VB4-00508

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 : VB4-00508 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 at Appel instruit à Date of decision March 11, 2015 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Christopher Ghirardi Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a national of Afghanistan, appeals the negative determination of the Refugee Protection Division (the "RPD") regarding his claim for refugee protection. As is set out in the RPD Notice of Decision dated January 30, 2014, the appellant's claim was heard by the RPD on January 13, 2014 with a written decision being rendered on January 27, 2014.1 The RPD determined that the appellant was neither a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")2 nor a person in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to paragraph 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection and refers the matter to the RPD for redetermination by a different RPD Member, without directions. The appeal is allowed. BACKGROUND [3] The appellant's counsel before the RPD is also his counsel at the RAD. The Minister did not intervene at either Division. [4] A transcript of the RPD proceedings has been included in the Appellant's Record (AR).3 As well, a compact disc (CD) of those proceedings forms part of the RPD Record (RPDR) and is found at the back of that Exhibit.4 I have read this transcript and conducted a review of the entire RPDR. [5] The appellant seeks to present new evidence to the RAD pursuant to subsection 110(4) of IRPA but does not seek a hearing at the RAD pursuant to subsection 110(6) of the Act. Basis of Claim [6] The appellant, a national of Afghanistan, is a 42-year-old married man who used to live in the capital of that country, Kabul. His wife, three daughters, two sons and his parents continue to live in Afghanistan, as well as a number of the appellant's brothers and sisters. He has one brother who is a resident of the United States (US). [7] The appellant is well-educated, having 18 years of schooling culminating in a Bachelor of Arts degree in XXXX from Kabul University. Prior to leaving the country he was a businessman, primarily acting as a XXXX XXXX XXXX. [8] In order to improve his business skills, the appellant had travelled to the US in both XXXX 2012 and XXXX 2013. He travelled there under business visas which he had obtained at the American Embassy in Kabul. The second visa was valid until XXXX 2014. While in the US on the second occasion, on XXXX XXXX, 2013 he was advised by his family that a threatening letter from the Taliban had been delivered to his place of business in Kabul and then passed along to his family. This letter stated that the appellant and a co-worker were American spies working under the cover of their XXXX XXXX agency who had travelled to the US many times. It noted that the appellant had visited the American Embassy. It accused him of being harmful to his own countrymen and having converted from the Muslim religion to Christianity. The appellant as well as his family were threatened with death. [9] Being concerned for he and the family he had left behind in Afghanistan, he immediately applied for a travel visa to Canada with the intention that he might ultimately be able to find a safe haven for all of them in this country. A second letter was delivered directly to the appellant's family at their home in early November 2013. It was directed at his family members alleging again that the appellant was a spy for the Americans and had changed his religion. The authors directed the family to instruct the appellant to return to Afghanistan, threatening death and decapitation of the appellant's family if he failed to return. [10] A few days later the appellant learned that his earlier application for a Canadian visa had been rejected. Subsequently, the appellant surreptitiously crossed over the border into Canada from the US on November 10, 2013 and made a claim for refugee protection shortly after his arrival. [11] A short while after receipt of the second threat letter from the Taliban (referred to in the country documentation as "night letters"), the appellant's immediate family, together with his parents, moved to live with one of his sister's family in another part of Kabul. [12] Subsequent to the RPD's negative determination of his claim, the appellant alleges that he learned that his sister's house was attacked one night by "unknown individuals" and struck by three or four bullets. Believing this attack to be tied into the earlier night letters, the appellant's wife children and parents have moved to a place located about 500 kilometres from Kabul, in a different province. Documentary evidence relating to these post-RPD events make up a portion of those documents the appellant seeks to present to the RAD pursuant to subsection 110(4) of the Act. The appellant's application to do so will be dealt with later in these reasons. [13] The appellant alleges that he fears persecution by reason of his perceived religion and/or political opinion if he is returned to his country, as well as section 97 IRPA risks and danger in Afghanistan. He alleges that he would face this persecution, risk and danger throughout the country and that adequate state protection would not be available to him there. RPD Decision [14] The RPD accepted that the appellant established that he was a national of Afghanistan. [15] The determinative issue for the RPD was credibility. [16] Briefly stated, the RPD found that it was not probable that the Taliban night letters were legitimate based upon its determination regarding the appellant's general lack of credibility arising from inconsistencies and contradictions in the evidence which were not satisfactory explained. [17] The RPD also rejected the claim as not being credible based upon the country documents disclosed at the RPD which note that such threat letters would not likely be used by the Taliban in the capital of Afghanistan, Kabul, in addition to the prevalence of fraudulent night letters being utilized by refugee claimants; all of which led the Member to conclude that it was "implausible that the Taliban had targeted the claimant in the manner he has described".5 [18] Finally, the RPD found that the appellant's failure to claim protection in the US when he learned of the threat letters demonstrated a lack of subjective fear.6 [19] The details of these findings will be discussed more fully in the Analysis portion of these reasons. GROUNDS OF APPEAL [20] The appellant raises the following issues in this appeal:7 * The RPD erred in its analysis of the nature of the threat against the appellant and his family by ignoring and/or misconstrued evidence. * The RPD erred in giving no weight letters provided by [the appellant's] family members. * The RPD erred in making a number of implausibility findings against the appellant. * The RPD erred in making a negative credibility finding for failing to claim asylum in the United States. * Errors in interpretation of the hearing resulting in negative findings of the RPD against the appellant. [21] Again, the specifics of these submissions will be better detailed in the Analysis. REMEDY SOUGHT [22] The appellant seeks an order that the RAD set aside the negative determination of the RPD and substitute it with a decision that, in the RAD's opinion, should have been made. Alternatively, the appellant seeks an order that the negative determination of the RPD be set aside and that the matter be referred to the RPD for redetermination, with appropriate directions, if any. THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [23] The appellant's initial submission in his AR with respect to the standard of review or intervention the RAD should apply to the determinations of the RPD was to the effect that the RAD, as an administrative tribunal, is not to conduct the same review analysis as would a court. As stated in one of the authorities cited by the appellant, "The RAD should just do what the statute tells it to do." Further, the RPD is not required to be deferential to findings made by the RPD. [24] Subsequent to the July 2014 Federal Court decisions in Alvarez8 and Eng9 mentioned in the following, the RAD Registry invited any submissions the appellant might wish to make on the standard of review in light of those cases. The appellant did so in August 2014,10 essentially submitting that the RPD fact-finding errors he had alleged were both unreasonable and demonstrated palpable and overriding errors, the standard of review suggested by those two decisions. As well, the appellant supports the position that the powers of the RAD extend beyond judicial review and that the RAD is required to independently assess whether the appellant is a Convention refugee or a person in need of protection. However, as is set out in detail in the following, many more jurisprudential developments have since occurred, outpacing the earlier 2014 decisions. No further submissions have been received by the RAD from the appellant on these issues since August 2014. [25] The RAD commenced its operations in December 2012, following amendments being made to IRPA. The RAD's initial decisions found that reasonableness was the appropriate standard of review for matters concerning fact and mixed fact and law with correctness being the standard for issues of law alone. The correctness standard with respect to alleged errors of law continues to be acknowledged by the Federal Court. [26] The first Federal Court judicial review of a RAD decision was not until May 2014. This initial review by Justice Shore in Iyamuremye11 supported the RAD's then interpretation that "reasonableness" should be the standard of review with respect to RPD findings of fact and mixed fact and law. Nonetheless, the Federal Court found that the RAD's failure to assess all of the evidence when determining whether the RPD findings were reasonable required that the matter be returned to the RAD for reconsideration. [27] However, commencing in late July 2014, the Federal Court began to provide numerous other decisions which rejected the standard of "reasonableness" with respect to the RAD's assessment of RPD findings of fact or mixed fact and law. The subsequent problem created for the RAD with respect to the matter of the appropriate standard of review arose from the fact that, aside from virtually unanimously rejecting the "reasonableness" standard, there developed a lack of comity among the Justices of the Federal Court as to what standard, if any, should replace it, as well as to what type of RPD findings any such standard should apply. [28] In the first two of these decisions decided in July 2014, Alvarez and Eng, Justice Shore, who initially had adopted the reasonableness standard in May 2014, altered his position and found that because the RPD process is an appeal and not in the nature of judicial review, the RPD should conduct its own assessment of the facts in order to determine whether the RPD made an error regarding findings of fact to the point of making "a palpable and overriding error."12 The Federal Court found that the RPD's ability to hear viva voce evidence required the RAD to show deference to the RPD's findings of fact and mixed fact and law. This standard of palpable and overriding error was subsequently adopted by Justice Roy in Spasoja13 in September 2014. [29] In August 2014, subsequent to Alvarez and Eng but prior to Spasoja, Justice Phelan in Huruglica14 also rejected the reasonableness standard. However, he found that the RAD should not become involved in applying a standard of review but, rather, when coming to its determination, should consider its purpose as an appellate body, the provisions of the legislation, and its expertise compared to that of the RPD. The RAD is to conduct a "hybrid appeal" whereby it is not restricted to intervening only in the event of a palpable and overriding error. Rather, the RAD is to "recognize and respect" the findings of the RPD, but only where the RPD had an advantage in making findings such as when it hears direct evidence from a claimant or witness. Otherwise, the RAD is to make its own independent assessment as to whether or not an appellant is a refugee or a person in need of protection. Importantly, having rejected the standards of reasonableness and palpable and overriding error regarding the deference to be shown by the RAD to the RPD, Justice Phelan did not further define what the phrase "recognize and respect" might mean in the context of its actual application to specific cases. Subsequent cases which adopted the general thrust of Huruglica have also not provided a specific definition of that type of deference.15 [30] Many other subsequent Federal Court decisions discuss various nuances as to whether or not the type of deference subsumed in the phrase "recognize and respect" only applied with respect to credibility issues, extended to general findings of fact or, perhaps in some situations, matters of mixed fact and law. [31] Yet other Federal Court decisions which found that the RAD was in error in applying the standard of reasonableness to findings of fact by the RPD nonetheless confirmed the ultimate determination of the RAD on the basis that the RAD had, in any event, reviewed all of the evidence and what the RAD had confirmed in these cases were essentially credibility findings of the RPD. I will comment further on these cases later in these reasons. [32] The history and development of the above varying points of view were discussed in detail by Justice Martineau in his October 8, 2014 decision in Alyafi.16 Justice Martineau concluded that as a result of the case law which had developed at the Federal Court and, due to a lack of comity among the various Justices on certain fundamental principles, a conundrum has been created whereby inconsistent and irreconcilable authorities had developed which were, nonetheless, equally binding on the RAD as a result of the application of the principles of stare decisis. [33] Justice Martineau noted that certain certified questions yet to be determined by the Federal Court of Appeal could ultimately resolve the conundrum. However, as stated by the Justice, the matter could well not end at the Federal Court of Appeal level and could require an ultimate determination by the Supreme Court of Canada. In Justice Martineau's estimation the clarity which might be expected to emerge from this process could take considerable time to emerge. In the interim, in the Justice's view the RAD faces the unresolvable dilemma of being legally bound by decisions which are contradictory and mutually exclusive in important respects. [34] Justice Martineau found that as an interim solution until the questions are resolved by authorities superior to the Federal Court, Members of the RAD should be free to select either of the two basic streams of analysis developed to that point, without facing the prospect of having their RAD determinations set aside solely for the reason of having selected one of the two analysis to the exclusion of the other. One of the lines regarding deference and alleged RPD errors relating to findings of fact is represented by Justice Roy in Spasoja who would apply the standard of palpable and overriding error while the other is led by Justice Phelan in Huruglica using the phrase "recognize and respect" in connection with RPD credibility findings where the RPD is in a better position than the RAD to make those findings. [35] It is important to recall that, up to and including the point in time that Justice Martineau decided Alyafi, all of the Federal Court judges had taken the approach that the Federal Court's review of the RAD's interpretation of IRPA should be based on the standard of correctness. That being so, in my assessment a junior decision-maker such as a Member of the RAD, being equally bound by both lines of reasoning, but invited by Justice Martineau to select one or the other until the matter was resolved at a higher level, left the RAD to select all of the reasoning of one or the other of the lines but did not allow the RAD to provide an interpretation of its home statute that was different from either or, even, a blend of the two. As I understand it, that is also the nature of the principle of stare decisis. [36] In what I consider to be a further important development in the case law, in November 2014 Madam Justice Gagne in Akuffo17 broke with her colleagues and specifically found that the Federal Court's review of the RAD's interpretation of its home statute should not apply the standard of correctness but, rather, reasonableness. She did so having regard to four recent Supreme Court of Canada decisions which she determined were binding. She came to a similar general conclusion in Kurtzmalaj18 and, specifically when dealing with the introduction of new evidence before the RPD pursuant to subsection 110(4) of the Act, in Singh.19 This was the conclusion as well Justice Martineau adopted later in November in Djossou.20 Justice Martineau also stated the following with regard to a "pragmatic approach" to the issues he suggests is appropriate in light of the law surrounding the function of the RAD: Hence, this is why it seemed to me to be more prudent, in this case, as long as the issue has not been finally resolved on appeal, to adopt a pragmatic approach. Also, for the very reasons that were put forth in Alyafi, above, I do not think there is any need, at this particular moment, for me to make any sort of final ruling on the interpretation of sections 110 and 111 of the IRPA to determine this application for judicial review. For the time being, there appear to be a number of possible approaches, but what is clear, however, is that the option chosen by the RAD (a judicial review-based approach) is not an acceptable outcome in law. Even applying the lesser standard of reasonableness, I still arrive at the same end result as my colleagues who applied the more stringent correctness standard. Intervention is warranted in his case. In this way, the choice of appropriate standard of review will not be determinative of the matter (which might not have been the case had I adopted a correctness standard or had I dismissed the applicant's application by applying a standard of reasonableness). (RAD emphasis) [37] Very recently, Justice Boswell in Siliya,21 after concluding that the question of the standard of review as between the RAD and the RPD was not dispositive in the case before him, provided the most definitive view to date that the Federal Court is to apply the standard of reasonableness to RAD factual findings when stating: [20] Otherwise, the reasonableness standard applies to the RAD's factual findings, and its assessment of the evidence before it is entitled to deference (see: Dunsmuir v. New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190 [Dunsmuir]; Yin at para.34; Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063 at para 27; Lin v. Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para.13-14). Moreover, the RAD's decision should not be disturbed so long as it is justifiable, intelligible, transparent and defensible in respect of the facts and the law (Dunsmuir at para. 47). Those criteria are met if "the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes." (Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR 708). [38] Using the same criteria applied by Justice Martineau in Alyafi22 when he determined that, while inconsistent with each other, the Federal Court decisions in Huruglica and Spasoja were both binding on the RAD, I find so too would be Justice Gagne's decision in Akuffo, Justice Martineau's in Djossou and Justice Boswell's in Siliya. [39] I appreciate that Justices Gagne, Martineau and Boswell were dealing with the Federal Court's standard of review regarding the RAD's determinations and not the RAD's analysis of the decisions of the RPD. However, having concluded that when the Federal Court utilizes the correctness standard when reviewing RAD decisions, there is a strictness to that analysis that requires the RAD to apply the Federal Court's direction in a very specific way. Compliance with that level of "correctness" is exceedingly difficult, if not impossible, when there are multiple views of what is correct emanating from the same level of judicial authority, all of which technically bind the RAD. As Justice Martineau has noted, a significant time will likely pass before further direction will be available from the Federal Court of Appeal, if not higher authority. However, where the Federal Court adopts a standard of review of reasonableness in reviewing the RAD's interpretation of how it is to perform its legislatively mandated jurisdiction, particularly in light of the divergent views of the Federal Court, additional flexibility may be allowed the RAD in dealing with its ongoing caseload in the interim on a case-by-case basis. However, this flexibility will still be constrained to the extent that some common principles have emerged from the body of jurisprudence provided so far by the Federal Court. I will discuss those later in these reasons. [40] One of the more significant conundrums noted by Justice Martineau and other Justices arising from the current case law concerning the RAD is what is meant by "deference". "Palpable and overriding error" is, like "reasonableness", a legal concept for which much legal guidance has been provided from the courts at all levels for many years. However, the notion of the RAD "recognizing and respecting" the conclusions of the RPD in particular circumstances (such as findings based on credibility or where the RPD otherwise enjoys a particular advantage over the RAD in coming to its conclusions) has not been given any further definitional substance. [41] Broadly stated, "deference" involves the concept by which one sublimate's one's own view to that of another. That is to say, even though one's conclusion differs from that of another, there is good reason to defer to the other's conclusion. [42] When assessing the "good reason" to defer, one measure is the existence of "palpable and overriding error". In the Alvarez case noted earlier, Justice Shore stated: "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different.23 (RAD emphasis) [43] In 2012 Justice Stratas of the Federal Court of Appeal in South Yukon Forest Corporation commented: Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.24 (RAD emphasis) [44] When reviewing a decision on the basis of "reasonableness" the analysis will be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.25 [45] I acknowledge both Justice Shore's observation that, while "reasonability" and "palpable and overriding error" have some similarities, the standards are different and Justice Stratas' statement that the latter is a "highly deferential standard of review." It may well be that, under the definitions provided; an error that is palpable and overriding will always also reveal an unreasonable conclusion. However, the reverse may not always be the case. There may well be a steeper hill for an appellant to demonstrate a palpable and overriding error than it is to show a lack of reasonableness. [46] Given the general thrust of virtually all of the Federal Court decisions to date that a RAD appeal is to be comprehensive in its nature, I conclude that the palpable and overriding test may be too stringent for the task at hand. I elect not to use it in the circumstances where the Federal Court is not of one mind on the issue. [47] As noted by Justice Barnes in the Federal Court decision in Kanga, in such situations it is not necessary for me to explain further why I have selected one of the two competing lines of authority as opposed to the other: Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board26 is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.27 [48] In the Akuffo decision discussed earlier, Madame Justice Gagne found that in the particular case before her she was, "far from being convinced that there is a real and pragmatic difference between an 'unreasonable' error and an 'overriding and palpable' one, I am of the view that said distinction would have no impact in the case at bar."28 She determined that the RAD had reviewed and reassessed the evidence and "gave proper deference to the RPD's credibility findings which were sufficient for the RAD to reasonably confirm the RPD's overall conclusion that the appellant was neither a Convention refugee nor a person in need of protection."29 She also concluded: The RAD did consider the applicant's explanations for his behaviour during his birthday party and later on the same night. The RAD concluded that even if these explanations seemed reasonable, it was nevertheless of the view that the RPD's analysis was reasonable when looking at the claim as a whole. This is a strong indication that the RAD had reviewed the evidence given by the applicant and reassessed the claim in light of its own finding that some explanations given by the applicant were reasonable.30 And: I find it reasonable that the RAD deferred to the RPD's credibility findings. I also find that its overall reassessment of the evidence is reasonable. Therefore, the application for judicial review will be dismissed.31 [49] In Akuffo, the RAD had clearly applied the traditional definition of "reasonableness" in assessing the RPD's determination but, because the RAD had restricted itself to the analysis of the credibility of the claimant and it was evident that the RAD had conducted its own analysis of the evidence, the RAD decision was confirmed. This was so even though the RAD believed, contrary to the RPD, that some of the claimant's explanations given by the claimant were reasonable. [50] There are a number of similar examples to be found in the case law where the RAD's confirmation of the RPD's negative credibility findings have been upheld by the Federal Court, even though the RAD had utilized the reasonableness standard in assessing those findings. However, in so doing the Federal Court has certainly not endorsed the nomenclature of "reasonableness" but has accepted the result in any event, at least where the RAD's analysis is restricted to the credibility findings of the RPD. A common thread appears to be the fact that the Federal Court was satisfied with the process the RAD had followed in comprehensively reviewing the available relevant evidence in assessing the RPD findings rather than the RAD's decision to use the word "reasonable" in its conclusions. [51] Examples would include the decisions of Justice Shore in Sajad and Allalou.32 In Sajad, Justice Shore found that the RAD had "validly shown deference" to the RPD's credibility findings and that the result would have been the same "regardless of the standard of review it applied." In Allalou, he found that "considering that the RPD's decision is solely founded on findings of credibility, the RAD applied the appropriate level of deference towards the RPD's determinations of the applicant's credibility." The RAD had used the reasonability standard. Likewise, this was also the case for Justice Locke in Njeukam33 where, although the reasonability standard was utilized to assess the RPD's credibility findings, the issue of standard of review was not determinative because the RAD had conducted a thorough review of the evidence and, having done so, ". . . the RAD was right to show deference to the RPD's findings." [52] Thus it is then that a standard of review generally applied by the RAD to all findings of fact and mixed fact and law based on reasonableness, per se, will not be acceptable to the Federal Court. However, a comprehensive analysis of the RPD credibility and other factual findings (where the RPD is in a better position than the RAD to make such conclusions) based on criteria similar to that of the traditional definition of "reasonableness" may find approval on judicial review. Based upon the culmination of the case law to date, I cannot craft a more precise conclusion than that. [53] Some support regarding the above conclusion about the standard of review as between the Federal Court and the RAD can be drawn from the recent December 2014 decision of Justice Noël in Yin.34 The Justice notes in detail the mixed state of the law regarding the standard of review the Federal Court should use in assessing RAD determinations (at para. 32) and states further: [33] As such, the standard of review this Court should apply when reviewing the standard of intervention chosen by the RAD in its review of a RPD decision is undecided. As noted, this question is not determinative with regards to the case at bar. I therefore adhere to Justice Martineau's approach in Djossou, supra at para 37, that until this question is resolved by the Federal Court of Appeal, a pragmatic approach should be used for the determination of the present judicial review. [34] In the present appeal, the RAD is being asked to deal only with the credibility findings made by the RPD, as the appeal shows. As it is well recognized, in such cases, the standard of review applicable is that of reasonableness.35 [54] Justice Noël provides examples of four of the cases I have noted above where the Federal Court dismissed an application for judicial review in instances where the RAD used a reasonableness standard regarding RPD credibility findings and then stated: [36] However in Djossou, supra, Justice Martineau states that he will not judicially impose on the RAD any degree of deference whatsoever to be applied to RPD decisions (at para 91.) Being prudent, Justice Martineau also does not speculate nor gives a definitive opinion as to the scope of the examination of an RPD decision on appeal to the RAD (Alyafi v Canada (Minister of Citizenship and Immigration), 2014 FC 952 at paras 51-52).36 [55] Regarding the case before him Justice Noël found: [37] In the case at bar, in its decision, the RAD reiterates the RPD credibility conclusions and concludes that the RPD findings were reasonable. A reading of the RAD decision shows that it read the transcript of the RPD hearing, the documentation filed and that it reassessed the credibility findings of the RPD. It even went further than the RPD in its analysis of the political context in Cambodia by comparing the Applicant's allegations to the US Country Reports on Human Rights Practices for Cambodia for 2012. The RAD notes that the Applicant's allegations contradict this documentary evidence. It is also based on this last evaluation that the RAD confirmed the RPD conclusions. The RAD assessment therefore goes further than simply confirming the RPD decision. The RAD conducted its own examination of the record before the RPD in making its decision. This situation is therefore very similar to the four cases identified above, where this Court confirmed the RAD decision and rejected the application for judicial review. Whatever the deference to be given by the RAD to RPD credibility findings, the RAD in this case looked at the evidence, dealt with the credibility issues raised by the appeal and concluded that the RPD credibility findings were sound, as its own assessment reveals. I, therefore, conclude that the RAD, by doing its review and own assessment of the evidence, did assume fully its role as an appellate tribunal and did show the required deference to the credibility findings made by the RPD.37 (RAD emphasis) [56] Given its recent publication date and the fact that the decision is rendered in the context of not only the Federal Court internal debate regarding standards of review (both as between the Federal Court and the RAD, and the RAD vis-à-vis the RPD, but also with respect to the meaning of "deference" regarding the latter), I take Justice Noël's synopsis as a general overall guide to the appropriate practical or pragmatic approach I should take in conducting a RAD appeal until the various issues in play are resolved by the Federal Court of Appeal. [57] Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal. As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) or evidence arising from a hearing under subsection 110(6) of IRPA. I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL [58] The primary basis for the RPD's rejection of the appellant's claim was its finding that his evidence lacked credibility. For the following reasons, I accept a number of the submissions provided by the appellant as to errors made by the RPD in coming to this conclusion. In the result, the RPD decision is set aside. [59] As sometimes is the case in such matters, when a global determination of a lack of credibility is found by the RPD, it is not always immediately apparent what the impact on the overall assessment might be of the individual examples offered as demonstrating such a lack. [60] Because I find that errors were made in the RPD's credibility assessment, I am left without defensible factual findings upon which I might draw my own ultimate determination about the appellant's claim. This is primarily because, in order to replace the RPD's credibility findings, I would have to come to my own credibility conclusions which, without the benefit of directly hearing the appellant and his father's viva voce testimony, I cannot reliably do. I also could not do so without hearing evidence that was already presented to the RPD. Implausibility Findings [61] Among the more important errors alleged by the appellant were the RPD's findings of implausibility. [62] As noted by the appellant, the Federal Court in Ansar38 makes a clear distinction between credibility and plausibility findings: [17] Initially, an important distinction must be made between the RPD's credibility findings and its conclusion that the threat posed by Mr. Choudhry was "implausible". The panel must be mindful of the use of this term and its implications. Implausibility findings must only be made "in the clearest of cases" (Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para 7, [2001] FCJ 1131). The panel's inferences must be reasonable and its reasons set out in clear and unmistakable terms (R.K.L. v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 9, [2003] FCJ 162). As Justice Richard Mosley explains in Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937 at para 15, [2004] FCJ 1149: [P]lausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cultural assumptions or misunderstandings. Therefore, implausibility determinations must be based on clear evidence, as well as a clear rationalization process supporting the Board's inferences, and should refer to relevant evidence which could potentially refute such conclusions. [emphasis added by the Federal Court]. [63] And in Aguilar Zacarias:39 [11] An allegation may thus be found to be implausible when it does not make sense in light of the evidence before the Board or when (to borrow the language of Justice Muldoon in Vatchev) it is "outside the realm of what reasonably could be expected". In addition, this Court has held that the Board should provide "a reliable and verifiable evidentiary base against which the plausibility of the Applicants' evidence might be judged", otherwise a plausibility determination may be nothing more than "unfounded speculation" (Gjelaj v Canada (Minister of Citizenship and Immigration), 2010 FC 37 at para 4, [2010] FCJ No 31; see also Cao v Canada (Minister of Citizenship and Immigration), 2012 FC 694 at para 20, [2012] FCJ No 885 [Cao]). [64] One of the primary concerns of the RPD was the appellant's (and his father's) explanations of what steps the appellant's family in Afghanistan took upon receiving the two night letters. In the result, the RPD found that the appellant failed to establish with credible evidence, on a balance of probabilities, that the night letters sent by the Taliban were "authentic expressions of the Taliban's intent to harm the claimant or his family". [65] The RPD found there were inconsistencies within the appellant's evidence such as: * Regarding the timing of when the appellant's family left their home, the appellant wrote in his amended Basis of Claim form (BOC) that it was after the family had received the second letter because it was the first communication that threatened the whole family and not just the appellant. However, copies of the two letters indicated that the first letter also threatened the family, not just the second. When asked about this discrepancy it took the appellant two responses before providing the explanation that they did not move until after receipt of the second letter because of an inability to find an alternative residence as the appellant's sister required some time before allowing the family to move in with them.40 * The explanation offered for this inconsistency was that, at the time he wrote his amended BOC, he had not yet received copies of the actual letters and relied on what he had been told by his father when completing his form. He did not realize that both letters threatened the whole family until later.41 * The RPD did not accept this explanation because, first, the appellant would have been aware that the first letter was a threat against the whole family if, as he stated, he urged them to leave as soon as possible after its receipt. Second, the RPD also found that, based on his testimony that he had numerous ways of communicating with his family (including Internet), given the magnitude of the threat it was "implausible" that he would not have immediately obtained a copy of the letter if he thought it was genuine. Third, when the father testified as to when the family moved when they did, he adopted the first explanation provided in the appellant's amended BOC, i.e. that the first letter did not threaten the whole family, thus negating the corroborative impact of the father's evidence.42 [66] While, as noted earlier, it is difficult to discern with precision the magnitude of the impact of the RPD's implausibility finding on its overall conclusions about the threat letters, I find that the assessment that it was "implausible" that the appellant did not immediately have a copy of the letter scanned and forwarded to him in the US was an error. [67] The appellant testified that it was his own father who spoke to him on the night of the day the letter was received in Afghanistan. He testified that his father told him what was in it. There is no indication in any of the evidence that there would be some reason for the appellant to doubt what his father told him such that he would find it imperative that he immediately get a copy of the letter in his hands. He might have asked for a copy, but I find that the fact that he did not do so is not "outside the realm of what reasonably could be expected". In my opinion his conduct was simply not "implausible". [68] Even more important in my assessment with respect to implausibility findings made in error is with respect to the RPD's overall conclusion that "it is implausible that the Taliban has targeted the claimant in the manner he has described" based on: ...the lack of available information as to why the Taliban has targeted the claimant, the fact the country condition documents do not establish that persons of the claimant's profile are targeted by the Taliban (particularly in the area in which the claimant resides), and the prevalence of fraudulent letters being used by Afghan asylum seekers globally....43 [69] The two night letters themselves contain the reasons why the threats were made. Both letters accuse the appellant of being a spy for the Americans with the first noting, accurately, that he was a XXXX XXXX XXXX and had travelled to the US (his "slave owners" or "masters") and that he had visited the US Embassy, which was also true. It also notes that he was given the job of a XXXX in District XXXX and was paid in US dollars. Both letters accuse him of converting to Christianity with the second also accusing him of trying to convert others.44 [70] It is important to note that, in neither his BOC nor in his testimony, did the appellant initially purport to "know" why the Taliban had targeted him. It was at the invitation of the RPD that he was asked why he thought the Taliban might have targeted him.45 It was in this context of his, indeed, having travelled twice to the US and having visited the US Embassy in Kabul that he speculated that his XXXX XXXX activities could have also drawn their attention. He noted that he and his partner were quite successful and, at that, they served as representatives of 50 to 60 other such businessman in dealings with the government regarding such things as taxes and other problems in their District XXXX. In this regard he disclosed his "XXXX XXXX license"46 and a business card indicating that he was the "XXXX in Charge of XXXX XXXX Committee of XXXX District Kabul-Afghanistan".47 He also mentioned that he and his partner might have earned the enmity of the Taliban because, by contributing to the area's economic stability, this would be contrary to Taliban goals of overthrowing the government. In the course of his consideration of why he might have been targeted he also mentioned that some of the companies he dealt with through his business were foreign. [71] When asked by his counsel about his belief that the Taliban had targeted him because of his business he was asked, "You don't know this?" and responds, "No, I don't. It is my belief."48 [72] The RPD found that the appellant's failure to include information about his work with foreign companies in his BOC was a negative factor. In its reasons the RPD states that the appellant was asked to explain this omission and the appellant testified that he did include such information. The RPD did not accept this, stating "as is evident from the record, this is not the case"49. In fact, as is submitted by the appellant he provided the following information in his BOC: Question 2(a): Taliban understood I had successful business especially in XXXX market. Question 2(b): In XXXX XXXX, 2013, when for the second time I went to the US, Taliban became sure that I had business with people. [73] While it is true that the appellant does not say much about his employment in his BOC, he cannot be expected to include information in the BOC that he did not know to be true. After all, in the normal course, a claimant is expected to swear that the content of their BOC is, in fact, true. The only things he could be sure of were the allegations against him set out in the letters. He never did testify that all or most of his XXXX XXXX business was with foreign companies or that he had ongoing repetitive business with such companies. Unlike the RPD, in the circumstances I do not find it remarkable that in the absence of such evidence and in the midst of his attempting to respond to the RPD's request for him to speculate as to why the Taliban had targeted him, he was unable to provide company names. The appellant submits that:50 In effect, the panel has invited the claimant to speculate as to why the Taliban wants to kill him, and holds that same speculation against him in making a credibility finding. The RPD also specifically tells the appellant that he can't know for a fact what the Taliban was thinking yet still invited the appellant to speculate about their reasons for perceiving him as a spy.51 [74] Also forming part of the RPD's rationale as to why it was "implausible" that the Taliban had targeted the appellant as he alleged was the RPD's conclusion that he did not fit the profile of those who draw their attention nor did he live in an area where such night letters were prevalent.52 The RPD cited a number of country documents which indicated that the Taliban's reach had diminished in Kabul as opposed to more rural areas of Afghanistan and that, in Kabul, intimidation is most likely through phone calls as opposed to night letters. [75] However, even the documents referred to by the RPD (as is acknowledged in the RPD's own findings) speak to the use of night letters in Kabul as being rare, not nonexistent, even if being more prevalent in the countryside. The RPD acknowledges that there is some use of night letters in Kabul yet purports to have "taken this into account in assessing the overall plausibility of the claimant having been threatened in the manner he alleges."53 The RPD does not explain how this was taken into account. [76] With respect to the appellant's profile, the appellant submits that his profile was as a successful Kabul entrepreneur who travelled to the US on more than one occasion and has also been to the American Embassy. As noted above, in response to the RPD's questioning he also mentioned that he had some business dealings with foreign companies. The wording of the letters tying his activities into being a "cover" for spying is explicit, as is the mention of the appellant's involvement as a XXXX in the District. I agree with the appellant that the issue is not whether, in fact, the appellant is a spy, a Muslim convert or one who seeks to convert others, but, rather, how he is perceived by the alleged agents of persecution. As noted by the appellant, there was significant documentary evidence before the RPD that "persons who are suspected of spying", "labeled by insurgents as 'collaborators' and 'spies'" and "perceived to be providing support to NATO forces" (RAD emphasis) are targeted. As well, he references specific country documents, including three specifically presented by the appellant to the RPD, which note that Taliban activities continue to occur in Kabul, even if to a lesser extent than in the rest of the country. [77] There is much law to indicate that the RPD (and the RAD for that matter) do not have to mention every country document that might oppose the conclusions the RPD has derived from other country documents. Assessing such evidence and preferring some over others is one of the significant aspects of the refugee protection decision-making. [78] However, in my assessment, it is a completely different exercise if the RPD is looking at competing factual evidence and concluding that something is "implausible" as opposed to drawing a preferred conclusion regarding the state of affairs on a balance of probabilities. It seems to me that when there is, as here, credible evidence that people who are perceived as spies in the fashion alleged by the appellant, even in Kabul, are targeted, it is an error to make a conclusion dismissing the allegations based on implausibility. [79] In the judicial review of RPD decisions involving implausibility, the Federal Court has given little, if any, deference to implausibility findings inasmuch as the nature of such a finding is as much in the Court's purview and ability as it is in the RPDs. [80] In Cao, Justice O'Reilly noted: [7] With respect to a finding of implausibility, the Court is often just as capable as the Board at deciding whether a particular scenario or series of events described by the claimant might reasonably have occurred. Given the role of the RAD as an appellate and not a review body regarding the RPD, it is even clearer that little deference is owed to RPD implausibility findings. [81] The RPD also noted that, "in making its negative plausibility inference" it also considered the documentary evidence detailing the ease with which one might obtain fraudulent threat letters and their use globally in bolstering non-genuine asylum claims. The appellant had only supplied copies of the night letters, stating that the originals have been left at the family's residence when the family left. [82] The RPD was accurate in noting that a country document in the National Documentation Package cites the widespread use of fraudulent documentation in Afghanistan and their use in false asylum claims. However, as noted in the authorities, such evidence only clearly goes to the possibility that one could have used fraudulent documents to bolster a claim not that they did, in fact, in any particular case. The following was noted by Justice Russell in Liang:54 [33] The Board stated that "[c]ountry documents note that fraudulent documents are easily obtained in China. I give these documents no evidentiary weight." The Applicant points out that this Court has held that the Board should not speculate on the mental processes and efficiency of the Chinese authorities: Chen v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 996 (F.C.A.). Jiang v. Canada (Minister of Citizenship and Immigration), 2006 FC 499 is instructive on this point: 11 Because counterfeit documents were readily available, one may speculate that the documents in question were counterfeit, but that is not enough to serve as an evidentiary basis for a proper inference. As Mr. Justice von Finckenstein said in Chima v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 255, 2004 FC 224: The documents may well be forgeries, however evidence of widespread forgery in a country is not, by itself, sufficient to reject foreign documents as forgeries. As the Respondent noted evidence of widespread forgery merely demonstrates that false documentation could be available to the Applicant. [83] In Liang the Federal Court found that it was permissible in that case for the Immigration and Refugee Board to rely in part on such a country document, not simply because fraudulent documents were easily obtained in the country involved [i.e. China], but that the document at issue itself contained anomalies and inconsistencies. [84] In this case the RPD noted an incongruity between the two threat letters as follows:55 [15] In addition to these inconsistencies between the letters and the testimonies of the claimant and his father, the panel notes an incongruity between the letters themselves. The first letter states in fairly clear terms that a decision had been made by the Taliban to kill both the claimant and his family. However, the second letter states that the Taliban will kill the claimant's family if the claimant failed to return to Afghanistan. The claimant was unable to provide an explanation during his testimony that would reconcile these apparently contradictory objectives ascribed to the alleged agents of persecution. While the claimant is not expected to speculate as to the thought processes of the Taliban, it remains unclear to the panel why the same Taliban representative who authored both letters within the span of one month would provide this contradictory information. [85] In my assessment, this is an overbroad conclusion to draw from the actual evidence. The following is the exchange between the Member and the appellant upon which the Member apparently made its finding with respect to this issue:56 Member question: Now, I'm not sure if you're able to answer this, but I'm reading the first letter. It says that you have been convicted and there's an imposition of death according to Sharia law and that you -- you and your family will have your heads chopped and they will also be convicted like yourself for this offense. It - it seems pretty clear that they're threatening to kill you and your family. Response: Yes. Member question: But in the second letter, they're asking you to come back and if you don't come back, then they'll kill everybody. So why would they first -- why would -- do you know why they would first sentence you to death in the first letter then ask you to come back in the second letter? Response: I don't know what they want. Second letter says, 'It's known to us that you have gone to US and you have to come back. If you don't, we will kill your family.' [86] It is first to be noted that the Member brought up the question and provided his synopsis of the first letter verbally to the appellant and the appellant simply said "yes". With regard to whether or not the first letter clearly condemns the whole family the actual wording used is somewhat more equivocal, at least in its translation:57 Therefore, the conviction and imposition of death according to Shari a [sic]law and anyone in this offense which will be from your family, when are in our possession, will have their heads chopped and they will also be convicted like yourself to this offense, the penalty will be death to you and your family. [87] In my view, the italicized portion of the letter could be also be interpreted to include only those members of the appellant's family who had participated, or were involved, in the same "offenses" referenced in the opening paragraph of the letter. In other words, it is not a blanket condemnation of the whole family at the time of writing of the letter. It also speaks in the future tense using the word "will". If that is the better interpretation, i.e. death conditional upon participation by the family in the crimes, the family's reaction to such a letter might be less urgent than to the second. [88] When comparing the wording regarding the Member's synopsis of the second letter to the letter itself, he has converted it into a letter being directed to the appellant himself as opposed to the family. [89] The letter itself states:58 Threatening letter to XXXX family since we are informed and we have received the reports [from Taliban] that XXXX has become an infidel and has changed his religion to Christianity and was serving Christians here. Mr. XXXX is trying to change the Muslim citizens toward Christianity. He is spying for Americans. Now, he is asking the infidels for asylum and we are giving you instructions to ask him to come back. If he is not coming back, we will punish you by death and we will cut your heads since you are the family Mr. XXXX. [90] In my assessment, the first letter is clearly directed to the appellant in the first person. The evidence was that it was delivered to the appellant's workshop and that an employee then brought it to the family's home and gave it to one of the appellant's daughters. Given its wording and the fact it was delivered to the appellant's business one might infer that the author of the letter assumed the appellant was still in Kabul. [91] Moreover, as I have noted, it is not as clear to me as it apparently was to the Member that the first letter unequivocally condemned the whole family, as opposed to, "anyone in this offense". [92] As recorded in the transcript, the Member's question regarding the second letter synopsized it as if it were addressed to the appellant when, it is clear to me, the use of the word "you" in it is not with respect to the appellant but, rather, to the family. The appellant responded to that synopsis using the Member's same typification of it. It seems that the reference in this letter to the appellant having sought asylum has to do with the appellant having left the area, leading to a demand that the family try to have him return, failing which, they would be killed. [93] If a Member is going to lead the questioning as was done in this case, I find it incumbent upon him, particularly when resulting in an important negative credibility finding, to word his questions with care. This is especially so when working from an interpretation, the grammar of which raises questions I have noted above as to its meaning. Fairness would dictate that the letter itself, including the copy written in the appellant's own language, be provided to him before he responds. That did not appear to be the case followed here. [94] Given my determination that this matter is to be returned to the RPD for redetermination, questions surrounding these documents should be made in fashion I have suggested. [95] In the result, I find that the Member's conclusion about the alleged "incongruity" between the two letters is not well-founded. That being the case, based on the judicial reasoning noted above concerning the proper treatment of country documents which indicate a widespread use of fraudulent documents, I also find that the Member's conclusion that the night letters in this case are examples of such documents and therefore fraudulent, to be in error. [96] The RPD acknowledged that the letters in evidence from the appellant's family concerning how the threats were received59 were consistent with the appellant's evidence but, given the inconsistency in the father's testimony and the failure to establish the "impartiality and objectivity" of the family's evidence, the RPD gave the letters "no weight" in overcoming the other credibility concerns expressed in the RPD reasons.60 [97] The RPD seems to place much importance on the appellant's failure to establish that the authors of the letters, who happen to be the appellant's family, were impartial and objective. I find this finding curious. [98] The letters from the appellant's mother, father and sister provide their personal observations of events. Who else can provide such evidence other than those who lived them? While it is open to the RPD to consider what weight he might give to such evidence, I cannot accept that his blanket determination to give no weight to them is acceptable and defensible. [99] With regard to partiality, I refer to Justice Diner's recent comments in Abusaninah:61 [39] The case law is supportive of the principle that the Board cannot reject evidence simply because it comes from family members who have a close relationship with the claimant. As Justice de Montigny held in Ugalde v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 458: [28] ... Presumably, the Officer would have preferred letters written by individuals who had no ties to the Applicants and who were not invested in the Applicants' well-being. However, it is not reasonable to expect that anyone unconnected to the Applicants would have been able to furnish this kind of evidence regarding what had happened to the Applicants in Mexico. The Applicants' family members were the individuals who observed their alleged persecution, so these family members are the people best-positioned to give evidence relating to those events. In addition, since the family members were themselves targeted after the Applicants' departure, it is appropriate that they offer first-hand descriptions of the events that they experienced. Therefore, it was unreasonable of the Officer to distrust this evidence simply because it came from individuals connected to the Applicants. See also Ndjizera v Canada (Citizenship and Immigration), 2013 FC 601 at paras 32-33; Shilongo v Canada (Citizenship and Immigration), 2015 FC 86 at para 29. [100] With regard to a lack of subjective fear as demonstrated by the failure to make a claim for protection in the US, the RPD cites the fact that the appellant had a brother who permanently resided there as well as a visa which entitled him to stay in the US until XXXX 2014. Moreover, while the appellant attempted (and failed) to obtain a visa to go to Canada, he still surreptitiously crossed into this country, thus exposing himself to apprehension and potential deportation back to Afghanistan. The RPD did not find these actions to be reasonable. The RPD did not accept the appellant's explanation that his inquiries of other Afghan people in the US led him to conclude that an application in that country would take 3 to 4 years whereas he was told that Canada acted more expeditiously.62 He wanted to seek protection not only for himself but, as soon as he could, protection for his whole family. In support of these conclusions, the RPD also cited what it termed to be the "meager efforts" of the appellant's family to protect themselves from such an allegedly serious threat by only moving to a different house, also in Kabul.63 [101] My own assessment on this issue is not as conclusive as it was for the RPD. While I cannot entirely rule out as a possible ultimate conclusion the RPD's finding on this issue upon the redetermination of the claim I am ordering, I find that important evidence was not further explored at the hearing or considered by the RPD to support its decision on this question. What was not considered was the fact that one of the reasons given by the appellant in his testimony for not presenting himself at the Canadian border to make a claim for protection was that he was aware of the provisions of the Safe Third Country Agreement (STCA) between Canada and the US. He understood that under its provisions he would have been immediately returned back into the US to make a claim there because he was not one of those who would be exempt from its provisions by having, for example, a close relative residing in Canada.64 What was not explored was whether or not, if he was knowledgeable enough to be aware of the STCA, would he not also have been specifically aware of the expedited nature of refugee protection determinations in Canada arising from recent amendments to IRPA? As noted earlier, he did testify that he knew that the system was more "expedient" in Canada as compared to "the 3 to 4 years" a determination might take in the US as he had been told by others. [102] In the end, a finding of a lack of subjective fear is a credibility finding. In coming to its conclusion about that fear, the RPD specifically rolled into its considerations the RPD's views about the family's "meager efforts" to seek protection, having determined to give "no weight" whatever to the evidence they had presented, wrongly so in my determination. Additionally, the RPD had made overall negative credibility findings with respect to the appellant's evidence, also in error in some important respects as I have discussed earlier. Accordingly, based on the above I conclude that the finding of the RPD with regard to subjective fear is flawed and contributes to my determination that the claim must be re-determined. Subsection 110(4) Documents [103] As noted at the outset, the appellant sought to present new documentary evidence to the RAD pursuant to subsection 110(4) of the Act. One document is an affidavit from an interpreter indicating that some evidence was improperly translated during the hearing.65 The other documents all relate to the assertion that attacks have occurred on April XXXX, 2014 on the appellant's sister's house where the appellant's family had fled.66 This was after the RPD hearing. The documents consist of statements from the appellant's family as well as photographic evidence of alleged damage to the house and spent bullets. [104] Given my determination that the matter needs to be returned to the RPD for reconsideration, in the circumstances I find that it is not necessary for me to come to a final determination as to whether or not these documents meet the criteria of subsection 110(4). The primary reason is that, even if the documents were accepted, there is a lack of other essential credibility findings of the RPD related to the appellant's fundamental narrative upon which I can rely which have survived my conclusion that many of them were made in error. I find that the new evidence, standing alone, would not be sufficient to justify the RAD making a positive determination on the entire claim. Too many other credibility issues are now unresolved as a result of my findings. To the extent that many of these credibility issues are dependent upon the viva voce evidence of the appellant and his father, I find that I cannot replace the RPD's flawed findings with those of my own, solely based on a transcript. I also find that I could not do so without hearing evidence previously heard by the RPD. In the result and in any event, the new documents can be considered during the redetermination. REMEDY [105] Given the above, pursuant to subsection 111(1)( c) of IRPA, I find that the RPD determination must be set aside. I also find that I am not a position to substitute the RPD determination with another determination and that the matter must, therefore, be returned to the RPD for re-determination. CONCLUSION [106] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection is set aside. The matter is referred to the RPD for redetermination by a different RPD Member, without directions. (signed) "Philip MacAulay" March 11, 2015 Date 1 Refugee Appeal Division (RAD) Exhibit 3, Refugee Appeal Division Record (RPDR), pp. 3-15. 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 RAD Exhibit 2, Appellant's Record (AR), pp. 15-60. 4 RAD Exhibit 3, RPDR, p. 436. 5 RAD Exhibit 3, RPDR, p. 13, para. 31. 6 RAD Exhibit 3, RPDR, p. 14, para. 37. 7 RAD Exhibit 2, AR, p. 117. 8 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 9 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 10 RAD Exhibit 3, RPDR, RPD Exhibits 7 and 8, the latter also analysing a Federal Court case decided subsequent to Alvarez and Eng i.e., Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 11 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702 and Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 13 Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913. 14 Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799. 15 For example see Njeukam v Canada (Minister of Citizenship and Immigration), 2014 FC 859; Yetna v Canada (Minister of Citizenship and Immigration), 2014 FC 858; and Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063. 16 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 17 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, paras. 15-27. 18 Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072. 19 Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022. 20 Djossou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1080. 21 Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120. 22 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paras. 42-52. 23 Alvarez v. Canada (Minister of Minister of Citizenship and Immigration), 2014 FC 702, para. 29. 24 Canada v. South Yukon Forest Corporation, 2012 FCA 165, para. 46. 25 Dunsmuir v. New Brunswick, 2008 SCC 9. 26 Immigration and Refugee Board (IRB) of Canada. 27 Kanga v. Canada (Minister of Citizenship and Immigration), 2012 FC 482. 28 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, para. 38. 29 Akuffo, ibid., para. 46. 30 Akuffo, ibid., para. 47. 31 Akuffo, ibid., para. 50. 32 Sajad v. Canada (Minister of Citizenship and Immigration), 2014 FC 1107, at para. 26 and Allalou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1084, at para. 20. 33 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859. 34 Yin v. Canada (Minister of Citizenship and Immigration), 2014 FC 1209. 35 Yin, ibid., paras. 33 and 34. 36 Yin, ibid., para. 36. 37 Yin, ibid., para. 37. 38 Ansar v. Canada (Minister of Citizenship and Immigration), 2011 FC 1152. 39 Aguilar Zacarias v. Canada (Minister of Citizenship and Immigration), 2012 FC 1155. 40 RAD Exhibit 3, RPDR, p. 6, paras. 10-12. 41 RAD Exhibit 3, RPDR, p. 6, para. 11. 42 RAD Exhibit 3, RPDR, pp. 6-7, paras. 12-14. 43 RAD Exhibit 3, RPDR, p. 13, para. 31. 44 RAD Exhibit 3, RPDR, pp. 88 and 90. 45 RAD Exhibit 2, AR, pp. 27-29. 46 RAD Exhibit 3, RPDR, p. 102. 47 RAD Exhibit 3, RPDR, p. 92. 48 RAD Exhibit 2, AR, pp. 21-22. 49 RAD Exhibit 3, RPDR, pp. 7-8, para. 16. 50 RAD Exhibit 2, AR, p. 127, para 57-58. 51 RAD Exhibit 3, RPDR, p. 18, lines 14-15. 52 RAD Exhibit 3, RPDR, pp. 9-13. 53 RAD Exhibit 3, RPDR, p. 10, para. 26. 54 Liang Canada v. (Minister of Citizenship and Immigration), 2009 FC 86. 55 RAD Exhibit 3, RPDR, p. 7. 56 RAD Exhibit 2, AR, pp. 32-33. 57 RAD Exhibit 3, RPDR, p. 88. 58 RAD Exhibit 3, RPDR, p. 90. 59 RAD Exhibit 3, RPDR, pp. 94-101. 60 RAD Exhibit 3, RPDR, p. 8, para. 19. 61 Abusaninah v. Canada (Citizenship and Immigration) 2015 FC 234 62 RAD Exhibit 2, AR, p. 33, lines 20-26. 63 RAD Exhibit 3, RPDR, pp. 13-15, paras. 32-37. 64 RAD Exhibit 2, AR, p. 41, lines 1-29. 65 RAD Exhibit 2, AR, pp. 62-65. 66 RAD Exhibits 4-6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-00508