TB3-07967

\ RAD File No. / N° de dossier de la SAR : TB3-07967 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 9, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ceri P Forbes Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX appeals a decision of the Refugee Protection Division denying his claim for refugee protection dated October 10, 2013. DETERMINATION [2] Pursuant to Section 111(1)a of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the Refugee Protection Division's decision. The Appeal is dismissed. BACKGROUND [3] The Appellant is a citizen of Ethiopia who fears returning to Ethiopia because of his political involvement. He participated in the 2005 election campaign on behalf of the Coalition for Union and Democracy (CUD) party, and later changed his affiliation to the Union for Democracy and Justice (UDJ) party after the CUD split. He participated in the 2010 election campaign helping the UDJ. [4] The claimant fears for his life and being targeted by the Ethiopian security forces. He believes that there is no safe place for him anywhere in Ethiopia. [5] He was arrested in XXXX 2012, and in detention he was interrogated and mistreated. He was released on bail on XXXX XXXX XXXX 2013 with conditions. [6] He left Ethiopia and entered Kenya on XXXX XXXX, 2013 and left Kenya for Canada on XXXX XXXX XXXX 2013, arriving the following day and claimed protection a few days later. [7] In its reasons dated October 10, 2013, the RPD found that the Appellant was not a Convention refugee or a person in need of protection as it found the Appellant was not a credible witness because his "oral testimony was at odds with his written narrative as contained in his Basis of Claim form.1" [8] The RPD made the following findings: * The panel found, on a balance of probabilities, that the Appellant was a citizen of Ethiopia, and stated, "as he produced his baptismal certificate, his UDJ party membership card, and a school transcript.2 * The RPD accepted a letter from the Public Relations Chair of the Unity for Democracy and Justice Party purporting to confirm the claimant's activities within the UDJ but stated "unable to attribute much weight to the letter" because it was vague and lacked expected details. * The RPD had serious concerns about contradiction between the Appellant's testimony and his narrative about the alleged interrogation and when it took place. * The RPD also stated, "There was no evidence to corroborate the alleged injuries" allegedly suffered during mistreatment while in detention. * The RPD was also concerned about another contradiction between the Appellant's testimony and his narrative in his Basis of Claim (BOC) about the alleged search of his home and whether anything was taken by the security forces or not. The appeal was perfected on November 25, 2013. [9] The Minister did not intervene in this application. [10] In the appeal, the Appellant submitted that despite some credibility issues, the Panel accepted that the Appellant was a card-carrying member of the UDJ and that puts him at risk in light of evidence submitted on appeal. [11] It is important to state the exact wording of the Appellant in this case, which states: "The panel accepts, on a balance of probabilities, that the claimant is a citizen of Ethiopia as he produced his baptismal certificate, his UDJ party membership card and a school transcript.3" (Bold original), and that evidence submitted with the appeal is material to the claim because it shows arrests of UDJ members not timed to coincide with election campaigns as the RPD Panel found in its reasons, and that this "evidence is in direct opposition to the panel's determination about the risk the appellant would face on return to Ethiopia.4" [12] The Appellant requests, "That the Refugee Appeal Division set aside the determination and refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. New Documents with Appeal [13] The Appellant on appeal submitted several items listed below without providing a list. These include: a. his affidavit dated Nov. 23, 2013 (page 8 of Appellant's Record) b. News Article dated Nov. 5, 2013 (page 30) c. An one page news release Dec. 2, 2013 regarding a report to be sent (page 34) d. a letter from UDJ Party Deputy of Public Relations dated XXXX XXXX, 2013 (page 45) e. a notice to appear dated September 19, 2013 (page 43) f. undated news article (page 32) g. The article dated October 1, 2013 (page 35) h. Article dated 27 September 2013 (page 37) i. The article dated September 11, 2013 (page 38) j. The article of September 25, 2013 (page 39) k. The article dated September 25, 2013 (page 40) l. The article dated September 10, 2013 (page 42) [14] The RPD reasons were signed and dated October 10, 2013, so that is the date of the rejection, according to RPD Rule 68(1)(b). [15] In order for the RAD to consider these as new evidence, these items must meet the criteria set out in subsection 110(4) of the Act which provides that the evidence proffered must not have been reasonably available at the time of the hearing, and states: S.110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their 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. [16] Additionally, if the evidence meets the statutory criteria, it must also be assessed against the factors set out in Raza,5 which is the leading case on "new" evidence. Even though the Raza case was specific to the Pre-Removal Risk Assessment (PRRA) process, I consider it relevant to the RAD because the wording in s. 113(a) of the Act, which is regarding PRRA provisions, and ss. 110(4) of the IRPA regarding the RAD are similarly worded. [17] In Raza, the court posed the following questions that needed to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment case. These, as summarized by the Court, are: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or, (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or, (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [18] The RAD applied subsection 110(4) of the Act and Raza, in considering whether to accept evidence that was provided to the RAD in this appeal. [19] Items "e to l" listed above in paragraph 12 are all pre-rejection and are submitted without reasonable explanation as to why the above evidence was not reasonably available or could not reasonably have been expected to be presented in the circumstances - at the time of the rejection. Thus these do not meet the express statutory conditions and are not in evidence. [20] Item "d", the letter from the UDJ, post-dates the rejection; however, it contains information that was available prior to the rejection. The Appellant stated in his Affidavit that he did not have enough time to ask Dr. XXXX to provide more details in the letter he provided to the RPD. I do not find this to be a reasonable explanation for why this piece of evidence was not obtained before the rejection of the claim. Therefore this item also not accepted as new evidence. [21] Item "a", paragraphs 6 to 8 meet the statutory requirements and the Raza test in terms of relevance, thus these three paragraphs are accepted as new evidence. [22] Item "b" describes how the government is using its powers to persecute UDJ party members. The government however states that it is arresting those belonging to a terrorist group. This information is not new entirely; it does state that the government has increased its activities of arresting dissenters. The information and was available to the RPD even though the news article is dated after the rejection of the claim. It states two points of views that those considered terrorists are being sought. Thus I cannot place much weight on this news article. [23] Lastly, item "c" is essentially a news release that a report prepared by the UDJ party that shows the government's abuse of its members; and that this report will be sent to international human rights activists. Without the report or a proper summary of the report, I cannot place much weight on the news item. [24] This relevance of the items b and c may come into play if the Appellant is found to be credible and a card-carrying member of the UDJ party. If the Appellant is indeed a card-carrying member of the UDJ party as the RPD found, these documents may have met the Raza test in that news clippings are from credible sources. Thus, the RAD will accept these documents into evidence provided the RAD is satisfied with the RPD's finding on the issue of Appellant's membership in the UDJ party. Considering the above, I am accepting items "b" and "c", but assign them little weight. STANDARD OF REVIEW [25] The issue as per the Appellant is: Does the new evidence presented postdating the hearing give rise to serious new issues concerning the risk to the Appellant's life or risk of torture or cruel and unusual punishment that should at the very least be addressed by the referral to the Refugee Protection Division for redetermination? This is an issue of fact. [26] The Appellant did not make submissions regarding the standard of review. [27] The Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [28] The RAD considered the factors outlined in Newton v. Criminal Trial Lawyers' Association,6 in assessing and selecting the appropriate standard of review for findings of fact. Newton takes into account the list of factors in Dunsmuir7 that 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. [29] The Newton factors specifically deal with the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance. Therefore, these factors are relevant to the relationship between the RPD and the RAD. Based on Newton, the RAD focused on the factors listed below to determine the standard of review. [30] The Supreme Court of Canada, in Khosa,8 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. [31] In light of Newton, the RAD considers the following factors as the three most important: * the respective roles of the RPD and the 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. [32] Both the RPD and the RAD derive their jurisdiction from and interpret the same statute - the Immigration and Refugee Protection Act (IRPA). Section 162 of IRPA empowers both Divisions "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." [33] The respective roles of the RPD and the RAD in the context of IRPA are not the same. The primary role of the RPD is to hear testimony, review evidence and determine a claim based on its merits. The RAD generally reviews those determinations based on questions of law, fact or mixed fact and law. The RAD may substitute a different determination than that made by the RPD and make its role somewhat similar to that of the RPD in that each Division is engaged in refugee determination. [34] The RAD decides appeals of RPD decisions related to refugee protection on questions of law, of fact, or of mixed law and fact;9 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 the RAD, and the limits imposed on the RAD in IRPA highlighted below. [35] The RPD is a tribunal of first instance which has the authority in IRPA to make a decision on a claim for protection.10 RPD members have expertise in interpreting and applying IRPA and as well are considered to be experts in assessing claims based on country conditions. The RPD must conduct a hearing11 and assess the totality of the evidence before it. This includes evidence related to the credibility of the Appellant, the witnesses, if any, it sees the claimants and hears their testimony first hand and questions them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses. [36] In contrast, the IRPA limits the RAD's ability to consider evidence. The RAD is to review the decision made by the RPD and review RPD's decision in light of new evidence. In most cases, the RAD must proceed without a hearing on the basis of the record, submissions by the parties, and new evidence.12 The RAD's authority to consider new evidence and hold hearings is limited to evidence; in most cases, 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.13 Oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.14 [37] 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 because the RPD holds a hearing and takes direct testimony from the claimant, and considers the totality of the evidence before it. [38] The RAD's authority to consider new evidence is limited by IRPA. Newton, at paragraph 82, states with respect to the appellate division the following: "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".15 [39] 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".16 [40] 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 and, if the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.17 [41] In the case at hand, the Appellant did not allege that the RPD made errors of fact, but provided new documentary evidence that shows that the active members of the UDJ party may be persecuted or harmed in Ethiopia which may contradict the RPD's finding in paragraph 21. [42] The RPD in its reasons at paragraph 21 wrote, "While there have been occasional arrests of party leaders over the years, followed usually by their release, the UDJ appears to be a growing, active and legal political party with its membership able to carry on vigorous political activity. The arrests of ordinary members are less frequent, and are normally timed to coincide with election campaigns." [43] In my opinion, the issue is whether the RPD's finding in its reasons at paragraph 6 is reasonable. Analysis [44] The RPD's reasons at paragraph 6 states, "The panel accepts, on a balance of probabilities, that the claimant is a citizen of Ethiopia, as he produced his baptismal certificate, his UDJ party membership card, and a school transcript." (Emphasis added). This finding of fact establishes the Appellant's identity to be a UDJ party member based on his membership card. [45] Thus, the only document upon which the RPD based its finding that the Appellant is a member of the UDJ party was "his UDJ party membership card." mentioned in paragraph 6 that states: "The panel accepts, on a balance of probabilities, that the claimant is a citizen of Ethiopia, as he produced his baptismal certificate, his UDJ party membership card, and a school transcript". [46] A thorough review of the record shows that there was no evidence before the RPD in the form of a UDJ membership card. In fact the Appellant's affidavit18 states the following "I am attaching my CUD membership card and the letter from UDJ signed by XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXIn the Newfoundland and Labrador Nurses' Union,19 the court stated: [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. [47] In light of the above, and in light of the prejudice to the Appellant, I considered whether there is any other evidence remaining that would confirm the RPD's finding that the Appellant was a member of the UDJ party. I find that an old membership card of the CUD does not confirm his identity as a UDJ member. A review of the RPD's audio record of the hearing also does not provide me with sufficient credible evidence that the Appellant is (was) a member of the UDJ party. The RPD provided reasons as to why it gave little weight to the letter from the party. These reasons are cogent and reasonable. [48] As stated above, the RAD gives a considerable level of deference to RPD findings on questions of fact but, in this case, the RPD findings do not meet the reasonableness test. [49] The RPD finding that the Appellant is (was) a member of the UDJ party is based on a document that does not exist. In fact, it could be argued that the RPD made a clear finding of the Appellant's identity as a national of Ethiopia, rather than a clear finding of his membership in the UDJ party. Had it done so, the RPD would not have assigned little weight to the letter from the party that was before it. Therefore, it appears that the RPD was not satisfied with the Appellant's identity as a member of the UDJ party even though it did not make a clear finding on this issue. [50] Moreover, after a thorough review of the record, I cannot find sufficient credible evidence upon which to find that the Appellant is a member of the UDJ party. I note that if the RPD made the finding that he is a member of the UDJ party, it is based on a document that does not exist and therefore that finding is not reasonable. . [51] Therefore, I have insufficient credible evidence upon which to find that the Appellant is a member of the UDJ party, thus the new evidence, items "b and c" are not material in this appeal. [52] The RPD's adverse findings of credibility were not challenged by the Appellant and, therefore, there is no need to visit the credibility finding of the RPD. [53] The RPD's determination is that the Appellant (their claimant) is neither a Convention refugee nor a person in need of protection even though the RPD found that the Appellant was a member of the UDJ party. [54] The RAD's determination that the RPD finding of the Appellant being a member of the UDJ party was unreasonable appears to strengthen the RPD's final determination even though part of it was based on unreasonable grounds. The Appellant provided a CUD membership card but did state that he was no longer a member of the CUD party and did not suggest he feared persecution due to his past membership in the CUD party. DISPOSITION [55] The RAD finds that the RPD's decision falls within a range of possible, acceptable outcomes defensible in respect of the facts and is therefore not unreasonable. [56] The Appellant asked that the RAD find the Appellant to be a Convention refugee or send the matter for redetermination by a different Panel of the RPD. The RAD notes that credibility was and remains a key issue in the Appellant's refugee claim that was not challenged by the Appellant and was not disturbed by the RAD. [57] Despite the error of finding the Appellant to be a member of the UDJ, the RAD confirms the RPD's decision. CONCLUSION [58] Pursuant to s. 111(1)a, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [59] This appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal January 9, 2014 Date 1 P1 at page 4. 2 Documents 4 and 5, Consolidated List of Documents. 3 P1 page 47, paragraph 3.01 4 Ibid., page 49, paragraph 3.13 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 6 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 7 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 8 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 9 IRPA, s. 110 (1). 10 IRPA, s. 107. 11 IRPA, s. 170. 12 IRPA, s. 110.3. 13 IRPA, s. 110.4. 14 RAD Rule 57. 15 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 16 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 95. 17 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, at para 47. 18 P1 at page 8 para 4 19 Newfoundland and Labrador Nurses' Union decision v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-07967