VB3-01397

RAD File No. / N° de dossier de la SAR : VB3-01397 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at In Chambers Appel instruit à Vancouver, BC Date of decision August 29, 2013 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person(s) who is(are) Leanna M. Nicole Krause Conseil(s) du (de la/des) the subject of the appeal Barrister & Solicitor personne(s) en cause Counsel for the Minister Garrett Toporowski Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a citizen of Honduras, appeals a decision of the Refugee Protection Division ("RPD") rejecting his claim for refugee protection. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),1 the Refugee Appeal Division ("RAD") confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee pursuant to section 96 of the Act nor a person in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] The appellant, a minor at the time of the RPD hearing but now 18 years of age, alleges that he fears persecution in Honduras due to the attempts of the gang "Mara 18" to forcibly recruit him to become a member of the gang. [4] The appellant's problems with the gang began when he was approximately 14 years of age. Gang members would come to his place of work, and on one occasion, violently assaulted him for refusing to join the gang. This attack at the appellant 's place of work caused him to lose his employment, as his employer did not want to encounter future difficulties from the gang arising from the appellant's continued presence at that place of employment. [5] The appellant recounted two instances in his amended Personal Information Form (PIF) that occurred when he was fifteen years of age in which he was shot at by members of the gang for refusing to join. The appellant testified that he was shot at by members of the gang on five or six occasions. [6] After the most recent shooting incident, the appellant fled his home town of Villa Franca and went to stay with his sister in San Matias. The gang members located the appellant at his sister's residence, again demanded that he join the gang, and informed him that he had two days to provide them with an answer; otherwise they would kill him and hurt members of his family. [7] Shortly after this incident, the appellant fled to Mexico in XXXX2011. From Mexico the appellant travelled to the United States, where he remained without status from XXXX2011 until travelling to Canada in XXXX2012. The appellant entered Canada illegally on XXXX XXXX, 2012, and made his claim for protection at the immigration office in Vancouver on the same date. [8] The RPD heard the appellant's refugee protection claim on April 8, 2013. The appellant was represented at his hearing by the same counsel representing him in this appeal. [9] The RPD's written reasons dated May 15, 2013 stated that the determinative issue in the appellant's case for refugee protection was credibility and found the appellant's allegations not to be credible. The appellant was found not to be a Convention refugee or a person in need of protection. [10] The RPD reasons stated the member took into consideration the appellant's young age, the Chairperson's Guidelines 3: Child Refugee Claimant: Procedural and Evidentiary Issues (the "Chairpersons guidelines"),2 and the appellant's low level of formal education. The RPD member found that many of the inconsistencies in the appellant's evidence that were noted by Minister's Counsel in his submissions can be attributed to these factors, and accordingly were not held against the appellant when assessing his credibility. [11] The appellant submitted his original PIF on December 7, 2012, and an amended PIF on March 28, 2013. Counsel for the appellant in her written submissions to the RPD submitted that negative credibility findings should not be made based on issues arising from the original PIF, as this form was completed without the benefit of counsel, a designated representative, and proper interpretation. Further, the appellant testified that he was not sufficiently comfortable with the person who assisted him to complete the original PIF to share with that person his entire refugee claim story. The RPD member in his reasons stated he did not accept the appellant's explanations for the omission of the shooting incidents in the original PIF. While the RPD member acknowledged that the claimant's personal characteristics, the Chairperson's Guidelines and the situational factors could have inhibited a fulsome completion of the original PIF, the RPD member did not accept that the appellant would not realize the importance of including important details such as having been shot at. [12] The RPD's key findings are outlined below focusing on the credibility of the appellant's allegations. * The RPD identified as a significant contradiction in the appellant's evidence the discrepancy between his original PIF, the amended PIF, and his oral testimony regarding instances in which he had been shot at. No mention is made in the original PIF of the appellant having ever been shot at. In the amended PIF, the appellant relates two occasions in which he was shot at. However, in the appellant's oral testimony, he stated that he was shot at five to six times. The appellant's explanation for the discrepancy between his oral testimony and the amended PIF was that he had chosen to only relate the most recent two events in which he had been shot at. The RPD did not accept the appellant's explanations. * The RPD member identified as "exacerbating" the impact of the afore-noted contradictions was what he found to be an illogical sequence of events the appellant described that transpired prior to him leaving his country of nationality. The RPD member found the actions of the gang to be implausible. The RPD did not accept the appellant's explanations that gang members "got along" with the appellant as it fails to account for why the gang attempted to kill him. * The RPD member also considered the letters from the appellant's family members that allegedly corroborated his story. However, the RPD member placed more weight on the above referenced contradictions rather than the letters which he considered to be sources of unknown reliability and questionable impartiality. The RPD also noted that the letters seem to have been written on the same type of stationary with a similar printing style. The RPD member concluded that it was not clear to him that these letters were in fact by the people who signed them. * The RPD member also found that certain documentary evidence3 did not establish, on a balance of probabilities, that the Honduran criminal gangs rely heavily on forced recruitment; but provides "contrasting perspectives" on this issue. Submissions [13] The appellant submits that the RPD erred by: (a) ignoring relevant evidence that directly contradicts his conclusions; and (b) "breaching the appellant's duty of procedural fairness" by not giving the appellant an opportunity to respond to concerns regarding his evidence. [14] The appellant has not requested an oral hearing on this appeal. [15] The specific remedy sought under section 111 of the Act is that RAD under subsection 111 (b) of the Act set aside the determination of the RPD and substitute a determination that the appellant is a Convention refugee or person in need of protection, or in the alternative, under subsection 111(c), refer the matter back to a different member of the RPD for redetermination. [16] Counsel for the appellant in the "Appellant's Memorandum" did not make any submissions as to the standard of review for this appeal. [17] The appellant has presented new evidence in support of this appeal. [18] The Minister has intervened in this appeal. No new evidence was submitted by the Minister but an Intervention Record was submitted on July 17, 2013 with the Minister's submissions on this appeal. The appellant's reply was received on August 2, 2013. Consideration of New Evidence [19] The appellant has submitted the following as new evidence pursuant to subsection 110(4) of the Act: (i) A letter from the appellant's grandmother dated June 11, 2013: (ii) A letter from the appellant's cousin XXXX XXXX dated June 11, 2013; and (iii) A psychological report from Dr. XXXX XXXX XXXX dated June 24, 2013 as to the psychological state of the appellant. [20] Subsection 110(4) of the Act provides that the appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [21] Documents (i) to (iii) clearly arose after the rejection of the appellant's refugee claim. As such, these documents pass the test set out in subsection 110(4) of the Act. This does not, however, require the RAD to admit the document into evidence without any further consideration. In Raza,4 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of Act subsection 110(4), it is based on the very similar wording of subsection 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.5 [22] Document (i) is a letter from the appellant's grandmother dated June 11, 2013 which refers to continuing threats to the appellant as of June 1, 2013 and an incident involving the appellant's cousin when the gang members allegedly mistook him for the appellant. The letter also states that the writer dictated the text to a family member as she is unable to write. This appears to address the concern noted by the RPD member in his reasons as to the identity of the letter writers. I find that document (i) is relevant to this appeal and therefore accept this document into evidence. [23] Document (ii) is a letter from the appellant's cousin XXXX XXXX dated June 11, 2013 which appears to corroborate elements of the appellant's story, indicating that he had been mistaken for the appellant and threatened by gang members on several occasions. XXXX letter also describes the incident that appears to correspond to that described by the appellant's grandmother stating that it happened in the month of XXXX (year unspecified). I find that document (ii) is relevant to this appeal and therefore accept this document into evidence. [24] Document (iii) is a psychological report dated June 24, 2013 from Dr. XXXX XXXX XXXX of the Vancouver based Bridge Clinic as to the psychological state of the appellant. This report addresses the psychological state of the appellant which has been addressed in the RPD reasons. I find this document to be relevant and accept it into evidence. Standard of Review [25] Counsel for the appellant in the "appellant's Memorandum" did not make any submissions as the standard of review for this appeal. Although the Act sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [26] Counsel has identified the issues in this appeal being whether or not the RPD erred by: (a) ignoring relevant evidence that directly contradicts his conclusions; and (b) "breaching the appellant's duty of procedural fairness" by not giving the appellant an opportunity to respond to concerns regarding his evidence. [27] The first issue identified in this appeal is whether or not the RPD erred by ignoring relevant evidence that directly contradicts his conclusions. I find that this issue is one of mixed fact and law. [28] In Dunsmuir,6 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,7 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute but again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [29] In assessing and selecting the appropriate standard of review for questions of mixed fact and law, the RAD also considered the factors outlined in Newton v. Criminal Trial Lawyers' Association.8 The Newton factors deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance, such as is the case with the RPD and RAD. Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The contextual approach to assessing which factors are most appropriate in setting the standard of review has been established in Khosa.9 The most significant factors to consider in establishing the standard of review of a decision by a tribunal of first instance by an appellate tribunal are: * the respective roles of the RPD and RAD in the context of the Act; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue [30] Both the RPD and RAD derive their jurisdiction from and interpret the same home statute: the Immigration and Refugee Protection Act. Subsection 162 (1) of the Act gives each Division, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." RAD has been given the supervisory jurisdiction to decide appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact.10 The level of deference which the RAD provides to the RPD depends on the question at issue, in this case questions of mixed fact and law. [31] The presence of a right of appeal does not warrant a correctness standard of review given the proscribed relationship between the RPD and RAD, and the limits imposed on RAD in the Act. [32] The RAD finds that the RPD is to be provided with deference on questions of fact and mixed law and fact as it relates to the assessment of the claim for protection. The RPD is a tribunal of first instance which has been given the authority in the Act to make a decision to accept or reject a claim for protection.11 RPD members have expertise in interpreting and applying the Act, as well as are experts in assessing claims based on country conditions. The RPD must conduct a hearing12 and assesses the totality of the evidence, including evidence related to the credibility of the appellant and witnesses, after it has had an opportunity to see the claimants, hear their testimony and question them. [33] In contrast to the RPD's authority to assess a claim for protection, the Act limits RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance but exists to review the decision made by the RPD. RAD must proceed in most cases without a hearing on the basis of the record, submissions by the parties; and new evidence.13 Appeals to the RAD are party driven and do not provide appellants an opportunity to have their claims de novo. RAD's authority to hold hearings is limited to evidence that arose after the rejection of the 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.14 Hearings are also limited to only specific issues (serious credibility issues) which are directed by the RAD.15 [34] Given that the RPD has held a hearing on the totality of the evidence and given that the RPD has heard from the appellant directly at a hearing, the RPD is in the best position to assess the credibility of the appellant and to make findings on issues of fact, and mixed law and fact related to the claim. This position is consistent with Newton at paragraph 82 when it indicates: "The [Refugee Appeal Division] is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer and the conclusions reached by him".16 [35] Newton concludes that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the [Refugee Appeal Division] should not interfere".17 Newton adopts the definition of "reasonableness" in Dunsmuir. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process of the RPD; and that the RPD decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.18 [36] For the reasons outlined above, the RAD has afforded a considerable level of deference to RPD findings on questions of mixed law and facts in this claim and will consider whether the findings relating to the second issue raised in this appeal meets the reasonableness test. [37] The second issue identified in this appeal is whether or not the RPD denied procedural fairness by not confronting the applicant with its concerns regarding his evidence. As this entails one of procedural fairness, it is reviewable on the correctness standard.19 Analysis of the Merits of the Appeal [38] Based on a review of all of the evidence before the RAD, the RPD reasons, and the pleadings, the RAD focused on whether or not the RPD erred by: (a) ignoring relevant evidence that directly contradicts his conclusions; and (b) "breaching the appellant's duty of procedural fairness" by not giving the appellant an opportunity to respond to concerns regarding his evidence. [39] The first issue associated with this appeal, is whether or not the RPD member erred by ignoring relevant evidence that directly contradicts his conclusions in making his negative credibility finding. Counsel for the appellant submits that the Federal Court has repeatedly held that, even in situations where a claimant is found not to be credible, the decision-maker must still consider the objective documentary evidence to determine if this evidence establishes that the claimant is a Convention refugee or a person in need of protection. [40] Counsel on page 249 of the appellant's record states that in reference to the risk of forced recruitment, the RPD member found that the documentary evidence provides "contrasting perspectives on the issue". Counsel submits that the documentary evidence indicates that forced recruitment is still possible and that the appellant fits the profile at risk such that the RPD member erred in not considering, on a balance of probabilities, that the appellant was being forcibly recruited despite his negative credibility finding. The Minister submits the RPD member did conduct an analysis to determine if the appellant was being forcibly recruited into the gang but failed to establish, on a balance of probabilities, a personal risk. It is clear that such assessments as per Counsel's submission are to be made on a case-by-case basis depending on the nature of the evidence presented. I also note that Federal Court jurisprudence clearly establishes that: The lack of evidence weighing to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met.20 [41] Counsel submits that the RPD member ignored evidence when he concluded that part of the appellant's story was implausible. In the RPD reasons,21 the RPD member states "First, the claimant refused the gang's request that he join the gang." Counsel submits that this is a factual error as the appellant clearly stated he never told gang members that he would not join but had asked them on several occasions to wait and give him some time to make a decision. [42] I have reviewed the transcript of the RPD hearing and agree that the appellant had testified that he had never told the gang members he refused to join the gang. The Minister submits that it was reasonably open to the RPD member to conclude that the appellant had refused to join the gang based on his delay and avoidance tactics. While the Minister's argument on this point may have some merit, I find that the RPD would need to have explained in his reasons how he reached such a conclusion based on the evidence. Based on the above, I find that the RPD member did make a factual error which renders the implausibility finding to be unreasonable. However I also find that this error does not in itself invalidate the RPD's overall credibility findings. The specific credibility findings by the RPD member were based on the significant discrepancies between the appellant's original PIF, the amended PIF and his oral testimony. [43] I also considered the new evidence that has been accepted for this appeal. The first item is a letter from the appellant's grandmother dated June 11, 2013. In this letter, the appellant's grandmother states that on XXXX XXXX, 2013 she was warned by a family friend that gang members had agreed to kill the appellant's because they are already sure that he was living in Canada and were only waiting for him to be deported. The grandmother also stated that XXXX, her other grandson and the appellant's cousin, was recently, but on an unspecified date, beaten by gang members who intended to kill him in the belief that he was the appellant. The grandmother intervened, telling gang members that this was not the appellant, and he was freed. There is no indication in this letter that the grandmother considered reporting this incident to police nor that she had any reason not to do so. [44] The second item in the new evidence is a letter from XXXX, the appellant's cousin. XXXX described how he has been mistaken by gang members several times for the appellant. The letter also describes an event that happened in XXXX (year unspecified) that corresponds to the same event in the grandmother's letter where XXXX was beaten by gang members who intended to kill him, thinking he was the appellant. There is no indication in this letter that the cousin or his family considered reporting this incident to police nor that he had any reason not to do so. XXXX stated that he transferred to another school for his safety. [45] The credibility of the allegations contained in these letters from family members is difficult to assess given the lack of any corroborating evidence such as police reports. I also note that as family members the letter writers do have an interest in the outcome of the appellant's appeal. I therefore give little weight to these letters from family members. I have assessed the letters in the context of the rest of the evidence in the case and I find that the letters, given their inherent difficulties as outlined above, do not overcome the fact that the claimant's allegations of recruitment are not credible. [46] The third item in the new evidence is a psychological report dated XXXX XXXX, 2013 from Dr. XXXX XXXX XXXX of the Vancouver based Bridge Clinic as to the psychological state of the appellant. In this report, the doctor states that the appellant may have difficulty with memory, concentration and anxiety. The appellant reported head injuries which could not be verified without further consultation with a neuropsychologist and/or a CT scan. The psychologist's overall conclusion appears to be inconclusive as on one hand he assesses his symptoms as being "in the spectrum" of PTSD or Major Depression but does not fully qualify for diagnosis. I note that at the time of the RPD proceedings, there was no testimony from the appellant nor were submissions made by counsel indicating that the psychological state of the appellant was a factor in his claim for refugee protection. Apparently it was only after the hearing that the appellant's friend advised counsel of possible memory problems that could have been a factor in his hearing. The transcript does not indicate that a friend was present at the hearing. I find that the appellant has not provided sufficient evidence that his psychological condition at the time of the hearing would have explained the credibility problems noted by the RPD member. [47] Having considered all the evidence, I find that the appellant has not provided sufficient evidence that the risk of forced recruitment into criminal gangs in Honduras for someone matching the appellant's profile establishes a well founded fear of persecution based on a Convention ground nor has he established on a balance of probabilities that he faces a risk to his life or of cruel and unusual treatment or punishment or a danger of torture. [48] The second issue identified in this appeal was whether or not the RPD erred by breaching the duty of procedural fairness owed to the appellant by not giving him an opportunity to respond to concerns regarding his evidence. Counsel is specifically referring to the RPD member's treatment of the letters that had been provided by family members and a former employer. In his reasons, the RPD member indicated he had considered these letters but had placed more weight on the contradictions in the appellant's testimony and evidence as noted in his reasons rather than the letters which he considered to be from sources of unknown reliability and questionable impartiality. The RPD member also noted that the letters appear to have been written on the same type of stationary and have similar printing style despite having been allegedly written by different persons in different cities. The RPD member expressed a doubt as to whether or not these letters were written by the people who signed their names to them. [49] Counsel for the appellant submits that as the RPD member never raised his concerns regarding the letters at the refugee hearing, the appellant was never given a chance to offer a reasonable explanation. Counsel submits that this failure to raise the concerns at the refugee hearing represents a breach of procedural fairness. In the Minister's Intervention Record, the Minister submits that the RPD member's concerns over the letters were not determinative in the RPD's overall findings on credibility. As this was not used against the appellant, the Minister submits there was no need for him to respond and as a consequence there was no breach of procedural fairness. [50] It was the appellant who chose to submit letters rather than introducing such evidence by way of live testimony or by telephone conference. I have examined the RPD and appellant's records and no questions were asked at the hearing by the RPD member, counsel nor the Minister's representative that dealt directly with the family letters. The written submissions filed with the RPD by counsel and the Minister's representative did not address the family letters. [51] The RPD member stated in his reasons that the letters appear to have been written on the same type of stationary and have similar printing style despite having been allegedly written by different persons in different cities. A simple review of the letters provided in pages 139-153 of the RPD record indicates that the writing style in the letters of two sisters and a former employer do appear to be very similar. The grandmother's letter is written in a different writing style not similar to the other letters. Family members may often have similar handwriting styles but this does not explain why the handwriting in the letter allegedly written by a former employer, a non-family member is similar to that of the appellant's sisters. Adding to the confusion on this point is that in the appellant's record on page 262 counsel states that the letter written by the grandmother was written by the appellant's cousin XXXX. A review of the letters submitted in the RPD record would suggest that similarities noted by the RPD referred to the letters written by the sisters and the former employer, not the grandmother. [52] However, the issue here is whether or not the RPD erred by breaching the duty of procedural fairness owed to the appellant by not giving him an opportunity to respond to concerns regarding his evidence. Counsel for the appellant submits that not to give a refugee claimant an opportunity to respond to concerns regarding the authenticity of documents submitted in support of his/her claim on which the decision-maker intends to rely in refusing the claim constitutes a breach of procedural fairness. The Minister submits that, as the letters were not determinative in the member's overall findings credibility, there was no need for further examination on the letters and thus no breach of procedural fairness. Based on my review of the RPD record, the member did not find these documents not to be credible nor did he rely on these letters in making his overall credibility assessment. Rather, the member placed more weight on the appellant's testimony and considered the letters to be of "unknown reliability and questionable impartiality". I find the RPD member's decision to place more weight on the appellant's testimony to be reasonable in these circumstances. [53] The specific credibility findings by the RPD member were based on the significant discrepancies between the appellant's original PIF, the amended PIF and his oral testimony. I find that the RPD clearly considered the credibility concerns associated with the appellant's claim for refugee protection as the determinative basis for its decision. This is clearly stated in the decision of the RPD. I find that there was no breach of natural justice. [54] Upon review of all evidence submitted in respect of this appeal, I find that the RPD reasonably considered the credibility concerns associated with the appellant's claim for refugee protection as the determinative basis for its decision and that the was no breach of procedural fairness in the RPD proceedings. The basis of the RPD credibility findings are clearly stated in the decision of the RPD. It was reasonable for the RPD to reach its decision on the credibility findings. [55] In summary, I find that the RPD findings and conclusion are reasonable and that counsel's arguments do not lead me to come to a contrary conclusion. Having considered all the evidence, I find that the RPD reasons do fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDIES [56] For all these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. This appeal is therefore dismissed (signed) "Douglas Fortney" Douglas Fortney August 29, 2013 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Chairperson's Guidelines Refugee Protection Division. Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act. Effective date: September 30, 1996. 3 National documentation Package (NDP). Honduras. Item 7.2. June 8, 2012. United States. January 3, 2011. Congressional Research Service. Clare Ribando Seelke. "Gangs in Central America." http://www.fas.org/sgp/crs/row/RL34112.pdf 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 5 Ibid., paras. 13-15. 6 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. 7 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 8 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 43. 9 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 10 Subsection 110 (1) of the Act. 11 Section 107 of the Act. 12 Section 170 of the Act. 13 Subsection 110 (3) of the Act. 14 Subsection 110 (4) of the Act. 15 RAD Rule 57. 16 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 17 Newton, Supra, paragraph 95. 18 Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir). at para 47. 19 Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 54. 20 Cruz Herrera v. Minister of Citizenship and Immigration, 2007 FC 979, para 23. 21 Appellant's Record page 8, para 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-01397