MB3-02586

RAD File No. / N° de dossier de la SAR : MB3-02586 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision September 23, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Luc R. Desmarais Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, born on XXXX, 1984, who is a citizen of Haiti, is appealing against a decision of the Refugee Protection Division (RPD), alleging that the RPD's decision was based on errors in its assessment of his credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (the Act), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the Act nor a "person in need of protection" within the meaning of section 97 of the Act. III. BACKGROUND A. Basis of the claim [3] In his Basis of Claim Form (BOC Form), which he signed on April 15, 2013, the appellant stated that he is a citizen of Haiti, and that his father, mother, three sisters and one half-brother were living in Haiti and his other brother was living in France at the time.1 [4] In his BOC Form, the appellant stated that, if he were to return to live in his country, Haiti, he could be killed by the governing authority's close friends, who, in the past, threatened to kill him owing to his political activities.2 [5] In his BOC Form, the appellant stated that he did not move to a different part of his country, Haïti, because no other part of his country was a safe haven for him. He also stated that he sought protection from the authorities in his country, when he filed a complaint with the Pétion-Ville police on XXXX XXXX, 2012.3 [6] In his BOC Form, the appellant stated that he left his country, Haiti, on XXXX XXXX, 2012, and that if he did not leave his country sooner or later, it is because it was not until that time that he was able to travel owing to a XXXX scholarship.4 B. RPD decision [7] The hearing before the RPD was held on June 17, 2013. In its decision dated June 27, 2013, the RPD rejected the claim for refugee protection filed by the appellant. [8] In its reasons, after indicating that the appellant had established his identity, the RPD found that the appellant's testimony as to his political involvement was confused and lacked depth, that his answers did not demonstrate a political conviction and were unsatisfactory, which undermined his credibility regarding his political involvement.5 [9] In its reasons, the RPD found it implausible that the appellant could have been since XXXX 2011 a member of a political party whose function was to ensure the orderly conduct of elections on voting day, when, although he allegedly attended his party's meetings, he did not know whether other individuals were threatened and did not speak to his fellow members of the same party, Ansanm Nou Fo, about the threats he allegedly received: [translation] His testimony in that regard was so confusing that it became clear to the panel that the claimant attended his party's meetings but did not associate with anyone and did not know the names of any of the persons present at the meetings or at the demonstrations he allegedly participated in. That is implausible.6 [10] Moreover, in its reasons, the RPD found that the appellant's credibility was seriously undermined by the fact that he was unable to provide the name of any person who allegedly demonstrated with him or to explain how his persecutors allegedly identified him amidst several thousand demonstrators, when he reportedly mobilized students from his university to participate with him in a number of protests against the Martelly government in 2012.7 [11] In its reasons, the RPD explained that it doubted the authenticity of the membership card filed into evidence by the appellant, when it contains a material error with respect to the name of the party's president. It also took into account the fact that the appellant did not provide a copy of the complaint he alleges he filed with police on XXXX XXXX, 2012, and the fact that he made no effort to try to obtain it.8 [12] Finally, the RPD found that the delay in claiming refugee protection undermines the credibility of the appellant's subjective fear.9 C. Grounds of appeal [13] In his memorandum,10 the appellant relies on one ground of appeal, namely, that the RPD erred in its assessment of his credibility. D. Remedy sought [14] For these reasons, the appellant is asking that the RAD review the RPD decision and grant him refugee status.11 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Test for admissibility [15] Subsection 110(4) of the Act provides that 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. 110. (4) 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. 110. (4) Dans le cadre de l'appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'elle n'aurait pas normalement présentés, dans les circonstances, au moment du rejet. [16] The RAD Rules require that the record of the person who is the subject of an appeal must contain a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, as well as a memorandum that includes full and detailed submissions regarding how this evidence meets the requirements of that subsection and how it relates to the appellant.12 [17] Given the wording of subsection 110(4) of the Act, which is very similar to the wording concerning the new evidence admissible during a pre-removal risk assessment (PRRA), I am of the opinion that it is therefore necessary to use, mutatis mutandis, the factors established by the case law concerning the PRRA; to address the questions raised in Raza, in particular, with regard to the credibility, relevance, newness and materiality of the evidence presented; and to determinate whether the evidence presented on appeal is admissible or whether, on the contrary, it must be excluded from the appeal.13 [18] The fact that the evidence corroborates facts, contradicts findings of the RPD, and clarifies the evidence before the RPD does not make it "new evidence" within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their case and present evidence before the RAD at the appeal stage that could have been presented from the beginning before the RPD.14 In my opinion, that is exactly the wrong that subsection 110(4) of the Act prohibits. B. The appellant presented evidence on appeal [19] In his written statement, the appellant indicated that he intended to submit new evidence within the meaning of subsection 110(4) of the Act, namely, a letter dated October 3, 2012, and an excerpt from the minutes of the registry of the Tribunal de Paix de Delmas.15 In his memorandum, the appellant indicated that he is submitting copies of documents that were not available at the hearing.16 However, nowhere in the appellant's memorandum are there full and detailed submissions regarding how this evidence meets the requirements of subsection 110(4) of the Act. [20] The evidence submitted in support of the appeal is as follows: (i) Exhibit A: a letter dated October 3, 2012; (ii) Exhibit B: an excerpt from the minutes of the registry of the Tribunal de Paix de Delmas dated October 11 of the 209th Anniversary of the Independence of Haiti. C. RAD's decision on the admissibility of this evidence [21] Both documents submitted as part of the appeal proceedings are dated October 2012, that is, several months prior to the hearing held before the RPD. Since these two documents are dated before the RPD decision, they necessarily refer to an event or circumstances preceding the hearing of the appellant's refugee protection claim.17 In his BOC Form or in his testimony before the RPD, the appellant was given full opportunity to refer to that event. [22] In PRRA proceedings, when a document is dated before the RPD decision, the case law confirms that the officer may exclude such a document when the person who is the subject of the proceeding has not established that the document concerned was not reasonably available or that he or she could not reasonably have been expected in the circumstances to present it before the RPD.18 [23] The appellant did not establish either in his memorandum or his written statement that the documents concerned were not reasonably available to him at the hearing of his refugee protection claim. Nor did he establish that he could not reasonably have been expected to present them at the hearing of his refugee protection claim. Finally, he also did not establish that, if the documents concerned were available at the time of his hearing, why he could not reasonably have been expected in the circumstances to have presented them at the time of his hearing. [24] This burden is on the appellant when requesting, at this stage of the appeal proceedings, that a document be declared admissible.19 [25] In PRRA proceedings, according to the case law, a positive answer to any one of the five grounds stated in Raza is sufficient to conclude that evidence should be excluded or is inadmissible.20 [26] While not necessary, I am of the opinion that it is possible to assess whether, at this stage of the appeal proceedings, these two documents can be viewed as credible, considering their sources and the circumstances in which they came into existence. According to the case law, "[e]vidence may lack credibility for a variety of reasons; it may be vague, unreliable or self-serving."21 [27] The appellant did not provide either in his sworn statement or in his memorandum detailed and specific submissions regarding the circumstances in which these two documents were sent to him and their reliability. [28] Accordingly, in light of subsection 110(4) of the Act and the relevant case law, I find that the appellant did not discharge his burden, and I am therefore of the view that it is not necessary to consider these documents. [29] For these reasons, I find that exhibits A and B are inadmissible on appeal. V. HEARING BEFORE THE RAD The appellant did not request that a hearing be held [30] The appellant did not request either in his written statement22 or in his memorandum23 that a hearing be held in his appeal. VI. STANDARDS OF REVIEW [31] The standard of review analysis need not be conducted in every instance. Where the standard of review applicable to a particular question is well-settled by past jurisprudence, it may be adopted. Using jurisprudence as a guide, I am of the opinion that only where this search proves fruitless is it necessary to undertake such an analysis.24 [32] In this case, it should be noted that the RAD is not a court of law and that it does not review RPD decisions, but rather determines appeals in an administrative and non-judicial context. In fact, the RPD and the RAD are two separate divisions of the Immigration and Refugee Board (IRB).25 Sections 162 to 169 of the Act identify the provisions that apply to them both. Each division "has, 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."26 Members have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing.27 Hearings are held in the absence of the public, although each division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings.28 Sections 169.1 to 170.2 of the Act are specific to the RPD, while sections 171 to 171.1 are specific to the RAD. [33] Pursuant to subsection 110(1) of the Act, "a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." Pursuant to subsection 111(1) of the Act, the RAD "shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate." Subsection 111(2) states that the Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. [34] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by an officer tasked with hearing a complaint about a police officer's conduct, the Alberta Court of Appeal noted that the mere presence of a right to appeal-including within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.29 [35] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.30 [36] Citing the Supreme Court of Canada, the Court of Appeal emphasized the importance of promoting the autonomy of the trial process and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.31 [37] In my opinion, the expertise and advantageous position of first-level decision-makers should also be recognized, as did the Supreme Court regarding trial judges: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.32 [38] Having considered the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to decisions rendered by first-level decision-makers: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. 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. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.33 [39] Relying on the reasoning of the Alberta Court of Appeal and the factors identified in its analysis of Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for the strict issues of law or natural justice, it is appropriate for us, as RAD members, to extend the same deference to RPD decisions. In fact, this deference is the same as that which courts of law are required to extend to first-level decision-makers when the issue is a question of law or a question of mixed law and fact. [40] With respect to the ground of appeal, namely, that the RPD erred in its assessment of the appellant's credibility, the appellant did not indicate what standard of review should be applied. The assessment of the appellant's testimony is a question of fact. Drawing on Federal Court case law, I am of the opinion that the standard of review to be used is that of reasonableness.34 [41] Reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of acceptable outcomes which are defensible in respect of the facts and law.35 VII. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its assessment of the appellant's credibility? [42] With respect to this question, I have come to the conclusion that the RPD reasonably assessed the appellant's testimony and that it was entitled to make a negative credibility finding from it. Here is why. [43] First, in his memorandum, the appellant indicates that the two documents that he filed in evidence in his appeal should be able to re-establish his credibility.36 However, these two documents were found to be inadmissible on appeal. Furthermore, what is determinative is that the decision by the RPD rejecting the appellant's claim for refugee protection is based on a number of other reasons. I will come back to this later. [44] Second, in his memorandum, the appellant submits that the RPD erred in writing that the Martelly government and the Ansanm Nou Fo are allies and work together: [translation] It is in the appellant's view a cookie-cutter conclusion, which, in fact, relies on very weak evidence. Indeed, Ansanm Nou Fo is an opposition party whose members are not protected from persecution by the Martelly government; this can be seen from the threats received by the claimant himself, which he candidly testified to before the panel.37 [45] In its reasons, the RPD found the appellant's testimony as to his political involvement to be confusing and superficial. It found that his answers did not demonstrate a political conviction and were unsatisfactory, which undermined his credibility regarding his political involvement.38 [46] In its reasons, the RPD found it implausible that the appellant could have been since June 2011 a member of a political party whose function was to ensure the orderly conduct of elections on voting day, when, although he allegedly attended his party's meetings, he did not know whether other individuals were threatened and did not speak to his fellow members of the same party, Ansanm Nou Fo, about the threats he allegedly received.39 [47] In its reasons, the RPD found that the appellant's credibility was seriously undermined by the fact that he was unable to provide the name of any person who allegedly demonstrated with him or to explain how his persecutors allegedly identified him amidst several thousand demonstrators, when he reportedly mobilized students from his university to participate with him in a number of protests against the Martelly government in 2012.40 [48] In its reasons, the RPD explained that it doubted the authenticity of the membership card filed in evidence by the appellant, when it contains a material error with respect to the name of the party's president. It also took into account the fact that the appellant did not provide a copy of the complaint he alleges he filed with police on October 3, 2012, and the fact that he made no effort to try to obtain it.41 [49] Finally, the RPD found that the fact that the appellant did not claim refugee protection as soon as he learned that he was still wanted in his country greatly undermines the credibility of his subjective fear.42 [50] For all theses reasons, the RPD found that the appellant was not credible and that he failed to discharge his burden of establishing that there is a serious possibility that he would be persecuted by reason of his political opinion. It also found that, for the same reasons of lack of credibility, the appellant would not be subjected to a risk to life or to a risk of cruel and unusual treatment or punishment if he returned to his country.43 [51] My role in this appeal is not to re-weigh the evidence44 or to conduct a microscopic analysis of the RPD decision, but rather to determine whether the RPD's finding that the appellant's allegations are not credible falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.45 [52] The issue of credibility is one of fact and cannot be determined by following a set of rules.46 A determination of credibility is highly individualistic in nature and depends on intangibles such as demeanour and the manner of testifying.47 When a refugee protection claimant has difficulty giving adequate and direct answers, the RPD may draw adverse conclusions from his or her behaviour during the hearing.48 In some circumstances, a claimant's conduct may be sufficient to reject the refugee protection claim.49 Also, a lack of credibility on an important aspect of the claim can lead to a finding that there is no credible evidence on which the claim can be based.50 [53] As part its demanding duties, the RPD must assess all the evidence presented before it, including the BOC Form, which constitutes the primary source for understanding the personal situation of the person who is the subject of the proceeding. In that regard, the case law indicates that the circumstances, situations and events within this document must not be overlooked; otherwise, a travesty to justice could be the consequence. In addition, this document must be understood in its context, namely, in light of the documentary evidence relating to the country where the refugee protection claimant fears to return.51 [54] That being said, it can disbelieve the testimony of a refugee protection claimant. However, this must be stated unequivocally.52 In other words, there is an obligation to justify, in clear terms, a finding that a portion of testimony or evidence is not credible,53 after evaluating the credibility of the refugee protection claimant while taking into account all the evidence and testimony, as well as the fact that the refugee protection claimant has made his or her various statements under oath.54 [55] In Jamil, the Federal Court held that the RPD's findings with respect to the credibility of the person who was the subject of the proceeding were unjustifiable: [23] Notwithstanding the high degree on deference which must be accorded to the credibility findings of the tribunal, after reflecting upon the tribunal's decision, the transcript of evidence and the arguments of counsel, I have come to the conclusion this judicial review application must be allowed because no amount of curial deference can justify letting the tribunal's decision stand. [24] There is a well-recognized line of cases from the Federal Court of Appeal and this Court which has conveniently been summarized by Justice Martineau in R.K.L v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 162, 2003 FCT 116 that a Refugee Board must not be zealous to find an applicant not to be credible and "must not be over-vigilant in its microscopic examination of the evidence of persons who testify through interpreters and tell tales of horror in whose objective reality there is reason to believe." See the Federal Court of Appeal's decisions in Attakora v. Canada(Minister of Employment and Immigration) (1989) 99 N.R. 168, along with Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989) 98 N.R. 312 and Frimpong v. (CanadaMinister of Employment and Immigration) (1989) 99 N.R. 168. [25] These cases as applied by the Federal Court of Appeal itself and by this Court proscribe credibility findings arrived at by, for example: * Findings for which there was no evidence; * Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status; * Inconsistencies drawn between POE notes and an applicant's testimony or the applicant's PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant's credibility. (See Mushtaq v. Canada(Minister of Citizenship and Immigration) 2003 FC 1066; and * The tribunal must be reasonable in rejecting an applicant's explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant's behaviour, (see R.K.L., supra, at para 12); * The tribunal must assess the applicant's claim against the totality of the evidence.55 [56] In this case, the RPD found that, in its opinion, the appellant was not credible when he alleged a well-founded fear of persecution by reason of his political opinion, and it justified the reasons for making such a finding. It also took into account not only the appellant's allegations, but also the answers he gave during the hearing, as well as the various pieces of evidence on the record. In short, it did not commit fatal errors such as those described in Jamil, and it did indeed analyze the essential elements of the appellant's claim for refugee protection. [57] After carefully reading the reasons set out in the RPD decision, I conclude that the RPD considered the evidence and explanations provided by the appellant and that it also considered the general situation in Haiti. Therefore, taking into consideration all the reasons set out in its decision, I find that the RPD did not err in fact or in law in its overall assessment of the appellant's credibility. In other words, its finding in this regard falls within a range of acceptable outcomes which are defensible in respect of the facts and law. VIII. REMEDY [58] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the Act nor a "person in need of protection" pursuant to section 97 of the Act. [59] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette September 23, 2013 Date IRB translation Original language: French 1 BOC Form, pages 15, 18 and 21 of the RPD record. 2 Idem, pages 15 and 16 of the RPD record. 3 Idem, pages 12 and 13 of the RPD record. 4 Idem, page 13 of the RPD record. 5 RPD decision, pages 3 to 8 of the RPD record, particularly at paragraphs 7 and 10. 6 Idem, paragraph 8, page 5 of the RPD record. 7 Idem, paragraph 9, page 6 of the RPD record. 8 Idem, paragraphs 11 and 12, page 6 of the RPD record. 9 Idem, paragraphs 14 to 16, page 7 of the RPD record. 10 Appellant's memorandum, pages 13 and 14 of the appeal record. 11 Idem, page 14 of the appeal record. 12 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3). 13 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, paragraph 13: "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 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. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) 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 (unless it is rejected because it is not credible, not relevant, not new or not material)." 14 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, paragraph 27. 15 Written statement, pages 8 to 11 of the appeal record. 16 Appellant's memorandum, page 13 of the appeal record. 17 Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, paragraph 26. 18 Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, paragraphs 27, 28 and 29. 19 Bengabo v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. IMM-2750-08, Shore, February 23, 2009; 2009 FC 186, paragraph 23. 20 Mooketsi v. Canada (Minister of Citizenship and Immigration), No. IMM-2855-08, Snider, December 22, 2008; 2008 FC 1401, paragraph 18. Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, paragraph 36. 21 Mosavat v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. IMM-6385-10, Snider, June 6, 2011; 2011 FC 647, paragraph 13. 22 Written statement, pages 8 to 11 of the appeal record. 23 Appellant's memorandum, pages 13 and 14 of the appeal record. 24 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53; [2011] 3 S.C.R. 471, paragraph 16. Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 16. 25 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 26 Section 162 of the Act. 27 Section 165 of the Act. 28 Section 166 of the Act. 29 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] ... While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principled basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 30 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 31 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 32 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 33 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 34 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, paragraph 23. Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, paragraph 26. 35 Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, paragraph 19. 36 Appellant's memorandum, page 13 of the appeal record. 37 Idem. 38 RPD decision, pages 3 to 8 of the RPD record, particularly at paragraphs 7 and 10. 39 Idem, paragraph 8, page 5 of the RPD record. 40 Idem, paragraph 9, page 6 of the RPD record. 41 Idem, paragraphs 11 and 12, page 6 of the RPD record. 42 Idem, paragraphs 14 to 16, page 7 of the RPD record. 43 Idem, paragraph 17, page 8 of the RPD record. 44 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R.339, paragraph 59: "Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome." Bunoti James Wokwera v. Canada (Minister of Citizenship and Immigration), No. IMM-5410-11, Boivin, February 2, 2012; 2012 FC 132, paragraph 34: "The Court is not persuaded by the applicant's argument that the Board ignored or erred in its assessment of any individual facts or pieces of evidence; the examples referred to by the applicant are all mentioned in the decision and were properly considered by the Board. It is not the role of the Court on a judicial review to re-weigh the evidence that was before a decision maker whom is owed deference, but it is instead '...concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.' (Dunsmuir, above, at para 47)." 45 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, paragraph 29. 46 White v. The King, [1947] S.C.R. 268, page 272. 47 R. v. S. (R.D.), [1997] 3 S.C.R. 484, paragraph 128. 48 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, paragraph 16, referring to the words of Justice Harrington in Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303, 131 A.C.W.S. (3d) 508, paragraph 22. 49 Idem, in paragraph 15, where Justice Shore refers to the words of his colleague Justice Pinard in El Balazi v. Canada (Minister of Citizenship and Immigration), 2006 FC 38, [2006] F.C.J. No. 80, paragraph 6. 50 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, paragraph 30. 51 Junusmin v. Canada Minister of Citizenship and Immigration), No. IMM-4884-08, Shore, June 26, 2009; 2009 FC 673, paragraph 1. 52 Maksud v. Canada (Minister of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, paragraph 8. 53 Yves Ouellette, Les tribunaux administratifs au Canada. Procédure et preuve, Montréal, Les Éditions Thémis, 1997, at page 357, citing Moreno v. Canada, [1994] 1 F.C. 298, 315 (F.C.A.) and Namitabar v. Canada, [1994] 2 F.C. 42. 54 Ballesteros v. Canada (Minister of Citizenship and Immigration), No. IMM-3979-08, Lagacé, April 7, 2009; 2009 FC 352, paragraph 22. 55 Jamil v. Canada (Minister of Citizenship and Immigration), No. IMM-6643-05, Lemieux, June 21, 2006; 2006 FC 792, paragraphs 23 to 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-02586 18