TB5-05421

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 : TB5-05421 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 July 15, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Anton Osterling Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the Appellant), a citizen of Lebanon, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) accept his new evidence in accordance to section 110(4) of the Immigration and Refugee Protection Act (IRPA), and to overturn the decision of the Immigration and Refugee Board (IRB) and replace that decision with a positive finding. The Appellant is not represented by counsel in this appeal. [2] The Minister of Public Safety (Minister) has intervened in this appeal and has made submissions on the matter. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [4] The Appellant alleged before the RPD that he was being targeted by his cousin, who has shot at the Appellant with a gun. The cousin is trying to coerce the Appellant into selling to the cousin a piece of property at a fraction of its value. The Appellant had filed a police report and had asked the mayor of the town in which he lived, to intervene on his behalf. Nothing worked so the Appellant fled to Canada in XXXX of 2013 and filed for protection on July 14, 2014. [5] The Appellant's application for refugee protection was heard on September 11, 2014 with a negative decision being handed down in writing on October 24, 2014. The panel found the Appellant to lack credibility in material areas of the claim. [6] The Appellant submits that the RPD misapprehended his testimony specifically in regards to the date of the incident central to the claim. [7] The Appellant submits that the RPD misapprehended the documentary evidence disclosed, in particular the police report1 and within that report, the different dates therein. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of the IRPA provides that the Appellant "may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [9] Even where a document meets the test in section 110(4), this does not require the RAD to admit it into evidence without any further consideration. It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.2 [10] As this Appellant is not represented by counsel, the RAD has taken a more lenient attitude towards the issue of new evidence. The Appellant has disclosed two documents. The Appellant has not explained by way of full and detailed submissions in his Memorandum how these documents meet the requirements of section 110(4) and of how the evidence relates to the Appellant. The RAD has decided to overlook this particular omission and to analyze the evidence anyway. [11] The first document3 appears to be a letter from XXXX XXXX, President (mayor) of XXXX XXXX Municipality. In the letter, the author attests to the issue of the dispute between the Appellant and his cousin. The Minister argues that the document does not comply with section 110(4) because the section reads, "On appeal, the person who is 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." The Minister argues that this letter should have and could have been provided before the decision was handed down and therefore does not qualify under section 110(4) as new evidence. The RAD agrees with the Minister. The Appellant did not provide any explanation as to why this letter was not reasonably available before the decision was rendered and the RPD had adjourned the matter in order for the Appellant to get further documentation, which was not disclosed to the RPD. Therefore this letter will not be allowed into evidence. [12] The second document is a letter4 from the Interior Security Forces, Head of the Police Station of XXXX XXXX. In this document, the author explains the differences in the two distinct dates on the document which was questioned by the RPD. The RPD found this difference was a credibility issue as it was not properly explained by the Appellant. This letter refers to evidence accepted at the hearing, weighed and virtually dismissed as having no weight, so the subject matter is not new. The Minister's argument is the same as above, that the document should have been available before the decision was rendered and therefore does not qualify as new evidence. [13] The RAD respectfully disagrees with the Minister in this case. The document at hand has been produced in response to an issue brought forward by the panel. It was not evidence which the Appellant should have, reasonably, expected to be required at his hearing or before the decision was made. There is no way that a reasonable person would have expected the panel to question the official document on the issue of the dates. The RAD will allow this document into evidence and give it the weight it deserves. Role of the RAD [14] The Minister has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,5 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [15] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [16] The Appellant argues that the RPD misapprehended the evidence testified to at the hearing specifically in regards to the date of the incident central to the claim. The RAD has perused all of the evidence and testimony from the hearing. The dates of the event central to the claim (the shooting) were varied widely by the Appellant. In his Basis of Claim (BOC), the Appellant stated that he was shot at by his cousin on XXXX XXXX, 2013. He testified at his hearing that he was shot at 4 or 5 days before he came to Canada which was XXXX XXXX. This would indicate that the shooting took place on either XXXX XXXXor XXXX. The Appellant originally testified at his hearing that the shooting occurred on XXXX XXXX, 2013 and changed the date when questioned by the panel about the discrepancy. In his statement of December 5, 2014, the Appellant writes that in his BOC he had given the date of XXXX XXXX, 2013 as the shooting date however, having read the BOC6 the RAD finds no mention of this date but only of the date of XXXX XXXX, 2014 as the date of the shooting. The document disclosed as new evidence and accepted as such by the RAD is a letter verifying that the Appellant had attended the police station to report the shooting in question however that letter verifies that the report was made on XXXX XXXX, 2013, a totally new date. The RAD is now seeing XXXX XXXX, XXXX, XXXX or XXXX as possible dates for the alleged shooting. With so many possible dates given by the Appellant, the RAD must agree with the RPD. The RAD can give this evidence little weight because of the contradictory nature of the date's differential as shown above. [17] The RAD has listened to the audio recording of the hearing, has read the submissions from all parties and has independently reviewed the evidence and has conducted an independent assessment of that evidence. The Appellant argues that he was nervous when he erred on the date when he said that the threat against him occurred on XXXX XXXX. What he meant to say was that the argument between him and his cousin began on XXXX XXXX5. This is not what the Appellant said when question by the RPD about the difference in dates. The BOC indicated XXXX XXXX, 2013 as the date his cousin shot at him but he testified that it was XXXX XXXX, 2013. The question was clear and the answer was clear. The RAD does not accept this explanation by the Appellant for the difference in the dates. The RPD inferred negative credibility when the Appellant testified to a shooting which allegedly occurred after his XXXX 2013 incident. According to his testimony, the same cousin who threatened the Appellant shot the Appellant's brother just a month after the Appellant was shot at. This was not in the Appellant's BOC and when asked why the Appellant would omit such an important piece of information which could certainly be significant to his claim, from the BOC, the Appellant was unable to produce a satisfactory answer. Further credibility issues were raised by the RPD and have not been addressed by the Appellant in any satisfactory manner in his Memorandum. [18] The RAD finds that the Appellant was not credible and concurs with the findings of the RPD disposition [19] The RAD finds and concurs with the RPD that the Appellant is not credible. CONCLUSION [20] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe July 15, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 11-12. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Exhibit P-2, Appellant's Record, at p. 10. 4 Exhibit P-2, Appellant's Record, at pp. 11-12. 5 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 6 Exhibit RPD-1, RPD's Record, at pp. 10-19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05421