TB5-13448

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 : TB5-13448 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 27, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Craig Costantino Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of Turkey, 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 negative determination of the RPD and either find him to be a Convention refugee or return the matter to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is of Kurdish ethnicity and was politically active in pro-Kurdish causes. As a result, he was detained and tortured by the Turkish authorities. He came to Canada on a student visa and sought refugee protection when his student status expired. [4] The Appellant's application for refugee protection was heard on October 6, 2015. By a decision dated October 28, 2015, the RPD rejected the claim. The panel cited credibility concerns, including with respect to the Appellant's repeated returns to Turkey, his delay in claiming in Canada, and documents submitted in support of his claim. [5] The Appellant submits that the RPD erred in its credibility assessment, and also asks the RAD to admit new evidence in support of his appeal. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the 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 expected1 in the circumstances to have presented, at the time of the rejection. [7] 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.2 Application of Section 110(4) [8] Section 110(4) establishes a disjunctive test.3 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in his circumstances, to have presented the evidence to the RPD prior to the rejection of his claim. If he could not have been expected to do so, the evidence meets the requirements of the section. [9] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.4 [10] As the RAD understands it, Section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [11] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.5 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [12] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness", these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, 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).6 [13] The RAD has, in many appeals to date, applied the factors set out by the Federal Court of Appeal in Raza.7 While Raza predates the introduction of Section 110(4) of the IRPA 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.8 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.9 [14] In Iyamuremye10, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under the IRPA. Subsequently, in Ghannadi,11 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. In Singh,12 the Court 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).13 [15] 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.14 [16] 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.'"15 [17] 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)?" [18] The question of whether the Raza factors are applicable to evidence that passes the test in Section 110(4) is still unsettled.16 It has been found that the application of the Raza criteria by the RAD is reasonable;17 it has also been held that the application of those factors without modification is an error.18 The Raza factors have also been described by the Court as "useful guidance."19 [19] While trusting that the matter will eventually be resolved by the Federal Court of Appeal, the RAD must nevertheless continue to consider new evidence, such as that which has been submitted in support of this appeal. Although 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 the IRPA - such as Sections 162(2) and 171(a.3). Such a restricted analysis would also require the RAD to accept "new" evidence even if it is irrelevant, immaterial, or lacking in credibility. [20] In Denbel, the Federal Court held that: [43] When interpreting legislative intent, the Court must give priority to the written text in the absence of any lexical ambiguity. The Court's opinions on best policy cannot supplant the text of the law; nor can select passages from the Hansard. In my view, Parliament intended these two provisions to enshrine the same legal test. If Parliament had intended to establish more flexible admissibility rules in RAD appeals, it would not have replicated the restrictive language which governs PRRAs.20 [21] 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 to consider whether it has evidentiary value and, if so, how much. While the factors in Raza are indeed helpful guidance, the RAD would undertake a very similar analysis even if it would completely disregard that decision.21 [22] Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [23] While the 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.22 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 the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [24] It is therefore appropriate for the RAD to consider whether new evidence is relevant, even if it meets the test in Section 110(4). [25] 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. [26] 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,23 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.24 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. [27] 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).25 [28] 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 were to apply the materiality factor as defined 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 making its own assessment of whether the determination should have been different or whether the RPD decision was in error. [29] 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.26 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 in and of itself does not 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, even though they could be the basis for a successful appeal. [30] 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. [31] 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 or 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.27 (c) The RAD will determine whether the evidence is material, in the sense that it could be capable of justifying, with or without the benefit of an oral hearing, as the case may be, a disposition under section 111 of the IRPA. [32] 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. [33] The Appellant asks the RAD to admit the following new evidence: (a) An affidavit, along with supporting documents, from XXXX XXXX, who claims to be a former Member of the XXXX XXXX.28 The affidavit was sworn on December 5, 2015, and claims that the affiant, now a refugee claimant in Canada, worked closely with the Appellant in Turkey; and, (b) A group of photographs, apparently of the Appellant's involvement in rallies of the XXXX XXXX XXXX XXXX.29 [34] The affidavit in (a) was sworn after the rejection of the Appellant's refugee claim. However, the evidence it contains is not new at all. The affiant writes that he elected to the Turkish parliament in 2007 and again in 2011. He claims that he met the Appellant in 2007, and that the Appellant "always accompanied me to party events including rallies and meetings," even acting as his XXXX. The affiant did not see the Appellant after 2009, until he encountered him in Canada in XXXX of 2015. [35] The relevant part of the affidavit - that is, the portions that relate to the Appellant's political activism in Turkey - pre-date the rejection of his refugee claim. This information is highly relevant to the claim - it purports to be corroboration of key elements of the Appellant's refugee application. If he indeed worked directly with a member of parliament, even serving as his XXXX, he could reasonably have been expected to have presented such evidence to the RPD prior to the rejection of his claim. [36] The evidence in (a) did not arise after the rejection of the Appellant's refugee claim, and he could reasonably have been expected, in the circumstances, to have presented this evidence to the RPD. The remaining question from the Section 110(4) test is, then, whether this evidence was reasonably available for presentation to the RPD. [37] The Appellant argues that his proposed evidence "is clearly new in that it was prepared after the hearing and after the decision, and it addresses issues that were central to the determination of the claim."30 With respect, placing a recent date on old evidence does not make it new evidence; the fact that the evidence may address central issues goes to suggest that the Appellant could reasonably have been expected to present this to the RPD. [38] The Appellant's argument with respect to the availability of the evidence for submission to the RPD is puzzling, to say the least: "Finally, the new evidence was not reasonably available at the time of the hearing or before the decision was made as Ms. XXXX was not aware of the availability of counselling and medical treatment for her anxiety-related health issues."31 The RAD does not know who Ms. XXXX is; presumably this statement has been erroneously carried over from another memorandum. [39] While the Appellant's Memorandum does not assist the RAD in considering whether the evidence in (a) was available to present to the RPD, his own affidavit does speak to this subject. "I did not ask XXXX XXXX to provide corroborative evidence for me to the RPD as it had already concluded and I did not know that I would need to adduce any further evidence, nor did I know if it was possible once my hearing had concluded. I never consulted with my lawyer about this possibility until after my claim had been refused and he asked if there was any new evidence that had arisen that might impact the decision. I did not anticipate nor was I given notice that the Member had any doubts about whether the document I had submitted showing that I was a member of the XXXX party was genuine. Nor did I believe that I could obtain further corroborative evidence because the XXXX and its predecessor parties (DEHAP, DTP and BDP) have a policy against issuing evidence of membership."32 [40] The RAD cannot accept this explanation. The Appellant's refugee claim was largely based on his political activity. He now claims that he was involved with a Turkish member of parliament, even acting as his XXXX. During his RPD hearing, he was questioned on his political membership documents, including whether he was even physically present when those documents were issued.33 He claims that after the hearing, but before a decision as rendered, he coincidentally encountered a former Turkish MP who could corroborate key aspects of his refugee claim. Despite this, he claims that he took no steps to bring this important information to the RPD, and did not even tell his own counsel. The Appellant has more than 16 years of education, and holds a university degree;34 he claims that he was an active advocate for human rights. He was represented before the RPD by an experienced lawyer. In these circumstances the Appellant could reasonably be expected to have known, or to have been told, that important evidence coming to his attention before the determination of his refugee claim should be brought to the attention of the RPD. [41] Having considered the proposed new evidence in (a), as well as the Appellant's submissions with respect to those documents, the RAD finds that the documents do not meet the test in Section 110(4). The evidence did not arise after the rejection of the Appellant's refugee claim and he could reasonably have been expected to present the evidence to the RPD. He has not established that it was not reasonably available to him; in fact, he concedes that he had the evidence prior to the RPD's decision. [42] The Appellant also argues that this evidence should be admitted because it "directly rebuts a central finding of the Panel and it is imperative to the administration of justice that the evidence be admitted and considered. To do otherwise is at odds with the very principles on which Canada's international commitments under the Refugee Convention and our refugee determination system are founded, as well as the right to life and security of the person as set out in s. 7 of the Charter..."35 The RAD cannot accept this argument; the Federal Court has held that the RAD has no discretion to admit evidence which does not meet the criteria set out in Section 110(4).36 [43] Even if the documents in (a) did pass the test in Section 110(4), the RAD would decline to admit them, as they lack credibility. The affidavit of Mr. XXXX makes detailed claims about his work with the Appellant. He alleges that the Appellant would pick him up at the airport in XXXX, and "always accompanied me to party events including rallies and meetings" and "when I had to go through crowds, he would XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." He declares that he met the Appellant on multiple occasions from 2007 to 2009 and "we worked together closely during that time period." He claims that the Appellant travelled with him to a rally where the affiant made a speech to a large crowd, and to a political meeting in 2008.37 [44] These high-profile activities are conspicuous by their absence from the Appellant's Basis of Claim (BoC) form. He does not mention working closely with an opposition Member of Parliament, always accompanying that individual to party events, or acting as a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In fact, he wrote that after he moved to Istanbul, he "tried to keep a low profile and focused on my job..." though he did attend some protests.38 From XXXX of 2008 to XXXX of 2009 he was in compulsory military service,39 during a time when Mr. XXXX claims to have been working together closely. Remarkably, the Appellant wrote in his BoC that he completed military service without incident and "was able to keep my political opinions to myself during this period."40 [45] The documents in (a) are not credible when assessed in the context of the Appellant's refugee claim. The affidavit of Mr. XXXX makes detailed claims about the Appellant's political activities that are simply not supported by the Appellant's BoC narrative, which, at its very best, makes vague mention of distributing materials "encouraging Kurds to vote to support Kurdish candidates in the elections."41 [46] Even if the documents in (a) met the test in Section 110(4), they would not be admissible in this appeal, as they lack in credibility. [47] The documents in (b) are a group of photographs, apparently of the Appellant participating in rallies of the Landscape Architects Student Association. The Appellant was asked during the RPD hearing whether he had photographs of his participation in "any good causes," to which he replied that he had photos of XXXX XXXX group but not of any political rallies. The RPD found that the Appellant's evidence "evolved" with respect to whether he has photos of his participation in "good causes."42 [48] As will be discussed below, the RAD agrees that the RPD asked a vague question about the Appellant's participation in causes, and therefore erred in suggesting that his evidence evolved in response to that question. Although these photos did not arise after the rejection of the Appellant's claim, he could not have reasonably been expected, in the circumstances, to have provided them to the RPD. He could not have anticipated that the RPD would reach an erroneous conclusion about the missing photographs. [49] However, while these photographs may meet the test in Section 110(4), they are not admissible in this appeal as they are neither relevant nor material. They are not necessary to establish that the RPD erred in its assessment of the issue of photographs; this is apparent from the record. They do nothing to further the Appellant's refugee claim; the photos are purportedly of his participation in a protest with respect to the right of civil engineers to sign off on projects, and this is not related to his fear of persecution. Finally, the RAD notes that the photos are undated, and that, despite the requirements of the RAD Rules, there is no translation of the words that appear therein, and it is therefore not even possible for the RAD to ascertain the nature of the protest depicted. These photographs are not admissible here; they are neither credible and material, nor relevant. [50] For these reasons, none of the Appellant's proposed new evidence is admissible in this appeal. What is the Role of the RAD? [51] While the 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. [52] The Appellant makes no specific submissions with respect to the appropriate standard of intervention. [53] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.43 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [54] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [55] Where the proceeding is a true appeal - that is, where there is no admissible new evidence, as is the case here - the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [56] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.44 [57] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence - that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [58] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [59] Where the RPD's determination is entirely based on findings which warrant deference -such as an overall lack of credibility, based on oral testimony - the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [60] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [61] The Appellant argues that the RPD made the following errors in dismissing his claim for refugee protection. [62] The hearing: The Appellant alleges that the RPD did not have the Appellant swear to the accuracy of his BoC form and did not set out the issues. He also argues that "the questions asked by the Panel were not clear," and "there were numerous instances in which the interpretation also looks imprecise. In addition to that, [the Appellant] also had a tendency to misunderstand questions and give imprecise answers."45 [63] When the RPD did not initially ask the Appellant to confirm the accuracy of his Boc form, his counsel reminded the panel, "Sorry, you didn't have him swear the PIF, I mean the BoC," to which the member replied, "I didn't, no; I usually assume that these things are truthful." The panel went on to ask the Appellant, "I'm reading from your Basis of Claim form; as far as you know, did you give us truthful information?" The Appellant answered in the affirmative.46 The RAD sees no basis for the same counsel to argue on appeal that the BOC was not properly confirmed. Even had the RPD failed to confirm the contents of the BOC, the RAD notes that the document itself contains the Appellant's signed declaration that its contents are complete, true, and correct.47 [64] The Chairperson's Guidelines provide that, at the beginning of the hearing, the RPD "member will consult with counsel about the issues and will identify timelines and expectations for how the hearing will unfold."48 Having reviewed the audio recording of the RPD proceeding, the RAD finds that the RPD member failed to comply with the Guideline's requirement to consult about issues at the beginning of the hearing. However, prior receiving counsel's oral submissions, the RPD member did identify issues to be addressed: state protection and internal flight alternative were removed as issues, and the panel stated that "nexus is pretty clear." The issues identified as remaining were risk of harm and credibility.49 Counsel proceeded to make submissions, beginning with the assertion that the Appellant has a "well-founded subjective fear" of persecution.50 Counsel later stated, as part of his submissions, "Now I understand all of the, kind of, gamut of issues and sub-issues that are probably going through your head, having to do with subjective fear and credibility.... Once he was out of the country, he did come back on a fairly frequent basis..." but kept a low profile and stayed for short periods of time.51 [65] The RPD was obligated by the Chairperson's Guidelines to identify the relevant issues at the outset of the hearing. The panel erred by failing to do so. It did set out the issues prior to counsel's submissions, and identified credibility without specific reference to subjective fear. However, the RPD's error here was of no consequence to the Appellant; his counsel made clear in his submissions to the RPD that he knew subjective fear was an issue for the panel member. It is not open for the same counsel to argue on appeal that the Appellant did not know subjective fear was an issue for the RPD. [66] The Appellant alleges that the RPD asked unclear questions and that there are numerous instances of imprecise interpretation. The RAD Rules require the Appellant to make full and detailed submissions about any errors made by the RPD, including the location of those errors in the proceeding or the decision.52 Here the Appellant has only made vague allegations with no specifics, other than with respect to one particular question, which will be addressed below. The RAD is unable to consider the Appellant's vague arguments with respect to other questions or the quality of interpretation, as it simply has no way of determining which questions or portions of the hearing are referred to by the Appellant. The RAD has reviewed the audio recording and was unable to locate the problems to which the Appellant refers. [67] The Appellant also argues, with respect to the RPD hearing, that he had a tendency to misunderstand questions and to give imprecise answers. This can hardly be considered the fault of the RPD, or an injustice to the Appellant. In fact, the RPD found that the Appellant did not provide straightforward or consistent answers, particularly with respect to questions about his participation in political events.53 It does not assist the Appellant to argue on appeal, that he gave imprecise answers; this is exactly the point made by the RPD, and a factor in the RPD's credibility assessment. [68] Subjective fear: The RPD found that the Appellant's repeated returns to Turkey from Saudi Arabia, as well as his delay in claiming in Canada, are indicative of a lack of subjective fear. [69] The Appellant also takes issue with the RPD's findings about subjective fear. He points out that he did not lose status in Canada, submits that the RPD was mandating cowardice as the only acceptable response to a fear of persecution, and argues that the RPD made a credibility determination with respect to subjective fear when in fact this was based on a flawed implausibility finding. [70] The Appellant alleged that he was politically active for a number of years before he was detained and severely tortured in 2012. He decided that he could not live in Turkey, and went to work in Saudi Arabia. However, he returned to visit Turkey every six months; he told the RPD that he minimized his risk by going straight to his family and avoiding political action. [71] The RAD agrees that the Appellant's actions here are indicative of a lack of subjective fear. The Appellant was allegedly tortured, and upon release told by the police, "We will see you again." After he recovered, he saw the same policemen waiting for him near his home, and they said, "We are tired of waiting for you. It's about time you made up your mind [about whether to become an informant.]"54 The Appellant left the country and went to Saudi Arabia. [72] Despite the torture, the police demands, his refusal to cooperate, and the continued interest from the police, the Appellant voluntarily left the safety of Saudi Arabia to visit Turkey - not once, but on multiple occasions. While he argues that he was able to enter and leave Turkey without incident, this is hardly an adequate explanation, as he could not have known he could safely enter or exit until he actually tried to do so. The fact that he voluntarily and repeatedly returned to the place where he was allegedly tortured, in danger, and sought by the police seriously undermines his credibility. While the Appellant argues that the RPD's finding here was one of implausibility, the RAD disagrees. Evidence suggesting a lack of subjective fear may point to a contradiction or inconsistency in the evidence of a refugee claimant, who claims to be afraid for his life, but who did not act that way. This serious inconsistency between words and actions is valid basis for a negative credibility finding. [73] The RAD notes the Appellant's argument that he was deeply committed to social change and the political process, and that the RPD was in effect "mandating cowardice" as the only acceptable way for him to act after facing a risk of persecution in his country. This argument cannot succeed, for two reasons. First, the Appellant explained his returns by telling the RPD that he only visited family and avoided political activity. It is difficult for him to sustain an argument that he was returning because of his deep commitment to social or political issues. Second, the Appellant did decide to leave Turkey - first to Saudi Arabia and then to Canada. It was the Appellant, not the RPD, who decided that Turkey was not safe for him. After making such a decision, it is inexplicable that he repeatedly returned and exposed himself to harm at the hands of the very authorities he allegedly fears. [74] The RPD also noted the Appellant's delay in making a refugee claim upon arrival in Canada. The Appellant argues on appeal that he had a valid study permit which did not expire until XXXX XXXX, 2015; he appears to have initiated his refugee claim on or about August 4, 2015.55 [75] It is important to consider the Appellant's intentions in coming to Canada. He told the RPD that he came to Canada to seek safety. As the RPD observed, the Appellant is a university graduate who had some experience in living in a foreign country. In this context, it is difficult for the RAD to understand why the Appellant did not promptly seek protection. In fact, he delayed long enough that he was briefly out of status. While this issue is not of such significance as to be determinative of his refugee claim, it is a valid consideration. When this delay is considered together with his re-availments to Turkey, it suggests that he was indeed lacking in subjective fear. [76] Inconsistencies: The Appellant submits on appeal that "the panel's findings on inconsistency were unreasonable and do not bear up to a careful review of the recording... [The Member's] questions were often vague, particularly as it related to whether Mr. XXXX had 'any photos of himself participating in good causes.'"56 [77] As discussed above, the RAD is unable to guess at which unidentified questions the Appellant considers to be vague; it is for the Appellant to direct the RAD's attention to a transcript, recording, or portion of the RPD's decision. With respect to the question about "good causes," however, the RAD agrees that this was a vague question which led to an erroneous credibility finding. [78] The RPD wrote that it asked the Appellant for photos or articles of himself "supporting causes"; the Appellant explained that there might be such documents in his hometown. He later explained that such photos were of the landscape students' association, and the RPD found that his testimony had "evolved."57 Having reviewed that testimony, the RAD finds that the problem was not in the Appellant's answers, but in the RPD's question. After asking the Appellant about his proof of participation in "good causes," it was unfair for the RPD to fault him for offering photographs of his student association protesting changes affecting their future professional responsibilities. The RPD panel seemed to assume that it had asked the Appellant for photographic proof of his participation in political demonstrations, but this was not the case. [79] The Appellant also challenges the RPD's findings with respect to a document setting out his membership in a political party. The RPD noted that the Appellant, despite a claimed history of political involvement, did not take membership in any political groups until after he had decided to leave Turkey. He told the RPD that he joined the party in XXXX of 2014 because they were widening their policies and it was a time of relative political peace. He also joined a human rights society in XXXX 2014. The RPD found this suspicious, as the Appellant did not plan to remain in Turkey, and in fact was planning to move to Canada in XXXX of 2014. The RPD also noted objective evidence that the Turkish government became more authoritarian in 2013, banning and forcibly dispersing protests, and that the human rights situation had deteriorated markedly since 2010.58 [80] The Appellant argues on appeal that there was a cease-fire at the time between the Turkish government and Kurdish militants, and that he was no longer in Turkey when he joined the organizations, and that the political party he joined only came into existence in 2013. [81] Having reviewed the evidence, the RAD shares the RPD's concerns. The political party certificate was issued only after the Appellant began his efforts to come to Canada; he paid monthly dues only once, even though he did not come to Canada until many months later. He could not explain to the RPD why, if he wished to support the party, he did not pay dues, and he speculated that his dues were recorded elsewhere, despite a section on the form for precisely such information. Neither document includes the Appellant's signature, despite a signing line on the human rights certificate. He was not even physically present in Turkey at the time these documents were completed. [82] To sum up: the Appellant alleges that he was politically active for years, but could provide no proof in the form of membership documents. After he was allegedly detained and tortured for his political activities, after he left the country, and almost immediately after he began his efforts to come to Canada, he obtained membership documents. One does not show expected monthly dues; one does not have a signature where it should; both were apparently issued to the Appellant when he was not even in the country. The RPD observed that "the timing of these memberships raises the possibility that they were obtained to bolster a refugee claim." The RAD finds itself completely in agreement with this observation. Determination [83] The RAD has declined to admit the Appellant's proposed new evidence. The RAD has found that the RPD erred by failing to comply with the Chairperson's Guidelines with respect to the conduct of a hearing; however, this error was of no consequence to the Appellant, whose counsel clearly understood the issues to be met in the RPD hearing. The RPD also erred in making a negative credibility finding in relation to the Appellant's lack of photographs; what the panel characterized as evolving testimony was in fact the result of an unclear question posed by the panel. [84] The RPD's errors here are not fatal to its determination. The RAD, having reviewed the evidence, has reached the same conclusion as did the RPD. The Appellant is generally lacking in credibility. The RPD found that the Appellant's evidence was not straightforward and consistent; the Appellant concedes on appeal that his answers were "imprecise." He claimed that he was politically active for years, but his supporting documents were created only after he decided to come to Canada, and there are deficiencies in the documents themselves. The Appellant alleges that he has a well-founded fear of persecution in Turkey; however, even after horrific torture, he continued to visit the country and expose himself to the very authorities whom he allegedly fears. When he reached safety in Canada, where he planned to seek protection, he did not finally file a refugee claim until after his status had expired. While none of these concerns alone is sufficient basis to rebut the presumption of truthfulness, when considered together they lead the RAD to the same conclusion as that reached by the RPD: the Appellant is generally lacking in credibility. Request for an Oral Hearing [1] The Appellant asks the RAD to convene an oral hearing in his appeal. As the RAD has not accepted the Appellant's proposed new evidence, it has no choice but to refuse his request for a hearing.59 CONCLUSION [85] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld January 27, 2016 Date 1 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 4 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 6 See Cyril, Edward v. M.C.I. (F.C., no. IMM-3081-14), Brown, September 22, 2015, 2015 FC 1106, para. 13. 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 8 Ibid, Raza, paras. 13-15. 9 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. 214-215. 10 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014, 2014 FC 494, para. 45. 11 Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, paras 17-18. 12 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 56. 13 See also Khachatourian, Robert v M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 14 Singh, para. 55. 15 Singh, para. 58. 16 Deri, para. 56. 17 For example, Oluwole, John v. M.C.I. (F.C., no. IMM-6525-14), Southcott, August 14, 2015, 2015 FC 953, paras. 10 and 39; Ismailov, Dilshod v. M.C.I. (F.C., no. IMM-6839-14), Strickland, August 13, 2015, 2015 FC 967, para. 59; Denbel, Bekelech v. M.C.I. (F.C., no. IMM-3827-14), Mosley, May 13, 2015, 2015 FC 629, paras. 40-44. 18 For example, Shukurov, Sharof v. M.C.I. (F.C., no. IMM-6058-14), Fothergill, August 6, 2015, 2015 FC 949, para. 26; Ajaj, Firas Salem Munef v. M.C.I. (F.C., no. IMM-5604-14), Gascon, July 28, 2015, 2015 FC 928, paras. 61-63; Ching, Wai Kheong v. M.C.I. (F.C., no. IMM-1272-14), Kane, June 9, 2015, 2015 FC 725, para. 56; Khachatourian, Robert v. M.C.I. (F.C., no. IMM-4928-14), Noèl, February 13, 2015, 2015 FC 182, para. 37. 19 Niyas, Mohamed Zayan v. M.C.I. (F.C., no. IMM-6829-14), Locke, July 17, 2015, 2015 FC 878, para. 27. 20 Denbel, para. 43. 21 Cyril, para. 13. 22 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. 23 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. 24 IRPA, s 112(b.1). 25 Singh, para. 53. 26 Liu, Lanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007, 2007 FC 831, para. 18. 27 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." 28 Appellant's Record, Page 24. 29 Appellant's Record, Pages 19-23. 30 Appellant's Record, Page 71, Memorandum, para. 65. 31 Appellant's Record, Page 71, Memorandum, para. 65. 32 Appellant's Record, Page 17, Affidavit, paras. 8-9. 33 RPD's Reasons, para. 39. 34 RPD's Record, Page 45, IMM-5669, Question 7. 35 Appellant's Record, Page 71, Memorandum, para. 66. 36 M.C.I. v. Desalegn, Tiruedel Zenebe (F.C., no. IMM-862-15), Fothergill, January 7, 2016, 2016 FC 12, para. 17. 37 Appellant's Record, Page 25, Affidavit, paras. 7 and 8. 38 RPD's Record, Page 30, para. 18. 39 RPD's Record, Page 30, para. 19, and Page 46. 40 RPD's Record, Page 30, para. 19. 41 RPD's Record, Page 29, para. 16. 42 RPD's Reasons, paras. 45-50. 43 X (Re), 2015 CanLII 19235 (CA IRB). 44 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 45 Appellant's Record, Page 63, Memorandum, para. 34. 46 RPD's Record, Audio Recording, 7:45. 47 RPD Record, Page 25, Basis of Claim, Declaration. 48 Chairperson Guidelines 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, para. 5. 49 RPD's Record, Audio Recording, 2:24:00. 50 RPD's Record, Audio Recording, 2:27:40. 51 RPD's Record, Audio Recording, 2:38:10. 52 Refugee Appeal Division Rules, Section 3(3)(g). 53 RPD's Reasons, para. 41-43. 54 RPD's Record, Page 33, Basis of Claim Narrative, paras. 32-33. 55 RPD's Record, Page 53. 56 Appellant's Record, Page 68, Memorandum, para. 57. 57 RPD's Reasons, para. 50. 58 RPD's Reasons, para. 34. 59 Tota, Mevlan v. M.C.I. (F.C., no. IMM-2798-14), Boswell, July 21, 2015, 2015 FC 890, para. 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-13448