MB3-03155

RAD File No. / N° de dossier de la SAR : MB3-03155 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 October 30, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Manuel Centurion 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, a citizen of Honduras, is appealing against a decision of the Refugee Protection Division (RPD), alleging that the RPD rendered a decision based on errors in its assessment of his credibility and that it did not consider all the evidence. 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 not a "Convention refugee" under section 96 of the Act or 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) that he signed on June 3, 2013, the appellant states that he is a Honduran citizen, born on XXXX XXXX, 1985; and that his common-law spouse, father and mother and one of his two brothers were living in Honduras, but that his other brother was living in an unknown country, at that time.1 [4] In his BOC Form, the appellant states that, if he had to return to his country, Honduras, he could be killed by individuals with whom he had refused to cooperate in selling drugs.2 [5] In his BOC Form, the appellant states that, on the evening of XXXX XXXX, 2012, after he refused to sell drugs at the place where he had been working since XXXX XXXX, 2012, two armed men forced him to walk to a pick-up truck and get in it. He states that once he was in the pick-up truck, in which there were two police officers, one of the men told him that he had to help them sell drugs and that he had to obey them, otherwise they were going to kill him or his brother; under these threats, he agreed to do so.3 [6] In his BOC Form, the appellant states that after talking to his spouse, the next day, he went to the directorate in XXXX to report these individuals, but this accomplished nothing, as he was told that he needed to have evidence.4 [7] In his BOC Form, the appellant states that he then decided to flee and that he and his spouse went to hide at an aunt's house, where he began receiving strange calls on his cellphone, which he did not answer. He states that the individuals in question called his aunt and told her that they knew where he was and that they were going to kill him at any time.5 [8] In his BOC Form, the appellant states that he then went to hide at a friend's home and that he asked the management heads to help him by writing an official document to present to the directorate, but this accomplished nothing, as the police are corrupt. He states that he decided to send his spouse to live with her father and that, on XXXX XXXX, 2012, he decided to emigrate to the United States of America, where he stayed from XXXX XXXX, 2012, to XXXX XXXX, 2013.6 B. RPD decision [9] The RPD hearing was held on August 5, 2013. In its decision dated August 14, 2013, the RPD rejected the appellant's refugee protection claim. In its reasons, after stating that the appellant had established his identity, the RPD stated that the appellant's testimony contained [translation] "multiple contradictions, implausibilities and inconsistencies between the various items of evidence in the record, for which he provided no reasonable explanation."7 C. Grounds of appeal [10] In his memorandum, the appellant raises one ground of appeal, namely, that the RPD erred in its assessment of his credibility, in particular, by not considering all the evidence.8 D. Remedy sought [11] For these reasons, the appellant is asking the RAD to allow his application to reinstate his refugee protection claim.9 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Test for admissibility [12] Subsection 110(4) of Act states 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. [13] The RAD Rules require that the record of the person who is the subject of the appeal must include a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, 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.10 [14] Given that that wording of subsection 110(4) of the Act is very similar to the wording relating to new evidence admissible in a pre-removal risk assessment (PRRA), I am of the opinion that it is necessary to use, mutatis mutandis, the factors developed in the case law with respect to PRRAs. Accordingly, I am of the opinion that it is necessary to address the questions identified in Raza regarding the credibility, relevance, newness and materiality of the evidence presented, and to determine whether the evidence presented on appeal is admissible or whether, on the contrary, it must be excluded from the appeal.11 [15] The fact that evidence corroborates facts, contradicts the RPD's findings or 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.12 In my opinion, that is exactly what subsection 110(4) of the Act seeks to prevent. B. The appellant presented evidence on appeal [16] The appellant does not state in his affidavit or in his memorandum that he is presenting new evidence in his appeal.13 However, on October 22, 2013, counsel for the appellant sent the RAD two documents, indicating that these documents confirmed that the appellant worked at XXXX XXXX, a discotheque in XXXX XXXX XXXX.14 C. RAD's decision on the admissibility of this evidence (i) Attestation dated September 23, 2013, from the Honduran institute for XXXX XXXX [17] This attestation states that the appellant completed the first year of courses in the common curriculum at the Honduran institute for radio education during 2012, that he is a responsible and honest young man, that he was unable to continue his studies because he had to leave the country while he was working at a discotheque called La Rumba, and that he was persecuted by the authorities and by individuals who wanted to involve him in unsavoury business.15 [18] The newness of documentary evidence cannot be tested solely by the date on which the document was created; what is important is the event or circumstance sought to be proved by the documentary evidence.16 [19] This attestation seeks to establish facts that took place before the appellant's hearing before the RPD, namely, the fact that he was unable to continue his studies because he had to leave the country while he was working at a discotheque called XXXX XXXX and that he was persecuted by the authorities and by individuals who wanted to involve him in unsavoury business. In other words, the information in this attestation essentially does no more than repeat the information that the RPD had before it at the hearing and is therefore not new evidence within the meaning of subsection 110(4) of the Act. What is more, this attestation could have been requested before the RPD hearing, since it concerns facts that occurred before that hearing. [20] Neither in his sworn statement nor in his memorandum does the appellant provide full and detailed submissions regarding how this evidence meets the requirements of subsection 110(4) of the Act. It is the appellant who bears the burden of proof when requesting, at this stage of appeal proceedings, that a document be declared admissible.17 [21] For these reasons, the attestation dated September 23, 2013, is inadmissible in this appeal. (ii) Attestation dated September 25, 2013, from members of the organization council of the village of XXXX XXXX, municipality of XXXX, department of XXXX [22] This attestation states that the appellant is an honest person who had problems at his last job, at a discotheque called XXXX XXXX in XXXX XXXX XXXX, and who was persecuted by the police and by persons unknown, such that he had to leave his country.18 [23] The newness of documentary evidence cannot be tested solely by the date on which the document was created; what is important is the event or circumstance sought to be proved by the documentary evidence.19 [24] This attestation seeks to establish facts that took place before the appellant's hearing. In other words, the information in this attestation essentially does no more than repeat the information that the RPD had before it at the hearing. It is therefore not new evidence within the meaning of subsection 110(4) of the Act. What is more, this attestation could have been requested before the RPD hearing, since it concerns facts that occurred before that hearing. [25] Neither in his sworn statement nor in his memorandum does the appellant provide full and detailed submissions regarding how this evidence meets the requirements of subsection 110(4) of the Act. It is the appellant who bears the burden of proof when requesting, at this stage of appeal proceedings, that a document be declared admissible.20 [26] For these reasons, the attestation dated September 25, 2013, is inadmissible in this appeal. V. HEARING BEFORE THE RAD The appellant did not request a hearing [27] The RAD Rules require that the record of the person who is the subject of the appeal must contain a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding why the Division should hold such a hearing, if the appellant is requesting that a hearing be held.21 [28] Neither in his affidavit nor in his memorandum does the appellant request that a hearing be held before the RAD.22 Furthermore, the evidence presented by the appellant in this appeal was deemed inadmissible. [29] Accordingly, there is no cause to hold a hearing. VI. STANDARDS OF REVIEW [30] The standard of review analysis need not be conducted in every instance. Where the standard of review applicable to a particular issue is well settled by past jurisprudence, it may be adopted. Drawing on the case law, I am of the opinion that only where this approach proves fruitless is it necessary to undertake this analysis.23 [31] In this case, it must be noted that the RAD is not a court of law and does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. Indeed, the RPD and the RAD are both part of the Immigration and Refugee Board (IRB) but constitute two distinct divisions.24 Sections 162 to 169 of the Act contain the provisions that apply to them both, particularly that each "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";25 that the members of both divisions have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing;26 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, taking any measure that it considers necessary to ensure the appropriate access to the proceedings.27 Sections 169.1 to 170.2 of the Act are specific to the RPD, while sections 171 and 171.1 are specific to the RAD. [32] Under 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." Under subsection 111(1) of the Act, the RAD shall "(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) specifies that the RAD 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. [33] 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 the officer tasked with hearing a complaint regarding the conduct of a police officer, the Alberta Court of Appeal noted that the mere presence of a right to appeal-including appeals within an administrative structure-in no way means that no deference to the first-level decision maker is called for.28 [34] In its decision, the Court of Appeal refers 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.29 [35] In citing the Supreme Court of Canada, the Court of Appeal was emphasizing the importance of upholding the autonomy and integrity of the trial process, adding that the same principles apply in administrative matters: 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.30 [36] I am of the opinion that the expertise and advantageous position of the first-level decision-maker should also be recognized, as the Supreme Court did with respect to 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.31 [37] Having examined the respective roles of the decision makers, their particular expertise and the overall scheme 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.32 [38] Relying on the reasoning of the Alberta Court of Appeal and on the factors identified in its analysis in Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for strict questions of law or of natural justice, it is appropriate for RAD members to extend the same deference to RPD decisions. This deference is, in fact, comparable to, although distinct from, the deference to be given by courts of law to first-level decision-makers where the issue is a question of fact or a question of mixed law and fact. [39] Regarding the first ground of appeal, namely, that the RPD erred in its assessment of the appellant's credibility, the appellant does not specify which standard of review should be applied. The assessment of the appellant's testimony and evidence is a question of fact. Drawing on Federal Court case law, I am of the opinion that the standard of review that must be applied is that of reasonableness.33 [40] When a decision is reviewed on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and with whether the decision falls within a range of acceptable outcomes which are defensible in respect of the facts and law.34 VII. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD make one or more unreasonable errors in its assessment of the appellant's credibility, particularly by not considering all the evidence? [41] With regard to this question, I conclude that the RPD's assessment of the appellant's testimony and evidence was reasonable and that it was entitled to make a negative finding regarding his credibility. My reasons are as follows. [42] In his memorandum, the appellant criticizes the RPD for considering only the factors that allowed it to reject his claim, without analyzing all the evidence. More specifically, he criticizes the RPD for * treating as a contradiction the fact that he could not explain why he called the club a XXXX XXXX XXXX XXXX XXXX XXXX], when the name of the club was XXXX XXXX; * criticizing him for not knowing what the word VIP means; * not considering that it was the first time he had worked in a club; * not knowing more about the drug trade, when he was not involved in that sort of thing; * asking him to present documents as evidence of his employment, when he had only worked there for two weeks and could not take the necessary steps to obtain them; and * not taking into account that, during the hearing, he was nervous and upset.35 [43] In its reasons for decision, the RPD wrote the following: [Translation] [6] . . . Having analyzed all the evidence, the panel determines that the claimant is not a refugee or a person in need of protection. The claimant's testimony contained multiple contradictions, implausibilities and inconsistencies between the various items of evidence in the record, for which he provided no reasonable explanation.36 [44] In its reasons for decision, the RPD states that it drew a negative inference from the fact that the appellant could not name the club where he claimed to have worked and where his problems started, and from the fact that he did not know what VIP means, though he claimed to be a waiter in a club.37 [45] In its reasons for decision, the RPD identifies what it describes as major contradictions because they concerned the appellant's employment, which was the source of the problems that he allegedly experienced, which cast doubt on the appellant's entire story:38 [Translation] [9] Regarding the contradiction concerning the period when the claimant allegedly worked at XXXX XXXX (in his story, he states that he began working there in XXXX 2012), the panel asked the claimant whether he was sure that he had started working there on XXXX XXXX XXXX he answered yes. When asked how he could be sure, he answered that it was a significant event in his life, one that he could not forget. As this contradiction is a significant one, in an additional attempt to allow the claimant to correct himself, as it was possible that he had simply confused the dates, the panel asked the claimant to place the beginning of his employment in relation to his birthday and to the birthday of his spouse. He confirmed that he began working at the club nearly a month after his birthday (XXXX XXXX, according to his birth certificate) and a few days before his spouse's birthday (XXXX XXXX, according to Question 5 of his BOC Form). [10] From these answers, it is clear that the claimant placed the beginning of his employment in XXXX XXXX However, he later changed his testimony, stating instead that he had worked at the club in XXXX XXXX When he was confronted with his previous statements, he answered that he had made a mistake. I cannot accept this explanation, as the claimant's initial testimony placed the start of his employment in relation to key dates in XXXX, birthdays, which it is reasonable to think that he would not make a mistake about. Moreover, at Question 8 in the IMM 5669 form that he filled out for his refugee protection claim, he states that he began working at the XXXX discotheque in XXXX 2012. When he was confronted with this third version, the claimant answered that this was a mistake on the part of his counsel. I cannot accept this explanation, as counsel never advised the panel of this mistake or corrected it.39 [46] In its reasons for decision, the RPD states that it considered the appellant's story that he was asked to sell drugs implausible: [Translation] [12] The claimant was questioned regarding the proposal to sell drugs: which drugs he was supposed to sell, where he was supposed to get them, to whom he was supposed to give the money, and what the plan was. The claimant gave no answers, repeating that he was asked to sell drugs to the club's clients-he had no idea what kind of drugs and was not privy to any information. Had he discussed this proposal with other employees at the club? No. Had his boss given him any instructions or scheduled another meeting after the initial meeting when it was proposed that he sell drugs? No. Why had this dangerous venture been proposed to him, a newcomer? The claimant explained that they wanted him to sell drugs because he was a trusted employee. [13] I have analyzed these explanations as a whole and find that this part of the claimant's story is implausible, as is the fact that the claimant, a newcomer to the club, was asked to sell drugs when he testified that he was aware of at least one employee who was already selling, and when he had testified at the beginning of the hearing that people came to the club "to dance, to drink and to take drugs." 40 [47] In its reasons for decision, the RPD states that it asked the appellant if he had documents corroborating that he had indeed worked at the club in question, to which he replied that he did not, and that he had not done anything to obtain such documents, as he did not know that he needed any. The RPD referred to the RPD Rules and stated that the appellant had not demonstrated that he had made any effort whatsoever to file documents corroborating his allegations.41 It then drew the following conclusion: [Translation] [16] Because of these significant contradictions regarding the central elements of his alleged fear that were not explained to my satisfaction, and in the absence of corroborating documents, I do not believe the incidents that the claimant allegedly experienced, and I find that the entire story is not credible. I attach no probative value to Exhibit P-2, a letter from the "XXXX XXXX XXXX XXXX XXXX," which states that the claimant was persecuted by "armed groups that are supposedly police officers."42 [48] My role in this appeal is not to reweigh the evidence,43 or to conduct a microscopic examination of the RPD's decision. Rather, my role is to determine whether, when analyzed as a whole, the RPD's finding that the appellant is not credible falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.44 [49] As part of its demanding duties, the RPD must assess all the evidence presented before it. That being said, it is open to it to disbelieve the refugee protection claimant, but it must say so unequivocally.45 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.46 In addition, the case law clearly establishes that the RPD may reasonably base negative credibility findings on omissions and contradictions between the oral testimony and written statements made before the hearing. The case law also clearly establishes that the RPD may reject the explanations provided for such contradictions or omissions when these explanations are deemed to be unsatisfactory.47 [50] In his BOC Form, the appellant declares that the information provided in this form is complete, true and correct; that the entire content of the form and all attached documents were interpreted to him; and that he was aware that his declaration had the same force and effect as if made under oath.48 Under the RPD Rules,49 he could make changes to this form, but he did not do so. [51] At the hearing, the RPD asked the appellant questions about where he had allegedly worked, and about the drugs they wanted him to sell, according to his allegations. The RPD deemed the appellant's answers to be unsatisfactory. [52] The fact that there were contradictions within the appellant's testimony, as well as between his testimony and the information in his BOC Form, regarding the dates when he worked in the club where he was allegedly forced to sell drugs is an important factor in assessing the credibility of the story as a whole. It should be noted that all relevant and important facts should be included in the BOC Form and that oral evidence at the hearing should go on to explain the information contained in the BOC Form.50 In addition, it must be noted that an accumulation of contradictions and omissions can be fatal to a claimant's credibility.51 [53] That the RPD considered the appellant's story that someone wanted to force him to sell drugs implausible is, in my view, a second important fact in assessing the story as a whole. The RPD is entitled to make findings based on implausibility, common sense and rationality.52 In this case, a careful reading of the RPD's reasons for decision leads me to conclude that the RPD analyzed the appellant's testimony and explanations and that in the end, for reasons that it explained clearly, it considered that it was implausible that someone tried to force the appellant to sell drugs. In my opinion, based on common sense and rationality, the RPD was indeed entitled to make this finding. [54] Now, regarding the documents that could have corroborated that the appellant did indeed work at the place where he states that he worked, I am of the opinion that, in the circumstances, the RPD could reasonably expect the appellant to provide such evidence. At the hearing, the appellant's explanation was that he did not know that he needed such documents. The RPD did not consider this answer to be a reasonable explanation, given that, according to the RPD Rules, claimants must provide documents in support of the elements of their claim for refugee protection and that, in the absence of such documents, the claimant must explain what reasonable efforts they made to obtain them. If the appellant did indeed work there, why did he not ask his family or friends to provide a document, a photograph or an item from there to tie him to the place? It should be added that the RPD already had reason to doubt the credibility of the appellant's allegations. In my view, in this context, it was reasonable for the RPD to take the absence of such evidence into consideration and find that the appellant's credibility on this point was undermined.53 [55] Finally, I am of the opinion that it was reasonable for the RPD to conclude that it should attach no probative value to Exhibit P-2, a letter stating that the appellant was persecuted by armed groups. According to the case law, the RPD can dismiss or attach no probative value to evidence that merely repeats a version of the facts considered to be not very credible.54 [56] Having carefully reviewed the appellant's memorandum and the RPD's decision, I am of the opinion that it was reasonable for the RPD to consider that the above-mentioned contradictions and omissions were significant and to find that the statement that the appellant was forced to sell drugs was not credible. I am also of the opinion that it gave clear reasons for concluding that the appellant's explanations were unsatisfactory. Finally, I am of the opinion that its finding that the appellant's allegations were not credible was based on all the evidence and falls within a range of acceptable outcomes which are defensible in respect of the facts and law. VIII. REMEDY [57] For the foregoing reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the Act or a "person in need of protection" within the meaning of section 97 of the Act. [58] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 30, 2013 Date IRB translation Original language: French 1 Basis of Claim Form, pages 11, 16 and 19 of the RPD record. 2 Idem, page 12 of the RPD record. 3 Idem, pages 20 and 21 of the RPD record. 4 Idem, page 21 of the RPD record. 5 Idem. 6 Idem, pages 13, 14 and 21 of the RPD record. 7 RPD decision, pages 2 to 8 of the RPD record, particularly at paragraph 6. 8 Appellant's memorandum, pages 13 to 17 of the appeal record. 9 Idem, page 17 of the appeal record. 10 RAD Rules, SOR/2012-257, subrule 3(3). 11 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, at 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)." 12 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, at paragraph 27. 13 Affidavit signed on September 3, 2013, pages 18 and 19 of the appeal record. Appellant's memorandum, pages 13 to 17 of the appeal record. 14 Letter from Mr. Centurion dated October 22, 2013. 15 Attestation dated September 23, 2013, from the Honduran institute for XXXXXX (XXX), accompanying the letter from Mr. Centurion dated October 22, 2013, pages not numbered. 16 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, at paragraph 16. 17 Idem, at paragraph 13. 18 Attestation dated September 25, 2013, from members of the council of the incorporated organizations of the village of XXXXXXX, municipality of XXXXX, Department of XXX accompanying the letter from Mr. Centurion dated October 22, 2013, pages not numbered. 19 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, at paragraph 16. 20 Idem, at paragraph 13. 21 RAD Rules, SOR/2012-257, subrule 3(3). 22 Affidavit signed on September 3, 2013, pages 18 and 19 of the appeal record. Appellant's memorandum, pages 13 to 17 of the appeal record. 23 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, paragraph 62. Canada (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. 24 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." 25 Section 162 of the Act. 26 Section 165 of the Act. 27 Section 166 of the Act. 28 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. 29 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. 30 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 31 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 32 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 33 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, paragraph 26. Ferencova v. Canada (Minister of Citizenship and Immigration), No. IMM-3940-10, Mosley, April 8, 2011; 2011 FC 443, paragraph 8: "The issue of whether the Board failed to consider evidence in the record is a factual one that attracts deference . . . ." 34 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 35 Appellant's memorandum, pages 13 to 17 of the appeal record. 36 RPD decision, paragraph 6, page 4 of the RPD record. 37 Idem, paragraphs 7 and 8, page 5 of the RPD record. 38 Idem, paragraph 11, page 6 of the RPD record. 39 Idem, page 6 of the RPD record. 40 Idem, pages 6 and 7 of the RPD record. 41 Idem, paragraphs 14 and 15, page 7 of the RPD record. 42 Idem, page 7 of the RPD record. 43 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, at 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)." 44 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 45 Maksud v. Canada (Department of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 46 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 47 Vazquez Bizarro v. Canada (Minister of Citizenship and Immigration), No. IMM-5378-12, Noël, February 8, 2013; 2013 FC 140, at paragraph 18. 48 Appellant's Basis of Claim Form, page 19 of the RPD record. 49 RPD Rules, SOR/2012-256, rule 9. 50 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 39. 51 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 42. 52 Laszlo v. Canada (Department of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 53 Triana Aguirre v. Canada (Minister of Citizenship and Immigration), No. IMM-3751-07, Mandamin, May 5, 2008; 2008 FC 571, at paragraph 17: "In some instances, the failure to provide corroborating documentation may be a proper consideration for a board to undertake. Justice Kelen in Amarapala v. Canada (Minister of Citizenship and Immigration), 2004 FC 12 at para. 10, explained the circumstance where a the absence of corroborating documentation may impact credibility: . . . [w]here there are valid reasons to doubt a claimant's credibility, failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the Applicant's explanation for failure to produce that evidence." 54 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, at paragraph 27: "Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits. This is what the Court of Appeal recognized in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, and Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302. In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account. In this case, the RPD was entitled to consider that the sarpanch's documentary evidence was not sufficient to make an account that otherwise appeared in many respects to be implausible credible." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-03155 7