TB3-08183

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 : TB3-08183 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) (a.k.a. XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 3, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Pablo Andres Irribarra Valdes Barrister and Solicitor 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 Christine Houde Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX XXXX (the Appellant), a citizen of Nigeria, 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, and he requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and either find him to be a Convention or refer the matter back to the RPD for redetermination. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he is bisexual and was able to secretly live a bisexual lifestyle in Nigeria. He was about to come to Canada on a work-related trip when his sexual orientation was discovered. One of his homosexual partners was caught in an intimate act with another man, and while they were being beaten by neighbours, they revealed the Appellant's name and sexual orientation. The Appellant fled to Canada, arriving on XXXX XXXX, 2013, and he made a refugee claim at the port of entry. Upon return to Nigeria, he fears persecution because of his sexual orientation. [4] The Minister of Citizenship and Immigration Canada (Minister) intervened in the Appellant's claim before the RPD. The Minister pointed out to the RPD that the Appellant, upon arrival in Canada, told immigration officials that he feared "victimization and tribalization of the government and other political bodies" but made no reference to his sexual orientation. The Minister also submitted that, while the Appellant told immigration officials he had been denied a United States visa once, in fact he was refused U.S. visas on five separate occasions. The Minister asked the RPD to find the Appellant to be generally lacking in credibility, and to reject his claim for protection. [5] The Appellant's application for refugee protection was heard on September 27, 2013. The RPD rendered an oral decision at the conclusion of the hearing. The panel found it implausible that the Appellant did not pay more attention to the process of obtaining his Canadian visa, and also found it implausible that the Appellant's partner, while being beaten, would reveal the Appellant's name and sexual orientation. The RPD made a negative credibility finding on the basis of the Appellant's statements at the port of entry, when he appeared to describe a political basis for his refugee claim. It rejected the Appellant's refugee claim, finding that there was not "a trustworthy or credible underpinning" to his evidence. [6] The Appellant submits that the RPD erred in its assessment of his credibility, and he asks the RAD to consider the new evidence which he has filed with his appeal. He argues that, in assessing his new evidence, the RAD should not apply the analysis set out by the Federal Court in Raza.1 [7] The Minister also intervened in this appeal. The Minister submits that the RAD should apply the factors in Raza to the Appellant's new evidence, and asks the RAD to confirm the RPD's determination that the Appellant is not a Convention refugee or person in need of protection. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of 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] The following evidence was submitted by the Appellant to the RAD and must meet the test described above in order to be admissible: (a) Documents pertaining to the Appellant's activities in Canada. These documents include a letter from Reverend XXXX XXXX of the XXXX XXXX XXXX (XXXX), which confirms that the Appellant has been regularly attending peer support group meetings and church services;2 a letter from XXXX XXXX XXXX XXXX XXXX XXXX confirming that the Appellant is an active member of the Among Friends LGBT Support Group;3 a letter from the Black Coalition for AIDS Prevention confirming that the Appellant is a client of the refugee settlement program and a member of support groups for gay men;4 and a number of photographs depicting the Appellant's involvement in the LGBT community in Toronto.5 (b) Personal letters. These documents include a hostile letter, dated XXXX XXXX XXXX 2013, to the Appellant from his father in Nigeria; a letter from XXXX XXXX, the Appellant's former homosexual partner, who allegedly publicly exposed the Appellant's sexual orientation; and a letter from XXXX XXXX, the Appellant's friend in Nigeria. [10] The documents in (a) meet the test set out in Section 110(4) in that they arose after the rejection of the Appellant's refugee claim. This does not, however, require the RAD to admit the document into evidence without any further consideration. In Raza, the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.6 [11] The Appellant argues that the RAD should not apply the factors set out in Raza. He points out that Section 113(a) is concerned with the Pre-Removal Risk Assessment (PRRA) process, which the Federal Court has specifically determined as not constituting an appeal, while Section 110(4) relates to the RAD appeal process. The PRRA decision-maker is not to reconsider the refugee determination, while the RAD is expected to do exactly that. As the RAD's role is much broader than that of a PRRA officer, the test articulated in Raza should not be restrictively applied to Section 110(4). [12] The Minister disagrees and submits that the purpose of the evidence-limiting provisions of Sections 110(4) and 113(a) is the same: to mitigate the risk of wasteful and potentially abusive relitigation. The fact that the RAD decision-maker has a broader role than the PRRA officer does not logically lead to the conclusion that these evidence-limiting provisions should be treated differently. While the words of Section 110(4) are clear and free from ambiguity, the factors in Raza are nevertheless both helpful and applicable. The Minister submits that the Appellant's new evidence should be evaluated by the RAD for its credibility, relevance, newness, materiality, in addition to the express statutory provisions in Section 110(4). [13] In the RAD's view, the provisions of Section 110(4) relate largely to the timing of evidence, with the clear intention that the Appellant be permitted to present to the RAD only evidence that he could not have relied upon before the RPD, or could not reasonably have been expected to present to the RPD. The RAD has a different role than does a PRRA officer: the RAD is tasked with deciding whether the RPD's decision was in error, based on the record and, in some situations, based on new evidence. The PRRA officer assesses future risk based on new evidence. However, Section 110(4) is indeed similar to Section 113(a) in that both intend to restrict the introduction of new evidence. While 113(a) may serve to mitigate the risk of wasteful and potentially abusive relitigation, 110(4) can reasonably be seen to have further purposes: to prevent the presentation of frivolous evidence in pursuit of an unmeritorious appeal, and perhaps even to prevent the Appellant from splitting his case by presenting some evidence to the RPD and withholding other evidence for presentation on appeal. [14] As the test in 110(4) is largely concerned with the timing of new evidence, it does not require an evaluation of the relevance or the quality of the evidence. A document that is irrelevant, immaterial, or lacking in credibility could pass the test set out in Section 110(4) if it arose after the rejection of the refugee claim, and yet it would not be evidence upon which the RAD, under Section 171(a.3) of IRPA, could properly rely in determining the appeal. This is despite the fact that the RAD is not bound by the legal and technical rules of evidence, pursuant to Section 171(a.2). It is therefore necessary for the RAD to undertake an analysis of the proposed new evidence-not just for its timeliness, which is largely the focus of Section 110(4)-but also for its evidentiary value. Even if the RAD would disregard Raza because it relates to a different section of IRPA, it would nevertheless be required to undertake an analysis of the proposed new evidence for characteristics including credibility, relevance, and materiality. In this context, it makes good sense for the RAD to apply a framework such as that set out in Raza; however, it is also appropriate for the RAD, in light of the Appellant's submissions, to consider whether each factor, as set out in Raza, is applicable to a RAD appeal. [15] Credibility: 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." As such, the credibility factor described in Raza is clearly applicable to new evidence before the RAD; at worst, Section 171(a.3) renders Raza's credibility factor redundant. [16] Relevance: While IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance, and neither party here suggests that the RAD should admit irrelevant evidence.7 Apart from the support from the case law, 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." [17] It is therefore appropriate for the RAD to apply the relevance factor set out in Raza, and even without the assistance of that jurisprudence, the RAD would nevertheless be required to consider the relevance of proposed new evidence. [18] Newness: The newness of evidence submitted under Section 110(4) is an important consideration in that provision, which requires the RAD to consider when the evidence arose and whether it was reasonably available at the time of the rejection of the refugee claim. When the document arose is clearly a matter of newness; whether it was reasonably available could relate to newness, though it could also be a question of accessibility. In any event, there is no doubt that the RAD is entitled, and even required, to consider a document's newness, and it is therefore not inappropriate to apply this factor from Raza. [19] In the RAD's view, however, it makes more sense to consider newness within the 110(4) analysis, rather than as a subsequent and separate factor. To put it simply, if a document is not new, it may not pass the test in Section 110(4) and therefore may not be assessed under Raza. The RAD will therefore incorporate the "newness" factor into its Section 110(4) analysis, rather than again considering the newness of evidence which has already passed the legislative test of Section 110(4). [20] Materiality: In Raza, the Federal Court of Appeal described this factor: "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." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [21] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,8 and the officer has no power to reconsider or set aside the RPD's decision. In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. However, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. [22] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD would apply the materiality factor as set out in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD's decision was unreasonable or otherwise in error, only because that evidence is not so strong that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. [23] It is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations, the RPD is not required to go further to consider the evidence of persecution.9 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality. [24] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [25] For all of these reasons, the RAD will apply a revised Raza approach to the new evidence in this appeal and use the following factors to assess the admissibility of the Appellant's proposed new evidence. [26] Express statutory provisions: The RAD's analysis of the new evidence must begin with the test set out in Section 110(4). [27] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.10 [28] The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.11 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [29] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [30] If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.12 [31] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim13 or that it proves a fact that was unknown to him at the time of the hearing?14 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [32] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.15 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [33] The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.16 [34] Credibility: 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. Evidence that passes the test in Section 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.17 [35] Relevance: The RAD must consider whether the evidence is relevant to the appeal, 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.18 [36] Materiality: Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. [37] If the Appellant's proposed new evidence meets the test in Section 110(4), as described above, and is credible, relevant, and material, then it is admissible before the RAD. [38] The documents submitted by the Appellant and described in (a) above arose after the rejection of his refugee claim and therefore meet the test in Section 110(4). The RAD has therefore considered these documents under the factors set out above. [39] The documents in (a) establish that the Appellant has attended LGBT activities, events, and support groups. With the exception of the MCC letter, they do not, however, provide evidence that he is indeed bisexual, as the letters do not indicate that the organizations involved attempt to make any determination in respect to the sexual orientation of their clients. The Appellant's involvement in various LGBT volunteer activities and support groups is consistent with his claim to be bisexual, but does little to help establish its truth, as the RAD has no reason to think that an individual falsely claiming to be gay or bisexual would be unable to participate in such activities and obtain letters like this. As such, the RAD finds that these letters and photographs are not relevant, as they are not capable of proving or disproving a fact that is relevant to the refugee claim. [40] While the MCC letter appears to vouch for the Appellant's sexual orientation, the RAD has other concerns with the document. It states that "XXXX has described experiences of homophobia in Nigeria. He has been assaulted by community members after being caught in a homosexual act..... We have no reason to doubt his fears."19 Nothing in the Appellant's evidence suggests that he was assaulted in Nigeria or caught in a homosexual act; in fact, his Basis of Claim form makes clear that he was not persecuted in the time before he obtained a Canadian visa.20 As such, the RAD finds that this document is lacking in credibility, as it provides information which is inconsistent with the core of the Appellant's refugee claim. [41] For the reasons set out above, the RAD finds that the documents in (a) are not admissible in this appeal. [42] The RAD has also considered the documents in (b), which include three personal letters, one from the Appellant's father, one from a friend in Nigeria, and one from his former homosexual partner. They are not notarized, nor did the Appellant provide the RAD with an envelope or e-mail or any other proof of how the documents came to Canada. The letter from the Appellant's father is dated in XXXX of 2013, before the refugee hearing, and the Appellant concedes in an affidavit to the RAD that he knew of this document before his hearing, and he knew that it was hostile and abusive, but he did not think it relevant to his refugee claim.21 In the RAD's view, the Appellant could reasonably have been expected to present this letter to the RPD as proof of the risk he allegedly faces in Nigeria, and therefore the document does not meet the test in Section 110(4). However, even if it did, the RAD would have serious concerns with the letter. Although it purports to be an angry personal letter to the Appellant-not apparently intended for use in a refugee hearing or by any officials-the letter, like the others, has the author's identification document copied onto the front and back of the letter. It is hard to conceive that the Appellant's father would find it necessary to copy his driver's license onto a private and personal letter to his estranged son, unless the letter was in fact written for the purpose of a proceeding such as a refugee hearing. [43] Similarly, the letter from the Appellant's friend in Nigeria does not meet the test in Section 110(4). The Appellant declares to the RAD that "I did not think at the time [of the rejection of his claim] that a letter from XXXX would be relevant, as I had never admitted to XXXX about my sexual orientation, and did not want to expose myself to him."22 Although the date on this letter post-dates the rejection of the refugee claim, the contents do not. Even though he claims that his friend did not know of his sexual orientation, he could reasonably have been expected to seek a document from this man. According to the Appellant's Basis of Claim, he fled to XXXX home when he learned of the danger he allegedly faced, and therefore the Appellant, who was represented by counsel before the RPD, could reasonably have been expected to seek some corroboration that this friend sheltered him, even without knowing the reason for his fear. [44] The letter from the Appellant's former sexual partner is dated after the rejection of the refugee claim, and both the Appellant and the author have explained why the letter was not written in time for the refugee hearing. As such, the document appears to meet the requirements of Section 110(4). However, like the other two personal letters, this document is not notarized, and the Appellant did not provide proof of how it arrived in Canada. As such, the RAD finds that the document is not credible. [45] While the RAD agrees with the Appellant that the analysis in Raza is not entirely appropriate for the purpose of assessing evidence submitted to the RAD, and has modified it accordingly, it nevertheless finds that none of the Appellant's proposed new evidence is admissible in this appeal. Application for an Oral Hearing [46] The Appellant asks the RAD to order an oral hearing, pursuant to Section 110(6) of IRPA. [47] 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." [48] 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 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). [49] 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. [50] The RAD has not admitted any of the new evidence submitted by the Appellant in support of his appeal. As such, the RAD must proceed without a hearing, and the Appellant's request for an oral hearing is denied. STANDARD OF REVIEW [51] The Appellant argues that the RPD erred in considering his credibility, and this appeal therefore raises questions of fact. [52] The Appellant makes no specific submissions on the appropriate standard of review to be applied to the RPD's decision, though he argues that the RPD made an "unreasonable" determination,23 which implies a deferential standard of review. The Minister submits that the right of appeal to a higher tribunal does not signal a correctness standard of review, and accurately notes that the consensus among RAD panels is that questions of fact and mixed law and fact are reviewed on a standard of reasonableness.24 [53] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [54] In Dunsmuir,25 the Supreme Court of Canada considered the foundations of judicial review and the applicable standards of review, concluding that there are two standards of review, correctness and reasonableness. Dunsmuir has limited applicability to the RAD, however, which is not a reviewing court but rather an administrative appellate body. In Khosa,26 the Supreme Court gave broad deference to a tribunal's interpretation of its own statute, but, again, this was not specifically in the context of an appeals tribunal reviewing the decision of a tribunal of first instance. As the RAD is a statutory creation, the standard of review must be extracted from the legislation. [55] In Newton,27 the Alberta Court of Appeal, having considered Dunsmuir and other jurisprudence, considered the standard of review to be applied by an appellate administrative tribunal to a decision of a lower tribunal. The Alberta Court's analysis is therefore relevant in the context of the RAD, which has considered the factors set out in Newton:28 (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. [56] The respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation: The RPD's principal role is to hold hearings to determine whether refugee claimants are Convention refugees or persons in need of protection.29 An appeal to the RAD may be made by the subject of the RPD proceedings or by the Minister against certain decisions of the RPD. An appeal may be made on a question of law, fact, or mixed law and fact, and the RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD must confirm the RPD's decision, set aside that determination and substitute another, or refer the matter back to the RPD for redetermination. [57] In the RAD's view, these respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. [58] The nature of the question in issue: In this appeal, the questions in issue are ones of fact. Such questions have generally, in both appellate court and judicial review contexts, attracted a deferential standard of review.30 [59] The interpretation of the statute as a whole: The purpose and provisions of IRPA, when considered together, suggest a legislative intent to provide a fair and efficient adjudicative process which leads to finality. [60] Canada's refugee system is in the first instance about saving lives and offering protection to the displaced and persecuted.31 Section 3(2)(e) of IRPA identifies as one of the objectives of the Act with respect to refugees: (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings. [61] In the context of an appeal to RAD, this objective can be understood as ensuring that appellants receive a fair and efficient adjudication of their appeals and are given refugee protection when appropriate. This is consistent with Section 111(1)(b) of IRPA, which allows the RAD to set aside the determination of the RPD and substitute a determination that, in the RAD's opinion, should have been made. Further, Section 111(2) of IRPA places restrictions on the RAD's referral of matters back to the RPD. [62] Section 171(c) provides that a decision of a three-member RAD panel has precedential value for the RPD and for single-member RAD panels. Section 162(2) of IRPA requires that each Division of the IRB "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [63] The provisions set out above, when considered together with the "fair and efficient" reference in the Act's objectives, suggest that the RAD is empowered to bring finality to the refugee protection process and, to do so, may be entitled to show less deference to the RPD. [64] The expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal: Both the RPD and the RAD are specialized tribunals dealing with refugee protection. Neither is bound by legal or technical rules of evidence,32 and each can take notice of information and opinion within its specialized knowledge.33 In the area of fact finding and credibility assessment, however, the RPD holds a significant advantage. It must hold a hearing,34 while the RAD must, except in certain circumstances, not hold a hearing and must instead proceed on the basis of the record of the RPD's proceeding.35 The effect of these provisions is that the RPD has the chance to see and question the refugee claimant, while the RAD will infrequently have this opportunity. Despite other similarities between the RPD and the RAD, this difference suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility,36 other than in situations where the RAD holds an oral hearing and therefore has an opportunity to consider evidence first hand. [65] The need to limit the number, length and cost of appeals, and preserving the economy and integrity of the proceedings in the tribunal of first instance: In Newton, the Court noted that it is "singularly inefficient" for a first-level hearing to be repeated at the appellate tribunal.37 The Court observed that failure to show deference to the first-level decision-maker undermines the integrity of those hearings, which would in effect be reduced to a type of preliminary inquiry. In this respect, it is important to consider that one purpose of IRPA is to "establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system...." [66] The Newton factors are better authority than those in Dunsmuir for the purpose of determining the appropriate standard of review in this appeal, as they address a situation which is more similar to the context of the RAD and the RPD. There remains the matter of the interpretation of the legislation as a whole, and the conclusion that intended finality might lead the RAD to consider the refugee claim on its merits, showing little or no deference to the findings of the RPD. However, this is outweighed by other factors which favour a more deferential approach on questions of fact. The RAD is restricted in ways that the RPD is not, specifically in admitting evidence and holding oral hearings. The questions here are ones of fact, and the Courts have consistently held that triers of fact are better situated to make findings of fact at first instance.38 The RPD has the opportunity to see and question the refugee claimant, while the RAD may not. Failure to defer to the RPD on matters of fact and credibility would be singularly inefficient, would undermine the integrity of the RPD process, and would do nothing to limit the length and cost of appeals to RAD, as the RPD's proceedings would be reduced to little more than preliminary inquiries. [67] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.39 [68] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.40 The RPD's Findings [69] The Appellant argues that the RPD made numerous errors in reaching its credibility determination and in rejecting his claim. [70] Although neither the Appellant nor the Minister raises this issue, the RAD notes that the RPD found the Appellant to be a citizen of Benin. This is clearly an error, as the RPD indicated that it accepted the Appellant's alleged identity, and he claims to be a citizen of Nigeria. However, this error is not fatal, as the RPD refers elsewhere in its reasons to Nigeria, and it is clear that the claim was considered against Nigeria, not Benin. However, there are other errors that warrant the setting aside of the RPD's decision. [71] Efforts to leave Nigeria: The Appellant told the RPD that he was a practicing bisexual for some years, but he was not discovered or persecuted until he was about to visit Canada. However, he also indicated that he was desperate to leave Nigeria for years. The RPD panel stated in its reasons: The claimant indicates that he wanted to leave the country because of the issue of sexual orientation. He indicated that he wanted to get out of the country desperately. I asked the question if he wanted to get out of the country desperately in 2005, why didn't you make arrangements before 2013? 8 years is a long time to wait. The answer was that he was not free himself. There were no serious threats to his life. But again, that is not quite consistent with "desperately." If one is desperate to get out of the country because you are not free to do what you want to do, it raises the question of why five attempts to get visas from the United States were unsuccessful, and then it took till 2013 to really get serious about a visa.41 [72] The RAD can make little sense of the RPD's logic here. On the one hand, it acknowledges that the Appellant made five attempts to get a U.S. visa, and, on the other hand, it criticizes him for not making arrangements to leave the country before 2013. The panel appears to make a link between the Appellant's desperation and the failed U.S. visa applications, apparently concluding that, if one is desperate enough to leave Nigeria, one's U.S. visa application will be successful. The RPD fails to explain how the Appellant was responsible for his failed U.S. visa applications. [73] The RPD's reasons here are not justifiable, transparent, or intelligible, and are therefore unreasonable. [74] Canadian visa application: According to the Appellant's evidence, he planned to visit Canada for a seminar related to his employment. He hired an agent to obtain a Canadian visa, and he travelled on that document. Only later did he find out that the visa was not genuine. [75] The RPD noted that the visa information was not disclosed by the Minister. "We do not know what was actually in the form. But in any event, a form was provided. There is a signature block, so apparently the claimant's testimony is that it was a forgery, a phony signature, and that he knew nothing about that because someone else was looking after these arrangements."42 [76] The panel then considered the Appellant's evidence that he knew very little about the process of obtaining the Canadian visa, which apparently involved false letters of invitation and a change of location for the seminar he was to attend. The RPD noted that this "all took place with the claimant not knowing what the agent was doing. In my view, this is not trustworthy evidence. It is not credible. It is simply not plausible in light of the fact that the claimant is a capable person. He had a good job; he does not lack sophistication. In that regard, he had gone through five application processes for the United States. He was familiar with applying for visas. The idea that this all happened with him completely oblivious to what was going on is, in my view, not reliable."43 Later in the reasons, the RPD added, "Simply trying to say: 'The agent did it. I do not really have to be accountable for anything or provide any answers because that is all the agent's responsibility,' on these facts, is not credible."44 [77] The RPD's finding here is one of implausibility-it did not find a contradiction in the Appellant's evidence, but did not find it to be plausible. 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." Plausibility findings should only be made in the clearest of cases.45 [78] The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.46 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.47 It is difficult for the RAD to see how the Appellant's evidence in respect to the Canadian visa application was implausible. He had failed in five attempts to obtain an American visa and also in his first attempt to obtain a Canadian visa. He hired an agent who successfully obtained a visa, though it later turned out to be false. It is simply not clear why the RPD expected the Appellant to be involved in the details of obtaining the visa, when he had hired someone else to obtain the document. This is not the clearest of cases, and the RPD's finding of implausibility was not reasonable. [79] Revelation of the Appellant's sexual orientation: The Appellant's claim largely rests on the allegation that his occasional homosexual partner was discovered with another man, and both were dragged into the street, severely beaten, and left in a pool of blood. During the beating, the partner revealed the Appellant's name and sexual orientation, which then placed the Appellant in danger of persecution. [80] Here, the RPD made its most egregious error: If one is on the receiving end of a beating, why one at this point would be volunteering this kind of information which would put the claimant in the same situation? In that environment, based on the country condition reports, it would have been very easy to anticipate that if the claimant had been identified as such that he also would likely be subject to the same kind of conduct. When those two were caught, they were being beaten up. The reasons why the neighbours and the youths would want to beat a confession are not clear. They caught the two of them together in an intimate situation. The facts spoke for themselves. They were being beaten severely. Why, at that point, would they have volunteered the identity of the claimant in that kind of a situation? This strikes me as being rather implausible. [81] In the RAD's view, the RPD member ventured onto dangerous ground when he speculated on the mental process of a Nigerian gay man who was dragged into the street, stripped naked, and was being beaten bloody by his neighbours because of his sexual orientation. The RPD did not make clear exactly what it expected the victim to be thinking during such a beating. However, as the Appellant points out in his appeal, his partner may have been trying to save his own life by identifying someone else for the mob to target, or by blaming the Appellant for "introducing" him to homosexuality. The RPD seemingly expected the victim to make a careful and rational calculation of the risks and benefits of revealing the Appellant's name, taking into account country conditions and possible consequences-even as he was being beaten senseless. [82] The RPD also attempted to understand the mindset of the agents of persecution: "The reasons why the neighbours and the youths would want to beat a confession are not clear." While neither the Appellant, the RPD, nor the RAD can know the thoughts of the angry neighbours, such a motivation is hardly a mystery. It is hardly implausible that a homophobic mob, having caught two homosexuals, would demand to know the names of their other partners. [83] Plausibility findings should only be made in the clearest of cases; the RPD's finding here is neither rational nor based on common sense, and is unreasonable. [84] While the Appellant alleges that the RPD made further errors, it is not necessary for the RAD to consider these arguments. The RPD's credibility finding was a cumulative one: "When I look at it all together, I am just not satisfied that it is likely true, that it is more likely than not. I do not find a trustworthy or a credible underpinning to what I have heard today." Once the RPD's unreasonable plausibility and credibility determinations are removed, its overall negative credibility finding is rendered unreasonable. [85] The Appellant asks the RAD to find him to be a Convention refugee. The RAD notes that, while some of the RPD's key credibility findings were unreasonable, there remain significant credibility concerns with the Appellant's refugee claim. Although he fled to Canada for safety, he did not tell immigration officers of his sexual orientation, and he instead suggested a political basis for his fear. When he made his refugee claim, he did not reveal his multiple unsuccessful attempts to secure visas to the U.S. and Canada. While the RPD's credibility determination was fatally damaged by several errors, there nevertheless remain credibility concerns, and the RAD is unable to find the Appellant to be a Convention refugee on the basis of the evidence in the record. CONCLUSION [86] This appeal is allowed. Pursuant to Section 111(1)(c) of IRPA, the Refugee Appeal Division refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "Edward Bosveld" Edward Bosveld March 3, 2014 Date 1 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 2 Appellant's Record, p. 136. 3 Appellant's Record, p. 138. 4 Appellant's Record, p. 140. 5 Appellant's Record, p. 152. 6 Raza, paras. 13-15. 7 There is a great deal of support for this view. "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. 8 Cupid v. Canada (Citizenship and Immigration), 2007 FC 176, paras. 4, 25, and 26. 9 Liu v. Canada (Minister of Citizenship and Immigration), 2007 FC 831, para. 18. 10 Raza, para. 13.3(a). 11 Raza, para. 16. 12 Raza, para. 13.5(b) 13 Raza, para. 13.5(a) 14 Raza, para. 13.3(b) 15 Raza, para. 13.5(a) 16 Raza, paras. 14, 15 17 Raza, para. 13.1 18 Raza, para. 13.2. 19 Appellant's Record, p. 136. 20 RPD's Record, p. 78, Basis of Claim Form, Narrative. 21 Appellant's Record, p. 14, Affidavit. 22 Appellant's Record, p. 15, Affidavit. 23 Appellant's Record, p. 412, Memorandum, para. 36. 24 Minister's Intervention, fax p. 4 of 6, first paragraph. 25 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 26 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 27 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 28 Newton, para. 43. 29 IRPA, Sections 96 and 97. 30 Khosa, para. 89. 31 IRPA, Section 3(2)(a). 32 IRPA, Sections 170(g) and 171(a.2). 33 IRPA, Sections 170(i) and 171 (b). 34 IRPA, Section 170(b). 35 IRPA, Section 110(3). 36 Khosa, para. 89. 37 Newton, para. 80. 38 Khosa, para. 89. 39 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) para. 12. 40 Dunsmuir, para. 47; in Khosa, para 4, the "range of reasonable outcomes." 41 RPD's Reasons, p. 5, Lines 26-37. 42 RPD's Reasons, p. 6, Lines 5-9. 43 RPD's Reasons, p. 6, Lines 25-33. 44 RPD's Reasons, p. 8, Lines 39-41. 45 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, 208 FTR 267, para. 7. 46 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037, at 19. 47 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08183