TB3-08688

RAD File No. / N° de dossier de la SAR : TB3-08688 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 February 17, 2014 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Richard M. Addinall Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX, a citizen of Tanzania, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection pursuant to sections 96 and 97(1) of The Immigration and Refugee Protection Act (IRPA). The Appellant asks that the Refugee Appeal Division (RAD) set aside the RPD's determination and substitute its own finding that the Appellant is a Convention refugee or a person in need of protection, or refer the matter to the RPD for redetermination by a differently-constituted panel. [2] The Appellant did ask that an oral hearing be held, pursuant to Section 110(6) of IRPA. [3] The Appellant has not submitted any new evidence in support of his appeal. As such, the RAD must proceed without a hearing. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) (a) of The Immigration and Refugee Protection Act, the Refugee Appeal Division (RAD) confirms the decision of the Refugee Protection Division. BACKGROUND [5] The Appellant was born on the island of Zanzibar, which is located just off the coast of Tanzania. The Appellant alleges that he continually expresses his political views towards the government due to the union of the island and the mainland. The Appellant alleges he was first detained in 1967 for calling the President of Tanzania a liar at the time he was giving a speech. The Appellant alleges he was arrested and detained numerous times during the 1980's, 1990's and 2010, and most recently in 2012. [6] He is afraid to return to Tanzania because he may be arrested and detained by the Zanzibar State Security for expressing his political views, and, if detained, he will die due to the prison conditions which would accelerate his diabetes. [7] The Appellant applied for a visitor visa and arrived in Canada on XXXX XXXX XXXX 2013 and claimed refugee protection. [8] The Appellant's application for refugee protection was heard on June 11 and July 03, 2013. In a decision dated October 25, 2013, the RPD rejected the Appellant's claim. The RPD found that the Appellant is not credible, and he is neither a Convention refugee nor is he a person in need of protection. Grounds for Appeal [9] The Appellant submits that the RPD ignored or misunderstood persuasive and highly probative medical evidence concerning the Appellant when assessing credibility. [10] The Appellant submits that the RPD misunderstands the basis of the Appellant's fear and erred in its assessment of the country documents. [11] The Appellant did not submit new documents to be considered as new evidence pursuant to ss 110(4) of the Act. Thus, the RAD will consider this appeal based on the record and memorandum of the Appellant. ANDARD OF REVIEW [12] The Appellant submits that the RPD made an erroneous finding in respect to him not being credible, which is a question of fact. [13] While the Appellant makes no specific submissions on the standard of review to be applied in this appeal, he argues that the RPD's decision was unreasonable and, in the RAD's view, this argument implies a deferential standard of review. [14] In assessing and selecting the appropriate standard of review for findings of fact, the RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,1 which take into account the list of factors in Dunsmuir.2 [15] The Newton factors include: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and, g) other factors that are relevant in the particular context. [16] 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, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. Based on the guidance from Newton cited above, the RAD focused on the factors listed below to determine the standard of review. [17] The Supreme Court of Canada in Khosa3 noted that the factors, in deciding the standard of review, are not a checklist of criteria: a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD with respect to the Newton factors, the RAD considered the following three most significant factors: the respective roles of the RPD and RAD in the context of the IRPA; the expertise and advantageous position of the RPD member compared to that of the RAD; and the nature of the question in issue. [18] It is noted that both the RPD and RAD derive their jurisdiction from and interpret the same statute, which is the Immigration and Refugee Protection Act (IRPA or the Act). Section 162 of the Act gives each Division the same powers, including the Refugee Protection Division, "in respect of proceedings brought before it under this Act that is sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." [19] The Roles of these divisions are not the same. The primary role of the RPD is to hear testimony, review evidence and determine a claim on its merits. The role of the RAD is to review those decisions based on questions of law, fact or mixed fact and law. It should be noted that the RAD may substitute a different determination than that made by the RPD where appropriate. It does make the RAD's role somewhat similar to that of the RPD in that both Divisions (RPD and the RAD) are engaged in refugee determination. [20] The presence of a right of appeal in and of itself does not warrant a correctness standard of review given the proscribed relationship between the RPD and RAD, and the limits imposed on RAD in IRPA are highlighted below. [21] The RPD, being the tribunal of first instance, has been given the authority in the Act to make a decision whether to accept or reject a claim for protection.4 RPD members have expertise in interpreting and applying the Act and are experts in assessing claims based on country conditions. The RPD must conduct a hearing5 and assess 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. The RPD has expertise in making findings of fact after directly taking testimony of witnesses and evaluating it. [22] The Act limits RAD's ability to gather and consider evidence. The RAD must proceed without a hearing in most cases on the basis of the record, submissions by the parties and new evidence, if any, accepted by it.6 The RAD's authority to consider new evidence and hold hearings is limited to the Appellant's evidence that arose after the rejection of the claim or that was not reasonably available, or that the person that is the subject of the appeal could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.7 The RAD however is not restricted by subsection 110(4) with respect to Minister's evidence or evidence submitted in response to Minister's evidence, under subsection 110(5). [23] The RAD can hold an oral hearing, under subsection 110(6) of the Act. Oral hearings can also be held based on the Minister's evidence or evidence submitted in response to the Minister's evidence. The RAD may conduct oral hearings under some circumstances where the new evidence raises a serious credibility issue "with respect to a person who is a subject of the appeal."8 [24] Given that the RPD has held a hearing on the totality of the evidence and has heard from the Appellant directly at a hearing, and the RAD's authority to consider new evidence and to hold oral hearings is limited in the IRPA, the RPD will, in most cases, be 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 is consistent with Newton, where it states with respect to the appellate division that: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".9 [25] Newton concludes that: "decisions 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 Board should not interfere".10 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.11 [26] The Appellant stated the issue in his memorandum12 that the RPD erred in law by ignoring or misunderstanding persuasive and highly probative medical evidence concerning the Appellant when assessing credibility: the medical report, the supplementary medical evidence, credibility findings, the persecution of the Appellant due to his political opinion opposing the union of Zanzibar with the mainland is not supported in the documentary evidence. [27] In my opinion, the issue can be rephrased as: did the RPD err in its credibility finding by ignoring evidence or by erroneous assessment of evidence before it. This is an issue of law and the appropriate standard of review is reasonableness. [28] According to the Supreme Court of Canada, reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.13 ANALYSIS [29] The Appellant submits that the RPD made errors of law by not designating the Appellant as a vulnerable person, in assessing credibility and the medical evidence and supplementary medical evidence, and in its findings concerning the well-foundedness of the persecution. [30] In this case, a review of the Reasons for Decision reasons of the hearing shows that, in its credibility determination, the RPD did specifically make findings on the three areas that the Appellant submits. [31] There is a presumption that the RPD has considered all the evidence before it and the RPD does not have to list each and every document that was submitted as evidence and reviewed by the RPD. However, this presumption can be rebutted. The case law is clear that a decision maker is required to address documentary evidence that goes to the heart of the matter. In Orgona,14 the court stated: "Even though it is not necessary to refer to all of the documentary evidence before it, when evidence, which supports the applicant's position, is not referred to, and when other documentary evidence is selectively relied upon, the tribunal, in my opinion, errs in law by ignoring relevant evidence." Moreover, in Ozdemir,15 the court stated "The more relevant the contradictory evidence, the greater the duty of the decision-maker to specifically reference it". [32] I will consider each of the three areas at issue. [33] RPD's failure to designate the Appellant as a Vulnerable Person: The Appellant submits that the RPD's refusal to designate the Appellant as a vulnerable person is demonstrative of its failure to give appropriate weight to the medical evidence, which, in turn, led it to err in its credibility findings.16 The RPD addressed this issue, by stating in its reasons that the Counsel for the Appellant made an application on May 31, 2013 to have the Appellant declared a Vulnerable Person which included a medical note to support the application, but that application was denied.17 The RPD then further stated that, at the first sitting of the hearing, counsel for the Appellant made an oral application for the Appellant to be designated as a Vulnerable Person. This oral application was also denied with extensive reasons provided by the RPD. [34] However, the RAD notes that the RPD gave the Appellant consideration given his medical concerns, "However, given that the claimant was more comfortable with counsel, the panel allowed counsel to question the claimant first."18 [35] I find that the RPD did not err by not designating the Appellant as a Vulnerable Person. The RAD finds that the argument put forth by the Appellant does not merit much weight. The RAD finds that the RPD findings in this area are reasonable and the RPD provided adequate and intelligible reasons for its findings.19 [36] RPD's erred in assessing credibility and the supplementary medical evidence: The Appellant submits that the RPD erred by failing to give adequate weight to supplementary medical evidence that was submitted post-hearing when assessing the credibility of the claimant's evidence. The Appellant further submits that the RPD considers the post-hearing evidence at paragraphs 32 to 36 of its decision and notes that "it had chosen to place greater weight on its own assessment of the claimant's ability to recall certain events and his overall credibility." Upon review of the Reasons for Decision, the RAD notes that the above submission from the Appellant is not entirely correct, but has been edited to reflect a different meaning. The actual quote is, "As a result of the above concerns, while the panel has taken into consideration this evidence, it had chosen to place greater weight on its own assessment of the claimant's ability to recall certain events and his overall credibility."20 The RPD articulates very clearly that it did consider all the medical evidence before it including the post-hearing in its decision.21 The RPD was specific about the problems it had with his perfect recall of some events and poor recall of others. It supported its findings; it addressed the medical condition of the Appellant at the very onset of the hearing, "the panel is cognizant of the medical evidence throughout the hearing in reaching its decision and found the note indicated that the medical personnel was just beginning to investigate the claimant's health issues, and while suspecting his health issues could be the cause of his apparent memory problems, the health professionals could not confirm that this was indeed the case."22 [37] The RPD cites in its decision; "as a result of the above concerns, while the panel has taken into consideration this evidence, it has chosen to place greater weight on its own assessment of the claimant's ability to recall certain events and his overall credibility. Based on the panel's observations, the claimant had a remarkable ability to remember many events of his life. For example, he was able to tell the panel that the union between Zanzibar and the mainland occurred in 1964 which is confirmed by the objective documentary. He was able to recall an incident in 1967 when he call the then president a liar and is consistent with his BOC."23 [38] The RAD has read the medical reports and notes that the reports mainly consist of detailed medical conditions of the Appellant regarding diabetes, coronary artery disease, peripheral vascular disease, cerebrovascular disease, and "that his short term memory appears very poor."24 The RAD, in reviewing this evidence, is mindful of the Federal Court decision, as stated in Rokni,25 a psychiatric/psychological letter submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danailov,26 with respect to the assessment of a physician's evidence and the question of the assessment of credibility. It was stated "that opinion evidence is only as valid as the truth of the facts on which it is based." The RAD finds that the RPD finding in this area is reasonable and the RPD provided adequate and intelligible reasons for its finding. [39] Assessing credibility and findings concerning the Well-Foundedness of Persecution: In the third issue before the RAD, the Appellant submits that the RPD makes much of the inconsistency in his evidence concerning his last date of detention.27 The Appellant concedes that he did provide contradictory evidence concerning this particular issue, but argues that RPD negative findings were unreasonable. The RAD disagrees with this argument. The Appellant provided no transcript, nor did it refer to where on the recording of the hearing these deficiencies were found, to support its arguments. The RAD has reviewed paragraphs 14 to 19 of the Reasons for Decision, notes that the Appellant answered the presiding member's questions, and those of his counsel without any difficulties. The Appellant was able to articulate why he was in detention; he was able to describe the process which one undergoes to obtain an identity card and a passport. The Appellant wrote on numerous forms, including his BOC (a total of four different forms)28 that his most recent period of detention was from XXXX 2012 until his release in XXXX 2012. The Appellant testified that while he was not charged with any crimes, he was detained only because of his speaking out against the current government. [40] However, during his testimony, the Appellant's counsel (who was first to question, as per RPD's consideration of the Appellant) asked questions regarding the evidence which had been submitted by the Minister regarding his VISA application, which was made while he was still being detained. The Appellant changed his testimony to reflect the Minister's evidence when confronted at the hearing. If the Appellant wasn't sure about the date of his detention, then he should have written that in the various forms, but he didn't, he wrote identical dates in all the forms.29 The RPD asked the Appellant how he obtained his identity card and passport. The RPD noted that the Appellant's passport was issued in XXXX 2012 and his identity card was issued in XXXX 2012. The Appellant was able to describe the process for obtaining both documents in detail. When asked how he was able to obtain these documents when he was in detention. The Appellant testified that he was unable to explain this and that he had nothing else to add.30 [41] The RPD's findings on credibility are reasonable and the RPD provided adequate and intelligible reasons for its findings. [42] The RPD found the issues of failure to claim in Brazil and repeated re-availment to Tanzania are inconsistent regarding who is the alleged agent of persecution and the reasons for the Appellant's fear. The Appellant alleges detentions by the authorities during the periods of 1984-1985, 1995-1996 due to his political views. The Appellant travelled to Brazil, from 1984 to 2004. The Appellant had met a woman in 1983 and began a common-law relationship which saw him travel and live in Brazil for periods of time. The Appellant made three more trips to Brazil from 1994 until 2004. The Minister raised the issue as to why the Appellant had not made a claim in Brazil, as Brazil is a signatory country to the 1951 Convention Relating to the Status of Refugee.31 The Appellant was asked whether or not he made any claims for refugee protection in Brazil during the trips he made to Brazil. The Appellant's counsel also asked the Appellant if he had considered making a claim in Brazil; the Appellant testified that he did not think of it at the time and it never came to his mind, explaining that for him to be a refugee is really bad luck.32 [43] The Appellant travelled back to Tanzania numerous times during the period when he alleges he was being detained by the authorities. In returning to his country of nationality, it would suggest that the Appellant did not have a subjective fear of persecution there. By definition, a Convention refugee is someone who has a well-founded fear of persecution. Fear is, by its very nature, subjective, while the well-foundedness of that fear is an objective matter. While both subjective and objective components are required to meet the definition,33 even a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail,34 under s. 96. While subjective fear is not determinative under s. 97(1), a lack of a genuine subjective fear goes to the credibility of the events as relayed. [44] The RAD is mindful further of the Federal Court when it stated; Return to the country of nationality may indicate that a well-founded fear of persecution is lacking, where the conduct is inconsistent with the fear.35 The RPD made accommodations for the Appellant and also gave him the opportunity to explain contradictions and found that his explanations were not reasonable. The RPD cited in its decision that the claimant travelled to Brazil numerous times and re-availed himself to Tanzania from 1984 until 2004. The Minister had intervened and raised the issue of the Appellant failing to claim in Brazil, as Brazil is a signatory to the 1951 Convention Relating to the Status of Refugees. The RPD outlines its reasoning in paragraphs 23 to 25 of the Reasons for Decision in regards to the Appellant`s explanations in failure to claim and his lack subjective fear. [45] The RAD, upon reviewing the evidence in its totality, finds that the RPD`s reasoning is supported by the evidence presented before it. The RAD finds that RPD's findings on failure to claim and lack of subjective fear are reasonable; the RPD provided adequate and intelligible reasons for its findings and they are transparent, justifiable, and intelligible.36 [46] Assessment of evidence is a question of fact where a reasonableness test applies. Given the analysis above, the RAD has to afford a considerable level of deference to RPD findings on questions of mixed fact and law as the RPD heard from the Appellant in person and assessed the evidence before it. [47] The reasons provided by the RPD are cogent and clearly state why the RPD took issue with the credibility of the Appellant's assertion that he would be persecuted or at risk upon return to his country of nationality. The RPD clearly identified "numerous contradictions" and stated reasons why the Appellant lacked believability. [48] The RPD's e credibility findings are based on the Appellant's inconsistencies with respect to when he was arrested and for how long he was arrested; his failure to claim, and his return to Tanzania. The reasons are transparent, justifiable, and intelligible. [49] Considering all of the above, it was reasonable for the RPD to find, on a balance of probabilities, that the Appellant is not credible. CONCLUSION [50] Based on the foregoing, I find that the RPD rendered a decision that fell "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law,37" and confirms the determination of the RPD pursuant to subsection 111(a) of the Immigration and Refugee Protection Act, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is, therefore, dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho February 17, 2014 Date 1 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 2 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 3 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 4 IRPA, s. 107. 5 IRPA, s. 170. 6 IRPA, s. 110.3. 7 IRPA, s. 110.4. 8 RAD, Rule 57 9 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 11 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 12 Appellant's Record (AR), page 90, paragraph 10 13 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 14 Orgona v. Canada (Minister of Citizenship and Immigration), 2001 FCT 346 at 31 15 Ozdemir v. Canada (MCI), 2001 FCA 331; Cepeda-Guiterrez v. Canada (MCI), [1998] F.C.J. No.1425; Obot v. Canada (MCI), 2012 FC 208; and Malveda v. Canada (MCI), 2008 FC 447. 16 Appellant's record, page 92, paragraph 15 17 Reasons for Decision, paragraph 7 18 Reasons for Decision, paragraph 8 19 Reasons for Decision, paragraphs 31 - 37 20 Reasons for Decision, paragraph 36 21 Reasons for Decision, paragraphs 31 to 38 22 Reasons for Decision, paragraph 31 23 Reasons for Decision paragraph 33 -36 24 Appellant's record, pages 57 to 66 25 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 26 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2. 27 Reasons for Decision, paragraphs 15 to 19 28 Reasons for Decision, paragraph 14 29 Reasons for Decision, paragraphs 16 to 19 30 Reasons for Decision, paragraphs 17 and 18 31 Reasons for Decision, paragraphs 21-22 and RPD Record, exhibit 6, Minister's Submission 32 Reasons for Decision, paragraphs 23-25 33 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 34 Kamana, Jimmy v. M.C.I. (F.C.T.D., no. IMM-5998-98), Tremblay-Lamer, September 24, 1999. 35 Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., no. A-266-91), Marceau, (dissenting) Desjardins, Létourneau, May 13, 1993. 36 Reasons for Decision, paragraphs 23-25 37 Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9 at para 47 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08688