made specifically to explain the credibility concerns of the decision. The Minister submits that the document gives no explanation as to why the hospital has two names nor does the Appellant disclose any evidence that the hospital does have two names. The Minister submits that the letter, without supporting documentation addresses only the credibility concerns of the RPD and was clearly made to bolster the claim of the Appellant. [16] The RAD agrees with the Minister. The letter from the SCNC is not new, in the sense of the word envisioned in section 110(4). The information in it was available before the hearing, in the case of the Appellant's membership. However, the Appellant has filed a request under Rules 37 and 299 to admit late evidence which would, if accepted, support the SCNC document and the Appellant's allegations of arrest of his family members. [17] In order to accept evidence under Rule 37, that request must be made in writing and without delay. The content of the application must comply with the standards set out in the rule. Rule 29 speaks to documents and submissions not previously provided and how the new evidence meets the requirements of the rules and of section 110(4) of the IRPA, with necessary explanations in writing. [18] The evidence in question is documentation of the criminal charges against the family members of the Appellant. The Appellant has provided certified true copies of the summonses which were issued after the Appellant's RPD hearing. The summonses are alleged to be genuine as they are apparently certified true copies of the original documents, which are allegedly on file in the Courts in Cameroon. The documents are new as they were not in existence prior to the hearing and were only issued post-hearing. The documents would be considered material as they could possibly affect the outcome of the decision in this case and of course. The documents would be relevant as they tend to substantiate the Appellant's story. The only issue the RAD has in deciding on the admissibility of these documents is their credibility. The RAD cannot see any problems with the documents. They appear, for all intents and purposes, to be genuine. [19] The second document10 package is accompanied by a letter from XXXX XXXX XXXX, a Cameroonian legal practitioner who attests that he was retained by the SCNC to secure the release of the Appellant's mother and another, who were arrested on XXXX XXXX, 2014 on an allegation of withholding information that could lead to the arrest of the Appellant. The letter goes on to detail and outlines the issue of the arrests. [20] The Appellant submits that the letter, dated XXXX XXXX, 2014 speaks to the occurrence of XXXX XXXX, three days after the RPD hearing, so does qualify it as "new" in accordance to section 110(4) of IRPA. The Appellant submits that this document rebuts findings of fact by the RPD and proves the current state of affairs in the country of origin. The Appellant submits that this document is material as the Appellant's claim would probably have succeeded if it was available to the RPD during the hearing. Further, the Appellant states that though some of the events described in the new evidence took place before the hearing, they relate to old risks and therefore should be considered as new evidence. The RAD, having perused the evidence finds that it does in fact meet the standards required for it to be allowed for the application under the Rule 37 and 29, and the RAD therefore allows the application and accepts these documents as new evidence. [21] The Minister had submitted that this new evidence had no supporting documentation with it. The Minister was copied on the application under Rule 37 and 29, and has not responded to that application. The Minister had submitted that the lawyer, who is the author of this document and represents the Appellant's mother and wife, would reasonably have some documents to substantiate the claims in his affidavit. Such documents have now been supplied and disclosed. [22] The Appellant has requested an oral hearing. In order to hold an oral hearing after allowing the new evidence, the RAD must find that the new evidence triggers a credibility issue with respect to the Appellant. The RAD does not find that this new evidence raises any credibility issue with regards to the Appellant and therefore must deny the application for an oral hearing. Role of the RAD [23] The Federal Court has made a number of conclusions on the RAD in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,11 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [24] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. However, the RAD will not be bound by those RPD conclusions. The RPD's Findings [25] The Appellant argues that the RPD erred in its credibility assessments. Specifically, the RPD misapprehended the Appellant's evidence as it concerns the name of the hospital and the doctor who treated the Appellant, in Cameroon. In its assessment on that issue, the RPD failed to appreciate the fact that the Appellant lived in a different city from where the hospital and doctor were located. Consequently, the Appellant submits that it is not unlikely that the Appellant would be unfamiliar with the official name of the hospital while being familiar with the name used by his organization for that hospital The RAD has listened to the audio recording of the hearing and has read all of the relevant documents. The RAD finds that in regards to the name of the hospital, it would be acceptable that the Appellant knew or knows the hospital by one name while the hospital may carry a completely different official name. Bearing in mind that the hospital was not in the city of residence of the Appellant, it is credible that he was told to attend XXXX XXXXwhich could well be name once used by locals for whatever reason, while not being official. The RAD can think of many similar situations right here in Canada where local people know a hospital by its "original name" while the hospital, having amalgamated with other health care facilities, now carries a legal or official name which is totally different to the locally known name. It would not be unreasonable for a visitor being advised to attend a hospital to not know that the facility had two names. The RAD does not impugn any lack of credibility on the Appellant over the hospital name. [26] The issue over the name of the doctor who treated the Appellant may be somewhat different however. According to testimony, the Appellant was told by members of the SCNC that he should go to XXXX XXXXand there he should seek out a particular doctor who "knew how to handle their situation." The RPD found it incredible that the Appellant would not know the name of this doctor. The RPD was not satisfied with the response and saw the response as incredible. [27] The Minister does not speak to this issue specifically. [28] The RAD agrees with the RPD findings on this issue. If the RAD presumes that the Appellant is seeking a physician who is attempting to conceal from his employer the fact that he is practicing medicine on people wanted by the state, then it must also presume that the Appellant would know how to get in touch with this doctor. The Appellant testified that he was advised to seek out this particular doctor. It would be, on a balance of probabilities, likely that the SCNC contact would have given the Appellant a name to ask for, otherwise it would be difficult and maybe impossible for the Appellant so seek out a particular doctor without some sort of name. It simply is not credible that the SCNC would send the Appellant to seek out a particular doctor without providing a name. The RAD finds that the Appellant's assertion that he does not know the name of this doctor is a major credibility issue which speaks to the basis of the claim in a negative way. [29] The Appellant further argues that the credibility findings of the RPD regarding the number and periods of detention suffered by the Appellant were not considered properly by the RPD. Specifically, the RPD found that the Human Rights Defence Group (HRDG), in its letter of support dated XXXX XXXX, 2014, only mentioned two arrests rather than all five suffered by the Appellant. The RPD failed to consider that the HRDG clearly stated that the two arrests were what they had in their archives and that the HRDG would not be aware of the first arrest which occurred before the Appellant joined the SCNC. The Appellant submits that this letter is credible. [30] The RPD had many issues with the alleged detention of the Appellant. On XXXX XXXX, 2008, the Appellant was arrested while at a school protest, unrelated to his later membership in the SCNC. According to the Appellant's testimony at the hearing, the HRDG was directly involved in securing the Appellant's release from detention on that occasion. The RPD found it incredible that the letter of support12 from the HRDG failed to mention their involvement with the Appellant's release in 2008, while speaking to their efforts on XXXX XXXX, 2009 and again in XXXX 2013. [31] The Appellant submits that the RPD appears to be suggesting in its reasons that the HRDG should have mentioned all five times that the Appellant was arrested even when the HRDG was not involved. The RAD respectfully disagrees with that perception. In listening to the testimony of the Appellant, it is clear to the RAD that the Appellant did testify that the HRDG was responsible for his release from detention by way of posting bail in XXXX of 2008. The RAD agrees with the RPD that the letter from the HRDG should have included the earlier date as well as the other two dates in which it was involved with the Appellant. Also, at about minute 35 of the audio recording of the hearing, the Appellant testifies to the fact that the HRDG was actually involved in four of his arrests. When asked by the panel why the contradiction between his sworn testimony and his evidence, the Appellant testified in a vague manner about being helped out by defence lawyers from the SCNC, working in conjunction with the HRDG. The explanation was deemed vague and unresponsive by the RPD and the RAD agrees with that assessment. As the letter from the HRDG does not contain the information on all four detentions in which it was involved, it calls into question the veracity and credibility of the Appellant's testimony and of that letter. The RAD finds that this contradiction between the Appellant's testimony and his documentation to be an issue of credibility. [32] Similarly, the letter of support from the Appellant's mother was called into question because it did not mention all five arrests. Again, the Appellant submits that the letter had been requested to inform of the Appellant's membership in the SCNC and what he suffered as a result of that membership. The first arrest occurred before the Appellant joined the SCNC so would not be included, and the last arrest occurred after the Appellant's mother had been traumatized by the arrest of XXXX 2011, so the Appellant ensured that his mother was kept unaware of the last arrest. The Appellant submits that his mother's letter speaks to all of the arrests that were relevant and of which she was aware, and is therefore credible. [33] The RAD agrees with the Appellant on this issue. The Appellant argues that he provided reasons why he did not include the 2013 arrest in his initial BOC narrative; his mother and SCNC did not have personal knowledge of it, hence they could not confirm it. After being advised of the importance of this arrest, the Appellant took steps to amend his BOC narrative accordingly. The request for the mother was clearly one to write in support of the Appellant's membership and problems resulting from membership in the SCNC. The first arrest was not related to the SCNC and consequently would not be expected to be included. The last arrest was purposely kept from the Appellant's mother because of her traumatic reaction to the Appellant's last arrest. It is reasonable that if she was not aware of the last arrest that she would certainly not write about it. The RAD finds that this issue was reasonably explained by the Appellant and does not find it to be an issue on its own. It does not, however, outweigh the negative credibility issues already decided. [34] The RPD found that the Appellant did display some knowledge of the structure and modus operandi of the SCNC but also found that it "merely showed that the claimant prepared for his hearing". The Appellant argues that such a finding would suggest that the Appellant would have done the same for other areas in which he was unable to provide the answers to questions asked, such as the name of the doctor who treated him. The RAD agrees with the Appellant in this case. With respect to the RPD, the RAD cannot agree that the Appellant's knowledge of the organization he purports to belong to was gained only in hopes of bolstering his claim. The RAD finds no evidence to support that position. [35] The RPD found certain documents to be questionable, including his warrant for arrest, letters of support from SCNC and HRDG, and various attestations and testimonials. The RPD does not elaborate in its decision as to what issues it had with these documents, specifically. The RPD speaks only to "discrepancies between them and his testimony", but does not identify those discrepancies. The RPD goes on to say that when it combines those issues with the previously identified issues of credibility, it relies on this in its decision. [36] The question asked by the Appellant in his Memorandum is a simple one. The Appellant asked: "Did the RPD err in its credibility findings?" [37] As noted above, the RAD has made its own assessment on this file and finds that, although the RAD has come to the same conclusion on some of the RPD credibility findings, it has not come to the same conclusion on some of the major areas of concern. [38] In light of the new evidence13 accepted and the credibility finding of the RAD, the RAD finds that, on a balance of probabilities, the Appellant is a member of the SCNC, is wanted by the authorities because of his political activities and would face the possibility of persecution should he return to Cameroon. The RAD has found that the RPD did err in its credibility assessment and that the decision of the RPD cannot stand. CONCLUSION [39] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. The appeal is allowed. (signed) "David Lowe" David Lowe January 7, 2015 Date 1 Appellant's Record, RPD Reasons for Decision, pp. 1-8. 2 Appellant's Record, pp. 55-58. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 4 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, para. 17. 7 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 8 Appellant's Record, p. 55. 9 Exhibit P-3, pp. 6-13. 10 Appellant's Record, pp. 56-57. 11 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 12 Appellant's Record, p. 36. 13 Exhibit P-3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-09000