TB6-00621

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 : TB6-00621 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 21, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mercy Dadepo 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Tanzania, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either substitute a positive determination or return the matter to the RPD for redetermination. [2] The Appellant also requests an oral hearing before the RAD. However, as the Appellant has not submitted new evidence, the RAD must proceed without an oral hearing.1 [3] The RAD notes that in her Appellant Record she indicates that she is submitting new evidence, but no such evidence was submitted or received by the RAD. Determination [4] 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 [5] The Appellant fears returning to Tanzania, as on account of her sexual orientation, she would be discriminated against and persecuted by society and the community at large. The Appellant arrived in Canada on XXXX XXXX, 2015 and made an inland claim shortly thereafter. [6] The Appellant's claim for refugee protection was heard on November 27, 2015. By a decision of December 15, 2015, the RPD rejected the claim. The RPD's reasons were detailed and thorough, addressing credibility, and personal and national identity. The panel concluded that the Appellant was lacking in credibility with respect to certain key allegations, and that she had not established on a balance of probabilities her personal and national identity. [7] The Appellant submits on appeal that the RPD erred in its treatment of her credibility, and personal and national identity. ANALYSIS What is the Role of the RAD? [8] 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. [9] The Appellant's Counsel has made 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,2 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." [10] 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 other findings where the RPD has a particular advantage in reaching its conclusions. [11] In a decision issued by RAD Member Edward Bosveld, whose reasoning I adopt and accept, Member Bosveld considered at some length the legislation and jurisprudence concerning the role of the RAD.3 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 [12] 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. [13] 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. [14] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where 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.4 [15] 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. [16] 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. [17] 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. [18] 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. Issues Raised on Appeal [19] The IRPA provides that the Appellant may appeal, "in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection."5 These appeals must therefore be understood as being filed against the RPD's decision, and must comply with the RAD's rules. [20] The RAD Rules require the Appellant to provide, in her Memorandum, "full and detailed submissions regarding the errors that are the grounds of the appeal," and where those errors are located in the RPD's decision.6 The Appellant has not done that in this case. [21] The Appellant has very ambiguously challenged the RPDon personal and national identity, as well as the panel's conclusions on credibility findings. [22] The RAD has carefully reviewed the RPD's decision as well as the evidence in the RPD record. It is clear that the personal identity determination stands on its own. The RAD is satisfied that the personal identity and credibility findings, which the Appellant ambiguously challenges here, were made independent of the other findings contested by the Appellant on appeal. [23] The identity finding is determinative of the Appellant's refugee claim under both Sections 96 and 97 of the IRPA and is also dispositive of this appeal. [24] The Federal Court has described the statutory configuration of an appeal to the RAD: In sum, the appeal before the RAD (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made.7 [25] In seeking judicial review of the RAD's decision, the Applicants in that matter argued that the RAD erred by failing to consider a certain risk factor associated with a proposed IFA, even though they had not raised that issue on appeal. The Court, in dismissing the application for judicial review, concluded that "it is not the RAD's function to supplement the weaknesses of an appeal before it, or, for that matter, of the refugee protection claim presented in the first place."8 [26] In Siliya, the Federal Court considered a matter where the Appellants did not challenge the RPD's IFA finding in their appeal to the RAD. The Court concluded, "The RAD's decision should not be disturbed because the Applicants never challenged the dispositive finding of the RPD as to an IFA and, thus, there was no basis for any appellate intervention by the RAD."9 [27] The Appellant here has not challenged the RPD's determinative finding of personal identity. As such, there is no basis for the RAD's intervention, and this appeal must fail. CONCLUSION [28] 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. [29] This Appeal is therefore, dismissed. (signed) "Luis F. Agostinho" Luis F. Agostinho March 21, 2016 Date 1 Balde, Amadu Tema v. M.C.I (F.C., no. IMM-3724-14), Mosley, May 12, 2015, 2015 FC 625, paras. 30-32. 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 X (Re), 2015 CanLII 19235 (CA IRB). 4 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, para. 55. 5 IRPA, Section 110(1). 6 Refugee Appeal Division Rules, Section 3(3)(g). 7 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 18, emphasis added. 8 Dhillon, ibid., para. 20. 9 Siliya, Mohamed Yusuf v. M.C.I. (F.C., no. IMM-5679-13), Boswell, January 23, 2015, 2015 FC 120, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR :