TB3-05397

RAD File No. / N° de dossier de la SAR : TB3-05397 TB3-05398 TB3-05399 TB3-05400 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 3, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F. Loebach Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX (the Appellants), citizens of Kosovo, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their appeals, and seek an oral hearing before the Refugee Appeal Division (RAD). The Appellants ask the RAD to set aside the decision of the RPD and substitute it with a decision that they are Convention refugees or persons in need of protection. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. Background [3] The principal Appellant, XXXX XXXX, alleged before the RPD that his passport was stolen when he visited a carwash in Kosovo. He was able to determine that an employee of the carwash, with the initials XXXX, had the passport and that employee then offered to return it in exchange for 700 Euros. The principal Appellant contacted the police, and helped them carry out a sting operation. When he met with XXXX to pay for the return of the passport, undercover police officers arrested the man, and they later returned the passport to the principal Appellant. However, only two days later, the principal Appellant was approached by XXXX, who was no longer in police custody. The man and his associates were armed with knives and threatened to kill the Appellant for having involved the police. The Appellant was able to flee, but he later learned that XXXX is affiliated with a notorious gang, against which the police can or will offer no protection. A few days later, he was again threatened by XXXX, and soon thereafter, the Appellants closed their business and fled to Canada, where they sought refugee protection. [4] The Appellants' refugee claims were heard on July 15, 2013. By a decision of July 25, 2013, the RPD rejected those claims, finding that the Appellants had not rebutted the presumption of state protection in Kosovo. The RPD noted that the Appellants had only involved the police on one occasion, and the police acted, and the principal Appellant was only speculating when he concluded that XXXX had been released from custody because of his influence with the police. As the Appellants did not seek further assistance from the police, and as objective evidence showed that the authorities in Kosovo have made progress in combating crime, including organized crime, the RPD found that the Appellants had failed to provide clear and convincing evidence to rebut the presumption of state protection in their country. [5] The Appellants submit to the RAD that it was reasonable for them to conclude that XXXX was connected to the local police, given his apparent release from custody. They argue that the RPD engaged in speculation that XXXX may have been released pending trial and failed to consider that, if this was the case, the principal Appellant was in further danger as a likely witness at such a proceeding. In the Appellants' submission, the RPD also failed to consider whether state protection is available to someone who has been targeted by a criminal gang, and to address the operational adequacy of Kosovo's efforts to combat organized crime. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The Appellants submit four articles on crime in Kosovo: an undated internet article from Saferworld.org, an October 29, 2010 internet article from Balkaninsight.com, an October 2008 internet article from telegrafi.com, and an undated Wikepedia entry on "Albanian mafia."1 [8] The Refugee Appeal Division Rules require the Appellants to provide with their appeal record a written statement indicating whether they are relying on any evidence referred to in Section 110(4) of IRPA, and to include in their Memorandum full and detailed submissions on how any such evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants.2 [9] The Appellants' Written Statement provides this explanation for the proposed new evidence: The articles contained in Exhibit I pre-date my hearing. I had collected them before. Nonetheless inadvertently I did not realize I did not submit these articles into evidence, only realize I didn't after the fact.3 [10] Despite the requirements of the Rules, the Appellants' Memorandum makes no submissions on how the proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants. [11] The new evidence, upon which the Appellants seek to rely, did not arise after the rejection of their refugee claims, and as the Appellants state that they had collected this material prior to their hearing, the evidence was clearly available at the time of the rejection of their claims. The issue of state protection is integral to the definition of a Convention refugee.4 The Appellants' claims are based on a fear of crime, and, as such, they could reasonably have been expected in the circumstances to have provided these documents to the RPD, particularly as they were represented by counsel. The RAD finds that the Appellants' proposed new evidence does not pass the test set out in Section 110(4) and is therefore not admissible as evidence in these appeals. [12] Even if the articles submitted to the RAD by the Appellants passed the requirements of Section 110(4), the RAD would not accept these as new evidence. In Raza,5 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.6 [13] The Federal Court has held on more than one occasion that the use of information from the Wikipedia website is highly questionable, as the reliability of its sources has not been demonstrated.7 Even if the Wikipedia article submitted by the Appellants could be considered as new evidence, pursuant to Section 110(4), the RAD would decline to accept this document as it cannot be considered credible, "considering its source and the circumstances in which it came into existence."8 [14] The remaining three articles speak to the perception of police and judiciary in Kosovo as ineffective and corrupt, to a lack of progress in fighting organized crime, to a trend of increased kidnappings in Kosovo, and to the risk posed by corruption and organized crime. The RAD has reviewed the evidence that was before the RPD and finds that the Appellants' proposed evidence is very similar in nature.9 As such, the evidence is not new in the sense that it could prove facts that were not known to the RPD at the time of the hearing. [15] Finally, even if the three articles met the test in Section 110(4) and could also be considered new, they would not be admissible as they are not material, in the sense that they could not change the outcome of the Appellants' refugee claims. The articles show that crime remains a problem in Kosovo, and that police and judicial corruption also continues. This information was already before the RPD in other documents. The proposed new evidence is not a clear and convincing rebuttal of the presumption of adequate state protection. In fact, the new evidence itself speaks to multiple arrests made by police in kidnapping cases10 and to the increasing effectiveness of the work of the Anti-Corruption Agency.11 [16] For these reasons, the Appellants' proposed new evidence is inadmissible in these appeals. Application for an Oral Hearing [17] The Appellants ask in their Written Statement that an oral hearing be held, pursuant to Section 110(6) of IRPA. [18] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), 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." [19] According to Section 110(6), upon which the Appellants rely, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellants, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [20] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellants, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] The RAD has not admitted any of the new evidence submitted by the Appellants in support of their appeals. As such, the RAD must proceed without a hearing, and the Appellants' request for an oral hearing is denied. Nature of the Appeal Proceeding [22] The Appellants argue that this is a de novo proceeding. In their submission, this is evidenced by their right to file new evidence and by the RAD's jurisdiction to not only set aside decisions of the RPD, but to substitute its own decisions in their place. [23] In Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399, the Alberta Court of Appeal considered the relationship between administrative tribunals and administrative appellate tribunals. The Court considered whether the appellate tribunal-in that case, the Law Enforcement Review Board-properly chose to conduct a hearing de novo when considering an appeal against the decision of the administrative tribunal of first instance-in that case, a presiding police officer. That Board considered various provisions of its enabling legislation, including those which gave the Board power to admit new evidence, and it concluded that it should embark on a de novo hearing and that, in fact, it was compelled to do so absent the agreement of the parties to do otherwise.12 [24] The Court disagreed, finding that neither the fresh-evidence provisions nor other sections of the Board's enabling legislation signalled an intention to require a de novo hearing in each appeal. The RAD notes that relevant sections of IRPA are similar to the legislative provisions considered in Newton. Section 110(3) of IRPA provides that: Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal.... [25] Subsection (4) states that: 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. [26] Subsection (6) gives the Refugee Appeal Division the discretion to hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [27] IRPA neither states nor signals that an appeal to RAD is a de novo hearing of the Appellants' refugee claims, and in fact the provisions set out above indicate otherwise. Appellants bringing their case to the RAD have a restricted right to bring new evidence.13 The RAD is required to proceed without a hearing,14 unless there is new evidence which meets the requirements set out in Section 110(6). The effect of these restrictions on new evidence would be a de novo hearing where the Appellants are limited in their ability to present evidence to support their claims, despite having gained a new hearing of those claims. The RAD also notes that, in situations where it holds an oral hearing, the Rules require that a notice be prepared setting out the issues that will be raised at the hearing. The hearing is restricted to matters relating to those issues, an approach not at all consistent with a de novo hearing.15 [28] Having considered the Court's reasoning in Newton, as well a plain reading of IRPA, the RAD finds that this appeal cannot result in a de novo hearing of the Appellants' refugee claims. Standard of Review [29] The Appellants argue that the RPD ignored and misinterpreted evidence relevant to state protection and wrongly applied the test for state protection. In the RAD's view, such submissions raise questions of mixed fact and law. [30] The Appellants argue that, as they view this matter as a de novo proceeding, a deferential standard is inappropriate. The RAD is intended to be a senior expert tribunal, empowered to issue decisions that are binding on the RPD. As the RAD can consider new evidence, and substitute its own determination for that of the RPD, it is able to render entirely independent decisions on the merits of the refugee protection claims. In the Appellants' submission, the appropriate standard of review is one of correctness. [31] Although 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. [32] In Dunsmuir,16 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. As the Appellants suggest, Dunsmuir has limited applicability to the RAD, which is not a reviewing court but rather an administrative appellate body. In Khosa,17 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [33] In Newton, the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:18 (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. [34] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.19 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [35] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [36] The nature of the question in issue: In these appeals, the questions in issue are ones of mixed fact and law. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.20 The issue of state protection has also been found, in the judicial review context, to be reviewable on a standard of reasonableness.21 [37] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [38] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.22 Section 3(2)(e) of IRPA identifies one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [39] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [40] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [41] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [42] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,23 and each can take notice of information and opinion within its specialized knowledge.24 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,25 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.26 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,27 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [43] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.28 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [44] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in these appeals, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact and of mixed fact and law. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions in issue here are ones of mixed fact and law, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.29 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [45] For these reasons, the RAD concludes that, in considering these appeals, it must show deference to RPD on matters of mixed fact and law. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.30 [46] The appropriate standard of review in these appeals is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.31 The RPD's Findings [47] The Appellants argue that the RPD erred in its consideration of the evidence in respect to, and the application of the legal test for, state protection. [48] The release of the agent of persecution from custody: The RPD considered the principal Appellant's evidence that the police arrested XXXX and returned the Appellant's passport. However, only two days later, the Appellant encountered XXXX on the street and was threatened by him. While the Appellant concluded that XXXX's apparent freedom could only be a result of his influence with the police, the RPD found that he was guessing and had no evidence of such a connection between the criminal and the police. The RPD noted that the Appellant's evidence could not rule out the possibility that XXXX was released by the police pending trial. [49] The Appellants submit to the RAD that the RPD failed to appreciate their circumstances. The police caught XXXX with a stolen passport and had recordings of telephone calls in which he attempted to exchange that passport for cash. Despite this, XXXX was free only days after his arrest, and was carrying a knife and threatening the principal Appellant mid-day, indicating a lack of fear of the police. In these circumstances, the Appellants argue, it was reasonable to conclude that the criminal did indeed have connections with the local police. They submit that they do not need to risk their lives to seek state protection only to prove it inadequate. In their view, the RPD speculated when it considered whether XXXX had been released pending trial, and it did not consider that someone on a temporary release could be expected to be under conditions prohibiting illegal activities. Finally, the Appellants argue that if indeed the criminal had been released pending trial, they are also at risk as potential witnesses in that trial. [50] The principal Appellant testified to the RAD that, when he first approached the police about the stolen passport, they were helpful.32 They helped him regain his passport, and they put the offender in jail. He conceded that he did not know whether XXXX was released pending a trial, and he testified that he was "guessing that because he has strong connections he was able to leave."33 In light of this evidence, it was reasonable for the RPD to find that the Appellants had not established that XXXXwas released because of his influence with police. [51] The RPD did not find that the criminal was released pending trial. It simply noted that this scenario could not be ruled out, based on the principal Appellant's evidence. In the RAD's view, this was a reasonable observation. Despite the principal Appellant's suspicions, he simply did not have any specific reason to believe that XXXX was released because of his influence, instead of being released pending trial or even having escaped police custody. While the Appellants point out that they are not required to risk their lives in seeking protection only to demonstrate that it is ineffective, this is not such a situation. They approached the police once, and the police were helpful and acted promptly. In such circumstances, it was reasonable for the RPD to question their failure to return to the police when threatened by XXXX. [52] The Appellants submit "commonly, the person who temporary released (sic) had conditions not to associate with illicit activity and all other restrictions."34 They provided no evidentiary basis for their apparent assertion that persons released in Kosovo pending trial are subject to such conditions and no explanation why a notorious criminal, as XXXX is alleged to be, could be expected to abide by such conditions when seeking to silence the Appellant. [53] The Appellants argue that, if the criminal was indeed released pending trial, they are at further risk because the principal Appellant is the only witness who could testify at such a proceeding. While this may be the case, it does nothing to rebut the presumption of state protection, which was determinative in these claims. [54] Adequacy of state protection: The RPD's reasons describe efforts made by authorities in Kosovo to combat crime and that such efforts are supported by the European Union Rule of Law Mission (EULEX) and the NATO peacekeeping force (KFOR). The RPD also noted that effective steps are taken at an operational level against officials engaged in abuses. Having considered the principal Appellant's own evidence, including the assistance initially rendered by the police and the Appellants' failure to report further problems to the police, the RPD concluded that the Appellants have not rebutted the presumption of adequate state protection. [55] The Appellants argue that, while the RPD considered the efforts made to fight organized crime in Kosovo, it failed to assess whether such efforts translate into "operational adequacy", which protects individuals targeted by criminal organizations. In the Appellants' submission, the RPD failed to consider whether Kosovo's efforts to provide protection have resulted in protection that is effective. [56] It would have been better if the RPD's reasons had incorporated a more detailed analysis of the evidence in respect to state protection efforts and outcomes. However, in the RAD's view, even where the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.35 In this matter, there was evidence before the RPD to support the conclusion that efforts to combat corruption and organized crime in Kosovo have had concrete results. [57] Objective evidence that was before the RPD indicates that there are specialized police units dealing with organized crime, including a EULEX unit, and that EULEX also operates a witness protection program which is independent of the Kosovo police. International police officers, prosecutors, and judges, deployed by EULEX throughout the country, have the right to intervene in any particular criminal matter. An independent police inspectorate investigates complaints against police and has registered almost 300 complaints as criminal cases.36 While reports persist of corruption among the judiciary, an effective mechanism is in place for disciplinary proceedings against judges and prosecutors.37 There are two major agencies tasked with combating government corruption, and authorities have laid charges against various officials, including the head of the Anti-Corruption Task Force.38 [58] A report to the United Nations Security Council outlines progress made by the Kosovo Police, working with EULEX, in combating organized crime. The report details various investigations, arrests, prosecutions, and convictions of individuals, including government officials, involved in organized crime.39 The European Commission is cited in another document as noting that Kosovo has made some progress in combating corruption, despite significant challenges, and that police officers have been arrested for corruption.40 While none of this establishes that Kosovo provides perfect protection to its citizens, including those in situations like that of the Appellants', it does show that the state's efforts to provide protection have had some practical and concrete results. [59] The Appellants fear an individual who is associated with an organized criminal group. When they approached the police for assistance, the police were helpful, conducted an operation to arrest the man, and retrieved the principal Appellant's stolen passport. Despite this, the Appellants chose not to return to the police when they had further problems with the criminals. The adequacy of state protection cannot rest on the subjective fear of the Appellants;41 they cannot rebut the presumption of state protection by asserting only a subjective reluctance to engage the state.42 [60] Even if they had reason to believe that the local police were under the influence of AZ and his criminal organization, the Appellants could have sought help from specialized police units that deal with organized crime or provide witness protection, or approached anti-corruption agencies. Local failures to provide effective policing do not amount to a lack of state protection unless they are part of a broader pattern of the state's inability or refusal to provide protection,43 and the Appellants have not established such a broader pattern. [61] The RPD considered the Appellants' evidence, along with the objective evidence, and concluded that the presumption of state protection in Kosovo was not rebutted. The RAD finds that this conclusion falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law, and these appeals therefore cannot succeed. CONCLUSION [62] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. These appeals are dismissed. (signed) "Edward Bosveld" Edward Bosveld January 3, 2014 Date 1 Appeal Record, pp. 147-158. 2 Refugee Appeal Division Rules, Sections 3(3)(d) and 3(3)(g). 3 Appeal Record, p. 31, Written Statement, para. 15. 4 IRPA, Section 96(a). 5 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 6 Raza, paras. 13-15. 7 Fi v. Canada (Minister of Citizenship and Immigration) 2006 FC 1125, para. 9; also see Karakachian v. Canada (Citizenship and Immigration) 2009 FC 948, para. 45. 8 Raza, para. 13.1. 9 Similar, and more recent, evidence of this nature can be found in the National Documentation Package (NDP) that was before the RPD, at Items 2.1 (pages 1, 8, 9, 14, 20, and 21) 7.1, 10.1 (pages 5, 24) and 10.2. 10 Appeal Record, p. 150, Kidnappings Make Unwelcome Return to Kosovo. 11 Appeal Record, p. 148, Kosovo. 12 Newton v. Criminal Lawyers Trial Association, 2010 ABCA 399, para. 22. 13 IRPA, Section 110(4). 14 IRPA, Section 110(3). 15 Refugee Appeal Division Rules, Rules 56(1) and 57(1). 16 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 17 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 18 Newton, para. 43. 19 IRPA, Sections 96 and 97. 20 Khosa, para. 89. 21 Andoni v. M.C.I., 2012 FC 516, para. 35. 22 IRPA, Section 3(2)(a). 23 IRPA, Sections 170(g) and 171(a.2). 24 IRPA, Sections 170(i) and 171 (b). 25 IRPA, Section 170(b). 26 IRPA, Section 110(3). 27 Khosa, para. 89. 28 Newton, para. 80. 29 Khosa, para. 89. 30 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 31 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 32 Appeal Record, p. 26, Transcript, p. 9. 33 Appeal Record, p. 23, Transcript, p. 6. 34 Appeal Record, p. 302, Memorandum, para. 33. 35 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 36 RPD's Record, p. 62, National Documentation Package for Kosovo, May 2013, Item 2.1, page 6. 37 Ibid., Item 2.1, p. 9. 38 Ibid., Item 2.1, p. 22. 39 Ibid., Item 2.3, pp. 15-17. 40 Ibid., Item 10.2, p. 4. 41 Martinez, Dunnia Patricia Suarez v. M.C.I. (F.C., no IMM-7329-04), Phelan, July 29, 2005. 42 Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004. 43 Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-05397 TB3-05398 TB3-05399 TB3-05400