MB4-00677

RAD File No. / N° de dossier de la SAR : MB4-00677; MB4-00678 Private Proceeding/Huis clos Reasons and Decision - Motifs et décision Appellants XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Appelantes Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision April 16, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Me Jean-François Bertrand Conseils des Appelantes Designated Representative N/A Représentant désigné Counsel for the Minister N/A Conseil du Ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX, the appellants, are Congolese citizens. They are appealing the determination of the Refugee Protection Division (RPD), alleging that the decision is based on errors in its assessment of the facts and of their credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA, or "persons in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim for refugee protection [3] In the Basis of Claim Form (BOC Form) she signed on October 5, 2013, the appellant XXXX XXXX states that she is a Congolese citizen; that she was born on XXXX XXXX XXXX 1995; that she is Protestant; that she speaks French and Lingala; and that her mother and father were living in XXXX in the Congo and her sister was living in Canada at that time.1 [4] In her BOC Form, XXXX XXXX writes in the plural, thus describing events that also happened to her sister, XXXX XXXX, the other appellant. She states that they refused to marry XXXX XXXX, a former soldier, and XXXX XXXX, a shareholder in a XXXX XXXX XXXX and that, should they return to the Congo, they fear that they will be forced to marry them. She states that the threats began against their father, and were then directed at them, because these two men had loaned their father money that he was unable to repay, which is why they had demanded his daughters' hands in marriage.2 [5] In her BOC Form, XXXX XXXX states that, on XXXX XXXX XXXX 2013, their father called to tell them that these two men had asked for their hands in marriage in exchange for their financial contribution, which they categorically refused. She states that, [translation] "the same day, XXXX called one of us to ask how our studies were going" and whether they had boyfriends, which they told him they did. She states that XXXX also called to ask them whether they really did have boyfriends, since they were not supposed to, given that they were each destined to become one of their numerous wives. He told them they would not lose their money for nothing if they did not marry them.3 [6] XXXX XXXX states in her BOC Form that they did not seek help or protection from the authorities in their country because they were not persecuted in their country before coming to Canada. She states that it was not until early XXXX 2013 that their father told them that some of the money with which he was supporting them in Canada came from his friends; therefore, they could not ask the authorities in their country to protect them, because no demand for a forced marriage had been made while they were living in their country.4 [7] In her BOC Form, XXXX XXXX states that they did not seek refuge in another part of their country because, while they were living there, they lived with their father and did not have any problems. She states that it was after they left, that their father's friends took advantage of his precarious situation to offer to contribute money to help pay for their studies.5 [8] XXXX XXXX states in her BOC Form that they left their country on XXXX XXXX, 2012, to come to Canada to study.6 [9] In her BOC Form, XXXX XXXX states that, after the calls on XXXX XXXX XXXX 2013, they continued to receive several telephone threats from XXXX and XXXX, who told them that they had already planned everything for the marriage and that they would not back off. She states that their father told them that his friends were harassing him and that, because they were putting enormous pressure on him and he was afraid for his life, he had asked their respective mothers to persuade them to change their minds.7 [10] XXXX XXXX states in her BOC Form that, on XXXX XXXX XXXX 2013, XXXX called to give them an ultimatum; he said that they would not back off until they had changed their minds. She also states that they cannot return to the Congo because they already have boyfriends here in Canada.8 [11] In her BOC Form, XXXX XXXX states that, on XXXX XXXX XXXX 2013, their father called and told them that it was up to them to decide whether or not to return home. She states that their father told them that his life was in danger and that they had to choose between life and death.9 [12] The same information appears in the BOC Form filed by the appellant XXXX XXXX, who states that she is a Congolese citizen and that she was born on XXXX XXXX XXXX 1994.10 B. RPD decision [13] The hearing before the RPD was held on December 9, 2013, and the decision was rendered on January 24, 2014.11 The RPD rejected the claims for refugee protection, stating that it had noted a certain number of problems relating to the appellants' credibility. The RPD also noted that the appellants, then the claimants, had repeated word for word what was written in their BOC Forms and was therefore of the opinion that their testimony lacked spontaneity. Finally, the RPD was of the opinion that the appellants had failed to establish the crucial elements of their claims for refugee protection with any credible evidence and that they had made no attempts to substantiate their allegations.12 C. Grounds of appeal and remedy sought [14] In their memorandum, the appellants argue that the RPD's decision is based on errors in its assessment of the facts and of their credibility.13 [15] The appellants are asking the RAD to allow the appeal, to set aside the RPD's decision, to refer the matter to the RPD for re-determination before a differently constituted panel and to issue any other order it deems necessary.14 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Evidence presented by the appellants on appeal [16] The affidavit signed by Isabelle Sauriol states that they are presenting evidence under subsection 110(4) of the IRPA in support of this appeal.15 The list of documents is as follows: - An affidavit from the appellants' father signed on March 5, 2014 - A travel order dated XXXX XXXX XXXX 2013 - An invitation to the appellants' father to attend a XXXX XXXX XXXX XXXX XXXX XXXX, held in Montréal from XXXX XXXX to XXXX XXXX 2013 - A certificate of qualification issued to the appellants' father on XXXX XXXX XXXX 201316 B. Test for admissibility [17] Subsection 110(4) of the IRPA states that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim for refugee protection 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. It should be noted that the time limit referred to in subsection 110(4) is the rejection of the appellant's refugee protection claim, not the hearing before the RPD. A party who wants to provide a document as evidence after a hearing but before a decision takes effect may make an application to the Division.17 110. (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. [18] 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 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.18 [19] In a recent decision, my colleague Edward Bosveld analyzed the similarities and the distinctions that must be made between subsection 110(4) and paragraph 113(a) of the IRPA, the latter of which concerns new evidence that is admissible in a pre-removal risk assessment (PRRA).19 In this analysis, he expresses the opinion that some adjustments are needed to the factors developed in the case law concerning PRRAs, in particular in Raza.20 Regarding the newness of the evidence presented, Member Bosveld was of the opinion that this factor may simply be analyzed under subsection 110(4) of the IRPA, and that there is no need to analyze it again by considering this factor as it has been developed in the case law relating to PRRAs.21 [20] The fact that evidence corroborates facts, contradicts RPD findings or clarifies the evidence before the RPD does not make it "new evidence" within the meaning of subsection 110(4) of the IRPA. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the IRPA seeks to prevent. C. Decision of the RAD on the admissibility of this evidence [21] The appellants' memorandum does not contain full and detailed submissions regarding how the evidence presented in support of their appeal meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellants. [22] First, concerning the affidavit from the appellants' father signed on March 5, 2014,22 this document essentially seeks to establish events that occurred before the RPD's decision was rendered on January 24, 2014, and that were included in the appellants' BOC Form and in their testimony. [23] Second, concerning the invitation, dated XXXX XXXX XXXX to the appellants' father to attend a XXXX XXXX XXXX XXXX XXXX XXXX, held in Montréal from XXXX XXXX to XXXX, 2013; the travel order dated XXXX XXXX XXXX 2013, in connection with this invitation; and the certificate of qualification issued to the appellants' father on XXXX XXXX, 2013,23 all of these documents seek to establish events that occurred between XXXX and XXXX 2013, that is, well before the RPD rendered its decision. Moreover, the appellants' memorandum does not establish that these documents were not reasonably available to them at the time of the hearing for their claims for refugee protection. [24] Consequently, these documents cannot be considered new evidence within the meaning of subsection 110(4) of the IRPA, and I conclude that they are not admissible in this appeal. I. V. HEARING BEFORE THE RAD A. The appellants requested a hearing before the RAD [25] 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.24 [26] The affidavit signed by Isabelle Sauriol states that the evidence being presented on appeal raises serious issues with respect to the appellants' credibility, and for this reason, they are requesting that the RPD hold a hearing.25 [27] The panel notes that, pursuant to subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the RPD record of proceedings: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Test under subsection 110(6) of the IRPA [28] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it would justify allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No cause to hold a hearing before the RAD [29] In the present appeal, I have already concluded that the evidence presented on appeal is not admissible as new evidence within the meaning of subsection 110(4) of the IRPA. [30] Consequently, there is no cause to hold a hearing before the RAD. VI. WHAT DEFERENCE IS DUE AND WHAT STANDARDS OF REVIEW SHOULD BE APPLIED IN AN APPEAL BEFORE THE RAD? [31] In the following paragraphs, I will analyze the particular context of the RPD and the RAD and what I believe can be inferred from the few legal decisions that address these issues. A. The particular context of the RPD and the RAD [32] 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. The RPD and the RAD are both part of the Immigration and Refugee Board (IRB), but they are two distinct divisions.26 Sections 162 to 169 of the IRPA 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";27 that the members of both divisions have the powers and authority of a commissioner and may do anything they consider necessary to provide a full and proper hearing;28 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, taking any other measure that it considers necessary to ensure confidentiality.29 Sections 169.1 to 170.2 of the IRPA are specific to the RPD, while sections 171 and 171.1 are specific to the RAD. [33] In their respective roles, the RPD and the RAD must deal with whether or not to grant refugee protection to persons who make a claim. They are therefore part of the Canadian refugee protection system under the IRPA, which governs them and whose objectives include establishing fair and efficient procedures that will maintain the integrity of the system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings.30 [34] The main role of the RPD is to hold hearings in order to determine whether refugee protection claimants are "Convention refugees" or "persons in need of protection." In disposing of a claim by holding a hearing, the RPD has the opportunity to see and to question refugee protection claimants, which gives it a significant advantage with respect to making findings of fact and assessing the credibility of claimants. [35] Pursuant to subsection 110(1) of the IRPA, a person or the Minister may appeal, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person's claim for refugee protection. However, pursuant to subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the RPD record of proceedings. In order for a hearing to be held before the RAD, new evidence must be deemed admissible. In addition, the RAD must be of the opinion that this evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and would justify allowing or rejecting the refugee protection claim.31 In other words, there are significant differences between the RPD and the RAD. B. Right of appeal and deference to RPD decisions [36] I would now like to refer to the concepts developed by the Alberta Court of Appeal in two decisions. These decisions do not relate directly to the IRPA, which governs the RPD and the RAD, and, consequently, do not serve as precedents that must be followed as such in this context. However, I am of the opinion that they can provide some teachings, not only with respect to the issue of whether an appeal before the RAD is an appeal de novo, but also with respect to the standards of review to be applied in this appeal. [37] 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 of appeal-including within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.32 [38] 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.33 [39] In citing the Supreme Court of Canada, the Court of Appeal was emphasizing 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.34 [40] 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.35 [41] In a more recent decision, also rendered by the Alberta Court of Appeal, the Honourable Justice Slatter stated that the standards of review identified in Newton could vary according to the issue at hand.36 [42] In decisions of interest rendered by the Quebec Court of Appeal, this very issue of the standards of review to be applied by an appellate jurisdiction that is itself part of an administrative tribunal was analyzed, but in a different legislative context from ours. I note from these two decisions that it is paramount to [translation] "carefully scrutinize the applicable legislation to determine the limits of the intervention framework that each decision-maker, at each decision-making level, was assigned by the legislator."37 I am also alert to the argument that an appeal before an appellate jurisdiction that is part of an administrative tribunal should not be equated to a kind of judicial review,38 but I also note that even that type of appeal has its intrinsic limitations and that it does not necessarily constitute a new proceeding.39 [43] Overall, I am of the opinion that, except for strict questions of law that may include questions of interpreting the IRPA, which governs both the RPD and the RAD, and except for questions of natural justice, it is appropriate for RAD members to extend 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. In my opinion, it follows that, except in exceptional circumstances, which are not present in this case, an appeal heard by the RAD does not constitute an appeal de novo. [44] That being said, the Federal Court should soon be able to enlighten us on the issue of what standards of review must be applied in appeals heard by the RAD against decisions rendered by the RPD. At that point, it will no longer be necessary to refer to the RAD context or to decisions rendered in cases involving legislation other than that which governs the relationship between the RPD and the RAD. For now, however, I am of the opinion that it is necessary to proceed as I have done in the above paragraphs, knowing that this situation is temporary and that the standard of review analysis does not need to be conducted in all cases.40 C. Standard of review to be applied in this case [45] In their memorandum, the appellants argue that the RPD's decision is based on errors in its assessment of the facts and of their credibility.41 However, they do not specify what standard of review should be applied in the context of their appeal. [46] Whether or not the RPD correctly assessed a refugee protection claimant's credibility and took into account all the evidence has to do with the assessment of the evidence, which constitutes a question of fact. Relying on the case law, I am of the opinion that the applicable standard of review in such cases is that of reasonableness.42 [47] When reviewing a decision on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.43 VII. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its assessment of the facts and of the appellants' credibility? [48] For the reasons that will follow, I conclude that the RPD did not err in its assessment of the appellants' credibility or in its assessment of the facts as established by the evidence, and that its decision rejecting the appellants' claims for refugee protection falls within the range of acceptable outcomes which are defensible in respect of the facts and the law. [49] In their memorandum, the appellants argue that a careful analysis of the recording of the hearing shows that the RPD seems to be confusing the lack of physical evidence with the notion of credibility. They argue that on a number of occasions, the RPD focused too much on requiring physical evidence, rather than focusing on their testimony.44 [50] The appellants also argue that the RPD was mistaken on a number of points, in particular the fact that their father did not come to visit them in XXXX 2013, but rather came to Canada in connection with his work; and the fact that their father is now able to repay the men who were making the threats, but that these men are insisting on a marriage as reimbursement. In their opinion, these errors are serious and determinative, and give rise to concerns regarding the decision rendered and warrant allowing the appeal.45 [51] The appellants further argue that the RPD's findings regarding their credibility are unreasonable, in particular concerning their knowledge of the men who were threatening them, the threats that were made against them, and by asking them to make a direct connection between a possible relocation within their country and their fear for their lives.46 [52] The RPD states in its reasons for decision that the appellants repeated, word for word, what was written in their BOC forms and that it was therefore of the opinion that their testimonies lacked spontaneity. It further states that it noted a certain number of problems with respect to the appellants' credibility, as follows.47 [53] First, the RPD made a negative credibility finding with respect to the appellants' allegations regarding the existence of their persecutors, because they provided very little information about them.48 [54] Second, the RPD doubted the truth of the appellants' allegations regarding the telephone calls from the men who were allegedly threatening them in order to force them marry them, because the information about them in their BOC forms was vague and ambiguous and because they did not specify which sister was supposed to marry which man. When they were asked to explain this, the appellants answered that they believed they would be able to explain at the hearing. The RPD was not satisfied with this response.49 [55] Third, the RPD made a negative credibility finding with respect to the appellants' allegation that they had received numerous death threats from their persecutors, because their BOC forms contain no details on this subject.50 [56] Fourth, the RPD drew another adverse conclusion, finding that the appellants were not credible in stating that their lives had been threatened, because they did not mention a fear for their safety when they were questioned regarding an internal flight alternative and asked about the possibility of relocating to another area.51 [57] Fifth, the RPD made a final negative credibility finding regarding the appellants' statement that their father had had financial difficulties that had required him to take money from his friends, because the visa officer's notes indicate that he had the necessary funds to cover the cost of their studies in Canada, because their father came to visit them in Canada in XXXX 2013, and because, during their testimony, the appellants stated that their father was now able to repay the money he had received from his friends.52 [58] Finally, the RPD was of the opinion that the appellants had failed to establish crucial elements of their claims for refugee protection with any credible evidence and that they had made no attempt to substantiate their allegations, despite having the support of their parents, who could have obtained documents to corroborate their allegations.53 [59] In my opinion, my role in this appeal is not to reweigh the evidence,54 or to conduct a microscopic examination of the RPD's decision. Rather, my role is to evaluate whether or not an error was committed by the RPD and to determine whether, when analyzed as a whole, the RPD's finding that the appellant did not establish her credibility with respect to certain allegations55 falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law.56 I note that, according to the Federal Court case law, the RPD's findings affecting issues of credibility and the assessment of evidence are entitled to great deference in the context of a judicial review.57 I am of the opinion that the RAD must also extend deference to the RPD's findings concerning issues of credibility and the assessment of evidence in the context of this administrative appeal process. [60] The onus is on the refugee protection claimant to establish before the RPD that they have a well-founded fear of persecution or that they would be more likely than not to face a personal risk to their life, a risk of cruel and unusual treatment or punishment or a danger of torture, should they return to live in their country of citizenship. The RPD is entitled to make findings based on implausibility, common sense and rationality.58 [61] As part of its demanding work, the RPD must assess all of the evidence presented before it. That said, it is open to it to disbelieve the refugee protection claimant, but it must say so unequivocally.59 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.60 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, while taking into account all of the evidence, which must be assessed as a coherent whole.61 The case law also clearly establishes that the RPD may reject the explanations provided for such contradictions or omissions, when these explanations are deemed unsatisfactory.62 [62] Having carefully reviewed the arguments presented by the appellants in their memorandum, as well as the RPD's reasons for decision, I am particularly persuaded by the lack of detail and the omissions in the information provided in the BOC forms. As the RPD states, the appellants' explanation that they believed they could provide explanations at the hearing is not satisfactory. [63] The appellants declared in their BOC forms that the information they had provided was complete, true and correct, and that they understood that their respective declarations had the same force and effect as if made under oath.63 Afterwards, had they wanted to make changes to their forms, the RPD Rules permit them to do so.64 The panel notes that all relevant and important facts must 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.65 Consequently, I am of the opinion that the RPD did not err in considering that the vague and ambiguous information in the BOC Form, as well as the omissions from this form, undermined the appellants' credibility. [64] Furthermore, the RPD noted that the appellants had repeated word for word what was written in their BOC forms, and was therefore of the opinion that their testimony lacked spontaneity. On this subject, the case law indicates that 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 hearing66 and, in some circumstances, a claimant's conduct may be sufficient in itself to reject the claim for refugee protection.67 [65] Finally, in my opinion, taking into account the particular circumstances of this case, the RPD was entitled to note that the appellants had provided no evidence in support of their claims for refugee protection, despite having the support of their parents, who could have obtained documents corroborating their allegations. [66] According to the case law, failing to file supporting documentation that it is reasonable to expect may have an impact on the credibility of the person claiming refugee protection.68 Rule 11 of the RPD Rules clearly states that the claimant has an obligation to provide acceptable documents and other evidence in support of their claim. The English version has been found to speak more directly than the French version.69 However, it must be remembered that in French, writing in the present indicative suffices to express the imperative nature of a rule. Regardless, the point is that a person who is not diligent in trying to obtain an important document that could corroborate his or her testimony may undermine his or her own credibility.70 [67] In the present case, as the RPD noted, the appellants are educated individuals. They were able to provide the necessary documents to obtain their student visas. Their explanations to the effect that they did not think the RPD would require such documents are not satisfactory. Consequently, the RPD did not err in concluding that the appellants had failed to establish their allegations on a balance of probabilities. Indeed, the RPD could have concluded that their lack of diligence undermined their credibility. [68] Having carefully considered the appellants' arguments, as well as the RPD's reasons for decision, I conclude that the RPD did not err in its assessment of the facts as established by the evidence or in its assessment of the appellants' credibility. I am also of the opinion that, taken as a whole, its decision rejecting the appellants' claims for refugee protection falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [69] In my opinion, the RPD's handling of this case complies in every respect with one of the objectives of the IRPA, that is, to establish fair and efficient procedures that will maintain the integrity of the system, while upholding the human rights and fundamental freedoms of all human beings.71 [70] I would add that, in accordance with subsection 107(2) of the IRPA, the RPD could have stated in its decision that there was no credible basis for the claims, given that the appellants did not present any credible or trustworthy evidence on which it could have made a favourable decision. VIII. REMEDIES [71] For the foregoing reasons, I confirm the determination of the RPD, that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. [72] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 16, 2014 Date IRB translation Original language: French 1 Basis of Claim (BOC) Form filed by XXXXXXXXXXX XXXXXXXXX, pages 21, 26 and 29 of the RPD record. 2 Idem, pages 21 and 22 of the RPD record. 3 Idem. 4 Idem, page 22 of the RPD record. 5 Idem, page 23 of the RPD record. 6 Idem, page 23 of the RPD record. 7 Idem, page 24 of the RPD record. 8 Idem. 9 Idem. 10 BOC Form filed by XXXXXXXXX XXX, pages 52 to 60 of the RPD record. 11 RPD decision, pages 11 to 19 of the RPD record. 12 Idem, paragraph 12, page 14 of the RPD record. 13 Appellants' memorandum, pages 11 to 19 of the appeal record. 14 Idem, page 19 of the appeal record. 15 Affidavit of Isabelle Sauriol, an articling law student with Jean-François Bertrand, March 8, 2014, paragraph 1, page 38 of the appeal record. 16 These documents are reproduced at pages 40 to 47 of the appeal record. 17 RPD Rules, SOR/2012-256, rule 43. 18 RAD Rules, SOR/2012-257, subrule 3(3). 19 RAD file No.: TB3-08678, decision rendered March 26, 2014, at paragraphs 6 to 35. 20 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. 21 RAD file No.: TB3-08678, decision rendered March 26, 2014, at paragraphs 15 and 16. 22 This document is reproduced at pages 40 and 41 of the appeal record. 23 These documents are reproduced at pages 40 to 47 of the appeal record. 24 RAD Rules, SOR/2012-257, subrule 3(3). 25 Affidavit of Isabelle Sauriol, an articling law student with Jean-François Bertrand, March 8, 2014, paragraphs 2 and 3, page 38 of the appeal record. 26 Section 151 of the IRPA: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 27 Section 162 of the IRPA. 28 Section 165 of the IRPA. 29 Section 166 of the IRPA. 30 Paragraph 3(2)(e) of the IRPA. 31 Subsection 110(6) of the IRPA. 32 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 principle 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. 33 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. 34 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 35 Idem, paragraphs 82 to 84. 36 Kikino Métis Settlement v. Métis Settlements Appeal Tribunal, 2013 ABCA 151, paragraph 12. 37 Laliberté v. Huneault, 2006 QCCA 929, paragraph 16. 38 Parizeau v. Barreau du Québec, 2011 QCCA 1498, paragraphs 75 to 78. 39 Idem, paragraph 79. 40 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. 41 Appellants' memorandum, pages 11 to 19 of the appeal record. 42 Bayard Ndam v. Canada (Minister of Citizenship and Immigration), No. IMM-5447-09, Beaudry, May 14, 2010; 2010 FC 513, at paragraph 4. Ferencova v. Canada (Minister of Citizenship and Immigration), No. IMM-3940-10, Mosley, April 8, 2011; 2011 FC 443, at paragraph 8. 43 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. 44 Appellants' memorandum, paragraphs 3 to 6, pages 13 and 14 of the appeal record. 45 Idem, paragraphs 7 to 14, pages 14 and 15 of the appeal record. 46 Idem, paragraphs 15 to 30, pages 14 and 15 of the appeal record. 47 RPD decision, paragraph 12, page 14 of the RPD record. 48 Idem, paragraph 13, pages 14 and 15 of the RPD record. 49 Idem, paragraph 14, pages 15 and 16 of the RPD record. 50 Idem, paragraph 15, page 16 of the RPD record. 51 Idem, paragraph 16, pages 16 and 17 of the RPD record. 52 Idem, paragraph 17, pages 17 and 18 of the RPD record. 53 Idem, paragraphs 12, 18 and 20, pages 14, 18 and 19 of the RPD record. 54 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." 55 RPD decision, paragraph 39, page 8 of the RPD record. 56 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 57 Ahmadsai v. Canada (Minister of Citizenship and Immigration), No. IMM-893-13, Shore, October 10, 2013; 2013 FC 1025, at paragraph 23. 58 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 59 Maksud v. Canada (Minister of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 60 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 61 Bosiakali v. Canada (Minister of Citizenship and Immigration), No. IMM-4948-00, Nadon, December 14, 2001; 2001 FCT 1381, paragraphs 13 and 14. 62 Vazquez Bizarro v. Canada (Minister of Citizenship and Immigration), No. IMM-5378-12, Noël, February 8, 2013; 2013 FC 140, at paragraph 18. 63 BOC Form filed by XXXXXXXX, page 29 of the RPD record; and BOC Form filed by XXXXX XXX, page 60 of the RPD record. 64 RPD Rules, SOR/2012-256, rule 9. 65 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 39. 66 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 16, referring to the remarks of Harrington J. in Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303, 131 A.C.W.S. (3d) 508, at paragraph 22. 67 Idem, at paragraph 15, where Justice Shore is referring to the remarks of Pinard J. in El Balazi v. Canada (Minister of Citizenship and Immigration), 2006 FC 38, [2006] F.C.J. No. 80, at paragraph 6. 68 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) at paragraph 20, and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6. 69 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. The English version reads as follows: "The claimant must provide acceptable documents establishing their identity and other elements of the claim." 70 Idem, at paragraph 15. 71 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-00677; MB4-00678 2