TB3-03034

RAD File No. / N° de dossier de la SAR : TB3-03034 TB3-03035 TB3-03036 TB3-03037 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX (a.k.a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a.XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 8, 2013 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (Appellant), and his three minor children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, citizens of Nigeria, have appealed a negative refugee determination dated April 12, 2013. The Refugee Appeal Division (RAD) assumed that the Appellant has remained the designated representative (DR) for his children as the designation of the DR at the Refugee Protection Division (RPD) is deemed to continue for a RAD appeal under RAD Rule 23(1). DETERMINATION [2] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the Refugee Protection Division that the Appellants are not Convention refugees nor are they persons in need of protection. BACKGROUND [3] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXThe Appellants arrived in Canada via Amsterdam on XXXX XXXX, 2013 and made their claims for protection upon arrival in Canada. [4] The Appellants had a refugee determination hearing on March 5, 2013. Written reasons dismissing the claims were issued on April 12, 2013. In its decision, the RPD panel found the following: 1. The Appellants failed to link their claims to a Convention ground, and therefore the claims will be assessed based on s. 97 of IPRA. 2. The principal Appellant was found not to be credible based on discrepancies and omissions in his evidence as well as his explanations which did not make sense. The following credibility concerns formed the RPD's finding of an overall lack of credibility: a) The Appellant was found not to be a Branch Manager given concerns with his letter of appointment and his lack of knowledge of the Directors of XXXX XXXX which would be commensurate with someone who occupied a position of XXXX XXXX XXXX b) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. c) The Appellant's medical evidence was given little weight, as it does not establish the cause of the injuries or the medications prescribed. d) The Appellant's testimony related to not having his phone taken away by kidnappers was inconsistent, and his failure to use the phone when he was kidnapped was not consistent with someone who thought his life was at risk. e) The affidavits from the Appellant's sister and friend were found to be insufficient to support a credibility finding as they do not provide objective accounts of events. 3. The Appellant's counsel's pleadings state that the RPD's negative credibility findings arose from a "perverse and capricious assessment of the totality of the evidence". The RPD's findings were based on speculation and unwarranted inferences. The Appellant's counsel points to the following examples from the RPD's reasons to support this assertion: a) The RPD erred by focusing on the one XXXX letter that did not have a logo and did not assess this piece of evidence based on the totality of the XXXX evidence presented to the RPD. b) The RPD erred in its finding that the Appellant's employment was not credible given that he did not know XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. c) The RPD erred in its negative credibility finding based on the Appellant's failure to immediately remember the name of the XXXX XXXX. d) The RPD erred in its assessment that the omission of the conversation with the XXXX XXXX XXXX was significant. e) The RPD erred in its negative credibility finding associated with the Appellant's failure to leave his job immediately after the threats. f) The RPD erred in not taking into account the date that the Appellant visited the hospital. g) The RPD erred in its finding that it was implausible that the Appellant would not make a call when he was kidnapped. h) The RPD erred by not providing adequate reasons for placing little weight on the affidavits from the Appellant's sister and friend. [5] The Appellant did not provide any new evidence to be considered in the appeal. The Appellant's counsel requests that the "judicial review be granted" and failed to request a particular remedy under s. 111 of IRPA. STANDARD OF REVIEW [6] The Appellant argues that the RPD made several errors of fact, as well as credibility and plausibility findings that were not supported in the evidence which are also errors of fact. Counsel also argued that the Appellants were members of a particular social group and that the RPD erred in limiting its assessment to a Section 97 analysis. [7] 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 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. [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, and, as such, these factors are very relevant to the relationship between the RPD and the RAD. Based on the guidance in Newton, the RAD focused on the factors listed below to determine the standard of review. The Supreme Court of Canada, in Khosa,3 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 IRPA; * the expertise and advantageous position of the RPD member compared to that of the RAD; and * the nature of the question in issue. [9] Both the RPD and RAD derive their jurisdiction from and interpret the same statute: IRPA. Section 162 of IRPA gives each Division the same powers, 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." With respect to the respective roles of the RPD and RAD in the context of IRPA, the powers of each Division are the same although their roles are not the same. It is the primary role of the RPD to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on questions of law, fact, or mixed fact and law. However, the fact that the RAD may, where appropriate, substitute a different determination than that made by the RPD does make its role similar to the RPD in that each Division is engaged in refugee determination. [10] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;4 however, 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 the RAD in IRPA highlighted below. [11] The RPD is a tribunal of first instance which has been given the authority in IRPA to make a decision to accept or reject a claim for protection.5 RPD members have expertise in interpreting and applying IRPA and as well are experts in assessing claims based on country conditions. The RPD must conduct a hearing6 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. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [12] In contrast to the RPD's authority to assess a claim for protection, IRPA limits the 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. The RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.7 The RAD's authority to consider new evidence and 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.8 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.9 [13] 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, and given that the RAD's authority to consider new evidence is limited in IRPA, 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, where it indicates 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".10 [14] 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 Board should not interfere".11 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's decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.12 [15] In the case at hand, the Appellant alleges that the RPD made errors of fact, including findings that were speculative and implausibility findings which were not properly supported. Given the analysis above, the RAD therefore has afforded a considerable level of deference to the RPD's findings on questions of facts in this claim and will consider whether the findings meet the reasonableness test outlined above. [16] Dunsmuir indicates that errors of law and issues of general legal importance, e.g. principles of natural justice and procedural fairness which fall outside the specialized area of expertise of the RAD, the RAD adopts the correctness standard of review.13 [17] Counsel argued that the RPD erred in not assessing a nexus under Section 96 which is a question of law. Counsel indicated in her pleadings that the Appellants were members of a particular social group; however, no group was specified. A review of the evidence indicated that the Appellants fear XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and police because the Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Board has been upheld in its finding of lack of nexus, where a claimant was the target of a personal vendetta14 or where the claimant was a victim of crime.15 The Appellants' fear in this case is not linked to race, ethnicity, religion, to real or imputed political opinion or to any other Convention ground. The RAD concludes that the Appellants fear future crime based a personal vendetta. As such, their fear is not linked to a Convention ground and counsel's argument that the Appellants fall within the Convention ground of Particular Social Group fails. The RAD finds that the RPD did not err in limiting its assessment of the claim to s. 97 of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [18] Based on a review of all of the evidence, the RAD focused on two determinative issues: a) Did the RPD err in its assessment that the Appellant was not the XXXX XXXX XXXX XXXX?; and b) Were the RPD's credibility findings regarding the Appellant's allegations reasonable as per Dunsmuir?16 Was the Appellant a XXXX XXXX XXXX XXXX? [19] The Appellant's counsel argued that the RPD erred in its finding that the Appellant was not XXXX XXXX XXXX XXXX XXXX by focusing on the appointment letter17 that did not have a logo to the exclusion of the other evidence. Counsel argued that the letter in question needed to be assessed based on the totality of the evidence related to the Appellant's employment presented to the RPD. [20] The RPD argued that the Appellant's allegation that he was a manager was not credible based on concerns with the appointment letter and the Appellant's failure to know all XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [21] The RAD considered the totality of the evidence before it and found that the Appellant provided sufficient credible and trustworthy documentary evidence to support his claim that he had been a long-term XXXX employee. The Appellant was able to remember some of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and he testified with sufficient detail to persuade the RAD that he was a XXXX employee. The RAD finds that the RPD's analysis was microscopic and its expectation that an employee remember all of the XXXX XXXX XXXX XXXX was not a reasonable expectation on the part of the RPD, and was not sufficient to ground a negative credibility finding in the face of the remaining evidence that the Appellant presented in support of his employment. [22] Based on a review of all of the employment evidence before the RAD, the RAD finds that the Appellant has provided sufficient credible or trustworthy evidence to attest to his employment as a XXXX XXXX XXXX XXXX. As such, the RAD finds that the RPD's findings that the Appellant had not established his employment at XXXX XXXX not to be reasonable. Credibility of Allegations of Threats and Kidnapping [23] The RAD finds that the RPD's determination that the Appellant's allegations of XXXX XXXX XXXX and his subsequent threats and kidnapping were not credible based on inconsistencies and omissions, which were reasonable for the reasons that follow. Omission of Conversation with the XXXX XXXX XXXX XXXX XXXX XXXX XXXX [24] The RPD found that the omission of the conversation with the XXXX XXXX XXXX XXXX wherein he was told that he would get a cut XXXX XXXX XXXX XXXX undermined the credibility of the allegation. When asked to explain the omission, the Appellant indicated that he had to fill out his forms hastily. The RPD rejected this explanation given that the Appellant had fifteen days after his arrival to complete his BoC narrative, and he completed his BoC Form after retaining counsel. [25] The Appellant also explained that he thought that he could give details at the hearing. The RPD dismissed this explanation given that the claimant was readily able to give details to his counsel. The RPD found that the omission was significant as this was the first time that the Appellant found out that XXXX XXXX XXXX XXXX XXXX and it was also the first time that the Appellant was asked to break the law. [26] The Appellant provided a significant amount of detail regarding his allegations in his BoC. In fact, his allegations took up over 50 type-written lines and provided a high degree of detail concerning the entirety of the claim. The RAD therefore finds that the RPD's negative credibility inference drawn from the failure of the Appellant to mention the conversation with the XXXX XXXX was reasonable as the event was significant, as this was the first time that the Appellant was being asked directly to break the law and become involved in a XXXX XXXX XXXX XXXX [27] The Appellant did present correspondence18 related to the XXXX XXXX XXXX and his decision XXXX XXXX XXXX XXXX XXXX XXXX While this evidence speaks XXXX XXXX XXXX, it has less probative value in relation to the Appellant's allegations of threats and kidnapping, especially given the significant omission identified above. [28] A review of the RPD record demonstrates that the RPD explored the Appellant's explanations for the omission and provided a well-reasoned rationale for its decision to assign a negative inference to the omission. As such, the RAD finds that the RPD did not err in finding that the omission undermined the credibility of the Appellant's allegations, as its findings were reasonable. Medical Evidence [29] The RPD found that the letter from the General Hospital in Lagos19 was inconclusive and afforded the letter little weight as it did not include any objective evidence that establishes the causation of the injuries. The RPD also found that the letter was silent on the Appellant's dehydration and weight loss. The Appellant's counsel argued in her pleadings that the date of the hospital report is vital to the claim, as it indicates that the Appellant went to hospital immediately upon fleeing his kidnappers. [30] The RAD considered the arguments related to the hospital report. The medical report does not indicate that the injuries sustained were consistent with the Appellant's story of being beaten and tortured. The Appellant argues that he had been tortured (beaten by horse whip) and beaten over a period of days. The Appellant testified that he had marks on his body and swelling in his face.20 The hospital report makes no mention of any signs of torture or beating. The report mentions inflammation of muscles and joints associated with body aches and pains. If the Appellant had been tortured (whipped while tied to a tree) and kicked, slapped, and beaten as he stated, it would be reasonable for a medical report to note injuries that were consistent with the allegations. [31] The hospital report indicates that the Appellant had: "inflammation of muscle and joint associated body aches and pains [sic]"21; however, it makes no link to an assault or torture as the Appellant indicated. The Appellant alleged in his psychological report22 that he was dehydrated and lost weight, and received treatment for these conditions. The hospital report does not make reference to treatment for these symptoms. The Appellant's BoC and the affidavits from his sister and friend do not mention that the Appellant received medical care in Nigeria. Therefore, the RAD finds that the RPD's decision to assign little weight to the hospital report was reasonable, as the finding was transparent and justified by the evidence. Weight to Affidavits [32] Counsel argued that the RPD erred by not providing weight to the Appellant's sister's affidavit23 and his friend's affidavit24 and by not providing sufficient reasons for its decision. The RPD found that the affidavits were insufficient to support a credibility finding of their own as they do not provide an objective account of events, the close relationship between the affiants and the Appellant, and their knowledge of the refugee claim [33] The RAD finds that the RPD erred in dismissing the affidavits because they came from a relative and a close friend. The RAD is guided by the recent Mernacaj25 decision, which warns against using bare speculation to discredit a piece of evidence. The RAD finds, however, that on a review of the RPD record, there are sufficient grounds to assign little weight to the affidavits. [34] The Appellant's sister's affidavit attested to the fact that the Appellant had been kidnapped but did not indicate how she knew about the Appellant's failure to XXXX XXXX XXXX XXXX, how she knew that the Appellant was kidnapped metres from his house, how she knew the motive for the kidnapping. The Appellant also did not provide an original of his sister's affidavit at his hearing on March 5, 2013,26 and he did not include the original along with the Appeal Submissions, despite the appeal being perfected on May 22, 2013. Two months was sufficient time to receive the original from Nigeria. The RPD was not in a position to examine an original affidavit in order to ascertain its authenticity. The documentary evidence27 indicates that fraudulent documents are available and accessible throughout Nigeria and are used for emigration purposes. Persons can pay for false official documents, and official documents can be altered or forged.28 Given these concerns, the RAD finds that the RPD did not err in finding that it could not place weight on the Appellant's sister's affidavit. [35] With regard to the affidavit from the Appellant's friend XXXX, the Appellant testified that he had asked his friend XXXX to obtain the hospital report for him. The hospital report was dated XXXX XXXX XXXX 2013, and XXXX affidavit was sworn on February 15, 2013. The affidavit does not make mention of the fact that the affiant was asked to obtain medical evidence in support of the claim, despite commenting on the other ways that the affiant assisted the Appellant. The RAD noted that the RPD was provided with a copy of the Appellant's sister's birth certificate to attest to her existence; however, no evidence was presented to establish the existence of XXXX or the relationship between the Appellant and XXXX as cited in the affidavit. The lack of documentation on the existence of XXXX served to undermine the credibility of the affidavit. [36] Given the concerns with the affidavits highlighted above, the RAD finds that the RPD did not err in assigning no weight to the affidavits in support of the Appellant's allegations. Appellant's Failure to Call for Assistance [37] The RPD assigned a negative inference to the Appellant's failure to call for assistance given that he was in possession of a cell phone. The Appellant argued that these RPD plausibility findings were not supported. [38] The RAD considered whether or not the plausibility finding was reasonable (within the realm of what could reasonably be expected); if the RPD bore in mind the Appellant's particular background and culture; and if the RPD provided clear justification for its plausibility findings, as cited in the Appeal Pleadings.29 Coherence with documentary evidence is not an issue in assessing the reasonableness of this particular plausibility finding. The RAD finds that, while it may sound implausible, people who are in fear may do things that defy reason; however, given that the RPD provided a plausibility finding that was within a range of acceptable outcomes which are defensible in respect of the facts and law; and given that the RPD's credibility findings are to be afforded deference, the RAD finds that it cannot find that the RPD erred in making its plausibility findings related to the Appellant's failure to use his cell phone [39] The RAD was concerned with the Appellant's provision of inconsistent testimony at the hearing as to why he did not use his cell phone to call for help. The RPD's decision highlights the Appellant's explanations as to why he did not make a call evolved as he provided it. The Appellant first explained that he was never left alone. When confronted by the RPD member, the Appellant conceded that he was left alone at times. He then explained that he left the phone on silent and did not attempt to call. He later testified that he did not make calls out of fear. The RAD finds that the Appellant's provision of three explanations for his not making a call undermined the credibility of the allegation that he had his telephone while he was kidnapped and provided a reasonable basis for the RPD's finding that his explanations were not plausible. SUMMARY AND DETERMINATION [40] In summary, the RPD made two findings that were not reasonable; however, when viewed as a whole, the RPD's findings that the Appellant's allegations were not credible and the Appellant was not a credible witness were clear, and based on the evidence before the RPD, the RAD finds the omission of the call the Appellant allegedly received from the XXXX XXXX XXXX; the failure of the medical evidence to comment on the torture the Appellant alleged; and the implausibility that the Appellant would not use his cell phone to call for help was sufficient to ground the RPD's negative determination. The RPD provided reasons that were justified, transparent, and intelligible, and which fell within the range possible, acceptable outcomes which are defensible in respect of the facts and law for the findings cited above which the RAD found were reasonable. [41] Given that the Appellant's allegations were found not to be credible, the RAD finds that the RPD did not err in placing little weight on the mental health findings of Dr. XXXX. The Appellant's mental health symptoms were not related to the allegations as presented [42] Based on the analysis above and the provisions in s. 111(1)(a) of IRPA, the RAD confirms the determination of the Refugee Protection Division that the Appellants are not Convention refugees nor are they persons in need of protection. The Appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney August 8, 2013 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. 110 (1). 5 IRPA, s. 107. 6 IRPA, s. 170. 7 IRPA, s. 110.3. 8 IRPA, s. 110.4. 9 RAD Rule 57. 10 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 11 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 12 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 13 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 14 Rivera, Omar Martin Farro v. M.C.I. (F.C.T.D., no IMM-572-98), Tremblay-Lamer, February 22, 1999. 15 Bacchus, Amit v. M.C.I. (F.C., no. IMM-4679-03), Mosley, June 8, 2004, F.C. 821. 16 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 17 RPD Record, Exhibit C-5, Appointment Letter, dated XXXX XXXX, 2006. 18 RPD Record, Exhibit C-5, XXXX Application, dated XXXX XXXX, 2013; XXXX XXXX Response, dated XXXX XXXX, 2012, and XXXX XXXX Response, dated XXXX XXXX, 2012. 19 RPD Record, Exhibit C-5, Letter from Dr. XXXX, XXXX XXXX, 2013. 20 Appeal Pleadings, Transcript, p. 98. 21 RPD Pleadings, Exhibit C-5, Letter from Lagos State Hospital, dated XXXX XXXX, 2013. 22 RPD Record, Exhibit C-8, Dr.XXXX Letter, dated XXXX XXXX, 2013. 23 Appellant's Pleadings, Affidavit from XXXX XXXX, dated XXXX XXXX, 2013. 24 RPD Record, Exhibit C-5, Affidavit from XXXX XXXX, dated XXXX XXXX, 2013. 25 Vitor Mernacaj et. al. v. Minister of Citizenship and Immigration (IMM-6500-11), Russell, 2012 FC 762. 26 Transcript of the RPD Hearing, p. 5. 27 RPD Record, Exhibit R-1, Response to Information Request (RIR), Number NGA103508.FE, 27 July 2010. 28 RPD Record, Exhibit R-1, UK Country of Origin Information (CPI) Report, Nigeria, 6 January 2012, section 32. 29 Appeal Pleadings, plausibility jurisprudence citations, pp. 154 - 155. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-03034 TB3-03035 TB3-03036 TB3-03037