TB6-00628

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-00628 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXa.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 24, 2016 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Chelsea Peterdy Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the United Republic of Tanzania, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find her to be a Convention refugee or a person in need of protection or, in the alternative, refer her claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to ss. 111(1) (a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that she is at risk of persecution in Tanzania because she fears her ex-husband as she is a victim of domestic abuse. The Appellant further alleged before the RPD that her husband is a serving police officer and therefore, the police will not protect or assist her. The Appellant alleged before the RPD that during her marriage she has been beaten to the point where she had received medical attention. The Appellant alleges she obtained a divorce from her ex-husband and had to go into hiding as a result of her ex- continuing to pursue her. The Appellant left Tanzania for Canada on XXXX XXXX, 2015 and made an inland claim for refugee protection on September 24, 2015. [4] The Appellant's application for refugee protection was heard on November 18, 2015. In a written decision of December 23, 2015, the RPD rejected the Appellant's claim finding that the Appellant was not credible in key aspects of her claim. [5] The Appellant submits that the RPD erred in its credibility findings. In particular, the Appellant submits that: the panel erred by finding her not generally credible and then making several negative credibility findings;1 i. Improperly rejecting the Appellant's testimony about where she lived prior to coming to Canada as inconsistent and lacking in credibility; and ii. Improperly finding the Appellant lacked credibility because of minor inconsistencies and omissions from her BoC narrative; and iii. Improperly rejecting the psychiatric evidence submitted by the Appellant; and iv. Unreasonably rejecting the Appellant's supporting documentation for minor typographical errors. Analysis The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.2 [8] The RAD is a statute of a different kind as is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.3 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD."4 [9] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.5 [10] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.6 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to choose whether it agrees with the determination of the RPD; if not, then RAD will substitute its own view and provide the correct answer.7 [11] However, there are cases where the RPD enjoys an expressive advantage over the RAD in making findings of fact or mixed fact and law, as such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.8 The Federal Court of Appeal, in deliberating the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: "The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is no need for me to pigeon-hole the RAD to the level of deference owed in each case."9 [12] It is obvious from the reading of the Federal Court of Appeal decision that some level of deference is warranted, it is less evident how much deference is owed, and to what findings. As the Federal Court observed in Akuffo, "[T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed."10 [13] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. Therefore, credibility findings which arise from that oral testimony are appropriate of deference, as are other findings of fact based on oral evidence, so are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [14] The RAD notes that not every finding relating to credibility however, warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.11 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - here the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.12 [15] The question becomes how much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD can "recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a 'palpable and overriding error'."13 This passage has subsequently been endorsed by other decisions of the Federal Court. [16] It is unfortunate that the Federal Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.14 This leads the RAD to believe, this proposes that "recognize and respect" is indeed somewhat similar to reasonableness. [17] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome. 15 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [18] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [19] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [20] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [21] But the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD will determine the findings to be in error. [22] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. Admissibility of Evidence Submitted on Appeal [23] Section 110(4) of IRPA provides that the Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected16 in the circumstances to have presented, at the time of the rejection. [24] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellants.17 Application of Section 110(4) [25] Section 110(4) establishes a disjunctive test.18 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [26] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.19 [27] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [28] Section 110(4) does not provide an opportunity for Appellants to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.20 [29] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.21 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [30] Where a document meets the test in Section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While Section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in Section 110(4). [31] In Singh22, the Federal Court of Appeal held that there is no valid reason why the RAD cannot apply the criteria set out in Raza23 to the assessment of new evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the nearly-identical wording of Section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.24 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of Section 110(4).25 [32] Where evidence meets the test in Section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in Section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [33] Relevance is a basic condition for the admissibility of any piece of evidence.26 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to Section 162(2) of IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [34] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into Section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in Section110 (6) of IRPA, which describes when the RAD may hold an oral hearing.27 [35] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in Section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of Section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. The Appellant's proposed new evidence submitted pursuant to section 110 (4), IRPA [36] The Appellant has submitted the following documents with her appeal: 1. XXXX Bus Stop - Google Map;28 and 2. Emails (2) to the Appellant and from XXXX XXXX;29 and 3. Letter from XXXX XXXX, and letters from XXXX XXXX and XXXX XXXX;30and 4. Letter from the Canadian Centre for Victims of Torture;31 [37] As stated above the RAD will assess the above proposed evidence in accordance to section 110 (4). The Appellant has provided an affidavit with little to no reasoning to explain how the proposed new evidence meets the requirements of section 110 (4).32 [38] The RAD has assessed the Appellant's affidavit as to how the proposed evidence meets the criteria of section 110 (4). The RAD notes that the Appellant provide no explanation why these documents were not available prior to the hearing, or what steps she had taken to obtain these documents prior to the hearing. The Appellant's affidavit mainly deals with explanations to the RPD credibility findings. The Appellant has not complied with RAD Rule 3; Refugee Appeal Division Rules, Section 3(3) (g) (iii). (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relatesto the appellant, [39] The Appellant has not complied with the above Rule 3; she has provided ambiguous explanations as to why she is now submitting some of the proposed evidence. The Appellant clearly indicates throughout her Affidavit that she is submitting these documents to refute the RPD findings, and that is the reason she obtained them at this time.33 The RAD finds the Appellant had had sufficient time before the RPD hearing to gather the documents she is now asking the RAD to accept as new evidence. As Federal Court noted in one of its recent decisions, "An appeal to the RAD should not be tantamount to another full-blown hearing."34 [40] In this case, the RAD looked at the literal provisions of subsection 110(4) of the Act in assessing the new evidence, asking itself two questions with respect to the new evidence; namely, (1) did the evidence arise after the rejection of the claim and was not reasonably available at the time of the rejection; and (2) was the evidence such that the Appellants could not reasonably have expected in the circumstances to have presented it at the time of rejection? [41] In regards to document (1) XXXX Bus Stop - Google Map which was downloaded from the internet. The RAD finds this document was readily available at any time prior to the hearing, as it was on the internet. The document printed after the hearing, in that it arose after the rejection of the Appellant's refugee claim and there is no reasonable explanation why this particular information was not available before or why it was not presented at the time of the hearing, as such RAD finds this document to be inadmissible under 110 (4). [42] The RAD has assessed document (2) Emails (two) an exchange between the Appellant and XXXX XXXX. The document is dated after the hearing, in that it arose after the rejection of the Appellant's refugee claim. The author indicates that she had informed the Appellant in the past that her ex-husband had attended her residence and threated her. "I already told you in the past that your ex came to me here more than twice and he came again and insult me."35 This clearly indicates to the RAD that this information was available prior to the rejection, and there is no reasonable explanation why this particular information was not available before or why it was not presented at the time of the hearing, as such RAD finds this document to be inadmissible under 110 (4). [43] The RAD has also assessed document (3) a letter from XXXX XXXX, and letters from XXXX XXXX and XXXX XXXX. The letter from XXXX XXXX talks about the relationship between the Appellant and her ex-husband dating as far back as their wedding. The author of the letter talks about the domestic situation between the Appellant and her husband. The author refers to this in the past tense, implying this information relates to the past. The Appellant has not provided a reasonable explanation why she did not procure this information and why this particular information was not available before or why it was not presented at the time of the hearing, as such RAD finds this document to be inadmissible under 110 (4). [44] The letter from XXXX XXXX, the author provides information regarding arson at her residence and former residence of the Appellant, the author alleges that the Appellant's ex-husband is the person responsible. The author does not provide the date and time when this fire took place, as such in the absence by the Appellant as to why this information was not available before or why it was not presented at the time of the hearing, the RAD finds this document to be inadmissible under 110 (4). Regarding the letter from XXXX XXXX, the author states that she was the Appellant's neighbor and witnessed the fire at 6:00 pm at night in 2014. There is no day or month only the year of when this fire took place at the Appellant's former residence. The letter is dated January 15, 2016, after the hearing, in that it arose after the rejection of the Appellant's refugee claim, but the information is from sometime in 2014. The RAD finds as a result of a lack of a reasonable explanation why this particular information was not available before or why it was not presented at the time of the hearing, as such RAD finds these documents to be inadmissible under 110 (4). [45] In assessing document (4), Letter from the Canadian Centre for Victims of Torture, the document is dated XXXX XXXX, 2016, which is after the hearing, the author of the letter advises that the Appellant has been attending the Centre since XXXX 2015. The document is dated after the hearing, in that it arose after the rejection of the Appellant's refugee claim and there is no reasonable explanation why this particular information was not available before or why it was not presented at the time of the hearing, and as such it is inadmissible under 110 (4). [46] The RAD after assessing the evidence in regards to the above questions, finds that the evidence does not meet the requirements of subsection 110 (4). In answer to question (1), the Appellant in her own words states: "I did not know that letters from my family and friends would help support my claim for refugee protection in Canada. When my previous counsel asked to me to gather corroborating documents I focused on official documentation such as the marriage certificate, divorce certificate, and medical examination reports."36 [47] In RAD's opinion this clearly indicates that some of these documents were available to the Appellant prior to her RPD hearing, however, she chose not to get them until she received the RPD decision rejecting her claim due to credibility concerns. She is now attempting to submit these documents to negate the RPD findings. [48] In regards to question (2) the Appellant was represented by counsel before the RPD, who is conversant with claims and what requirements are necessary before the RPD. Here, the Appellant has not questioned the competency of her former counsel. Further, the RAD would note, as recently restated in Singh FCA, it is well established that applicants must live with the consequences of the actions, or in this case, inaction, of their counsel.37 The Appellant could reasonably have been expected to know that credibility was an issue, given the references to the issue in the Act, the Rules, and the Basis of Claim (BoC) form. The BoC form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."38 Application for an Oral Hearing [49] The Appellant requests an oral hearing pursuant to Section 110(6) of the IRPA. [50] Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present "only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [51] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [52] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [53] The RAD has not accepted any of the Appellant's new proposed evidence, as such, the RAD must proceed without a hearing in his appeal, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Credibility [54] The Appellant argues that the RPD concluded that the Appellant lacked credibility in central aspects of her claim.39 [55] The Appellant submits that the RPD negative inferences concerning the Appellant's credibility based on its assessment of her testimony and corroborative documents are not reasonable. The RAD notes that the RPD, in paragraphs 08-16 of its reasons, impugned the credibility of the Appellant because of her testimony, inconsistencies in her Basis of Claim (BoC), her oral testimony and other documentary evidence presented. [56] The RAD is not persuaded by the Appellant's argument. The RAD finds that the Appellant has misinterpreted the findings of the RPD in this regard. The RAD notes that the record reflects that the RPD's adverse credibility findings were not based on a perceived embellishment, but rather based on the contradiction between her testimony and omissions and inconsistencies found in her BoC. For example, the RAD notes that the RPD drew a negative finding from the Appellant's failure to put in her BoC why she omitted reporting to the police the assault by her ex-husband. The Appellant testified at the RPD hearing that she was attacked and went to the police and then to the hospital. The Appellant went on to testify that her husband attacked her more than once. In listening to the audio, the RAD notes that the Appellant does not answer or provide a reasonable explanation for the omission in her BoC. The RAD finds in this particular area that the RPD's finding is supportable, as stated above the Appellant did not answer the question as to why she omitted the reporting to police in her BoC. [57] The Appellant argues that the RPD erred in a credibility finding in which there was some confusion as to where the Appellant resided.40 The RAD notes that there was some confusion on the part of the Panel and the Appellant in trying to establish the residential address of the Appellant. However, the RAD has reviewed the audio and the partial transcript which was provided by the Appellant, and concludes that the Appellant did provide a "best" answer in regards to where she resided. The Appellant testified that there are no street addresses and it's a matter of location via landmarks. In this particular area, the RAD finds the RPD erred in its credibility finding, and finds the Appellant's argument to be supportable. [58] The RAD notes in another credibility finding by the RPD, the Appellant provided three medical examination reports that were issued by the Tanzania police.41 The RPD in its decision noted that there were some discrepancies in the medical forms, such as spelling errors, the signatures of police officers were cut off. The RAD reviewed the forms and noted the RPD findings; however the RAD requested the IRB Research Directorate it they were able to produce a Tanzania Police Form 3, which is also the Medical Examination Form. The Research Directorate was able produce the Form 3;42 however the form differed greatly from the ones submitted by the Appellant. The RAD provided the Research Directorate information also with the Form 3 to the Appellant's counsel to provide submissions if he/she wished to do so. [59] The Appellant's counsel made submissions to the RAD along with supporting documents which included a Form 3.43 The submission by counsel presented a reasonable explanation the difference in appearance of the Form 3s which the Appellant presented to the RPD. The Form 3s which the Appellant presented were from reports made in 2008 and 2010. Counsel presented supporting documentation from the Tanzania authorities that the new Form 3, which the RAD had submitted for counsel's submission was the new form, and that form had been implemented in 2012. [60] However, the Form 344 which was presented to the RAD by counsel had some differences from the Form 3s which the Appellant presented. The RAD notes the following differences; in the Appellant's Form 3s, the police officer's signature is located on the bottom right side of the page. In the Form 3 submitted by her counsel, the signature is located on the bottom left side of the page. At the top of the page in the Appellant's forms, the title is:45 TANZANIA POLICE Medical Examination Report [61] The form 3 submitted by counsel has the title as;46 Tanzania Police Medical Examination Form [62] The form 3 submitted by the Appellant on page two when visually compared with page two of the form 3 submitted by counsel, the 5 columns headings are different in the wording and the page as a whole is setup differently. Appellant's counsel did not provide any submission in regards to these differences. In other words, why the form she submitted is different from the forms the Appellant submitted. [63] The RAD after visually comparing the three form 3s which were submitted by the Appellant to the RPD and the form 3 which was submitted by her counsel, finds on a balance of probabilities that the medical examination forms that were submitted to the RPD not to be true documents, and as such the RAD supports the finding of the RPD and as such affords these examination reports no weight. [64] The RAD notes that the RPD found numerous credibility findings throughout the hearing and the RAD has carefully assessed all those findings. It is clear to the RAD from the record that the RPD considered the documentary evidence in its decision. The RAD reviewed the documentary evidence and all evidence including the documents which was provided by the Appellant at her RPD hearing. There is no persuasive evidence before the RAD to show if the evidence was not considered by the RPD in its decision, as argued by the Appellant. [65] The RAD finds that there is evidence in the record which supports the RPD's adverse credibility findings in this regard. The RAD finds that the Appellant's testimony and omissions in her BoC were inconsistent with her own documentary evidence which she presented and that these inconsistencies undermine the credibility of her allegations. [66] The RAD has found that the RPD fairly and appropriately assessed the probative value of the evidence. The RAD has also found that the RPD has made credibility findings which undermine the credibility of the Appellant's allegations. [67] The Appellant also asks whether the RPD erred in law by failing to consider the totality of the evidence and in particular by ignoring the Gender Guidelines. Again, in the RAD's view, these are questions of fact. The RPD's consideration of the evidence is a matter of fact, and where the Gender Guidelines are used as part of an assessment of credibility, they become incorporated in the standard of review as applied to credibility findings.47 [68] The RPD did, however, consider and apply the Gender Guidelines. It is clear both from the recording of the proceeding and the RPD's reasons that the panel was cognisant of and directed by the Guidelines.48 At no time did the Appellant or her counsel make any comments or requests to the RPD panel, whether the Appellant needed any special accommodations prior or during the hearing. The Gender Guidelines are not a cure for all the deficiencies in the Appellant's evidence.49 To have properly considered the Gender Guidelines, the Board must disclose a degree of knowledge, understanding, and sensitivity in judging a claimant's statements and conduct.50 In this instance, the RPD showed such knowledge, understanding, and sensitivity but, nevertheless, concluded that Appellant's evidence was at times vague and contradictory and her documents were problematic. The RPD was correct and those finds are supportable. [69] The RAD finds that the RPD considered and applied the Gender Guidelines and made reasonable credibility findings on relevant matters. [70] The Appellant argues that she submitted psychiatric evidence that was improperly rejected. The RAD has reviewed the Psychological Report which is dated XXXX XXXX, 2015 and signed by Dr. XXXX XXXX, Ph.D. [71] Dr. XXXX writes that she met with the Appellant for a session which lasted 90 minutes and was assisted by an interpreter as the Appellant does not speak English. The Dr. XXXX writes that she read the Appellant's BoC before meeting with her. Throughout the entire report, Dr. XXXX consistently indicates that "Ms XXXX reports" and the doctor provides a diagnoses that the Appellant meets the DSM 5 criteria for post-traumatic stress disorder (PTSD). The RAD notes Dr. XXXX report shows the results of the doctor's interview with the Appellant. The Appellant's evidence is consistent with her narrative and oral testimony in that she purports to be abused, yet there was nothing persuasive in the findings from Dr. XXXX in the report to show that the Appellant is abused. [72] The RAD assigns no weight to this document as persuasive evidence of this Appellant's allegations of domestic abuse. The RAD notes that while the doctor interviewed the Appellant; the doctor's report does not establish satisfactorily or persuasively that the Appellant's experiences are a result of what she is alleging in respect of her refugee claim. Further, the doctor's only clinical assessment, based on her professional opinion, is that the claimant suffers from symptoms of some post-traumatic stress disorder and depression. The doctor said, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [73] This is not persuasive evidence for this RAD that the doctor is in any position to state categorically that the Appellant before it is a victim of domestic abuse, and the doctor does not make that diagnosis. The doctor also does not set out any future treatment plans for the Appellant. As stated in Rokni51, a psychiatric report submitted as evidence "cannot possibly serve as a cure-all for any and all deficiencies in a claimant's testimony". The court reiterated its position in Danailov52, with respect to the assessment of a physician's evidence and the question of the assessment of credibility, it was stated "that opinion evidence in only as valid as the truth of the facts on which it is based". The RAD finds that, although the Appellant may be suffering from anxiety or have been embarrassed in discussing her story with the doctor at her only session, this may or may not be related to the causes described by the Appellant in her evidence. Accordingly, the panel give the psychological report no weight, and finds the RPD finding in regard to the psychological report to be supportable. The RAD further finds that the entire report by Dr. XXXX is based upon the self-reporting by the Appellant. SUMMARY AND DETERMINATION [74] A review of the RPD's reason and the entire evidence before the RAD reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [75] After conducting an independent assessment of the entirety of the evidence, the RAD reached the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. [76] Given the analysis above, the RAD therefore has deferred to the RPD findings on credibility in this claim and concurs with the findings of credibility and finds that the RPD findings were supportable. [77] The RAD finds that the RPD's credibility findings were thorough and are supported by the evidence and as a result affords deference to the RPD's findings. The RAD also finds, on a balance of probabilities, that the evidence on the record is abundant to support the RPD's overall determination. The RAD finds that, after conducting an independent assessment on the evidence before it in its entirety, it arrived at the same conclusion as the RPD in its overall determination. [78] The RAD further finds that the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Tanzania. [79] The Appellant has alleged that the RPD erred in rejecting her claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD-that the Appellant is completely lacking in credibility and does not require Canada's protection. CONCLUSION [80] Pursuant to Section 111(1) (a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [81] Accordingly, the Appellant's appeal fails. (signed) "Luis F. Agostinho" Luis F. Agostinho May 24, 2016 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 77, Part II issues, Part C. 2 See, for example, Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, para. 33. 3 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, para. 14; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 46. 4 Dhillon, paras. 14-18. 5 Huruglica, 2016 FCA 93, para. 103. 6 Ibid. 7 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 8 Huruglica, FCA, para. 70. 9 Huruglica, FCA, para. 74. 10 Akuffo, paras. 34-35; see also Meilina v. Canada (Citizenship and Immigration), (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233 at para. 11. 11 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also Huruglica, FCA, para. 72. 12 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, which decision contains a thorough discussion of the drawing of inferences.) 13 Huruglica, Federal Court, para. 55. 14 See Yin, para. 36, citing Njeukam, Akuffo, Allalou, and Sajad; also Bui. 15 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 16 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 17 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 18 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 19 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, para. 55; Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA para. 63. 20 Singh, FCA, para. 54. 21 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 22 Singh, FCA, para. 64. 23 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 24 Ibid, Raza, paras. 13-15. 25 Singh, FCA, para. 64. 26 Singh, FCA, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 27 Singh, FCA, para. 48. 28 Exhibit P-2, Appellant's Record, at p. 17, stamped by Appellant as "exhibit A", printed date of XXXX XXXX, 2016 29 Exhibit P-2, Appellant's Record, pp. 19-20 stamped by Appellant as "exhibit B", printed date of XXXX XXXX, 2016 30 Exhibit P-2, Appellant's Record, pp. 21-22 stamped by Appellant as "exhibit C", dated of XXXX XXXX, 2016 31 Exhibit P-2, Appellant's Record, at p. 28, letter dated XXXX XXXX, 2016,stamped by Appellant as "exhibit D" 32 Exhibit P-2, Appellant's Record, pp. 12-15, paras. 08-17, Appellant's affidavit sworn XXXX XXXX, 2016 33 Exhibit P-2, Appellant's Record, at p. 14, para.14, Appellant's affidavit & Appellant's Memorandum p. 80, para 10. 34 Zhong, Zhihui et al v. M.C.I. (F.C., no. IMM-3438-15), Boswell, March 23, 2016; ) 2016 FC 346. 35 Exhibit P-2, Appellant's Record, at p. 20, (English translation of email from XXXX XXXX) & Appellant's memorandum, at p. 80, para 9. 36 Exhibit P-2, Appellant's Record, at p. 14, para. 14 of XXXX XXXX XXXX Affidavit sworn February 05, 2016, Appellant's memorandum, at p. 80, para. 10. 37Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA para. 66. 38 Exhibit RPD-1, RPD's Record, at p.16, Basis of Claim Form, page 1 of 12. 39 Exhibit P-2, Appellant's Record, at p. 76, para.10. 40 Exhibit P-2, Appellant's Record, pp. 84-86. 41 Exhibit P-2, Appellant's Record, at p. 5, para. 11, Reasons for Decision. 42 Exhibit P-2, Appellant's Record, pp. 3-4. 43 Exhibit P-3 44 Exhibit P-3, pp. 10-11. 45 Exhibit P-2, Appellant's Record, at p. 78. 46 Exhibit P-3, pages 10-11. 47 Hernandez, Ricarda Rosario v. M.C.I. (F.C., no. IMM-2982-08), Phelan, January 30, 2009; 2009 FC 106, para. 13. 48 RPD-1, RPD's Record, at p. 5, para. 6, Decision and Reasons. 49 Karanja, Anne Wanja v. M.C.I. (F.C., no. IMM-3296-05), Pinard, May 11, 2006; 2006 FC 574, para. 5. 50 Griffith v. Canada (Minister of Citizenship and Immigration), (1999) 171 F.T.R. 240 (T.D.), at para. 27 51 Rokni, Mohamed Mehdi v. M.C.I. (F.C.T.D., no. IMM-6068-93), Muldoon, January 27, 1995, at 10-11. 52 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-00628