TB5-11579

RAD File No. / N° de dossier de la SAR : TB5-11579 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 16, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Shirzad S. Ahmed 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 N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX (the principal Appellant) and his wife XXXX XXXX (the associated Appellant), citizens of Mongolia, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted no new evidence in support of their appeals. The Appellants asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find them to be protected persons or return the matter to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. These appeals are allowed. Background [3] The Appellants alleged before the RPD that they witnessed a hit-and-run accident in which the vehicle of a prominent politician struck a pedestrian. They reported the matter to the police, but the police accused them of being involved in the accident. Soon afterward they were attacked and beaten, apparently by associates of the politician. They fled to Canada, and later learned that a friend who also witnessed the accident had been killed. [4] The Appellants' applications for refugee protection were heard on June 16 and July 15, 2015. By a decision of August 14, 2015, the RPD rejected the claims. The panel cited concerns with the amount of detail provided in the Appellants' Basis of Claim (BoC) forms and in their oral testimony. The RPD also noted a lack of evidence with respect to the politician, and found inconsistencies with respect to photographic evidence provided by the Appellants. [5] The Appellants submit that the RPD displayed a reasonable apprehension of bias by fixating on irrelevant details of their testimony; in their view, the RPD had reached a predetermined negative conclusion with respect to their credibility. They also argue that the RPD erred in law and in fact by ignoring the totality of the evidence, by selectively considering evidence, and by misconstruing evidence. ANALYSIS What is the Role of the RAD? [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The Appellant submits that the RAD must analyze whether the RPD relied on a wrong principle of law, or mis-assessed the facts to the point of making palpable and overriding errors. The RAD must fully and independently re-assess the evidence. [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.1 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, and the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.2 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The RPD's Findings [16] The Appellants argue that the RPD made various errors in rejecting their claims for protection. Bias [17] The Appellants argue that the RPD "displayed a reasonable apprehension of bias by fixating on irrelevant details"3 in their testimony. In their submission, this fixation showed that the panel had reached a predetermined negative conclusion with respect to their credibility.4 They take the position that they have been denied a fair hearing. [18] Although the Appellants submit that the RPD displayed an apprehension of bias, the RAD notes that an allegation that a decision-maker has prejudged a case is in fact an accusation of actual bias.5 This is a very serious allegation, as it challenges the integrity of the decision-maker, and the threshold for establishing actual bias is a high one.6 [19] The Appellants submit that the RPD's questioning was indicative of a decision-maker who had already made up his mind with respect to their credibility. The RAD disagrees. The RPD is an inquisitorial tribunal where credibility is almost always at issue. One method of assessing credibility is to compare a refugee claimant's oral testimony to the written allegations contained in the BoC form, and that is what the RPD did. This was not indicative of a closed mind on the part of the decision-maker. [20] The Appellants have not established that the RPD member displayed bias. [21] The test for a reasonable apprehension of bias is what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude, and whether that person would think it more likely than not that the decision-maker, either consciously or unconsciously, would not decide the matter fairly.7 Such a person would have seen an RPD member who vigorously questioned with respect to credibility, and perhaps even asked an inappropriate question-when the principal Appellant was asked to repeat portions of his BoC narrative word for word.8 However, the RAD concludes that this alone would not lead an informed person to conclude that the matter would not be decided fairly. [22] The Appellants have not established that the RPD displayed bias, or that there was a reasonable apprehension of bias, in the hearing and determination of their claims. Credibility [23] The RPD repeatedly erred by making incomprehensible credibility findings. [24] The panel started out by finding that the Appellants were not credible witnesses. It then noted that their oral testimony was consistent with the BoC and "extremely precise in terms of detail." 9 However, it found that this testimony was "delivered as if rehearsed and practiced, and the delivery of the testimony simply did not strike the panel as particularly credible."10 [25] The RPD considered the Appellants' BoC narratives, which include considerable detail, including what appears to be word-for-word recounting of conversations that took place in Mongolia. The principal Appellant explained that he has a very good memory; however, when the RPD tested that memory by asking him to repeat those conversations in his oral testimony, he was unable to, explaining that he was nervous. [26] It seems, upon a careful review of the RPD's reasons, that the panel first faulted the Appellants for providing too-detailed information in their BoC narratives, and being able to consistently testify to those details. In the next breath, the RPD faulted the Appellants for not being able to provide a word-for-word recounting of parts of the BoC narrative. These two findings are irreconcilable. Either the Appellants provided consistent and detailed testimony, or they did not. [27] Refugee claimants are directed to provide specific details in their Basis of Claim form, which states that they must "INCLUDE EVERYTHING THAT IS IMPORTANT FOR YOUR CLAIM. INCLUDE DATES, NAMES AND PLACES WHEREVER POSSIBLE."11 Many of the questions in the form direct the claimant to "explain in detail."12 The Appellants can hardly be faulted for doing as instructed. The RAD observes that the format of the Appellants' BoC narrative is somewhat unusual, as they recount conversations-for example, with police officers-in a manner that appears to use direct quotations. It is difficult to see, however, how this could significantly impact their credibility, particularly since they completed the BoC without the assistance of counsel.13 [28] It is not remarkable that the Appellants could not provide the same high level of detail in their oral testimony. There is a considerable difference between writing out a BoC narrative-an exercise which might happen over a period of time, in a less stressful environment-and giving testimony in the high-stakes atmosphere of the hearing room. In this context, it is not at all surprising that the Appellants could not provide the same painstaking detail in their oral testimony as they did in their written narrative. They provided an explanation-nervousness-which the RPD did not address. It is important to note here that the RPD did not find a single significant inconsistency between the narrative and the testimony; in effect, the Appellants were criticized for being unable to remember minutiae and the precise wording of specific sentences. [29] The RPD went on to err further when it considered the Appellants' testimony with respect to the accident itself. The panel considered the Appellants' very precise testimony that they were in a vehicle travelling at the speed of 30 to 40 kilometres per hour. They saw the politician's vehicle at a distance of 40 to 50 metres. Apparently engaging in a form of quasi-judicial accident reconstruction, the RPD calculated that it would have taken "more than 3.5 seconds" for the Appellants' vehicle to pass by the accident scene. The panel found it "unusual" that the driver of the vehicle "did not immediately step on the brakes... Given their distance from the accident and their rate of speed, they would have had more than sufficient time to react as would be expected and stop their vehicle."14 [30] The Federal Court has cautioned that the RPD "...must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu."15 Plausibility findings should only be made in the clearest of cases. [31] Where the RPD makes an implausibility finding about the time required by a driver in Mongolia to apply the brakes of his vehicle in response to an accident in front of him, and with respect to whether a Mongolian driver would be expected to stop the vehicle in response to an accident in which he was not involved, it has not heeded the caution of the Federal Court, set out above. This was far from the clearest of cases, and it was an error for the RPD to make its implausibility finding with respect to the accident. [32] Although the Appellants argue that the RPD made further errors in rejecting their claims, it is not necessary for the RAD to address those arguments. The credibility errors discussed above are fatal to the RPD's determination. It is clear that the RPD's view of the Appellants' "demeanour"16-in this case meaning their detailed and consistent testimony-affected the panel's assessment of other areas of credibility.17 The RPD's finding with respect to the accident scene is linked to a further finding about the politician allegedly involved in the accident.18 [33] When these erroneous credibility findings are removed, the RPD's decision cannot stand. [34] The Appellants ask the RAD to substitute its own positive determination of their refugee claims. The RAD is unable to do so. There remains a significant credibility concern. The Appellants provided photographs of injuries allegedly suffered at the hands of the politician's associates. However, they had difficulty in explaining to the RPD how some of these injuries were inflicted. It was not an error for the RPD to find it implausible that the Appellants would not know how their own injuries were caused. The RPD also found that the photographs of the injuries appeared to have been altered, and that some of the wounds-which were allegedly new at the time of the photographs-appear to be almost healed.19 The Appellants do not challenge these findings on appeal. With this credibility concern outstanding, the RAD cannot make a positive determination of the Appellants' refugee claims. [35] The Appellants "are willing to testify for a hearing at RAD if the assessment of credibility becomes an issue for the RAD."20 The RAD is required to proceed without a hearing, although it may hold a hearing where new evidence has been admitted. There is no new evidence in these appeals, and the RAD has no choice but to proceed without a hearing.21 CONCLUSION [36] Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. These appeals are allowed. (signed) "Edward Bosveld" Edward Bosveld December 16, 2015 Date 1 X (Re), 2015 CanLII 19235 (CA IRB). 2 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, at para. 55. 3 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para. 15. 4 Ibid. 5 Shahidi, Shayan v. M.C.I. (F.C., no. IMM-518-15), Mactavish, October 21, 2015, 2015 FC 1191, at para. 11. 6 R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 113, 151 D.L.R. (4th) 193. 7 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394, 68 D.L.R. (3d) 716. 8 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 14. 9 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 13. 10 Ibid. 11 Exhibit P-2, Appellants' Record, BoC, at p. 34, Instructions to Question 2. 12 Ibid, Questions 2(a), (b), (c), (d), (g), and (h), at pp. 34, 42-44. 13 Exhibit P-2, Appellants' Record, BoC, at p. 48, "Your Counsel". 14 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 19. 15 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001, para. 7. 16 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 13. 17 For example, see Exhibit RPD-1, RPD's Record, Reasons and Decision, at paras. 13, 16, 18, and 19. 18 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 20. 19 Exhibit RDP-1, RPD's Record, Reasons and Decision, at para. 24. 20 Exhibit P-2, Appellants' Record, Written Statement, at p. 86. 21 Balde, Amadu Tema v. M.C.I. (F.C., no. IMM-3724-14), Mosley, May 12, 2015; 2015 FC 624, paras. 30-32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB5-11579