TB4-00994

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 : TB4-00994 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 April 24, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal John Savaglio 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, (the Appellant), a citizen of Pakistan, appeals a negative decision of the Refugee Protection Division (RPD) dated January 7, 2014. Determination [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD's determination. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he is a Shia Muslim from Lahore who has been targeted by extremists. He owned and operated his own successful business, XXXX XXXX XXXX XXXX XXXX, and was targeted because he was involved in his community as a successful businessman, promoting education through the local Imambargah (place of worship). He supported the Imambargah by financial help. The Appellant received telephone threats at his place of business starting in early 2012. In early XXXX 2012, he was assaulted at his business. His attempts to register a First Information Report (FIR) with the police were futile. He left Lahore and went to Sargodha in hiding. He arrived in Canada in late XXXX 2012, and claimed protection in June 2013 after his application for a visa extension was denied. The claim was heard on August 19, 2013. [4] On appeal, the Appellant provided several documents pursuant to s. 110(4) to be considered as new evidence but is not requesting an oral hearing pursuant to s.110(6) of the Act. [5] As a remedy, the Appellant wants the RAD to set aside the decision of the RPD and find that the Appellant is a Convention refugee or a person in need of protection. Alternatively, RAD should refer the matter back to the RPD for re-determination by a differently-constituted Panel. New Evidence - s. 110(4) [6] The Appellant's documents to be considered as new evidence by the RAD pursuant to ss.110 (4) of the IRPA to support his appeal include: a) Response to Information Request PAK104713.E, dated 09 January 2014, which document post-dates the rejection of the claim by the RPD. b) F.I.R. dated January 25, 2014; c) Imambargah Letter from Pakistan dated February 8, 2014; d) Imambargah Letter from Canada dated February 12, 2014. [7] The Appellant submits that all of the documents submitted above post-date the RPD hearing. I note that these documents post-date the rejection of the claim. The Appellant submits that these documents were not available prior to the rejection of the claim and therefore they should be accepted as new evidence. [8] In order to decide whether to accept these documents as evidence, I considered subsection 110(4) of the Act which provides direction and it reads as follows: 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. [9] In addition to ss.110(4), I also considered Raza,1 which is the leading case on new evidence. This case is appropriate because, in that case, the court posed the following questions that needed to be asked in deciding whether to accept new evidence for a Pre-Removal Risk Assessment (PRRA) case. The Refugee Appeal Division, while it is different from the PRRA, the wording of the subsection 110(4) of the IRPA and paragraph 113(a) (the provision at issue in PRRA and Raza) are similar. [10] Therefore, the RAD applied Raza in considering whether to accept new documents into evidence; those were provided to the RAD after the RPD decision. In Raza, the court summarized the key questions to ask, these 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. [11] While I agree with counsel that all the documents post-date the hearing, the express statutory condition is that the documents may be considered only if they post-date the rejection not post-date the hearing. In addition to the statutory conditions for considering these documents to be accepted as new evidence, I will also apply the Raza test. [12] The first of these documents2 is a document produced initially by the Immigration and Refugee Board that was reproduced by the UNHCR. The document is from a credible source, it is relevant but it is not material for reasons that will be explained below after credibility. I will analyse whether the RPD erred in its credibility determination and at that stage this document will be considered. [13] The next document is a First Information Report3 made by the Appellant's brother that some unknown persons shot at his house. I find that this document is not material to the appeal because it is a report to the police of an alleged incident by his brother to his house. Even if this document was available to the RPD prior to the rejection of the claim, it is unlikely that the outcome of the claim would have been different. For these reasons, this document is not in evidence. [14] The next document the Appellant submitted is a letter from an Imambargah in Pakistan4 and it states that the Appellant is known to them, and he was a staunch worker. The information contained in that letter did not arise after the rejection of the claim and therefore it is not new information. With reasonable effort, the Appellant should have been able to acquire this document prior to the rejection of the claim. Therefore, this document does not meet the express statutory conditions and is not in evidence. [15] The last document submitted by the Appellant is a letter from the XXXX XXXX XXXX5 that suggests that the Appellant attends the activities of the Association. I find that this document is not material; it does not state from what date he has been attending this Association and this document does not discuss the alleged events in Pakistan for his fear as a Shia. Therefore, this document is not in evidence. [16] Thus, this appeal is considered on the basis of the Appellant's record, the RPD record, the Memorandum of the Appellant. [17] The issues, according to the Appellant, are: a. What is the appropriate standard of review? And, b. Did the RPD err in its credibility findings, and/or was its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of his claim, unreasonable? Standard of Review [18] The Appellant submits that the RPD's decision should be owed less deference when being reviewed by the RAD. The Appellant however submits that the RPD's findings on question of facts in this case do not meet the test of reasonableness as stated in Newton and Dunsmuir (both cited in the following section). This is an issue of fact. [19] The Immigration and Refugee Protection Act (IRPA) sets out grounds for appeal as well as possible remedies but it does not specify the standard of review to be applied by the RAD. [20] 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. [21] 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. [22] 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. [23] 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. [24] 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." [25] 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. [26] 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. [27] 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. [28] 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 the 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 [29] 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. [30] 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 [31] 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 [32] 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 [33] The issue in this appeal is whether the RPD erred in its assessment of the Appellant's credibility, including the credibility of evidence adduced in support of his claim. This is an issue of fact that will be assessed using the reasonableness standard. ANALYSIS [34] The claim was denied on credibility, and the RPD panel did not believe that the Appellant was telling the truth. The RPD, in its reasons at paragraph 10, stated the following: The Board is mindful that there is a presumption that sworn testimony is truthful, unless there is a valid reason to doubt its truthfulness.18 In this case there were significant inconsistencies and discrepancies giving reason to doubt the presumption of truthfulness on his part. Further, the Board found that there were instances where the claimant did not testify in a straightforward manner during the hearing, as he was both vague and evasive. The determination as to whether a claimant's evidence is credible is made on a balance of probabilities. [35] The Appellant submits that it was not reasonable for the RPD to require a certificate from the Appellant's Imambargah or medical record or invoice in substantiation of this claim. I disagree. In this case the RPD was not satisfied with the testimony of the Appellant and asked for supported documentary evidence. The wording in the RPD decision is, "This association is central to his claim of persecution and a documents supporting that association be of substantial assistance in establishing his claim, yet no attempts were made to provide it". In Ajayi,19 the Federal Court confirmed that "the onus (is) on the claimant to provide documents establishing the elements of the claim." Thus, the fact that the RPD expected to see supporting documentary evidence is not unreasonable; in fact, it is the duty and responsibility of the RPD panel. I note that the RPD correctly recognised Maldonado20 in its decision. [36] Moreover, the Appellant points out in his memorandum at paragraph 14 (b), the RPD's finding that the Appellant would not have drawn attention to himself and become a target of the subject militants was essentially unsubstantiated and/or highly speculative plausibility finding. I am not persuaded. The RPD considered the profile of the Appellant and determined that his profile was not such that would attract attention as the Appellant alleges. The Appellant's own documentary evidence, the UNHCR document mentioned earlier, does indicate that a profile can be a factor in persecution of minorities in Pakistan. Therefore, I find that the RPD did not err on this issue. [37] The Appellant further suggests in paragraph 14(c) the following: The RPD's adverse inferences and/or credibility findings regarding the Appellant's business and his profile as a businessman in his community were based on an unduly onerous and/or stringent assessment of his testimony in this regard, and were therefore unreasonable. The Appellant does not explain how the RPD's assessment was onerous or stringent. I have reviewed the RPD's reasons in its paragraphs 16 to 19; I find that it was open to the RPD to come to that conclusion. I do not think that the RPD's assessment of this fact was unduly onerous or stringent or unreasonable. [38] The Federal Court in Yathavarajan21 cited Aguebor and stated: [33] It is well established that the Board can determine the plausibility of testimony, and that its findings are entitled to deference. In Aguebor, supra at para 4, the Court of Appeal noted: There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [Emphasis added]. [39] Based on the foregoing analysis, I find that the RPD's determination is reasonable and it falls within the acceptable range of outcomes. The RPD provided cogent, intelligible and justifiable reasons for its determination that the appellant is not credible witness. [40] I will now provide reasons why the UNHCR document mentioned in paragraph 12 is not material. The document would be material had the RAD found that the RPD's credibility finding was not reasonable. Thus, if the Appellant is credible, the document would be material. He would have established that his profile was such that he could be sought and/or there may be a serious chance of being found and persecuted. But that is not the case here. Since I am confirming the RPD's finding on the credibility of the Appellant, the UNHCR document mentioned earlier becomes immaterial to this appeal and therefore is not in evidence. Should the appellant be a Convention refugee by the mere virtue of his membership in the Shia Muslim sect? [41] The Appellant submits that "the appellant, by mere virtue of its membership the minority Shia Muslims act, would be subjected to serious possibility persecution, upon his return to Pakistan, under the convention ground religion, pursuant to subsection 96 (a) of the Act, and thus his claim should be accepted". I disagree for the following reasons. [42] Under certain very specific country conditions, the UNHCR sometimes suggests, in its guidelines, that the people meeting certain profiles and being accepted by the international community are people in need of protection. Until recently this was the situation for certain Tamils from northern Sri Lanka with a certain profile who were accepted as refugees by the International community. [43] This is not the case here though. The UNHCR Guidelines on Refugee Claimants from Pakistan who are basing their claims on religious issues state the following: UNHCR considers that members of the Shia community, particularly those in areas where Taliban-affiliated groups are active, such as the northwest of Pakistan and in urban centres, may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion and/or (imputed) political opinion.22 [44] The documentary evidence confirms that religious intolerance in Pakistan is prevalent and some extremists including Sunni majority and Shia minority groups persecute each other and other minority groups. The UNHCR document shows that Lahore and Multan are relatively more educated cities and they do not have the same level of sectarian violence or hatred as other remote areas of Pakistan. The Article continues that while there may be sectarian tensions in Lahore and Multan, that sectarian violence and extremism is not part of the beliefs of mainstream society in these cities. Shia who are particularly targeted in these cities include community leaders and people in prominent positions. I also acknowledge that documentary evidence provide conflicting information on the situation on ground for religious minorities in Pakistan; in particular, the Shia, the largest minority that also belongs to the Islamic faith. [45] Based on the evidence before me, I am not in a position to set aside the RPD's determination. [46] The RAD therefore confirms the RPD's determination pursuant to subsection 111(a) of the Act. [47] The RAD, therefore, dismisses the appeal. (signed) 'Atam Uppal' Atam Uppal April 24, 2014 Date 1 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 2 https://news.google.ca/nwshp?hl=en&tab=wn&ei=yttXU9-fD6v62gWyxYEI&ved=0CAsQqS4oCA 3 Appellant's Record at pages 20 and 21 4 Appellant's Record at page 25 5 Appellant's Record at page 27 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 Maldonado v.Canada (Minister of Employment and Immigration) [1980] 2 F.C. 302 (C.A.). 19 Ajayi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1018 (CanLII) 20 Supra, footnote 18 21 Yathavarajan v. Canada (Citizenship and Immigration), 2014 FC 297 (CanLII), 22 Appellant's record, UNHCR Eligibility Guidelines For Assessing The International Protection Needs Of Members Of Religious Minorities From Pakistan --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB4-00994