TB6-08730

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 : TB6-08730 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 September 6, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Malvin J. Harding 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of the Republic of Kenya, 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 that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find him to be a Convention refugee or a person in need of protection or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that he is at risk of persecution in Kenya because of his perceived political opinion. The Appellant further alleged before the RPD that he fears that he is prejudiced because of his ethnicity. The Appellant left Kenya for Canada to study; sometime after arriving in Canada, the Appellant stopped going to classes and began to work until he was arrested by CBSA for being out of status for some eight to nine months, and it was at this time that he made a refugee claim. [4] The Appellant's application for refugee protection was heard on April 28, 2016. In a written decision of May 05, 2016, the RPD rejected the Appellant's claim finding that the Appellant was not credible in key aspects of his claim. [5] The Appellant submits that the RPD erred in its credibility findings. In particular, the Appellant submits that: the panel erred by finding him not generally credible and then making several negative credibility findings.1 Analysis 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's counsel makes submissions on the appropriate standard of review which is to be used by the RAD.2 [8] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.3 [9] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.4 Such an appeal "(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. This is the statutory configuration of an appeal before the RAD."5 [10] The Federal Court of Appeal, in its decision, clearly states that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.6 [11] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.7 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to choose whether it agrees with the determination of the RPD; if not, then RAD will substitute its own view and provide the correct answer.8 [12] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law; as such, findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.9 The Federal Court of Appeal, in deliberating the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: "The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case."10 [13] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident how much deference is owed, and to what findings. As the Federal Court observed in Akuffo, "[T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed."11 [14] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. Therefore, credibility findings, which arise from that oral testimony, are appropriate of deference, as are other findings of fact based on oral evidence, so are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [15] The RAD notes that not every finding relating to credibility, however, warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.12 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.13 [16] The question becomes how much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD 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 a 'palpable and overriding error'."14 This passage has subsequently been endorsed by other decisions of the Federal Court. [17] It is unfortunate that the Federal Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.15 This leads the RAD to believe this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [18] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.16 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [19] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [20] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [21] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [22] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [23] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Admissibility of Evidence Submitted on Appeal [24] 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 expected17 in the circumstances to have presented, at the time of the rejection. [25] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants.18 Application of Section 110(4) [26] Section 110(4) establishes a disjunctive test.19 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [27] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.20 [28] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [29] Section 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.21 [30] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.22 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [31] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in Section 110(4). [32] In Singh,23 the Federal Court of Appeal held that there is no valid reason why the RAD cannot apply the criteria set out in Raza24 to the assessment of new evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.25 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of Section 110(4).26 [33] Where evidence meets the test in Section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [34] Relevance is a basic condition for the admissibility of any piece of evidence.27 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [35] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into Section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in Section110 (6) of IRPA, which describes when the RAD may hold an oral hearing.28 [36] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in Section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of Section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. The Appellant's proposed new evidence submitted pursuant to section 110(4), IRPA [37] The Appellant has submitted the following documents with his appeal: 1. Online Article: Monday Mayhem in Kenya raises Specter of Ethnic Strife;29 and, 2. Online Article: Protests and Clashes likely just start of Political Unrest in Kenya.30 [38] As stated above, the RAD will assess the above proposed evidence in accordance to section 110(4). The RAD has not assessed the Appellant's affidavit as to how the proposed evidence meets the criteria of section 110(4), as the Appellant has not provided one. The RAD notes without an affidavit from the Appellant, this leaves the Appellant without the opportunity to provide an explanation why these documents were not available prior to the hearing, or what steps he had taken to obtain these documents prior to the hearing. However, the Appellant's counsel has attempted to provide an explanation for the new evidence that he is now attempting to submit to the RAD in the memorandum,31 however, it still leaves the questions of why they were not available before or what attempts were made to procure them. The new evidence is mainly being submitted to refute some of the RPD credibility findings. The Appellant has not complied with RAD Rule 3; Refugee Appeal Division Rules, Section 3(3)(g)(iii). (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant. [39] The Appellant has not complied with the above Rule 3; the Appellant's counsel has provided ambiguous explanations to rebut the RPD credibility findings, but fails to identify where these alleged errors can be found. As Federal Court noted in one of its recent decisions, "An appeal to the RAD should not be tantamount to another full-blown hearing."32 In this case, the RAD looked at the literal provisions of subsection 110(4) of the Act in assessing the new evidence, asking itself two questions with respect to the new evidence; namely, (1) did the evidence arise after the rejection of the claim and was not reasonably available at the time of the rejection; and (2) was the evidence such that the Appellant could not reasonably have expected in the circumstances to have presented it at the time of rejection? [40] In regards to document (1), Online Article: Monday Mayhem in Kenya raises Specter of Ethnic Strife. The RAD finds this document arose after the rejection of the Appellant's refugee claim and there is no reasonable explanation what the relevance of this article is to the present claim, and after assessing the document, the RAD finds if it was available at the time of the RPD hearing it would not change the outcome; as such, the RAD finds this document to be inadmissible under 110(4). [41] The RAD has assessed document (2), Online Article: Protests and Clashes likely just start of Political Unrest in Kenya. The RAD has no explanation as to the relevance of this article, why the Appellant is submitting it. The RAD finds this document arose after the rejection of the Appellant's refugee claim and there is no reasonable explanation what the relevance of this article is to the present claim, and after assessing the document, the RAD finds if it was available at the time of the RPD hearing it would not change the outcome; as such, the RAD finds this document to be inadmissible under 110(4). [42] The RAD, after assessing the evidence in regards to the above questions, finds that the evidence does not meet the requirements of subsection 110(4). In answer to question (1), the Appellant did not provide an affidavit to explain why these online articles were not presented before the RPD hearing, and why he is now presenting them. [43] In the RAD's opinion, this clearly indicates he is now attempting to submit these online articles to try to negate the RPD findings. [44] In regards to question (2) the Appellant was represented by counsel before the RPD, who is conversant with claims and what requirements are necessary before the RPD. Here the Appellant has not questioned the competency of his former counsel which is also her present counsel. Further the RAD would note, as recently restated in Singh FCA, it is well established that applicants must live with the consequences of the actions, or in this case, the inaction, of their counsel.33 The Appellant could reasonably have been expected to know that credibility was an issue, given the references to the issue in the Act, the Rules, and the BoC form. The Basis of Claim (BoC) form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."34 Application for an Oral Hearing [45] The Appellant does not request an oral hearing pursuant to Section 110(6) of the IRPA. [46] 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." [47] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in Section 110(3) that raises a serious issue with respect to the credibility of the Appellant, 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). [48] 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 Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [49] The RAD has not accepted any of the Appellant's new proposed evidence; as such, the RAD must proceed without a hearing in his appeal, and his application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [50] The Appellant argues that the RPD concluded that the Appellant lacked credibility in central aspects of his claim.35 [51] The Appellant submits that the RPD's negative inferences concerning the Appellant's credibility based on its assessment of his testimony and corroborative documents are not reasonable. The RAD notes that the RPD, in pages 1-3 of its reasons, impugned the credibility of the Appellant because of his testimony, inconsistencies in his oral testimony and other documentary evidence presented. [52] The RAD notes that the record reflects that the RPD's adverse credibility findings were not based on a perceived embellishment, but rather based on the contradiction between his testimony and omissions documentary evidence he presented. For example, the RAD notes that the RPD drew a negative finding from the Appellant's failure to make a claim earlier.36 The Appellant argues that, at paragraph 2 and paragraphs 25-26 of the Decision of the Reasons,37 the panel wrote: "To begin with, there is the issue of delay. I acknowledge that delay is not, in itself, determinative of credibility. However, it is reasonable to expect a person who has a genuine fear of returning to his country would be diligent in seeking ways to remain in Canada. In this case, the claimant did not approach Canadian authorities of his own volition. Rather, in 2015 officers of the Canada Border Services Agency located and arrested the claimant some eight or nine months after the expiry of his student status. Indeed, the delay might have been much longer had the authorities discovered that he was not going to class. The claimant admitted that he stopped going to classes sometime in 2011 and that enrolment in a program was one of the terms and conditions of getting his student visa. Therefore, he may have been vulnerable to removal from Canada for years, rather than months. In any case, the delay is highly significant." [53] The Appellant continues to argue that: "the panel fell into error in holding that the delay by the Appellant in making his claim" is highly significant", and "his failure to take diligent steps creates considerable doubt about his genuine motivation to avoid returning to Kenya" - page 2, paragraphs 15, & 25-26 Decision. The RAD notes that the Reasons for Decision do not contain any paragraphs, and since the decision was delivered orally, the pages are numbered as lines. Thus, the RAD cannot locate the areas where the Appellant alleges the error. However, in assessing the Appellant's argument, the RAD disagrees. The Appellant came to Canada on a student visa to study in April 2009. In his testimony, the Appellant stated that he stopped going to school sometime in 2011 and began working until his encounter with CBSA. The Appellant was aware that there were conditions he had to adhere to, in order to continue to have status in Canada as a student. [54] The Appellant was working and had been for some time until he was arrested by CBSA for being out of status. It is reasonable for a person who fears returning to his country of origin would have sought information regarding what his options were to avoid returning. He had access to the internet, he could have consulted with an immigration consultant or lawyer, and he could have sought out a community legal clinic. The Appellant had resources available to him and choose not to engage them. [55] However, the RAD notes that is his testimony before the RPD and the Appellant did not provide any evidence regarding a proactive approach in looking for alternative ways to stay in Canada and avoid being deported. The RAD finds it hard to accept his account that he required more time to gather information about the process he could engage. The Appellant's own testimony is that he stopped going to school in 2011 until he was arrested by CBSA in 2015. The RAD further finds it incredulous that, after all that time, the Appellant was unable to obtain any information about the available processes he could utilize to prevent him from being removed from Canada. [56] The RAD, after assessing the evidence in this area, by listening to the audio, reviewing the Basis of Claim form (BoC) narrative, concurs with the RPD finding that this account of the delay, as reasoned by the Appellant, is not credible and finds the credibility finding by the RPD to be supportable. [57] The Appellant argues that the RPD erred in a credibility finding where the panel used certain phraseology in its reasons.38 The RAD notes that, as argued by the Appellant, the RPD used terms such as "required considerable time" to gather information. The Appellant argues that he never used the term "required considerable time", and that this is an error on the part of the Panel. The RAD disagrees; this is semantics. The evidence is that the Appellant stopped going to school in 2011 and was working until his arrest in 2015. He made no effort to obtain information to deal with his out of status. That is a considerable long period of time in the RAD's opinion. Thus, the Appellant's argument fails in this regard. [58] The RAD finds it is the Appellant that has misconstrued the RPD finding. The RPD asked a modest question which was why the Appellant did not file a claim for refugee protection earlier. However, the RAD has reviewed the audio and notes that the Appellant does not answer the question in a clear manner. In his memorandum he now answers the question with a question where he asks, "On what basis is the Panel holding that the Appellant has ample resources and ability to avail himself of legal advice? On what evidence?" The Appellant provides the explanation that he stopped going to school in 2011 due to a lack of funds. The Appellant testified that he was working to obtain funds to get the services of a legal counsel. The RAD finds that explanation unreasonable, he had ample resources such as the internet, attending a kiosk of Service Canada to obtain information of immigration, consulting an immigration consultant who offers free consults, an immigration lawyer who offers a free consult, or attending a community legal clinic that offer free consults. The RAD finds, on a balance of probabilities, by the evidence presented that the Appellant did not make any efforts to seek out information regarding immigration information to deal with his out of status situation, and as such the RAD finds the credibility finding by the RPD to be supportable. [59] The Appellant's arguments are incoherent in that he doesn't address what he is arguing, and where exactly these alleged errors are located. As such, the RAD finds the arguments made by the Appellant are vague. [60] The RAD notes that the RPD found numerous credibility findings throughout the hearing and the RAD has carefully assessed all those findings. It is clear to the RAD from the record that the RPD considered the documentary evidence in its decision. The RAD reviewed the documentary evidence and all evidence including the documents which was provided by the Appellant at his RPD hearing. There is no persuasive evidence before the RAD to show if the evidence was not considered by the RPD in its decision, as argued by the Appellant. The RAD finds that there is sufficient evidence in the record which supports the RPD's adverse credibility findings in this regard. The RAD finds that the Appellant's testimony is inconsistent with his own documentary evidence which he presented and that these inconsistencies undermine the credibility of his allegations. [61] The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. SUMMARY AND DETERMINATION [62] A review of the RPD's reasons and the entire evidence before the RAD reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [63] After conducting an independent assessment of the entirety of the evidence, the RAD reached the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. [64] Given the analysis above, the RAD therefore has deferred to the RPD findings on credibility in this claim and concurs with the findings of credibility and finds that the RPD findings were supportable. [65] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and as a result affords deference to the RPD's findings. The RAD also finds, on a balance of probabilities, that the evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. [66] The RAD further finds that the Appellant has not satisfied her burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Kenya. [67] The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD - that the Appellant is completely lacking in credibility and does not require Canada's protection. CONCLUSION [68] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) 'Luis F. Agostinho' Luis F. Agostinho September 6, 2016 Date 1 Appellant's Memorandum, pages 17-19 2 Appellant's Memorandum, pages 15-16, paras. 2-4 3 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 4 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 5 Dhillon, paras. 14-18. 6 Huruglica, 2016 FCA 93, para. 103. 7 Ibid. 8 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 9 Huruglica, FCA, para. 70. 10 Huruglica, FCA, para. 74. 11 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 12 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 13 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, which decision contains a thorough discussion of the drawing of inferences.) 14 Huruglica, Federal Court, para. 55. 15 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 16 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 17 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 18 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 19 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 20 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, para. 55; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA, para. 63. 21 Singh, FCA, para. 54. 22 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 23 Singh, FCA, para. 64. 24 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 25 Ibid., Raza, paras. 13-15. 26 Singh, FCA, para. 64. 27 Singh, FCA, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 28 Singh, FCA, para. 48. 29 Appellant's Record, pages 08-11, posted June 01, 2016 and updated June 02, 2016 30 Appellant's Record, pages 08-11 31 Appellant's Memorandum, page 21 32 Zhong, Zhihui et al v. M.C.I. (F.C., no. IMM-3438-15), Boswell, March 23, 2016; 2016 FC 346. 33Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA, para. 66. 34 RPD Record, page 16, Basis of Claim Form, page 1 of 12. 35 Appellant's Memorandum, pages 17-21 36 RPD Record, page 4, Reasons for Decision, lines 5-15 37 Appellant's Memorandum, pages 17-18, paragraphs 6-11, ( Appellant cited the above which is actually located at Appellant's record page 3, lines 5-15 and not where he states). 38 Appellant's Memorandum, page 18, paras. 9-14 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08730